S.S. Byas, J.
1. Since, these two appeals were directed against one and the same judgment of the learned Sessions Judge, Jalore dated August 5, 1981, they were heard together and were decided on September 28, 1984 by a single judgment. The appellant's appeals were partly allowed by us in the manner indicated as hereunder:
Judgment pronounced. In the aforesaid appeals we pass the following order, reasons for which we shall give later:
(1) appeals of accused (1) Dhura (2) Sujana, (3) Niina, (4) Madha s/o Lumbaji (5) Pabu and (6) Haru are partly allowed. Their conviction and sentence under sec 302/149, IPC are set aside and they are acquitted of the said offence. The conviction and sentence of accused (1) Sujana and (2) Dhura under Section 307, IPC and the conviction and sentence of the remaining four (1) Madha s/o Lumbaji, (2) Naina (3) Pabu and (4) Haru under Section 307/149 IPC are also set-aside. Instead, accused (1) Sujana and (2) Dhura are convicted under Section 326, IPC while the remaining four (1) Madha s/o Lumbaji, (2) Naina (3) Pabu and (4) Haru are convicted under Section 326/149, IPC for causing injuries to Pokar and Thakara. Since all of them have also been convicted under Section 326, IPC and sentenced to four years rigorous imprisonment with a fine of Rs. 300/-by the Court below, there is no need to pass separate sentence for the offence to which we have altered their conviction.
(2) The convictions and sentences of the appellants for the remaining offences are maintained.
(3) The substantive sentences of the appellants shall run concurrently while those in default of the payment of fine shall run consecutively. The period of detention of the appellants, if any undergone by them during investigation, enquiry or trial shall be set-off against the terms of imprisonment imposed on them. In case they have served out the full term of their sentences, they shall be immediately set at liberty if not wanted in any other case.
We now, record the reasons.
2. By his judgment aforesaid, the learned Sessions Judge convicted and sentenced the appellants as under:
S. No. Accused Offence Sentence awarded 1. Sujana Ram s/o 302/149, IPC Inprisonment for life with a Ramuji a fine Rs. 1000/-, in defaultof payment of fine to further undergo two years' RIGOROUS IMPRISONMENT307, IPC Seven years' rigorous imprison-ment with a fine of Rs. 500/-,in default of payment of fine to further undergo one year's rigorous imprisonment326, IPC Four years rigorous imprisonmentwith a fine of Rs. 300/-,in default of payment of fine to further undergo six month's R.I.324, IPC 1 1/2 years' rigorous imprison-ment with a fine of Rs. 200 in default of the payment of fine to further undergo two month's R.I.148, IPC One year's rigorous imprison-ment with a fine of Rs. 100/-, in default of the payment of fine to further undergo fifteen day's rigorous imprisonment2. Dhura s/o 302/149, IP Imprisonment for life with aKumbha fine of Rs. 100/-in default ofthe payment of fine to further undergo two year's rigorous imprisonment307, IPC Seven year's rigorous imprison-ment with a fine of Rs. 500/-.in default of the payment of fine to further undergo one year's rigorous imprisonment326, IPC Four years rigoious imprison-ment with a fine of Rs. 300/-in default of the payment of fine to furthar undergo six months rigorous imprisonment324, IPC 1 1/2 years, rigorous imprison-ment with a fine of Rs. 200/-in default of the payment of fine to further undergo two months R.I.148, IPC One years rigorous imprison-ment with a fine Rs. 100/-indefault of the payment of fine to further undergo fifteen days R.I.3. Madha s/o 302, IPC Imprisonment for life with aLumbaji fine of Rs. 1000/-.in default ofthe payment of fine to further undergo two years R.T. 307/149, IPC Five years rigorous imprison-ment with a fine Rs. 300/- in default of the payment of fine to further undergo six month's rigorousimprisonment 226, IPC Four year's rigorous imprison-ment with a fine of Rs. 300/- in default of the payment of fine to further undergo six months rigorous imprisonment324, IPC 1 1/2 years rigorous imprison-ment with a fine of Rs. 200/- in defaultof the payment of fine to further undergo two months R.I.148, IPC One yeat's rigorous imprison-ment with a fine of Rs. 100/-, in default of the payment of fine to furtherundergo fifteen days R.I.4. Naina 302/149, IPC Imprisonment for life with afine of Rs. 1000/- in default of the payment of fine to further undergo two year's R.I.307/149, IPC Five year's rigorous imprisonment with a fine of Rs. 300/-, in default of the payment of fine to further undergo six month's rigorous imprisonment325, IPC Four year's rigorous imprison-ment with a fine of Rs. 300/-,in default of the payment of fine to further undergo six months rigorous imprisonment324, IPC 1 1/2 years rigorous imprison-ment with a fine of Rs. 200/-in default of the payment of fine to further undergo two months R.I.148, IPC One year's rigorous imprisonment with a fine of Rs. 100/-in default of the payment of fine to further undergo fifteen days R.I.5. Pabu s/o 302//149 IPC Imprisonment for life with aRamu fine of Rs. 1000/- in default offine to further undergo two year's R.I.307/149, IPC Five years rigorous imprisonment with a fine of Rs. 300/-, in default of the payment of fine to further undergo six months rigorous imprisonment226, IPC Four year's rigorous imprison-ment with a fine of Rs. 300/- in default of the payment of fine to further undergo six month's R.I.324, IPC 1.1/2 years rigorous imprison-ment with a fine of Rs. 200/- in default of the payment of fine to further undergo two months R.I.148, IPC One year's rigorous imprison-ment with a fine of Rs. 100/- in default of the payment of fine to further undergo fifteen days R.I.6. Haru s/o 302/149, IPC Imprisonment for life with afine of Rs. 1000/- in default of the payment of fine to further undergo two years R.I.307/149. IPC Five year's r.i. with a fine of Rs. 300/- in default of the payment of fine to further undergo six month's R.I.326, IPC Four year's r.i. with a fine ofRs. 300/- in default of the payment of fine to further undergo six month's R.I.324, IPC 1 1/2 year's rigorous imprison-ment with a fine of Rs, 200/- in default of the payment of fine to further undergo two months rigorous imprisonment 148, IPC One year rigorous imprison-ment with a fine of Rs. 100/-in default of the payment of fine to further undergo fifteen day's rigorous imprisonment
3. The incident is alleged to have taken place on the road crossing is Sarhad Mauja Sankar Police Station Sanchore at about 10.00 A.M. On October It, 1980 in which one was done to death and five others were severely injured.
4. In succinct, the case put up by the prosecution is that the deceased-victim Koja was the real brother of PW 1 Pokar and.PW 4 Rachu residents of village Sankar. Jeevna and Madha, who are real brothers inter se (main accused in the case but are absconding) are also residents of village Sankar. The relations between these two factions were unhappy. On October 5, 1980, PW 4 Rachu presented written report (Ex. PW 1) at Police Station, Sanchore against Jeevna and Madha alleging therein that they had molested his daughter Kumari Shanta in the afternoon of October 4, 1980. The Police registered a case under Sections 354, etc. of the Penal Code and proceeded with investigation. This further embittered the relation between the two factions. The appellants and some other persons, who have been acquitted by the court below, were the sympathisers and supporters of Jeevna and Madha.
5. On October 11, 1980, PW 1 Pokra, PW 2 Thakra, PW 3 Surta Ram PW 4 Rakhu and PW 5 Ratnaram were going together to see PW 7 Kalu to finalise the matter of taking his fields for cultivation. When these persons reached the crossing of the ways, as shown in the site plan Ex. P. 31 the appellants accompanied with ten more persons (including Jeevna and Madha) met them there and blocked their way and thus restrained them from proceeding further. Hema, Teja and Raja had axes while the remaining including the appellants had Dhariyas with them. Accused Jeevna gave a call that the enemies had come and they should be finished. Saying so, Jeevoa struck a blow of his Dhariya on the head of Koja. Koja fell down with profuse bleeding from his wound. The appellants made an assault on Pokar, Thakra, Surta, Racha and Ratna and struck to them with their weapons. As a result, these five persons sustained multiple injuries, some of which were of severe nature. The victims raised cries. PW 6 Uka and PW 7 Kalu, who were nearby in their Dhanies, came running to the site. They tried to intervene but were threatened by the accused party that they would also meet the same fate in case they dared to comi near. Koja, Thakra, Pokra and Surta became unconscious on the spot due to the infliction of injuries to them. Kalu PW 7 went to his Dhani and brought a camel cart. The injured persons were put in the cart and were taken to the bus stand. The condition of Koja was rapidly deteriorating and he passed away at the bus stand, sankar. His dead body was allowed to remain there in the cart at the bus stand. The other injured persons were taken in a truck to Sanchore where they were admitted for treatment in the Government Hospital. PW 5 Ratna Ram contacted an Advocate at Sanchore and got typed report Ex. P. 2 of the occurrence. He presented it to the Police Station, Sanchore at about 2.00 P.M. on the same day. The police registered a case and proceeded with investigation. The Investigating Officer Gulab Singh (PW 11) went to the hospital and requested the doctor on duty to examine the injuries of the victims. From there he went to bus stand, Sanchore where the dead body of Koja was lying in the camel cart. He prepared the inquest of the body and thereafter went to the place of occurrence. He prepared the site plan and seized and sealed the blood-stained soil lying scattered there. The deadbody of Koja was taken to Government Hospital, Sanchore where the autopsy was performed at 9.00 A.M. on October 12, 1980 by PW 9 Dr. M.L. Doshi. He found one ante-mortem incised wound 7 'x 1' x bone deep on left side of scalp from forehead to occipital region vertical on left fronto-parietal and occipital region in middle. On opening the skull he found communicated fracture of left temporal, frontal and parietal bones and left side including the occipital bone with vertical cut of frontal, parietal and occipital bones in the length of incised wound. In the opinion of Dr. Doshi, the cause of death of Koja was shock and extensive haemorrhage due to the injuries to the scalp and brain. The post-mortem examination report issued by him is Ex. P. 12.
6. Dr. Doshi also examined the injuries of Thakra Ram, Pokar, Rachu, Ratna and Surta Ram. The injury reports issued by him in respect of these persons are Ex. P. 7 to Ex. P. 11. The x-Ray examination of the injuries of Surta, Ratna, Pokra and Thakra took place on October 12, 1980 in the Government Hospital, Jalore. This examination was conducted by Dr. Kapoor Chaudhary (PW 10). The reports of X-Ray plates prepared by him are Ex. P. 16 to 29. The X-Ray examination revealed the multiple fractures sustained by the above for injured persons.
7. The Investigating Officer seized and sealed the blood stained clothes of the victims. The appellants and those acquitted by the court below were arrested. In consequence of the disclosure statements made by some of them, the weapons of offence were recovered; After when the investigation was over, the police submitted a challan against fourteen persons including the appellants in the Court of Munsif & Judicial Magistrate, Sanchore. The principal accused Jeevna and Madha sons of Dhunkla remained absconding. The learned Magistrate committed the case for trial to the Court of Sessions, Jalore. The learned Sessions Judge framed charges under Sections 148, 302/149, 307/149, 326/149, 324 etc. of the Penal Code against the appellants and eight others, to which they pleaded not guilty and faced the trial. The defence taken by the appellants was that of complete innocence. It was alleged by them that they had been falsely implicated at the behest of Sarpanch Hema Ran. The deceased Koja was the real brother-in law of Hema Ram. There was a dispute between Hemaram and the appellants due to Panchayat Elections. Hemaram took the opportunity to falsely implicate the appellants. The appellants pleaded alibi and alleged that they were not present on the spot at the time of the alleged incident. In support of its case, the prosecution examined 13 witnesses and filed some documents. In defence, the accused examined four witness. Though the defence of alibi was taken by the appellant, the evidence in defence suggested the presence of the appellants Madha, Nainiya, Sujana and Pabu at the scene of occurrence. According to the defence evidence these four appellants and the members of complainant party picked-up quarrel at the crossing of the ways as shown in the site plan, The members of the complainant party were armed with lethal weapons and they tried to make an assult on the aforesaid four appellants. It was in that process that deceased Koja and the other injured-victims sustained injuries. On the completion of trial, the learned Sessions Judge found no incriminating material against eight accused persons. They were consequently acquitted. The prosecution case against the six appellants is taken as substantially true and the charges duly proved. The appellants were consequently convicted and sentenced as mentioned at the very out-set. Aggrieved against their conviction and sentences the appellants have come-up in appeal.
8. We have heard the learned Counsel appearing for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully.
9. Learned Counsel appearing for the appellants did not challenge the medical evidence relating to the cause of death of Koja and the number and nature of injuries sustained by the other injured victims. We therefore, need not deal with the medical evidence.
10. Before taking up the contentions raised by the learned Counsel, it would be proper to briefly read the prosecution evidence relating to the actual incident. The prosecution examined seven witnesses viz. PW 1 Pokar, PW 2 Thakra Bhil, PW 3 Surta, PW Rachu, PW 5 Ratna, PW 6 Uka Bhil and PW 7 Kalu Bhil relating to the incident. The first five are the injured victims while the remaining two are alleged to have reached the place of incident on hearing the crise of the injured victims. PW 5 Ratna is the author of FIR Ex. P. 2. He deposed that on the day of incident he and the other injured victims alongwith deceased Koja were going to Kalu Bhil (PW 7) to finalise the talks of taking field for cultivation. At about 10.00 A.M. when they reached the place of incident, the appellants accompanied with ten more persons (including the absconding accused Jeeva and Madha) met them in the way. Three of them Hema, Teja and Raja were armed with axes while the appellants and the other culprits were armed with Dhariyas. These miscreants blocked the members of the complainant party from proceeding further Jeeva cried aloud that enemies had come and that they should be finished. Saying so, Jeeva struck a blow with his Dhariya on the head of Koja. Koja fell down. There was profuse bleeding from his wounds. The appellants started striking blows to the members of the complainant party with their Dhariyas. The witness further stated that appellant Pabu struck a blow of his Dhariya on his head while appellant Madha S/o Lumbaji struck a blow of his Dhariya on his left hand near the shoulder joint. The appellants struck blows to Pokara, Thakara Bhil, Surta and Rachu also but he could not give the details. The witness further stated that on hearing the cries of the injured victims PW 6 Uka and PW 7 Kalu came there on the spot but they also could not intervene or render help to them because they were threatened with dire consequences by the appellants in case they dared to come forward. After giving the severe beatings to the victims, the appellants and their companions retired. There was profuse bleeding from the wounds of the injured and the clothes they were wearing got drenched with their blood. PW 7 Kalu went and brought a cart in which the injured victims were placed. They were taken to the bus stand, Sankar to be taken further to Sanchore. The condition of Koja was getting rapidly deteriorating. When the party reached the bus stand, Sankar, Koja breathed his last in the cart itself. The witness continued to narrate that from bus stand, Sankar the injured victims were taken to Government Hospital, Sanchore where they were admitted for treatment. The dead body of Koja was remained to lie in the cart at bus stand, Sankar. The witness further stated that from Government Hospital, Sanchore he went to an Advocate and got report Ex. P 2 of the incident prepared, He took it to Police Station, Sanchore and presented it at about 2.00 P.M. on the same day.
11. The same narration of the incident was given by the other injured victims PW 1 Pokar, PW 2 Thakra Bhii. PW 3 Surta and PW 4 Rachu. Each of them stated that Koja was struck only one blow by the absconding accused Jeevan. This blow proved fatal and caused the death of Koja. All these four injured witnesses further stated as to be how each of them was beaten by which of the appellants. PW 6 Uka and PW 7 Kalu stated that on hearing the outcries of the injured victims they arrived at the place of occurrence. They were sitting at the Dhani of PW 7 Kalu which is situate a few yards away from the place of incident.
12. All these seven witnesses were cross-examined at length but nothing could be elicited from them which may make their testimony incredible or untrustworthy. The presence of the five injured witnesses at the scene of occurrence is not open to any doubt. Their injuries were not superficial or minor or trivial in nature. Each of them sustained severe injuries including the fractures. As such they are the most competent persons to speak about the occurrence and the manner how they sustained their own injuries. So also the presence of PW 6 and PW Kalu is not open to any suspicion. Their Dhanies are situate a few yards away from the place of incident. As such their reaching the place of occurrence on hearing the out-cries is quite natural. Their claim to have seen the occurrence cannot be discarded as unfounded or baseless. The names of these eye witnesses Uka and Kalu have been mentioned in the F.I.R. Ex. P 2 which was lodged at the Police Station promptly without any considerable delay. This excludes the possibility of false introduction of these two witnesses as eye witnesses of the occurrence.
13. The learned Counsel appearing for the appellants vehemently contended that the evidence of the injured witnesses and other two witnesses Uka and Kalu is open to grave criticism. Though each of the injured victims stated as to how he was beaten but he did not state as to how the others were beaten. It was argued that this is a serious infirmity which must be taken into consideration while judging the guilt of the appellants. It is true that each of the injured witness stated as to how he was beaten and with whose hands he received the injuries. He did not state about the infliction of injuries to the other victims. But this does not constitute any infirmity in the statement of these witnesses so as to discard into what they stated. When there is a melee and the culprits are armed with lethal weapons and when weapons are freely wielded, it is difficult for any person to precisely remember as to who caused the particular injury to the particular victim. Of course, the injured victim is in a position to point out at-least as to how he was beaten and at whose hands he received the injuries. An injured witness in any case does not easily substitute a wrong person for his actual assailant. His testimony can be relied upon to the extent about the injuries inflicted to him by the particular accused. In the instant case the injured witnesses have specifically attributed their injuries to the particular appellant. There is no discrepancy between what they deposed during trial and investigation. Since the injuries sustained by them were grievous in nature, it cannot be expected that they would leave their real assailants and would substitute false persons in their place. The contention raised on behalf of the appellants, thus holds no ground.
14. It was next contended that some of the injuries sustained by the injured witnesses were caused by blunt weapons but it has not been stated by them as to how they were caused. According to each of them, the blows were struck with Dhariyas. Since some of the injuries sustained by them were not caused by the sharp side of the Dhariyas and it has not been explained that the reverse side of the lathi portions were used by the assailants, it cannot be said that all injuries were caused by the appellants. It was argued that this discrepancy in itself is sufficient to extend the benefit of doubt to the appellants. We have given our anxious consideration to the contention and find it barren of force. A look into the medical evidence shows that the injured witness received incised wounds with no exception. As such these injuries were caused by the sharp side of Dhariyas. This fact does not admit any doubt. It is thus that some of the injured witnesses also sustained contusions and lacerated wounds. It appears that these contusions and lacerated wounds were caused by the blunt side of the Dhariyas. Though the injured victims did not state that the blunt sides of the Dhariyas were also used, this lapse on their part is not of much material consequence. It is in the knowledge of every body that Dhariya is a lathi fitted with the sharp iron blade. Both the sides of a Dhariya i.e. the sharp side of the lathi can be-easily wielded by the assailant. It appears that some of the assailants used both the sides of their Dhariyas i.e. the sharp side as well as the blunt side of the lathi. The injured victims stated that they were struck blows by the appellants with the Dhariyas. Of course, they did not state that blunt side of the Dhariya was also used in inflicting the blows to them, but this omission is not of any significance in the facts and circumstances alluded to above. The contention, therefore, fails.
15. It was next argued that according to the police statement of the eye witnesses there were four more persons viz., Babu, Mahadeva, Jeeva and Sona along with the sixteen culprits who made an attack on the members of the complainant party and belaboured them. But during trial the presence of the aforesaid four persons was denied by the witnesses. These four persons were also not challenged by the police. That shows that the eye witnesses are not witnesses of absolute truth. When they can give up four assailants, where lies the guarantee that what they stated against the appellants should be taken as true. We have examined the contention with all anxiety and find no force in it. In the F.I.R Ex. P 2 lodged promptly after the occurrence, the names of these four persons Babu Mahadeva, Jeeva and Sona have not been mentioned as accused persons. Even their presence is not there in the Ex. P 2. The police have filed no report against them. During trial also, nothing has been stated against these four persons by the eye witnesses including the injured victims of course, the names of these four persons find place in the police statement of these witnesses. Since the names of these four persons have not been mentioned in the F.I.R Ex. P. 2. We attach no importance to the fact the their names have been mentioned as assailants by the witnesses in their police statement. Any way, the infirmity pointed out by the learned Counsel does not detract from the value to be attached to the evidence of the eye witnesses.
16. It was aruged that, as many as eight persons have been acquitted by the court below on the evidence of these witnesses. Since their evidence was not found reliable against the acquitted accused persons, it would be not free from risk to maintain the conviction of the appellants on the basis of the testimony of these witnesses. We have given our thoughtful consideration to the contention and we are unable to agree with the learned Counsel. In all fourteen persons faced the trial. Eight of them were acquitted. We have gone through the judgment of the trial court. We find that the eight persons were acquitted on the ground that no overt act of any sort was imputed to them. It is a well settled position in law that in order to attract Section 149, IPC one should be proved to be a member of the unlawful assembly and that the offence was committed in furtherance of the common object of such assembly. In the instant case the eye witnesses did not disclose any incriminating material against the eight accused persons who were acquitted. Of Course, they have stated their presence but nothing more than their presence is there on record. A mere presence is not sufficient to make one a member of an unlawful assembly. There must be evidence direct or circumstantial to show that the particular person was a member of an unlawful assembly. As such an inference cannot be drawn merely by his presence on the spot. A mere by stander cannot be taken to be a member of an unlawful assembly. It was in the context of these circumstances that the eight persons. Were not taken to be members of the unlawful assembly. The evidence of the eye witnesses does not show that that they participated in the commission of the offence in any manner. There is nothing to suggest that the acquitted persons incited or exhorted the appellants to commit the offence, In these circumstances the acquittal of the eight persons is not a factor which may render any assistance to the appellants. The court has a duty to properly sift and screen the evidence in judging the guilt or innocence of the culprits. In discharging this duty the court has ample powers to accept the testimony of a witness against some and to discard it against the others. Any way, the eight persons were acquitted by the Court below on the ground that they eye witnesses did not disclose any incriminating material against them. The acquittal of the eight persons renders no help to the appellant and the contention advanced on their behalf, thus, holds no ground.
17. The next argument advanced in challenging the conviction is that the eye witnesses were examined after great delay during investigation. This gives sufficient time to the eye witnesses to mould the prosecution story as suited to them. It was argued that this late examination of the eye witnesses during investigation renders the prosecution case highly suspicious. It is true that the eye witnesses including the injured persons were examined nearly after seven or eight days of the occurrence during investigation. But this fact alone is not sufficient to throw away over board hat they testified on oath. The question of delay in examining a witness during investigation is material only if it is indicative or suggestive of some unfair practice by the investigating agency for the purpose of introducing false material in the prosecution case. Here in the instant case the entire incident has been narrated in details in the FIR Ex. P2, which was lodged| promptly after the occurrence. The names of the injured victims and the eye witnesses have been mentioned in Ex. P 2. The story put during trial is not at all different from that put in the FIR Ex. P 2. In view of these circumstances, even if the eye witnesses including the injured victims were examined after some delay during investigation, the delay is of no material significance and is not sufficient to cast any could on the veracity of the ocular witnesses.
18. The next contention, which in our opinion is main and principal, is that the appellants were wrongly convicted under Section 302, with the aid of Section 149, IPC. It was argued that Section 149, IPC was wrongly invoked against the appellants in making them liable for the murder of Koja. It was argued that according to all the ocular witnesses, Koja was struck only one blow with Dhariya by accused Jeeva s/o Dhukla. Neither the appellants nor anybody else caused any injury to Koja was put to death by accused Jeeva, who is still absconding. The appellants had no ill-will against Koja. The circumstances do not point out that the appellants had formed any unlawful assembly with the common object of causing the murder of Koja. As such the causing of death of Koja by accused Jeeva should be taken to be his individual act and the principle of vicarous or constructive liability should not by extended to the appellants under Section 149, TPC. It was urged that the prosecution has utterly failed to establish that the common object of the unlawful assembly formed by the appellants was to cause the murder of Koja. It was stressed that in view of these circumstances the conviction of the appellants under Section 302/149, TPC was entirely erroneous and unsustainable. Reliance in support of the contention was placed on the often quoted two decisions (1) Dalel Ram Swaroop and Ors. v. The Emperor AIR 1949 Lahore 222 and (2) Sambhu Nath Singh v. State of Bihar : AIR1960SC725 .
19. It was, on the other hand, contended by the learned Public Prosecutor that the appellants were not expected to be present at the place of occurrence. Their presence on the scene of occurrence was not natural. Their very presence at the spot of occurrence, is sufficient to show that they and Jeevan had formed an unlawful assembly with the common object to finish Koja for ever. The appellants were armed with Dhariyas in these circumstances, argued the learned Public Prosecutor, it can be safely inferred that the common object of the unlawful assembly was to finish koja. We have given our anxious consideration to the rival submissions. We may point out that both these authorities relied upon by the learned Counsel were recently noticed by a D.B. of this Court in Golu and Ors. v. State of Rajasthan 1983 R.Cr.C 403.
20. Whether an unlawful assembly was formed and what exactly was the common object of the assembly, is generally judged from the facts and circumstances arising in a given case. The common object is not to be readily inferred. Atleast it should not be readily inferred in the case of a person to whom no overt act is attributed. Although the overt act on the part of a person is not a necessary factor bearing upon his sharing the common object, prudence still requires to look for some evidence of participation by him before holding that he shared that particular object in the furtherance of which the offence was committed. In Dalel Ram Swaroop's case (supra), their lordships of the Supreme Court observed:
A person may join an unlawful assembly with an unlawful object, but it does not necessarily, follow that he endorses all that the other members say or do. Nor is he, therefore, responsible for their acts of which he was not clearly cognizant.
21. Adverting to the instant case in hand, it has been stated by all the eye witnesses with no exception that the deceased-victim Koja sustained only one injury and that that-injury was caused to him by the absconding accused Jeevan with his Dhariya. It was this single injury which resulted in his death. According to eye witnesses, the appellants did not inflict any blow to the deceased victim Koja. They even did not touch his body. Thus, no overt act in respect of deceased-victim Koja has been assigned to, the appellants.
22. It was argued by the learned Public Prosecutor that the absconding accused Jeeva was the right leader of the unlawful assembly and the appellants acted at his order. It was urged by the learned Public Prosecutor that accused Jeeva gave a call that the enemies had come and that they should be finished. It was after his this call that appellants struck blows to the injured victims. In these circumstances, Section 149, IPC was rightly pressed into service to convict the appellants under Section 302 even though they did not cause any blow to the deceased Koja.
23. We have given out thoughtful consideration to the submissions made by the learned Public Prosecutor. The circumstances emerging the case do not permit us to accept what they contended before us. According to all the eye witnesses, the absconding accused Jeeva, who was the gang leader, gave a call and exhorted his companions including the appellants to finish the enemies. Immediately after making the call he inflicted blow of his Dhariya on the head of Koja. Further, according to eye witnesses, none of the companions of accused Jeeva inflicted any blow on Koja. Thus no blow was inflicted to Koja by any of the appellants. It show that tie appellants did not act at the instigation or exhortation or the call made by the absconding accused Jeeva. The facts and circumstances of the case impel us to hold that the causing of death of Koja by absconding accused Jeevan was his individual act. There is no evidence, director circumstantial on record from which an inference can be drawn that the common object of the unlawful assembly was to commit the murder of Koja. In order to attract the provisions of Section 149, IPC and to make a person liable under it, two things are essential (1) that the offences have been committed in prosecution of the common object and (2) that all the members of the unlawful assembly must have known that such an offence was likely to be committed. The use of word 'know' in Section 149, IPC is deliberate and connotes that the offence was such as the members knew, was likely to be committed. The expression 'know' does not mean a mere possibility such as might or might not happen.
24. As discussed above, the appellants did not strike any blow to the deceased Koja. They, thus did not act in furtherance of the instigation or exhortation given by the absconding accused Jeeva. In these circumstances we are unable to maintain the finding of the court below that the deceased Koja was done to death in prosecution of the common object of the unlawful assembly. The conviction of the appellants under Section 302/149, IPC should, therefore, be set aside. They are entitled to acquittal of the said offence.
25. The last contention raised on behalf of the appellants is that they were also wrongly convicted under Section 307 or 307/149, IPC for making an assault on PW I Pokar and PW 2 iThakra Bhil and causing injuries to them. It was argued that the injuries caused to the victims were not stated as dangerous to life by Dr. Doshi (PW 9). Our attention was drawn to that portion of the testimony of Dr. Doshi (PW 9) where he admitted that the injuries caused to Pokar and Thakra Bhil were not sufficient to cause their death. We find considerable force in the contention. PW 9 Dr. Doshi, who examined the injuries of the aforesaid injured victims, admitted in his cross-examination that their injuries were not likely to cause death. The circumstances of the case also do not show or suggest that the common object of the unlawful assembly was to cause the murder of Pokar and Thakra. We are, therefore, unable to maintain the conviction of the appellants under Section 307 or 307/149, IPC. Since the injuries caused by them to Pokar and Thakra Bhil were grievous in nature, they should be convicted under Section 326 or 326/149, IPC as the case. The grievous injuries to Pokar and Thakra Bhil were caused by appellants Sujana and Bhura. Tbey should, therefore, be convicted under Section 326 instead that of under Section 307, IPC. Likewise, the remaining appellants viz., (1) Madha s/o Lumbaji, (2) Naina, (3) Pabu and (4) Haru should be convicted under Section 326/129 instead of Section 307/149, IPC. Since all these appellants have also been convicted under Section 326 and sentence to four year rigorous imprisonment with a fine of Rs. 300/- by the court below, there is no need to pass separate sentence for the offence to which we have altered their conviction.
26. No other contention was raised.
27. Our conclusions are, therefore:
(1) The appellant's conviction and sentence under Section 302/149, IPC being bad, are set-aside and they are acquitted of the said offence:
(2) the conviction and sentence of the appellant under Section 307 or 149, IPC are also set aside and instead they are convicted under Section 326 or 326/149, IPC as discussed above with no separate sentence, and
(3) the conviction and sentence of the appellants for the remaining offences must be maintained.