2010 ALL MR (Cri) 856
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. LAVANDE AND P.D. KODE, JJ.

Dnyaneshwar @ Dnyani S/O Domaji Thakare Vs. State Of Maharashtra

Criminal Appeal No.227 of 2004,Criminal Appeal No.236 of 2004,Criminal Appeal No.257 of 2004,Criminal Appeal No.283 of 2004

5th February, 2010

Petitioner Counsel: Mr. C. H. JALTARE
Respondent Counsel: Mr. T. A. MIRZA

Criminal P.C. (1973), S.154 - Evidence Act (1872), S.3 - First Information Report - F.I.R. is not expected to be an encyclopedia - Absence of precise details about the account of incident in the same, cannot be said to be affecting core of testimony of first informant in event of such details being given/gathered during cross-examination. (Para 24)

Cases Cited:
Joseph alias Jose Vs. State of Kerala, 2003 ALL MR (Cri) 2110 (S.C.)=2003 Cri.L.J. 2543 [Para 13]
Visveswaran Vs. State of Rep. By S.D.M., 2003 ALL MR (Cri) 1401 (S.C.)=2003 Cri.L.J. 2548 [Para 13]
Badam Singh Vs. State of Madhya Pradesh, 2004 Cri.L.J. 22 [Para 13]
Kamaljit Singh Vs. State of Punjab, 2004 Cri.L.J. 28 [Para 13]
Deoraj Deju Suvarna Vs. State of Maharashtra, 1994(4) Bom.C.R. 85 [Para 13]
State of Maharashtra Vs. Kashirao, 2004 ALL MR (Cri) 280 (S.C.)=2003 Cri.L.J. 4464 [Para 14]
Deb Narayan Halder Vs. Smt. Anushree Halder, 2003 Cri.L.J. 4470 [Para 14]
Kulwinder Singh Vs. State of Punjab, 2007 ALL MR (Cri) 3250 (S.C.)=AIR 2007 SC 2868 [Para 14]
S. Sudershan Reddy Vs. State of Andhra Pradesh, 2006 ALL MR (Cri) 2695 (S.C.)=2006 Cri.L.J. 4033 [Para 14]


JUDGMENT

P. D. KODE, J. :- All these appeals throwing challenge to Judgment and Order of conviction dated 26.3.2004 passed by learned 2nd Ad-hoc Additional Sessions Judge, Nagpur in Sessions Trial No.420/2002 are disposed of by this common judgment. The appellants in aforesaid Criminal Appeal No.227/2004, Criminal Appeal No.236/2004, Criminal Appeal No.257/2004 were original accused nos.4, 1 and 5 respectively while appellants in Criminal Appeal No.283/2004 were original accused nos.2 and 3 in said sessions case. They are accordingly referred hereinafter for the sake of convenience as per their status before the trial Court.

2. By said judgment all five accused facing trial were convicted for commission of offences punishable under Sections 147, 148, 149 of IPC and each of them was sentenced to suffer R.I. for 6 months and was ordered to pay a fine of Rs.1,000/- (Rs. One Thousand) each and was further ordered to undergo R.I. for 6 months in default of payment of fine. Each of them was also convicted for commission of offence punishable under Section 302 of IPC and each of them was sentenced to suffer imprisonment for life and was ordered to pay fine of Rs.1,000/- (Rs. One Thousand) each and was further ordered to suffer R.I. for 6 months in default of payment of fine. The sentences imposed were ordered to run concurrently. However, each of them was acquitted from the charge of commission of offence punishable under Section 120-B of IPC.

3. The said session trial had arisen out of charge-sheet submitted by Investigating Officer PW-12 API Madavi of Kanhan Police Station against said appellants/accused for commission of offences punishable under Sections 147, 148, 149, 302 and 120-B of IPC in an incident occurred on 26.5.2002 in which Surma @ Omprakash - brother of first informant PW-1 Vijay Tiwari was assaulted and murdered by accused nos. 1 to 5 by knife, spear blade and dagger. The report Exh.51 about the incident lodged by PW-1 at about 2.00 AM on 27.4.2002 was recorded by PW-12 and he had registered FIR No.86 of 2002 at Exh.52.

4. The main prosecution case as disclosed from the report Exh.51 is as under:-

On 26.4.2002 at about 11.00 pm after meals PW-1, his brother Surma and their family members were watching TV. PW-6 Vijay Tiwari neighbour/friend of them had been then to house of PW-1 and had told him that quarrel was in progress between Virendra @ Bitwa Kashyap (A5) and Chikku Yadao (A1), Ranga Dhobi (A3), Dnyani Thakre (A4) and Narendra Takkal (A2) in lane near corner of hospital. A5 Bitwa had then told PW-6 for calling Surma immediately otherwise said persons would kill him.

On hearing same Surma immediately rushed towards hospital for saving A5 Bitwa. PW-1 and PW-6 told mother of Surma that after hearing about quarrel Surma had rushed to said place. Thereafter, PW 1, PW 6 and mother of Surma also had ran in the same direction. They found that accused nos.5, 1, 3, 4 and 2 had mercilessly killed Surma by assaulting with sharp edged weapons, kicks and fists after falling him on ground in front of Chhatisgarh Dafai near the Pan Stall of Salim. A1 Chikku was armed with long knife and A3 Ranga with sharp edged weapon like spear blade, so also A2 Narendra with dagger like weapon. The said three persons (A1, A2 & A3) had killed deceased by stabbing him with sharp edged weapons. Similarly A4 Dnyani and A5 Bitwa had killed deceased by assaulting with kicks and fists blows. All the accused had left the spot leaving deceased Surma drenched with blood.

PW-1, PW-6 and mother of PW-1 had taken deceased in six seater auto of Umapratap Kashyap to Jawaharlal Nehru Hospital. In the light of torch which PW 1 was having with him and in the light of bulb on electric pole by the side of nearby temple at the corner of the spot, PW-1, his mother and PW-6 had seen the accused nos. 1, 3 and 2 stabbing the deceased with sharp edged weapon and accused nos. 4 and 5 assaulting deceased with kicks and fists after falling him down on the ground. On seeing them shouting, all five accused had run away along with two more persons. The said accused hatched conspiracy, picked up quarrel on false count with accused no.5, called deceased out of the house under the pretext and all of them deceptively killed him by making deadly attack on him with sharp edged weapons and beating him with kicks and fists.

5. PW-12 in the course of investigation of the crime, had recorded statements of witnesses inclusive of PW-6 Vijay, PW-10 Shivaji Singh, sent body for autopsy. He had also prepared several documents regarding investigation effected i.e. inquest panchanama Exh.62, spot panchanama Exh.60, seizure memos of the clothes of the deceased Exh.63 brought from the hospital by police constable, arrested the accused, seized their blood sample and nail clipping received from the hospital and so also weapons under memo and discovery panchanamas. He had also seized clothes of accused persons. After completion of investigation, PW-12 had filed charge-sheet in the Court against accused nos.1 to 5.

6. After committal of the case to the Court of Sessions, the trial was taken up by learned 2nd Adhoc Additional Sessions Judge, Nagpur. The charge Exh.37 was framed on 30.7.2003 against the appellants on three counts i.e. for commission of offence punishable (i) u/s.147 and 148 of IPC (ii) u/s.149 of IPC and (iii) u/s.302 r/w Section 120-B of IPC. All the accused pleaded not guilty to the said charge vide their pleas at Exh.38 to 42.

7. Though prosecution examined in all 12 witnesses at trial out of them panch PW-3 Ashok for spot panchanama, PW-4 Kailashlal, panch for inquest panchanama and seizure of the clothes, PW-6 Vijay Tiwari and PW-10 Shivaji Singh were declared hostile having not supported the prosecution. Thus prosecution mainly relied upon the evidence of above referred PW-1, PW-2 panch Devendra for panchanama Exh.53 regarding discovery and seizure at the behest of accused nos.1, 3 and 2 respectively of iron spear, gupti and dragger respectively under memorandum and discovery panchanama Exhs.53-A & 54; 55 & 56 and 57 & 58, PW-5 Uma Pratap, panch for seizure of clothes of the deceased, PW-7 Dr. Kiran Dhote, regarding collection of blood sample of accused no.3 that of PW-8 PHC Dilip Choudhary, who had taken the accused no.1, 2 and 4 for collection of their blood samples to the doctor and after collection seized the samples under seizure memo Exh.64, PW-9 Dr. Prashant Barve, who had conducted post-mortem upon the deceased-notes Exh.86, PW-11 Dr. Rani Lanke, who had collected blood sample of accused no.5 and so also examined accused nos.1, 2 and 4 for ascertaining injuries on their person and found injuries of abrasions on left palm below thumb and issued certificate Exh.103 to said effect and PW-12 investigating officer. In addition to oral testimony of these witnesses the prosecution also relied upon several contemporaneous documents prepared during the investigation such as collection of the clothes of the deceased, sending the same to C.A. report and C.A. report received.

8. The defence of each of the appellant at trial was that of total denial and of false implication. During the answers given in his examination effected under Section 313 of Cr.P.C. the appellants had not taken any specific defence except stating of the case being false and hence witnesses having falsely deposed against him.

9. Thus prosecution case had mainly rested upon the evidence of PW-1 and the other corroborative material collected during investigation for corroborating same in shape of oral testimony of other witnesses and documents pertaining same. The trial court accepted the evidence of PW-1 and amongst other came to the conclusion of the accused being members of unlawful assembly and in prosecution of common object of the said assembly, having committed the offence under Sections 147, 148 and 149 and murder of Surma @ Omprakash and convicted and sentenced accused nos.1 to 5 as stated above.

10. The learned counsel Mr. C. H. Jaltare for accused no.4 i.e. for appellant in Criminal Appeal No.227/2004 urged that the evidence of sole eye-witness PW-1 is unreliable and unworthy of acceptance as the same is not consonance with FIR and/or the same is full of improvement. He urged that improvement has been made by PW-1 of having accompanied the deceased for staking a claim of having seen incident. He urged that considering improvements made by the prosecution during his evidence on the backdrop of matters stated in the FIR clearly reveals that no reliance can be placed upon his testimony and as such the conviction and sentence of accused no.4 ordered on the said basis is wholly improper. PW-6 whose name was inserted in report Exh.51 having not supported the prosecution and the prosecution having failed to examine mother of the deceased and having not given any explanation for the same, it will be hazardous to accept the evidence of PW-1. The prosecution evidence also fails to disclose existence of light at the spot of incident, much less for accepting so called claim of PW-1 having seen the assailants attacking Surma. The evidence of PW-1 being not above board deserving to place implicit reliance upon the same, the same will not deserve to be accepted for fastening the guilt upon the accused no.4 solely on the basis of his evidence. The other evidence adduced by the prosecution also fails to afford any corroboration and/or support claim staked by PW-1 of accused no.4 being the assailant as the same does not contain any incriminating material against accused no.4. The evidence of PW-1 itself shows that deceased and his family were inimical with accused no.4 and raises strong probability of accused no.4 being falsely implicated in the case. The probability of deceased having many enemies being spelt from prosecution evidence considered on the backdrop of prosecution having made out new case at trial clearly reveals that after deceased being found assaulted/murdered by some unknown assailant merely upon suspicion, accused no.4 has been roped in the case. Thus considering the character of prosecution evidence in entirety and the same being clearly short of establishing guilt of accused no.4, he deserves to be acquitted by giving him benefit of doubt.

11. The learned counsel Mr. R. M. Daga for accused no.1 i.e. for appellant in Criminal Appeal No.236/2004 adopting the submissions made by learned counsel for accused no.4 further urged that the order of conviction has been based on discrepant improved unreliable testimony of PW-1. He urged that scrutinizing prosecution evidence on preponderance of probability and considering improvements made therein at trial by PW-1 the same leads to no other conclusion of PW-1 having not witnessed to the incident in which the deceased was assaulted and murdered. He urged that such a conclusion is inevitable considering the fact that deceased had immediately rushed to the spot and thereafter PW-1 and PW-6 had left the same along with mother and having proceeded to the spot of incident which was about half kilometer away from the said house. He urged that time gap in between said events clearly indicates that incident, if any in progress, as alleged must have been over and assailant must have left the spot much prior to so called eye-witness PW-1 having reached the same. The non finding of blood upon the clothes of accused no.1 again seized after four days also reveals that the said circumstance is also not useful to the prosecution for establishing their case against accused no.1 and/or corroborating the claim of PW-1. The same is the case regarding the spear blade allegedly recovered at the behest of accused no.1 as the same is based upon the improbable evidence of PW-2 and PW-12 investigating officer and even the group of the blood upon the said weapon being not at all determined. The evidence fails to disclose existence of light on the spot. Even prosecution had not bothered to show weapon to PW-1. Having regard to all the aspects and particularly the main evidence of prosecution being of an unreliable nature and without any corroboration regarding guilt of/involvement of accused no.1 in the incident, the accused no.1 deserves to be acquitted.

12. The learned counsel Mr. S. G. Karmarkar for accused no.5 i.e. for appellant in Criminal Appeal No.257/2004 also upon the same lines urged of there being no reliable evidence against accused no.5. He also urged for allowing the appeal and acquitting accused no.5.

13. The learned counsel Mr. R.M. Patwardhan for accused no.2 and 3 i.e. for appellant in Criminal Appeal No.283/2004 also urged for allowing the appeal and setting aside the order of conviction and sentence passed by the trial Court against the said appellants in view of there being no cogent reliable evidence leading to the conclusion of guilt of the said appellants for commission of such offences by making the submissions on similar lines as that of the learned counsel for accused nos.1,4 and 5. He also contended that the evidence of PW-1 shows the improvement and the element of probability also does not reveal that he was eye-witness to the incident in which the deceased was killed. He urged that the FIR reveals of accused no.5 having allegedly told of quarrel being in progress in a lane near corner of the hospital. He urged that the evidence of PW-1 is otherwise. The same considered in light of the matters from spot panchanama also reveals the witness having made an improvement. The reference to the spot panchanama fails to reveal of there being light at the place of incident. He urged there is a serious doubt about the claim staked by PW-1 and his claim being not at all corroborated by any other evidence, it will be difficult to rest the conviction upon his sole evidence. The learned counsel also placed reliance upon following decisions in support of his submissions.

(i) Joseph alias Jose Vs. State of Kerala, reported in 2003 Cri.L.J. 2543 : [2003 ALL MR (Cri) 2110 (S.C.)],

(ii) Visveswaran Vs. State of Rep. By S.D.M., reported in 2003 Cri.L.J. 2548 : [2003 ALL MR (Cri) 1401 (S.C.)],

(iii) Badam Singh Vs. State of Madhya Pradesh, reported in 2004 Cri.L.J. 22,

(iv) Kamaljit Singh Vs. State of Punjab, reported in 2004 Cri.L.J. 28,

(v) Deoraj Deju Suvarna and others Vs. State of Maharashtra, reported in 1994(4) Bom.C.R. 85.

14. The learned APP supported the impugned judgment and order and submitted that the evidence on record clearly makes out a case of accused having committed murder of the deceased. He urged that the evidence of PW-1 inspires confidence in view of the same being supported by corroborative evidence adduced by the prosecution. He urged that minor discrepancies in the evidence are not fatal to the prosecution case. He urged that merely because PW-6 has not supported the prosecution, the same will not detract evidentiary value of the evidence of PW-1. He further urged that the law does not demand plurality of the witnesses and hence merely because mother of deceased is not examined by the prosecution, the same would not be a ground for discarding otherwise reliable evidence of PW-1 granting benefit to the accused. The circumstances brought on record during the cross-examination by the defence being not of nature impairing the evidence of PW-1 upon the core of his testimony, his evidence is not liable to be rejected as canvassed by them. Learned APP also placed reliance upon following decisions in support of his submissions.

(i) State of Maharashtra Vs. Kashirao and others, reported in 2003 Cri.L.J. 4464 : [2004 ALL MR (Cri) 280 (S.C.)],

(ii) Deb Narayan Halder Vs. Smt. Anushree Halder, reported in 2003 Cri.L.J. 4470.

(iii) Kulwinder Singh Vs. State of Punjab, reported in AIR 2007 SC 2868 : [2007 ALL MR (Cri) 3250 (S.C.) : 2007 ALL SCR 329].

(iv) S. Sudershan Reddy and others Vs. State of Andhra Pradesh, reported in 2006 Cri.L.J. 4033 : [2006 ALL MR (Cri) 2695 (S.C.)].

15. We have given thoughtful consideration to the submissions advanced by both the parties and carefully perused the record and the decisions pointed.

16. Apart from the learned counsel for the appellants having not at all disputed deceased Surma having died homicidal death, there exists overwhelming evidence for coming to such conclusion. In the same context, reference to the evidence of PW-9 Dr. Prashant reveals that while attached with Forensic Department of I.G.M.C. Nagpur, he had performed post-mortem upon the corpse of the deceased received from Kanhan Police Station since 4.40 p.m. The same reveals that he had noticed in all 47 external injuries i.e. injuries mentioned by him in P.M. Notes at Exh.87 and out of them injury at Sr. Nos.1 to 4 were contused wounds while injuries at Sr. Nos.5, 12, 14, 15, 18, 29 to 34, 36 to 39, 42, 44 and 45 were incised wounds while remaining at Sr. Nos.6 to 11, 13, 19 to 28, 35, 40, 41, 43, 46 and 47 were stab wounds. His evidence precisely gives the dimensions, nature and locations of the said injuries. The same reveals that excepting injuries no.1 to 4 which were in the nature of abrasions, most of the injuries were either on face, chest, abdomen, right hand, back of the said corpse. His evidence also reveals corresponding internal damage noticed by him and the same being to both lungs, pericardium, heart, stomach, intestines , liver, gall bladder and kidneys etc.

17. PW-9 had given cause of death of deceased being due to the injuries to the vital organs. His evidence also reveals that vide requisition letter at Exh.88, Kanhan Police Station had sought his opinion regarding spear head , dagger and gupti sent to him and he had opined that incised injury nos. 6, 7, 8, 11, 13, 20, 21, 23, 26 and 28 were possible by weapon spear head, while incised wounds and stab injuries at Sr. Nos. 9,10,16,17,22,24,25,27,40,41,43 and 47 were possible by weapon dagger sent to him and incised wounds and stab injuries at Sr. Nos.35 and 46 were possible by weapon gupti sent to him by the said Police Station. Apart from the accused having not seriously challenged said evidence, the said evidence clearly signifies the deceased having been brutally assaulted and during the said assault at least three weapons were used and in all probability the deceased was assaulted from all the sides and having met homicidal death with the injuries sustained by him in the said assault. The said evidence apart from establishing deceased having met homicidal death also clearly appears to be consistent with the account of assault as deposed by PW-1.

18. Now reverting to the main prosecution evidence of PW-1 Jaiprakash, his evidence reveals that he and his brother Surma were watching TV at about 9.30 p.m. at their house after meals. PW-6 came there and told that Ranga (A3), Takkal (A2), Gyani (A4) and Chiku (A1) were beating Biren Kashyap. PW-1 and his brother Surma went towards Durga Mandir. Accused persons did not listen, left Biren Kashyap and caught hold his brother Surma. Accused persons armed with knives, stabbed his brother by knife. PW-1's brother received bleeding injury and he fell down. PW-1 who was standing there, raised a call and thereafter accused persons ran away. He covered injury of his brother with his shirt, brought auto rickshaw and took him to hospital for treatment. Chiku (A1), Ranga (A3) and Takkal (A2) injured his brother by knife. Other accused left the spot by beating him with fists and kicks. He lodged report with Police Station Kanhan at Exh.51. Report as well as FIR bear his signatures. He identified clothes worn by his brother i.e. T-Shirt (Article 5), Jeans Pant (Article 4) and Baniyan (Article 7).

19. Upon close scrutiny of the evidence of PW-1, does not reveal core of his testimony of himself being witness to the assault on his brother by means of weapons by accused nos.1 to 5 having been shaken in any manner even after taking into consideration all the material brought on the record during cross-examination and upon which the submissions were canvassed by learned counsel for appellants.

20. In the said context the reference to two discrepancies brought on the record during cross-examination i.e. firstly regarding PW-1 during the evidence having claimed that at 9.30 p.m. they were watching TV when PW-6 had been to the house for telling the message of accused no.5 about quarrel but in the FIR having given the said time at 11.00 PM clearly appears to be insignificant nature after taking into consideration the fact that the report Exh.51 was lodged by PW-1 immediately at about 2.00 AM.

21. Same is the case regarding second discrepancy regarding PW-1 during the evidence having claimed of PW-6 then having told the place of quarrel being Durga Mandir while PW-1 during FIR having said the said place being lane near hospital, it is difficult to accept that the same can be said to be of vital nature or indicative of such an improvement being deliberately made by PW-1. In the said context considering the prosecution case as disclosed from Exh.51 and the same indicating that PW-6 having informed of quarrel between accused no.5 and the others being ensued near the hospital lane from the same, inference cannot be drawn that the main incident had also taken place at the same place. Similarly since matter from the first information report are to be taken into consideration as a whole and thus considering Exh.51 and the same or the evidence surfaced not revealing that hospital lane and Durga Mandir being not in the vicinity or that the same being altogether different spots , the same facet will not deserve any credence. Similarly the further submission that Exh.51 does not reveal that PW-1 had also accompanied the deceased after receipt of message, he had made improvement to such effect at trial will not also deserve any credence as the same does not disclose of PW-1 also having not left his house or having left the same after much delay. Needless to add that the same repels all the submissions of PW-1 being not eye-witness for the incident and/or his such a claim is vulnerable on preponderance of probabilities which indicate that he has reached late on the spot. The said submission is also belied by the fact of 45 injuries being caused to the deceased and the same facet in term denoting the time which would have been required for completion of the assault.

22. Even the case regarding the submissions canvassed about the light is not different. Spot panchanama Exh.60 so also Exh.51 in clear terms discloses presence of electric pole and so also Exh.51 of torch being carried with by PW-1. In the same context it can be further added that the accused having not brought any significant material on the record for not accepting positive claims staked by PW-1 of having identified accused nos.1 to 5 as the assailants.

23. It is true that PW-1 had admitted during the cross-examination of 2-3 cases being pending against his deceased brother of beating and firing from arm. However, merely because of the same a conclusion cannot be jumped that the deceased might have been killed by his other enemies. Needless to add the said facet by itself is insufficient to repel positive claim staked by PW-1 of accused nos.1 to 5 being the assailants. However, merely because of the same, the submission cannot be accepted that PW-1 had unnecessarily implicated the accused persons as he was not knowing the real assailant or having not witnessed the incident.

24. Similar is the case regarding the other omissions brought on record during the cross-examination. Since a FIR is not expected to be an encyclopedia, absence of precise details about the account of incident in the same, cannot be said to be affecting core of testimony of first informant in event of such details being given/gathered during the cross-examination. Needless to add that after considering in proper perspective the omissions regarding such aspects brought on the record about 2-3 matters and the same being not of contradictory nature with the story given in FIR, the same cannot be said to be affecting core of testimony of PW-1.

25. The same is the case regarding certain material brought on record during the cross-examination and pertaining to topography near the place of offence. Though it is true that by the said material, it is brought on the record that there were shops opposite Durga Mandir and Durga Mandir was about ½ k.m. away from their house. However, on the said basis and in absence of any other evidence of there being other eye-witnesses present for the incident occurred, a conclusion cannot be drawn that the prosecution has deliberately rested the case upon the interested testimony of PW-1 and kept back the said witnesses.

26. The same is the case regarding the submission canvassed by learned counsel for accused nos.2 and 3 regarding the prosecution having not examined the auto rickshaw driver in which the deceased was taken to the hospital. In absence of any evidence/material to come to the conclusion that the said auto rickshaw driver was an eye-witness to the incident, merely because of the same the submission as canvassed by learned counsel that prosecution has deliberately kept away independent witnesses, cannot be accepted.

27. Thus close scrutiny of the evidence of PW-1 does not reveal any circumstance being brought on the record for not relying and accepting the same. The core of his testimony is also supported by FIR lodged by him. The account of assault given by him is also found corroborated by medical evidence adduced by the prosecution in shape of the evidence of PW-9 and autopsy notes Exh.87 prepared by him. The same is also found corroborated by the other evidence in the shape of spot panchanama Exh.60, the matters from inquest panchanama and particularly finding of blood at the said spot and on the clothes of the deceased and so also on weapons. The same is also to some extent found corroborated by evidence of the recovery. Thus the said evidence will not be liable to be rejected on the counts as urged by the defence.

28. Now the said evidence clearly reveals that the deceased was called at the spot of incident by giving a fake call of accused no.5 being then having quarrel with accused nos.1, 2, 3 and 4. It also reveals that after deceased reaching the said spot, all the accused had assaulted him. The said account also discloses that though accused no.4 and 5 had not used the weapons for the said assault, they had assaulted the deceased after he was assaulted by accused Nos.1, 3 and 2 by means of weapons. The said evidence is sufficient to show that on the said day accused nos.1 to 5 were acting in prosecution of the common object of the unlawful assembly of which they were members. The act of accused nos.4 and 5 assaulting the deceased after he was assaulted by the other accused clearly indicates that they were also entertaining the same object as entertained by the said accused. The number of external injuries and internal injuries received by the deceased clearly indicates that the common object of the said unlawful assembly cannot be anything other than to commit the murder of the deceased. In view of the same, the prosecution evidence clearly establishes that all the accused having committed the offence under Section 147, accused nos.1, 2 and 3 the offence under Section 148 and all the accused offence under Section 149 read with Section 302 of IPC.

29. Since we have carefully taken into account the principles laid down in the decisions cited by both the sides, having regard the reasons given hereinabove, we do not deem it necessary to make any threadbare dilation about the same.

30. In the light of the aforesaid discussion, we do not find any merit in the appeals except the erroneous order of conviction passed by the trial Court convicting the accused nos.4 and 5 also for commission of offence under Section 148 of the Indian Penal Code in spite of evidence having failed to establish of themselves being armed with the weapons at the time of the assault. In view of the same their such a conviction cannot be sustained and hence the same is quashed and set aside. In the premises aforesaid accused nos.1 to 5 are found guilty for commission of offence under Section 147 of the Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for 6 months and to pay fine of Rs.1,000/- and in-default of payment of fine, each of them is ordered to suffer rigorous imprisonment for 2 months. Accused nos.1 to 3 are also found guilty for commission of offence under Section 148 of the Indian Penal Code. However, no separate sentence is awarded on the said count. Accused nos.1 to 5 are also found guilty for commission of offence punishable under Section 149 r/w Section 302 of the Indian Penal Code and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- each and in-default to suffer rigorous imprisonment for 6 months. Both the substantive sentences are ordered to run concurrently.

31. All the appeals stand dismissed subject to the aforesaid modification.

Appeals dismissed.