Madhya Pradesh High Court
Antu Son Of Chandra Bhan, Ajay Alias ... vs State Of Madhya Pradesh on 26 February, 2008
Author: Rakesh Saksena
Bench: Rakesh Saksena
JUDGMENT Rakesh Saksena, J.
1. All the above 05 appeals arise out of the common judgment, hence they are being disposed of by this common judgment.
2. Appellants have filed these appeals against the judgment dated 05.02.1999 passed by the First Additional Sessions Judge, Jabalpur, in Sessions Trial No. 306/1996, convicting them under Sections 302, 302/149 and 148 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 2000/-and rigorous imprisonment for 04 years with fine of Rs. 1000/-, on each count respectively. Appellant Soyab Khan alias Babloo, has further been convicted under Section 324 of the Indian Penal Code and sentenced to rigorous imprisonment for one year with fine of Rs. 200/-.
3. 18 persons were tried for the offences under Sections 147, 148, 302, 302/149, 307 and 307/149 of the Indian Penal Code. Except the appellants, the Trial Court acquitted 11 accused persons.
4. The facts, as alleged by the prosecution are that all the accused persons were annoyed with Chhannu alias Umesh Sethi (deceased) and Mustaq Khan (complainant) for not getting prominence in the orchestra of Ganesh Ustav Samiti, Gokulpur. Because of that, on 08.03.1996 at about 8:30 pm, when Mustaq Khan was sitting in his Egg Shop situated at Gokulpur main road and was talking to Umesh Sethi and Takali, who were sitting infront of the shop, suddenly all the accused persons variously armed with deadly weapons reached there. Appellant Gudda alias Kali dealt a blow of "Ballam" (spear) on the left side of the chest of Umesh Sethi and when Mustaq Khan (PW-1) tried to save him, appellant Soyab Khan dealt a blow of "Gupti" on his left arm. When Takali (PW-4) in order to save himself tried to run away, some of the accused persons chased him. However, he was saved by neighbours Jagdish Yadav (PW-2) and Yashpal (PW-3). Antu, Babloo alias Susti, Mannu, Ashok, Shanker, Munna, Vijay alias Mithun and Vijay Balmik continued to surround Mustaq Khan and Umesh Sethi. Gudda alias Kali and Babloo alias Susti caused several injuries to Umesh Sethi. After assaulting Mustaq Khan and Umesh Sethi, all the accused persons ran away from the spot. Bobby alias Rakesh Sethi (PW-5), brother of Umesh Sethi, also reached there. Then Mustaq Khan and Umesh Sethi in an auto went to the Police Station Ranjhi and lodged the report (Exhibit P/1), from where they were sent to Victoria Hospital, Jabalpur for treatment and medico-legal examination. By the time Umesh Sethi reached the hospital, he expired. His dead body was then sent to the Medical College & Hospital, Jabalpur for post mortem examination.
5. Dr.Anoop Jain (PW-10) carried out the post mortem examination and found the following injuries on the body of deceased:
(1) Penetrating wound on the left side of the chest wall, 3 inches lateral to left nipple in 4th intercostal space, oval in shape. One inch diameter, sharp edges, direction is backward medially upto the depth of 6 inches.
(2) Incised wound on anterior surface of left upper arm, upper 1/3rd 2 x 1 inches through and through to lateral surface, exit wound is 1 x 1 inch cutting the muscles and subcutaneous tissues. Direction is lateral and backward, 2 inches length.
(3) Incised wound on lateral surface of left upper arm, upper 1/3rd, 1 x 1/2 inch skin deep, below injury No. 2.
(4) Incised wound on left forearm, upper 1/3rd anterior surface, oval in shape, 1 1/2 x 1 x 1 1/2 inch.
(5) Incised wound on top of left shoulder, 1 x 1/2 inch skin deep.
(6) Incised wound on lateral surface of left knee joint, 1 x 1/2 inch skin deep.
(7) Contusion present over the left thigh, lateral surface 2 x 1 inches transversely.
(8) Contusion present over the left leg, lateral surface 2 x 2 inches.
(9) Abrasion and contusion present on right upper arm, lateral surface 1 x 1/2 inch, transversely present. On internal examination, he found penetrating wound on the left 4th intercostal space passing through the left pleura, left anterior part of lung through and through making route of 1 x 1/2 inch upto the left pericardial border and making route in to pericardium and left ventricle lateral wall upto the cavity of ventricle 1/2 x 1/2 inch, whole of left pleural cavity as well as pericardial cavity is full of blood.
In the opinion of the doctor, the injuries were antemortem in nature and could be caused by the sharp penetrating object and sharp-hard object. The cause of death could be injury to heart, leading to haemorrhage and death. Mode of death was homicidal. The post mortem examination report is Exhibit P/5.
6. Dr.J.N.Sen (PW-6) examined the injuries of Mustaq Khan (PW-1) and found one incised wound of 1 x 1/2 inch on left upper arm on anterior medial side and another incised wound 1 1/2 x 1/2 inch on the left upper arm, medial side near axilla. Both injuries were bleeding and were caused by hard and sharp object. Injury report is Exhibit P/4.
7. After requisite investigation, charge sheet was filed against 18 accused persons and the case was committed for trial. On charges being framed, accused persons abjured their guilt and pleaded false implication. Appellants Ajay @ Babloo and Gudda @ Kali, pleaded alibi and also examined Pooranlal (DW-2) and Ramlal (DW-3) as defence witnesses.
8. Learned Trial Judge relying upon the evidence of eyewitnesses Mustaq Khan (PW-1), Jagdish Yadav (PW-2), Yashpal (PW-3), Takali alias Umesh Kumar (PW-4) and Rakesh Kumar Sethi (PW-5), convicted the appellants as aforesaid and, however, not finding the prosecution evidence sufficient against other 11 accused persons, acquitted them of all the charges.
9. Shri Surendra Singh, learned senior counsel, appearing for appellants Antu and Ajay alias Babloo alias Susti, submitted that they have been falsely implicated and their participation in the incident has not been established beyond doubt. Alleged eyewitnesses have improved upon their earlier versions in naming appellant Antu before the Trial Court. They have exaggerated in attributing a knife in his hand. He submitted that in the circumstances of the case, it has not been established that the common object of the unlawful assembly was to cause death of Umesh Sethi. At the most, the aforesaid appellants could be held liable under Section 326/149 of the Indian Penal Code.
10. Shri S.K.P. Verma, learned Counsel for appellant Gudda alias Kali alias Laxmi, submitted that the Trial Court committed error in convicting the appellant Gudda with the aid of Section 149 of the Indian Penal Code, as the allegation of the common object of the assembly to commit murder of the deceased was not established. He also submitted that the evidence of eyewitnesses was discrepant and contradictory and was not worthy of reliance.
11. Shri Yogesh Dhande, learned Counsel for the appellant Soyab Khan, submitted that since appellant Soyab Khan is said to have caused only one simple injury with "Gupti" to Mustaq, he cannot be held liable under Section 302/149 of the Indian Penal Code.
12. Shri Ghanshyam Pandey, learned Counsel for appellants Shanker alias Jhabra, Vijay and Nandi alias Mannad Singh, submitted that appellant Shanker and Vijay were not named in the First Information Report as well as in the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure. According to him, it were Shankar Barau and Shanker Ben who were named in the First Information Report. It was not established that appellant Shankar alias Jhabra had participated in the incident. He submitted that the aforesaid appellants had no grudge against the deceased and infact the cause of incident was a quarrel between Khushwant Singh (a relative of Ajay alias Babloo alias Susti) and Rakesh Sethi (PW-5). There was no reason or motive for the aforesaid appellants to murder Umesh Sethi.
13. Shri S.K.Rai, Government Advocate for the State, on the other hand, has submitted that the evidence of eyewitnesses is reliable and trustworthy. Presence of Mustaq Khan (PW-1) is established by the fact that he suffered injuries in the incident. Jagdish Yadav (PW-2), Yashpal (PW-3) and Takali (PW-4) are independent witnesses. Evidence of eyewitnesses has been corroborated by the medical evidence of Dr.J.N.Sen (PW-6) and Dr.Anoop Jain (PW-10) who examined the injuries on the body of victims. He has submitted that there is enough evidence on record to show that the appellants had gone together at the shop of Mustaq Khan where the deceased was present and after assaulting him, ran away from the spot together. As such, it has been clearly established that the appellants had formed an unlawful assembly which had the common object of causing the death of Umesh Sethi.
14. We have heard the Counsel of both the sides at length and perused the evidence and material on record.
15. The prosecution case rests on the testimony of five witnesses viz. Mustaq Khan (PW-1), Jagdish Yadav (PW-2), Yashpal (PW-3), Takali alias Umesh Kumar (PW-4) and Rakesh Kumar Sethi (PW-5). We will analyze the testimony of these witnesses so as to find out the nature of offence committed and involvement of the appellants. Whether all the appellants, as alleged, were involved in the incident and if so, to what extent? First and foremost question involved in this case is, whether all the appellants had formed an unlawful assembly with a common object of committing the murder of Umesh Sethi. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing the offence is a member of the same assembly is guilty of that offence. The first clause contemplates the commission of an offence by any member of an unlawful assembly, which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act, which may not necessarily be the common object of the assembly; nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of an unlawful assembly. In the case of Rajendra Shantaram Todankar v. State of Maharashtra and Ors. , the Apex Court held that a mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149, either clause, is apparently attracted and the Court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 of the Indian Penal Code, merely because a criminal act was committed by a member of the assembly, every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act.
16. For examining the motive for committing the offence, we refer to the First Information Report (Exhibit P/1) lodged by Mustaq Khan (PW-1), wherein, it has been mentioned that all the accused persons belonged to Ganesh Utsav Samiti, Gokulpur, who did not get importance in the orchestra. Having felt slighted and insulted, they grew a revengeful attitude and for that reason, they wanted to kill him and Umesh Sethi. Mustaq Khan (PW-1) testified that 3-4 days before the occurrence there had occurred a quarrel between the accused persons and Bobby alias Rakesh Sethi (brother of deceased). In cross-examination, Mustaq Khan deposed that he did not know as to who were the members of Ganesh Utsav Samiti and who was it's president. Accused persons were said to be the members of the aforesaid Samiti because they used to collect the donations for the said Samiti. From the evidence of this witness, it is not revealed as to how and why the accused persons entertained a grudge against him. It has not been said that the deceased and his brother had any rivalry with them or they in any manner caused any obstruction in their activities. Rakesh Sethi (PW-5) in paragraph No. 39 of his evidence deposed that he was neither a member of Ganesh Utsav Samiti nor did he run any orchestra. According to him, about two days before the occurrence, Khushwant (relative of appellant Babloo alias Susti) had an altercation with an elderly man, when he intervened, Khushwant slapped him. In turn, he also slapped Khushwant, whereupon, Khushwant went away saying that he would bring the people of Ganesh Utsav Samiti. 15-20 minutes thereafter, Babloo alias Susti, Vijay and Gudda alias Kali came with Khushwant to beat him, but he escaped. From the above circumstances, it appears that the dispute which is said to be motive of commission of the present offence had occurred between Rakesh Sethi (PW-5), the brother of Umesh Sethi, and Khushwant who happened to be a relative of Babloo alias Susti.
17. Mustaq Khan (PW-1), Jagdish Yadav (PW-2), Yashpal (PW-3), Takali alias Umesh Kumar (PW-4) and Rakesh Kumar Sethi (PW-5), have testified that the appellants along with other accused persons had come to the shop of Mustaq Khan (PW-1), infront of which Umesh Sethi and Takali were sitting on a bench. They were armed with deadly weapons like sword, spear, knife, gupti and iron rod. Seeing them, Umesh Sethi entered the shop, but appellant Gudda alias Kali dealt a blow of his spear on his chest. When Mustaq Khan (PW-1) tried to save him, appellant Soyab Khan dealt a blow of Gupti on his left arm. Appellants Babloo alias Susti, Antu and Nandi also assaulted the deceased with their respective weapons. Babloo alias Susti, had a sword, Antu had a knife and Nandi had a sword. These persons also assaulted Takali (PW4), but he ran away shouting. Four-five accused persons ran after him, but Jagdish and Lalu saved him. Rakesh Sethi (PW-5) had also come at the spot and had raised hue and cry, then all the assailants ran away.
18. Jagdish Yadav (PW-2), has testified that his cycle shop is situated near the shop of Mustaq Khan (PW-1). At about 8:30 pm, when he was in his shop and Yashpal (PW-3) was standing outside, he saw 15-20 persons armed with knife and sword passing by his shop. Out of them, he knew appellants Gudda alias Kali, Babloo alias Susti, Shanker alias Jhabra, Bhaloo Khan and Antu. They went to the shop of Mustaq Khan. On being told by Yashpal that a quarrel had taken place, he came out of his shop and saw Gudda alias Kali inflicting a blow with spear on the chest of Umesh Sethi and Soyab Khan inflicting a blow by 'gupti' on the left hand of Mustaq Khan. Umesh Sethi fell down and other accused persons also assaulted Umesh Sethi. The evidence of Mustaq (PW-1) and Jagdish (PW-2) finds corroboration from the evidence of Yashpal (PW-3), Takali (PW-4) and Rakesh Sethi (PW-5) who too have testified similarly. From the above evidence, it is clearly established that the appellants had come together openly armed with deadly weapons at the shop of Mustaq Khan (PW-1), where Umesh Sethi was sitting and the appellant Gudda alias Kali had pierced a spear on the left side of the chest of Umesh Sethi and when Mustaq (PW-1) tried to save Umesh, he was also assaulted by the appellant Soyab Khan. It has also been established that some of other appellants had also assaulted Umesh by their respective weapons, even after he had received a spear blow on the chest at the hands of appellant Gudda alias Kali.
19. Dr.Anoop Jain (PW-10), on post mortem examination of the body of Umesh Sethi, found as many as 9 injuries, out of which one was a penetrating wound on the left side of the chest which had injured his left lung and he Article Besides that, 5 incised wounds and 3 contusions and abrasions were also found on other parts of his body. Dr.J.N.Sen (PW-6) had also found two incised wounds on the left arm of Mustaq Khan (PW-1).
20. In State of Rajasthan v. Nathu and Ors. , the Apex Court has held that if death is caused in prosecution of the common object of an unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly also becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly. In the case of Rajendra Shantaram Todankar (supra) and in Parsuram Pandey and Ors. v. State of Bihar (2004) 13 SCC 189, it has been held that to attract Section 149 of the Indian Penal Code the prosecution must prove that the commission of an offence was by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew that it was likely to be committed.
21. The ratio of the case of Muthu Naicker and Ors. v. State of Tamil Nadu , cited by Shri Surendra Singh, Senior Counsel, in our opinion, is not attracted in the fact situation of the present case. In that case, the Apex Court has observed that whenever in uneventful rural society something unusual occurs, more so where the local community is faction-ridden and a fight occurs amongst factions, a good number of people appear on the scene not with a view to participating in the occurrence but as curious spectators. In such an event mere presence in the unlawful assembly should not be treated as leading to the conclusion that the person concerned was present in the unlawful assembly as a member of the unlawful assembly. In the case in hand, the accused/appellants had gone in a market of Gokalpur (Jabalpur), at the shop of Mustaq Khan (PW-1) together and had caused injuries to Umesh Sethi (deceased) and also assaulted Mustaq Khan (PW-1) who tried to save him and after the occurrence, all of them ran away from the spot together. In the case of Mohinder Singh and Ors. v. State of Punjab , it is held that if the prosecution established that all the appellants came to the spot of incident together and they were carrying deadly weapons, two of them carrying 12 bore guns and immediately on reaching the spot, one of the accused opened the fire followed by firing by another accused in the same transaction, the common object of the assembly is clearly established. The knowledge of the assembly that grievous hurt or death would be caused can be safely attributed to the members of the unlawful assembly because two members of the assembly carried licenced guns.
22. We are not in agreement with Shri Yogesh Dhande, learned Counsel for appellant Soyab Khan that there was no motive which could have impelled the accused persons to commit the murder of Umesh Sethi, merely because the past quarrel had taken place between Rakesh Sethi (PW-5) and Khushwant (relative of appellant Babloo alias Susti). The facts of the case of Radha Mohan Singh alias Lal Saheb and Ors. v. State of U.P. , on which he placed reliance, are not applicable to the facts of the present case. In case of Radha Mohan Singh (supra), the accused persons armed with Lathi, Farsa and knife, had suddenly appeared on the pathway of the village and one of the accused had assaulted the deceased with spear and other accused had assaulted with Farsa. When witness Ganesh Singh tried to save him, some of the accused persons assaulted him with Lathis. The injury caused by Farsa to the deceased was of very small dimension. In the above fact- situation, in view of the superficial injury caused by Farsa, the Apex Court held that the accused who caused the injury with Farsa did not wield the Farsa with an intention or object to cause any injury to the deceased and it could not be held that the common object of the unlawful assembly was to commit murder of the deceased. In the present case, it has clearly been established that the accused/appellants armed with deadly weapons had come at the shop of Mustaq Khan (PW-1), where the deceased was sitting and appellant Gudda alias Kali had dealt a spear blow on the chest of the deceased which was followed by assaults by other accused persons. It is also significant to note that in this pre-concerted attack when Mustaq Khan (PW-1) tried to save the deceased, appellant Soyab Khan dealt a blow with Gupti on his hand. In this view of the matter, it is not possible to hold that appellant Soyab Khan did not share the common object of the unlawful assembly of committing murder of the deceased.
23. Taking into consideration all the above factual and legal aspects, we are of the opinion that the prosecution has clearly established that the accused/appellants came to the shop of Mustaq Khan (PW-1) together, where the deceased was sitting. Most of them were carrying deadly weapons like spear, sword, knife and gupti etc. Immediately on reaching the spot, appellant Gudda alias Kali pierced the spear on the left side of the chest of Umesh Sethi. When Mustaq Khan (PW-1) attempted to save him, appellant Soyab Khan dealt a blow by Gupti to him. Assaults on the deceased were followed by the other accused/appellants in the same transaction. The aforesaid facts clearly established the common object of the unlawful assembly. The knowledge of the members of the assembly that the death of Umesh Sethi would thereby be caused, can be safely attributed to the members of the unlawful assembly. An inference is to be drawn of the knowledge of the common object and formation of an unlawful assembly, from the behaviour of the members of the assembly of the accused persons who came together with deadly weapons and immediately launched the attack on the deceased. Injury found on the chest of the deceased was sufficient to cause his death. Injury found on the body of Mustaq Khan (PW-1), who tried to intervene further reinforces the inference of existence of the common object of an unlawful assembly to kill Umesh Sethi and to cause injuries to any other person who tried to intervene.
24. Learned Counsel for the appellants argued that as many as 18 accused had been put on trial, but the witnesses adopted the method of pick and choose, resulting in acquittal of 11 accused persons, therefore, he submitted that their evidence should not be relied upon for the present appellants. In our opinion, this argument is not acceptable because the principle of "falsus in uno falsus in omnibus" is not applicable in India. It is merely a rule of caution and not mandatory rule of evidence. The Apex Court in case of Ram Udarsingh v. State of Bihar and in case of Gubbala Venugopala Swamy and Ors. v. State of Andhra Pradesh AIR 2004 SC 2477, held - "That even if a major portion of evidence of a witness is found to be deficient, in case the residual is sufficient to prove the guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, conviction can be maintained. The duty of the Court is to separate the grain from the chaff and appreciate in each case, as to what extent the evidence is worthy of acceptance."
25. Now the crucial question before us is to determine whether all the appellants were the members of the unlawful assembly and had the common object to commit murder of Umesh Sethi. In this connection it is necessary to advert to the evidence of Mustaq Khan (PW-1) and the First Information Report (Exhibit P/1) lodged by him. In the First Information Report, Mustaq (PW-1), along with other accused persons named accused Vijay Mithun, Vijay Balmik and Shanker Ben. The charge sheet was filed against the accused Vijay Kumar Raikwar, Vijay Balmik and Vijay son of Maiku Singh. Learned Trial Court finding the evidence insufficient against the accused Vijay Kumar Raikwar and Vijay Balmik, acquitted them, however, finding the presence of Vijay son of Maiku Singh established in the unlawful assembly, convicted him. It is somewhat strange that the accused Vijay Mithun and Vijay Balmik who were named in the First Information Report were acquitted and appellant Vijay son of Maiku Singh who was not named in the FIR has been convicted. Similar is the situation with the appellant Shanker alias Jhabra whose name too is not found mentioned in the First Information Report. The person named in the First Information Report is Shanker Ben of Gokulpur. Uttam Singh Sikarwar (PW-9), Investigating Officer, in paragraph No. 72 of his deposition categorically stated that in the First Information Report, Shanker Ben was named, but since no evidence was found against him, he was not made accused. It is thus apparent that appellant Shanker alias Jhabra is a different person then Shanker Ben who was named in the First Information Report. Mustaq Khan (PW-1) did not depose before the Court about the presence of appellant Shanker alias Jhabra amongst the accused persons. In paragraph No. 49 of his testimony, he even stated that he did not know Shanker Ben whom he had named in the FIR (Exhibit P/1). Jagdish Yadav (PW-2) who, in his chief examination, stated about the presence of appellant Shanker alias Jhabra, when confronted with his police statement (Exhibit D/1), could not explain as to how the name of appellant Shanker alias Jhabra was missing therein. Yashpal (PW-3) when confronted with his police statement, in paragraph No. 45 of his deposition, could not explain as to why the fact that appellant Shanker alias Jhabra accompanied other accused persons, was not mentioned therein. He was also confronted with the police statement on the point that Shanker alias Jhabra had surrounded the deceased. Similar is the situation with the evidence of Takali (PW-4) who was confronted with his police statement, where he did not disclose that Shanker along with other persons assaulted and chased him. So far as Rakesh Sethi (PW-5) is concerned, he did not say that appellant Shanker alias Jhabra in any manner participated in the assault on the deceased. He merely said that Shanker assaulted Takali (PW-4). However, this fact does not find support from the evidence of Takali (PW-4) himself. In this view of the matter, we are of the opinion that the prosecution has not established the presence and participation of appellant Shanker alias Jhabra in the unlawful assembly beyond reasonable doubt. His conviction, therefore, deserves to be set aside.
26. As regards to the presence of appellant Vijay son of Maiku Singh is concerned, his name does not find place in the First Information Report. Mustaq Khan (PW-1), in paragraph No. 35 of his evidence, testified that he had named Vijay in the First Information Report whose shop is situated near Bappa Sweets. However, such description does not find place in the First Information Report. On the contrary, Vijay Mithun Raikwar and Vijay Balmik were named in the First Information Report, who were acquitted by the Trial Court. Jagdish Yadav (PW-2) also did not mention the presence of appellant Vijay S/o Maiku in the occurrence. Yashpal (PW-3) testified that he knew only accused/appellants Gudda, Soyab, Babloo alias Susti, Nandi, Antu and Shanker alias Jhabra and he did not know others. Takali (PW-4), though in chief examination deposed that appellant Vijay who runs a betel shop was present with the assailants, however, in paragraph No. 40, in cross-examination, he was confronted with his police statement (Exhibit D/3), wherein the presence of "Vijay Panwala" was not mentioned. Though Rakesh Sethi (PW-5) testified about the presence of Vijay Panwala (appellant), yet in view of the fact that the evidence of other eyewitnesses with respect to his presence appeared doubtful and that his name was not mentioned in the First Information Report, his solitary testimony does not inspire confidence. Thus, we do not find it established beyond doubt that appellant Vijay S/o Maiku had participated in the unlawful assembly. As such, his conviction deserves to be set aside.
27. So far as appellant Antu is concerned, he has been named in the First Information Report. Mustaq Khan (PW-1) testified that appellant Antu dealt a knife blow to the deceased. However, the fact that he was armed with a knife and had dealt its blow to the deceased is missing in the First Information Report (Exhibit P/1) and in his police statement. Jagdish Yadav (PW-2) testified that appellant Antu was present with other accused persons, but he did not say that he was armed with any weapon. Similarly, Yashpal (PW-3) testified that appellant Antu had come and surrounded the deceased along with other accused persons and he was armed with a knife. Though this witness was confronted with the police statement on the plea that it was not mentioned therein that appellant Antu along with other accused persons had surrounded the deceased, yet, infact, this fact is found mentioned in the aforesaid statement. It is to be noted that though the police statement of Yashpal (PW-3) was not marked as exhibit by the Trial Court, may be inadvertently, still the Investigating Officer Uttam Singh Sikarwar (PW-9), categorically testified and proved that he had recorded the statement of this witness during the investigation as he had stated. Rakesh Sethi (PW-5) also testified about the presence of appellant Antu, though he was contradicted by the police statement (Exhibit D/2) about the fact whether, he was armed with "Lathi" or "knife". Since Takali (PW-4) did not mention about the presence of appellant Antu, learned Counsel argued that even if one prosecution witness who has been relied by the Court did not name him, the appellant Antu deserves to be given benefit of reasonable doubt. We are unable to agree with the learned Counsel that the ratio of Shanta v. State of Haryana , can be applied to the case of appellant Antu. In the case of Shanta (supra), there had been a fight between two factions in the village. One witness had stated that the appellant had entered into the arena only after the deceased was fatally assaulted by some other accused. In such circumstances, the Apex Court observed that when one of the important prosecution witness who had been relied on by both the Courts below, clearly exonerates the appellant of the charge under Section 302/149 of the Indian Penal Code, then that circumstance was sufficient to give benefit of reasonable doubt to the appellant. In the above circumstances, though it is not proved that appellant Antu was armed with a knife, none the less, in our opinion it has been amply established that he was the member of the unlawful assembly and had shared its common object.
28. So far as other appellants namely Ajay alias Babloo alias Susti, Nandi alias Mannad Singh and Soyab Khan alias Babloo, are concerned, excepting a few minor differences in matters of details, the evidence of the eyewitnesses is substantially consistent that they formed an unlawful assembly with appellant Gudda alias Kali and other accused persons, the object of which was to cause death of Umesh Sethi.
29. In case of Sukhbir Singh v. State of Haryana , it has been held by the Apex Court that an accused is vicariously guilty of the offence committed by other accused persons only if he is proved to be a member of an unlawful assembly sharing its common object. Once the existence of common object of unlawful assembly is proved, each member of such an assembly shall be liable for the main offence, irrespective of his actual participation in the commission of the offence. It is not necessary that each of the accused, forming the unlawful assembly, must have committed the offence with his own hands.
30. So far as the evidence of Nar Bahadur (DW-1) is concerned, he has said that at the time of occurrence he had seen appellant Nandi at his betel shop which is situated in the same locality. Police personnel were asking him to close his shop and that before him Vijay and Nandi had closed their shops and had gone to their houses with him. In view of the overwhelming and reliable evidence of eyewitnesses, casual evidence of this witness does not appear reliable. The evidence of Puranlal (DW-2) and Ramlal (DW-3) that appellant Gudda alias Kali had taken the son of Puranlal to the Victoria Hospital at about 11:00 pm on 8th March 1996, does not appear trustworthy as the incident had occurred at about 8:30 pm in the town of Jabalpur. It is quite possible for appellant Gudda alias Kali to have participated in the occurrence which had taken place long before 11:00 pm. In this view of the matter, the evidence of the defence witnesses, does not appear reliable.
31. Taking into consideration the facts and circumstances as discussed above, we are satisfied that appellants Antu, Ajay alias Babloo alias Susti and Gudda alias Kali alias Laxmi Narayan of Criminal Appeal No. 458/1999; appellant Nandi alias Mannad Singh of Criminal Appeal No. 954/1999 and appellant Soyab Khan alias Babloo of Criminal Appeal No. 955/1999, formed an unlawful assembly knowing beforehand that the murder of Umesh Sethi was likely to be committed in prosecution of their common object. Therefore, the aforesaid appellants were rightly convicted under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code. Their conviction and sentences are affirmed. Conviction and sentence of appellant Soyab Khan under Section 324 of the Indian Penal Code for causing injury to Mustaq Khan (PW-1), is also affirmed.
32. For the reasons mentioned above, Criminal Appeal No. 929/1999 of appellant Shanker alias Jhabra and Criminal Appeal No. 942/1999 of appellant Vijay son of Maiku Singh, are allowed. Their conviction and sentences are set aside. They are acquitted. Appellants Shanker alias Jhabra and Vijay son of Maiku Singh are on bail, their bail bonds and surety bonds are discharged.
33. Criminal Appeal No. 458/1999 of appellants Antu, Ajay alias Babloo alias Susti and Gudda alias Kali alias Laxmi Narayan, Criminal Appeal No. 954/1999 of appellant Nandi alias Mannad Singh and Criminal Appeal No. 955/1999 of Soyab Khan alias Babloo, are dismissed. Appellants Antu, Ajay alias Babloo alias Susti, Nandi alias Mannad Singh and Soyab Khan, who are on bail, shall surrender immediately for serving out the remaining part of their sentences.
A copy of this judgment be kept in Criminal Appeal Nos. 929/1999, 942/1999, 954/1999 and 955/1999.