Chattisgarh High Court
Kondi vs State Of Chhattisgarh on 16 April, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal 35 of 2006 AND Criminal Appeal 129 of 2006 AND Criminal Appeal 162 of 2006
1 Kondi
2 Arjun
3 Punit
4 Phool Singh
5 Dinesh
...Petitioners
Versus
State of Chhattisgarh
...Respondents
! Mr J R Verma, Mr Rajkumar Gupta, Mr Santosh Kumar Tiwari
^ Mr Akhil Mishra
CORAM: HONBLE MR T P SHARMA AND HONBLE MR R L JHANWAR JJ
Dated: 16/04/2010
: JUDGEMENT
Criminal appeals under Section 374 of the Code of Criminal Procedure 1973 The following judgment of the Court was passed by T.P. Sharma, J: -
1. Since the aforesaid three criminal appeals are arising out of the same judgment of conviction & order of sentence dated 21-12-2005 passed by the 1st Additional Sessions Judge, Mahasamund, in Sessions Trial No.423/2003, they are being disposed of by this common judgment.
2. Challenge in these three criminal appeals is to the judgment of conviction & order of sentence dated 21-12-2005 passed by the 1st Additional Sessions Judge, Mahasamund, in Sessions Trial No.423/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for commission of offence of formation of unlawful assembly having its common object of culpable homicide amounting to murder of Ranjeet and attempt to commit murder of Nagi Bai after committing criminal house breaking by night, armed with deadly weapons; convicted the appellants under Sections 148, 302 read with Section 149, 307 read with Section 149 & 460 of the I.P.C. and sentenced each of them to undergo R.I. for two years & pay fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for one month; to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo R.I. for five months; to undergo R.I. for seven years & pay fine of Rs.3,000/-, in default of payment of fine to further undergo R.I. for three months and to undergo R.I. for ten years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo R.I. for two months, respectively.
3. Conviction is impugned on the ground that without any iota of evidence, especially constitution of unlawful assembly with common object of commission of murder of Ranjeet and attempt to commit murder of Nagi Bai, the trial Court has convicted & sentenced the appellants and thereby committed illegality.
4. Case of the prosecution, in brief, is that both the parties were in inimical terms and on the fateful night of 26-
8-2003 between 2-2.30 a.m. (mid night) Ranjeet (since deceased) & his wife Seema Bai (PW-19) were sleeping in their house along with their children and Nagi Bai (PW-1) - mother of Ranjeet was also sleeping in the same house. Seema Bai (PW-19) woke up on account of stroke of stick, at that time, Girdhari, Nand Kishore, Chinna, Pot Raju, Baiga Raju, Neelkanth, Dholu, Vijay, Punit, Pintu, Arjun, Budha Arjun, Dharmu, Chota Babu & others were present, they were holding sword, dagger, axe, cricket bat & stick, they assaulted her husband Ranjeet (since deceased), her mother-in-law came to intervene to save her son Ranjeet on which accused Girdhari, Chinna & Nand Kishore assaulted her as of result she fell down. The accused persons dragged Ranjeet from verandah to courtyard and assaulted him with sword, axe and with weapons which they were holding as a result of which Ranjeet fell down. They also chased Seems Bai (PW-19), then she ran away with her children towards the house of her elder brother-in- law (jeth) Dukalu. The accused persons again chased her on which she went to the house of Rajesh and hide herself. The accused persons assaulted Jethu in the house of Jethu and they were telling that they will kill all members of the family. After some time, she went to the house of Jethu where dead body of her elder brother-in-law Ravi was lying in the verandah and dead body of Dukalu was lying in the room. She came back to her house, her husband was breathing, she shouted for help and after some time her husband died. Police came to her village and she lodged dehati nalsi vide Ex.P-25 and dehati merg vide Ex.P-26. Registered merg was recorded vide Ex.P-21 and F.I.R. was registered vide Ex.P-20. The Investigating Officer after summoning the witnesses vide Ex.P-1 prepared inquest over the dead body of Ranjeet vide Ex.P-2. Dead body of Ranjeet was sent for autopsy to Govt. Hospital, Mahasamund vide Ex.P-14A and autopsy was conducted by Dr. S. Chandravanshi (PW-9) vide Ex.P-14 who found following injuries: -
(1) Incised wound 6 c.m. x 0.2 c.m. x 0.3 c.m. over mid forehead, frontal bone was also incised. (2) Incised wound 10 c.m. x 0.2 c.m. x 0.3 c.m. over left side of forehead up to left ear, frontal & temporal bones were also incised.
(3) Incised wound 1.5 c.m. x 0.2 c.m. x 0.3 c.m. over base of nose.
(4) Incised wound 2 c.m. x 0.2 c.m. x 0.2 c.m. over tip of nose.
(5) Incised wound 7 c.m. x 0.8 c.m. x 1 c.m. over left mid cheek.
(6) Incised wound 6 c.m. x 1 c.m. x 1 c.m. over left arm middle 1/3 lateral.
(7) Incised wound 7 c.m. x 2 c.m. x 1 c.m. over left arm lower 1/3 lateral.
(8) Compound fracture of left forearm middle 1/3. (9) Incised wound 8 c.m. x 0.3 c.m. x 0.5 c.m. over left mid palm.
(10) Incised wound 8 c.m. x 1 c.m. x 0.5 c.m. over distal palm, 4 metacarpal bones were found cut completely at distal end.
(11) Incised wound 8 c.m. x 1 c.m. x 3 c.m. over right arm middle 1/3, humerus completely cut and arm was hanging attached to post skin.
(12) Incised wound 2 c.m. x 0.5 c.m. x 0.2 c.m. over right mid skin.
(13) Incised wound 8 c.m. x 1 c.m. x 2 c.m. over left foot.
Mode of death was shock as a result of excessive haemorrhage.
5. Injured Nagi Bai was also examined by Dr. S. Chandravanshi (PW-9) vide Ex.P-15 and following injuries were found: -
(1) Incised wound 10 c.m. x 1 c.m. x 2 c.m. at the base of right palm, metacarpal bones were visible. (2) Incised wound 1.5 c.m. x 1 c.m. x 0.5 c.m. over base of right index finger.
(3) Lacerated wound 3 c.m. x 0.5 c.m. x 0.2 c.m. over right forearm.
(4) Incised wound 8 c.m. x 2 c.m. x 1 c.m. over left shoulder, humerus bone was visible. (5) Incised wound 8 c.m. x 1 c.m. x 1 c.m. over left arm, bone was visible.
(6) Incised wound 4 c.m. x 1 c.m. x 0.5 c.m. over left forearm.
(7) Incised wound 20 c.m. x 1 c.m. x 2 c.m. over right side of abdomen, peritoneum membrane was visible.
Injuries were caused by sharp edged weapon. Radiological examination of Nagi Bai was also done vide Exs.P-16 & P- 16A and fracture of proximal phalynx of right thumb, fracture of proximal phalynx of right index finger, fracture of acremian processes of left scapula and fracture of left humerus head were found. Injuries were sufficient for causing death.
6. During the course of investigation, accused Arjun was taken into custody, he made discloser statement of gandasa vide Ex.P-5 and the same was recovered at his instance vide Ex.P-6. Sketch figure of gandasa was prepared vide Ex.P-7. Blood stained soil & plain soil were recovered from the spot vide Ex.P-8. One axe stained with blood & one nanchaku were seized from the spot vide Ex.P-9. Bloodstained clothes and dry blood from wall were seized from the spot vide Ex.P-10. Blood stained clothes of Seema Bai were seized vide Ex.P-11. Spot map was prepared vide Ex.P-12. Panchnama of the spot was prepared vide Ex.P-13. During the course of investigation, accused Phool Singh was taken into custody, he was interrogated, he made discloser statement of stick vide Ex.P-17, the same was searched and search Panchnama was prepared vide Ex.P-18. One sword & one dagger kukri were seized under neem tree beside the road vide Ex.P-19. Seized articles were sent for chemical examination vide Ex.P-28.
7. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Mahasamund, who in turn committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial.
8. Originally charge sheet was filed against four accused persons. Sixteen accused were absconding and out of sixteen, accused Punit was arrested subsequently.
9. In order to prove the guilt of the appellants, the prosecution has examined as many as twenty-one witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication on account of enmity. They have examined Jagat (DW-1), Ishwar Prasad Sahu (DW-2), Shyamraj (DW-3) & Amraotin Bai (DW-4) in their defence. Jagat (DW-1) & Amraotin Bai (DW-4) have deposed that on the date of incident, accused Phool Singh was not present at Bhimkhoj, the place of incident, and was present at Kanker. Likewise, Ishwar Prasad Sahu (DW-2) & Shyamraj (DW-3) have deposed that on the date of incident Arjun was not present at Bhimkhoj and he was present at Avradabri. They have taken the defence of alibi.
10. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants as aforementioned.
11. According to the case of both the parties, after commission of offence in the house of Ranjeet, two persons Ravi & Dukalu were also murdered in their houses in continuation of the offence. After investigation of second part of offence, the prosecution has filed charge sheet before the same Court and S.T.No.424/2003 was tried against the appellants herein resulting in conviction & sentence vide judgment dated 21-12-2005 by the same Additional Sessions Judge.
12. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court.
13. Learned counsel for appellant Kondi Bai alias Unnari vehemently argued that the evidence adduced on behalf of the prosecution is not sufficient for drawing inference that appellant Kondi Bai has committed the offence. According to the case of the prosecution, Nagi Bai (PW-1) - mother of Ranjeet & injured witness; Rajesh (PW-2) in whose house Seema Bai (PW-19) has taken shelter; Krishna alias Krishna Kumar (PW-3) - brother of Ranjeet who was present in the house at the time of incident; Shanti Bai (PW-5) - wife of another deceased Dukalu; Shankar (PW-6) - nephew of deceased persons Dukalu, Ravi & Ranjeet who was present in the house of Dukalu; Kanta Bai (PW-7) - wife of deceased Ravi and Seema Bai (PW-19) - wife of deceased Ranjeet, have claimed themselves to be eyewitnesses. According to the case of the prosecution, Nagi Bai (PW-1) & Seema Bai (PW-19) were present in the house where Ranjeet was sleeping and both are injured witnesses according to their statements. Seema Bai (PW-19) who was sleeping beside her husband Ranjeet has not named appellant Kondi Bai in her evidence. Nagi Bai (PW-1) has also not named appellant Kondi Bai in her evidence. In absence of any allegation against appellant Kondi Bai in the evidence of both the aforesaid witnesses, presence of Kondi Bai at the time of incident and her participation in the crime in question is doubtful. Other witnesses have stated presence of appellant Kondi Bai in the house of Dukalu & Ravi which is far away from the house of Ranjeet, but the evidence of Nagi Bai (PW-1) & Seema Bai (PW-19) are sufficient for drawing inference that at the time of commission of offence in the house of Ranjeet, appellant Kondi Bai was not present, she was not member of the unlawful assembly, she has never joined the unlawful assembly the common object of which was commission of murder of Ranjeet and attempt to commit murder of Seema Bai. Therefore, conviction & sentences of appellant Kondi Bai are not sustainable under the law.
14. Learned counsel for appellants Arjun, Punit, Phool Singh & Dinesh vehemently argued that no specific part played by the aforesaid appellants has been deposed by the alleged eyewitnesses in their evidence. According to the case of the prosecution, injuries were caused by Girdhari, Nand Kishore, Chinna, Neelkanth, Santoshi, Yashoda & other accused persons who were holding deadly weapons, but injuries have not been caused by these accused persons. The prosecution has also not proved the fact that the appellants have ever constituted unlawful assembly and were armed with deadly weapons having its common object of causing murder of Ranjeet and attempt to commit murder of Seema Bai. Therefore, even mere presence, or causing any one or two injuries, or simple injuries to any person is not sufficient for drawing inference that the appellants herein have constituted unlawful assembly along with other accused persons having common object to commit murder of Ranjeet and attempt to commit murder of Seema Bai and in furtherance of common object of the unlawful assembly, they have committed murder and attempted to commit murder after committing the offence of house breaking by night. This is a case of series of murders in which after murder of Ranjeet and fatal injuries to Nagi Bai, murder of two other persons namely Dukalu & Ravi - brother of Ranjeet and series of injuries to other persons were caused. But the evidence of the prosecution witnesses clearly establish that injuries were caused by goondas came from outside and the three deceased persons who died on the spot were having inimical terms with so many persons, they were facing criminal trial for commission of so many offences and therefore, there was likelihood of causing injuries or committing their murder by their enemies, and the witnesses have falsely implicated these appellants without any credible, clinching & reliable evidence.
15. Learned counsel for the appellants placed reliance in the matter of Sambhaji Hindurao Deshmukh and others v. State of Maharashtra1 in which the Apex Court has held that in absence of reliable evidence to show that accused with common intent assaulted or caused injuries either to deceased or any of his family members and in case their presence at the site of the incident was doubtful, acquittal of those accused is proper. Learned counsel further placed reliance in the matter of Fagu Manjhi and others v. State of Bihar and another2 in which the Apex Court has held that only three accused, variously armed, chased and inflicted injuries on deceased as a result of which he died, other accused persons were only running behind the said three assailants and all the injuries sustained by the deceased could be attributed to the actions alleged against the said three assailants, conviction of rest accused who were running is not sustainable. Learned counsel also placed reliance in the matter of Bhagga and others v. State of Madhya Pradesh3 in which the Apex Court has held that material discrepancy relating to presence of accused, role attributed to him and in absence of common object of such accused to kill the deceased, conviction of such accused is not sustainable. Learned counsel relied upon the matter of Boya T. Venkateswarlu and others v. State of A.P.4 in which the Apex Court has held that in absence of names of accused persons along with accused who has assaulted the deceased and in absence of evidence relating to role attributed by such accused persons, conviction of such accused persons is not sustainable.
16. On the other hand, learned State counsel vehemently opposed all the criminal appeals and submitted that this is a case of triple murder in one series, the offence took place between 2-2.30 a.m. (at night) it was not the normal time where presence of any person for any other purpose may be presumed. At the time of commission of offence, persons of the village were sleeping in their houses, the appellants gathered at one place and after holding deadly weapons they entered into the house of Ranjeet from the way not meant for common entry and thereby committed the offence of house breaking, and after entering into the house of Ranjeet, they assaulted Nagi Bai & Seema Bai and committed murder of Ranjeet, they chased Seema Bai, when she fled from the spot, they followed her up to the house of Dukalu, they committed the murder of Dukalu & Ravi and also caused serious injuries to other persons with deadly weapons. The prosecution has adduced evidence to this effect which is sufficient for drawing inference that the appellants armed with deadly weapons have formed unlawful assembly the common object of which was to kill Ranjeet and attempt to commit murder of Seema Bai and in furtherance of common object of the unlawful assembly the accused persons & other members of the assembly had caused injuries jointly & severally. Therefore, all members of the unlawful assembly are liable for commission of the aforesaid offence with the aid of Section 149 of the I.P.C. In the present case, the prosecution is not required to prove individual acts of the appellants. The prosecution is required to establish that the appellants armed with deadly weapons have formed unlawful assembly with common object to kill Ranjeet and attempt to commit murder of Seema Bai. In the present case, the prosecution has proved the aforesaid facts by adducing evidence of eyewitnesses. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellants have committed the aforesaid offence.
17. Learned State counsel further submitted that evidence of Nagi Bai (PW-1), Rajesh (PW-2), Krishna alias Krishna Kumar (PW-3) - injured witness, Shanti Bai (PW-5) - wife of deceased Dukalu, Shankar (PW-6) - injured witness, Kanta Bai (PW-7) and Seema Bai (PW-19) - injured witness & wife of deceased Ranjeet are sufficient for drawing inference that appellant Kondi Bai and all the appellants formed unlawful assembly, they were armed with deadly weapons and after committing house breaking by night in furtherance of the common object of unlawful assembly, they committed culpable homicide amounting to murder of Ranjeet and have attempted to commit murder of Nagi Bai. The trial Court has rightly convicted & sentenced the appellants.
18. Learned State counsel placed reliance in the matter of State of Rajasthan v. Teja Ram and others5 in which the Apex Court has held that close relatives are natural witnesses in absence of independent witnesses at night and the inmates of house are most natural witnesses and their evidence cannot be discarded. Learned State counsel further placed reliance in the matter of Gangadhar Behera and others v. State of Orissa6 in which the Apex Court has held that principle of falsus in uno, falsus in omnibus is not applicable in India, it is only a rule of caution. Relative witnesses are also witnesses only minute scrutiny of their evidence is required. Learned State counsel also placed reliance in the matter of Sachchey Lal Tiwari v. State of U.P.7 in which the Apex Court has held that after altercation killing of deceased by use of fire arm does not fall within Exception 4 to Section 300 of the I.P.C. and same is murder punishable under Section 302 of the I.P.C. Learned State counsel relied upon the matter of State of U.P. v. Dan Singh and others8 in which the Apex Court has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them, an assembly which is initially lawful may subsequently become unlawful. Learned State counsel further relied upon the matter of Lalji and others v. State of U.P.9 in which the Apex Court has held that unlawful assembly once established, corroboration as to overt act or active participation of an accused-member of the unlawful assembly is not required. Mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act, is sufficient to constitute offence.
19. The trial Court has also tried the appellants herein in S.T.No.424/2003 for commission of murder of Ravi & Dukalu and attempt to commit murder of Shankar & Shanti Bai. After appreciating the evidence available on that record, the trial Court has convicted & sentenced the appellants herein under Sections 148, 302 read with Section 149, 307 read with Section 149, 460 & 324 read with Section 149 of the I.P.C. The appellants herein have also preferred criminal appeals against their conviction in S.T.No.424/2003 vide Criminal Appeal Nos.24/2006, 133/2006 & 161/2006 in which also the arguments are heard along with the instant appeals and those appeals are being disposed of by a separate judgment.
20. In the present case, homicidal death of Ranjeet as a result of ante-mortem fatal injuries and fatal injuries to Nagi Bai (PW-1) have not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. S. Chandravanshi (PW-9), autopsy report Ex.P- 14, injury report of Nagi Bai Ex.P-15 and X-ray report Exs.P- 16 & P-16A, that death of Ranjeet is homicidal in nature and injuries caused to Nagi Bai are fatal to life.
21. As regards complicity of the appellants in the crime in question, conviction is based on the evidence of eyewitnesses Nagi Bai (PW-1) - mother of deceased Ranjeet & injured witness and Seema Bai (PW-19) - wife of deceased Ranjeet.
22. Seema Bai (PW-19) has deposed in her evidence that they were in inimical terms with the appellants & other accused persons, on 26-8-2003 she was sleeping along with her husband & children, between 2-3 a.m. at night accused Girdhari, Nand Kishore, Chinna, Neelkanth, Daulu, Dharmu, Kodu Raju, Baiga Raju, Arjun, Kodi, Phool Singh, Punit, Dinesh, Chote Babu, Pintu, Ganeshi, Yashoda, Santoshi & other persons came to her house, they were holding sword, axe, stick & nanchaku, they came inside her house by jumping the wall and firstly they assaulted her, then her husband and thereafter, her mother-in- law Nagi Bai (PW-1). When they tried to assault her children, her husband Ranjeet directed her to go with children to save them on which she along with her two children left her house and while leaving her house she was watching the incident by hiding herself, her mother-in-law Nagi Bai (PW-1) after opening the door tried to call the persons whereupon accused Girdhari, Dalu & Neelkanth assaulted her with stick, accused Vijay assaulted her husband with sword, they chopped his hand & leg and assaulted over his body. Thereafter, she fled towards her bother-in-law Dukalu's house. The accused persons also reached to the house of Dukalu before she reached there.
23. Nagi Bai (PW-1) - mother of deceased Ranjeet & injured witness has deposed in her evidence at on the fateful night at about 2-2.30 a.m. she was sleeping in her house, at that time after jumping the wall of her kitchen garden accused Vijay, Nand Kishore, Girdhari, Chinna, Neelkanth, Punit, Gauri & Sanotshi came to her house, they were holding sword, betel axe, axe, rod, dagger & crowbar, they assaulted Ranjeet, they also assaulted her with sharp edged weapon and caused fatal injuries on her abdomen & other parts of the body including hands. They committed murder of Ranjeet. They chopped the body of Ranjeet. Thereafter, the accused persons went to the house of Dukalu. She fled towards the village and thereafter, she came to know that the accused persons have killed Ravi & Dukalu.
24. Rajesh (PW-2) - neighbour of Ranjeet has deposed that on the fateful night at about 3 a.m. wife of Ranjeet suddenly came along with her two children and started weeping, her blouse was stained with blood, she told that goondas are assaulting her husband and she requested to save her husband as they will kill her husband whereupon he proceeded towards the house of Dukalu, where he saw that some persons were assaulting Ravi with hockey stick, sword & dagger (bhala). Appellant Punit, accused Dharmu & Neelkanth were also assaulting, then he hide himself, after some time, he came back at that time, Ravi, Ranjeet & Dukalu were in injured condition and they took Dukalu to hospital, but he died on the way.
25. Krishna alias Krishna Kumar (PW-3) has also corroborated the evidence of Nagi Bai (PW-1). He has deposed in his evidence that the accused persons including appellants Punit, Arjun, Phool Singh & Dinesh were assaulting Ranjeet.
26. Shanti Bai (PW-5) - wife of another deceased Dukalu and Kanta Bai (PW-7) - wife of another deceased Ravi have deposed in their evidence that the appellants and other accused assaulted Dukalu & Ravi in their house.
27. Parvati (PW-16) has deposed in her evidence that Dukalu made dying declaration before her that Girdhari, Nand Kishore, Dharmu, Punit, Vijay, Phool Singh, Arjun, Dinesh, Neelkanth, Daulu, Kondi Bai, Ganesri, Yashoda & others have assaulted him.
28. This case relates to commission of murder of Ranjeet. According to the case of the prosecution, Nagi Bai (PW-1) and Seema Bai (PW-19) have witnessed the incident, they were present in the house where Ranjeet was murdered and Seema Bai & Nagi Bai were injured. Both the persons have not told the name of appellant Kondi Bai, but they have told the names of appellants Punit, Arjun, Phool Singh & Dinesh. Other witnesses have admitted presence of appellant Kondi Bai at the time of causing injuries to Ravi & Dukalu in their house. The prosecution has cross-examined Nagi Bai (PW-1) & Seema Bai (PW-19) in detail and both the witnesses have specifically admitted in their evidence that the accused persons had assaulted them. Seema Bai (PW-19) has lodged the report, but her report does not reveal about chopping of hands & legs of Ranjeet, however, medical report reveals that hands & legs of Ranjeet were chopped. They are injured witnesses and grievous injuries were caused to Nagi Bai (PW-
1) who is aged about 60 years. The incident took place at 2-
2.30 a.m. at night. According to the case of the prosecution, total twenty accused were present with deadly weapons and they assaulted three persons in the house of Ranjeet. In these circumstances, detailed evidence with detailed description by any witness, particularly of the person whom the accused were assaulting, or whose son or husband was victim of the offence and was murdered mercilessly, would not be possible, but the witness would be in a position to state as to who were present, what weapon they were holding and substantially to whom they caused injuries. Evidence of both the witnesses (PW-1 & PW-19) are sufficient to establish the fact that appellants Arjun, Phool Singh, Dinesh & Punit were present along with other persons while they were causing injuries to Nagi Bai, Ranjeet & Seema Bai in the house of Ranjeet. They have not stated about the specific role played by these accused persons, but they have specifically stated their presence. Both the witnesses are relative witnesses and are having inimical terms with the appellants, but their evidence cannot be discarded only on the ground of their relation or on the ground of enmity.
29. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and others v. The State of Punjab10 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:-
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
30. While dealing with same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar11 has held thus, "..it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an "interested" witness. It is trite that the term "interested"
postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive."
31. While dealing with same question, the Apex Court in the matter of Hari v. State of Maharashtra12 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so, when deceased was murdered by his cousin (relative). Paras 21, 22 & 23 of the said judgment read thus, "21. It may be true that all the vital witnesses, namely, PW 1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses.
22. Certain decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned counsel for the appellant relied on a decision of this Court in Avtar Singh vs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In that case no report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at all noticed the facts. In the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution.
23. But in the instant case, the factual scenario is totally different. Here the occurrence took place within the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in Avtar Singh (supra) stands on a completely different footing."
32. In the matter of Mohabbat and Ors. v. State of M.P.13 the Apex Court has held that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus, "7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version.
Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible."
33. Statements of the relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution.
34. On close scrutiny of the evidence of Nagi Bai (PW-1) & Seema Bai (PW-19) in the light of law propounded by the Apex Court in the aforesaid cases, the evidence of Nagi Bai (PW-1) & Seema Bai (PW-19) are sufficient for drawing inference that appellants Arjun, Phool Singh, Dinesh & Punit were present in the house of Ranjeet at the time of commission of offence, they entered in the house of Ranjeet after jumping the wall of courtyard and they were armed with deadly weapons. However, the evidence of these witnesses are not sufficient for drawing inference that Kondi Bai was present in the house of Ranjeet with other accused persons and she came after jumping the wall of courtyard. As held by the Apex Court in the matter of Bhagga (supra), the prosecution does not satisfy the test relating to presence of appellant Kondi Bai and the role attributed to her.
35. No specific role attributed to appellants Arjun, Phool Singh, Dinesh & Punit has been proved by the prosecution and conviction of the aforesaid appellants is substantially based on the basis of formation of unlawful assembly having its common object of committing culpable homicide amounting to murder of Ranjeet and attempting to commit murder of Nagi Bai.
36. Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. Mere presence as a stranger, by passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence.
37. While dealing with the question of formation of unlawful assembly, the Apex Court in the matter of Chandra Bihari Gautam & Ors. v. State of Bihar14 has held that unlawful assembly may be constituted at any moment and even assembled of accused, but the existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. Para 6 of the said judgment reads as under:
"6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mere by-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred."
38. While dealing with same question, the Apex Court in the matter of Pandurang Chandrakant Mhatre v. State of Maharashtra15 has held that conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code.
39. While dealing with same question, the Apex Court in the matter of Masalti v. State of U.P.16 has held in para 17 as under:-
"17. ...What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."
40. While dealing with same question, the Apex Court in the matter of Sherey and others v. State of U.P.17 has held in para 4 as under:-
"4. ...But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom over acts are attributed..."
41. While dealing with the question of need of overt act or active participation of member of unlawful assembly, the Apex Court in the matter of Lalji (supra) has held that once formation of unlawful assembly is established, then no overt act or active participation of any member of unlawful assembly is required and mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act is sufficient to constitute offence. Paras 8 and 9 of the said judgment read as under:-
"8. Section 149 IPC 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 the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in Section 141 IPC, an assembly of five or more persons is designated an "Unlawful Assembly", if the common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth", and "Fifth" of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge."
42. While dealing with the question of intention/common object of unlawful assembly, the Apex Court in Dan Singh's case (supra) has held that intent of members of assaulting party can be gathered from number and nature of injuries and arms used by them. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 of the said judgment read as under:-
"30. From the aforesaid facts, as found by the High Court, let us examine whether there existed any unlawful assembly and what was its common object. It is possible that there was no unlawful assembly in existence at the time when the "doli" was stopped.
Nevertheless as per the evidence of all the eyewitnesses, a large number of villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141 IPC an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P. {(1989) 1 SCC 437 : 1989 SCC (Cri) 211} "that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has been envisaged in the explanation to Section 141 IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eyewitnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks and stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object.
31. It was sought to be contended that there is nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were fourteen corpses. It is only those members of the marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, is that there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent."
43. While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Apex Court in the matter of Gangadhar (supra) has held that evidence relating to common object generally not available and same has to be gathered from the act committed and result therefrom. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment read as under:-
"22. Another plea which was emphasized relates to the question whether Section 149 IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object"? It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly.
23. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object"
of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot eo instanti.
24. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731 : 1956 Cri LJ 1365.)"
44. In the light of law as propounded by the Apex Court in the aforesaid cases, for constitution of unlawful assembly, five or more than five members are required, their common objects must be for commission of the offence as envisaged in Section 141 of the Indian Penal Code. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assembly and if result of such act is once proved that the unlawful assembly has been constituted, any overt act or active participation of any member of unlawful assembly is not necessary. All members would be liable for commission of offence or for the act committed by any member of unlawful assembly in accordance with Section 149 of the Indian Penal Code.
45. In the light of the law propounded in the aforesaid authorities, we have examined the material for formation of unlawful assembly by the appellants, especially by Kondi Bai.
Evidence adduced on behalf of the prosecution relating to presence of appellant Kondi Bai is doubtful, but the witnesses have specifically deposed relating to presence of other appellants namely, Arjun, Punit, Phool Singh & Dinesh along with 15-20 other persons who have committed murder of Ranjeet and attempted to commit murder of Nagi Bai, they were members of the unlawful assembly and they came along with other accused persons at about 2.30 at night by jumping the wall and after breaking the door, they committed the aforesaid offence. It was not normal time, presence of the appellants on the place of incident was not natural. It is difficult to hold that at about 2.30 a.m. at night the appellants could move around the house of Ranjeet without any reasonable cause. They have not gathered on the spot to see the incident after hearing the cry or they were not present to save Ranjeet & other persons. Gathering at night at about 2.30 a.m. with deadly arms after jumping the wall in the house of Ranjeet itself is sufficient for drawing inference that all the appellants have formed unlawful assembly, their common object was to commit culpable homicide amounting to murder of Ranjeet & attempt to commit murder of Shanti Bai, and thereby they have committed the aforesaid offence.
46. In these circumstances, the prosecution was not required to prove specific role attributed to each of the appellants, part played by each of them, or the overt act of the appellants at the time of commission of such offence.
Commission of murder and attempt to commit murder by any member or other members of the unlawful assembly are sufficient for making these appellants liable for commission of such offence with the aid of Section 149 of the I.P.C.
47. In the matter of Sambhaji (supra), the Apex Court has held that acquittal of accused is proper in absence of reliable evidence of constitution of unlawful assembly. In the present case, evidence adduced on behalf of the prosecution is sufficient to establish constitution of unlawful assembly. Therefore, the case of Sambhaji (supra) is distinguishable on facts to that of the present case.
48. As held by the Apex Court in the matter of Fagu (supra), role of three accused was not incriminating, but in the present case, the prosecution has established formation of unlawful assembly in which the appellants were members. The case of Fagu (supra) is also distinguishable on facts to that of the present case.
49. In the matter of Bhagga (supra), on the ground of material discrepancy relating to presence of accused and role attributed to him, the Apex Court has reversed the conviction of such accused. But in the present, the prosecution has proved active presence of the appellants. Therefore, the case of Bhagga (supra) is also distinguishable on facts to that of the present case. However, in the present case, the prosecution has not proved the presence of appellant Kondi Bai on the spot.
50. In the matter of Boya (supra), the Apex Court has held that in absence of names of accused persons along with the accused who have assaulted the deceased and in absence of evidence relating to the role attributed to such accused persons, conviction was not found sustainable. But in the present case, the prosecution has proved presence of appellants Arjun, Punit, Phool Singh & Dinesh at odd hours i.e. 2.30 a.m. (at night) inside the house of the deceased and has proved their active presence and formation of unlawful assembly. Therefore, the case of Boya (supra) is also distinguishable on facts to that of the present case.
51. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted the appellants under Sections 148, 302 read with Section 149, 307 read with Section 149 & 460 of the I.P.C., but has not considered and has not examined minutely the evidence relating to presence of appellant Kondi Bai in the house of Ranjeet (since deceased) at the time of commission of the offence. Finding relating to other accused persons/appellants is based on credible & clinching evidence sustainable under the law, but finding relating to appellant Kondi Bai is not based on credible & clinching evidence sustainable under the law. Although in S.T.No.424/2003 the witnesses have categorically deposed the presence of Kondi Bai in the house of Ravi (since deceased) & Dukalu (since deceased) at the time of commission of offence and their murder, but both the houses viz., houses of Ranjeet & Ravi are situated distinctly and as per the prosecution evidence after commission of offence in the house of Ranjeet the accused persons have committed offence in the house of Ravi, but both the houses are distinct and separate. Therefore, the evidence relating to presence of accused persons or role attributed to them in one case is not relevant in another case.
52. Consequently, for the foregoing reasons, (1) Cr.A.No.35/2006 filed on behalf of Kondi Bai alias Unnari is allowed. Conviction & sentences of appellant Kondi Bai under Sections 148, 302 read with Section 149, 307 read with Section 149 & 460 of the I.P.C. are hereby set aside and she is acquitted of the said charges. She be set at liberty at once, if not required in any other case.
(2) Cr.A.No.129/2006 filed on behalf of Arjun & Punit and Cr.A. No.162/2006 filed on behalf of Phool Singh & Dinesh are dismissed.
JUDGE