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3. In the trial, the prosecution examined several witnesses, including the injured eye-witnesses Rajinder Pal Singh as PW-5 and Gurnam Singh as PW- 6; the medical officer Dr. Subhash Singla, who had initially examined the injured persons and had prepared the injury reports, as PW-1; and Dr. Jasbir Singh, who had conducted post-mortem on the dead body of Dalip Singh, as PW-7.

3.1. The eye-witnesses, Rajinder Pal Singh and Gurnam Singh, PW-5 and PW-6 respectively, gave the ocular account of the entire incident. PW-5 Rajinder Pal Singh categorically stated that the assault commenced when the appellant Manjit Singh instigated the other accused persons to attack the complainant and his companions. This witness provided a detailed description of participation and involvement of each of the accused in conformity with the version occurring in the FIR. His testimony was corroborated on all the material particulars by PW-6 Gurnam Singh. As noticed, the testimony of the informant Beant Singh remained incomplete due to his demise. 3.2. The appellant Manjit Singh, while denying the allegations in his statement under Section 313 CrPC, gave a purportedly detailed account that the complainants were annoyed with Prem Kumar, Narain Datt and himself for the reason that they had given evidence in the case of rape and murder of a co-village girl KK*4, where the offence was allegedly committed by the relatives of the complainant and the injured witnesses. We shall refer to the relevant part of the statement made by the appellant Manjit Singh under Section 313 CrPC hereafter a little later.

6. Assailing the judgment and order aforesaid, affirming their conviction and upholding the sentence as awarded, the appellants have preferred the present appeals.

6.1. Learned counsel for the appellant Manjit Singh has strenuously argued that so far this appellant is concerned, it is amply established in evidence that he was not present at the scene of the incident in question; and has particularly referred to the statement of DW-9 to submit that on the date of incident, the appellant Manjit Singh was present before the said witness at 11.30 a.m. at village Dhaner, that was about 25 kms from the Barnala Court Complex and hence, his presence at the scene of crime at 11.15 a.m. is totally ruled out. Learned counsel has contended that the Trial Court as also the High Court have rejected the plea of alibi without assigning cogent reasons and the same has resulted in serious miscarriage of justice. The learned counsel has argued that the High Court has failed to appreciate the fact that there existed previous enmity between the family of the deceased and the appellant herein because of which, he has been implicated in the said case. In this regard, learned counsel has particularly referred to the fact that PW-5 Rajinder Singh is the brother of Jagraj, who was involved in the aforesaid rape and murder case, that was keenly pursued by the appellant Manjit Singh. The learned counsel has yet further argued that there has not been any evidence as regards common object of the accused persons; no independent witness has been examined; and then, no weapon of offence was recovered at the instance of the appellant. Therefore, according to the learned counsel, conviction of the appellant is not justified. The learned counsel has referred to the decisions in Sikandar Singh & Ors. v. State of Bihar: (2010) 7 SCC 477 and Subal Ghorai v. State of West Bengal: (2013) 4 SCC 607. 6.2. Learned counsel for appellant Sukhwinder Singh has submitted that there are material contradictions in the medical evidence as also the ocular version and in any case, the essential ingredients of Section 141 IPC, for formation of an unlawful assembly are not established and, therefore, the conviction of the appellant under Section 302 with the aid of Section 149 IPC is not justified. According to the learned counsel, the only accusation against this appellant is that he had caused simple injury on the little finger of the deceased Dalip Singh and had used the handle of the kirpan to cause injury to PW-5 Rajinder Pal Singh and, on these accusations, the case against this appellant cannot travel beyond the offences of Sections 324 and 323 IPC for which, he has already undergone imprisonment for a period of over 4 years and 10 months. The learned counsel has referred to the decision in Govind Singh v. State of Chattisgarh: (2019) 7 SCALE 20.

“38. As regards Prem Kumar and Narain Datt, who were empty handed, they have been given the role of having caught hold of the deceased. If It can be held that they were members of the unlawful assembly, even if no overt-act is proved against them, they will be liable for the murder. However, we are of the view that in absence of tangible evidence, they ought to be given benefit of doubt.” 9.1. Though the aforesaid accused persons Prem Kumar and Narain Datt were acquitted with benefit of doubt and their acquittal has not been challenged but then, this fact, by itself, will not have any mitigating effect on the prosecution case against the other five accused persons, including the appellants. It remains trite that acquittal of co-accused per se is not sufficient to result in acquittal of the other accused. Even if the material evidence against all the accused persons is the same, acquittal of some of them does not lead to a corollary that the other accused also need to be acquitted [vide Yanob Sheikh alias Gagu v. State of West Bengal: (2013) 6 SCC 428 and Dalbir Singh v. State of Haryana: (2008) 11 SCC 425]. If after taking the evidence as a whole, the case in relation to the acquitted accused could be segregated from that against the other, such other accused could nevertheless be convicted. Noticeable it is that even as regards the said accused Prem Kumar and Narain Datt, the High Court has not recorded a clean acquittal but has only extended them the benefit of doubt, for no overt act of assault having been assigned to them and they being not armed with any weapon. Even if the involvement of Prem Kumar and Narain Datt is considered doubtful in view of the uncertain role assigned to them, it cannot be said that entire substratum of the prosecution case is lost, or even whittled down.

14.6. The facts of the present case, as established by the prosecution, makes it clear that on the relevant date i.e., 03.03.2001 and at the relevant time i.e., 11.15 a.m., at least five of the accused persons, including the present appellants were present at the Barnala Court Complex. The members of the complainant party purportedly came to the very same Court Complex to attend the hearing of the aforesaid rape and murder case of the village girl in which, their kiths and relatives were the accused persons and the case was being pursued by the appellant Manjit Singh. It is also established that when the persons related with the complainant party were about to board their vehicle, the accused persons attacked them with weapons. Significantly, the attack on the complainant party was triggered with exhortation by the appellant Manjit Singh to avenge the rape and murder of the village girl in the expressions “Aj Eh Bach Ke Naa Jaan KK* Da Badla Lai Kay Rahenge” 6. This clearly brings out the motive for the attack as also the object of the assembly. Moreover, the blows hurled by the accused persons on the members of the complainant party had been of wide range, sufficient force and chosen aims. The appellant Manjit Singh himself had given two blows to the witness PW-5 on either of his hands. Labh Singh gave kirpan blow on the head of Beant Singh. The 6 That would translate nearly as: “Let them not escape today; KK* shall be avenged.” appellant Sukhwinder Singh aimed the first blow on Dalip Singh but hit the right hand of the victim. The appellant Sukhvinder Singh caused yet another injury to PW-6 Gurnam Singh by the handle of his kirpan. These were apart from the repeated blows by the accused Bakhtaur Singh on the head of the deceased Dalip Singh with his ghop and then three blows to PW-6 Gurnam Singh. That apart, Bakhtaur Singh also gave the blow of his kirpan on the left leg of Gurnam Singh. It is beyond the pale of doubt that the accused persons had acted in concert and the object had clearly been to ensure causalities amongst the members of the complainant party. On the applicable principles, we have no hesitation in concluding that the accused persons did constitute an unlawful assembly; did indulge in rioting in the Court Complex with deadly weapons; and did cause grievous bodily injuries to members of the complainant party. The deceased Dalip Singh was attacked rather repeatedly by the members of this unlawful assembly and he sustained grievous injury on the head that proved fatal. The background aspects as also the conduct of the accused persons at and during the incident leaves nothing to doubt that each of the member of this assembly remains liable for the offence committed by himself as also by every other member of the assembly.