Anrath Singh and Others vs State of Madhya Pradesh

G.D. Saxena, J.

(1). The aforesaid two appeals arise out of the impugned judgment and order of conviction and sentence dated 17th December, 2002 rendered in Sessions Trial No. 138/2000 by the Sixth Additional Sessions Judge (Fast Track), Bhind (M.P.). Since the judgment and order challenged in these two criminal appeals is one, they are herewith taken up together for disposal. By the impugned judgment assailed herein, the learned trial court convicted the appellants/accused of both appeals for being a member of unlawful assembly as in prosecution of the common object of that assembly they jointly or severally caused murder of Sheokaran Singh, which is an offence punishable u/s 302 /149 of I.P.C. and for offence of rioting with deadly weapons being a member of that unlawful assembly in causing murder of Sheokaran Singh which is an offence punishable u/s 148 of I.P.C. and sentenced each one of them to suffer life sentence with a fine of Rs. 1,000/- (Rs. One thousand only) and in default to serve one month''s rigorous imprisonment and for offence u/s 148 of I.P.C. sentenced each one of them to suffer two years'' rigorous imprisonment. Both sentences were directed to run concurrently. The undergone period of custody was ordered to be set off against the substantial sentence so imposed.

(2) It may be mentioned here that during the pendency of the Cri. Appeal No. 73/2003, appellant Hawaldar Singh died, hence, the appeal preferred by him stands dismissed being abated. Obviously, it shall now survive only for Janak Singh appellant herein.

(3) Facts in short for decision of these appeals are that on 1st December 1998 at about 7 a.m., Sheokaran Singh (since dead) alongwith his other family went to the field for collecting ripe maizes. After transporting maizes in two bullock carts, they were returning back to their houses. Sheokaran Singh was coming on foot carrying his bicycle in hand. When they reached the field of Ratiram, they saw all accused standing with their firearms at the field. Accused Gambhir Singh after restraining Sheokaran Singh fired by his 12 bore gun and caused injuries to him on mouth. Consequently, he fell down on earth. His wife tried to save him but accused Pappu son of Genda dragged her from body of Sheokaran Singh. Then, all accused jointly fired by their guns and caused gunshot injuries on the body of Sheokaran Singh and caused him dead on the spot. It is alleged that prior to the incident, there was a quarrel between the accused party and the complainant party for which a criminal case was pending in the criminal court. Accordingly, an F.I.R. (Ex. P/1) of the present incident was lodged by complainant Komal Singh (PW-5), elder brother of deceased Sheokaran Singh. Marg Report (Ex. P/2) was also lodged at Police Station Roan. Marg was inquired into and investigation was set in motion. The dead body of Sheokaran Singh was sent for postmortem. Postmortem was conducted by Dr. R.K. Rajoria (PW-11). Spot map and seizure memo of the articles recovered from the spot was prepared. Case diary statements of the eye-witnesses were recorded. Accused were arrested and on their information, their memorandums u/s 27 of the Evidence Act were reduced in writing. After investigation, the charge sheet dated 15th April 1999 against accused Vedram Singh, Anrath Singh, Gambhir Singh, Janak Singh and Pappu @ Ravindra Singh and supplementary charge sheet dated 15th April 2000 after arrest of accused Hawaldar Singh and Sukhram Singh were filed before the criminal court having jurisdiction. On committal, the sessions trial was commenced against all the accused. The trial Judge framed the charges for offence under sections 148, 302 or 302 read with section 149 of I.P.C. After recording the prosecution and defence evidence, the trial Judge convicted the accused and sentenced as mentioned above. The defence of the accused was that they have been falsely implicated. It is pleaded by them that the complainant occupied in an illegal manner their agricultural lands and shops in village Gorai, which were inherited to accused Janak Singh from his in-law''s side. Hence being aggrieved by the judgment of conviction and sentence, the accused/appellants preferred two separate appeals before this court.

(4) The contentions of the learned counsel appearing for the appellants in both the appeals are that judgment of the trial Judge is against law and facts on record, therefore, is not sustainable in law. It is contended that the prosecution utterly failed by adducing evidence to bring home guilt as charged against the convicted accused. It is submitted that the prosecution eyewitnesses were closely related to the deceased and had thus developed inimical relations with the accused and therefore looking to the strained relations between the complainant and accused party, the possibility of falsely implicating accused persons can not be denied. Apart from it, there was no independent witness examined to support the prosecution version and further there were material omissions and contradictions in court statements of the witnesses examined before the trial Judge which do not inspire much confidence. There was contradiction/omission in F.I.R. (Ex. P/1) and Marg Report (Ex. P/2) lodged at the same time by the complainant Komal Singh regarding the names of assailants. The ocular evidence so recorded is not consistent with medical evidence. On these above grounds, the judgment of conviction and sentence is sought to be set aside by acquitting the accused of the alleged offence.

(5) The learned Public Prosecutor appearing on behalf of the respondent/State opposed the prayer of the accused for acquitting the accused. It is contended that the prosecution had successfully proved the charges as framed against the accused by adducing cogent and reliable evidence. The complainant who was elder brother of the deceased had reported the incident and lodged F.I.R. against accused. It is true that almost all eye-witnesses are related to the deceased, but their evidence can not be discarded only on ground of their inter se relationship with deceased. On the other hand, their evidence is fully corroborated by the medical evidence in relation to the articles recovered from the spot. It is contended that true it is that there were minor contradictions and omissions in the court-statements and case diary statements of the witnesses but they do not affect the veracity of the ocular evidence. It is, thus, submitted that the trial Judge had rightly convicted the appellants. On the said premised submissions, the appeals of the accused is prayed to be dismissed by upholding the findings of conviction and sentence recorded by the trial court.

(6) Heard the learned counsel appearing for the convicted accused and the learned Public Prosecutor for respondent/State and also perused the record of the trial Judge with relevant law applicable to present appeals.

(7) The question for consideration in these appeals are whether the ingredients of offence of murder are proved by the testimonies of chance/eye-witnesses, medical evidence and recovery of weapons used in crime including the motive behind the incident and/or whether the learned trial Judge has committed any illegality in placing reliance on the said materials before reaching at the conclusion?

(8) Dr. R.K. Rajoria (PW-11) deposed that on 1st December 1998 he was posted as Medical Officer in Community Health Centre Lahar District Bhind. On that day, Ramprakash Singh Constable No. 30 of Police Station Roan at about 3 p.m., in noon, produced dead body of Sheokaran Singh, son of Judavan Singh, resident of village Gorai for postmortem. Dead-body of Sheokaran Singh was identified by the said constable as well as Mukesh Singh, nephew of deceased and uncle Janak Singh. On external examination of the dead body the doctor found following injuries on the person of the deceased:-

(i) Entrance wound 2 cm diameter situated over left side of back of thorax at T 11-12 level 4th left lateral to mid line, oval in shape, margins are inverted clot hovel in shape, clotted blood present inside and around the wound. A cotter of abrasion (dark ring) present around the wound. On opening the wound, found injury to subcutaneous tissue. Ribs fracturing inter-coastal muscles, left pleura, left lower lobe of lung, back of the wound directed towards upward, medially right side of thorax injuring media sternum and right lung, clotted blood present inside of the trunk.

(ii) Wound of exit 4 cm diameter, margins irregular averted situated over right side of thorax at mid axillary line, level of 8th rib, fracturing 8th rib, injury on pleura connecting with track of injury no. 1. Clotted blood present.

(iii) A wound of entrance size 4 cm diameter oval in shape placed transversely directed towards laterally upward, situated at medial aspect of thigh about 4" below to anterior superior iliac spine margins inverted and burnt and blackening present, a metal piece of 1 1/2 x 1 1/2 size present at the wound which has preserved. A blunt hole in the pent present at the size of injury. On opening the wound, found the injury to sub cut muscles and pelvic bone fracturing, clotted blood present inside the track directed to laterally.

(iv) Wound of exit of 3 cm. diameter situated at left gluteal organ but 4" below to lilac prominent (posterior) margins averted. On opening the wound injury found to mussels with pelvic bone, track connecting to the injury no. 3.

(v) Wound of entry size 4 cm diameter situated at mid axillary line of right side of flank at the level of umbilicus and wound was mussels deep on right side and margins inverted, blackening of margins and base of wound present directed towards downward to right iliac crest. Clothes were burnt at the side of wound, track of wound situated subcutaneously and directed towards downward to right gluteal region.

(vi) Wound of exit size of 5 cm diameter situated at the right gluteal region at the level of right posterior iliac crest, margins are averted. Track connecting to wound no. 5.

(vii) Wound of entrance size of 3 cm diameter situated at tragus of left external ear directed towards medially to right side of buceal cavity, margins averted and burnt and blackening present. Injury to external side of left ear fracturing mandible, left maxilla bone muscles, half of tongue was cut and bone of lower jaw was broken, clotted blood was present in the wound.

(viii) Wound of exit size 4" x 3" buceal cavity deep situated over right side of buceal cavity. Regular track of wound directed towards left side of buceal cavity damaging right mandible bone and its mussels coming to the track of injury no. 7. Clotted blood present, margins averted and irregular and lacerated.

(9) All injuries were ante-mortem in nature and were caused by firearm weapon. Time of death was within 4 to 24 hours since postmortem examination. Nature of death was homicidal. The doctor also opined that cause of death was coma and syncope which was as a result of excessive haemorrhage from the injuries caused by firearms weapon. Postmortem report is Ex. P/13, written and signed by him.

(10) To prove the guilt, the prosecution has examined Kalpana (PW-1) daughter of deceased, Somadevi (PW-2) wife of deceased, Mukesh Singh (PW-3), nephew of deceased, Smt. Kusumadevi (PW-4) elder sister-in-law (Bhabhi) of deceased, Komal Singh (PW-5), brother of deceased. It is not in dispute that all eye-witnesses were family members and related to the deceased. All witnesses stated that on the day of incident at about 7 a.m., they went to their agricultural fields, situated in village Gorai for collecting and carrying the crops of Maize (Jwar Ki Bhutiya) in two bullock carts. At around 9-30 a.m., on their return in two bullock carts, when they reached agricultural field of Pandit Ratiram, all accused who were present from before by hiding themselves in standing crops in the said field, came out and attacked with their firearms at the deceased. At first, accused Gambhir Singh fired by his 12 bore gun and caused injury on the mouth of Sheokaran Singh, thereafter, accused Hawaldar Singh fired by his Mauser gun which hit the body of Sheokaran Singh. Then all accused opened fire by their respective firearms which hit different parts of the body of Sheokaran Singh. Wife of Sheokaran Singh Smt. Somadevi (PW-2) tried to save her husband, who was lying in an injured condition on the ground, but accused Pappu Singh dragged her away from the body of her husband.

(11) Due to fear, all witnesses who were relatives of deceased by hiding themselves in nearby place watched the incident. It is stated that prior to the present incident, there were criminal cases registered against both the parties for causing injuries or quarrelling with each other, which were said to be either pending or decided by the criminal courts. In any way, these witnesses denied involvement of the complainant party in criminal cases as well as enmity with other persons of the village to substantiate the plea of the accused that the incident is caused by someone else other than accused and because of enmity with the accused, the complainant has falsely implicated the accused in the present crime. These witnesses also denied the defence of the accused Janak Singh and Hawaldar Singh in specific to the effect that they had inherited the agricultural lands and shops from their maternal side and complainant tried to grab the said properties. Somadevi (PW-2) wife of deceased admitted the presence of Arvind Advocate and two unknown persons at the place of incident. May be due to lengthy cross-examination of the prosecution witnesses, there were some omissions/contradictions in their court statements and there may be some little changes in their case diary statements in comparison to court statements, but that are not going to disturb the plinth of the case and makes the evidence of witnesses unreliable.

(12) B.K. Arya (PW-9) who was posted as Station House Officer in Police Station Roan deposed that on 1st December 1998, he wrote F.I.R. (Ex. P/1) on an oral report of Komal Singh (PW-5) and registered offence u/s 302 /149, 147 and 148 of I.P.C. against all accused at Crime No. 147/1998. He also admitted to have written Marg report (Ex. P/2) and registered a case No. 23/1998 thereon u/s 174 Cr.P.C. at the same time and date. He also sent a copy of the said F.I.R. to the concerned court. It also appears from record that immediately after reaching, the I.O. issued inquest notice (Ex. P/3) and thereafter prepared memo of dead body (Ex. P/4), spot map (Ex. P/5), memo of collecting simple and blood stained soil, memo of seizure of used cartridges and one bullet having blood stains in presence of complainant Komal Singh (PW-5), and other witnesses. He sent dead body of the deceased for postmortem by a memo (Ex. P/9). Case-diary statement of Komal Singh (PW-5) was recorded on 1st December 1998 and on 2nd December 1998, he recorded case-diary statements of witnesses Kalpana (PW-1) and Somasati (PW-2).

(13) Further investigation in this matter was conducted by Anar Singh Sikarwar (PW-10), SHO of Police Station Roan. He deposed that in the month of January 1999 he received the case-diary for further investigation. He recorded the case diary statements of witnesses Balwant Singh, Mukesh Singh and Kusuma devi on different dates and during investigation arrested on different dates accused Vedram, Anrudh Singh, Gambhir Singh, Janak Singh and Ravindra Singh @ Pappu vide arrest memos Ex. P/7 to Ex. P/12.

(14) Pravesh Singh (DW-1), who has been examined in defence by the accused, deposed that on the day of incident accused Gambhir Singh, Janak Singh and Hawaldar Singh were in their houses in village Rawatpura Sanhi, which is 15 k.m. away from village Gorai, the place of incident. He also stated that accused Janak Singh, Hawaldar Singh and Gambhir Singh usually visited village Gorai.

(15) The main contention raised on behalf of the appellants/accused is that there are material contradictions in F.I.R. (Ex. P/1) and Marg Report (Ex. P/2) lodged by Komal Singh (PW-5), brother of the deceased at the same time, which were recorded by witness B.K. Arya (PW-9). In Marg Report (Ex. P/2), the complainant Komal Singh (PW-5) reported that accused Gambhir Singh and Hawaldar Singh by firing gunshot killed his brother Sheokaran Singh. Surprisingly, at the same time he also lodged the F.I.R. (Ex. P/1) wherein he mentioned that accused Gambhir Singh all of a sudden restrained his brother Sheokaran Singh and fired by his 12 bore gun which hit mouth of Sheokaran Singh and when his brother fell down, all accused with their guns fired at his brother. Thus, the submission of the learned counsel is that the complainant has implicated other accused-appellants in the crime because of strained relations between the complainant and accused party and hence possibility of roping more accused persons in crime, can not be denied. In a case of Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., , dealing with similar type of argument, the Hon. Apex Court has observed as under:-

Shri R.K. Jain, learned senior counsel appearing for A-1 and A-3 has submitted that in the inquest report there was no mention of the names of the accused or the weapons used by them in commission of the crime and the nature of the injury sustained by the deceased had also not been described and there was a general recital that the death had occurred on account of injuries caused. Emphasis has also been laid on the fact that the time and date of lodging the FIR has been mentioned as "10 p.m. on 15-3-79", though the prosecution has come out with a case that the FIR had been lodged at "10 p.m. on 14-3-79". Learned counsel has thus submitted that these features show that the FIR had in fact not been lodged by the time the inquest was held and the same has been ante-timed. In our opinion the date of lodging the report has been wrongly written in the inquest report as "15-3-79 samai 10 baje raat (15-3-79 at 10 p.m.)". At the top of the inquest report, the crime number and the sections (Crime No. 193/79 u/s 147 /148 /149 /323 /302, IPC) have been mentioned. The time of commencement of the inquest is written as "7 a.m. on 15-3-79" and the time of conclusion of the inquest is written as "8.30 a.m. on 15-3-79". If the inquest had been concluded by 8.30 a.m. on 15-3-79, there was no occasion for writing the time of lodging of the FIR as "10 p.m. on 15-3-79" as the person preparing the inquest report could not have written anything about an event which was yet to take place. We have not the slightest doubt that the Investigating Officer holding the inquest mentioned the date of lodging of the FIR as "15-3-79" instead of "14-3-79" inadvertently or by mistake. That apart, it is important to note that during the course of cross-examination P.W. 7 Ram Shabad Singh, SI, who held the inquest on the body of the deceased in the hospital, his attention was not drawn to the aforesaid fact that the date and time of lodging of the FIR was mentioned as "10 p.m. on 15-3-79". If the said discrepancy had been pointed out to him, he could have given an explanation for the same. No argument on the basis of an alleged discrepancy, overwriting, omission or contradiction in the inquest report can be entertained unless the attention of the author thereof is drawn to the said fact and he is given an opportunity to explain when he is examined as a witness in Court.

The language of the aforesaid statutory provision is plain and simple and there is no ambiguity therein. An investigation u/s 174 is limited in scope and is confined to the ascertainment of the apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. It is for this limited purpose that persons acquainted with the facts of the case are summoned and examined u/s 175. The details of the overt acts are not necessary to be recorded in the inquest report. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who are the witnesses of the assault is foreign to the ambit and scope of proceedings u/s 174. Neither in practice nor in law it is necessary for the person holding the inquest to mention all these details. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness.

(16) Having gone through the afore-cited case, its bare perusal clearly enlightens that the object of the proceedings u/s 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased is assaulted or who has assaulted him or under what circumstances he is assaulted appears to be foreign to the ambit and scope of the proceedings under S. 174. Following the same proposition laid down in above judgment, we are of the view that if the names of other accused, description of weapons and name of witnesses and details of the incident are not mentioned in inquest report (Ex. P/2) and at the same time, F.I.R. was also lodged and on the basis of F.I.R. investigation was set in motion, in that situation it cannot be held that any omission or discrepancy in the inquest is fatal to the prosecution''s case.

(17) Another oral submission of the appellants is that if the spot map (Ex. P/5) was prepared just after the incident in presence of the informant and other eyewitnesses, then the presence of such witnesses ought to have been shown. It is further submitted that during investigation, the weapons of crime were not recovered. The other articles recovered from the spot on the day of incident and seized vide memo (Ex. P/6) including clothes of deceased and the part of the bullet found in wound during postmortem which were sealed and sent to concerned police station were not sent to the Forensic Science Laboratory for examination, which became fatal to the prosecution in proving the guilt against accused.

(18) In Monnet Ispat and Energy Ltd. Vs. Union of India (UOI) and Others, : the Hon. Apex court held as under:-

We must say that the investigation in this case was not up to the mark. For example, the investigating officer could have recorded the dying declaration of injured when they were alive and when the investigating officer allegedly reached the spot as per his own evidence. That was not done. We again fail to understand as to why the FSL report was not obtained and filed. The trial was started only after the arrest of the accused after 12 years. All this suggests that the investigation was conducted in a very casual and careless manner. Same is the story of the prosecution.

However, all these factors have not prejudiced the accused. Even with these factors, the prosecution has fully proved the heinous offence committed by him. This Court has time and again held that incompetent investigation should not result in the accused getting any unfair advantage. We reiterate the same principle.

(19) The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. In such cases, where there appears negligence on the part of the investigating agency or omissions, etc. which results in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence carefully to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. In the light of the aforesaid, after examining the evidence, we find that the irregularities committed in the investigation by the subsequent I.O. have too little relevance on the merits of the case. On the other hand, the evidence of the prosecution witnesses taken as a whole after giving due premium to the defence version inspires confidence.

(20) It is next contended that the investigation utterly failed to collect the independent evidence. All eye witnesses are related witnesses and perhaps an inimical relations with the accused.

(21) There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case.

(22) Truly the eye-witnesses in the present case are related witness but their presence on the spot at the time of incident can not be doubted. The versions of eye witness are well supported by the medical evidence. In Kuria and Another Vs. State of Rajasthan, , the Hon. Apex court held that:-

The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated.

In the light of these principles, it can safely be recorded that firstly all these witnesses were present at the place of occurrence and their statements are reliable. In the alternative, if we rely upon the statement of PW 15 (according to the accused, the sole eyewitness) whose statement, according to the accused, is unreliable, then this Court should have no hesitation in basing the conviction on the statement of PW 15, as the statement of that witness is trustworthy, reliable and is completely corroborated by other ocular and documentary evidence.

(23) Now, the crucial question to be determined in present case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects?.

(24) For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations.

(25) In this respect, on considering the ocular evidence of witnesses Kalpana (PW-1), Somadevi (PW-2), Mukesh (PW-3), Smt. Kusuma Devi, (PW-4) and Komal Singh (PW-5), we find that these witnesses have fully corroborated the prosecution story. They stated that on the day of incident at about 9 a.m. in morning when they including deceased Sheokaran Singh were returning back from their agricultural field after collection of harvested crops after putting in two bullock carts, on way, they saw all the accused who were present by hiding themselves in a standing crop. Then accused Gambhir Singh came out from the field and fired by his 12 bore gun and caused injury to the mouth of deceased. Second bullet was fired by accused Hawaldar Singh by his Mauser gun, thereafter other accused Vedram Singh, Anirudh Singh, Ravindra Singh, Pappu Singh and Sukhram Singh fired from their arms. The motive of the unlawful assembly revealed from ocular evidence was the revengeful attitude on the part of the accused party due to enmity developed for making assault on the grandfather and one Bablu, brother of complaint by the accused party for which there was pending criminal case against the accused party in a criminal court. There was a rift between the complainant party and accused party over the properties inherited by the accused from their in-law''s side in the same village. Apart from above, there is medical evidence of Dr. R.K. Rajoria (PW-11) who conducted autopsy on the dead body of Sheokaran Singh and found four gunshot through and through wounds on back, left thigh, right side of abdomen, and left side of mouth cavity. These injuries were bullet injuries and were dangerous to life. B.K. Arya (PW-9) I.O. seized one fired bullet from clothes of deceased, four paper seals of bullets, two fired cartridges of 12 bore gun on the spot. Thereafter, unfortunate part of the prosecution comes in play when witness Anar Singh Sikarwar (PW-10) received the case-diary for further investigation. He, after arrest of all accused, did not attempt to have seized the weapon from arrested accused. Thus, it is clearly appeared from the evidence on record that in the incident four fired shots by 12 bone guns by the accused present on the spot were fired which hit the deceased and took his life. As per ocular evidence, two shots were fired by accused Janak Singh and Hawaldar Singh and rest two shots in blind firing hit the deceased which were fired by rest of the accused who were present on the spot. Obviously, therefore, the act of all the accused was contemplated by all members of the unlawful assembly, hence, all members of the assembly can be held guilty for commission of murder of deceased.

(26) The principles controlling the application of provisions of Section 149 have been well settled by Hon. the Apex Court in The State of Karnataka Vs. Krishnappa, : wherein it has been held as under:-

It is now well-settled law that the provisions of Section 149 IPC will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 IPC creates 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. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. (Lalji v. State of U.P. 4, Allauddin Mian v. State of Bihar 5, Ranbir Yadav v. State of Bihar 6.).

The factum of causing injury or not causing injury would not be relevant, where the accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. (State of U.P. v. Kishan Chand 7 and Deo Narain v. State of U.P. 8).

(27) In the present case, as discussed above, the circumstances are such that we cannot find any error in the findings recorded by the trial court that the eye-witnesses were present at the respective places and had actually seen the occurrence. Their statements about gunfires are duly supported by the medical evidence, as well as by the statements of the Investigating Officers. Hence, the criticism against the eye-witnesses made by the learned counsel for the appellants is wholly unmerited when judged in correct perspective and in a dispassionate manner. As a matter of fact, the eye-witnesses account of the incident which, as we said, is consistent with the medical evidence.

(28) Thus, on careful scrutiny, the testimony of the eye-witnesses is found to be trustworthy which could not be castigated on any ground whatsoever. The eye-witnesses also appeared to be truthful witnesses when they said that they had only seen the accused persons at certain distance. They spoke only what they saw with their own eyes as otherwise as they could pose to be eye-witnesses of the incident. Nothing of the kind was done by them.

(29) Judging independently, on the basis of other evidence, not the slightest doubt is left on the evidence of eye-witnesses. Therefore, the situation boils down to this that neither the criticism against the eyewitnesses account nor against the other evidence is capable of being upheld. In view of the above discussion, our conclusion is that the prosecution in this case has established the guilt of the appellants to the hilt by clinching and satisfactory evidence rendered. The eye-witnesses account is also in perfect harmony with medical evidence. The accused were acting in concert with previous meeting of minds. The offence was committed with premeditation. The intention to cause death of deceased Sheokaran Singh was absolutely there. Therefore, the accused-appellants have been rightly convicted u/s 302 read with Section 149 of I.P.C. and again for offence punishable u/s 148 of I.P.C. All the two appeals, namely, criminal appeal Nos. 29/2003, and 73/2002 are without merit and are dismissed. Appellant Janak Singh of Cri. Appeal No. 73/2003 is on bail. He is directed to surrender before the trial court on 28th January, 2013 failing which the learned trial court shall cause him to be arrested and lodged in jail to serve out the sentence of rigorous imprisonment passed against him under the judgment by this court.