Bharat Soni vs State of C.G.

T.P. Sharma, J.—Since all the above criminal appeals are arising out of the same judgment of conviction and order of sentence dated 30-4-2003 passed by the Special Judge and Additional Sessions Judge, Ambikapur, in Sessions Trial No. 33/2001, they are being disposed of by this common judgment.

By these appeals the Appellants have challenged legality and propriety of the judgment of conviction and order of sentence dated 30-4-2003 passed by the Special Judge and Additional Sessions Judge, Ambikapur, in Sessions Trial No. 33/2001, whereby and whereunder learned Additional Sessions Judge after holding the Appellants guilty for commission of offence under Sections 147, 148 and 302 read with Section 149 of the I.P.C., sentenced each of them to undergo R.I. for one year and pay fine of Rs. 500/-, in default of payment of fine to further undergo R.I. for one month; to undergo R.I. for two years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo R.I. for two months and to undergo imprisonment for life and pay fine of Rs. 5,000/-, in default of payment of fine to further undergo R.I. for ten months, respectively.

Judgment of conviction and order of sentence is challenged on the ground that without any credible and clinching evidence relating to commission of offence, especially formation of unlawful assembly having its common object of causing homicidal death amounting to murder of Vinod Vishwakarma and specific role attributed to different Appellants, the Court below has convicted and sentenced the Appellants as aforementioned and thereby committed illegality.

Case of the prosecution, in brief, is that on 5-12-2000 at about 7.30 p.m. in Mayapur Ward, Ambikapur; Santosh Kumar Singh (P.W. 4) was standing in front or his house, accused Gopi along with accused Rami came to him, they were in drunken condition and quarrelled with Santosh Kumar Singh. Santosh Kumar Singh and Vinod Vishwakarma (since deceased) slapped accused Gopi on which Gopi and Rami threatened Santosh Kumar Singh and Vinod Vishwakarma that they will kill them and ran away. After some time, Santosh (P.W. 4) and deceased Vinod were standing in front of their house along with Amit Kashyap (P.W. 13), at about 8.40 p.m. accused Gopi, Ranu, Bharat, Dhruv, Jitendra, Sanjay and Rupesh came towards them. Gopi was holding Nepali kukhri, Ranu was holding knife, Jitendra was holding naanchak (weapon like hunter), Bharat was holding rod and Dhruv was holding belt. They attacked Santosh. Ranu assaulted Santosh with knife. Gopi and Ranu attacked Vinod with knife and inflicted injury over chest and waist. Dhruv assaulted Amit with belt and Bharat Soni with rod. Rupesh and Sanjay were directing all the accused to kill them, Jitendra was moving naanchak. Vinod fell down and Santosh cried for help (bachao bachao). Persons of the vicinity Sonu, Suraj, Prakash, Pankaj, Deepak etc. came on which the accused persons started running from the spot. They caught accused Dhruv and Bharat on the spot with the help of other witnesses. They took Vinod in the jeep of Rampravesh Pandey to the Police Station, Vinod was unconscious and they immediately took him to the hospital. Santosh (P.W. 4) lodged F.I.R. on 5-12-2000 at 8-55 p.m. within ten minutes of the incident vide Ex.P-4. The witnesses took Vinod to the hospital at 9 p.m. and during the course of treatment he died at 9.10 p.m. The doctor intimated the death of Vinod vide Ex.P-35 and on the basis of Ex.P-35, merg was recorded vide Ex.P-30. After summoning the witnesses vide Ex.P-32, inquest over the dead body of Vinod was prepared vide Ex.P-33. Amit was also sent for medical examination vide Ex.P-34A and he was examined by Dr. A.K. Bansal (P.W. 12) vide Ex.P-34 who found two abrasions of 1/2 cm. between ring and middle fingers of left hand. The dead body of Vinod was sent for autopsy to Govt. Hospital, Ambikapur vide Ex.P-25 and autopsy was conducted by Dr. S.K. Sinha (P.W. 7) vide Ex.P-26 and following injuries were found on the person of the deceased:

(i) Incised wounds over right index, middle and ring fingers of size 7.5 cms., 3 cms. x 0.5 cm.

(ii) Incised wound over abdominal wall 5cms. below umbilicus of size 2.5 cms. x 1 cm. horizontally placed piercing parallel to abdominal wall up to peritoneum. Its length was 10 cms.

(iii) Incised wound over left auxiliary line at the label of 11th rib of size 5 cms. x 2.5 cms. in the middle, obliquely placed.

(iv) 11th rib was cut at its lower border in the mid line, cutting the diaphragm, lower lobe of the left lung in 10 cms. length and 0.5 cm. deep reaching towards right side and cutting lower lobe of right lung ab. 2 cms. in length and 0.5 cm. deep; and

(v) Thorax is filled with blood. Cause of death was shock due to haemorrhage and injury over vital parts.

On 6-12-2000 accused Jitendra was taken into custody, he made disclosure statement of naanchak vide Ex.P-6 and at his instance one naanchak was recovered vide Ex.P-7. Accused Gopi also made disclosure statement of Nepali kukhri vide Ex.P-8 and the same was recovered from his house vide Ex.P-10. Blood stained sweater and one shoe of right leg was also recovered from accused Gopi vide Ex.P-9. On 8-12-2000 accused Ranu Verma made disclosure statement of dagger (gupti) vide Ex.P-11 and at his instance dagger was recovered vide Ex.P-12 from shrubs (jhadi). Dagger recovered from accused Ranu was examined by Dr. S.K. Sinha (P.W. 7) vide Ex.P-27. One jacket stained with blood was also recovered from accused Ranu vide Ex.P-13. Black belt was recovered from accused Dhruv vide Ex.P-14 and iron rod was recovered from accused Bharat Soni @ Mukesh vide Ex.P-15. Full shirt stained with blood was recovered from accused Jitendra Yadav vide Ex.P-16. Plain soil, bloodstained soil and one black shoe were recovered from the spot vide Ex.P-17. The accused persons were arrested vide arrest memos Exs.P-18 to P-24. Sealed clothes of the deceased were recovered vide Ex.P-38. Spot map was prepared by the Investigating Officer vide Ex.P-39. Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure and after completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Ambikapur, who in turn, committed the case to the Court of Sessions, Ambikapur from where the Special Judge and Additional Sessions Judge, Ambikapur, received the case on transfer for trial.

In order to prove the guilt of the accused persons/Appellants, the prosecution has examined as many as fifteen witnesses. The accused persons were examined u/s 313 of the Code of Criminal Procedure in which they denied the circumstances appearing against them and pleaded innocence and false implication. Accused Bharat Soni had examined Ramkeshwar Singh (D.W. 1) and Moti Kumar Soni @ Motu (D.W. 2) in his defence, who have deposed that Bharat Soni is resident of Mayapur near the place of incident. Accused Dhruv Kumar Ravi (D.W. 3) has examined himself in his defence and has deposed that on the fateful day after the incident, on hearing the sound he came out from the house, he is friend of accused persons Gopi, Ranu and others, therefore, he was caught by the persons of the vicinity.

After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the Appellants in the aforesaid manner.

We have heard learned Counsel for the parties, perused the judgment and record of the trial Court.

In Cr.A. No. 614/2003, Mr. N.K. Mehta, learned Counsel appearing on behalf of accused/Appellant Dhruv Kumar Ravi, vehemently argued that the Appellant has been convicted and sentenced with the aid of Section 149 of the I.P.C. for commission of the murder of Vinod. Though the name of Appellant Dhruv finds place in the F.I.R. lodged by Santosh (P.W. 4), the F.I.R. Ex.P-4 reveals that he came along with other accused persons, he was holding belt and assaulted injured Amit Kashyap with the belt. The present Appellant has not inflicted any injury to Vinod by any means. Amit Kashyap (P.W. 13), the injured witness, has admitted the presence of the present Appellant, but he has specifically deposed in para 3 of his evidence that at the time of interception he sustained abrasion over his little finger. Santosh (P.W. 4) has deposed about who has caused injury to whom and by which weapon, but he has not deposed that present Appellant Dhruv has caused injury to any person. In para 27 of his evidence he has deposed that Dhruv was holding dagger and in para 28 he has specifically deposed that Dhruv was not holding belt, but his belt was seized from his body. Mr. N.K. Mehta, learned Counsel for Dhruv Kumar Ravi, further argued that in absence of any evidence, Appellant Dhruv is not liable for conviction of any offence. Dhruv has examined himself as defence witness and he has specifically deposed that he was residing in Mayapur ward near the place of incident, after hearing the sound of quarrel he came out of his house on which he was caught by the persons of the vicinity and they took him to the Police Station on the ground that he is friend of co-accused Gopi, Ranu and others. In his cross-examination, he has denied the suggestion that he was holding belt and assaulted with belt. Mr. N.K. Mehta placed reliance in the matter of Amar Singh v. State of M.P. 1997 (1) MPWN (59) in which the High Court of Madhya Pradesh has held that mere presence of some of the accused on the spot and their running away after the incident cannot be said to be members of unlawful assembly.

In Cr.A. No. 574/2003, Mr. N.K. Mehta, learned Counsel appearing on behalf of accused/Appellant Bharat Soni, vehemently argued that the Appellant has been falsely implicated for commission of the murder of Vinod with the aid of Section 149 of the I.P.C., his name finds place in the F.I.R. Ex.P-4 lodged within ten minutes of the incident by Santosh Kumar Singh (P.W. 4) in which his presence is not disputed, but it has been specifically mentioned in the F.I.R. that present Appellant Bharat Soni was holding iron rod and assaulted injured Amit Kashyap (P.W. 13) with the iron rod. However, Santosh (P.W. 4) has deposed in his evidence that after the incident they shouted on which persons of the vicinity came and caught accused/Appellants Bharat and Dhruv and they took them to the Police Station. In paras 9, 10 and 11, he has denied the suggestion that present Appellant Bharat Soni has inflicted injury to Vinod by dagger, he has specifically admitted that Bharat Soni was not holding any danger. Mr. N.K. Mehta, learned Counsel for Bharat Soni, further argued that according to the F.I.R., Appellant Bharat Soni assaulted injured Amit (P.W. 13) with rod. Amit Kashyap (P.W. 13) has deposed in para 3 of his evidence that he has received injury on his little finger of right hand, one minor abrasion, during interception in the quarrel. He has further deposed in para 6 that he was not in a position to say as to whether accused Bharat was with the other accused or not. He has also admitted that he and Bharat were standing 5'' away form the place of occurrence and when Vinod sustained injury, he rushed towards Vinod, but Bharat was standing 5'' away from the place of occurrence. In para 7 he has admitted that Bharat was not holding any weapon. In para 8 of his cross-examination he has specifically deposed that Appellant Bharat Soni has not caused any injury to him. In para 19 he has deposed that firstly five persons came to the spot, thereafter, Appellant Bharat Soni and Sanjay Soni came to the spot. Mr. N.K. Mehta also argued that Bharat Soni reached to the spot after some time, he was not the member of the unlawful assembly, he has not caused any injury to any person and he has not acted in furtherance of common object of the unlawful assembly. Bharat Soni has examined Ramkeshwar Singh (D.W. 1) and Moti Kumar Soni @ Motu (D.W. 2) who have deposed that Bharat Soni is also resident of Mayapur where the offence was committed. Once, Santosh (P.W. 4) was beating one labour on which Bharat Soni intercepted, and Bharat Soni has been falsely implicated in the crime in question without any prima facie material. Mr. N.K. Mehta placed reliance in the matter of Dhanna, etc. v. State of Madhya Pradesh AIR 1996 S.C. 2478 in which the Apex Court has held that the prosecution witnesses are required to explain in their evidence the role played by accused when they gave statement to the police during investigation and the accused cannot be convicted for murder on the basis of improvement made at the trial. Learned Counsel further placed reliance in the matter of Bhimappa Chandappa Hosamani and Ors. v. State of Karnataka 2006 (10) SBR 13 in which the Apex Court has held that in absence of any statement u/s 161 of the Code of Criminal Procedure, the allegation against the accused in the Court statement after lapse of time, of causing injury or participation in the offence, is not safe to rely upon. In case of testimony of solitary eyewitness, quality of the evidence should be of sterling quality that the Court found it safe to base conviction.

In Cr.A. No. 577/2003, Mr. Arun Kochar, learned Counsel appearing on behalf of accused/Appellant Sanjay Soni, vehemently argued that the Appellant has been falsely implicated for commission of the murder of Vinod with the aid of Section 149 of the I.P.C. Mr. Arun Kochar, further argued that the name of Sanjay Soni finds place in the F.I.R. Ex.P-4 lodged within ten minutes of the incident by Santosh (P.W. 4) in which it has been mentioned that the present Appellant along with other accused persons came to the spot, other accused persons were assaulting, but accused/Appellants Rupesh and Sanjay were instigating them and directing them to kill (jaan se mardo salon ko). Learned Counsel further argued that Santosh (P.W. 4) has deposed in para 3 of his evidence that even Sanjay Soni did not come to the spot along with other accused, he came from other side, but he has deposed that Sanjay has caused injury to Vinod by dagger. He has also deposed in para 59 that he has informed the police in F.I.R. that Sanjay came from opposite direction and he is resident of the same vicinity. He has admitted in para 62 that Sanjay is friend of other accused persons. He has specifically deposed in para 63 that Sanjay was holding dagger and he has narrated this fact to the police at the time of lodging the F.I.R. But in para 64, he has denied the suggestion that Sanjay has not committed any offence, he has been falsely implicated on the ground that he is friend of other accused persons. He has repeated the same thing in para 66 and also deposed that Sanjay caused injury to Vinod over thigh with dagger, but this fact does not find place in the F.I.R. or his statement. This shows that Sanjay came from opposite direction when the accused persons reached to the spot, he was not holding any weapon, he has not caused injury to any person and only on the ground that he was present there, liability cannot be fastened upon him. Mr. Arun Kochar, learned Counsel for Sanjay Soni, placed reliance in the matter of Basisth Roy and Ors. v. State of Bihar AIR 2003 SCW 778 in which it has been held by the Apex Court that on the basis of omnibus statement other accused cannot be held to have shared common object of the two accused who are attributed specific overt act. Therefore, conviction of other accused u/s 300 of the I.P.C. with the aid of Section 149 of the I.P.C. is based on no material. Learned Counsel further placed reliance in the matter of Bhimrao alias Ramesh Pandhari Bhade and Ors. v. State of Maharashtra AIR 2003 SCW 842 in which the Apex Court has held that "Original common object of accused persons was to assault victim - Some of accused however, after entering house of victim developing different common object and causing grievous injuries to victim - Accused standing outside house of victim could not be knowing what transpired inside house - Act of those members of original unlawful assembly who entered house, cannot be attributed to member who stood outside - Members who did not share common object and stood outside were liable to be convicted u/s 352 read with 149 and not u/s 326 read with 149". Learned Counsel also placed reliance in the matter of Sukhbir Singh Vs. State of Haryana, in which the Apex Court has held that if before the commission of offence unlawful assembly exists, then each member of the unlawful assembly shall be vicariously liable for the main offence even in absence of his actual participation in commission thereof. Learned Counsel relied upon the matter of Bandi Mallaiah and Ors. v. State of Andhra Pradesh AIR 1980 S.C. 1160 in which the Apex Court has held that in case of murder trial, important omissions and contradictions are required to be considered. Learned Counsel further relied upon the matter of Suresh Chaudhary v. State of Bihar 2003 SCC (Cri) 801 in which the Apex Court has held that in case of murder trial omissions and contradictions are of vital importance. Learned Counsel also relied upon the matter of Davinder v. Ram Dutta and Anr., 1990 (Supp) SCC 614 in which the Apex Court has held that testimony of interested and chance witness should be examined with care. Discrepancy between the prosecution story and medical evidence regarding the nature of the injuries and the alleged weapon of attack cast a doubt on the testimony of the supposedly eye witnesses. Accused are entitled for benefit of doubt.

In Cr.A. No. 587/2003, Mr. A.K. Prasad, learned Counsel appearing on behalf of accused/Appellants Jitendra Kumar and Rupesh Kumar, vehemently argued that the Appellants have been falsely implicated for commission of the murder of Vinod with the aid of Section 149 of the I.P.C., their names find place in the F.I.R. Ex.P-4 in which it has been mentioned that Jitendra Kumar was holding naanchak, a weapon like hunter, and he was moving the same around on the air, but has not caused any injury by naanchak, and Rupesh Kumar has also not caused any injury to any person, but was instigating the other accused and directing them to kill. Mr. A.K. Prasad, learned Counsel for Jitendra Kumar and Rupesh Kumar, further argued that neither Santosh (P.W. 4) nor Amit (P.W. 13) have deposed anything against these Appellants (Jitendra Kumar and Rupesh Kumar), both the accused/Appellants have not caused any injury to Vinod or Amit, therefore, they are not liable for commission of any offence. Learned Counsel placed reliance in the matter of Ram Swaroop and Ors. v. State of Rajasthan AIR 2004 S.C. 2943 in which it has been held by the Apex Court that difference between F.I.R. and statement of the witness who has lodged the F.I.R. casts serious doubt upon the case of the prosecution.

In Cr.A. No. 783/2003, Mr. N.K. Mehta, learned Counsel appearing on behalf of accused/Appellant Gopi Kumar, vehemently argued that the Appellant has been falsely implicated for commission of the murder of Vinod with the aid of Section 149 of the I.P.C., his name finds place in the F.I.R. in which it has been mentioned that Gopi Kumar was holding Nepali kukhri, but Santosh (P.W. 4), who has lodged the F.I.R. Ex.P-4, has deposed in para 3 of his evidence that Bharat Soni and Gopi Kumar have caused fatal injury to Vinod and Sanjay Soni has also caused injury with knife. However, injured witness Amit Kashyap (P.W. 13) has not stated anything against Gopi Kumar. According to Amit (P.W. 13), Ranu Verma and Jitendra Kumar have caused injury with knife and dagger. The prosecution has adduced the evidence of Santosh (P.W. 4) and Amit (P.W. 13) as eyewitnesses, but their evidence is contradictory and not safe to rely upon for convicting the accused persons.

In Cr.A. No. 1022/2003, Mr. Abay Tiwari, learned Counsel appearing on behalf of accused/Appellant Ranu Verma, vehemently argued that the Appellant has been falsely implicated for commission of the murder of Vinod with the aid of Section 149 of the I.P.C. Santosh (P.W. 4) has lodged the F.I.R. Ex.P-4 in which it has been mentioned that just one hour before the incident deceased Vinod and Santosh slapped accused Gopi Kumar and Ranu Verma and provoked them for causing hurt. Ranu Verma has not caused any injury with intent to causing the death of deceased Vinod. The incident was the reaction of the first incident in which Ranu Verma was assaulted by the complainant party. Santosh (P.W. 4) has deposed that Appellant Ranu Verma has inflicted injury with knife on the back of deceased Vinod, but according to autopsy report Ex.P-26, no injury was found on back of the deceased and the deceased died as a result of injury over lungs, however, the prosecution has not explained as to who has caused fatal injury over lungs which is sufficient for causing the death of the deceased. Imtiyaz Ali (P.W. 6) has deposed in para 35 of his evidence that recovery of knife was from an open place accessible to all. Dr. S.K. Sinha (P.W. 7) has deposed in para 3 of his evidence that there were only three injuries over the body of the deceased, but according to the case of the prosecution all the accused have caused injuries and in that case, at least seven injuries were necessary but presence of three injuries along with internal corresponding injuries show that any of the accused has not caused repeated injury to the deceased. The incident took place in a spur of the moment under a sudden provocation provoked by the complainant party. Learned Counsel placed reliance in the matter of Rama Meru and another Vs. State of Gujarat, in which it has been held by the Apex Court that according to medical evidence although injuries were collectively sufficient to cause death, individually they were not likely to cause death. Common intention to murder was not established and conviction may be u/s 326 read with Section 34 of the I.P.C. Learned Counsel further placed reliance in the matter of Sunil Balkrishna Bhoir v. State of Maharashtra (2009) 3 SCC (Cri) 226 in which the Apex Court has held that if unlawful assembly was originally formed to assault the deceased and all of a sudden one accused caused stab wound to the deceased, then all the accused would not be liable for commission of homicidal death of the deceased amounting to murder in absence of common object of the assembly for causing death of the deceased.

Mr. N.K. Mehta, learned Counsel appearing on behalf of accused/ Appellants Bharat Soni, Gopi Kumar and Dhruw Kumar Ravi, further placed reliance in the matter of State of A.P. Vs. V.V. Panduranga Rao, in which the Apex Court has held that in case of lots of improvements in the evidence of substantial witness on material particulars, statement of the said witness is not safe to rely upon. Mr. N.K. Mehta also placed reliance in the matter of Radha Mohan Singh @ Lal Sahed and Ors. v. State of U.P. 2006 (2) SBR 93 if originally assembly is constituted for teaching lesion and subsequently fatal injury was caused, all the members are not liable for commission of murder on the basis of subsequent development of some accused. Mr. N.K. Mehta relied upon the matter of State of M.P. v. Adhar 1985 MPWN (466) in which the High Court of Madhya Pradesh has held that absence of even discussion with the co-accused, only presence of the accused is not sufficient to hold that he was member of unlawful assembly. Learned Counsel further relied upon the matter of Nagarjit Ahir, etc. v. State of Bihar AIR 2005 SCW 430 in which the Apex Court has held that person did not take part in the assault, then mere presence of the person does not make him liable for commission of any offence as a member of the unlawful assembly. Learned Counsel also relied upon the matter of Sarman and others Vs. State of Madhya Pradesh, in which the Apex Court has held that if simple injury is inflicted on non-vital part, it cannot be said that object of the accused was to kill the deceased and conviction u/s 302 read with Section 149 of the I.P.C. is not sustainable. Learned Counsel placed reliance in the matter of State of Rajasthan v. Rajendra Singh JT 1998 (5) SCC 193 in which the Apex Court has held that non-explanation of injuries found over the body of the accused is fatal to the prosecution and eyewitnesses suppressing the truth are not reliable.

On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the State/Respondent, vehemently argued that all the Appellants were present at the time of commission of the offence, they came to the spot with preparation and after forming unlawful assembly, they were armed with deadly weapons and they have not suddenly gathered, but they came with intent to kill Vinod and Santosh on the ground that just before one hour some incident took place in which Santosh and Vinod assaulted accused Gopi and Ranu. Mr. Ashish Shukla, learned State counsel, further argued that the Appellants came with deadly weapons viz., rod, naanchak, knife and dagger which show their grave intention of causing homicidal death amounting to murder. In case of commission of offence in furtherance of common object of the unlawful assembly, no specific part for commission of the offence by individual member is necessary, injury found over the body of the deceased was fatal and as a result of such injury the deceased died, causing injury by knife upon vital part itself shows their grave intention of causing injury with intent to commit murder. Evidence of Santosh (P.W. 4) and Amit (P.W. 13), injured witnesses, is sufficient for drawing inference that the accused persons have formed unlawful assembly and in furtherance of common object of the unlawful assembly they have caused fatal injuries to Vinod causing his death and simple injuries to Amit. In case of injuries caused by more than one person it is not possible for the witnesses to see that who has caused injury on which part of the body, but the witnesses may be in a position to explain that who has caused injury with which weapon and who are holding which kind of weapon. The prosecution witnesses have specifically supported the case of the prosecution. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the accused persons after constituting unlawful assembly for causing the murder of Vinod proceeded to the spot and in furtherance of common object of the unlawful assembly, they caused the murder of the deceased, therefore, each of the Appellants is liable for commission of the offence. The trial Court has rightly convicted and sentenced the Appellants as aforementioned. Learned State counsel placed reliance in the matter of Vithal Bhimashah Koli Vs. State of Maharashtra, in which it has been held by the Apex Court that common object of the unlawful assembly and waiting of accused persons at different places are material to decide whether they have constituted the unlawful assembly or not. Accused persons were lying in wait at different places, splitting themselves in smaller groups so that they may not attract attention. They joined together at the place of incident without much appreciable interval of time. They further attacked the deceased jointly and in succession. At one point of time they simultaneously attacked the deceased. Afterwards together they dragged dead body. This shows that they have constituted the unlawful assembly for committing the offence. Learned State counsel further placed reliance in the matter of Bhajan Singh and Others Vs. State of Uttar Pradesh, in which it has been held by the Apex Court that unlawful assembly armed with deadly weapons and knowledge that death would be caused by use of weapons are sufficient for drawing inference that the accused have constituted the unlawful assembly with common object of causing death of the person. Learned State counsel also placed reliance in the matter of Vikram and Ors. v. State of Maharashtra (2007) 12 SCC 332 in which the Apex Court has held that causing injury by eight persons, even opposed by the persons and continuing the assault till gathering of large number of people shows that the accused persons constituted unlawful assembly and acted in furtherance of common object of the unlawful assembly. Learned State counsel relied upon the matter of Yunis @ Kariya etc. Vs. State of Madhya Pradesh, in which the Apex Court has held that presence of accused as part of unlawful assembly is sufficient for conviction, no overt act is necessary. Learned State counsel further relied upon the matter of Bishna alias Bhiswadeb Mahato and Ors. v. State of West Bengal A1R 2006 S.C. 302 in which the Apex Court has held that pre-concert by way of meeting of persons of unlawful assembly as to common object is not necessary, if common object is adopted by all persons and shared by them, it would serve purpose. Learned State counsel also relied upon the matter of Dani Singh and Ors. v. State of Bihar AIR 2004 S.C. 4570 in which the Apex Court has held that no overt act is necessary in case of the act committed in furtherance of common object of the unlawful assembly. The plea that some of the accused persons did not commit any overt act would really of no consequence. They were not mere sightseers as claimed. There is nothing to show that they had dissuaded the persons from committing the criminal act or withdrew at any point of time during the course of the incident constituting by itself or as a step in furtherance of the ultimate offence.

In order to appreciate the contentions of the parties, we have examined the evidence available on record. In the present case, homicidal death of Vinod and simple injuries caused to Amit are not disputed by the defence. On the other hand, it is established from the evidence of Santosh Kumar Singh (P.W. 4), Amit Kashyap (P.W. 13), Dr. S.K. Sinha (P.W. 7) - who has conducted the autopsy, Ex.P-4 - the first information report and Ex.P-26 - the autopsy report. Dr. S.K. Sinha (P.W. 7) has deposed that he has examined the dead body of Vinod on 6-12-2000 and found injuries mentioned in para 4 of this judgment, the injuries were ante-mortem and the death was homicidal in nature. Evidence and documents are sufficient for drawing inference that Vinod died as a result of fatal injuries sustained by him and the death was homicidal in nature.

Case of the prosecution rests on the evidence of the eyewitnesses and disclosure of facts at the instance of the accused persons.

In order to establish the complicity of the accused persons in the crime in question, the prosecution has examined Santosh Kumar Singh (P.W. 4) as eyewitness and Amit Kashyap (P.W. 13) as injured eyewitness.

Santosh Kumar Singh (P.W. 4), who has lodged the report within ten minutes of the incident, has deposed that on the fateful day at about 8.30 p.m. he was moving near his house and talking with deceased Vinod and injured Amit, at that time, all the seven accused persons came to the spot, accused Sanjay came from opposite side, 3-4 accused persons abused Vinod and called him, and discussed for 1 -1 1/2 minutes, thereafter, Bharat took out the dagger and stabbed over his abdomen. Dhruv was holding dagger, Gopi was holding naanchak and Sanjay was also holding dagger. Sanjay assaulted Vinod with dagger on lower part of his thigh and Ranu caused stab injury over back of Vinod with a weapon like knife. After causing fatal injury to Vinod they also threatened him and went towards him (Santosh) on which he shouted for help whereupon people gathered from all sides and shouted ''pakdo pakdo''. Persons of the vicinity caught accused Bharat and Dhruv and they took Vinod to the Police Station where Santosh lodged the report Ex.P-4.

Amit Kashyap (P.W. 13), the injured witness, has also deposed in his evidence that when he was talking with Vinod and Santosh, all the accused persons came to the spot and started causing injury to Vinod, they were holding dagger, knife and other small knife. Ranu assaulted Vinod with knife and Jitendra assaulted with dagger. They shouted for help on which accused persons tried to escape from the spot. He also received injury during the course of intervention. Persons of the vicinity came.

Defence has cross-examined these witnesses at length. Santosh (P.W. 4) has deposed in para 8 of his evidence that at the time of lodging the report in hasty he has not explained the incident in detail, but afterwards he has explained the incident in detail. In para 9 he has deposed that he has stated in the first information report that Bharat caused stab injury over the abdomen of Vinod, but it did not find place in the F.I.R. He has admitted in para 22 of his evidence that Bharat resides in his ward. He has further deposed in his evidence that at the time of causing injury the accused persons were talking loudly with each other that they will kill Vinod, but this part of evidence does not find place in the F.I.R. Ex.P-4. He has admitted in para 62 that accused Sanjay is friend of other accused persons and in para 63 he has deposed that he had already told the police while lodging the F.I.R. Ex.P-4 that Sanjay was holding dagger, but same fact did not find place in the F.I.R.

Santosh (P.W. 4) is the person who has lodged the report of the incident within ten minutes vide Ex.P-4 in which names of all the Appellants have been mentioned. He has also stated the specific part played by different Appellants and use of weapons by different Appellants. The F.I.R. Ex.P-4 reveals that just before one hour of the incident Appellants Gopi and Ranu had quarrelled with Santosh and deceased Vinod, they misbehaved with them and deceased Vinod slapped Gopi on which Gopi and Ranu threatened them that they will kill them and went back. After one hour of the first incident, all the Appellants came to the spot where Santosh was standing along with deceased Vinod and Amit (P.W. 14.), the injured witness. Gopi was holding Nepali kukhri, Ranu was holding knife, Jitendra was holding naanchak, Bharat was holding rod and Dhruv was holding belt, but Sanjay and Rupesh were not holding any weapon. They attempted for causing injury and they caused injuries to Vinod as a result of which Viond fell down and ultimately died. The F.I.R. further reveals that Ranu tried to assault Santosh (P.W. 4) with knife. Gopi and Ranu assaulted Vmod with knife over his abdomen. Dhruv assaulted Amit with belt and Bharat with rod. Rupesh and Sanjay were saying to Kill them and Jitendra was moving the naanchak. However, in his statement before the Court, Santosh (P.W. 4) has specifically deposed that six accused persons came from one side and Sanjay came from other side. They abused and after 1-1 1/2 minutes of the altercation, Bharat caused injury to Vinod by dagger. Dhruv was holding dagger, Gopi was holding naanchak and Sanjay was holding gupti. Sanjay assaulted. Vinod with dagger over his thigh and Ranu inflicted injury over back portion of Vinod by a weapon like knife. According to the F.I.R., Gopi and Ranu have inflicted injuries over chest and abdomen of Vinod with knife, but according to the Court statement of Santosh (P.W. 4), Bharat, Gopi, Sanjay and Ranu inflicted injury to Vinod by dagger and knife. He has improved in his Court statement relating to Bharat and Sanjay. Persons of the vicinity caught Bharat and Dhruv on the spot while they were trying to flee from the spot.

Amit Kashyap (P.W. 13), injured eyewitness, has corroborated the evidence of Santosh (P.W. 4). According to his statement, initially the accused were beating Vinod by hands and fists, when they tried to intercept, accused Ranu took out knife and Jitendra took out dagger, Ranu and Jitendra attacked Vinod and inflicted injury with knife and dagger. In his detailed cross-examination Amit (P.W. 13) has admitted in para 6 that at the time of incident Bharat was standing behind other accused, but he has denied the suggestion that at the time of commencement of the incident Bharat told him to go from the spot (hat jao), however, he has deposed that at that time, he told Bharat ''tum jyada mat bano''. He has also admitted that at the time of incident Bharat was standing 5'' away from the place of incident and when he rushed towards Vinod after Vinod sustained knife injury, Bharat was standing at the same place. In para 7 he has admitted that Bharat was not holding any weapon. In para 8 he has further admitted that Bharat has not caused any injury to him.

The incident took place at 8.45 p.m. during the month of December, 2000 which was winter season and normally presence of persons at about 8.30 p.m. to 9 p.m. on the road is not normal during winter season. Amit (P.W. 13), who is an. Advocate by profession, has stated that he was coming from the office of his senior. This shows that after completing his work in the office, he was going to his house. Presence of all the accused persons on the spot is not disputed. Accused Bharat has adduced the defence evidence of Ramkeshwar Singh (D.W. 1) and Moti Kumar Soni @ Motu (D.W. 2) who have deposed that on the ground of some previous enmity, Bharat, who was resident of the same vicinity, has been falsely implicated. Accused Dhruv (D.W. 3) has examined himself in his defence and has deposed that after hearing the sound of quarrel he came out from his house and he was caught by the persons of the vicinity on the ground that he is friend of other accused persons.

Santosh (P.W. 4) has specifically deposed that all the accused came to the spot, six accused came from one side and accused Sanjay came from other side. The F.I.R. reveals that Sanjay and Rupesh were saying to other accused to kill. Evidence of Santosh (P.W. 4) and Amit (P.W. 13) reveal that at the time of incident all the accused came to the spot, some were holding iron rod, some were holding naanchak, some were holding knife/dagger and they caused injuries to Vinod and Amit. though Amit has deposed that during the course of interception he sustained one small abrasion, he is the injured witness and he has supported the case of the prosecution. His presence on the spot cannot be doubted. Evidence of Santosh (P.W. 4) and Amit (P.W. 13) further reveal that there are some omissions, contradictions and improvements in their evidence, F.I.R. and statements recorded u/s 161 of the Code of Criminal Procedure relating to holding of weapons by the accused, causing injuries to Vinod and Amit, but they have specifically deposed that the Appellants are the persons who were present at the time of incident, they came in a group, they were holding weapons which are admittedly deadly weapons and after some talk they caused fatal injuries to Vinod which were sufficient for causing his death and ultimately, Vinod died as a result of such injuries. Three dangerous injuries were found on the body of Vinod including corresponding internal injuries.

Evidence of the above witnesses also reveal that the deceased was not holding any weapon and he was standing near his house. This is not the case of sudden quarrel, but this is a case where the Appellants came with weapons in front of the house of the deceased where his presence was natural. In case of injuries caused by more than one person, by different weapons, it is not possible to see and explain as to who has caused injury by which weapon, who was holding knife and who was holding dagger, but the eyewitnesses may be in a position to narrate that who was holding specific kind of weapon. In the present case, both the witnesses Santosh (P.W. 4) and Amit (P.W. 13) have specifically deposed that Jitendra was holding naanchak which is a specific kind of weapon. Evidence of these witnesses reveal that the accused/Appellants are the persons who were present on the spot and caused fatal injuries to Vinod and as a result of such injuries Vinod ultimately died.

As regards the question of forming unlawful assembly by the Appellants with the object of causing murder of Vinod, F.I.R. Ex.P-4 reveals that just one hour before the incident some altercation/quarrel took place between Santosh (P.W. 4), deceased Vinod, accused/Appellants Gopi and Ranu in which Vinod slapped Gopi and Ranu on which they threatened Santosh and Vinod that they will kill them. Just after one hour all the Appellants came with dangerous weapons in front of the house of Vinod where Vinod, Santosh and Amit were standing and caused fatal injuries. This is not the case where on hearing the cries or on any other ground the Appellants came to the spot and without any pre-meditation sudden quarrel took place and they assaulted the deceased, but in the present case, all the Appellants came simultaneously and after some discussion with Vinod they assaulted him.

According to the case of the Appellants, all the Appellants were not having any knowledge that some of the Appellants will cause dangerous fatal injuries to the deceased, it may be the case that they formed the unlawful assembly to cause simple hurt or grievous hurt to the deceased to teach him a lesson. But the evidence adduced on behalf of the prosecution shows that all of a sudden some Appellants took out the dangerous weapons and caused fatal injuries to the deceased and as a result of such injuries, ultimately deceased Vinod died. In the circumstances, all the Appellants are not liable for causing the murder of Vinod as members of unlawful assembly constituted with the object of causing the murder of Vinod. Their act may fall under the category of causing simple or grievous hurt, for forming unlawful assembly with the object of causing simple or grievous hurt to Vinod. Therefore, at the worst, they may be liable for commission of the offence under Sections 325 read with Section 149 and 326 read with Section 149 of the I.P.C. but not u/s 302 read with Section 149 of the I.P.C.

In the matter of Vikram (2007) 12 SCC 332 (supra), the Apex Court has held that common object of the unlawful assembly is a question of fact and depends upon the facts and circumstances of each case.

In the matter of Sarman and others Vs. State of Madhya Pradesh, , the Apex Court has held that in case of simple injury on non-vital parts it cannot be said that the object of the accused was to kill the deceased. But in the present case, injuries were inflicted on vital parts of the deceased. The case of Sarman and others Vs. State of Madhya Pradesh, is distinguishable on facts to that of the present case.

In the matter of Nagarjit AIR 2005 SCW 430 (supra), the Apex Court has held that only on the basis of presence of person on the spot and absence of any overt act, conviction with the aid of Section 149 of the I.P.C. would not be possible. But in the present case, all the accused persons came to the spot simultaneously, some of the accused were holding deadly weapons and some accused assaulted the deceased on vital parts. This shows that none of the accused was simply present on the spot and they came in a company. The case of Nagarjit AIR 2005 SCW 430 (supra) is also distinguishable on facts to that of the present case.

In the matter of Radha 2006 (2) SBR 93 (supra), the accused persons went to the house of the deceased on Holi festival to teach him a lesson, they were armed with weapons and they started assaulting and one person died. The Apex Court held that common object of the assembly was not to commit murder, but to cause grievous injury. But in the present case, there was no such intention of teaching lesson. The F.I.R. reveals that two accused had already threatened the deceased that they will kill him. The case of Radha 2006 (2) SBR 93 (supra) is also distinguishable on facts to that of the present case.

In the matter of Sunil (2009) 3 SCC (Cri) 226 (supra), originally the accused assaulted the deceased with kicks and blows and one accused inflicted a single kinfe blow. The Apex Court has held that object of the unlawful assembly was originally to assault the deceased and all of a sudden, Accused 2 stabbed the deceased, therefore, all the accused persons were not liable for the offence of murder with the aid of Section 149 of the I.P.C. But in the present case, all the accused persons came after forming unlawful assembly with deadly weapons and caused three fatal injuries over vital parts of the body of the deceased resulting into his death. This is not the case where all of a sudden one person caused single blow of knife. The case of Sunil (2009) 3 SCC (Cri) 226 (supra) is also distinguishable on facts to that of the present case.

In the matter of Bhimrao AIR 2003 SCW 842 (supra), originally common object of the accused persons was to assault the victim, but some accused entered into the house of the victim developing different common object. The Apex Court held that the persons standing outside the house were not liable for commission of the offence as a result of different common object.

In the matter of Basisth AIR 2003 SCW 778 (supra), actual part was played by two persons. The Apex Court has held that on the basis of omnibus statement, other accused cannot be convicted for the commission of murder with the aid of Section 149 of the IPC. In the present case, the incident took place in only one part and all accused came to the spot together. The case of Basisth 2003 AIR SCW 778 (supra) is also distinguishable on facts to that of the present case.

In the matter of Sukhbir Singh Vs. State of Haryana, , the Apex Court has held that sharing of common object by members of unlawful assembly must pre-exist the occurrence. fit is so, then each member of the unlawful assembly shall be vicariously liable for the main offence even in absence of his actual participation in commission thereof.

In the matter of Yunis @ Kariya etc. Vs. State of Madhya Pradesh, , the Apex Court has held that presence of accused as part of unlawful assembly is sufficient for conviction. Fact that accused was a member of unlawful assembly and his presence at place of occurrence not been disputed. It is sufficient to hold him guilty even if no overt act is imputed to him.

In the present case, the Appellants have not gathered on the spot all of a sudden, but they came together on the spot with deadly weapons and repeatedly three fatal injuries over vital parts of the body of the deceased were inflicted and after causing injuries to deceased Vinod they also chased eyewitness Santosh (P.W. 4) and also caused injury to injured witness Amit (P.W. 13), when these witnesses shouted for help, persons of the vicinity gathered and tried to catch the Appellants, and they caught two Appellants namely, Dhruv and Bharat, however remaining accused persons fled away from the spot. This shows that the accused/ Appellants have shared the common object of the unlawful assembly and in furtherance of that common object, they caused the homicidal death of Vinod.

Evidence of Santosh (P.W. 4) and Amit (P.W. 13) and the F.I.R. reveal that after commission of the first part of the offence, all the Appellants came to the spot simultaneously, although Sanjay came from other direction, but he came to the spot simultaneously along with other accused. Some Appellants were holding deadly weapons like naanchak, knife, dagger and rod and they caused fatal injuries to Vinod.

In case of constitution of unlawful assembly, formal meeting or preparation is not necessary, constitution of assembly and its object may be inferred on the basis of weapons which the accused were holding, use of weapons, part of the body of the deceased where the injuries were inflicted, presence of persons on the spot, attempt for causing injury to other persons who were present on the spot or who tried for interception, and running of the accused persons from the place of incident, further gathering of people. These are all the relevant considerations for inferring common object of the unlawful assembly.

In the present case, all the Appellants came to the spot, some were holding dangerous weapons and some have caused injuries upon abdomen and chest of the deceased by sharp edged weapons as a result of which diaphragm and lungs were affected and cut injury was found over both the lungs. This shows the depth of the injuries and the manner in which the injuries were caused. In the present case, the Appellants have not come with a small stick and they have chosen the time i.e. about 8.45 p.m. during winter season. After causing fatal injuries to Vinod, the Appellants chased Santosh (P.W. 4) and Amit (P.W. 13) on which they shouted for help whereupon within one or two minutes, persons of the vicinity gathered. Santosh (P.W. 4) and Amit (P.W. 13) shouted to the gathering to catch the Appellants then persons of the vicinity caught Bharat and Dhruv on the spot and remaining accused tried to flee from the spot and they succeeded in escaping from the spot. This shows that the Appellants have not only caused injuries to Vinod, but they also tried to assault Santosh (P.W. 4) and Amit (P.W. 13), only when persons of the vicinity gathered and tried to catch them, they tried to escape from the spot. This shows their clear and grave intention of causing homicidal death of Vinod amounting to murder.

Taking into consideration the active presence of Appellants Bharat and Dhruv in the crime in question, it is difficult to hold that they simply came to the spot after hearing the sound of quarrel and they have not actually participated in the incident.

After appreciating the evidence available on record, the Special Judge and Additional Sessions Judge, Ambikapur, has convicted the Appellants u/s 302 read with Section 149 of the I.P.C. for causing the murder of Vinod as members of unlawful assembly having object of causing such murder and sentenced them in the aforesaid manner. The Special Judge and Additional Sessions Judge, Ambikapur, has also convicted and sentenced the Appellants under Sections 147 and 148 of the I.P.C, for forming unlawful assembly and holding deadly weapons. Conviction of the Appellants is based on the substantial evidence of Santosh (P.W. 4) and Amit (P.W. 13), and the promptly lodged F.I.R. Ex.P-4 which are sufficient for drawing inference that the Appellants have committed the aforesaid offence. Conviction and sentences imposed upon the Appellants are based on clinching and credible evidence sustainable under the law.

On close scrutiny of the evidence adduced on behalf of the prosecution, we are of the view that the Special Judge and Additional Sessions Judge, Ambikapur has not committed any illegality or infirmity in convicting and sentencing the Appellants as aforementioned.

For the foregoing reasons, we do not find any substance in the appeals. Cr.A. Nos. 574/2003, 577/2003, 587/2003, 614/2003, 783/2003 and 1022/2003 are, therefore, liable to be dismissed and they are hereby dismissed.