Ramlal Baba Tigga and Others vs State of C.G.

R.L. Jhanwar, J.—Appellants stand convicted u/s 148, 302/149 of the I.P.C. and sentenced to R.I. for two years u/s 148 of the I.PC, life imprisonment with fine of Rs. 500/- each u/s 302/149 of the I.RC. and in default to undergo R.I. for 6 months each for commission of culpable homicide amounting to double murder of Chheetabai and Nanhibai. This apart, accused Ramlal and Dakhalsai were also convicted u/s 323 of the I.P.C. and sentenced to R.I, for three months. The judgment of conviction and order of sentenced was passed on 11.10.2004 by 2nd Additional Sessions Judge in Sessions Trial No. 52/2004.

As per the case of prosecution, on fateful day of 8.1.2004 at about 10.00 a.m. Galsai took his buffaloes for grazing towards field situated in front of his house, on way, Appellant Shivram met him and started quarrel on the ground of being permitted his buffaloes for grazing in the Pigeon Pea field belonged to Shivram. On hearing quarrelling voice of Shivram, his family members i.e. co-accused Sahdeo, Ramlal, Shivnath, Dakhalsai, Poulus, Kristopher, Jagannath, Karan, Tilak Pitambar and Shivcharan came: to the spot holding with stick, small axe, sword, a pellet bow and an axe and chased Galsai, who ran away and went inside his house and informed his brother Balsai about this. Thereafter, all the aforesaid persons reached to the open space of the house along with weapons, as mentioned above, and then they called them out loudly. Appellant Ramlal assaulted Balsai with stones. All the aforesaid persons encircled the house of Galsai upto 4.00 p.m. and at 4.00 p.m. Nanhibai, mother of Galsai, tried to intercept but the accused persons assaulted her with small axe from her rear side, seeing this, his wife Chheetabai also tried to intercept and she was also assaulted by them severely. Dakhalsai also assaulted Galsai with pellet bow. Due to severe assault made by the above persons, Nanhibai and Chhetabai died instantaneously. On the next day i.e. 9.1.2004 Galsai went to police station Dharamjaigarh and lodged Dehati Nalishi vide Ex.P.1. On the basis of which, F.I.R. was lodged vide Ex.P.39. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P.2 and Ex.P.3, inquest over the dead bodies of Nanhibai and Chheetabai was prepared vide Ex.P4 and Ex.P.5. Merg intimations were recorded vide Ex.P.45 and Ex.P.46. Spot map was prepared vide Ex.P.6. Cloths of the deceased persons were seized vide Ex.P.7. Bloodstained and plain soils were seized vide Ex.P.24 and Ex.P.25. Vide Ex.P.8 and Ex.P.27 to Ex.P.33, accused persons were taken into custody, they made disclosure statements and at the instance of Ramlal, lathi was recovered vide Ex.P.9, at the instance of Sahdeoram, small axe was recovered vide Ex.P.10, at the instance of Shivnath, axe was recovered vide Ex.P.11, at the instance of Poulusram, sword was recovered vide Ex.P.12, at: the instance of Shivram, stick was recovered vide Ex.P.13, at the instance of Dakhalsay, small axe and pellet bow were recovered vide Ex.P. 14, at the instance of Kristopher, small axe was recovered vide Ex.P. 15 and lastly at the instance of Appellant Laxmiprasad, lathi was recovered vide Ex.P.16. Blood stains were found to contain on all the weapons. Dead bodies of Nanhibai and Chhetabai were sent for autopsy to Civil Hospital, Dharamjaigarh vide Ex.P.34-A and Ex.P.35-A. Dr. Balram Savariya P.W.8 conducted autopsy vide Ex.P.34 and Ex.P.35 and found following injuries on the dead body of Nanhibai vide Ex.P.34.

Contusion with lacerated wound of 31/2 cm. x 11/2 cm. x bone deep over left side of face with the fracture of maxilla and orbital bones and under this wound blood clot was found obliquely in the area of brain. There was fracture of orbital bone along with meningies.

Lacerated wound of 61/2 cm. x 21/2 cm. x bone deep with fracture of left parietal bone. This wound was found on the scalp bone. Both the above injuries were ante-mortem in nature. Mode of death was coma, as a result of injuries on scalp, skull bones. Brain matter come out. Death was homicidal in nature.

Dr. Balram Savariya P.W.8 also conducted autopsy on the dead body of Chhetabai vide Ex.P.35 and found the following injuries:

Three incised wounds measuring 31/2 cm. x 1/2 cm. over front of neck. Blood clot was present in and around the wounds.

Contusion of 41/2 cm. x 31/2 cm. over back of neck. On dissection, 2nd, 3rd and 4th cervical vertebrae were found fractured.

Lacerated wound of 61/2 cm. x 1 cm. x bone deep with fracture of the skull bone. Brain material come out and blood clot was found in and around the neck.

Contusion was present near left angle of mandible with the fracture of mandibular bone.

All the above injuries were ante-mortem in nature. Mode of death was coma as a result of wounds on the scalp. Death was homicidal in nature.

Injured Balsai and Galsai were sent for medical examination. Dr. B.L. Bhagat P.W.9, after examination vide Ex.P.37 and P.38, found abrasion on right thumb on Balsai and abrasion on right side of the face on Galsai. Spot map was prepared vide Ex.P.43.

Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure, 1973 (for brevity ''the Code''). After completion of investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Dharamjaigarh, who in turn committed the case to the Court of Sessions, Raigarh. The learned Additional Sessions Judge, Raigarh has received the case on transfer for trial.

In order to prove the guilt of the accused/Appellants, prosecution has examined as many as 14 witnesses. The accused/Appellants were also examined u/s 313 of the Code in which they pleaded their innocence and false implication in the crime in question. The accused/Appellants also examined two defence witnesses namely Injorsai D.W.1 and Karamsai D.W.2.

After providing opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the Appellants as aforementioned.

We have heard learned Counsel for the parties. Perused the judgment impugned and record of the Court below.

During the pendency of appeal, Appellant No. 8 Laxmi Prasad alias Shiv Charan uraon has expired on 28.12.2009 during treatment at CIMS. Therefore, the appeal, in so far as it relates to Appellant Laxmi Prasad, is dismissed as abated on account of his death.

Learned Counsel for the Appellants argued that although this is the case of brutal murder of two persons but only on account of murder of three persons, liability cannot be fastened upon the Appellants on the moral ground without any credible and clinching evidence. In case of enmity and rivalry, the prosecution is under obligation to prove its case strictly beyond all shadow of doubt, especially on the ground that in case of enmity, rival groups in a tendency to implicate their opposite party. In the present case, the evidence adduced on behalf of the prosecution reveals that at the time of accident, Sahdev, Kristopher and Laxmi Prasad were not on the spot whereas according to the evidence of Galsai only Ramlal assaulted Chheta Bai with stick and Dakhalsai. Dakhalsai also assaulted Nanhibai with axe and also assaulted Galsai with pellet bow. Dakhalsai, Shivnath and Ramlal carried Chheta Bai and Nanhibai from Courtyard to Gali which clearly shows that only Dakhalsai, Shivnath and Ramlal were present on the spot but all the accused persons did not take part in the assault. Smt. Tulsi P.W.3, wife of Balsai, also did not state as to who made assault on whom. Balsai P.W.4 stated that Dakhalsai also assaulted Galsai whereas Ramlal assaulted him. Ramlal also assaulted Nanhibai with heavy stick and also assaulted Chheta Bai. Learned Counsel argued that Sahdev, Kristopher, Shivnath Pulus assaulted Chheta Bai which shows that there are contradictions in the statement of eye witnesses and eye witnesses have stated that there must be multiple injuries on the body of both the deceased persons. It was also argued by them that according to Dr. Balram Savariya, Nanhibai died due to injuries which were caused on her head so also Chheta Bai but the doctor could not find any multiple injuries on the body of both the deceased persons. Therefore, it cannot be said that all accused persons assaulted both the deceased persons. Learned Counsel for the Appellants further argued that memorandum and seizure were also not proved. Prosecution has failed to prove the common intention and when there was No. common intention, then all accused persons cannot be convicted u/s 302 read with Section 149 of the I.P.C. Learned Counsel also submitted that accused persons have not formed any unlawful assembly in particular place and have not formed common intention to commit murder of both ladies and in spur of moment the incident took place and only three accused persons, as stated above, assaulted the deceased persons. Therefore, the common intention does not arise and accused cannot be convicted. They placed reliance in the matter of Ramswaroop and Ors. v. State of M.P. 2006 (1) MPLJ 51, in which it was held by the Madhya Pradesh High Court that formation of unlawful assembly can be different objects of different members and they may not participate in the incident and may not incur any joint liability upon them. They have further relied on a decision rendered in the matter of State of U.P. v. Ramesh Chandra Verma 2003 (11) MPWN 105 (SC) in which it was held by the Supreme Court that in a case of sudden mutual fight there could be No. question of invoking the aid of Section 149 for the purpose of imposing constructive liability on the accused.

On the other hand, learned Counsel for the State, while opposing the arguments of the Appellants, argued that in the present case due to the trespass by the cattle in the field of accused persons, they have chased Galsai upto his house and surrounded the house of complainant party for long time. He further argued that when Nanhibai came out to ask as to why quarrel took place, then they assaulted Nanhibai, seeing this, when Chheta Bai wanted to intercept, they also assaulted her, this shows the grave common intention. The accused persons have not left house of the complainant party and lied in wait to finish the complainant party and that too all accused persons were holing deadly weapons i.e. sword, axe, small axe etc. This shows that evidence of the eye witnesses adduced by the prosecution is sufficient to convict them. F.I.R. was lodged promptly; weapons were seized on memorandum of the accused persons. The prosecution has proved its case beyond reasonable doubt. After appreciating the evidence adduced by the prosecution, the learned Court below has rightly convicted and sentenced the Appellants and thus calls for No. interference.

We have heard learned Counsel for the parties at length and perused the judgment impugned including record of the Court below.

In order to appreciate the arguments advanced by the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death of Nanhibai and Chheta Bai on account of fatal injuries found over their body has not substantially been disputed on behalf of the Appellant but on the other hand also established by the evidence of Dr. Balaram Savariya P.W.8 and autopsy reports Ex.P.34 and Ex.P.35 and death was homicidal in nature.

So far as presence and complicity of the present Appellants in crime in question, the conviction of the Appellants is substantially based on the eye witnesses P.W.2 Galsai, P.W.3 Smt. Tulsi and P.W.4 Balsai. P.W.2 Galsai, in his evidence, has deposed that on 8.1.2004 at 8.00 a.m. he took his cattle to jungle for grazing and when he was about to cross the field of pigeon pea belonged to the Appellants, one of the accused persons Shivram was found to turn away from pigeon pea two buffaloes treating them to be of this witness and asked him why did you allow your cattle to graze in my field whereupon this witness replied him that those bullocks which were grazing in your field are not of mine and asked him not hurling abuses. On this, accused persons Ramlal holding heavy wooden stick, Sahdev holding axe, Shivnath holding small axe, Paulus holding sword, Shivcharan holding heavy wooden rod, Kristopher holding stick, Jagannath, Karan, Tilak and Pitamber came to the spot. Seeing the accused persons he fled away from the spot to his house and when he reached his house he loudly called his brother Balsai. On hearing his cries, Balsai and Tulsi, brother and sister-in-law, came out and they took him to the courtyard. Thereafter, the accused persons also reached his house by chasing this witness and surrounded the house and they pelted stones towards them and seeing this they (Galsai, Balsai and Tulsi) went inside and stood at the door. It was further deposed by him that Dakhalsai, one of the accused persons, assaulted him with pellet bow and Balsai was assaulted by Ramlal by pelting stones on him. Thereafter, the accused persons surrounded the house by threatening to kill them. He has further deposed that accused persons lied in wait by encircling his house upto 4.00 p.m. and at that time his mother Nanhibai came out by asking the accused persons that why all your persons are quarrelling with us whereas bullocks belong to other persons were grazing in your pigeon pea field and why did you surround the house, whereupon Dakhalsai assaulted her back side with axe and seeing this, his wife Chheta Bai tried to save her mother-in-law Nanhibai but Ramlal assaulted her with heavy wooden stick on her head and brain and she was thrown out. Dakhalsai also assaulted his wife with axe over her neck. In this manner, Ramlal and Dakhalsai assaulted the victims (Nanhibai and Chheta Bai) and got them down to ground and other co-accused persons also beat Nanhibai and Chheta Bai and caused them to instantaneous death. Thereafter, the accused persons Ramlal and Sahdev did not keep mum and they carried Nanhibai from Courtyard to Gali whereas Dakhalsai and Shivnath carried Chheta Bai carried from Courtyard to Gali and then also they surrounded their house. Ramlal committed the murder of Nanhibai ant Dakhalsai committed the murder of Chheta Bai. The accused persons also lied in wait upto 8.00 p.m. before his house by making bonfire and showing towards them with torch light. They were also patrolling in front of his house. At last in the night at 9.00 p.m. his sister-in-law came out covering with blanket and then also they prevented this witness and Balsai to go to police station. However, this witness and Balsai somehow went to police station and at that time it was 11.00 p.m. in the night and they reached police station at midnight i.e. 1.00 - 2.00 a.m. and since the police station was closed, they had to take rest in the police station in the entire night and on the next day at 8.00 - 9.00 a.m. lodged report. In his cross-examination, he has deposed that this witness, Balsai and sister-in-law came out after covering petticoat and blanket. In his cross-examination, the defence has cross-examined this witness at length but nothing has been elicited from his version to discredit his evidence about the presence and involvement of the accused persons in the aforesaid heinous offence.

Smt. Tulsi P.W.3 and Balsai P.W.4 also corroborated the evidence of Galsai P.W.2 and they have also stated that all the accused persons assaulted them, Nanhibai and Chheta Bai and due to such assault, both the victims have died on the spot. On bare perusal of evidence of above eye witnesses i.e. P.W.2 Galsai, P.W.3 Smt. Tulsi and P.W.4 Balsai, it can safely inferred that arising out of petty cause of grazing of bullocks by P.W.2 Galsai in the pigeon pea field, a quarrel ensued between the accused persons and P.W.2 Galsai; all the accused persons armed with deadly weapons i.e. sword, heavy wooden stick, pellet bow and axe etc. have chased Galsai upto his house; in sharing common intention they all lied in wait in front of house of complainant party to kill the complainant party; when Nanhibai came out of the house to ask the accused persons, then Dakhalsai assaulted and caused her death and to save Nanhibai, wife of Galsai, Chheta Bai was also assaulted by Ramlal and ultimately Dakhalsai and Shivnath carried Nanhibai and Chheta Bai from courtyard to Gali and thereafter all the accused persons also beat the victims. This shows that the incident took place not in a spur of moment but all the accused persons have after forming unlawful assembly chased Galsai upto his house with deadly weapons. This also shows the grave intention of the accused persons to commit the murder of the complainant party. It can also be inferred from the above evidence that all the accused persons have lied in wait in front of the house of the complainant party and were patrolling upto 9.00 p.m. in the night. This shows that somehow the accused persons must achieve their goal in committing the murder of complainant party on a small cause and ultimately Nanhibai and Chheta Bai have become prey at the hands of the accused persons. Both Nanhibai and Chheta were helpless and hapless women and the accused persons have assaulted such women, who were armless and helpless which would show that how the accused persons have brutally and viciously committed the murder of helpless and armless two women, after forming unlawful assembly and in sharing common intention.

Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. Mere presence as a stranger, by-passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence.

While dealing with the question of formation of unlawful assembly, the Apex Court in the matter of Chandra Bihari Gautam and Ors. v. State of Bihar JT 2002 (4) 62, has held that unlawful assembly may be constituted at any moment and even assembled of accused, but the existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. Para 6 of the said judgment reads as under:

It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further establish that they were not mere by-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred.

While dealing with the same question, the Apex Court in the matter of Pandurang Chandrakant Mhatre and Others Vs. State of Maharashtra, , has held that conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code.

While dealing with the same question, the Apex Court in the matter of Masalti Vs. State of U.P., , has held in para 17 as under:

17...What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 Indian Penal Code. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.

While dealing with the same question, the Apex Court in the matter of Sherey and others Vs. State of U.P., , has held in para 4 as under:

4...But when there is a general allegation against a large number of persons the court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom over acts are attributed.

While dealing with the question of need of overt act or active participation of member of unlawful assembly, the Apex Court in the matter of Lalji and Others Vs. State of U.P., , has held that once formation of unlawful assembly is established, then No. overt act or active participation of any member of unlawful assembly is required and mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act is sufficient to constitute offence, Paras 8 and 9 of the said judgment reads as under:

Section 149 Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty, of that offence. As has been defined in Section 141 Indian Penal Code, an assembly of five or more persons is designated an "Unlawful Assembly", if the common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth", and "Fifth" of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to he likely to be committed. Not, every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 Indian Penal Code. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.

Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability u/s 149. It must be noted that the basis of the constructive guilt u/s 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

While dealing with the question of intention/common object of unlawful assembly, the Apex Court in the matter of State of U.P. Vs. Dan Singh and others, , has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 of the said judgment reads as under:

From the aforesaid facts, as found by the High Court, let us examine whether there existed any unlawful assembly and what was its common object. It is possible that there was No. unlawful assembly in existence at the time when the "doli" was stopped. Nevertheless as per the evidence of all the eyewitnesses, a large number of villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141 Indian Penal Code an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P. 2006 (1) MPLJ 51 "that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has been envisaged in the explanation to Section 141 Indian Penal Code. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eyewitnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks and stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object.

It was sought to be contended that there is nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were fourteen corpses. It is only those members of the marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, is that there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent.

While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Apex Court in the matter of Gangadhar Behera and Others Vs. State of Orissa, , has held that evidence relating to common object generally not available and same has to be gathered from the act committed and result therefrom. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment reads as under:

Another plea which was emphasized relates to the question whether Section 149 Indian Penal Code has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by No. means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object"? It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 Indian Penal Code may be different on different members of the same assembly.

"Common object" is different from a ''common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near tile scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot to instanti.

Section 149 Indian Penal Code consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, No. direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though No. hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. State of Mysore 25.)

In the light of law as propounded by the Apex Court in the aforesaid cases for constitution of unlawful assembly, five or more than five members are required their common objects must be for commission of the offence as envisages in Section 141 of the Indian Penal Code. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assembly and result of such act once it is proved that unlawful assembly has been constituted, then any overt act or active participation of any member of unlawful assembly is not necessary. All members would be liable for the commission of offence or the act committed by any member of unlawful assembly in accordance with Section 149 of the Indian Penal Code.

If we have examined the present case in the light of the aforesaid legal propositions, then it would be clear that all accused persons, after forming unlawful assembly came to the house of Galsai in the morning house, by chasing him, they were armed with deadly weapons, they have lied in wait upto 9.00 p.m. in the night to commit murder of members of complainant party and at last they have achieved their goal in committing murder of Nanhibai and Chheta Bai and also caused injuries to Galsai and Balsai and due to their patrolling upto night hours, complainant party had to cover themselves with blanket and petticoat and left the place to lodge a report against him. This shows how the accused persons terrified the complainant party in not lodging the report.

If we examine the evidence of Dr. Balram Savariya P.W.8, it is clear that the manner in which the accused persons caused fatal injuries on the bodies of Nanhibai and Chheta Bai and also caused injuries to Galsai and Balsai and due to fatal injuries both Nanhibai and Chheta Bai have died instantaneously which shows that how the accused persons were maintaining feeling of resentment against the complainant party and out of their resentment they have caused death of Nanhibai and Chheta Bai and also caused injuries to Galsai and Balsai in sharing common intention.

So far as lodging of F.I.R. on the next day of incident i.e. 9.1.2004 and sending it to J.M.F.C. is concerned, P.W.10 S.R. Parihar has stated that on the basis of Dehati Nalishi Ex.P.1, he has recorded F.I.R. vide Ex.P.39. P.W.13 Dilip Xalxo has also stated that copy of F.I.R. was already sent to Judicial Magistrate First Class, Dharamjaigarh. This shows; that F.I.R. was lodged promptly and there was No. chance to fabricate the same and copy of the same was also sent to the concerned J.M.F.C.

As regards question of reliability of evidence of P.W.1 Pitambar and that of defence evidence, P.W.1 Pitamber though tried to state that Kristopher was not present at the time of incident as he went to his house to see his daughter, so also Laxmi Prasad was also not present, but this witness himself accepted that he has heard about the incident on the same day, which would mean that on the incident spot, he was not present and has remained a hearsay witness merely. Later on, this witness was declared hostile witness. D.W.1 Injorsai has stated in his evidence about the enmity between the Kristopher and Balsai & Galsai on account of residential house situated at Indira Awas. It appears that this witness tried to show enmity between the Kristopher and Balsai & Galsai. Due to enmity, if one can be falsely implicated and another can commit the murder. Enmity is just like a sword having a fine edge or point on two sides. D.W.2 Karam Sai also stated about the enmity. A perusal of their evidence, it is clear that they have not stated that who was present and who was not present, therefore, the evidence of P.W.1 Pitamber, D.W.1 Injorsai and D.W.2 Karamsai is rejected.

So far as memorandum of the Appellants and seizure of weapons are concerned, P.W.14 K.K. Sing has stated that at the instance of accused person Ramlal lathi was recovered vide Ex.P.9, at the instance of Sahdeoram, small axe was recovered vide Ex.P.10, at the instance of Shivnath, axe was recovered vide Ex.P.11, at the instance of Poulusram, sword was recovered vide Ex.P.12. at the instance of Shivram, stick was recovered vide Ex.P.13, at the instance of Dakhalsay, small axe and pellet bow were recovered vide Ex.P.14, at the instance of Kristopher, small axe was recovered vide Ex.P.15 and lastly at the instance of Appellant Laxmiprasad, lathi was recovered vide Ex.P.16. According to him, all the articles were seized from them vide Ex.P.17 to Ex.P.26. The evidence of this witness is also not contradicted. Evidence of this witness cannot be discarded in the light of decision rendered in the matter of Nathusingh Vs. The State of Madhya Pradesh, , The prosecution has also been able to prove the memorandum and seizure.

So far as conviction of the Appellants u/s 148 of the I.P.C. is concerned, as discussed above evidence, it is clear that all the accused persons gathered armed with deadly weapons and then with intent to kill family members of complainant party have chased Galsai upto his house. It is also clear that all the accused persons, after chasing Galsai to his house, surrounded the house for long time and lied in wait in front of house so that if any member comes out then they assault the complainant party simultaneously. This shows the common intention of the accused persons to commit the murder of Galsai and his family members.

So far as conviction of the Appellants u/s 323 of the I.PC. is concerned, according to evidence of Galsai, it is clear that accused person Dakhalsai assaulted him with pellet bow and Ramlal assaulted Balsai with stone. In cross-examination, he has also reiterated the same. Tulsi P.W.3 and Balsai P.W.2 has also supported the evidence of Galsai on this point. This apart, evidence of Dr. B.L. Bhagat P.W.9, who examined Galsai and Balsai and found injuries on the right thumb of Balsai and one on the right, cannot be discarded since he has proved the injuries on the body of Galsai and Balsai.

These aforesaid evidence is sufficient to establish the fact that all the Appellants have formed with common object of unlawful assembly and object of unlawful assembly was to commit culpable homicide amounting to murder of Nanhibai and Chheta Bai and cause injuries to Galsai and Balsai and in furtherance of common object of unlawful assembly, they or members of unlawful assembly have caused deaths of Nanhibai and Chheta Bai. Since all the Appellants are liable for committing murder of Nanhibai and Chheta Bai brutally, therefore, for such heinous offence, the accused persons have rightly been convicted u/s 302 of the I.P.C.

It is pertinent to mention here that eye witnesses P.W.2 Galsai, P.W.3 Smt. Tulsi and P.W.4 Balsai are close relatives of the deceased but their evidence cannot be discarded on the ground of relationship. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the same question, the Apex Court in the matter of. Hari v. State of Maharashtra AIR 2009 SCW 2250 23, has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses'' relatives of deceased, more so, when deceased was murdered by his cousin (relative). Paras 21, 22 & 23 of the said judgment read thus,

it may be true that all the vital witnesses, namely, PW 1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the Appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses.

Certain decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned Counsel for the Appellant relied on a decision of this Court in Dasari Peda Gondiyya Vs. Station House Officer, Jangreddygudem, . In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In that case No. report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at all noticed the facts. In the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution.

But in the instant case, the factual scenario is totally different. Here the occurrence took place within the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the decision of this Court in Avtar Singh (supra) stands on a completely different footing.

The evidence adduced on behalf of the prosecution is sufficient for drawing inference that were members of unlawful assembly having its common object to commit culpable homicide amounting to murder of Nanhibai and Chheta Bai and to cause injures to Galsai and Balsai, therefore, the present Appellants are liable for commission of the heinous offence committed by them by forming unlawful assembly in accordance with Section 149 of the Indian Penal Code.

So far as decision rendered in the matter of State of UP. v. Ramesh Chandra Verma 2003 (11) MPWN 105 (SC) (supra), in the said case one accused person raised alarm of saving him and assembled accused on such alarm cannot be said to have formed an unlawful assembly which shows that there was No. common intention. The Supreme Court held that No. common object can be presumed to be existing but in the case at hand it is clear that for small cause of grazing bullocks in their field, the accused persons gathered with deadly weapons and chased Galsai upto his house to commit such heinous offence. More over, the above case is appeal of State. The facts in the said case are different to the present case, and therefore, it is not applicable. In Ramswaroop and Ors. v. State of M.P) (supra), it was held by the High Court of Madhya Pradesh that there can be different objects of different members and all may not participate in the incident and may not incur any joint liability upon them. It was also held that the Appellants might have formed an unlawful assembly but it is clear that intention or object of all the members of unlawful assembly was not to kill or to commit the murder of the deceased, but, the intention and common object of the members of unlawful assembly was to beat and to teach a lesson for causing injuries to Appellant Badri. In the instant case, although the complainant party have not caused any injuries to accused persons, but the accused persons, for small and petty cause of grazing of bullocks in their field, have committed two murders of complainant party and that too the victims were helpless and armless. Therefore, being distinguishable on facts, the said case is also not applicable.

After appreciating the evidence available on record, learned Additional Sessions Judge, has arrived at a finding that all the Appellants had constituted unlawful assembly armed with deadly weapons having its common object and in furtherance of common object of unlawful assembly they have committed culpable homicide amounting to murder of Nanhibai and Chheta Bai and caused injury to Balsai and Galsai. The finding of the Court below is based on legal, clinching and credible evidence sustainable under the law. While arriving at such finding, the Court below has not committed any illegality and has rightly convicted the Appellants for the commission of the aforesaid offence. The Court below has also imposed adequate sentence prescribed under the law.

For the foregoing reasons, we do not find any illegality in the judgment impugned. The appeal being devoid of merit is liable to be dismissed and it is hereby dismissed.