Smt.Takudi @APPELLANT@Hash State of Rajasthan

Sangeet Lodha,J.

These appeals are directed against judgment and order dated 2.7.14 passed by the Additional Session Judge No.2, Udaipur in Session Case

No.29/13, whereby the appellants Vakta s/o Dhanna Gameti, Mangla s/o Vaga Gameti, Dhula s/o Kanna Gameti, Kalu s/o Mangla Gameti, Smt.

Kamla w/o Mohanlal Gameti, Smt. Harku w/o Chatraji Gameti, Leela w/o Logar Gameti, Vardi w/o Dhula Gameti, Smt. Takudi w/o Vakta Gameti,

Prabhulal s/o Khima Gameti, Chokharam s/o Khima Gameti, Vajja s/o Chatra Gameti, Raju s/o Vaga Gameti, Smt. Sawali w/o Kalu @ Kalia Gameti,

Deva @ Devla s/o Khima Gameti, Smt. Jhamku w/o Raju Gameti, Smt. Champa w/o Takhta Gameti, Smt. Laxmi w/o Deva Gameti, Logar s/o Vakta

Gameti and Takhtaram s/o Mangla Gameti, have been convicted for offences under Section 148, 452, 323/149, 325/149, 302/149 IPC and sentenced

as under:

Section 148 IPC

Two years simple imprisonment with fine Rs.2,000/-; in default of payment of fine to further undergo two months imprisonment.

Section 452 IPC

Five years simple imprisonment with fine Rs.5,000/-; in default of payment of fine to further undergo five months imprisonment.

Section 323/149 IPC

One year simple imprisonment with fine Rs.1,000/-; in default of payment of fine to further undergo one month imprisonment.

Section 325/149 IPC

Five years simple imprisonment with fine Rs.5,000/-; in default of payment of fine to further undergo five months imprisonment.

Section 302/149 I.P.C.

Imprisonment for life and a fine of Rs.25,000/-; in default of payment of fine to further undergo two years’ simple imprisonment.

That apart, appellant Logar s/o Vakta Gameti and Takhta s/o Mangla Gameti have also been convicted for offence under Section 4/25 of the Arms

Act and sentenced to suffer two years simple imprisonment with fine Rs.2,000/-; in default to suffer two months further imprisonment.

All the sentences have been directed to run concurrently.

Briefly stated, the prosecution case is that Keshulal killed Mohan when he saw his wife in a compromising position with Mohan in his house, who is

undergoing sentence in jail. After the said incident, out of fear Naru’s family left the village and started living towards the village Madri and

Dodawali. On 29.6.09, at 6 P.M. when Naru s/o Partha, his wife Jhamku (PW 1), Nanji s/o Naru, Ganga w/o Nanji, Heera s/o Partha, Kalki w/o

Heera, Meera d/o Partha due to rainy season, came to Amba Ka Khadra for the purpose of cultivating crop. All of them sitting in verandah of their

house were engaged in conversation. After a short while out of the enmity generated by Mohan’s death, his family members, Vakta s/o Dhanna,

Logar s/o Vakta, Takudi w/o Vakta, Leela w/o Logar, Vajja s/o Chatra, Harku w/o Chatra, Kamla wd/o Mohan, Mangla s/o Vaga, Kalia s/o

Mangla, Taktha s/o Mangla, Champa w/o Takhta, Devla s/o Khima, Laxmi w/o Devla, Chokha s/o Khima, Jhamku w/o Raju, Prabhu s/o Khima,

Sawali w/o Kalia, Raju s/o Vaga, Dhula s/o Kanna, Vardi w/o Dhula, all armed with sword, axe, stick, iron rod and stone with common object entered

the house of Naru and started beating Naru, Nanji, Jhamku (PW 1), Heera (PW 2), Kalki (PW 6), Meera (PW 7) and Ganga (PW 8). When all

started running to save their life, Kamla gave blow with stick on Jhamku’s face, as a result of which, she suffered injuries on left eye and face and

fell down, however, the assailants continued to beat her. They also caught hold of Naru and Nanji while they were running away and started beating

them with axe, sword, iron rod, stick and stones, due to which both of them suffered serious injuries on the head and other parts of the body and

succumbed to the injuries on the spot. Heera, Kalki, Meera and Ganga also suffered injuries.

On the basis of Ex.P/1-oral statement of Jhamku (PW 1) narrating the incident occurred as aforesaid, the police registered an FIR (Ex.P/59)

against the appellants for offences under Section 147, 148, 452, 341, 302, 323/149 IPC and the investigation commenced.

During the investigation, the police drawn necessary memos. After inquest proceedings, the dead bodies of Naru and Nanji were subjected to

autopsy. The statements of witnesses were recorded under Section 161 Cr.P.C. The accused persons were arrested. On the basis of the information

furnished by the accused, the recoveries of the weapon of offences and other articles were made. The blood stained weapons and other articles

recovered were sent for examination to Forensic Science Laboratory (FSL) and report was obtained.

After completion of the investigation, the police filed charge sheet against the accused appellants except Logar and Takhta for offences under

Sections 148, 452,341, 302, 323, 149, 325 IPC, and against appellants Logar and Takhta for offences under Sections 148, 452,341, 302, 323, 149, 325

IPC and 4/25 of the Arms Act, before the Additional Chief Judicial Magistrate No.3, Udaipur, whereupon cognizance was taken and the matter was

committed to the Sessions Judge, Udaipur, which for trial in the first instance was transferred to the Court of Additional Sessions Judge, Fast Track

No.1, Udaipur and thereafter, to the court of Additional Sessions Judge No.2, Udaipur. The trial Judge framed the charges against the appellants

accused for offences under Sections 148, 341, 452, 323/149, 325/149 & 302/149 IPC. Against the accused Logar s/o Vakta Gameti and Takhta s/o

Mangla Gameti, additional charge for offence under Section 4/25 of the Arms Act was also framed. The accused appellants denied the charges and

claimed trial.

The prosecution in support of its case examined 28 witnesses PW-1 to PW-28 and produced the documentary evidence Ex.P/1 to Ex.P/111. The

Article 1 to 21 were also exhibited in evidence. The appellants accused were examined under Section 313 Cr.P.C. wherein they denied the

prosecution evidence and stated that they have been falsely implicated just to grab their house and agriculture field. No witness was examined in

defence, however, the defence got exhibited documentary evidence Ex.D/1 to D/3.

After due consideration of the evidence on record and rival submissions, the learned trial Judge arrived at the finding that the appellants accused

with common object inflicted injuries on the persons of Naru and Nanji and caused their death and also caused injuries to other injured while entering

into their house and the field and accordingly, convicted and sentenced the appellants accused as indicated above. Hence, these appeals.

Mr. Manoj Pareek, Amicus Curiae, appearing for the appellants Leela and Champa contended that the learned trial Judge has failed to examine the

evidence on record in its entirety, objectivity and in correct perspective. Learned counsel submitted that on account of enmity between the parties, all

the members of the family have been falsely implicated. It is submitted that the eye witnesses examined on behalf of the prosecution being closely

related to the deceased are interested witnesses and thus, the conviction based on their testimony is not sustainable in the eyes of law. There was no

evidence on record to establish that appellants Leela and Champa were members of unlawful assembly and thus, their conviction with the aid of

Section 149 IPC is absolutely unjustified. Drawing the attention of the Court to the deposition of the eye witnesses, learned counsel pointed out that

Heera (PW 2), Kalki (PW 6), Ganga (PW 8) have not named Champa. Learned counsel would submit that no specific overt act is assigned to the

accused Leela and Champa and no recoveries have been effected from them and thus, there is absolutely no evidence indicating their involvement in

the commission of crime. It is submitted that the place of occurrence was already known to the police and therefore, alleged verification of the place

of occurrence by the appellants is of no consequences. It is submitted that it is apparently a case of over implication and therefore, the appellants

Leela and Champa deserve to be acquitted.Â

Mr. Deepak Bora, Amicus Curiae, contended that the appellants Laxmi, Sawali and Jhamku have been falsely implicated in the case. There is no

overt act assigned to the appellants Laxmi, Sawali and Jhamku and thus, their false implication in commission of crime is apparent on the face of

record. Learned counsel would submit that bare perusal of the statements of eye witnesses, Jhamku (PW 1), Heera (PW 2), Kalki (PW 6), Smt.

Meera (PW 7) and Smt. Ganga (PW 8) do not substantiate the involvement of Laxmi in the commission of the crime. It is submitted that no recovery

has been effected from the appellants Laxmi & Sawali. The recovery of blood stained odhani at the instance of Smt. Jhamku is also not sufficient to

connect her with commission of the crime. Learned counsel submitted that the appellants Laxmi, Sawali and Jhamku have been convicted solely on

account of their presence at the place of occurrence and the verification of the same by them, which is not sustainable in the eyes of law. It is

submitted that verification of the place of occurrence which was already known to the police is of no evidentiary value.

Mr. Ranjeet Singh, learned counsel appearing for appellant Kamla contended that all the witnesses examined by the prosecution in support of its

case belong to one family inimical to the appellant Kamla and other co-accused persons and thus, they being highly interested witnesses, their

testimony cannot be relied upon. The contradictions in the deposition of the eye witnesses before the court indicate that as a matter of fact they were

not the eye witnesses of the incident and their testimony is wholly unreliable. It is contended that the learned trial Judge has convicted all the accused

for the offences with the aid of Section 149 whereas none of the prosecution witness in definite term could establish any role of the appellant in the

commission of crime. Learned counsel would submit that there is absolutely no evidence to show that the appellant was one of the members of

unlawful assembly. As per Ex.P/1-oral statement of Jhamku (PW 1) on the basis of which the police registered the FIR (Ex.P/59), accused Kamla

inflicted lathi blow on her face, whereas, at the instance of Kamla, the police has recovered blood stained axe. It is submitted that appellant has been

convicted on the basis of recovery of blood stained axe and blood stained odhani which is not significant inasmuch as, no specific role assigned to

the appellant is proved on the basis of any cogent evidence on record. Learned counsel submitted that as per deposition of Jhamku (PW 1) after death

of her husband, appellant Kamla used to reside at her paternal home and thus, her false implication in the case cannot be ruled out.

Mr. K.R.Bhati, Amicus Curiae, appearing on behalf of the appellants Smt. Takudi, Dhula, Harku, Chokha Ram, Vakta, Deva, Kalu, Prabhulal,

Mangla, Raju, Logar, Vajja, Takhta and Vardi contended that on account of existing animosity between the complainant party and the accused

persons, the members of entire family of accused persons have been falsely implicated in the case. It is submitted that the allegations of beating

levelled by the alleged eye witnesses are omnibus in nature and the injuries caused have not been assigned to the accused persons specifically.

Learned counsel submitted that as per deposition of Smt. Jhamku (PW 1) all the accused persons were armed with sword and axe whereas, as per

deposition of Heera (PW 2), all the accused persons were having axe and lathi in their hands. Jhamku

(PW 1) has deposed that the injury on her face was caused by sword whereas, as per injury report (Ex.P/51), no injury on the person of Jhamku was

found to be inflicted by sharp edged weapon. It is submitted that the injury caused to Jhamku is not assigned to any particular person. Drawing the

attention of the court to the deposition of eye witnesses, learned counsel pointed out that as per deposition of Heera (PW 2), Kamla and Vajja cut the

legs of Naru whereas, as per Kalki (PW 6), Vakta cut the legs of Naru. Kalki (PW 6) has deposed that in the first instance, Vakta attacked Naru and

when he fell down, he cut his legs whereas, as per Jhamku (PW 1), a stone thrown hit Naru, he fell down and thereafter, all the accused attacked

him. Drawing the attention of the court to the FSL Report (Ex.P/111), learned Amicus Curiae submitted that iron rods recovered from Vajja and

Chokha and sword recovered from Takhta were not found blood stained and thus, recovery of the weapons from them do not connect them with

the commission of the offences. Drawing the attention of the court to the cross examination of Heera (PW 2), learned Amicus Curiae submitted that

admittedly, Heera (PW 2), his wife Kalki (PW 6) and sister Meera (PW 7) at the time of occurrence of the incident they had hidden in Heera’s

house and thus, they cannot be accepted to be eye witnesses of the incident. Learned counsel submitted that the deposition of the eye witnesses

suffers from self contradiction and embellishments and thus, the appellants cannot be convicted on the basis of their testimony which cannot be

considered to be ‘wholly reliable’. Learned counsel submitted that the nature of injuries caused to the deceased Naru and Nanji, in no manner

indicate that the accused persons had intention to cause their death and thus, their conviction for offence under Section 302/149 is not sustainable in

the eyes of law. The Amicus Curiae submitted that on the basis of the evidence on record, apparently, it is a case of over implication and thus, at least

the accused persons to whom no overt act is assigned, deserve to be acquitted.

Mr. J.P.S. Choudhary, learned Public Prosecutor submitted that as per deposition of the eye witnesses, the accused persons armed with deadly

weapons assaulted the complainant party, which clearly indicates that the common object of unlawful assembly in the instant case was to cause death

of the members of family of the complainant party and thus, nothing turns on the question that no specific overt act is assigned to some of the accused

persons. Learned Public Prosecutor submitted that there exists no self contradiction or embellishments in the deposition of the eye witnesses on the

material points and thus, the minor discrepancies in the statements of the eye witnesses do not make their statements wholly unreliable. Learned

Public Prosecutor submitted that the injuries caused to the deceased and other injured persons stand corroborated by the medical evidence and thus,

the conviction of all the accused persons, the members of unlawful assembly, with the aid of Section 149 IPC cannot be faulted with. Learned Public

Prosecutor while drawing the attention of the court to the FSL Report (Ex.P/111), submitted that the weapons of the offences recovered at the

instance of the accused persons were found stained with blood of the Group ‘A’ and ‘AB’ i.e. the group of the blood of deceased Naru

and Nanji respectively and thus, the guilt of the accused appellants stands established beyond reasonable doubt.

We have considered the rival submissions and scanned the evidence on record thoroughly.

The autopsy of the bodies of deceased Naru and Nanji was conducted by the Medical Board consisting of Dr. Akhilesh Sharma and Dr. Anees

Ahmed (PW 20). As per the Postmortem Reports of Naru and Nanji, Ex.P/57 & Ex.P/58 respectively, following ante mortem injuries were found on

the body of the deceased Naru and Nanji:

Naru

There were cut fractured of shaft of right tibia and fibula at M/3 level in continuation with injury No.1.

There were cut fractured of shaft of left tibia and fibula at 2/3 level in continuation with injury No.2.

External injuries

Traumatic amputation of Rt. Leg at level of M/3, completely, margins of line of separation are clear cut. Blood clots present. Cut margin of both

tibia and fibula present- amputated legs present.

Traumatic amputation of Lt. Leg at level of 2/3, skin tag present on posteriorly, margin of line of separation are clean cut. Blood clots present, cut

ends of both tibia and fibula present. Blood clots present.

Incised wound 4x2 cms bone deep on left side, forehead. Blood clots present.

Incised wound 6 x 3 cm. Bone deep on right parito temporal region. Blood clots present.

Incised wound 4 x 2 cm. Bone deep right parito occipital region. Blood clots present.

Incised wound 6 x 2 cm. Bone deep left parito occipital region. Blood clots present.

Bruise with abrasion 6 x 4 cm. Left shoulder. Red.

Incised wound 3 x 2 cm. Muscle deep left arm 14/3 post. Blood clots present.

Bruise with abrasion 4x 3 cm left elbow. Red.

Bruise with abrasion 3 x 2 cm right elbow. Red.

Bruise with abrasion 4x 1 cm. Left arm 1/3. Red.

Incised wound 4x 2 cm muscle deep M/3 right forearm post. Blood clots present.

Bruise with abrasion 7 x 2 cm Rt. Scapular region. Red.

-All injuries from 1 to 13 are ante mortem in nature and fresh in duration at the time of death.

-Injuries no. 1 to 6 & 8, 12 are caused by sharp and heavy object while rest of injuries are caused by blunt object.

-Injuries no.1 to 6 are grievous in nature and dangerous to life.

-Rest of injuries are simple in nature.

The cause of death of Naru is opined to be shock due to ante mortem multiple head and both legs injuries, which were sufficient to cause death in

ordinary course of nature.

Nanji

There was a fracture of nasal bone.

There was a cut fracture M/3 Shaft of right humerus. Largeblood clots present.

External injuries

Incised wound 16x2 cm. Bone deep M/3 Rt. area Blood clots present.

Incised wound 6 x 2 cm Bone deep Left parito occipital region. Blood clots present.

Incised wound 4 x 2 cm. Bone deep left front …(illegible) region. Blood clots present.

Lacerated wound 4 x 2 cm. Bone deep on nose. Blood clots present.

Multiple abrasion 2 x 1 cm. To 10 x 2 cm. On chest and right side abdomen. Red.

-All above injuries are ante mortem in nature and fresh in duration at the time of death.

-Injuries no.1 to 3 are caused by sharp and heavy object while injury no. 4 to 5 are caused by blunt object. Injury no. 1 to 4 are grievous in nature

while injury no. 1 to 3 are dangerous to life. Injury no. 5 is simple in nature.

The cause of death of Nanji is opined to be shock resulted by ante mortem head and right arm injuries which were sufficient to cause death in

ordinary course of nature.

Dr. Anees Ahmed (PW 20) in his deposition while confirming the injuries found on the bodies of the deceased as also the causes of death, further

deposed that the injuries found fatal were caused by sharp edged weapon. In this view of the matter, the death of Naru and Nanji was concededly

homicidal in nature.

 15. Coming to the injuries caused to other members of

complainant party, as per injury reports of Ganga (PW 8), Jhamku (PW 1), Meera (PW 7), Heera (PW 2) and Kalki (PW 6), Ex.P/32, Ex.P/51,

Ex.P/54, Ex.P/55 and Ex.P/56 respectively, they suffered the injuries as under:

Ganga

C/o Pain & swelling-7 x 7 cm.- Left maxillary sinus & Mandibular region of jaw-1 old seas mark over left side of back â€" 1 x 1 cm.-O.R.-Blunt.

C/o Pain & swellingâ€" 5 x 5 cm.-Rt. hand ring finger- ablack til over abdomen-O.R.-Blunt.

Lacerated wound-3 x 1 cm. x upto scalp dup.- Scalp over Rt. Parietal region-Simple-Blunt.

Bruise-3 x 4 cm - Left foot dorsally near …(illegible)Simple-Blunt.

C/o Pain & Swelling- 5 cm. X 6 cm.-Left side of back-SimpleBlunt.

Jhamku

Lacerated wound left cheek 4x 0.5 cm. Muscle deep with  fresh clotted blood

Lacerated wound 3 x 0.5 x Muscle deep-fresh clotted bloodLeft knee-Simple Blunt.

0.5 M 2 x 2 Rt. Leg.

0.5 M 2X2 cm Left Leg Meera

Lacerated wound 2x 05 cm. Muscle deep left parito occipital region. Dark blood clots present-Simple-Blunt.

Abrasion 3 x 2 cm. Left leg Red. Soft seas Simple-Blunt.

 Heera

 1. Abrasion 2 x 2 cm. -Rt. Knee-Red. Soft seas-Simple-Blunt.

Kalki

Lacerated wound 2 x 0.2 cm muscle deep left parital frontal region. Blood clot present. Dark in colour. Simple-Blunt.

Abrasion 0.5 cm on ear. Rt. Eyebrow Red Soft seas.

Abrasion 2 x 2 cm. under left forearm post. Red Soft seas.

In the first instance, it would be appropriate to scrutinise the evidence of injured eye witnesses Jhamku (PW 1), Heera (PW 2), Kalki (PW 6),

Meera (PW 7) and Ganga (PW 8).

Jhamku (PW 1), the wife of deceased Naru, deposed that when she alongwith her sister in law Meera (PW 7) and Kalibai (PW 6), Ganga (PW 8)

and Nanu were sitting at their home, Devla, Vajja, Prabhu, Chokhla, Kalu, Taka, Mangla, Logaria, Vakta, Nathu in all 11 members came there. Vajja

was armed with sword and axe, Chokhla with axe and stick, Devla with sword and axe, Raju with axe and stick. Takia was armed with sword and

axe. They belaboured Naru and Nanji. She was also belaboured and suffered injury on her face. Amongst the ladies, Kamla caused injuries by sword

and axe. Harku was having sword and axe in her hands. Jhamku, Champa, Vardi and Sawali were also present. Leela pelted stone. Every accused

was having two weapons in their hand. She further deposed that all the accused were having sword and axe in their hands. Earlier they had no enmity

but Vakta’s son Mohan was murdered as he used to rape women and that was the cause of quarrel.

In cross examination, she accepted that Heera’s wife (KalkiPW 6), her sister in law Meera (PW 7) and Ganga (PW 8) were at the Heera’s

residence. Later, about Ganga (PW 8), she deposed that she was at her (Jhamku) residence. She deposed that on account of injury caused on her

face by sword, she fell unconscious. However, the injury caused has not been assigned by her to any accused specifically.

Heera (PW 2) deposed that he alongwith his brother Naru, Nanji, his sister in law (bhabhi) Jhamku (PW 1), sister Meera (PW 7), wife Kalki (PW

6) were sitting at their home. Smt. Ganga w/o Nanji was also there. At that time, Vakta, Logaria, Kamla, Leela, Vajia, Harku, Dhula, Vardhi, Raju,

Kalu, Sawali, Chokhla, Devla, Prabhu, Jhamku, Mangla and Takhtia came there. All of them were armed with axe and lathis, some were having

stones in their hands. As soon as they reached there, they started pelting stones. A stone hit Naru; fell down and thereafter, all of them attacked him.

Some of them inflicted injuries on him by lathis and some by axe. Devla and Chokhla inflicted injuries on the person of Nanji by axe and stone. Kamla

and Vajia cut the legs of Naru. Jhamku (PW 1) wife of Naru suffered injuries on face and she was also hit by stone. Ganga (PW 8) w/o Nanji and

Meera (PW 7) also suffered injuries. Nanji and Naru were killed.

In cross examination, he admitted that no incident of beating occurred with him. He accepted the suggestion that at the time of beating, they tried to

run away from the place of occurrence but they were surrounded by the accused persons and therefore, they could not run away. He deposed that

the factum of Kamla cutting the legs of Naru was disclosed by him to the police and he does not know why the same is not mentioned by the police in

his statement (Ex.D/2). He further deposed that at the time of quarrel, he, Jhamku (PW 1), Kalki (PW 6) and Meera (PW 7) had hidden in the

house and subsequently, they went near the dead bodies. Later, he deposed that he ran away from Naru’s house and had hidden in his own house.

Kalki (PW 6), the wife of Heera (PW 2), deposed that while she alongwith Jhamku (PW 1), Naru, Nanji and her husband Heera (PW 2) were

sitting at Naru’s house, in the first instance, Vakta and Vajia came there. Vakta thrown stones and cut Naru’s legs. Logar also pelted stones.

Kamla, Leela, Harka, Dhula, Vardi, Rajia, Kalia and Sawali were also there. As a result of beating, he, Naru and Nanji suffered injuries. They were

inflicted injuries by sword. Everybody was armed with axes, swords, stones and sticks. Her husband Heera (PW 2) also suffered injuries on the back.

She suffered injury on head by stone thrown by Vajia. Naru and Nanji were belaboured by Vakta. In the first instance, Vakta attacked Naru, he fell

down, then he cut his legs. Nanji was also belaboured by Vajia.

In cross examination, she accepted that when Nanji was being belaboured, she alongwith her husband (Heera-PW 2),sister in law Meera (PW7),

Ganga (PW 8) had hidden into her house together. She was belaboured by stick, stones and axe and was beaten to this extent that she fell

unconscious, her legs were also cut and she remained admitted in the hospital for 4-5 days.

Smt. Meera (PW 7) deposed that on fateful day around 6 P.M., while she alongwith Jhamku (PW 1), Heera (PW 2), Kali (PW 6), Nanji and

Naru, in all 7 members, were sitting at the house of Naru, then Vakta, Vajia, Kakuri, Leela, Harkhu, Dhulia, Vardi, Rajia, Kalu, Sawali, Chokhla,

Devla, Devla’s wife Laxmi, Ramesh, Takhatia, Champa, Mangalia etc. who were armed with swords, axes, iron rods and stones, came there and

attacked them. In the first instance, Vakta attacked Naru by sword and cut his legs. All the accused persons belaboured Nanji. She was also

belaboured and suffered injuries on the head. Heera and Kalki also suffered injuries. Naru’s wife suffered injuries on eye by axe. Naru and Nanji

died on account of being belaboured by the accused persons present in the court.Â

In cross examination, she accepted that she does not know as to who caused injuries to whom. On being asked, she stated that as the accused

persons surrounded them, she is not in position to point out as to who caused injuries to her. At the same time, she said that in the first instance, Kamla

and Vajia beat her, then everyone was beaten by stone.

Smt. Ganga (PW 8) deposed that on fateful day around 6 P.M. she alongwith Naru, Heera, her husband (deceased Nanji), Kalki (PW 6), Meera

(PW 7) and Jhamku (PW 1) were sitting at Naru’s house. At that time, Kamla, Vakta, Logar, Takuri, Vajia, Halku, Vardi, Dhula, Rajia, Kalu,

Sawali, Chokha, Prabhu, Leela, Jhamku w/o Chokha, Deva, Takhta and Takhta’s wife etc. came there. They were having stones in their hands.

Kamla was armed with axe, Logar with sword, Vakta with iron rod. They attacked them. Naru’s legs were cut. Then they attacked her husband

Nanji, his hands were cut and gave axe blow on his head. They all were belaboured and suffered injuries. Naru was belaboured by Kamla, Logar and

Chokha. Nanji was belaboured by Vajia, Chokha and Takhta. All other persons attacked on them together. She deposed to have suffered injuries on

head and hands.

In cross examination, she deposed that there was cross stone pelting and therefore, she cannot definitely say as to how Vakta suffered injuries. She

further deposed that so as to save themselves, they ran away from the place of occurrence and had hidden in the hills. She accepted that when she

was running away for hiding, she fell down and suffered injuries.

A perusal of deposition of eye witnesses reveal that accused persons in a group forming unlawful assembly, some armed with deadly weapons like

sword and axe and others sticks and rods, attacked on members of the prosecution party with an object to commit murder and cause injuries to one

and all who may come in their way. On account of the injuries caused in furtherance of the common object, two persons namely Nanji and Naru died

and others suffered injuries.

But then, undoubtedly, there exists some variance in the deposition of eye witness regarding the persons who are named as members of unlawful

assembly. Each witness has not named some of the accused specifically but deposed that the accused involved in commission of the crime were

present in the court. PW1Jhamku, injured eye witness, has not named accused Takudi, Dhula and Laxmi. PW 2-Heera has not named Takudi,

Champa and Laxmi but named Nathu, who was not prosecuted. PW6-Kalki has not named Takudi, Champa, Chokhla and Takhta. PW7-Smt. Meera

has not named Kamla, Jhamku, Prabhu, Logar and named Ramesh who was not prosecuted. PW8-Smt. Ganga has not named Mangla.

Coming to the overt act assigned by the eye witnesses to the accused persons specifically, PW2-Heera deposed that in the first instance, Vakta

inflicted injury on Naru by stone. PW6-Kalki also deposed that Vakta threw stones and cut Naru’s legs. She further deposed that Naru and Nanji

were belaboured by Vakta; in the first instance, Vakta attacked Naru, he fell down then he cut his legs. Similarly, PW7-Meera deposed that Vakta

attacked Naru by sword and cut his legs. PW8-Ganga deposed that Kamla was armed with axe, Logar with sword and Vakta with iron rod, all came

together and attacked them. Naru’s legs were cut. It is pertinent to note that at the instance of Vakta, blood stained axe was recovered vide

Ex.P/10. PW3-Hagiya one of the witness of recovery has admitted his thumb impression on the recovery memo Ex. P/10 and memo of site

verification recovery Ex.P/11, however, in cross examination denied the recovery having been made in his presence. Other witness of recovery

PW13-Poona turned hostile, however, he also admitted his signature on the recovery memo Ex.P/10 and memo of site verification of recovery

Ex.P/11. PW24-Vivek Singh, Investigating Officer, deposed that pursuant to the information of accused Vakta, Ex.P/91, axe was recovered vide

Ex.P/10 which was sent in the sealed packet marked as ‘L’ to Forensic Science Laboratory for examination. As per FSL report Ex.P/111,

the axe recovered at the instance of the accused Vakta marked as ‘L’ was found to be stained with blood of Group ‘A’ i.e. the blood

group of deceased Naru. That apart, as per injury report Ex.P/52, Vakta s/o Dhanna suffered simple injuries during the incident occurred. In this view

of the matter, it stands established that Vakta was involved in commission of the crime and he used the weapon axe in belabouring deceased Naru.

The involvement of the accused Logar in commission of the crime stands established by deposition of PW1-Jhamku, PW2Heera, PW6-Kalki,

PW8-Ganga. PW7-Meera has not specifically named Logar but she has deposed that Naru and Nanji died on account of their being belaboured by the

accused present in the court. There is nothing in deposition of PW7-Meera suggesting that Logar was not involved in commission of the crime. As per

deposition of Investigating Officer PW24-Vivek Singh, on the information of the accused Logar Ex.P/100, blood stained sword was recovered vide

Ex.P/35, which in sealed packet marked as ‘P’ was sent for examination to Forensic Science Laboratory. As per FSL report Ex.P/111, the

Article marked as ‘P’ was found stained with blood of ‘AB’ group i.e. the blood group of deceased Nanji and thus, the involvement of

Logar in the commission of the crime also stands established beyond doubt.

The involvement of accused Deva in commission of the crime is supported by the deposition of all the eye witnesses. As per deposition of

Investigating Officer PW24-Vivek Singh, on the information supplied by accused Deva, vide Ex.P/105, the blood stained stick was recovered vide

Ex.P/45, which in sealed packet marked as ‘U’ was sent to the Forensic Science Laboratory for examination. As per FSL report Ex.P/111, the

stick recovered at the instance of Deva marked as ‘U’ was found to be stained with blood of group ‘AB’ i.e. the blood group of

deceased Nanji. In this view of the matter, the involvement of Deva in commission of the crime also stands established beyond doubt.

The involvement of accused Kamla in commission of the crime also stands established by the deposition of eye witnesses.

That apart, blood stained odhani of Smt. Kamla was seized by Ex.P/20, which as per the FSL report Ex.P/111, was found to be stained with blood

of group ‘A’ i.e. the blood group of deceased Naru. The blood stained axe recovered vide Ex.P/12 on the information given by accused Kamla

vide Ex.P/92, as per FSL report was found to be stained with blood of group ‘AB’ i.e. the blood group of deceased Nanji. Thus, the

involvement of Kamla in causing injuries to the deceased and others in furtherance of the common object also cannot be doubted.

The involvement of accused Mangla, Kalu and Prabhu also stands substantiated by deposition of the eye witnesses. At the instance of Mangla and

Kalu, sticks and at the instance of Prabhu, iron rod were recovered, however, as per the FSL report Ex.P/111, on account of insufficiency of the blood

for test, the origin of the blood stains on the said articles could not be determined.

The involvement of Vajja in the incident occurred stands substantiated by deposition of eye witnesses PW1-Jhamku, PW2Heera, PW6-Kalki,

PW7-Meera and PW8-Ganga. The involvement of accused Takhta and Chokha also stands proved by deposition of PW1-Jhamku, PW2-Heera,

PW7-Meera and PW8-Ganga. PW6-Kalki has not specifically named Chokha and Takhta however, deposed that the accused present in the court

were indulged in beating and accused Takhta and Vajja were present in the court, the day on which the statement of PW6-Kalki were recorded.

Further on the information furnished by accused Vajja vide Ex.P/41, iron rod was recovered and the verification of site of recovery was made vide

Ex.P/42. At the instance of Takhta, sword was recovered vide Ex.P/43 and at the instance of Chokha, an iron rod was recovered vide Ex.P/39.

These articles were also sent for examination to the Forensic Science Laboratory, however, no blood was detected on these articles. But on that

account, we do not find any reason to doubt the deposition of eye witnesses which stands corroborated by the recovery made as aforesaid.

It is true that the eye witnesses while deposing regarding involvement of the aforesaid accused persons in the commission of crime have not

attributed overt act to each of the accused persons specifically. But then, apparently the accused persons forming an unlawful assembly some holding

deadly weapons and some sticks indiscriminately attacked the members of the complainant party to retaliate and wreck vengeance because of earlier

incident of Keshulal killing Mohan, the husband of Kamla. In the considered opinion of this court, in the circumstances wherein the present incident

had occurred, it might not have been possible for the prosecution to lead evidence regarding the actual attack by the accused persons on the members

of the complainant party and details thereof with exactitude. Thus, the defence put forward by the accused persons that no overt act has been

assigned to them individually cannot be accepted when the offence is committed in furtherance of common object of unlawful assembly or such as the

members of assembly knew likely to be committed in prosecution of the object. In this view of the matter, keeping in view the factum of the aforesaid

accused persons attacking the members of the complainant party, weapons used, nature of injuries caused and result thereof, the medical and other

corroborative evidence on record, the motive of crime as well as the surrounding circumstances, we are of the opinion that the guilt of the appellants

accused Vakta, Deva, Takhta, Vajja, Smt. Kamla, Mangla, Kalu, Logar, Prabhu and Chokhla for offence under Section 148, 452, 323/149, 325/149,

302/149 IPC stands established beyond reasonable doubt. Accordingly, we maintain their conviction and sentence awarded by the trial court.

As discussed hereinabove, at the instance of accused Logar and Takhta, swords were recovered. It is not even their case that they were holding

any valid licence for that and thus, the conviction of appellants accused Logar and Takhta for offence under Section 4/25 of the Arms Act also cannot

be faulted with. Accordingly, their conviction and sentence awarded by the trial court is maintained.

Coming to the remaining appellants accused namely, Raju, Sawali, Jhamku, Laxmi, Leela, Vardi, Takudi, Dhula, Harku and Champa, they have

also been named by the eye witnesses of course, with little variance but then, no recovery whatsoever has been made at the instance of these

accused persons. Of course, on the basis of the information supplied by them, the place of occurrence has been verified but it cannot be disputed that

the place of occurrence, which is alleged to have been verified on the basis of the information supplied by these accused, was already known to the

police. Moreover, on the facts and in the circumstances of the case, where there existed enmity between the parties on account of Kesu, the husband

of accused Smt. Kamla, having killed Mohan and he being prosecuted for the same, the possibility of over implication of the members of the family of

the accused party cannot be ruled out and thus, in absence of any credible corroborative evidence, this court does not find it safe to convict the

appellants Raju, Smt. Sawali, Smt. Jhamku, Smt. Laxmi, Smt. Leela, Vardi, Smt. Takudi, Dhula, Smt. Harku and Smt. Champa for offences under

Sections 148, 452, 323/149, 325/149, 302/149 IPC and accordingly, they deserve to be acquitted of the charges.

In the result, the appeals Nos.622/14, 623/14, 624/14, 625/14, 626/14, 627/14, 628/14, 629/14 and 749/14 are allowed. The appellants Dhula, Vardi,

Smt. Takudi, Smt. Harku, Smt. Laxmi, Smt. Sawali, Smt. Leela, Smt. Champa, Smt. Jhamku Devi and Raju are acquitted of the charges for offences

under Sections 148, 452, 323/149, 325/149, 302/149 IPC. The appeals being No.564/14, 743/14, 744/14, 745/14, 746/14, 747/14, 748/14, 750/14, 751/14

& 752/14 preferred by the appellants Smt. Kamla, Chokharam, Vakta, Deva, Kalu, Prabhulal, Mangla, Logar, Vajja and Takhtaram are dismissed.

Accused Smt. Kamla, Chokharam, Deva, Kalu, Prabhulal, Mangla and Vajja are on bail. Their bail bonds shall stand forfeited. They shall surrender

forthwith for undergoing the remaining sentence. The bail bonds of Dhula, Vardi, Smt. Takudi, Smt. Harku, Smt. Laxmi, Smt. Sawali, Smt. Leela,

Smt. Champa, Smt. Jhamku Devi and Raju, who have been acquitted of the charges as aforesaid shall stand discharged. Dhula, who is in custody,

shall be released forthwith. However, the appellants Dhula, Vardi, Smt. Takudi, Smt. Harku, Smt. Laxmi, Smt. Sawali, Smt. Leela, Smt. Champa,

Smt. Jhamku Devi and Raju shall furnish personal bond in sum of Rs.25,000/- each with a surety of the like amount in terms of provisions of Section

437A Cr.P.C. before the trial court.