JUDGMENT
S.H.S. Abidi, J.
1. Appellant Gupteshwar Ram has been convicted under Section 302 of the Indian Penal Code (for short I.P.C.) and Section 27 of the Arms Act and has been awarded sentence of rigorous imprisonment for life and two years rigorous imprisonment under each count. Appellants, Nand Kumar, Budhu Ram, Tribhuwan Ram, Mahendra Ram and Rajbali Prasad. Ram have been convicted under Section 302/149, I.P.C. and have been sentenced to rigorous imprisonment for life. Appellants, Gupteshwar Ram, Nand Kumar Ram and Budhu Ram have further been convicted under Section 108, I.P.C. and sentenced to two years rigorous imprisonment. Appellants Tribhuwan. Mahendra and Rajbali have been further convicted under Section 147, I.P.C. and sentenced for one year R. I. Appellant Mahendra has further been convicted under Section 323, I. P.C and sentenced to six months R. I. How-evever, all the sentences have been ordered to run concurrently. The other four accused, namely, Bhikari Ram, Umesh Ram, Radha Ram and Shree Narain Ram have been acquited by the trial Court.
2. A first information report (Ext. 6) was recorded on 28-5-1986 at 1.30 p.m. by Kanhaiya Ram (PW 9) at Jagdishpur police station, district Bhojpur saying that on 78-5-1986 the female of the house of.the informant had gone to perform Puja in connection with Chauthari of his maternal nephew-Vijay Kumar at about 10.30 a. m. and when they were returning and reached in the Gali in front of the bouse of Bhudhu Ram, then Budhu Ram abusingly said that they were coming at his door. Upon this Amir Ram and his son (deceased) protested. Hence the matter escalated Then Gupteshwar Ram armed with gun, Rajbali with lathi, Budhu with bhala, Mahendra with lathi including Nand Kumar with garasa and Tribhuwan with lathi came together and started brick-batting. On reaching Mahendra Ram gave lathi blow on the head of Amir Ram, when Rajnath went to save his father then Gupteshwar Ram fired at Rajnath who getting gun shot injary on the right side of his chest felll down and died immediately. On the sound of gun fire the people of the village collected and so the accused ran away. At that time Rampujan Ram (PW 2), Vijay Kumar Ram (PW 1), Devendra Kumar (PW 3) and others were present on the spot who had seen the occurrence. The motive for the offence was said to be old enmity on account of Jagdishpur P.S. Case No. 156/85 and counter case No. 157/85 and there was a proceeding under Section 107, Cr.P.C.
3. The case was investigated by Birendra Mohan Jha (PW 10) who examined the informant (PW 9), Sheoji Ram (PW 5) and Ganga Bishun Ram (not examined). He went to the place of occurrence where he found the dead body and prepared the inquest report (Ext. 7). He examined the witnesses. He then sent the dead body for post-mortem examination which was done by Dr. K.P. Rai (PW 11). After completing the investigation he submitted charge-sheet against the appellants.
4. The accused in their defence said that they have been falsely implicated in this case. Three witnesses in defence have been examined being Ambika Singh and Sheo Narain Singh both for alibi for the acquitted accused Sheo Narain Ram DW 3 Saryug Ram has said that the bullet or Rajnath Ram had got fixed up and so he was killed.
5. The prosecution, in support of its case, examined 11 witnesses. Vijay Kumar Ram, Rampujan Ram, Devendra Ram, Sukhia Devi and informant Kanhai Prasad (PWs. 1, 2, 3, 6, 7, 8 and 9) have deposed as eye-witnesses. PW 4-Bharat Lal has proved the inquest report and the seizure list. PW 5-Sheoji Ram is a hearsay witness. Birendra Mohan Jha (PW 10) had conducted the investigation and submitted charge-sheet. PW 11-Dr. K.P. Rai had conducted post-mortem examination as well as the medical examination of Amir Ram.
6. The trial Court after considering the evidence and material on record convicted and sentenced the appellants as said above.
7. Learned Counsel for the appellants has urged that upon the material on record it appears that there was brickbattings from bothsides, that conviction of the appellants under Section 302/149 is not made out as there was sudden quarrel and not there was individual acts and so conviction of Gupteshwar Ram under Section 302, I.P.C. is not made out as there is variance in the medical and oral evidence. To appreciate the contentions of the learned Counsel for the appellants the evidence in the case has to be Scruitinised with care and caution.
8. PW 9-Kanhaiya Prasad is informant. PW 9 has said that on 28-5-1986 at about 11″3U a.m. when the women of his family were re tinning after Chauthari from Goriya Asthan Budhu Ram abused as to why they were passing through his door. About this Sukhia complained to her husband Amir Ram. Then Amir Ram went to forbid, then Budhu began to abuse more loudly, Amir Ram protested then Budhu called his men who came armed with gun, garasa, lahtls and bhala. Budhu had bhala. Mahendra Ram gave a lathi blow on the head of Amir Ram and Rajbali gave a lathi blow on the leg of Amir Ram. When Rajnath (deceased) went to save his father, Gupteshwar fired at him who on getting the injury in his chest fell down ,and died. The occurrence was seen by Vijal Kumar, Devendra Ram and Rampujan (PWs 1 to 3) and others. Then accused ran away. The motive of occurrence is due to old enmity. Then he went to police station along with Sheoji Ram and lodged the report. Witnesses Ganga Bishun and Shanti had colloided with the accused and were not prepared to give evidence. In cross-examination he said that he had no talk with these witnesses as he did not know whether these witnesses had received any notice, The menfolk had not gone to Goriya Asthan. There was no marpit with women but they were abused. He had gone to the accused all alone. Amir Ram had got injury. He fell down on getting 2-3 lathi blows. Rajnath Ram and Amir Ram were/going together. The gali is 2-2$ cubits wide. One shot was fired from 20-25 paces, Rajnath had not abused. Rajnath and others were standing. On getting injury Rajnath fell down and profusedly bleeding. He denied the suggestion made by the defence.
9. The next eye-witness is injured Amir Ram (PW 7). He has said that after return from Chauthari the women told that Bhudhu had abused them and so he went to Budhu who began to abuse loudly and bad called out his men who came armed with gun, lathis, bhala and pharsa. Mahendra Ram gave lathi blow on his head and Rajbali gave lathi on his left leg and when his son Rajnath rushed to help him. Gupteshwar fired at him who fell down dead. He was examined at State Dispensary, Jagdishpur. The occurrence was seen by the witnesses. In cross-examination be said that there was dispute about land and Enora (well) Budhu was abusing and not giving out particular names. Only the bride-groom had gone for Chauthari and not the bride. Budhu was abusing and persons, from the prosecution side had not abused when the women were returning. There was no marpit earlier. The firing had been done from the backside. After the son had fallen no brickbatting was done. Blood bad fallen. There was no chasing of the firing man. He had said to the I.O. that Rajbali had assaulted him on his leg.
10. Besides these two eye-witnesses there is other eye-witness (PW 1). namely, Vijai Kumar the maternal nephew of the informant whose marriage had been performed and on the day of occurrence be had gone with the ladies for Puja and while returning with the women, Budhu began to abuse. He and others returned. Amir Ram went to protest and on the call of Budhu other accused came. Out of whom Guptcshwar had gun, Nand Kumar had garasa and others had lathis. They threw brickbats and stones. Mahendra Rai gave a lathi blow on the head of Amir Ram. The acquitted accused Sheo Narain said as to why brickbats and why not shoot and so firing was done hitting Rajnath who fell down. He had signed the inquest report of Rajnath. Budhu, Mahabir and acquitted Radha Ram are real brothers.
11. The other eye-witness is Rampujan Ram who has said that at the time of occurrence he was in his dalan where Vijai Kumar, Devendra Ram and Rajnath deceased were there, and Chauthari was going. Budhu Ram began to abuse the women and when his brother Amir Ram went to stop him he began to abuse more loudly. He and others also came out and stood by the side of electric pole Then Budhu Ram called his men and so the appellants came with gun, bhala and lathis. Mabendra Ram gave a lathi blow on Amir’s head which was punctured and when he wanted to ran away then brickbatting started. Sheonarain said why not the firing and why brickbatting and so Gupteshwar aimed at Rajnath and fired at him which bit in his chest and so he fell down dead. There was no other witness except family members. For Peja 8-10 women had gone. Out of whom P. W. 6 Meena Devi of the village was also there. Only the women and Dulha had gone and not Nat, Dome or Pandit. Vijai had got Kajarouta. No one present there could try to chase the accused or catch them. In all there were 5 or o men and women. One Jai Kumar, who is the son-in-law, had come in Chaudhari and it was not correct that in the gun of Jai Kumar the shot had stuck up and so went off hitting the deceased. It was not correct to sey that only to save the son-in-law the accused have been implicated falsely.
12. P. W. 3-Devendra Ram has also said that at the relevant time be was in dalan with Rajnath, Vijai, Kanhaya Rampujan, Amir, Sheoji and Ramji Choudhary and when Budhu began to abuse, Amir Ram went to stop where the accused came with their weapons and Mahendra Ram gave a lathi blow. Rajnath, Vijai, Kanhaya and Rampujan went out of dalan to the electrict pole and Budhu was abusing. The accused had come. They were throwing brick-bats. Rajnath went to save his father, Gupteshwar fired at him and so Rajnath died. On 31-5-1986 bullet was seized by the I.O. before him and so he signed the seizure memo. Rajnath was his cousin. Chauthari had started
from 10 a.m. Goraiya Baba is north of the village and the well is 40-50 steps from his house and Bhudu’s house is towards east of his house. There is electric pole in the north of his house.
13. P. W. 6-Meena Devi has said that she had also gone along other women for performance of Puja and when they were returning from Goriya Asthan and were proceeding towards well they had to pass through the Darwaja of Budhu Ram and then Budhu Ram began abusing them Sukhia Devi (P.W. 8) went to her husband Amir Ram and complained about the abusing. When Amir Ram went to Budhu to persuade him not to abuse, then the occurrence took place. She has said that the accused were asking not to take water from the well. The water was taken by them from the hand pipe of Manju She is Bhabhi of Kanhaiya. Five or six man got injuries. Amir Ram had got lathi injury. There was brickbatting and firing. Gupteshwar fired from his gun. On alarm witnesses went there but no attempt was made to catch the accused.
14. P. W. 8-Sukhiya Devi wife of Amir Ram has also said that she bad gone for Puja and when returning Budhu began to abuse and so she want to her husband Amir who went to Budhu to stop him from abusing. But Budhu began to abuse more loudly and called his men who came armed with weapons. Mahendra Ram gave a lathi blow on the head of her husband, Budhu had a bhala, Nand Kumar a phirsa, Gupteshwar a gun and rest lathis. When her son went to save his father and when he was taking with him, then, taking aim, Gupteshwar fired at him. Gupteshwar used to create trouble regularly. Puja continued till 11 a.m. and when they reached the village there was singing, Pakwan was not eaten. They were going to the well from the outside. There was no abusing from her side. Her husband was given two lathi blows. She denied the defence suggestion that when Jai Kumar was firing on account of Chauthari, then his shot got stuck up and so victim got gun shot injury.
15. P. W. 5-Sheoji Ram says that while returning at 11.30 a.m. from another village Harsia he heard the gun fire near the village and went to the place and saw Rajnath lying with bleeding injury near the electric pole and blood was also coming from the head of Amir Ram. Amir Ram told him that Gupteshwar fired at Rajnath and Mahendra gave lathi blow to him. He went to the police station along with the informant. He admitted that Rajnath and his brother Amir Ram at the time of occurrence were at the Dalan and Chauthari was being performed. The women had been coming from northern side and when he reached near the house of Budhu, Budhu started abusing. From all this evidence led by the prosecution about the occurrence, it is made out that on the day of occurrence when the women were returning after Chauthari along with Vijay Kumar Ram (P. W 1) the appellant Budhu began to abuse and when Sukhia Devi (P. W. 8) wife of Amir Ram complained to her husband then Amir Ram went to Budhu and protested against the abusing upon which Budhu started abusing more loudly and called his men who came armed with weapons and started brick-batting. Mahendra gave a lathi blow on the head of Amir Ram and also a blow was given by Rajbali Prasad Ram to him (Amir Ram) when Rajnath went to support his father, Gupteshwar fired at him who getting the injury fell down dead and thereafter the accused run away.
16. Besides these oral evidence there is medical evidence of Dr. K.P. Rai. He had performed the post-mortem examination on the dead body of Rajnath Ram on 29-5-1986 at about 8 a.m and he found the following two lacerated punctured wounds on the chest of the deceased :
1. One lacerated punctured wound 1″ in diameter with overted margin on lateral aspect of right chest in the middle with blood oozing.
II. One lacerated punctured wound 2″ in diamter with overted margin on the lateral aspect of left chest.
On dissection 4th rib or right side was fractured. Both lungs and heart were punctured and lacerated. All chambers of heart were empty. All the injuries were ante mortem and were caused by fire-arms. Time elapsed since death was within 24 hours. The cause of death was due to the injury to the vital part of bead and brain and was sufficient to cause death in ordinary course of nature. He also said that at 8 a.m. be examined Amir Ram of the same village and found the following injuries :
I. One lacerated wound 11/2″x1/2″ on the paristal bone in the mid line.
II. One bruise 2″x1″ on the right leg below knee-joint.
According to the doctor both the injuries were simple caused by hard blunt substance, such as lathi within 24 hours. In cross-examination he said that injury of Baijnath could have been caused if the appellant was just facing him and the said injury could not have been caused by firing from behind. Thus the medical evidence also corroborates the version about firing by Gupteshwar and injury given to Amir Ram on the head and right leg below knee-joint.
17. The investigating officer Birendra Kumar Jha also says that he bad gone to the place of occurrence after registration of first information report and found the deceased on the spot, for whom he prepared inquest report and sent the dead body, for post-mortem examination. He also examined the witnesses on the spot including the injured Amir Ram, the place of occurrance is the same as said by the prosecution and he found the dead body there in the Gali, He also said about the well, Dalan and the bullet. He seized the blood. So the objective finding of the I.O. is also supporting the case of the prosecution.
18. The defence has examined the two defence witnesses, for the alibi of acquitted accused Sheo Narain. But the third witness D. W. 3 Saryug Ram has said that the victim was injured on account of Ajay whose bullet had struck up in the barrel and when Ajay tried to clear off it suddenly went off hitting and killing the victim Raj Nath, on the spot. This plea of the defence about accidental firing on account of gun of Ajay is falsified by the objective finding of the I.O. that the body was found in the Gali in front of the house and not inside the house of the informant. The witnesses also say that the deceased fell down there. Besides Amir Ram has got two injuries on the head and leg and there is no reason to disbelieve the injured witnesses when other facts and circumstances of the case are giving out the version given by the injured witnesses. Thus from this evidence it is made out that the firing was done by appellant Gupteshwar Ram. This role has been given to none else but Gupteshwar Ram. The defence suggestion as well as the statement of D.W. 3 that during Chauthari of Vijay his brother Ajay was making merry with gup and in doing so the bullet struck in the barrel and when Ajay tried to clear it suddenly fired bitting Rajnatb and killing him on the spot is not at all made out. The eye-witnesses are clear and categorical about the role of the firing by Gupteshwar Ram. Nothing has come out to show that this witness was not on the spot. The victim on getting gun shot injury died on the spot. As such the case under Section 302, I.P.C. against the appellant Gupteshwar is well made out.
19. Learned Counsel for the appellants has urged that it was a sudden quarrel and so there could not be any question of an unalwful assembly and therefore the individual acts, if at all rnade out, can be taken into consideration and also for that reason offence under Sections 147, 148 and Section 302 read with Section 149 are not made out. For this contention he has referred to and relied upon a decision of the Supreme Court in the case of State of U.P. v. Jodha Singh and Ors. , where their Lordships have been pleased to observe in para 19 as follows :
On the question whether all the accused or only some of them should be convicted for the injuries caused to the deceased and P. W. 1, we must, say even at the outset that the accused cannot be convicted for the offence of rioting because the attack on the victims had taken place in the course of a sudden quarrel. The accused had not formed themselves into an unlawful assembly in order to commit the offence of rioting. Hence none of the accused can be convicted under Section 147 or 148, I.P.C. In so far as the injuries caused to the deceased and P. W.1 are concerned, we find that though A-l was armed with a lathi and A-7 was armed with a tamancha, they had not made use of them on the deceased or P.W. 1. There fore, A-1 and A-7 cannot be convicted for the injuries caused to the deceased and PW 1 and their acquittal has to be sustained, though for different reasons. As regards A-2 to A-4 and A-6, they were armed with tamanchas and they had caused injuries to the deceased. A-5 was armed with a lathi and he had used the same against the victims. The evidence does not establish as to who among the assailants caused the fatal injuries to the two deceased. Consequently A-2 to A-6 merit conviction under Section 304, Part II, I.P.C. read with Section 34, I.P.C. As regards the attack on PW 1 it cannot be said that A-2 to A-6 had attempted to murder him because the injuries had been caused in the course of a sudden quarrel They can, therefore, be convicted only under Section 326 read with Section 34, I.P.C. and not under Section 307 read with Section 4, I.P.C. Accordingly we convict A-2 to A-6 under Section 304, Part II, I. P. C- read with Section 34, I.P.C. (two counts) and under Section 326 read with Section 34, I.P.C.
There is also a decision of the Supreme Court in the case of Marladasa and Ors. v. State of Tamil Nadu . wherein their Lardspips have been pleased to observe at page 574, para A :
In the evening, at 6 p.m. on the date of occurrence, it appears ihat there was a sudden altercation between PW 1 and the accused in which the deceased Francis tried to intervene as a result of which A-2 assaulted him with knife on serveral parts of the body and caused a serious injury on the chest. According to the evidence, A-l is said to have assaulted PW 1 with knife and infflicted knife injuries to him. According to the evidence of PW 1, A-3 had beaten him on the shoulder with a stick and A-4 had given a beating to PW l on the left knee, No overt act was ascribed to A-5. Reading the evidence of PW 1 as also the allegations made in the F. 1. R. We are satisfied that there was no satisfactory evidence to prove the formation of any unlawful assembly at any time with the common object of assaulting or killing either the deceased francis or PW 1. The whole fight started suddenly on the spur of the moment in a heat of passion and, therefore, the accused could only be liable for the individual acts committed by them. For these reasons, therefore, we agree with Mr. Singh that there is no evidence to support the conviction of rioting under Section 149, 148 or 147, I.P.C. 88 recorded by the High Court.
20. In the instant case Budhn was abusing and when Amir Ram went to complain to Budhu, then Budh began abusing more loudly and on persuation not to do so Budhu called the appellants who came armed. Out of whom Gupteshwar had a county made gun, Nand Kumar bad garasa, Budhu himself had bhata and Tribhuwan, Mahendra and Rajbali hadi lathis. It has not come out at all in evidence that besides injured Amir Das (PW 7) any other person with Amir Ram had also gone to protest. The prosecution side were in the Dalan and later on they came only upto the electric pole and did not go to house of Budhu or they went there or shouted or did any over act. In the circumstances when only Amir Ram alone had gone, then Buddu Ram called his relations and the appellants came armed with such lethal weapons and that too all together and started brickbatting and brickbats have also been found by the I.O. on the spot, besides being stated by the witnesses. This is a clear proof of the fact that the appellants more than five in number, formed an unlawful assembly and indulged in unlawful activities of pelting stones and thereafter committing the offence. First Mahendra and Rajbali gave lathi blows to Amir Ram and when Rajnath Ram went to give support to his father and that too being unarmed, then Gupteshwar fired from his gun causing death on the spot immediately. So it cannot be said that the assembly was not an unlawful assembly. The conduct of the members of unlawful assembly, both before and after the commission of the offence has to be considered Even if their coming together may have been lawful, but later on suddenly and at the spur of the moment it became unlawful. From the begining till the last they remained together sharing the common object of the unlawful assembly. In the case of Moti Das and Ors. v. State of Bihar , it has been observed at page 659, para 7:
7. Now an assembly which was lawful when it assembled can become unlawful subsequently. This is the Explanation to Section 141 of the Indian Penal Code. The law OB this point has, in our opinion, been correctly set put in the 18th Edition of Ratanlal’s Law of Crimes at page 333 in these words :
‘An assembly which is lawful in its inception may become unlawful by the subsequent of its members. It may turn unlawful all of sudden and without previous concert among its members. But an illegal act of one or two members, not acquiesced in by the others, does not change the character of the assembly’.
Previous concernt is not necessary. The common object required by Section 141 differs from the common intention required by Section 34 in this respect.
In the case of Masaliti v. State of Uttar Pradesh , the Supreme Court observed at page 210 in para l7 :
It appears that in the case of Baladin, (S) , the members of the family of the appellants and other residents of the village had assembled together some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member or an unlawful assembly. 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, I.P.C. Section 142 provides that, however, being aware of the facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continue 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 common objects specified by the five clauses of Section 141 in 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 persona 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, it is in that context that the observations made by this Court in the case of Baladin, (S) AIR 1956 SC 181, assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed, some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes is clear 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 that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a ember of the same assembly, is guilty of that offence, and that emphatically bring out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin (S) AIR 1956 SC 181, must be read in the context of the special facts of that case and cannot be treated as layiny down an unqualified proposition of law such as Mr. Sawhney suggests.
In the case of Amarjit Singh and Ors. v. State of Punjab , their Lordships have been pleased to observe at page 233, para 10 :
In inferring the common object of unlawful assembly, various factors depending upon the facts and circumstances of each case have to be taken into consideration. In the instant case these appellants were found to be armed with fire-arms as well as other deadly weapons. They went in a body and participated in the occurrence. In such a situation even Section 34, I.P.C. is attracted particularly having regard to the fact that four persons were killed and several others received injuries at the hands of the members of the unlawful assembly. The participation of each of these appellants is established. Therefore, all of them shared the common object and Section 149 is squarely attracted. In this context we are also not prepared to accept the submission of the learned Counsel that the case of A-2, A-4 and A-6 stands on a different footing namely that though they were armed with firearms it is not established that they used them. The prosecution witnesses have consistently deposed that they were members of the unlawful assembly and we have already held that the common object of the unlawful assembly was to commit the murder. In such a situation these three accused who were members of the unlawful assembly armed with tire-arms cannot get absolved.
In the case of Thakore Dolji Vahvirji and Ors. v. State of Gujrat , their Lordships again considered this aspect and observed at page 211 in para 2 :-
…Now the question is whether all the accused would constructively be liable for an offence of murder by virtue of Section 149, I.P.C. So far A-1 is concerned it is the consistent version of all the eye-witnesses that he dealt a fatal below on the head with a sword and the medical evidence shows that there was a fracture of skull and the blow must have been very forceful because even the brain was injured. Therefore, he was directly responsible for the death of the deceased and the High Court has rightly convicted him under Section 302, I.P.C. Now coming to the rest of the accused, all the eye-witnesses have made on omnibus allegation against them. Even A-2, according to the eye-witnesses, gave only one blow and that the remaining accused gave stick blows. All these injuries were not serious and were simple it is only the injury No. 1 which was serious and proved fatal. Therefore, the question is whether under these circumstances common object of the unlawful assembly was to cause the death of the deceased and whether every member of the unlawful assembly shared the same. No doubt Section 149, I.P.C. is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken into consideration, Having regard to the omnibus allegations, we think it is not safe to convict every one of them for the offence of murder by applying Section 149. I. P. C No doubt he inflicted only one blow but having regard to the nature of the weapon and the vital organ on which the blow was inflicted and the medical evidence regarding the result of injury proving fatal, he must be held responsible for offence of murder. In differentiating the case of A-2 to A-5 to that of A-1 we do not mean to say that for the purpose of Section 149, I.P.C. every one of them should participate and inflict serious injuries but having regard to the special circumstances of this case particularly in sudden manner in which the occurrence took place in the village itself, we think : it would be unsafe to make every one of the accused liable for offence of murder by application of Section 149, I.P.C. Accordingly, wo confirm the conviction of A-l under Section 302, I.P.C. and sentence of imprisonment for life thereunder. Regarding the rest of the accused, we set aside their conviction under Section 302/149 and sentence to imprisonment for life. Instead, we convict them under Section 326/149 and sentence each of them to undergo seven years R. 1.
21. Thus considering the case of the appellants besides Gupteshwar who has got his role of firing at the deceased, the other appellants cannot say that they were not members of unlawful assembly, as they came armed with lethal weapons in block and remained till the finality. They participated in the brick-batting. Mahendra and Rajbali are said to have given lathi blows on the head and leg of Amir Ram whose injuries are made out by the evidence of the witnesses as well as the medical report and when Rajnath was going to help his father, Gupteshwar fired at him. It is also a fact that Nand Kumar and Budhu Ram did not use their garasa and bhala. By bringing the gun, garasa, bhala and lathis the members of the unlawful assembly knew very well that grievous hurt was likely to be caused. Lathi was first used. Garasa and bhala were not used. Gupteshwar used his gun. As such appellants were members of unlawful assembly whose object was to cause at least grievous hurt to the accused. Gupteshwar Ram’s firing was his individual act and so bis conviction under Section 302, I.P.C. for his individual act makes him liable for conviction under Section 302, I.P.C. and bis individual act does not bring the rest of the appellants within the clutches of Section 302 read with Section 149, I.P.C. The appellants, however, cannot get out as they were sharing the common object of the unlawful assembly which was, to caused at least grievous hurt or they knew grievous hurt was likely to be caused because of the deadly weapons like gun, garasa. bhala and even lathis, which therefore makes them liable to be convicted under Section 326 read with Section 149, I.P.C.
22. Learned Counsel for the appellants has also contended that because the other accused Bhikhari, Umesh, Radha and Sheo Narain have already been acquitted, so on the basis of this evidence the appellants also should be acquitted. This contention cannot be accepted. Amir Ram is an injured witness and there is nothing to show that his evidence suffers from any infirmity. Similarly, the other witnesses are most reliable and probable witnesses. Their evidence inspires confidence. All of them have said about the participation of the appellants and simply because other accused have been acquitted, the appellants also cannot be acquitted. In the case of Amarjtt Singh and Ors. v. State of Punjab , their Lordships have observed at pages 232 and 233, paras 7 and 9 :
7…In the instant case all the eye-witnesses are injured witnesses. It cannot be said that every one of them is active partisan in the sense that they would have the tendency of implicating the innocent persons leaving out the real culprits. In any event their evidence has been scanned carefully and has been accepted only in respect of those accused whose presence and participation in the accurrence has been established beyond all reasonable doubts. While acruitinising their evidence, the Courts below have applied the relevant test, namely, whether the names are mentioned in the earliest report and whether there are circumstances to prove their participation etc. The acquittal of some of these accused does not render the evidence of the injured witnesses wholly unacceptable.
9…The mere fact that A-17 is acquitted, we cannot, on that
ground reject the evidence of the eye-witnesses in respect of the convicted accused.
23. In the result, the conviction of Gupteshwar Ram under Section 302, I.P.C., under Section 148, I.P.C. and under Section 27 of Arms Act and his sentences of rigorous imprisonment for life, two years and two years under the respective counts are maintained. The conviction of other appellants, Budhu, Nand Kumar, Rajbali, Mahendra and Tribhuwan under Section 302 read with Section 149, I.P.C. and sentence of rigorous imprisonment for life are set aside but each of them is convicted under Section 326/149 and sentenced to seven years rigorous imprisonment. The conviction of Budhu and Nand Kumar under Section 148 and their sentence of two years R.I. and those of Rajbali, Mahendra and Tribhuwan under Section 147 and sentence of one year R. I. and further that of Mahendra under Section 323 and sentence of six months R.I. are upheld. However, the sentences of the appellants are ordered to run concurrently. With these modifications in conviction and sentence, this appeal is dismissed.
Lok Nath Prasad, J.
24. I agree.