JUDGMENT
Dhabe, J.
1. These two appeals which arise out of the same judgment in Sessions Case No. 703 of 90 can be conveniently disposed of by this common judgment. Cr. Appeal No. 237 of 91 is preferred by the original accused Nos. 1 to 3 while Criminal Appeal No. 237 of 91 is preferred by the original accused Nos. 4, 5 and 6. All the accused Nos. 1 to 6 are convicted by the learned Sessions Judge for the offences punishable u/Ss. 147, 148 and 302 read with S. 149 of the Indian Penal Code (for short the IPC).
2. Briefly the prosecution case is that the original accused Nos. 1 to 3 viz. Manoj, Milind and Mangesh are real brothers and the accused Nos. 4, 5 and 6 are their friends. The name of the deceased is Raju alias Rajendra Marotrao Yawalkar, resident of Onkar Nagar, Nagpur. According to the prosecution case, the accused Nos. 1, 2 and 3 reside in front of the house of the deceased Raju. The house of the accused No. 4 is to the rear side of the house of the deceased Raju. The accused Nos. 5 and 6 are also residents of Onkar Nagar, Nagpur.
3. Further, according to the prosecution case, the accused persons are the members of the Organisation known as “Chhatrapati Sena” and the deceased Raju was also the member of the said Organisation prior to the election to the legislative Assembly in 1989. However, at the time of the said elections he left the said Organisation and carried on propoganda of the Congress-I. Candidate Shri Ashok Dhawad, due to which the relations between the accused persons and the deceased Raju were strained.
4. On 18-4-1990 between 8-30 p.m. and 9 p.m. at night, it is the case of the prosecution that the deceased Raju, his parents i.e. Marotrao (P.W. 1) and Laxmibai (P.W. 8), and one Pitambar Haribhau were sitting on the terrace of his house. At that time, the accused Nos. 1 to 6 came out of the house of the accused No. 4 and then after going to the house of one Shrikhande which is also in front of the house of the deceased Raju, entered the Court yard of his house. The accused Nos. 1, 4, 5 and 7 abused Raju in filthy language and asked him to come down to the court yard. The deceased Raju came down to the court yard from the terrace and asked them as to why they were abusing him. At that time the accused No. 4 caught hold of the right hand of the deceased Raju and dragged him outside the court yard. All the accused then took him in front of the house of Gulab Shrikhande. According to the prosecution case, the accused persons were armed with hockey stick, Iron rod, knife, Gupti (sword stick), motor-cycle chain and Cricket bat. After surrounding the deceased Raju in front of the house of Gulab Shrikhande, all the accused persons assaulted him giving blows to him with the weapons in their hands. After about 15 minutes, Raju fell down on the ground. However, the accused persons continued to inflict blows upon him as a result of which he died on the spot.
5. As per the prosecution case, when the deceased Raju was called by the accused persons to come down in the court yard from the terrace, his parents Marotrao (P.W. 1) and Laxmibai (P.W. 8) also followed him. When the deceased Raju was being beaten and was crying for help, his mother tried to rescue him requesting the accused persons not to assault him but she was pushed aside by the accused No. 1 as result of which she fell down and her bangles were broken. Her repeated requests not to assault Raju fell on deaf ears. As regards the father of the deceased Raju, according to the prosecution case he was prevented from going near him by the accused No. 1 who terrorised and threatened him by pointing gupti towards him. The accused No. 4 also threatened him by raising the hockey stick to assault him.
6. The prosecution case then shows that when the deceased Raju and his parents cried for help, there were about 150 persons who had gathered near the spot, but none came to the rescue of the victim Raju as the accused persons were armed with deadly weapons. After having seen that Raju had died on the spot, the accused ran away from the spot. Marotro (P.W. 1), the father of the deceased Raju, immediately lodged report (Exh. 21) in the Police Station, Ajni about the above incident. It is on the basis of his report (Exh. 21) that the FIR (Ex. 62) was recorded in the instant case. The Police Inspector R. P. Mishra (P.W. 14) who was then working in the said Police Station, Ajni, along with his staff immediately visited the spot. The spot Panchanama was drawn by him between 10.30 and 11 p.m. on the same day which is Exh. 18. Before that there was an inquest Panchanama drawn by him between 10.00 p.m. and 10-30 p.m. which is exhibit 19.
7. Although there is no material to show when the body of the deceased Raju was actually removed to the Government Medical College Hospital, Nagpur, it is clear from the evidence of Dr. Ashok Tank (P.W. 2) and his postmortem examination report which is Ex. 27 that he was handed over the body for post mortem examination at 1.00 p.m. on 19-4-1990 and that he had conducted the post-mortem examination from 1-45 p.m. to 3-00 p.m. on the said date. According to the said post-mortem examination report (Ex. 27) there were as many as 17 external injuries caused to the deceased of which, according to Dr. Ashok Tang (P.W. 2), the external injuries 1, 2 and 3 with their corresponding internal damage were sufficient in the ordinary course of nature to cause death taken individually or collectively. Dr. Ashok Tang (P.W. 2) was asked to give his opinion about the weapons recovered in the instant case and clothes of the deceased Raju which were on his person at the time of the assault. Dr. Ashok Tank (P.W. 2) as per his examination report of the Muddemal Article/weapon (Ex. 28) opined that the injuries caused to the deceased Raju were possible by the weapons sent to him for his examination and that the cut-marks upon the clothes of the deceased were possible by the knife and the Gupti sent to him for examination.
8. The Police Inspector, R. P. Mishra (P.W. 14) who made the initial investigation in the instant case, had recorded the statements of most of the witnesses including the statements of the parents of the deceased Raju and independent witness Rajkumar (P.W. 12) and Dr. Ashok Tank (P.W. 2). The accused could not be traced out till 9-5-1990 on which date they were arrested. The accused No. 1 had discovered gupti and knife from his house as per memorandum (Exh. 66) and seizure Panchanama (Exh. 67). As the accused could not be traced for a long time, the clothes which they had put on on the date of the incident could not be seized. However, the clothes of the deceased were seized, which along with the Gupti and the knife seized pursuant to the memorandum of the accused No. 1 (Exh. 66) and the broken pieces of hockey stick and bent stick pieces recovered from the spot were sent to the Chemical Analyser for his examination. The report of the Chemical Analyser is exhibit 30 which shows human blood upon these articles.
9. It may be stated that the investigation was taken up by P. I. Kisan Khandare (P.W. 10) on 8-6-1990 from the P. I. Ramraksha Mishra (P.W. 14) and as per his evidence he had recorded the statements of the three independent eye witnesses and called for the report of the Chemical Analyser referred to above. After the investigation was complete, he filed the charge-sheet in the Court of the Judicial Magistrate, First Class, Nagpur who committed the accused persons to Sessions trial. The prosecution examined as many as 14 witnesses in the trial before the learned Additional Sessions Judge, Nagpur. Of these 14 witnesses examined by the prosecution, eight witnesses are eye witnesses. They are Marotrao (P.W. 1), Prabha (P.W. 3), Manoj (P.W. 6) Ajay (P.W. 7), Laxmibai (P.W. 8), Khushal (P.W. 9) Chandrashekar (P.W. 11) and Rajkumar (P.W. 12). Out of these eye witnesses except Marotrao (P.W. 1) Laxmibai (P.W. 8) and Rajkumar (P.W. 12) the others have turned hostile to the prosecution. The prosecution examined Ajay (P.W. 4), and Anil (P.W. 5) as Panch witnesses upon the memorandum of the accused No. 1 (Ex. 66) and seizure panchanama (Ex. 67) pursuant to the same. The above Panch witnesses have also turned hostile to the prosecution. The defence of the accused in the instant case is that of denial and their false implication in the instant incident because of the love affair of the accused No. 4 with Durga, the sister of the deceased Raju which was not to the liking of his family.
10. The learned Additional Sessions Judge, Nagpur on the basis of the evidence on record, held that the evidence of the eye witnesses Marotrao (P.W. 1) Laxmibai (P.W. 8) and Rajkumar (P.W. 12) was trustworthy and was supported by the medical evidence in the instant case. He held that the accused Nos. 1 to 6 formed an unlawful assembly and that each of them was guilty of the offence punishable u/S. 147 of the IPC for which he sentenced them to suffer R.I. for one year and to pay a fine of Rs. 100/- or in default to undergo further R.I. for one week. He also held them guilty of an offence u/S. 148, IPC for which he sentenced them to undergo R.I. for two years and to pay a fine of Rs. 100/- or in default to suffer further R.I. for one week respectively. He further convicted the accused Nos. 1 to 6 of the major offence punishable u/S. 302 read with S. 149, IPC and sentenced each of them to suffer imprisonment for life. He directed that the substantive sentences should run concurrently. Feeling aggrieved, the accused Nos. 1 to 3 have preferred in this Court Criminal Appeal No. 237 of 91 and the accused Nos. 4 to 6 Criminal Appeal No. 227 of 91.
11. The learned counsel for the appellants in Criminal Appeal No. 237 of 91 and whose submissions are supported by the learned counsel for the appellants in Criminal Appeal No. 227 of 91, has urged before us that the prosecution has failed to establish the guilt of the accused in the instant case beyond reasonable doubt by clear and cogent evidence. He has also urged before us that the medical evidence in the instant case is inconsistent with the occular testimony and, therefore, the benefit of doubt should be given to the accused persons. He has further urged that the prosecution has failed to prove any motive in the instant case. The learned counsel appearing for the State has resisted the submissions made on behalf of the appellants/accused and has urged before us that the conviction and sentence of the accused in the instant case is wholly justified.
12. In appreciating the rival contentions, it is necessary to see that the prosecution case is principally based upon the oral evidence of the eye witnesses viz. Marotrao (P.W. 1), Laxmibai (P.W. 8) and Rajkumar (P.W. 12) who have not turned hostile. In considering the question whether their evidence is reliable and/or can inspire confidence to base the conviction of the accused persons upon the same and before scrutinising their evidence in detail, it is necessary to notice certain salient features of this case which have bearing upon the question of the truthfulness or otherwise and generally upon the appreciation of the evidence.
13. It is first necessary to notice that the accused persons are residents of Onkar Nagar, Nagpur where the deceased Raju was residing with his parents. In fact, as stated hereinbefore, the house of the accused Nos. 1, 2 and 3 is in front and the house of the accused No. 4 is to the rear side of the house of the deceased Raju. The prosecution evidence shows that prior to the deceased Raju joining Congress (1) and canvassing for its candidate in assembly elections, there were friendly relations between him and the accused persons who were on visiting terms with him. They were thus known to his parents also. Even according to the defence case, as is clear from the examination of the accused u/S. 313, Cr.P.C. there was a love affair between the accused No. 4 and Durga, the sister of the deceased Raju which was not liked by his parents and since the other accused were friends of the accused No. 4, they were falsely implicated in the instant case along with the accused No. 4. Therefore, even according to the case set out by the defence, all the accused persons were known to the parents of the deceased Raju.
14. Another salient feature of the instant case is that the complaint is lodged immediately after the incident by the father of the deceased Raju i.e. Marotrao (P.W. 1) as is clear from the printed FIR which shows the time of the occurrence as 21.00 hours and the time of the report of the offence as 21-30 hours. Since the father of the deceased Raju i.e. Marotrao (P.W. 1) has promptly lodged the report of the offence, it cannot be said that there is any time for concocting a false case against the accused persons whose names are contained in the complaint made by Marotrao (P.W. 1).
15. It is well settled that the evidence of a prosecution witness who is declared hostile need note be wholly discarded as it cannot be treated as effaced or washed off from the record altogether, but the same can be accepted if it is corroborated by the other evidence on record or is found to be dependable upon its careful scrutiny. See para 6 of the recent judgment of the Supreme Court in Khulji alias Surendra Tiwari v. State of M.P. .
16. In the instant case the evidence of the independent witnesses viz. Prabha (P.W. 3), Manoj (P.W. 6), Ajay (P.W. 7), Khushal (P.W. 9) and Chandrashekhar (P.W. 11) who have turned hostile to the prosecution shows that at about 9 p.m. on 18-4-1990 the deceased Raju was assaulted with weapons like knife, gupti, hockey stick and stick by certain boys as a result of which he had died on the spot. It is only on the point of the identity of the accused persons that the above witnesses have turned hostile to the prosecution as they have stated in their evidence that the accused were not amongst the persons who had assaulted the deceased Raju. These witnesses thus corroborate the eye witnesses Marotrao (P.W. 1). Laxmibai (P.W. 8) and Rajkumar (P.W. 12) in so far as they have stated that the deceased Raju was assaulted with weapons like knife, gupti, hockey, stick and stick at about 9 p.m. on 18-4-1990 as a result of which he had died. In fact, as regards the actual incident at 9 p.m. on 18-4-1990 of the assault upon the deceased Raju with deadly weapons described above resulting in his death and the place at which it has occurred there is no serious dispute in the instant case. The only question which needs serious consideration is, who the author of the crime is.
17. Turning to the aspect of the medical evidence in the case, Dr. Ashok Tank (P.W. 2) has proved his post-mortem examination notes (exh. 27). He has stated in his evidence that there were as many as 17 external injuries upon the body of the deceased Raju corresponding to which there were five internal injuries noted by him. He has then stated in his evidence that the external injuries 1, 2 and 3 which were on the vital organs with their corresponding internal damage was responsible for the death of the deceased Raju taken either singly or collectively. Further, according to him, the external injuries 1, 2, 4, 6 and 9 were caused by sharp cutting instrument like a knife or a gupti blade and the rest of the injuries were caused by a hard and blunt object like hockey stick or a motor-cycle chain. The above medical evidence supports, as we shall presently show, the occular testimony in the instant case that the deceased Raju was assaulted and had received injuries on the vital parts of his body as noticed by Dr. Ashok Tank (P.W. 2) in his post-mortem examination notes (exh. 27) inflicted by blows given by Gupti, knife, hockey stick, stick and motor-cycle chain.
18. What is, however, sought to be urged on by the defence counsel on the basis of the evidence of Dr. Ashok Tank (P.W. 2) is that since according to him the external and internal injuries were ante-mortem and that they were caused within 2 to 6 hours prior to the death of Raju, it would mean that the assault had not taken place between 8-30 p.m. and 9 p.m. when Raju is alleged to have died on the spot, but that it had taken place 2 to 6 hours before that time when the presence of the accused on the spot is not proved by the prosecution. It is in view of the above alleged inconsistency between the occular testimony and the medical evidence as regards the time of the assault that it is submitted that the accused are entitled to benefit of doubt.
19. In support of the submission that if there is inconsistency in the medical evidence and the occular testimony the benefit of doubt should go to the accused, the learned counsel for the appellants has relied upon the following judgments of the Supreme Court :-
(1) Lakshmi Singh v. State of Bihar, .
(2) Purshottam v. State of M.P. .
(3) Amar Singh v. State of Punjab
(4) Mayappa Dhondanna Padeade v. State of Mah. .
(5)(i) Sevi (ii) Koodakkal Karian v. State of Tamil Nadu, .
20. In appreciating the above submission made on behalf of the appellants, it is first necessary to see whether there is any inconsistency between the occular testimony and the medical evidence in regard to the time of assault in the instant case. As already pointed out, all the eye witnesses including those who have turned hostile have deposed that the assault had taken place between 8-30 p.m. and 9 p.m. on 18-4-1990 in which Raju had died instantaneously on the spot. However, according to the learned counsel for the appellants, the deceased Raju had not died instantaneously on the spot and that as per the medical evidence the assault had taken place 2 to 6 hours prior to his death when the presence of the accused on the spot is not proved by the prosecution. Although at the first flush the argument of the learned counsel for the appellants appears to be attractive, on closer and careful scrutiny of the evidence of Dr. Ashok Tank (P.W. 2) in this regard i.e. para 5 of his evidence is does not support the above submission made on behalf of the appellants.
21. Para 5 of the deposition of Dr. Ashok Tank (P.W. 2) is as follows :-
“All these external and internal injuries were ante-mortem and it would have been caused within 2 to 6 hours prior to the death”.
What is important to be emphasised in the above evidence of Dr. Ashok Tank (P.W. 2) is the word “within” used by him. The use of the said word would show that he has not ruled out the possibility of death taking place instantaneously after the assault in which several serious injuries are caused to the deceased Raju as per his own evidence. His above evidence would indicate that what he has referred to therein is an outer limit within which the death can occur after the deceased Raju was seriously injured after being assaulted. Even that outer limit is very approximate because, according to him, the external and internal injuries could be caused to the deceased Raju within 2 hours to 6 hours prior to the death. Thus, since the possibility of the instantaneous death is not ruled out by his testimony, there is no inconsistency between his evidence and the occular testimony in this regard. In fact, his above deposition has to be read together with the occular testimony in the instant case which would affirm that the death is instantaneous in the instant case.
22. Even assuming that there is some scope for construction which is sought to be placed upon the above testimony of Dr. Ashok Tank (P.W. 2), in our view, it is not axiomatic that the medical opinion must prevail over the occular testimony although normally if there is inconsistency between the two, it would raise a reasonable doubt in favour of the accused as held by the Supreme Court in the cases cited supra relied upon on behalf of the accused. In this view, we are fortified by the judgment of the Supreme Court in the case of State of U.P. v. Krishna Gopal, . In para 13 of the judgment, the Supreme Court has observed :
“It is trite that where the eye-witnesses’ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eye-witnesses’ account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making other evidence, including medical evidence, as the sole touch-stone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the “credit” of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. A person has, no doubt, a profound right not to be convicted to an offence which is not established by the evidential standard of proof beyond doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to “proof” is an exercise particular to each case.”
23. It is, therefore, clear that upon the opinion of Dr. Ashok Tank (P.W. 2) which is not definite but only indicates that the time of assault is within 2 to 6 hours prior to the death, the definite and consistent occular testimony on the question of time of the assault cannot be disbelieved and such medical evidence cannot create any reasonable doubt in regard to the question of the time of the assault. The submission made on behalf of the accused that there is inconsistency between the medical evidence and the occular testimony as regards the time of assault and, therefore, the accused is entitled to benefit of doubt, cannot thus be accepted. There is thus, as discussed above, clear corroboration of the occular testimony by the medical evidence which shows that the deceased Raju was assaulted and had received several serious injuries between 8.30 p.m. and 9 p.m. on 18-4-1990 by the weapons like Gupti, knife, hockey stick, and stick.
24. Apart from the occular testimony that the assault upon the deceased Raju had taken place in front of his house, the inquest panchanama (Exh. 19) and the spot panchanama (Exh. 18) which are made immediately at 10 p.m. and 10.30 p.m. respectively corroborate the fact that there was assault at the spot near about the same time. From the spot, broken pieces of bangles, broken pieces of hockey stick and bent pieces of stick stained with the blood were recovered. The report of the Chemical Analyser (Exh. 30) shows that the broken pieces of hockey stick and bent stick contained human blood. All these facts and circumstances would show that a homicidal death had taken place at the spot. It may be seen that the broken pieces of bangles would be a circumstance to corroborate the presence of the witness Laxmibai (P.W. 8) on the spot as according to the evidence of Marotrao (P.W. 1), her bangles were broken when she was pushed away by one of the accused persons.
25. As regards the recovery of gupti and knife pursuant to the discovery memorandum (Exhibit 66) of the accused No. 1, both the panch witnesses upon the memorandum (Exhibit 66) and the seizure panchanama and gupti and knife (Exhibit 67) viz. Ajay (P.W. 4) and Anil (P.W. 5) have turned hostile and have except their signatures denied the contents of the said documents. It is, however, the Investigating Officer Ramraksha Mishra (P.W. 14) who has proved the said documents (Exhibits 66 and 67) as he had drawn them and the above witnesses had signed in his presence. It is difficult to accept the testimony of the witnesses Ajay (P.W. 4 and Anil (P.W. 5) that although they have signed the documents (Exhibits 66 and 67), their contents are not correct, because even according to their evidence they would not sign any documents without reading them. Nonetheless since they have denied the contents of the above documents (Exhibits 66 and 67), we are left with the evidence of the Investigating Officer Ramraksha Mishra (P.W. 14) for the proof of contents of the said documents.
26. There is no presumption that the Police Officers are liars and, therefore, their evidence cannot be accepted. It is also laid down by the Supreme Court in the case of Girdharilal v. D. N. Mehta, that the evidence of the Investigating Officer conducting a search can be relied upon without corroboration which question depends upon the facts in each case. Moreover, as held by the Kerala High Court in the case of Manheri Rajan v. State, 1987 Cri LJ 563, para 17, unlike S. 100 or S. 165, Cr.P.C. there is no statutory provision insisting upon preparation of a search list and its attestation so far as the discovery under S. 27 of the Evidence Act pursuant to the information given by the accused is concerned. Therefore, if the Court feels that the uncorroborated testimony of the Police Officer by itself is capable of inspiring confidence, there is nothing forbidding the Court from acting upon the same. Corroboration, it is held in the above case should be insisted upon only where it is considered necessary.
26A. In the case of N. K. Das v. State of W.B., , the panch witnesses upon seizure memo pursuant to discovery in the said case had turned hostile and the Court was in that case left with the sole evidence of the Circle Inspector in that regard whose evidence on its own merits was, however, not accepted by the Supreme Court. Similarly, in Datta v. State, 1979 Cri LR (Mah) 137 this Court relied upon the evidence of the Police Head Constable to prove possession of liquor bottles although out of the two pancha witnesses upon the panchanama in that case, one had turned hostile and the evidence of the other was not credible. The sole question, therefore, to be considered in the instant case is, whether the evidence of the Investigating Officer Shri Ramraksha Mishra (P.W. 14) inspires confidence so as to accept the discovery evidence in the instant case.
27. Perusal of the evidence of the Investigating Officer Ramraksha Mishra (P.W. 14) shows that there is no inherent lacunae or any serious infirmities in his evidence. Nothing is also brought out on record to show why he should depose falsely against the accused persons. There is thus no reason to disbelieve his evidence as regards the discovery of knife and gupti made by him in consequence of the information given by the accused No. 1 particularly when the evidence in the instant case shows that the Gupti and knife were the weapons used in the incident in the instant case. It is then necessary to see that the discovered Gupti and knife provide an incriminating circumstance of being stained with blood which as per the report (Exhibit 30) of the Chemical Analyser is human blood. Once this evidence of Gupti and knife stained with human blood is accepted, it would be a corroborative piece of evidence to point to homicidal death which had occurred in the instant case on the spot between 8.30 p.m. on 18-4-1990.
28. With these salient features in the instant case, we proceed to consider the oral evidence of the key eye-witnesses of the prosecution viz. Merotrao (P.W. 1), Laxmibai (P.W. 8) and Rajkumar (P.W. 12). As regards Rajkumar (P.W. 12) who is an independent witness examined by the prosecution, it is urged that he is a chance witness and, therefore, his evidence should be discarded because he had no reason to remain present at the spot at the time of the incident. Perusal of the evidence of Rajkumar (P.W. 12) shows that he is resident of Shrihari Nagar which, according to him, is adjacent to Onkar Nagar where the deceased Raju was residing and where the incident in question in the instant case had taken place. He has stated in his evidence that on the date of the incident i.e. 18-4-1990 at about 8.30 p.m. or 9 p.m. he was returning from medical stores on purchasing the medicines as he was not well. According to him, he was returning by the Main Road in Onkar Nagar and when he reached near the house of the deceased Raju he had witnessed the incident of assault against him by the accused persons. In his cross-examination he had admitted that no doctor had prescribed any medicine to him. However, according to him, since he was having fever he bought some tablets. He had, however, denied the suggestion that on taking medicine he had reached his home. He has also denied the suggestion that he can reach his house in Shrihari Nagar in less time from Trisharan Chowk i.e. by taking the road which is to the rear side of the house of the accused Nos. 1 to 3.
29. Be that as it may, the fact remains that Rajkumar (P.W. 12) is not the resident of the same locality and he has not given any convincing reason to be on the spot at that time. If he was not well and was running fever as deposed to by him, it is most unlikely that instead of rushing to his house he would wait on the spot to witness the incident particularly when he has denied the defence suggestion that Raju was his friend. His presence on the spot is, therefore, doubtful. There is, therefore, some force in the submission made on behalf of the appellant that the presence of Rajkumar (P.W. 12) on the scene of occurrence appears to be doubtful and, therefore, it would not be safe to rely upon his testimony for basing the conviction of the accused in the instant case. A similar view is also taken by the Supreme Court as regards the appreciation of evidence of a chance witness. See Gulichand v. State of Rajasthan, . See also . The question, therefore, arises whether the conviction can be based in the instant case upon the testimony of Marotrao (P.W. 1) and Laxmibai (P.W. 8) who are the parents of the deceased Raju.
30. It is, however, pertinent to see that as held by the Supreme Court in the case of Bahal Singh v. State of Haryana, in the case of chance witness even if he is a relative or a friend of the victim or is inimically disposed towards the accused, his evidence although looked upon with suspicion should not be straight way disbelieved but should be examined with caution and close scrutiny. In the instant case the evidence of Rajkumar (P.W. 12) who has not been proved to be a relation or friend of the deceased Raju or inimical towards the accused, can be accepted as regards the matters other than the particulars of the incident, if the said evidence is otherwise credible.
31. The learned counsel for the appellants has urged before us that the conviction of the accused persons should not be based upon the interested testimony of the parents of the deceased Raju since the evidence of the independent witnesses was available in the instant case as according to the prosecution case many persons had witnessed the incident. He has drawn out attention to the charge-sheet (Exh. 1) in the instant case which according to him, contains the list of 22 witnesses out of whom, according to him, many witnesses are not examined in the trial though independent. The above submission on behalf of the accused is not borne out by the charge-sheet (Exh. 1) in the instant case itself. Perusal of the charge-sheet (Exh. 1) shows that it contains from Sr. Nos. 1 to 8 the list of panch witnesses, from Sr. Nos. 7 to 14 the list of eye witnesses and from Sr. Nos. 15 to 22 the list of the police witnesses. Laxmibai (P.W. 5) whose name is at Sr. No. 7 in the charge-sheet is alleged to be an interested witness being the mother of the deceased Raju. However, the other witnesses from Sr. Nos. 8 to 14 in the charge-sheet are independent witnesses out of whom it is clear that only Ganpat Ramji Wankhede at Sr. No. 11 is not examined by the prosecution. This is not thus such a case where the prosecution has neither cited nor examined any independent witnesses out of many persons alleged to be witnessing the incident.
32. In our view it is not necessary for the prosecution to examine all the independent witnesses cited by it. Nevertheless in the instant case except one i.e. Ganpat Ramji Wankhede, all the independent witnesses are examined by the prosecution. Further, it is pertinent to see that out of the independent eye-witnesses, only Rajkumar (P.W. 12) has tried to support the prosecution case fully. However, the other independent eye-witnessess viz. Prabha (P.W. 3), Manoj (P.W. 6), Ajay (P.W. 7), Khushal (P.W. 9) and Chandrashekhar (P.W. 11) examined by the prosecution have not supported its case fully because although they have corroborated the prosecution case by deposing about the incident of assault upon Raju they have turned hostile to the prosecution so far as the implication of the accused persons in the assault upon the deceased Raju is concerned. From the evidence of the eye-witnesses in the instant case viz. Marotrao (P.W. 7), Laxmibai (P.W. 8) and Rajkumar (P.W. 12) who have not turned hostile, it appears that the eye-witnesses of the prosecution were threatened by the accused persons although the above hostile eye-witnesses have denied such suggestion put to them in the cross-examination. See cross-examination of Prabha (P.W. 3), Manoj (P.W. 6) and Khushal (P.W. 9).
33. It is further pertinent to see that the accused persons are living either in the same locality or in the neighbourhood of the hostile eye-witnesses. It is, therefore, possible that if they have seen the accused persons using deadly weapons in assaulting Raju and in threatening his father Marotrao (P.W. 1) by showing him Gupti and thus preventing him from going near him and pushing away his mother Laxmibai (P.W. 8), they are likely to be held in terror by them for which reason apprehending risk, they may be afraid of implicating them in the incident of assault on the deceased Raju. If they thus turned hostile to the prosecution for the above reason, it was of no use to the prosecution to have examined any more independent witnesses because all of them were likely to turn hostile for the above reason.
34. Be that as it may, having found that all the independent witnesses examined before Rajkumar (P.W. 12) have turned hostile, if the only remaining independent witness viz. Ganpat Ramji Wankhede cited by the prosecution is not examined by the prosecution particularly when the last independent witness Rajkumar (P.W. 12) has supported its case, no adverse inference can be drawn against the prosecution for non-examination of the above independent eye-witness. It is true that the pursis filed by the learned Public Prosecutor does not give any reason why the prosecution has given up the said independent witness, but in the facts and circumstances narrated above such an omission does not persuade us to drawn any adverse inference against the prosecution.
35. It is well settled that merely because the evidence of the independent witnesses is available, the evidence of the so-called interested witnesses cannot be rejected outright if they are natural witnesses and if their evidence is truthful, credible and inspires confidence. The caution to be exercised in appreciating their evidence is that it should be scrutinised with care and circumspection in the light of all the material on record including corroborative circumstances and if thus evaluated, their evidence points to the guilt of the accused, the conviction of the accused can be based upon the same. The Supreme Court has held in the case of Gourishankar v. State of U.P. that unless there are sound grounds to reject the evidence of the so-called interested witnesses it would not be proper to brush aside their evidence on a specious plea that they are interested witnesses. It is material to see also the judgment of the Supreme Court in the case of Anvaruddin v. Shakoor, , in which it is observed by the Supreme Court that direct testimony of witnesses whose evidence is otherwise consistent should not be ordinarily rejected on the ground that they are partisan witnesses. It is further observed in the said case that ordinarily close relatives of the deceased would not allow the real culprits to escape although the possibility of their implicating others with the real offenders needs to be kept in mind.
35A. The most important judgment of the Supreme Court from the point of view of the facts and circumstances of the instant case is its judgment in the case of State of U.P. v. Ranjana, in which the Supreme Court has held that the evidence of the son of the deceased who had lodged the F.I.R. in the said case cannot be disbelieved because his evidence is not in accordance with the sequence of events given by the other witnesses. Keeping these principles in mind, we proceed to scrutinise the evidence of the so-called interested witnesses in the instant case viz. Marotrao (P.W. 1) and Laxmibai (P.W. 8) who are the parents of the deceased Raju.
36. As regards the evidence of Marotrao (P.W. 1), the main criticism as regards his evidence is that he had come on the spot after the accused had run away and, therefore, had not seen the actual incident of assault. In this regard the learned counsel for the accused has brought to our notice the contradiction in the police station of Laxmibai (P.W. 8) because in her statement before police in portion marked ‘A’ she had stated that her husband had reached after the accused had run away. The learned counsel for the accused has also sought to rely upon the evidence of Rajkumar (P.W. 12) as he has stated in his cross-examination the Raju’s father was at his house at the time of the incident and was not present when Raju was assaulted and was given the first blow near the water tap.
37. As regards the evidence of Rajkumar (P.W. 12), we have already held as urged on behalf of the accused themselves that he was a chance witness and, therefore, his evidence in regard to the incident of assault needs to be ignored. However, even otherwise, the cross-examination of Rajkumar (P.W. 12) does not go to show that Raju’s father i.e. Marotrao (P.W. 1) was not present on the spot and he had not witnessed the incident. It is clear from the cross-examination of this witness Rajkumar (P.W. 12) that Raju’s father was not present when the alleged first blow was given to the deceased Raju near the water tap. However, the next sentence after the above sentence in his cross-examination shows that Raju’s presents were crying for Raju’s rescue which would mean that they were there at the time of the assault. The above cross-examination, therefore, does not destroy his evidence in examination-in-chief that Raju’s father Merotrao (P.W. 1) was present on the spot, but he could not save his deceased son Raju, because as we shall presently point out from the deposition of Raju’s father Marotrao (P.W. 1) he was prevented from doing so by the accused No. 1 who had threatened him at the point of Gupti and by the accused No. 4 who had used the hockey-stick to assault him.
38. As regards the contradiction in the police statement of Laxmibai (P.W. 8) relied upon on behalf of the accused, it is necessary to see that as per her evidence itself when the deceased Raju was called to come down by the accused persons, she had immediately followed him and had got down from the terrace. Further, according to her evidence, her husband had also followed her and had come down-stairs. However, it is clear from her evidence that when the blows were given to the deceased Raju, she had gone to his rescue but the accused Nos. 1, 5 and 6 had lifted her and had thrown her aside. Reading of her evidence would show that her attention was wholly focussed upon her son who was being assaulted by the accused persons and she had, therefore, seen her husband only when the accused had run away. The above contradiction in her statement would not, therefore, prove that during the whole of the incident, the father of the deceased Raju viz. Marotrao (P.W. 1) was not present on the spot and had seen the incident.
39. In our view, the best corroboration to the presence of Marotrao (P.W. 1) on the spot is his complaint itself which he had lodged immediately after the incident in the Police Station, Ajni. In his complaint itself he has given the material particulars of the incident and also named the accused persons who had assaulted his son. Marotrao (P.W. 1) was present in the house when, according to the prosecution case, the accused persons had come in his court-yard and called the deceased Raju to come down stairs. The intentions of the accused persons were very clear. It is, therefore, difficult to believe that Marotrao (P.W. 1), the father of the deceased Raju would not follow him when the accused persons called him to come downstairs and forcibly took him from the court-yard of his house to the spot in front of Shrikhande’s house and started beating him. However, as to deposed to by him, he was prevented from going to his rescue because he was himself threatened with gupti and hockey-stick and was terrorised by the accused Nos. 1 and 4 so that he should not go near him. There is not doubt in our mind that Marotrao (P.W. 1) has seen the incident himself and thereafter had lodged the complaint to the Police about the same. We cannot, therefore, accept the submission made on behalf of the accused that Marotrao (P.W. 1) was not present on the spot and had not seen the incident in which his son Raju was fatally assaulted by the accused persons.
40. Turning now to the evidence of Marotrao (P.W. 1) he has described the incident in his evidence. He has deposed that on 18-4-1990 at about 8 or 9 p.m. he, his wife Laxmibai and the deceased as also one person by name Pitambar were sitting on the terrace of their house and were talking about disposing of their house for payment of dues to the society. At that time he was that the accused Nos. 1 to 6 were coming out of the house of the accused No. 4. According to him, they had, thereafter, gone to the house of one Shrikhande and after coming out of his house had entered the court-yard of his house which is in front of the house of Shrikhande. His further evidence is that the accused Nos. 1, 4, 5 and 6 then abused Raju in filthy language and asked him to come down-stairs whereupon the deceased Raju went down-stairs and asked them the reason for abusing him. According to his evidence, the accused No. 4 then caught hold of his right hand and dragged him surrounded by the other accused persons. They thus brought him in front of the house of Shrikhande. His evidence shows that the accused No. 4 was armed with a hockey stick, the accused No. 1 with gupti (sword stick), the accused No. 5 with an iron rod and a knife, the accused No. 6 with knife and the accused No. 3 with a motor-cycle chain and the accused No. 2 with a cricket bat. His evidence further shows that the accused No. 4 had dealt a blow with hockey stick on he back and head of the deceased Raju and thereafter he shouted ‘Savdhan’ when all the accused started giving him blows with the weapons in their hands as a result of which Raju fell down on ground within 15 minutes thereafter. However, the accused Nos. 5 and 6 each still gave two knife blows to him on his person and the accused No. 1 gave him 4 to 5 Gupti blows. His evidence then shows that as a result of several serious blows received by him, Raju had died on the spot.
41. The evidence of Marotrao (P.W. 1) also shows that after Raju had come down from the terrace he and Laxmibai and followed him down-stairs. When he had fallen down as a result of blows received by him, Laxmibai (P.W. 8) had intervened and had placed herself over his body requesting the accused persons not to assault him. She was, however, pushed aside by the accused No. 1 as a result of which her bangles were broken. At that time, according to Marotrao (P.W. 1), he was standing there, but he could not do anything to save his son who was crying loudly to save himself, because he was prevented from doing so by the accused No. 4 who had raised hockey stick to assault him and by the accused No. 1 who had showed him gupti. His evidence further shows that the accused persons had threatened all those present including him by uttering words to the effect that if they would give evidence against them in the Court, they would be murdered. Apart from the question of his presence on the spot, his evidence is sought to be criticised principally on the ground that there are omissions in his police statement i.e. F.I.R. (Exh. 21) about the weapons used by the accused persons in assaulting the deceased Raju.
42. As regards the omissions in his police statement which are sought to be brought out, Marotrao P.W. 1) has deposed that he was not in a proper frame of mind at the time of giving the report. The above reason given by him cannot be lightly brushed aside because just about half an hour before lodging the complaint (Exh. 21) there was brutal murder of his son. That apart, it is not necessary that in the complaint (Exh. 21) itself all the details regarding the incident should be given. In our view, the particulars regarding the weapons in the hands of each of the accused persons is not such an omission which would amount to a material omission/contradiction so as to make his testimony in the Court incredible.
43. It is pertinent to see that in his complaint (Exh. 21) Marotrao (P.W. 1) has clearly stated that Raju was assaulted by the accused persons who were armed with hockey sticks, sword stick, motor-cycle chain and knife which are the weapons used in the assault upon the deceased Raju as per his evidence in the Court also. His evidence that Raju was assaulted with these weapons, is corroborated by the medical evidence also as according to the evidence of Dr. Ashok Tank (P.W. 2), the injuries inflicted upon the deceased Raju could be caused by such weapons. Only because the particulars as regards the weapons in the hands of each of the accused are absent in his complaint, the evidence of this witness as regards the particulars of the assault cannot be rejected. Even otherwise as the offence u/S. 302 of the I.P.C. is committed by the members of an unlawful assembly which case, as we shall presently show, is established by the prosecution in the instant case, the question which weapon each of the accused used in assaulting the deceased Raju would hold no significance once the common object of the unlawful assembly is proved. In this view, we are supported by the judgment of the Supreme Court in Dalbir Singh v. State of Punjab, AIR 1987 SC 1328 : (1987 Cri LJ 1065), (para 16) in which it is held that once it is established that the accused were the members of an unlawful assembly, it is not necessary to decide as to which of the accused persons inflicted what particular injury.
43A. As we have pointed out above, the fact that Raju was assaulted with the above weapons at he spot between 8.30 p.m. and 9 p.m. on 18-4-1990 is supported even by the evidence of the hostile independent witnesses and, therefore, the above omission as regards the particulars of the weapon used by each of the accused cannot be given any weight to discredit the testimony of the above witness Marotrao (P.W. 1). In fact, considering the evidence of these hostile eye-witnesses the only question which needs to be considered is whether it was the accused persons who assaulted the deceased Raju at the spot or not.
44. Turning now to the evidence of Laxmibai (P.W. 8) her evidence is on the same lines as that of Marotrao (P.W. 1). Apart from the contradiction about the presence of Marotrao (P.W. 1) on the spot which we have discussed above, the other contradiction which is sought to be brought out from her police statement is as regards the difference in her police statement and her evidence in the Court about the weapons in the hands of each of the accused persons. For the reasons given by us above in regard to the testimony of Marotrao (P.W. 1), we do not think that difference in this regard is a material contradiction which would affect her testimony upon the material particulars of the incident. Moreover, it has to be seen that when there are so many accused persons involved in the assault and when the evidence is recorded after a long time, some discrepancies in the police statement and the oral testimony are bound to creep in. However, on the material particulars of the assault, there are no discrepancies in her police statement and her testimony in the Court.
45. The evidence of Laxmibai (P.W. 8) is sought to be challenged on the ground that she was not present at the time of the incident because she had gone to her neighbour’s house to see the programme of Chitrahar on TV at that time which she usually used to do and had come to the spot only after hearing the hue and cry and after the accused had run away from the spot. Although Laxmibai (P.W. 8) had denied the defence suggestion that she used to go to her neighbour’s house for watching TV programmes, her husband Marotrao (P.W. 1) has stated in his evidence that occasionally she used to go to her neighbour’s house for seeing TV programmes. However, on 18-4-1990 it does not appear that she had gone to see TV programme of Chitrahar at about the time of the incident, because the evidence of Marotrao (P.W. 1) as well as Laxmibai (P.W. 8) discloses that one Pitambar had come to their house some time before the incident and with him and her deceased son Raju, they were sitting upon the terrace of their house and were having a talk about disposing of their ancestral house for paying the dues of the society. According to their evidence, while they were thus talking the accused had come to their house and had abused the deceased Raju who thereupon went down-stairs followed by them. The above evidence thus shows that she was in her house itself at about time and had not gone to see the TV programme of Chitrahar at that time. Further, her evidence as regards the presence on the spot is corroborated by the broken pieces of bangles seized from the spot because according to her evidence as well as the evidence of Marotrao (P.W. 1) when she had gone to the rescue of her son, she was pushed aside by the accused persons because of which her bangles were broken.
46. The only positive evidence in this regard in favour of the defence is of the hostile witness Sau Prabha (P.W. 3) who has stated in her cross-examination by the prosecution that Laxmibai (P.W. 8) had gone to see “Chitrahar” on TV to the house of Salve and that she was called by her when Raju had fallen down. Apart from the fact that she is an hostile witness, it is difficult to accept her above testimony because she has herself stated in her examination-in-chief that she was frightened on seeing the incident and had closed her entrance door.
47. The evidence of Laxmibai (P.W. 8) thus fully corroborates the evidence of Marotrao (P.W. 1) and their evidence clearly proves that the accused Nos. 1 to 6 assaulted the deceased Raju with gupti, knife, motor-cycle chain, hockey stick and stick as a result of which Raju died on the spot. In appreciating the evidence of Marotrao (P.W. 1) and Laxmibai (P.W. 8) who are parents of the Raju, it is necessary to bear in mind that they are natural witnesses as the incident had commenced in their presence when their son was abused and had gone down-stairs followed by them. They had thus clearly watched the incident. If that is so, it is difficult to see why they should implicate persons other than those who have actually assaulted their son. Their testimony that it is the accused Nos. 1 to 6 who had fatally assaulted their son is thus trust-worthy and deserves to be believed.
48. The next question which arises for consideration, is whether there was sufficient light in the locality near the spot so that these eye-witnesses could see the accused persons and identify them as the persons who had fatally assaulted the deceased. The incident has taken place during the night time between 8.30 p.m. and 9 p.m. It is true that there is no map of topography drawn by the prosecution. The spot panchanama (Exhibit 18) also does not mention anything about the lighting in that area. However, there is material in this regard in the evidence of the key eye-witnesses Marotrao (P.W. 1), Laxmibai (P.W. 8) and Rajkumar (P.W. 12) which we shall consider.
49. Marotrao (P.W. 1) has stated in para 4 of his evidence that he had seen the incident in the moon light and also in the light of the electric tube which was burning in front of his house on an electric pole which was at a distance of about 25′ from his house. He has also stated that the place of the incident which was in front of the house of Gulabrao Shrikhande was about 50′ away from the tube light. Further, according to him, the electric light outside the house of Gulabrao was also burning. In his cross-examination, an omission in his police statement i.e. his complaint (Exhibit 21) about the lighting near the spot is brought out. As already observed by us, it is not necessary that the report or the complaint of the offence lodged in the police station must contain all the details of the offence. The evidence of Marotrao (P.W. 1) about the lighting in the locality near the place of occurrence cannot, therefore, be brushed aside only because of omission in this regard in his complaint to the Police (Exhibit 21).
50. As regards the evidence of Laxmibai (P.W. 8) she has also stated in her evidence that there was a light burning in front of the house of Shrikhande. According to her evidence, there was an electric pole in her court-yard and a tube light was burning on the pole. She has then stated in her evidence that an electric bulb was burning at the entrance of the house of Ingle which is in front of the house of Shrikhande. In her cross-examination she has denied that it as a dark night and that there was no electric light in the court-yard of her house. She has also denied the suggestion that the bulbs outside the houses of Shrikhande and Ingle were not burning. In evaluating her evidence, it may be seen that even though there may be a mistake committed by her in giving the location of the electric pole as being in her court-yard that would not mean that there was no electric pole at all near about the place of the incident about which, apart from the evidence of Marotrao (P.W. 1) hereinbefore referred to there is evidence of Rajkumar (P.W. 12) also.
51. Rajkumar (P.W. 12) has stated in para 2 of his evidence that there was an electric pole at a distance of 15′ to 20′ from the place where the deceased Raju was lying and that there was a tube light burning upon the said pole. He has also stated that the electric bulb at the entrance door of Shrikhande’s house was also burning and there was a tube light burning in Shrikhande’s house. In his cross-examination, the suggestion given to him that no electric bulb or tube was burning as deposed to by him is denied by him. It may be seen that although the evidence of Rajkumar (P.W. 12) may be ignored on the question of the particulars of the incident on the ground that he is a chance witness, his evidence relating to the topography of that area need not be ignored because he lives near the locality in which the incident of fatal assault upon Raju has taken place. His evidence supports the evidence of Marotrao (P.W. 1) that there was an electric pole at a distance of 15 to 20′ from the place where the body of the deceased Raju was lying.
52. As regards the question whether there were lights in the area where the fatal assault had taken place, it is material to see that the place of occurrence was in the habited area and there would be normally street lights in that area. The evidence of these witnesses that there was electric pole upon which there was a tube light has, therefore, to be believed. The incident this could be seen in the tube light burning from the electric pole even assuming that no light came from or near either Shrikhande’s or Ingle’s house. In the case of Khulji v. Surendra cited (supra), it is observed in para 7 of its judgment by the Supreme Court while appreciating the evidence of an eye-witness that if the incident occurred at a public place, it is reasonable to infer that the street-lights illuminated the place sufficiently so as to enable the eye-witnesses to identify the assailants. The above observations of the Supreme Court aptly apply in the instant case for identification of the accused persons by the eye-witnesses Marotrao (P.W. 1) and Laxmibai (P.W. 8).
53. Moreover, even assuming that there was poor lighting, near the spot of the incident, still as held by the Supreme Court in the case of State of A.P. v. Dr. M. V. Ramana Reddy . Since the accused persons in the instant case were well known to the above eye-witnesses as already held by us in this judgment because they were friends of their deceased son Raju, were living in that area itself and were coming to their house to see their deceased son Raju, their identification of the accused persons even in poor light cannot be doubted. Further, according to their testimony, the accused persons had initially come to their house and was standing in the court-yard while they were standing upon the terrace of their house. They could, therefore, see them clearly in their house itself before they had started assaulting their son Raju by taking him to the spot of the incident near the house of Shrikhande. There is, therefore, no reason to disbelieve the evidence of Marotrao (P.W. 1) and Laxmibai (P.W. 8) upon the identity of the accused persons in the sense that they were the persons who had made the fatal assault with weapons upon their deceased son Raju near the house of Shrikhande between 8.30 p.m. to 9 p.m. on the date of the incident.
54. The learned counsel for the appellants has also urged that the motive for the assault is not proved by the prosecution in the instant case, because the Investigating Officer had not investigated whether in fact there was in existence a party by name “Chhatrapati Sena” or not. As regards the motive, the prosecution case is that the accused persons and the deceased Raju were previously the members of Chhatrapati Sena. However, the deceased Raju had left it and canvassed for Congress (I) candidate Ashok Dhawad in the previous Assembly Elections because of which his relations with the accused persons were strained. The accused persons wanted him to join Chhatrapati Sena which he refused to do because of which they assaulted him on the date of the incident.
55. In our view, when there is direct evidence to prove the guilt of the accused which is credible and trustworthy, the question of motive is immaterial. See State of A.P. v. B. Chandraiah, . Therefore, the direct evidence of the prosecution in the instant case which is credible and trustworthy cannot be discarded on the ground that the prosecution has failed to prove the motive for murder although despite the absence of proof to show whether there was in existence “Chhatrapati Sena” or not, the evidence of Marotrao (P.W. 1) and Laxmibai (P.W. 8) clearly shows that because the deceased Raju canvassed for Congress (I) candidate in the Assembly Elections, relations between him and the accused persons were strained leading to the fatal assault by the latter upon the former. The attempt made on behalf of the accused to create doubt about the prosecution case for lack of proof of motive cannot thus succeed. Therefore, even assuming that the motive is not proved by the prosecution in the instant case, presence and participation of the accused persons in the assault upon the deceased Raju is proved by unimpeachable and trustworthy evidence of Marotrao (P.W. 1) and Laxmibai (P.W. 8) and the failure to prove motive for the same would not thus affect the prosecution case.
56. The next question to be considered is whether there was in the instant case an unlawful assembly within the meaning of Section 141 of the IPC having a common object to assault and commit murder of the deceased Raju. On our finding hereinbefore rendered the presence and participation of the accused Nos. 1 to 6 in the assault upon the deceased Raju stands proved in the instant case. Even the independent witnesses who have truned hostile have stated that there were 9/10 persons who had committed assault upon the deceased Raju in the instant case. It is clear from the manner of assault in the instant case that the common object of the accused Nos. 1 to 6 was to assault and commit murder of the deceased Raju. As stated above, they had all gone to his house, had abused him, has called him to come down strairs after which they brought him in front of the house of Shrikhande and fatally assaulted him with deadly weapons like Gupti, Knife, motor-cycle chain, hockey stick and stick with which, as held by us, they were armed.
57. It is further necessary to see that the intention of the accused persons was not only to beat the deceased Raju so as to teach him lesson but to beat him un to death as is clear from the evidence of Marotrao (P.W. 1) and Laxmibai (P.W. 8) according to which, after the deceased Raju was beaten initially for about 15 minutes he had fallen down on the ground, but the accused were not satisfied with that and they continued to beat him and it was only when they had found that he had died that they had run away. The common object to beat him unto death is thus writ large upon the acts of the accused persons in the instant case.
58. There was thus unlawful assembly of the accused persons within the meaning of Sections 147, 148 and 149 of the IPC. As to the law on the question of an unlawful assembly within the meaning of the said provisions, it is wellsettled that a constructive or vacarious responsibility for the offence is fastened upon the members of an unlawful assembly. Once there is a finding that there is as unlawful assembly as defined in Section 141 of the IPC, it is not necessary for the Court to see as to who actually did the offensive act or for the prosecution to prove which of the members did which of the offensive acts or the overt acts. See Lalji v. State of U.P., and Rambilas Singh v. State of Bihar, . As held by us above, the common object of the unlawful assembly being to commit murder of the deceased Raju, the accused persons are guilty of offence under Section 302 read with Section 149 of the IPC besides Sections 147 and 148 of the IPC as rightly held by the learned Additional Sessions Judge, Nagpur. The guilt of the accused for all these offences is proved beyond reasonable doubt by the prosecution in the instant case.
59. In the result, the instant appeals fail and are dismissed. The conviction and sentence imposed by the learned Additional Sessions Judge, Nagpur upon the accused persons is thus maintained. The accused who are on bail, shall surrender to their bail within one week.
60. Appeals dismissed.