IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 239 OF 2005

Dharnidhar            …..Appellant

Vs.

State of U.P.                  …..Respondent

WITH

CRIMINAL APPEAL No. 429 OF 2005

Ram Sanehi & Ors           …..Appellants

Vs.

State of U.P.                   …..Respondent

WITH

CRIMINAL APPEAL No. 430 OF 2005

Shiv Dayal          …..Appellant

Vs.

State of U.P.                  …..Respondent

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JUDGMENT

Swatanter Kumar, J.

The accused Ram Sanehi,  Baladin, Ramadin, Shiv Dayal  

and  Dharnidhar  were  tried  for  the  murder  of  two  persons  

differently, namely, Bahadur Singh and his father Pyare Lal in  

Sessions Trial No. 44 of 1989.  The ld. Sessions Judge, Jhansi,  

vide its  judgment dated 7th August,  1992 after finding all  the  

accused guilty of different offences, including Section 302 of the  

Indian Penal Code (hereinafter referred to as “IPC”) punished  

them.  The order of punishment reads as under:

“Accused Ram Sanehi,  Ramadin, Baladin  and Shiv  Dayal  are  hereby  sentenced  to  suffer  life  imprisonment  under  section  302/34,  I.P.C.  for  committing  murder  of  Bahadur  Singh.   They  and  accused  Dharnidhar  are  also  sentenced  to  life  imprisonment  under  section  302/149,  I.P.C. for committing murder of Pyare Lal.  Accused  Ram  Sanehi,  Ramadin,  Baladin  and  Shiv  Dayal  are  mentioned  to  the  year’s  R.I.  u/s  148  I.P.C.  and  accused  Dharnidhar  is  sentenced  to  six  month’s  R.I.  u/s  147,  I.P.C.   All  these  sentences  shall run concurrently.

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All the accused preferred appeals against the judgment of  

conviction and order of  sentence before the High Court which  

also came to be dismissed vide judgment dated March 22, 2004,  

wherein  the  High  Court  declined  to  interfere  either  with  the  

findings of conviction or order of sentence  which consequently  

stood  confirmed.   Accused  Dharnidhar  filed  Criminal  Appeal  

No. 239 of 2005 against the judgment of the High Court, accused  

Ram  Sanehi  along  with  other  accused  filed  an  appeal  being  

Criminal Appeal No. 429 of 2005  and Shiv Dayal preferred a  

separate appeal being Criminal Appeal No. 430  of 2005 against  

the judgment of  the High Court.   Thus,  by this  judgment we  

shall dispose of all the above three appeals as they are directed  

against the common judgment of the High Court and are based  

upon common evidence.  The challenge to the judgment of  the  

High Court and the Ld. Sessions Judge,  inter alia, is primarily  

on the following grounds:

i) The  alleged  eye  witnesses  PW1  and  PW3  are  family  

members  of  the  deceased  and  as  such  are  interested  

witnesses.   The  conviction  of  the  appellants  is  based,  

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primarily, on the statements of these witnesses, which  

as such, is liable to be set aside.

ii) The prosecution has failed to prove any motive for the  

alleged commission of the crime.  The appellants had no  

motive  to  commit  the  said  crime  and,  therefore,  the  

story put forward by the prosecution  stands falsified.

iii) The  evidence,  including  the  evidence  of  Dr.  P.N.  

Dwivedi  (PW6)  creates  serious   doubts  in  the  case  

advanced  by  the  prosecution.   Particularly,  when  the  

Court had disbelieved Devi Singh, PW2,  who is alleged  

to have been a witness to both the incidents, the Court  

ought  to  have  come  to  the  conclusion  that  the  

prosecution  has  failed  to  prove  its  case  beyond  any  

reasonable doubt. The conduct and role of the accused as  

attributed by the prosecution is not only improbable, but  

is impossible to be believed.  It is contended that why  

would  the  accused  leave  the  brother  of  deceased  

Bahadur Singh, who was standing there at the time of  

his murder and go all the way to  kill his father Pyare  

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Lal.  Seeing this, in the light of the documentary and  

ocular  evidence,  benefit  of  doubt  ought  to  have  been  

given to the appellants.

iv) The  learned  trial  Court  as  well  the  High  Court  has  

fallen in error of law in convicting accused  Ram Sanehi,  

Baladin,  Ramadin  and   Shiv  Dayal  with  the  aid  of  

Section  34  and  accused  Dharnidhar  with  the  aid  of  

Section 149 of  the IPC respectively.   In the facts and  

circumstances  of  the  case,  the  basic  ingredients  for  

application of these provisions had not been satisfied by  

the prosecution.  Thus, the conviction is vitiated in law.  

On  the  contrary,  learned  counsel  appearing  for  the  

respondent  has  vehemently  argued  that  there  was  sufficient  

documentary and expert evidence on record.  The version of the  

eye witnesses cannot be doubted, their presence on the site was  

natural and they had no reason to falsely implicate all or any of  

the accused  in  the murder  of  their  brother  and father.   It  is  

contended that the version of eye witnesses is fully supported by  

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expert evidence and the statement of the Investigating Officer.  

Once the prosecution is able to fully corroborate the incident as  

recorded  in  the  FIR,  the  judgment  under  appeal  cannot  be  

interfered with.    

In  order  to  examine  the  rival  contentions  raised  in  the  

present appeals, it will be necessary for us to refer to the facts  

appearing from the case of the prosecution.

On 19.11.1988 at about 6.15 P.M. one Deo Pal, who was  

examined as PW1,  had lodged the FIR in the Police Station at  

Kakkarwai stating that on the evening of 19.11.1988 at about  

4.30 P.M., he along with his brother Devi Singh and one Kallu  

were sitting in the cattle shed of Jawahar, carpenter.  He had  

gone to sharpen his sickle.  After about 10 minutes, his brother  

Bahadur  Singh  (since  deceased)  came  there  to  sharpen  his  

gandasa.  In the meanwhile, appellants Ram Sanehi, Baladin @  

Balla, Shiv Dayal and Ramadin came there.  Accused Shiv Dayal  

has a sphere and  Ram Sanehi, Baladin and Ramadin had guns.  

Appellant Shiv Dayal inflicted sphere blow on the left shoulder  

of  Bahadur  Singh  and  thereafter,  the  three  accused  carrying  

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guns fired from their respective guns.   After receiving the bullet  

injuries,  Bahadur  Singh  fell  down  and  died.   The  witnesses,  

present  there,  were  not  able  to  save  him because  of  the fear  

caused    by  the  accused  persons.   After  murdering  Bahadur  

Singh, Ram Sanehi said that they had killed him and his father  

Pyare  Lal  should  also  be  killed.   Saying  these  words,  the  

appellants  proceeded towards the fields  where Pyare Lal  was  

watering  his  bajara crops.  Deopal,  Devi  Singh  and  his  wife  

Moola Bai were present in the field.   At that time, appellant  

Dharnidhar  also  came there  and  joined  the  other  appellants.  

Dharnidhar snatched the  kulhari of Pyare Lal. Thereafter, the  

said three accused, who were carrying guns, fired on Pyare Lal.  

Sustaining  the  fire  arm  injuries,  Pyare  Lal  fell  down.   Not  

satisfied  with  the  same,  Dharnidhar  then  cut  his  neck  with  

kulhari.  Deopal then raised an alarm and made a hue and cry.  

Several village persons rushed towards the spot but before they  

could  reach,  the  appellants  escaped  and  went  towards  the  

jungle.  This incident took place at about 4.45p.m.  PW1 reported  

the matter to the police station, as already noticed, and on the  

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basis  of  the  report,  H.C.  Shiv  Charan  prepared  the  report  

(Ext.Ka 27) made endorsement on the same at the G.D. report  

(Ext. Ka 28) and registered the case against all the appellants  

under Sections 147, 149, 302 and 149 of the I.P.C.

The case was initially investigated by Ram Autar Mathur  

(PW 10) who went to the spot along with two constables but the  

investigation could not be completed because of paucity of light.  

Next morning the I.O. conducted inquest of the body of deceased  

Bahadur Singh and recovered one empty cartridge from the spot,  

collected blood stained and simple earth sample from the spot  

and  prepared  recovery  memos.   He  also  completed  the  

investigation at the place of the  murder of Pyare Lal.  The dead  

bodies  of  Bahadur  Singh  and  Pyare  Lal  were  subjected  to  

autopsy  on  21.11.1988  by  PW6,  and  he  found  the  following  

injuries on the bodies of the deceased.

“Postmortem report of Bahadur Singh

Ante mortem injuries:-

(1) Gun shot  wound  of  entry  2  ½ cm x  2  cm x  thoracic  cavity  deep  on  the  left  nipple.  Blackening  present.   Direction  from front  to  back.  Margins inverted.

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(2) Gun shot  wound of  entry  1  cm x  0.75  cm x  thoracic  cavity  deep  on  upper  and  medical  portions of chest of right side, 2 cm below from  medical margin of clavicle.  Blackening present  and  direction  from  back  to  front  and  backwards.  Margins inverted.

(3) Two gun shot wounds of exit measuring 1 cm x  0.75 cm diameter in an area of 2 cm on right  lower portion of back of chest.  Corresponding  to injury no.2.

(4) Gun shot wound of entry 2 cm x 2 cm on left  lower portion of  back,  30 cm below from left  shoulder joint, direction from left to right.

(5) Gun shot wound of entry 2 cm x 1 cm x muscle  deep on epigastria portion of abdomen 18 cm  above from umbilicus.  Direction front to back.

(6) Gun shot wound of entry 2 cm x 1 cm on the  epigtastrian portion  of  abdomen,  1  cm above  from injury no. 5, Direction from front to back.

(7) Contusion 4 cm x 3 cm on middle and front of  forehead.

(8) Contusion 5  cm x 2 cm on middle  and right  side of back of chest, 4 cm away from mid line.

(9) Contusion 3 cm x 2 cm on lower and left side of  back of chest.

(10) Incised wound 2 cm x 2 cm x muscle deep, 9 cm  below from the left shoulder.

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Internal examination showed that third and  fourth ribs of left side and third rib of right  side  were  fractured.   Pleura  was  lacerated.  Both lungs were lacerated.   Thoracic  cavity  contained  about  1  ½  liters  of  liquid  blood.  Peritoneal  cavity contained about ½ liter of  Liquid  Blood.   Stomach  was  lacerated  and  contained semi digested food material.  Liver,  gall bladder and spleen were lacerated, death  was  caused  due  to  shock  and  hemorrhage  resulting from ante mortem injuries.

The doctor recovered one cork and 21 metallic  pellets  from  left  lung  and  thoracic  cavity.  One  cork  and  12  metallic  shots  were  recovered from right lung, liver and thoracic  cavity.   Two  corks,  18  metallic  shots  were  recovered  from  spleen  stomach  and  abdominal cavity.

Postmortem report of Pyare Lal

Ante mortem injuries:-

(1) Incised wound 8 cm x 3 cm x bone deep on right  lower  jaw.   4  cm below from angle  of  mouth  right side.

(2) Incised wound 10 cm x 6 cm x bone deep on  front  portion  of  neck.   Under  lying  bone  of  cervical vertebrae No. 3 fractured.  Soft tissues  and muscle cut.

(3) Gun shot wound of entry 3 cm x 2 cm x muscle  deep  on  lower  and  front  portion  of  left  arm.  Direction from left  to right,  8 cm above from  elbow  joint.   Blackening  present.   Margins  inverted.

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(4) Gun shot wound of exit 4 cm x 2 ½ cm on lower  and front portion of left arm.  Margins everted.  Injury corresponding to injury no. 3.

(5) Gun shot wound of entry 2 cm x 2 cm x muscle  deep on left exilla.

(6) Gun shot wound of entry 2 ½ cm x 1 ½ cm x  thoracic cavity deep on left side of chest 11 cm  below  from  left  axilla.   Blackening  present,  direction from left to right, Margins inverted.

(7) Gun  shot  wound  to  exit  five  in  number,  smallest  being  ½  cm  2  x  ½  cm  and  largest  being 0.75 cm x ½ in an area of 12 cm x 6 cm on  right portion of chest, 10 cm below from axilla  right side and 18 cm above from right anterior  supra  iliac  spines,  Injury  corresponded  to  injury no. 6.

(8) Gun  shot  wound  of  entry  1  cm  x  1  cm  x  abdominal  cavity  deep  on  upper  and  left  portion  of  abdomen,  10  cm  above  from  umbilicus,  Blackening  present.   Margins  inverted.  Directions from front to back.

(9) Abrasion 5 cm x 1 ½ cm on right lower front  portion of thigh, 7 cm above from knee joint.

(10) Abrasion 2 cm x 2 cm on the rest of the middle  finger of right hand.

Internal  examination  showed that  brain  was  pulpy.  Third cervical vertebrae was fractured.  Pleura  was  lacerated.   Larynx,  trachea  and  bronchi were cut.  Both lungs were lacerated.  Neck  was  cut.   Abdominal  cavity  contained  

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about  200  ml  liquid  blood.   Stomach  was  lacerated.   Liver  was  partially  lacerated.  Cause  of  death  was  shock  and  hemorrhage  resulting from ante mortem injuries.

The  doctor  recovered  one  cork,  one  big  metallic shot and two small metallic shot from  stomach, 2 corks and 5 small  metallic  shorts  were recovered from right and left lung.”

          The prosecution had amongst others  examined Deopal,  

PW1, Devi Singh, PW 2  and  Manohar, PW 3 who  had claimed  

to be the eye witnesses to either or both of the murders.  During  

the  course   of  investigation,  recoveries  were  made  upon  the  

statements made by the accused.   Thakur Das, PW 7 was an  

independent witness for the recovery of sphere, as pointed out by  

accused Shiv Dayal.  The investigation of the case was conducted  

by different officers.  H.C. Shiv Charan Singh, PW 11 was posted  

as Head Muherer and he had prepared (Ext. Ka 27) as well as  

registered the case in GD as (Ext.Ka 28).  PW1 and PW2 had  

fully supported the case  of the prosecution.  The blood marks  

were found at both the places of occurrence.  After completing  

the  investigation,  challan  under  Section  173  of  the  Criminal  

Procedure Code (hereinafter referred to as ‘Cr.P.C.’)  was filed  

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before the Court of competent jurisdiction.  After the case was  

committed to the Court of Sessions, all the accused were tried in  

accordance with the law.  Statement under Section  313 Cr.P.C.  

was recorded  and finally, as noticed above,  they were convicted  

and sentenced by the trial Court and the same was sustained by  

the High Court, giving rise to the present appeals.  

The arguments raised on behalf of the appellants, in fact,  

can  be  discussed  together  inasmuch  as  they  are  based  upon  

somewhat common submissions.   There is  no doubt that PW1  

and PW2, both are related to the deceased.    The contention  

raised before us is that both of them are interested witnesses  

and have not stated true facts before the Court and thus, their  

statements should be entirely disbelieved.  We are unable to find  

any merit in this contention.  It has come on record that Pyare  

Lal was pursuing    a case in which members of the family of the  

accused  persons  were  involved  in  a  murder.   There  was  

apparently some anger and rift between the families. According  

to the story of the prosecution, they had come prepared to kill  

Bahadur Singh as well as Pyare Lal as they were carrying guns,  

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sphere etc.   The deceased were attacked by the accused in the  

presence  of  their  brothers,  who  could  not  intervene  and  save  

them because of the fear of the gun fire and the manner in which  

the incident occurred.  It was but natural for the prosecution to  

produce PW1 and PW2 as the main eye witnesses as they had  

actually seen the occurrence and they have been believed by the  

trial Court, as well as by the High Court.  Even before us, no  

serious attempt has been made and infact, nothing appears from  

the record to show that these two witnesses were not present on  

the site.  There is no hard and fast rule that family members can  

never  be  true  witnesses  to  the  occurrence  and that  they  will  

always depose falsely before the Court.  It will always depend  

upon the facts and circumstances of a given case.  In the case of  

Jayabalan v. U.T. of Pondicherry [(2010)1 SCC 199], this Court  

had  occasion  to  consider  whether  the  evidence  of  interested  

witnesses can be relied upon.  The Court took the view that a  

pedantic  approach  cannot  be  applied  while  dealing  with  the  

evidence  of  an interested  witness.   Such evidence   cannot  be  

ignored  or  thrown out  solely  because  it  comes  from a  person  

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closely related to the victim.  The Court held as under:

“ 23. We are of the considered view that in  cases where the court is called upon to deal  with  the  evidence  of  the  interested  witnesses, the approach of the court, while  appreciating the evidence of such witnesses  must  not  be  pedantic.  The  court  must  be  cautious in appreciating and accepting the  evidence given by the interested witnesses  but the court must not be suspicious of such  evidence.  The  primary  endeavour  of  the  court  must be to look for consistency.  The  evidence of a witness cannot be ignored or  thrown out solely because it comes from the  mouth of a person who is closely related to  the victim.

24.  From a perusal  of  the record,  we find  that the evidence of PWs 1 to 4 is clear and  categorical  in  reference  to  the  frequent  quarrels  between  the  deceased  and  the  appellant.  They  have  clearly  and  consistently  supported  the  prosecution  version with regard to the beating and the  ill-treatment meted out to the deceased by  the  appellant  on  several  occasions  which  compelled  the  deceased  to  leave  the  appellant's  house  and  take  shelter  in  her  parental  house  with  an  intention  to  live  there  permanently.  PWs  1  to  4  have  unequivocally  stated  that  the  deceased  feared threat to her life from the appellant.  The  aforesaid  version  narrated  by  the  prosecution witnesses, viz. PWs 1 to 4 also  finds corroboration from the facts stated in  the complaint.”

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Similar view was taken by this Court in Ram Bharosey v. State  

of U.P. [AIR 2010 SC 917], where the Court stated the dictum of  

law that a close relative of the deceased does not, per se, become  

an  interested  witness.   An  interested  witness  is  one  who  is  

interested  in  securing  the  conviction  of  a  person  out  of  

vengeance or enmity or due to disputes and deposes before the  

Court only with that intention and not to further the cause of  

justice.   The  law  relating  to  appreciation  of  evidence  of  an  

interested witness is well settled, according to which, the version  

of an interested witness cannot be thrown over- board,  but has  

to be examined carefully before accepting the same.  In the light  

of  the above judgments,  it  is  clear that the statements of  the  

alleged  interested  witnesses  can  be  safely  relied  upon  by  the  

Court in support of the prosecution’s story. But this needs to be  

done with care and to ensure that the administration of criminal  

justice is not undermined by the persons, who are closely related  

to the deceased.  When their statements find corroboration by  

other witnesses,  expert evidence and the circumstances of the  

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case clearly depict completion of the chain of evidence pointing  

out to the guilt of the accused, then we see no reason why the  

statement  of  so  called  ‘interested  witnesses’  cannot  be  relied  

upon by the Court.  In the present case, the circumstances are  

such that we cannot find any error in the concurrent findings of  

fact recorded by the Trial Court, as well as by the High Court  

that these two witnesses were present at the respective places  

and had actually seen the occurrence.  Their statements about  

gun  fires,  as  well  as  the  injuries  caused  by  the  kulhari  and  

sphere respectively are duly supported by the medical evidence,  

as well as by the statements of the investigating officers.  Thus,  

we find that the contention raised on behalf of the appellants is  

liable to be rejected.

The second contention raised on behalf of the appellants is  

that  the  prosecution  has  failed  to  prove  any  motive  for  the  

commission of the crime, and in absence of clear and emphatic  

motive, the order of conviction is liable to be set aside and the  

accused  are  entitled  to  acquittal.   This  submission,  firstly,  is  

based on misreading of the record and secondly, it is devoid of  

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any merit.    It has come on record that one Umrao, father of  

appellant  Ram  Sanehi  was  murdered.   Bahadur  Singh  

(deceased)  was  prosecuted  for  the  said  murder.   Pyare  Lal  

(deceased), father of Bahadur Singh, was doing pairvi on behalf  

of   and  along  with  Bahadur  Singh,  in  which  he  was  finally  

acquitted.  It is also the case of the prosecution that there was  

enmity between these persons and all other appellants and the  

family of Ram Sanehi,  appellant.   The evidence of PW1, PW2  

and PW3 indicates that  the relations between these two families  

were quite strained, and the way the crime has been committed  

clearly indicates that the family of Ram Sanehi would have been  

unhappy with the acquittal  of  Bahadur Singh in that murder  

case.  This itself indicates some kind of motive for committing  

the  crime  in  question.   Be  that  as  it  may,  it  is  not  always  

necessary for the prosecution to establish a definite motive for  

the commission of the crime.  It will always be relatable to the  

facts and circumstances of a given case.  It will not be correct to  

say as an absolute proposition of  law,  that  the existence of  a  

strong or definite motive is a sine  qua non to holding an accused  

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guilty of a criminal offence.  It is not correct to say that absence  

of motive essentially results in the acquittal of an accused if he  

is otherwise found to be guilty.  In the case of  Babu Lodhi  vs.  

State  of  U.P. [(1987) 2 SCC 352], this Court took the view that  

in  so  far  as  the  adequacy  of  motive  is  concerned,  it  is  not  a  

matter  which  can  be  accurately  weighed  on  the  scales  of  a  

balance.  In   Prem Kumar  vs. State of Bihar  [(1995) 3 SCC  

228]  the Court discussed the concept of motive as applicable to  

Indian criminal jurisprudence and held as under:

                 “5.  ……………………………….The Courts  below  have  concurrently  held  that  the  motive suggested by the prosecution against  the  accused  persons  is  established.  When  there is sufficient direct evidence regarding  the commission of the offence, the question  of motive will not loom large in the mind of  the court. It is true that this Court has held  in State of U.P. v. Moti Ram [(1990) 4 SCC  389]  that  in  a case where  the prosecution  party  and  the  accused  party  were  in  animosity on account of series of incidents  over  a  considerable  length  of  time,  the  motive  is  a  double-edged  weapon  and  the  key  question  for  consideration  is  whether  the  prosecution  had  convincingly  and  satisfactorily established the guilt of all or  any of the accused beyond reasonable doubt  by letting in reliable  and cogent  evidence.  

19

Very often,  a motive is  alleged to indicate  the  high  degree  of  probability  that  the  offence  was  committed  by  the  person who  was prompted by the motive. In our opinion,  in a case when motive alleged against the  accused  is  fully  established,  it  provides  a  foundational material to connect the chain  of circumstances. We hold that if motive is  proved  or  established,  it  affords  a  key  or  pointer, to scan the evidence in the case, in  that  perspective  and  as  a  satisfactory  circumstance  of  corroboration.  It  is  a very  relevant,  and  important  aspect  -  (a)  to  highlight the intention of  the accused and  (b) the approach to be made in appreciating  the totality of  the circumstances  including  the  evidence  disclosed  in  the  case.  The  relevance of motive and the importance or  value to be given to it are tersely stated by  Shamsul  Huda  in  delivering  the  Tagore  Law Lectures (1902) - The Principles of the  Law of Crimes in British India, at page 176,  as follows:

                       ‘But proof of the existence of a motive is  not  necessary  for  a  conviction  for  any  offence. But where the motive is proved it is  evidence  of  the  evil  intent  and  is  also  relevant to show that the person who had  the  motive  to  commit  a  crime  actually  committed, it, although such evidence alone  would  not  ordinarily  be  sufficient.  Under  Section  8  of  the  Evidence  Act  any  fact  is  relevant  which  shows  or  constitutes  a  motive or preparation for any fact in issue  or relevant fact’.”

20

However, in cases which are entirely or mainly based upon  

and rest  on circumstantial  evidence,  motive can  have greater  

relevancy or significance (Babu Lodhi and Prem Kumar’s case  

(supra).  But  it  is  equally  true  that  when  positive  evidence  

against the accused is clear in relation to the offence, motive is  

not  of  much  importance.   Mere  absence  of  motive,  even  if  

assumed,  will  not  per  se  entitle  the  accused  to  acquittal,  if  

otherwise, the commission of the crime is proved by cogent and  

reliable  evidence  (State  of  Punjab   vs.  Kuljit  Singh  [2003 (2)  

RCR (Criminal) 629].  Significance of relevancy of motive would  

primarily depend upon the facts and circumstances of a given  

case.  In the case in hand, there are eye witnesses whose version  

is  supported by expert  and other  evidence.   Their  statements  

find corroboration and infact, they completely fit in with the case  

put forward by the prosecution and there is hardly any occasion  

for the Court to doubt the version of the prosecution.  Firstly, we  

find   that there exists some motive for Ram Sanehi and other  

appellants, who are his family members, to commit the crime,  

but in case of direct and clear evidence, there is no need for the  

21

Court  to  attach undue  emphasis  or  importance  to  the  motive  

behind  the  crime.   The  principles  afore  stated  would  clearly  

apply to the  facts of the present case and we cannot find fault in  

the  concurrent  judgments,  which  is  the  subject  matter  of  the  

present appeals.  

It  is  further  argued  that  there  are  some  variations  or  

doubts in the statements of the doctor and the eye witnesses.  

Emphasis was placed on the fact that the trial Court, in para 6  

of  its  judgment,  disbelieved  Devi  Singh,  PW 2,  and  thus  the  

obvious  conclusion ought to have been that the prosecution has  

failed to bring home the guilt of the accused.  This contention,  

again, does not impress us.  Witnesses have been examined in  

the  Court  after  a  considerable  lapse  of  time.   It  is  neither  

unnatural  nor  unexpected  that  there  could  be  some  minor  

variations in the statements of the prosecution witnesses.  Both  

PW1 and PW2 were the relations of both the deceased and were  

eye witnesses to the occurrence.  Certain part of the statement of  

Devi Singh,  PW2, have been doubted by the trial Court, in view  

of the fact that at one place he stated that he had gone to village  

22

Durkhuru on the date of the occurrence and thereafter, in reply  

to the Court’s question he was consistent  with his statement  

made  under  Section  161  of  the  Cr.P.C.  as  well  as  the  

examination-in-chief, that he had gone to village Durkhuru on  

the day subsequent to the date of the occurrence.  The statement  

of  PW2  does  not  really,  in  any  way,  vitiate  the  case  of  the  

prosecution which is aptly  supported  by the statements of PW1,  

PW2, PW6 and the statements of other witnesses.   PW 6 has  

clearly stated that the dead bodies of the deceased contained the  

injuries of gun fire as well as that of kulhari and sphere.   It will  

be useful to refer to the statement of this witness, particularly,  

with reference to   gun shots, bhala as well as kulhari.   

“The injury No. 10 of Bahadur was possible  by the Bhala which was exhibit  – 1.   The  witness  has  been  shown the  sphere/Bhala  the injury No. 1 to 6 can be caused by fire  arms injuries  No.  7 & 8 can be caused to  fallen when fallen. But at one time both the  injuries caused which is not possible.  The  injuries No. 9 may be caused by fall.  These  injuries caused and it may be possible that  these injuries caused on dated 19.11.88 at  4.30 o’ clock in the evening.  These injuries  were  normal  but  these  injuries  are  sufficient for death.

23

I had seized from the body of the deceased  one cork and 21 metal pallets from the left  side’s lungs.  One Cork and 12 pallets were  seized from the right lung and from forensic  cavity of muscles.   2 Corks and 18 pallets  were recovered from the lever and stomach  cavity.

From the body of the deceased one Baniyan  and one Chaddi, One Lungi was recovered  and after preparing its Bundles were given  to the constable.

The injury No. 1 and 2 by Kulahdi Ex2 was  possible to have occurred.  Axe was shown  to the witness injury No.3 to 8 is possible to  be caused by fire arms.  Injury No. 9 to 10  could  be  caused  by  falling  on  the  ground.  These  injuries  were  sufficient  to  cause  death.   These  injuries  could  have  been  possibly caused on 19.11.88 at about 4.30 in  the evening.   

One  cork  one  big  pellet  and  two  small  pellets’  were  recovered  from his  level  and  two  corks  and  five  small  pallets  were  recovered  from  his  left  and  right  lever.  These  articles  were  handed  over  to  the  constable  after  sealing  it.   That  from the  body of the deceased one Kurta, One Dhoti,  One Baniyan and One ring of  Coper were  recovered  which  were  sealed  and  handed  over to the Constable who had come with.”

This witness was cross examined at some length, but nothing  

favourable to the accused could come on record.   The statement  

24

of this witness clearly shows that there were gun shot injuries  

on the bodies of both the deceased as well  as sphere and kulhari  

injuries on their shoulder and neck respectively.  Thus, medical  

evidence  fully  corroborates  the  statements  of  PW1 and  PW3.  

Even if the statement of Devi Singh, PW2, is ignored, there  is  

no  reason  whatsoever  before  the  Court  to  doubt  the  version  

given by  PW1 and PW3.  Their presence at the site was natural.  

In addition to this, it must be noticed that upon the statement of  

Shiv  Dayal,  the sphere  (Ext.  Ka 1)   was  recovered  from the  

bushes  of  the  village  Kharwanch  in  presence  of  Thakur  Das,  

PW 7, and Kanhaiya Lal.  Thakur Das, PW 7, appeared as a  

witness and corroborated the evidence of  Ranjit  Singh,  PW 9.  

The sphere was sent for chemical and serological examination.  

The report of the Chemical Examiner and Serologist (Ext. Ka 32)  

was received and it showed that the sphere contained human  

blood.     The involvement  of  accused Shiv  Dayal  along with  

other accused persons, the recovery of the weapons and the fact  

that   human  blood  was  traced  on  the  recovered  weapon  

completes the chain of events relating to the commission of the  

25

crime.  It will  not be in conformity with the settled canons of  

criminal   jurisprudence   to  disregard  the  evidence  merely  

because Devi Singh, PW 2, had made a variable statement which  

could be the result of confusion or lack of understanding  the  

question in its proper perspective, more so, when he immediately  

in answer to the Court’s  question, stated, that he had gone to  

village Durkhuru on the  day subsequent to the commission of  

the crime and not on the same day.  It will be unfair, in any case,  

to disbelieve the presence of  PW1 and PW3 at the respective  

places of occurrence and their statements, merely because PW2’s  

statement creates certain doubts as regards his presence.   As  

already noticed, the counsel for the appellant  had, with some  

vehemence, argued about the unnatural conduct  attributed by  

the prosecution  to the accused.  It was argued that brother of  

deceased Bahadur Singh was right in front of the accused at the  

place of first occurrence, and they would have killed him rather  

than  going  to  the  other  site  to  kill  Pyare  Lal,  the  father  of  

deceased Bahadur Singh.  This argument hardly cuts  ice, much  

less, leads to any favourable conclusion   for the accused.  There  

26

is specific evidence on record   which has been noticed by the  

High Court as well as by the Trial Court that Bahadur Singh  

was prosecuted for the murder of Umrao, Ram Sanehi’s father  

and was acquitted.  The case was contested by Pyare Lal, father  

of Bahadur Singh.  We have already indicated that there is some  

motive  apparent  for  commission  of  the  crime,  which  further  

indicates in the light of this evidence that they preferred to kill  

Bahadur Singh and his father Pyare Lal.  This  cannot be said to  

be unnatural or of such  a nature that it is not normally expected  

of a person intending to commit a crime.  

Another reason is the statement of PW3.  PW3, Manohar is  

the son of the deceased Pyare Lal and has supported the case of  

the prosecution.  If this witness was lying, then he would have  

certainly deposed that he also was an eye-witness to the first  

occurrence  i.e.  murder  of  Bahadur  Singh.   However,  in  his  

examination-in-chief, he has specifically deposed that he was an  

eye-witness  only  to  the  murder  of  Pyare  Lal,  his  father  and  

never referred to the murder of his brother, Bahadur Singh.  The  

truthfulness and bona fide of this witness can hardly be doubted.  

27

He has  further  deposed  that  Dharnidhar  had  not  come  with  

other accused but had suddenly entered there and snatched the  

kulhadi  from  his  father.   With  that  kulhadi,  he  has  caused  

injury on the neck of the deceased Pyare Lal.  If this witness was  

to falsely implicate all the accused, nothing preventing him from  

stating that Dharnidhar had come with all other accused and  

they  together  attacked  the  deceased  and  also  that  he  was  a  

witness  to  the  murder  of  Bahadur  Singh  and  that  even  

Dharnidhar  was  involved  in  the  murder  of  his  brother.  His  

statement  is  fully  supported  by  PW1,  as  well  as  the  

Investigating  Officer.   If  they  were  falsely  implicated,  in  all  

probability, PW1, PW2 and the Investigating  Officer could have  

named Dharnidhar in relation to the first occurrence, i.e. murder  

of Bahadur Singh.  The attempt was also made to create a dent  

in the case of the prosecution on the ground that Jawahar, who  

was stated to be present, was not examined by the prosecution  

and was the only independent witness.  Thus, adverse inference  

should be drawn against the prosecution for this purpose.  This  

contention has rightly been rejected by the learned trial Court  

28

and for correct reasons.  The prosecution has filed an affidavit  

that the said witness has been won over by the accused and thus  

he was not examined.  The Courts have already relied upon the  

judgment of this Court in Mst. Balbir Kaur  vs.  State of Punjab  

[1997 Crl.L.J. 273]  and observed as under:

“It  is  undoubtedly  the  duty  of  the  prosecution  to  lay  before  the  Court  all  material  evidence  available to it  which is  necessary  for  unfolding  its  case;   but  it  would be unsound to lay down as a general  rule that every witness must be examined  even  though his evidence may not be very  material  or even  it  is  known that he has  been won over or terrorized.  In such a case,  it is always open to the defence to examine  such witnesses and the Court can also call  such witness in the box  in the interest of  justice under Section 540 Cr.P.C.”     

Therefore,  we  have  no  hesitation  in  rejecting  this  contention  

raised on behalf of the appellants.   

Still another aspect of this case is that when the accused  

were being examined under Section 313 Cr.P.C.,  they,  barely,  

denied the incident  and stated that there were  land disputes.  

No evidence in  that  behalf  had been adduced by the accused  

persons.  Even if this statement is assumed to be  correct, now  

29

the accused cannot turn their  back and deny the existence of  

dispute between the parties. This would further be one of the  

links  in  the  chain  completing  the  crime  of  murder.   Besides  

giving a general denial even to the basic facts, the accused in the  

last two questions put to them by the Court, in their statements  

under  Section  313 of  the  Cr.P.C.,  stated  that  Deopal  etc.  are  

from  the  same  family   and  they  have  falsely  given  evidence  

against them.  They also stated that Deopal  and the family of  

the  deceased   wanted  to  grab  their  land  and,  therefore,  they  

have falsely implicated them in the present case. It is a settled  

principle of law that the statement made by the accused under  

Section 313 of the Cr.P.C. can be used by the Court to the extent  

that  it  is  in  line  with  the  case  of  the  prosecution.  The  same  

cannot  be  the  sole  basis  for  convicting  an  accused.   In  the  

present case, the statement of accused before the Court, to some  

extent, falls in line with the case of the prosecution and to that  

extent,  the  case  of  the  prosecution  can  be  substantiated  and  

treated as correct by the Court.   The legislative intent behind  

this section appears to have twin objects. Firstly, to provide an  

30

opportunity  to  the  accused  to  explain  the  circumstances  

appearing  against  him.  Secondly,  for  the  Court  to  have  an  

opportunity to examine the accused and to elicit an explanation  

from him, which may be free from the fear of being trapped for  

an  embarrassing  admission  or  statement.   The  proper  

methodology to  be adopted by the Court  while  recording the  

statement of the accused under Section 313 of the Cr.P.C. is to  

invite   the  attention of  the accused to  the circumstances  and  

substantial evidence in relation to the offence, for which he has  

been  charged  and  invite  his  explanation.   In  other  words,  it  

provides an opportunity to an accused to state before the Court  

as to what is the truth  and what is his defence, in accordance  

with law.  It was for the accused to avail of that opportunity and  

if he fails to do so then it is for the Court to examine the case of  

the prosecution  on its evidence with reference to the statement  

made by the accused under Section 313 of the Cr.P.C. In Hate  

Singh Bhagat Singh vs.  State of Madhya Bharat [AIR1953 SC  

468],  while  dealing  with  Section  342  of  the  old  Cr.P.C.  

equivalent to Section 313 of the present Cr.P.C. observed that  

31

answer of the accused given can be used in other enquiries or  

trials for other offences.  In the case of  Narayan Singh  vs. State  

of Punjab [(1963) 3 SCR 678 a Three Judge Bench of this Court  

held as under:

“Under  Section  342  of  the  Cr.P.C.  of  Criminal Procedure by the first Sub-section,  insofar as it is material, the Court may at  any stage of the enquiry or trial and after  the witnesses for the prosecution have been  examined and before the accused is  called  upon for his defence shall put questions to  the  accused  person  for  the  purpose  of  enabling  him to  explain  any  circumstance  appearing  in  the  evidence  against  him.  Examination under Section 342 is primarily  to  be  directed  to  those  matters  on  which  evidence has been led for the prosecution to  ascertain  from  the  accused  his  version  or  explanation  if  any,  of  the  incident  which  forms the subject matter of the charge and  his defence. By Sub-section (3), the answers  given  by  the  accused  may  “be  taken  into  consideration” at the enquiry or the trial. If  the  accused  person  in  his  examination  under  Section  342  confesses  to  the  commission  of  the offence  charged against  him  the  Court  may,  relying  upon  that  confession, proceed to convict him, but if he  does  not  confess  and  in  explaining  circumstance  appearing  in  the  evidence  against  him  sets  up  his  own  version  and  seeks to explain his  conduct  pleading that  

32

he has committed no offence, the statement  of  the  accused  can  only  be  taken  into  consideration in its entirety.

Following  the  law  laid  down  in  Narayan  Singh’s case (supra) the Apex Court in State  of  Maharashtra  v.  Sukhdeo  Singh  [1992  CriLJ 3454] further dealt with the question  whether  a  statement  recorded  under  Section 313 of the Cr.P.C. can constitute the  sole  basis  for  conviction  and  recorded  a  finding  that  the  answers  given  by  the  accused  in  response  to  his  examination  under Section 313 of the Cr.P.C. of 1973 can  be  taken  into  consideration  in  such  an  inquiry  or  trial  though  such  a  statement  strictly  is  not  evidence  and  observed  in  paragraph 52 thus:

Even on the first principle we see no reason  why  the  Court  could  not  act  on  the  admission  or  confession  made  by  the  accused in the course of the trial or in his  statement recorded under Section 313 of the  Cr.P.C.....

It  is  thus  well  established  in  law  that  admission  or  confession  of  accused  in  the  statement under Section 313 of the Cr.P.C.  recorded in the course of trial can be acted  upon  and  the  Court  can  rely  on  these  confessions to proceed to convict him.”

33

The possibility  of  the accused being falsely  implicated in this  

case, in our opinion, stands ruled out.   The statement of the  

afore-  referred  witnesses,  read  in  conjunction  with  the  

documents filed on record, expert evidence, recovery  of weapons  

and blood stained earth, clearly  establishes beyond reasonable  

doubt, the guilt of the accused.

Having  discussed  the  merits  of  the  case,  we  would  now  

proceed to deal with the last contention raised on behalf of the  

appellant-accused that the Court could not have convicted  all  

the accused with the aid of Section 34 and/or 149 IPC.  There is  

no doubt that Shiv Dayal has been attributed a common role for  

the  second  incident  and  has  been  convicted  on  the  basis  of  

Section 34 and/or 149 IPC.  As per the case of the prosecution  

there were 5 persons involved in the commission of the crime.  

Shiv  Dayal  was  stated  to  have  given  sphere   blow  to  the  

deceased Bahadur Singh and thereafter with the intention to kill  

Pyare Lal,  moved together with the other accused to  the site  

where Pyare Lal was murdered.  Dharnidhar had joined Ram  

Sanehi, Baladin, Ramadin and Shiv Dayal. Thus, there were 5  

34

persons who constituted a common unlawful assembly and were  

carrying weapons with an intention to commit an offence.   They  

had knowledge and intention in mind that they are going to kill  

Pyare  Lal,  as  is  evident  from  the  evidence  on  record.   The  

learned  counsel  appearing  for  the  appellants  contended  that  

there was neither  any common object nor any intention on the  

part of the accused to kill Pyare Lal and for that matter, even  

Bahadur Singh.  They have been falsely implicated in the case  

by the prosecution.   As far as the plea of  false implication is  

concerned  we  have  already  rejected  it  and  as  far  as  their  

involvement in the commission of crime in terms of Section 34  

IPC  is  concerned,  it  is  obvious  that  a  criminal  act  has  been  

committed by them in furtherance of a common intention, and  

each of them was liable to be prosecuted for the same, once they  

had murdered Bahadur Singh.  PW1, who was an eye witness to  

the said murder, in his examination-in-chief stated as under:    

“These  persons  are  present  in  the  court  now.  Shiv Dayal has been thrown the bhala  to my brother namely Bahadur which was  hit to his left shoulder sides chest portion.  

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Then Ramsanehi, Balaprasad and Ramadin  had  fired   with  their  own  riffles  respectively.  My brother Bahadur fallen on  the  ground  we  persons  who  were  present  there has not said any  word on account of  fear.  Then Ram Sanehi said that we have  killed him Now his father Pyarelal is to be  killed.   Saying  such  words  these  persons  have been gone the court yard.  After their  departure I have seen my brother Bahadur.  He was dead.  My brother Bahadur was lay  down in the court yard which was in front  door  of  the  Jawahar  Badhai.   I  Devi  and  Lally have been followed to Ram Sanehi and  others and reached to the court yard of the  field where my father was busy in storing  the jwar.  My brother Manohar and mother  Mula bai were present there.  I have seen  that these four accused were present there.  In  the  meanwhile  Dharnidhar  came  from  some where/or from some place Dharnidhar  has snatched the Kulhadi (an axe) from the  hands of my father.  Ram Sanehi, Baladin  alias  Balla  &   Ramadin  had  fired  on  my  father from their own riffles.  My father lay  down  on  the  ground.   Dharnidhar  was  cutting  the  neck  of  my  father.   We  have  started  shouting.   After  hearing  the  shouting so many persons rushed out here.  But they could not reach at the spot.  After  seeing  the  crowd  of  people  of  the  village  these accused persons have been run out to  the jungle area.  My father had been fallen  at  the  distance  of  7  steps  away  from the  Mahua Tree in  the Ladaiya fields.   When  the accused persons left that place at that  time we had gone to seen the condition of  my father.”

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(emphasis supplied)

        Let us examine the judgments of this Court in relation to  

common intention and commission of crime by the members of  

an unlawful assembly.  It is a settled principle of law that to  

show common intention to commit a crime it is not necessary for  

the prosecution to establish, as a matter of fact, that there was a  

pre-meeting  of  the  minds  and  planning  before  the  crime was  

committed.   In  the  case  of  Surendra  Chauhan   vs.   State  of  

Madhya  Pradesh  [AIR  2000  SC  1436],  this  Court  held  that  

common intention can be developed on the spur of the moment.  

Also, under Section 34, a person must be physically present at  

the place of  actual commission of the crime.   The essence is the  

simultaneous consensus of the minds of persons participating in  

the criminal  act  and such consensus can be developed on the  

spot.    It  is not mandatory for the prosecution to bring direct  

evidence of common intention on record and this depends on the  

facts and circumstances of the case.  The intention could develop  

even during the course of occurrence.  In this regard   reference  

can be made to Ramaswamy Ayhangar  vs.  State of Tamil Nadu  

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[(1976)  3  SCC 779]  and Rajesh  Govind Jagesh   vs.   State  of  

Maharashtra  [(1999)  8  SCC  428].   In  other  words,  to  apply  

Section  34,  two  or  more  accused  should  be  present  and  two  

factors  must  be  established  i.e.  common  intention  and  

participation of the accused in the crime.  Section 34  moreover,  

involves vicarious liability and therefore, if intention is proved  

but no overt act is committed, the section can still be invoked.  

In the present  case all the 4 accused had gone together armed  

with three guns   and one sphere  and after  shouting,  making  

their  minds  clear,  had  fired  at  Bahadur  Singh  causing  gun  

injuries and sphere injury on his shoulder.  The learned Trial  

Court,  besides  recording  the  finding  against  the  accused  on  

motive and referring to the recovery of the sphere, has also, in  

great detail, dealt with the injuries caused by the accused upon  

the two deceased. In terms of the medical reports proved by PW  

6, (being Ext. K3 and K4), there were four gun shots on the body  

of  each  of  the  deceased  and  in  addition  thereto  one  incised  

wound  near  the  shoulder  of  Bahadur  Singh  and  two  incised  

wounds on the neck of Pyare Lal. The medical evidence is clear  

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that these injuries could be caused by gun, sphere and kulhari.  

The  attending  circumstances  fully  support  the  case  of  the  

prosecution. PW1 and PW3, who were present at the different  

places  of  occurrence,  have  frankly  stated  that  they  were  to  

intervene and save their brother and father but because of the  

fear of the gun they could not do so. Having found the above four  

accused guilty on the strength of Section 302 read with Section  

34 of the IPC, the Trial Court held all the 5 accused are guilty of  

Section 302 read with Section 149 of the IPC for the murder of  

Pyare  Lal.  It  has  been  shown  in  the  evidence  that  after  

committing the murder of  Bahadur Singh,  they moved to  the  

fields where Pyare Lal was watching his bajra crop, after having  

clearly made up their minds and with a common object to kill  

Pyare  Lal.  Once  they  reached  the  spot,  they  were  joined  by  

Dharnidhar,  who  also  participated  in  the  commission  of  the  

crime and in fact, played an active role by snatching the kulhari  

of the deceased and causing injury on his neck. The said injury  

and  the  gun  injuries  proved  to  be  fatal,  which  ultimately  

resulted in the death of Pyare Lal on the spot itself. In fact, it is  

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not  even  expected  of  the  prosecution  to  assign  particular  or  

independent  roles  played  by  each  accused  once  they  are  

members of unlawful assembly and have assaulted the deceased  

persons, which resulted in their death. Every person of such an  

unlawful assembly, can be held to be liable. In the case of Sheo  

Prasad Bhore v. State of Assam [(2007) 3 SCC 120], this court  

took a similar view.  

        In the case of Md. Ankoos vs. Public Prosecutor, High Court  

of A.P. [AIR 2010 SC 566], this Court held as under:  

“28.  ……………………..Section  149  IPC  creates  constructive  liability  i.e.  a  person  who is a member of the unlawful assembly  is made guilty of the offence committed by  another  member  of  the  same assembly  in  the circumstances mentioned in the Section,  although he may have had no intention to  commit that offence and had done no overt  act except his presence in the assembly and  sharing the common object of that assembly.  The legal position is also fairly well settled  that because of a mere defect in language or  in the narration or in form of  the charge,  the conviction would not be rendered bad if  accused has not been affected thereby…….”

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          In the case of Pandurang Chandrakant Mhatre v. State of  

Maharashtra  [(2009)  10  SCC 773],  this  Court  enunciated  the  

principle that under Section 149, two ingredients are required to  

be satisfied. Firstly, there has to be the  commission of an offence  

by any member of an unlawful assembly. Secondly, such offence  

must have been committed in prosecution of the common object  

of  that  assembly  or  must  be  such  that  the  members  of  that  

assembly  knew  it   to  be  likely  that  the  offence  would  be  

committed. The Court held as under:

“65.  Section 149 IPC creates a specific and  distinct  offence.  Its  two  essential  ingredients are:

(i) commission of an offence by any member  of an unlawful assembly and;

(ii) such offence must have been committed  in prosecution of the common object of that  assembly or must be such as the members  of  that  assembly  knew  it  be  likely  to  be  committed.

66. In Masalti v. State of U.P. [AIR 1965 SC  202], this Court exposited:  

“17...What  has  to  be  proved  against  a  person who is alleged to be a member of an  unlawful assembly is that he was one of the  persons  constituting  the  assembly  and  he  

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

xxx xxx xxx xxx

71.   Having  carefully  examined  the  testimony  of  eye-witnesses,  we  find  that  prosecution has been able to establish that  party of assailants comprised of more than  five persons and that they formed unlawful  assembly. It is also seen from the evidence  that  at  least  five  persons  chased  the  deceased  and  then  attacked  him.  These  members  of  the  unlawful  assembly  who  chased and attacked the deceased definitely  

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shared common object of causing murder of  Suresh  Atmaram  Gharat.  A-1  had  died  during  pendency  of  the  appeal  before  the  High Court and, therefore, nothing further  needs to be said about his role.”

The principles controlling the application of provisions of Section  

149 have been quite well settled by now. Years back, the bench of  

this court in Masalti v. State of U.P. [1964 (8) SCR 133] declared  

the dictum of law that the prosecution has to prove against a  

person, who is alleged to be a member of an unlawful assembly,  

that  the person constitutes  the assembly  and has  entertained  

along  with  the  other  members  of  the  assembly,  the  common  

object, as defined by Section 141 of the IPC. The crucial question  

to  be  determined  in  such  a  case  is  whether  the  assembly  

consisted of five or more persons and whether the said persons  

entertained  one  or  more  of  the  common  objects.  For  

determination of the common object of the unlawful assembly,  

the conduct of each of the members of the said assembly before  

the attack,  at the time of attack and thereafter, as well as the  

motive  for  the  crime are  some of  the  relevant  considerations.  

However, the time of forming an unlawful intent is not material  

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because it is possible that in a given case an assembly, which is  

lawful to begin with, subsequently becomes unlawful. In other  

words,  unlawful  intent  can  develop  during  the  course  of  the  

incident at the spot co instanti. [Maranadu v. State by inspector  

of Police, Tamil Nadu (2008) 16 SCC 529].  

       If we see  the facts of the present case, it is obvious that the  

four  accused  were  together  and  had  openly  declared  their  

intention  to   kill  Pyare  Lal.   They  were  then   joined   by  

Dharnidhar,  in furtherance of this common object,  to commit an  

offence  In  this  manner   an  unlawful  assembly   was  formed.  

Dharnidhar assaulted Pyare Lal with a kulhari.  Thus, every one  

of them participated in the commission of the crime, besides the  

fact that they had a common object to kill Pyare Lal. In these  

circumstances, we are unable to find any legal or other infirmity  

in the judgment of the Trial Court, as well as that of the High  

Court in holding that the four accused, in the case of murder of  

Bahadur Singh, were guilty of the offence under Section 302 read  

with Section 34.  Furthermore, in the case of  the deceased Pyare  

Lal,  all   five  of  the accused were guilty  of  the offence under  

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Section  302  read  with  Section  149  IPC.  Besides  this  fact,  

accused Ram Sanehi, Ramadin, Baladin and Shiv Dayal accused  

had  also  committed  an  offence  under  Section  148  of  the  IPC  

while  accused  Dharnidhar  had  committed  an  offence  under  

Section 147 of the IPC.

         In view of the above elaborate reasoning, we do not find  

any merit in  the contentions raised on behalf of the appellants  

in all the appeals.  The same are therefore rejected.  Thus,  we  

are unable to persuade ourselves to interfere in the judgment of  

the conviction or  even in the order of sentence for that matter.  

Without hesitation we dismiss these appeals.  

……………………………….J. (DR. B.S. CHAUHAN)

………………………………..J. (SWATANTER KUMAR)

New Delhi, July 8, 2010   

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