IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

 CRIMINAL APPEAL NO. 891 OF 2006

Vishnu & Ors. … Appellants

Versus

State of Rajasthan & Anr. … Respondents

J U D G M E N T

J.M. Panchal, J.

The  instant  appeal  by  Special  Leave  is  

directed  against  Judgment  dated  August  3,  2005  

rendered by Division Bench of High Court of Judicature  

of Rajasthan at Jaipur Bench, Jaipur in D.B. Criminal  

Appeal No. 359 of 1998 by which Judgment dated April  

17, 1998 passed by Learned Sessions Judge, Karauli, in

Sessions  Case  No.  9  of  1996  convicting  the  five  

appellants under Sections 302 r/w 149, 325 r/w 149,  

323 r/w 149 as well as convicting the appellant Nos. 1  

and  4  under  Section  147  and  148  IPC  as  well  as  

sentences imposed therefore, are confirmed.

2. The facts emerging from the record of the case are  

as under:

There is a piece of land admeasuring about  

five  Bighas  situated  in  village  Golara,  Distt.  Sawai  

Madhopur   now  Distt.  Karauli  in  Rajasthan.   The  

Government  allotted  the  said  land  to  the  father  and  

brother  of  the  first  informant  Babu  Lal  but  the  

appellants and others who are Brahmins by caste were  

not permitting them to cultivate the same, as a result of  

which disputes relating to the said land were going on  

between Brahmins and Jatavas of village Golara.  The  

incident in question took place at about 7.00 P.M. on  

August 28, 1995.  Babulal who was the first informant  

had  gone  to  place  of  one  Babu  Maharaj  Devta  for  

performing  religious  ceremonies  along  with  his  father  

Harmukh, Roshan S/o. Cheta, Prahlad S/o. Sualal and  

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others.  On the said day sports such as long jump etc.  

were also being played near the House of Babu Maharaj  

Devta and Babulal and others were watching the game  

of long jump.  When the game was being played, one  

Kanhaiya  Lal  Sharma,  resident  of  village  Golara  sent  

Lata daughter  of  Bhanwar Lal who is appellant  no. 5  

herein,  to  inform Bhanwar  Lal  and  his  brothers  that  

Jatavas were tilling the disputed land with a tractor.  At  

the time when the information was conveyed Kanhaiya  

Lal  father  of  the  appellant  No.  5  as  well  as,  the  

appellants and others were present near the house of  

Babu  Maharaj  Devta.   Kanhaiya  Lal  father  of  the  

appellant  No.  5   on  learning  about  the  information  

conveyed by  Lata loudly  shouted that  where  all  their  

people  had  gone.  On  hearing  this  exhortion,  Babu  

Devta, Mahesh, Brahmanand, Kanta, Vishnu, Dindayal,  

Kailash,  Bhagwan  Lal,  Bhanwar  Lal  and  Lata  all  

residents of village Golara along with Suresh, Rajendra  

and Guddu S/o.  Babulal  who are  residents  of  village  

Masalpur,  armed  with  axes  and  lathis  proceeded  

towards the  land which was being cultivated by Ram  

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Khiladi who is brother of the first informant.  As Kanta,  

Vishnu  etc.  were  menacingly  proceeding  towards  the  

land  in  dispute,  the  first  informant  got  scared  and  

started  running  towards  his  house  to  inform  other  

members of his family because his brother Ram Khiladi  

with another relative Devi  Charan was cultivating the  

field.  In fact, there was no tractor deployed on the land  

at all.  Brahmanand, Kanta etc. gathered together at the  

disputed place.  On seeing these people coming towards  

the field, Ram Khiladi started running away.  However,  

with a view to saving Ram Khiladi, the first informant  

and his other relatives including his father Harmukh,  

his  mother  Sua  Bai,  his  wife  Birma  Bai,  his  brother  

Sukh  Lal  and  Raj  Bai  wife  of  Sukh Lal  came  to  the  

rescue of Ram Khiladi.  On the way near the field of one  

Kanhayia Gujar, the first informant was belaboured by  

Brahmanand by giving a lathi blow on his left shoulder.  

Bhanwar Lal, Vishnu, Kanta and Mahesh also assaulted  

him by means of lathi, on different parts of his person.  

The first informant fell down on the ground on receipt of  

injuries but the appellants and others did not spare him  

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and continued to beat him with sticks and fists blows  

when he was lying on the ground.  Noticing that the first  

informant  was  surrounded  by  the  appellants  and  

others, his wife Birma Bai came to his rescue and fell  

upon him.  This is how the complainant could be saved.  

The wife of the first informant was also not spared and  

beaten  by  sticks.   When  the  appellants  and  others  

turned  towards  the  father  of  the  first  informant,  he  

pleaded  with  the  appellants  to  spare  him  and  his  

relatives but of no avail and he was also assaulted and  

injured.  It was noticed by the first informant that his  

brother Sukh Lal and his wife were running towards the  

house to save themselves, but they were being chased  

by the appellants and others.  Sukh Lal was overtaken  

and  assaulted  by  Bhanwar  Lal  the  appellant  no.  5  

herein,  Bhagwan Lal,  Din Dayal,  Brahmanand who is  

appellant no. 3 herein, Vishnu who is appellant no. 1  

herein, Mahesh who is appellant no. 2 herein and Kanta  

Prasad who is appellant no. 4 herein.  All the appellants  

had mounted attack on Sukh Lal with an intention to  

kill him.  Thereafter the appellants chased Raj Bai.  She  

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was also overtaken and injured by means of lathi blows.  

Sua Bai who was mother of the first informant was also  

assaulted by means of lathis as a result of which she  

sustained injuries.  The appellants had left the mother  

of  the  first  informant  who  had  become  unconscious,  

thinking that she was dead.  The first informant and his  

relatives were saved by Bharosi, Bhairu Gujjar, Ummed,  

Radhey Shyam and others of village Golara.   

3.   Because of the injuries sustained by him, Sukh  

Lal died on the spot and as it was late in the night, the  

body  was  kept  in  the  house  itself.  On  the  date  of  

incident  itself,  the  first  informant  had  got  scribed  

complaint against the appellants and others and date  

mentioned in the complaint was August 28, 1995.  In  

the morning of August 29, 1995 the first informant went  

to the Police Station and handed over his written FIR  

which  was  prepared  on  previous  night.   As  the  

complaint was presented before the police on August 29,  

1995, the first informant was asked to change the date  

of the complaint to August 29, 1995.  Accordingly, the  

date mentioned in the complaint  was changed by the  

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first  informant  from  August  28,  1995  to  August  29,  

1995.  On the basis of the complaint lodged by Babu  

Lal, offences punishable under Sections 147, 148, 302,  

307, 326, 325, 323, 341 r/w 149 IPC and Section 3(1) of  

Scheduled Castes and Scheduled Tribes (Prevention of  

Atrocities Act) 1985 were registered.  The dead body of  

Sukh  Lal  was  sent  for  autopsy  on  August  29,  1995.  

During  the  course  of  investigation,  the  Investigating  

Officer recorded statements of those persons who were  

found  to  be  conversant  with  the  facts  of  the  case.  

Certain incriminating articles were seized from the place  

of incident which were sent for analysis.  On completion  

of investigation, the appellants and others were charge  

sheeted  in  the  Court  of  Learned  Judicial  Magistrate  

First  Class for  the commission of  offences punishable  

Sections 147, 148, 302, 307, 326, 325, 323, 341 r/w  

149  IPC  and  Section  3(1)  of  Scheduled  Castes  and  

Scheduled  Tribes  ((Prevention  of  Atrocities  Act)  1985.  

As the offences punishable under Sections 302 and 307  

are  exclusively  triable  by a  Court  of  Sessions and as  

offence punishable under Section 3(1) Scheduled Castes  

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and  Scheduled  Tribes  ((Prevention  of  Atrocities  Act)  

1985  is  triable  by  Special  Judge,  the  case  was  

committed  to  the  Court  of  Learned  Sessions  Judge,  

Karauli for trial.

4. Necessary  charges  were  framed  against  the  

appellants and others.  The charges were read over and  

explained to them.  The appellants and others did not  

plead guilty to the charges. Therefore, several witnesses  

were examined by the prosecution and documents were  

also  produced  in  support  of  its  case  against  the  

appellants  and others.   After  recording of  evidence  of  

prosecution  witnesses  was  over,  the  Learned  Judge  

explained  to  the  appellants  and  others,  the  

circumstances appearing against them in the evidence  

of the prosecution witnesses and recorded their further  

statements as required by Section 313 of the Code of  

Criminal Procedure 1973.  In the further statements the  

case of the appellants was that they had not committed  

the offences alleged but were falsely implicated in the  

case, because of enmity between the parties relating to  

the land.  The appellant No. 4 herein i.e. Kanta Prasad  

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pleaded  alibi  and  claimed  that  on  the  date  of  the  

incident, he was in college at Karauli.  The appellant No.  

3 herein i.e. Brahma Nand also pleaded alibi by stating  

that  on  the  date  of  incident,  he  was  on  his  duty,  

whereas  accused  Kanhaiya  Lal  stated  that  he  was  

unable to move  and did not participate in the incident.  

On  behalf  of  the  appellants,  witness  Horilal  was  

examined as D.W. No. 1.    

5. On  appreciation  of  evidence  adduced  by  the  

parties,  the Learned Sessions Judge concluded that it  

was  proved  by  the  prosecution  beyond pale  of  doubt  

that deceased Sukh Lal  died a homicidal  death.  The  

Learned  Judge  thereafter  noticed  the  testimony  

tendered by the injured eye witnesses and held that the  

appellants  with  others  had  formed  an  unlawful  

assembly,  common intention  of  which was to  commit  

murder of Sukh Lal and to cause injuries to Babu Lal  

i.e. first informant, his father Harmukh, Raj Bai, Birma  

Bai  and in  furtherance  of  the  said common intention  

had armed themselves  with deadly  weapons like  axes  

etc. and sticks.  The Learned Judge concluded that it  

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was proved beyond reasonable doubt that the appellants  

and others had assaulted Sukh Lal and committed his  

murder  in  furtherance  of  their  common intention.   It  

was further held that the appellants and another had  

assaulted Harmukh, Babu Lal, Raj Bai, Birma Bai and  

caused grievous as well as simple injuries on them in  

furtherance  of  their  common  intention.   The  learned  

Judge concluded that neither the presence of accused  

Kanhaiya  Lal,  at  the  place  of  occurrence  nor  his  

participation  in  the  incident  was  proved  by  the  

prosecution.   In  view  of  the  above  mentioned  

conclusions, the Learned Sessions Judge convicted the  

appellants and Lata under Sections 302 r/w 149, 325  

r/w  149,  323  r/w  149  and  147  IPC  but  acquitted  

accused  Kanhaiya  Lal.   The  Learned  Judge  also  

convicted  the  appellant  Vishnu  and  appellant  Kanta  

under  Section  148  and  147  IPC  respectively.   After  

hearing  the  appellants  and Lata ,  the  Learned  Judge  

sentenced them to life imprisonment for commission of  

offence punishable under Section 302 r/w 149 as well  

as fine of Rs. 200 in default simple imprisonment for a  

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period  of two months, rigorous imprisonment for one  

year and fine of Rs. 200 in default simple imprisonment  

for two months for offence under Section 325 r/w 149,  

rigorous  imprisonment for three months for the offence  

punishable  under  Section  323  r/w  149  and  rigorous  

imprisonment for six months for commission of offence  

u/s.  147  I.P.C.   The  appellant  Vishnu and  appellant  

Kanta  were  also  sentenced  to  undergo  Rigorous  

Imprisonment for one year for commission of the offence  

punishable under Section 148.   

6. Feeling  aggrieved,  the  appellants  and  Lata  

preferred D.B. Criminal Appeal No. 359 of 1998 before  

High Court of Judicature of Rajasthan at Jaipur Bench,  

Jaipur.    The  Division  Bench  of  the  High  Court  has  

dismissed the appeal filed by the appellants but allowed  

that of Lata Bai i.e. original accused No.6 by Judgment  

dated August 3, 2005 giving rise to the instant appeal.

7. This Court has heard the Learned Counsel for the  

parties at length and in great detail.   This Court had  

also considered the testimony tendered by the witnesses  

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as  well  as  documents  produced  on  the  record  of  the  

case.

8. The fact that deceased Sukh Lal died a homicidal  

death  is  not  disputed  by  the  appellants  before  this  

Court at all.   The injuries sustained by Sukh Lal are  

noted in the inquest report.  The autopsy on the dead  

body of the deceased was performed by Dr. Hari Mohan  

Meena who was examined as prosecution witness No.  

19.  In his substantive evidence before the Court, the  

Medical Officer has enumerated the injuries noticed by  

him on the dead body of the deceased while performing  

post mortem.  The injuries stated by the Medical Officer  

have  also  been  mentioned  in  the  contemporaneous  

record namely post mortem notes produced at exhibit P-

38.   It  is  nobody’s  case that deceased Sukh Lal  died  

either  because  of  self  inflicted  injuries  or  because  of  

accidental injuries or he died a natural death.  On the  

facts and in the circumstances of the case, this Court is  

of the view that the Sessions Court and High Court were  

justified  in  concluding  that  it  was  proved  by  the  

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prosecution  beyond  reasonable  doubt  that  deceased  

Sukh Lal died a homicidal death.

9. The  evidence  of  Dr.  Hari  Mohan  Meena  further  

shows that on August 29, 1995 he had examined first  

informant Babu Lal at about 10.00 P.M. and found that  

he had sustained six injuries.  On the same day he had  

also examined Har Mukh who is father of the informant  

at  7.30  P.M.  and  found  that  he  had  sustained  five  

injuries out of which one was found to be grievous.  The  

evidence of the said Medical Officer would disclose that  

he had also examined Smt. Sua Bai and found that she  

had  sustained  two  injuries  whereas  medical  

examination  of  Birma  Bai  revealed  that  she  had  

sustained  four  injuries.   The  evidence  of  the  Medical  

Officer also shows that he had examined Raj Bai and  

found four injuries on her person.  The testimony of Dr.  

Nandlal Sharma P.W. 18, shows that on the request of  

Deputy Superintendent of Police, a Medical Board was  

constituted  by  Chief  Medical  and  Health  Officer,  

Karauli.   His  evidence  further  indicates  that  he  was  

heading the Board so constituted whereas Dr. Makkhan  

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Lal Kawat and Dr. Hukam Chand Gard were its other  

members.  His evidence establishes that The Members  

of the Board had examined injured and Smt. Birma Bai  

at 12.10 P.M. and injured Sua Bai at 12.30 P.M.  On the  

same day, X-ray of Sua Bai was also taken but it was  

found that she had not sustained any grievous injury.  

The evidence of Dr. Sharma further shows that on the  

same day, Raj Bai was examined at 11.00 A.M. by the  

Members  of  the  Board  and  she  was  found  to  have  

sustained  six  injuries  which  were  caused  by  blunt  

weapons and were caused within the duration of three  

to four days.  Her X-ray was also taken but the same  

did not indicate that she had sustained grievous injury.  

On the same day at about 1.00 in the after noon, the  

Members of  the  Board had examined Har Mukh who  

was  found  to  have  sustained  five  injuries  caused  by  

blunt weapon and were of the duration of three to four  

days.  On examination of his X-ray, it was found that 7th  

to 10th ribs on the right side of his body were fractured.  

On the same day the Members of the Board had also  

examined the first informant Babu Lal and found that  

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he had sustained five injuries on his person.  However,  

it  was  also  noticed  that  he  had  not  received  any  

grievous injury.   During  the cross-examination of  Dr.  

Sharma it was brought by the defence on the record of  

the case that the injuries sustained by first informant  

Babu Lal could have been received by him on August  

28, 1995.  The Medical Officer opined that the injuries  

could  have  been  caused  to  the  injured  witnesses  

examined by the Board within three to four days.  Thus,  

the testimony of Dr. Hari Mohan Meena stands amply  

corroborated by the testimony of Dr. Nand Lal Sharma  

regarding injuries  sustained by the  deceased and the  

injured witnesses.

10. The contention that several complaints were given  

which were conflicting with each other regarding time  

and place of  occurrence and as the prosecution story  

was  manipulated  the  appellants  should  be  acquitted  

has  no  substance.   In  the  present  case,  the  reliable  

evidence of first informant Babu Lal makes it more than  

clear that the incident in question had taken place on  

August 28, 1995.  Though the evidence of complainant  

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Babu Lal shows that his brother Ram Khiladi who had  

managed to escape from the village had reached house  

of his uncle and scribed one FIR, the record does not  

indicate that any endeavour whatsoever was made by  

Ram Khiladi to lodge the same with the Police Station.  

It may be mentioned that village Golara is a small village  

and  incident  relating  to  the  death  of  one  person  of  

village  and  injuries  to  several  must  have  caused  

sensation as well  as anxiety in the minds of villagers  

residing in the village.  Therefore, some of the villagers  

had also given vague information relating to the incident  

in question.  However, having regard to the facts of the  

case this Court is of the firm opinion that Babu Lal had  

got  his  FIR  scribed  from  witness  Prahlad  who  is  

examined as PW-13 on August 28, 1995 but the same  

was lodged on August  29,  1995 because the  incident  

had taken place at about 7.30 P.M. on August 28, 1995  

and it was too late to go to the Police Station for the  

purpose  of  lodging  complaint.   Witness  Prahlad  

examined as PW-13 fully supports the claim of the first  

informant  Babu  Lal.   He  has  in  no  uncertain  terms  

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mentioned before the Court that at the instance of Babu  

Lal, he had reduced the FIR into writing.  The evidence  

of  first  informant  Babu Lal  read with that  of  witness  

Prahlad would show that Babu Lal was scared because  

of  the  incident  in  question  and  he  could  not  muster  

courage to lodge the complaint on the date of incident.  

Mangati Ram examined as prosecution witness No. 22  

has stated that on August 29, 1995 he was serving as  

Constable  at  Masalpur  Police  Station  and  that  four  

persons had come to the Police Station and told S.H.O.  

that one person had been killed and others were injured  

in village Golara.  The testimony of said witness further  

shows that on the said information being conveyed, he  

alongwith S.H.O. and three to four persons had reached  

the spot and had recorded certain proceedings.  He has  

further stated that written report about the incident in  

question was handed over to him for registration in the  

Police Station and that he had handed over the same to  

the  Office-In-Charge  of  Masalpur  Police  Station  for  

registration of the offences.  Thus the testimony of first  

informant  Babu Lal  and that  of  witness  Prahlad gets  

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complete corroboration from the testimony of Constable  

Mangati Ram, examined as prosecution witness No.22.  

It is wholly irrelevant whether the FIR got prepared by  

first informant Babu Lal was lodged at the Police Station  

when Babu Lal is stated to have gone there or the report  

already written on August 28, 1995 was handed over to  

the Police on its arrival at the place of incident.  What  

cannot be ignored by the Court is that this is a case  

wherein at least five persons were injured.  Those five  

injured  persons  are  closely  related  to  the  deceased.  

When  a  person  receives  injuries  in  the  course  of  

occurrence, there can be hardly any doubt regarding his  

presence at the spot.  Further, injured witnesses would  

not  spare  the  real  assailants  and  falsely  involve  

innocent persons.  The testimony of injured witnesses  

which  has  inspired  confidence  of  Learned  Sessions  

Judge who had advantage of observing the demeanor of  

the witnesses and accepted by the High Court  on re-

appreciation  of  evidence,  unerringly  proves  that  the  

incident  in  question  had  taken  place  on  August  28,  

1995, wherein Sukh Lal lost his life and at least five of  

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his  close  relatives  were  injured.   Merely  because  the  

incident had taken place on August 28, 1995, but FIR  

was handed over to the Police on the next day, would  

not  in  any  manner  go  to  show that  no  incident  had  

taken place at all and that because of manipulations the  

appellants were falsely involved in the case.

11. The argument that those who were injured had got  

admitted in the hospital on August 29, 1995 but none of  

them had  reported  the  incident  to  the  Police  Station  

during the night of August 28, 1995, and therefore the  

prosecution  case  should  be  disbelieved  is  devoid  of  

merits.  The very examination of the injuries sustained  

by the injured witnesses almost after 24 hours would  

not indicate in any manner as suggested by the defence  

that as a matter of fact the occurrence had taken place  

somewhere between 8.00 and 9.00 A.M. in the morning  

of August 29, 1995.  It is for this precise reason that Dr.  

Meena  who  had  initially  examined  the  injured  

witnesses,  stated  that  the  duration  of  the  injuries  

sustained by the injured was between 7 to 17 hours.  

The  information  given  by  Medical  Board,  specially  

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constituted  to  examine  the  injured  perfectly  

synchronizes with the time of injuries mentioned by the  

injured witnesses.  It is true that none of the injured  

had gone to the Police Station in the night of August 28,  

1995  to  lodge  the  complaint.   However,  as  noticed  

earlier, the dead body of deceased Sukh Lal was lying in  

the  house  and  therefore  it  is  but  natural  that  the  

injured would like to be by the side of the dead body of  

the deceased. Therefore, non filing of complaint on the  

same day, by any of them would not exhibit unnatural  

conduct on their part so as to give benefit of doubt to  

the  appellants.   This  Court  further  notices  that  

deceased  Sukh  Lal  had  expired  on  August  28,  1995  

itself  and  the  post  mortem  on  his  dead  body  was  

conducted at 12.45 P.M. on August 29, 1995.  As per  

the post mortem report his death had occurred within  

18 hours which supports the claim made by the first  

informant  and  others  that  Sukh  Lal  had  expired  on  

August  28,  1995 in  the  incident  which took place  at  

about  7.00  P.M.   The  medical  evidence  on  record  is  

absolutely in tune with the prosecution version in so far  

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as time and date of occurrence is concerned.  There is  

no dispute that Sukh Lal was not taken to the hospital  

immediately  on receipt  of  injuries by him because he  

was  dead  and  the  other  injured  witnesses  were  

examined  medically  only  on  August  29,  1995.   The  

injured  witnesses  were  subjected  to  searching  cross-

examination by the defence but this Court finds that not  

a  single  question  was  put  to  any  of  the  injured  

witnesses as to why he had not taken medical treatment  

immediately or shortly after receipt of injuries by him.  

Only Birma Bai stated in her evidence that the injured  

had gone to the  hospital  in jeep.   However,  in cross-

examination she made herself very clear by stating that  

they had gone to the hospital next day after cremation  

of Sukh Lal was over.   

12. Based  on  age  of  injuries  mentioned  in  injury  

certificate  produced  at  Exhibit  P-8  relating  to  the  

injuries sustained by first informant Babu Lal and age  

of injuries mentioned in injury certificate produced at  

Exhibit P-13 which relates to the injuries sustained by  

Harmukh, it was argued that the incident in question  

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did not take place at the time stated by the witnesses  

and  therefore,  prosecution  case  ought  to  have  been  

disbelieved. It is true that, Dr. Hari Mohan Meena had  

stated  that  he  had  examined  injured  Babu  Lal  on  

August  29,  1995  at  8.10  P.M.  and  in  the  injury  

certificate Exhibit P-8, the age of injuries was mentioned  

to be 12 hours.  It was further stated by him that on  

August 29, 1995, he had examined injured Harmukh at  

7.30  P.M.  and  in  his  injury  certificate  produced  at  

Exhibit P-13, it was mentioned that the age of injuries  

was 7 hours.  However, an explanation was sought from  

the said witness during his cross-examination regarding  

age of the injuries and it was explained by him that he  

could  not  mention  correct  opinion  about  the  age  of  

injuries in the certificates because he was all alone and  

there was no light.  According to him, he was also not  

well and confused and therefore correct opinion about  

the  age  of  injuries  could  not  be  mentioned  and  on  

realizing the mistake committed by him, on the next day  

i.e. on August 30, 1995 he had informed S.H.O. as well  

as C.M. and H.O. of the hospital after making correction  

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about the age of the injuries in the office copies of the  

injury  certificates.   The  testimony  of  this  witness  is  

accepted by the Learned Judge of the Trial Court who  

had  obvious  advantage  of  observing  demeanor  of  the  

witnesses  and  also  by  the  High  Court,  on  re-

appreciation of evidence.  No convincing reason could be  

pointed out by the learned counsel for the appellants as  

to  why  explanation  offered  by  Dr.  Meena  regarding  

mention  of  incorrect  age  of  injuries  in  the  injury  

certificates  should  not  be  accepted  by  this  Court.  

Therefore, the argument based on age of injuries stated  

in injury certificates, has no substance and is rejected.  

As observed earlier, in the present case Medical Board  

consisting  of  three  doctors,  on  re-examination  of  the  

injuries  of  the  witnesses,  unanimously  gave  opinion  

about the age of the injuries sustained by the witnesses  

which is not even disputed.  What is relevant to notice is  

that  no  question  was  put  to  any  of  the  two  doctors  

examined from the panel of the Medical Board specially  

constituted,  relating  to  the  duration  of  injuries  

mentioned by them.  There is nothing on the record to  

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disbelieve the testimony of the two doctors and come to  

the conclusion that the duration of injuries mentioned  

by them was not correct.  It is well  to remember that  

except one of the injured witnesses, others had received  

simple injuries and therefore there was nothing wrong if  

the injured witnesses had got  themselves admitted in  

the  hospital  on  August  29,  1995  after  cremation  of  

Sukh Lal.  The plea based on incorrect age of injuries  

mentioned in the two certificates has no merits and is  

therefore, rejected.

13. The plea that the provisions of Section 149 would  

not be attracted to the facts of the case and therefore  

the appellants who had not played overt act in causing  

injury  to  deceased  Sukh  Lal  could  not  have  been  

convicted under Section 302 with the aid of Section 149  

has  no  substance.   Section  149  of  the  Penal  Code  

provides  for  vicarious  liability.   If  an  offence  is  

committed by any member of an unlawful assembly in  

prosecution of a common object thereof or such as the  

members of that assembly knew that the offence to be  

likely  to  be  committed  in  prosecution  of  that  object,  

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every person who at the time of committing that offence  

was member would be guilty of the offence committed.  

The common object  my be commission of  one offence  

while  there  may  be  likelihood  of  commission  of  yet  

another  offence,  the  knowledge  whereof  is  capable  of  

being safely attributable to the members of the unlawful  

assembly.   Whether  a  member  of  such  unlawful  

assembly  was  aware  as  regards  likelihood  of  

commission  of  another  offence  or  not  would  depend  

upon  the  facts  and  circumstances  of  each  case.  

Background of the incident,  the motive, the nature of  

the  assembly,  the  nature  of  the  arms  carried  by  the  

members of the assembly, their common object and the  

behavior  of  the  members  soon before,  at  or  after  the  

actual  commission  of  the  crime  would  be  relevant  

factors  for  drawing  an  inference  in  that  behalf.   The  

record  unmistakenly indicates that accused Lata who is  

now acquitted by the High Court, had gone to the place  

where  the  first  informant  and  his  relatives  were  

watching sport event, to inform appellant Bhanwar Lal  

and  others  that  Jatavas  were  plying  tractor  in  the  

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disputed land.  The evidence of complainant shows that  

moment  the  said  information  was  conveyed  by  Lata,  

Kanhaiya Lal i.e. father of appellant Bhanwar Lal  had  

loudly  shouted  that  where  all  their  people  had  gone,  

upon which Babu Devta, Mahesh, Brahma Nand, Kanta,  

Vishnu, Din Dayal, Kailash, Bhagwan Lal, Bhanwar Lal,  

Lata etc. had armed themselves with different weapons  

including  axes  and  started  proceeding  towards  the  

disputed land.  The appellants were knowing fully well  

that  the  land  was  allotted  to  Jatavas  and  they  were  

entitled  to  cultivate  the  same,  but  with  a  view  to  

preventing  them  from  cultivating  the  land,  the  

appellants with others had gone to the disputed land  

with weapons and started attacking the first informant  

and his relatives.  Having regard to the definition of the  

word ‘unlawful assembly’ as given in Section 141 I.P.C.  

there is no manner of doubt that the appellants were  

members  of  unlawful  assembly,  common  intention  of  

which  was  to  mount  attack  and  cause  injuries  to  

Jatavas.  The evidence of the informant proves that first  

of  all  he  was  assaulted  after  which  his  wife  was  

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assaulted and thereafter his brother Ram Khiladi was  

assaulted.   His  evidence  further  establishes  that  his  

father Harmukh, his mother Sua Bai, his wife Birma Bai  

were also assaulted by the appellants and others.  His  

evidence further shows that deceased Sukh Lal with his  

wife was running towards house to save himself but the  

appellants  had chased him and after  overtaking  him,  

delivered blows with dangerous weapons and sticks as a  

result  of  which  he  lost  his  life  on  the  spot.   The  

appellants and others who had come in a group had left  

the place of incident together.  The cumulative effect of  

the circumstances proved by the prosecution is such is  

that  the  intention  of  the  unlawful  assembly  was  to  

cause death of Sukh Lal and to cause injuries to the  

injured witnesses.  Thus the conviction of the appellants  

under  Section  302  r/w  149  cannot  be  said  to  be  

erroneous at all and no ground is made out to interfere  

with the same in the instant appeal.  For the foregoing  

reasons the appeal fails and is dismissed.

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14. As the appeal is dismissed, the two applications for  

bail do not survive.  Hence they stand accordingly  

disposed of.

......................................J.     (Harjit Singh Bedi)

......................................J. (J.M. Panchal)

New Delhi; September 15, 2009

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