JUDGMENT 1. - This.appeal is directed against the judgment and order dated 8th August, 1986 passed by the Addl. Sessions Judge (2), Udaipur convicting accused Dhoola under Section 302, accused Valji under Section 302 read with sections 149, 454, 148 and similarly convicting accused Heera, accused Dheera, Nathu, Jhoomji and Kalu under section 302 read with Section 49 of the I.P.C. as also under section 148 of the I.P.C. and sentenced them to imprisonment for life. The learned Judge acquitted three other accused of all the offences. 2. The prosecution story is that two children were killed between 12.00 and 1.00 noon on 26th June, 1985 in village Kharadiwada. It is averred that they were Dinesh, son of Bheema aged 4 years and Jivi daughter of Bheema aged 7 years According to the F.I.R. lodged by the complainant Bheema, unfortunate father of the deceased children, in the noon both of his children were sleeping on a mattress near the bed on which Bheema was lying. He heard noise of some people coming from the back side of the tenament and saw behind the wooden wall the accused Nathu Heera, Dheera, Valji and Dhoola who were armed with guns and axes and others were having sticks, the others were not named in the F.I.R. He was, therefore, frightened of being hurt or assaulted by them. He, therefore, ran away from the house and concealed himself in the adjoining hut and saw from there that the accused broke the wooden barrier and entered the house of complainant when accused Dheera said that Bheema has run away so beat his children. Then Valji and Dhoola separately went to the sleeping children and gave axe blow to both. Having heard the shrieks of Jivi, Bheema lost his courage and ran away towards Police Station, and lodged the F.I.R. 3. Thereafter, the police investigation took place, the accused were arrested and thereafter, they were duly charge- sheeted. They were charged for the offence punishable under Section 302, 302 read with Sections 49, 148 and 454 of the I.P.C. and on the accused denying guilt were tried in sessions case No. 19 of 85 in the Court of Addl. Sessions Judge (2), Udaipur. They were charged for the offence punishable under Section 302, 302 read with Sections 49, 148 and 454 of the I.P.C. and on the accused denying guilt were tried in sessions case No. 19 of 85 in the Court of Addl. Sessions Judge (2), Udaipur. The learned Judge on appreciation of the evidence on record came to the conclusion that five of the accused persons are guilty of the offence charged and therefore, proceeded to punish them for the offences as aforesaid. It is this judgment and older of conviction which is impugned in this appeal by the appellants. 4. The learned counsel appearing on behalf of the accused assailed the judgment of the learned Addl. Sessions Judge on several grounds. He pointed out several discrepancies in the evidence in support of his contention that the prosecution has failed to prove the offence in relation to the accused persons. The learned counsel submitted that the conviction of all the appellants except Dhoola cannot be supported by any reasonable inference of evidence on record. It is the contention of the learned counsel that even if, the entire evidence is accepted as true the conviction of the appellants except Dhoola cannot be sustained. 5. With the assistance of the learned counsel for the appellants and the learned Public Prosecutor, we considered the entire evidence on record carefully. In our opinion, the submissions of the learned counsel for the appellants that the conviction of the appellants Nathu, Valji, Heera and Dheera cannot be sustained on proper appreciation of the evidence on record deserve to be accepted. We have carefully re appreciated the evidence and find ourselves unable to sustain the conviction of these four appellants. However, the evidence as it stands proved beyond doubt the killing of one child by Dhoola. 6. The only eye witness examined on behalf of the prosecution is P.W. 1 Bheema father of the deceased children. We have perused his evidence very carefully, we closely scrutinised his cross- examination also. We see no reason to disbelieve this witness in so far as his deposition against Dhoola is concerned. However, certain material contradictions occurred in the evidence of this witness considering which we find it improper to sustain the conviction of Vaiji and any other accused except Dhoola. We see no reason to disbelieve this witness in so far as his deposition against Dhoola is concerned. However, certain material contradictions occurred in the evidence of this witness considering which we find it improper to sustain the conviction of Vaiji and any other accused except Dhoola. This witness has lodged the F.I.R. and has stated in the F.I.R. that on the date of incident, he was sleeping on the bed and his son Dinesh, daughter Jivi were lying on a bed on the floor. He then heard from the back of his house the voice of some people, therefore, he saw from behind the wooden wall that Nathu armed with gun, Heera armed with gun, Dheera armed with Dhariya, Valji armed with axe and Dhoola armed with axe had come near the wooden wall behind his house. He, therefore, came out of his house under fear and concealed himself in the adjoining hut and was watching from that place when these five persons broke the wooden wall behind the house of the accused and came in the house when Dheera said that Bheema has run away so beat his children. He then reported that those standing behind them (accused) also said "what are you watching, take revenge". He then reported that Valji and Dhoola separately hit axe on his children, he heard the noise from his daughter and presumed that they have been killed and therefore, ran away towards the police station to lodge the F.I.R. However, while deposing before the learned Addl. Sessions Judge in the deposition he does not state the material fact that accused uttered the words : HINDI MATTER 403461A The omission is material and in view of this omission, no overt tact can be presumed against accused Dheera. In fact the entire examination in chief of this witness who is only eye witness does not show any act by any other accused except accused Dhoola. In fact this witness has stated in his examination in chief:- HINDI MATTER 403461B In the face of this statement when the eye witness himself is not certain as to whom of the two namely Dheera and Valji was the assailant of his children. In fact this witness has stated in his examination in chief:- HINDI MATTER 403461B In the face of this statement when the eye witness himself is not certain as to whom of the two namely Dheera and Valji was the assailant of his children. It is not possible to hold either of them guilty of the offence under Section 302, I.P.C. In his cross- examination, he has stated that he has seen everything that transpired prior to killing of his daughter the entire cross examination does not disclose any such statement as will render the testimony of the witness in relation to accused Dhoola unreliable. We have no hesitation in accepting the testimony and come to the conclusion that it was Dhoola who killed the child of the witness Bheema. 7. The evidence of Bheema has been duly corroborated by other witnesses who were immediately present near or near about the scene of occurrence and to whom the fact was disclosed immediately by the deceased. PW 2 Shanker stated that he heard Bheema that two children have been killed, he reached near Bheema along with others who gathered along with Bheema and they was accused Dhoola, Dheera, Valji, Kalu Jamnalal, Heera and Kana going away. It is stated by this witness that some of them were armed, he then took the witness Bheema to the Police Station. Thus the statement of Bheema P.W.1 is corroborated on all material particulars by P.W.2 P.W.3 is Nanji who has been declared hostile and therefore, need not be considered. P.W.4 is Arjun who also corroborated P.W.1 Bheema on all material particulars. He has stated that he saw the accused, present in court, running away from house of Bheema. 8. Then P.W.5 Lachhu is yet another witness who says that he was cutting wood by the side of the house of Bheema along with his brother Kamu when he saw that accused persons entering the house of Bheema, some of them were armed. He also saw that Bheema running from his house shouting that his children have been killed. He also thus fully corroborates. Similar corroboration is available from P.W. 6 Vasu and P.W.8 Kamu, thus the prosecution has proved by the evidence of these witnesses beyond reasonable doubt that one of the children of Bheema was mercilessly killed by accused Dhoola. He also saw that Bheema running from his house shouting that his children have been killed. He also thus fully corroborates. Similar corroboration is available from P.W. 6 Vasu and P.W.8 Kamu, thus the prosecution has proved by the evidence of these witnesses beyond reasonable doubt that one of the children of Bheema was mercilessly killed by accused Dhoola. Further P.W.9 has stated that one axe was seized from accused Dhoola, he has identified the article. There is thus, independent corroboration of the involvement of Dhoola in the killing of the children. 9. The entire scrutiny of this oral evidence discloses that there is no evidence what so ever about involvement of the other accused/appellants. The only person is the father who has seen the killing. He candidly stated that it is either Dheera or Valji who has killed one of the child and it is his surmise. It has also come in evidence that the deceased children received single injury. Consequently, it cannot be said as to which of two that is Dheera or Vaiji caused the fatal injury and, therefore, benefit of doubt will have to go to each of them. It is true that in so far as Dhoola is concerned. Nobody has stated as to the blow that was struck by Dhoola, but this cannot be an omission to disbelieve, Bheema, the father of the child. The incident itself was so horrible that pin pointing the killing stroke is very well an impossibility. No human being can be expected to describe the merciless killing of his own children. We have, therefore, no hesitation in holding accused Dhoola guilty of the offence punishable under Section 302 of the I.P.C. 10. We are, however, of the opinion that in the absence of any common object on behalf of the other accused to cause culpable injury either to Bheema or any member of his family. Provisions of Section 49 of the I.P.C. cannot be resorted to in order to attract the theory of any common object of revenge. There must be on record evidence of formation of such object and in any case, there must be a statement regarding such being object of the accused. Provisions of Section 49 of the I.P.C. cannot be resorted to in order to attract the theory of any common object of revenge. There must be on record evidence of formation of such object and in any case, there must be a statement regarding such being object of the accused. In the absence of any such statement and evidence it is impermissible in law to take recourse to provisions of Section 49 of the I.P.C. or convicting others who admittedly are present and who have not been attributed overt tact what so ever. 11. The maximum that has been proved in the present case is that the accused persons did assemble together and went towards the house of Bheema. Having found that he is not there, three remained away, five entered the premises. Dheera is alleged to have hit the children of Bheema who has run away but even this is not proved and only Dhoola has struck a fatal blow. We are, therefore, unable to agree with the learned Sessions Judge in convicting the other accused persons under Section 302 read with Section 49 of the I.P.C. 12. Learned Public Prosecutor contended that the very fact that these persons were admittedly present and were duly armed proves that they have intention to commit an offence and factually committed the offence and therefore, the conviction under Section 302 read with Section 49 is sustainable. We are unable to accept for the reasons that there is no evidence of common object and more persons without any overt tact will not be sufficient to warrant the conviction under Section 302 read with Section 49 of the I.P.C. 13. We are, therefore, of the view that the accused No. 1 Dhoola has been rightly convicted under Section 302 of the I.P.C. The order of conviction and sentence Dhoola is, therefore, maintained. However, the order of conviction and sentence in so far as other accused appellants are concerned is unsustainable and the same is quashed and set aside. 14. In the result, the appeal filed by the appellant Dhoola is dismissed but the appeal of the other accused appellants namely Nathu, Valji, Heera and Dheera is allowed. They are in Jail, they may be released forthwith, if not required in any other case.Appeal Of Accused Dl Dismissed And Appeal Of Other Accused Allowed. *******