JUDGMENT Miss Kamlesh Sharma, J.—In Sessions Case No. 8 of 1992 under sections 120-B, 302, 307, 149, I. P. C. and section 27 of Indian Arms Act, Ghunghru alias Madan Lal, Maheshi alias Mahesh, Sarvan and Jaind alias Chandermohan were the accused. In another Sessions Case No. 38 of 1993 under sections 120-B, 302, 307, 149, I. P. C. and section 27 of Indian Arms Act Anil Kumar and Prem Pal were the accused. Both these Sessions Cases were consolidated and joint trial was held by order dated 18-8-1993 passed by Sessions Judge, Una District Una. Both the Sessions Cases were decided by common judgment dated 19-10-1994. 2. By the judgment dated 19-10-1994 accused Anil Kumar and Prem Pal are acquitted. Accused Maheshi alias Mahesh is convicted for the offences punishable under sections 120-B, 449, 302, 307, I. P. C. and section 27 of Indian Arms Act, 1959 and after hearing on the quantum of sentence on 21-10-1994, he is sentenced as under ;— 1. Sentenced to rigorous imprisonment for 3 years and fine of Rs. 1,000 for the offence punishable under section 449, Indian Penal Code. In default of payment of fine he shall further undergo rigorous imprisonment for three months; 2. Sentenced to death for the offence punishable under section 302, Indian Penal Code ; 3. Sentenced to rigorous imprisonment for 5 years and fine of Rs. 2,000 for the offence punishable under section 307, Indian Penal Code. In default of payment of fine he shall further undergo rigorous imprisonment for six months; 4. Sentenced to rigorous imprisonment for 3 years for the offence punishable under section 120-B, Indian Penal Code; 5. Sentenced to rigorous imprisonment for 3 years and fine of Rs 1,000 in an offence punishable under section 27 of Indian Arms Act, 1959. In default of payment of fine he shall further undergo rigorous imprisonment for three months. The other accused Ghunghru alias Madah Lal, Sarvan and Jaind alias Chandermohan are convicted for the offences punishable under sections 120-B and 449, I. P. C. and under sections 302 and 307,1. P. C. with the aid of section 149, I. P. C. They are sentenced as under:— 1. Each of them is sentenced to undergo rigorous imprisonment for 3 years and fine of Rs. 1,000 each for the offence punishable under section 449, Indian Penal Code. P. C. with the aid of section 149, I. P. C. They are sentenced as under:— 1. Each of them is sentenced to undergo rigorous imprisonment for 3 years and fine of Rs. 1,000 each for the offence punishable under section 449, Indian Penal Code. In default of payment of fine each shall further undergo rigorous imprisonment for three months. 2. Each of them is sentenced to rigorous imprisonment for three years for the offence punishable under section 120-B, Indian Penal Code 3. Each of them is sentenced to rigorous imprisonment for life with fine of Rs. 2,000 each for the offence punishable under section 302 read with section 149, Indian Penal Code In default of payment of fine each shall further undergo rigorous imprisonment for six months. 4. Each of them is sentenced to rigorous imprisonment for 3 years and to a fine of Rs. 1,000 each for the offence punishable under section 307 read with section 149, Indian Penal Code. In default of payment of fine each of them shall further undergo rigorous imprisonment for three months. Since the Sessions Judge has awarded sentence of death to accused Maheshi alias Mahesh, the proceedings have been submitted to this Court for confirmation, as provided under sub-section (1) of section 366, Cr. P. C, which is registered as Murder Reference No. 1 of 1994. The State of Himachal Pradesh has also filed Criminal Appeal No. 275 of 1994 against all the four accused Ghunghru alias Madan Lal, Maheshi alias Mahesh, Sarvan and Jaind alias Chandermohan under section 377, Cr. P. C. on the ground that the sentence awarded to them is inadequate. These four accused have also filed separate Criminal Appeals No, 153 of 1994, 151 of 19M, 154 of 1994 and 152 of 1994 respectively challenging their conviction and sentence. Since the Murder Reference as well as all these five Appeals arise out of the common judgment, these were connected, heard and are being disposed of by a common judgment 3. The prosecution case in brief is that on 13-3 1992 at about 8.30 p. m. in furtherance of their common object accused Maheshi alias Mahesh armed with revolver, Ghunghru alias Madan Lal armed with Drat, Sarvan and Jaind alias Chandermohan armed with knives, went to the house of deceased Pritam Singh at village Majra, Tehsil and District Una. The prosecution case in brief is that on 13-3 1992 at about 8.30 p. m. in furtherance of their common object accused Maheshi alias Mahesh armed with revolver, Ghunghru alias Madan Lal armed with Drat, Sarvan and Jaind alias Chandermohan armed with knives, went to the house of deceased Pritam Singh at village Majra, Tehsil and District Una. At that time wife of deceased Pritam Singh, namely, Piar Kaur PW 4 alongwith her son-in-law Surjit Singh PW 1 had just arrived from hospital at Nangal, where children of Surjit Singh were admitted. She went to the kitchen, whereas, Surjit Singh went to the adjoining room for changing his clothes. In the kitchen deceased Pritam Singh and his son deceased Kashmir Singh were taking their meals, which was being cooked by deceased Kashmir Kaur one of the daughters of deceased Pritam Singh Another son, namely, Narinder Singh and another daughter, namely, Kulwant Kaur PW 5 were also sitting in the kitchen. At that time on hearing knock at the main gate of the house, deceased Pritam Singh went to the main gate and asked as to who he was, and on receiving the reply that caller wanted to see Banta (the nick name of deceased Kashmir Singh), deceased Pritam Singh opened the main gate. Accused Maheshi alias Mahesh, who was armed with revolver, rushed from the main gate and fired at deceased Pritam Singh, who fell on the ground and started shrieking with pain On hearing the gun shot, deceased Kashmir Singh, deceased Kashmir Kaur, Kulwant Kaur and Piar Kaur also came out of the kitchen to courtyard of their house and found accused Maheshi alias Mahesh standing there with the revolver. 4. In the meantime, by scaling down the boundary wall of the house from the side of Bara (cattle shed) accused Ghunghru alias Madan Lal armed with Drat, Jaind alias Cbandermohan and Sarvan armed with their respective knives also came into the courtyard of the house Accused Jaind alias Chandermohan gave a knife blow on the left side of the face of deceased Pritam Singh. Being scared deceased Kashmir Singh tried to escape by scaling down the boundary wall but accused Maheshi alias Mahesh fired at him with the revolver, which hit deceased Kashmir Singh on his back and he also fell down on the ground shrieking with pain. Being scared deceased Kashmir Singh tried to escape by scaling down the boundary wall but accused Maheshi alias Mahesh fired at him with the revolver, which hit deceased Kashmir Singh on his back and he also fell down on the ground shrieking with pain. Thereafter, accused Meheshi alias Mahesh fired at Kashmir Kaur with the revolver, which hit her on the chest and she also fell down on the ground shrieking with pain. Thereafter, accused Sarwan inflicted knife blow in the stomach of deceased Kashmir Kaur. Accused Ghunghru alias Madan Lai gave Drat blow on the head of Kulwant Kaur, who grappled with him and in the meantime, accused Maheshi alias Mahesh fired at Kulwant Kaur with the revolver but the shot hit the arm of accused Ghunghru alias Madan Lai. Thereafter accused Maheshi alias Mahesh again fired at Piar Kaur with his revolver, which shot hit her on her chest. Being injured, both Kulwant Kaur and Piar Kaur also started shrieking with pain and crying. In the meantime, somehow Narinder Singh went to the roof of the house and raised alarm to attract the residents of the village, which made the accused to flee away. 5. Thereafter, within a few minutes Rattan Singh PW 6 with the help of other villagers was able to apprehend accused Maheshi alias Mahesh and brought him to the house of deceased Pritam Singh and he was confined in a room for some time and thereafter thrown in the courtyard. The villagers had given beatings to accused Maheshi alias Mahesh, as a result, he had also received injuries. It was at this stage that Surjit Singh came out of the room and found all the injured persons lying in the courtyard shrieking with pain. Piar Kaur gave him the account of occurrence that accused Maheshi alias Mahesh with revolver, Ghunghru alias Madan Lai with Drat and Jaind alias Chandermohan and Sarvan with their respective knives attacked them. Thereafter the injured Piar Kaur, Kulwant Kaur, Kashmir Singh and Kashmir Kaur were sent to hospital at Nangal, where lateron Kashmir Singh and Kashmir Kaur died. Pritam Singh had died at the spot. Accused Maheshi alias Mahesh was also sent to the hospital at Una. Accused Ghunghru alias Madan Lal had also got himself admitted in the hospital at Nangal, where the bullet was removed from his arm, which was taken into possession by the police. 6. Pritam Singh had died at the spot. Accused Maheshi alias Mahesh was also sent to the hospital at Una. Accused Ghunghru alias Madan Lal had also got himself admitted in the hospital at Nangal, where the bullet was removed from his arm, which was taken into possession by the police. 6. On hearing the gun shot, Dilbag Singh gave telephonic message to Police Post, Mehatpur, which was recorded in Daily Diary Ex. PW~W, on receipt of which Karnail Singh, ASI, Incharge Police Post, Mehatpur rushed to the spot and recorded statement Ex. PA of Surjit Singh, on the basis of which F.I.R. Ex. PA/1 was registered at 10 50 p.m. on 13-3-1992. Thereafter, investigation was conducted in which the weapons of offence and other incriminating articles were recovered arid sent to Chemical Examiner and Ballistic Expert, whose reports are on the record. The injured, namely, Piar Kaur and Kulwant Kaur, who were admitted in the hospital, were examined by the doctors attending on them and their Medico Legal Certificates were placed on record. Autopsies were conducted on the dead-bodies of those who had died in the incident, namely, Pritam Singh, Kashmir Singh and Kashmir Kaur and post-mortem reports were produced on record. 7. During the investigation it was found that Rajinder, the brother of Ghunghru alias Madan Lai was murdered in the month of July 1991 and deceased Kashmir Singh was arrested as one of the accused but he was released on bail 10-15 days prior to the incident in question. The F. I. R. in the said case was got registered at the instance of accused Sarvan. From these facts it came to light that relationship between the complainant party and accused Ghunghru alias Madan Lal and Sarvan were inimical. Further the case of the prosecution is that the revolver Ex P-16 which was recovered at the instance of Ghunghru alias Madan Lal was of ASI Om Parkash of Police Station, Nangal, which was stolen from his house on 16-9-1989 by accused Prem Pal and Anil Kumar and was kept with them in their shop at village Ajoli. Further the case of the prosecution is that the revolver Ex P-16 which was recovered at the instance of Ghunghru alias Madan Lal was of ASI Om Parkash of Police Station, Nangal, which was stolen from his house on 16-9-1989 by accused Prem Pal and Anil Kumar and was kept with them in their shop at village Ajoli. According to the prosecution, both Prem Pal and Anil Kumar had conspired with accused Maheshi alias Mahesh, Ghunghru alias Madan Lai, Sarvan and Jaind alias Chandermoha.n to eliminate the family of Pritam Singh in order to take revenge from his son deceased Kashmir Singh, On completion of investigation two challans were put upf on the basis of which two separate Sessions Cases were registered, which were tried jointly by the order of the Sessions Judge. 8. The prosecution has examined as many as 29 witnesses and tendered in evidence relevant documeats and case property. Out of them two witnesses Piar Kaur PW 4 and Kulwant Kaur PW 5 are the eye-witnesses, whereas, Surjit Singh PW 1 was though stated to be present in the house of deceased Pritam Singh but he remained inside the room and came out immediately after the occurrence. 9. The ocular version given by Piar Kaur PW 4 and Kulwant Kaur PW 5 is consistent and supports the prosecution case fully. They have stated that on the day of occurrence at about 8.15 p. m. deceased Kashmir Kaur was cooking meals in the kitchen and serving it to deceased Pritam Singh and Kashmir Singh. Kulwant Kaur and Narinder Singh were also sitting there when Piar Kaur joined them after she had arrived alongwith Surjit Singh from a hospital at Nangal, where the children of Surjit Singh were admitted. Surjit Singh had gone inside a room for changing his clothes. At that time hearing a knock at the main gate, deceased Pritam Singh went to the gate and asked who was there, and on receiving answer that the caller wanted to see Banta alias Kashmir Siugh, Pritam Singh opened the gate through which a man entered with a pistol and fired at Pritam Singh, who was identified to be Maheshi alias Mahesh by Piar Kaur who was sitting at the threshold of the kitchen. Pritam Singh fell down on the ground and started shrieking with pain. Pritam Singh fell down on the ground and started shrieking with pain. At that time accused Ghunghru alias Madan Lal having Drat in his hand, Chandar Mohan and Sarvan having their respective knives in their hands, jumped over the boundary wall into the courtyard from the side of Bara (cattle shed) Accused Chandarmohan gave knife blow on the left side of the face of Pritam Singh Being scared, deceased Kashmir Singh tried to escape by scaling over the boundary wall but he was hit at his back by the shot fired from the pistol by accused Maheshi alias Mahesh and fell down in the courtyard crying with pain. Thereafter, accused Maheshi alias Mahesh fired at Kashmir Kaur, which shot hit her at her chest and she also fell down on the ground aud accused Sarvan hit her with his knife somewhere in her stomach. Kulwant Kaur, who was standing nearby, was hit at her head by accused Ghunghru alias Madan Lal with his Drat Kulwant Kaur tried to grapple with him when accused Maheshi alias Mahesh fired at her but the shot hit one of the arms of accused Ghunghru alias Madan Lal. Last of all Maheshi alias Mahesh fired at Piar Kaur, which shot hit her at her breast. In the meantime, Narinder managed to go on the roof of the house and raised alarm, hearing which all the four accused fled away from the spot After about 10-15 rajnutes some persons from the village brought on the spot accused Maheshi alias Mahesh, who had some injuries on him due to beatings given to him by the villagers, and he was confined inside a room. At this moment, Surjit Singh came out of the room and on his enquiry, Piar Kaur gave him the account of occurrence. Both these witnesses alongwith deceased Kashmir Singh and Kashmir Kaur were taken to the hospital, where Kashmir Singh and Kashmir Kaur had died. These witnesses have identified the weapons of offence Drat Ex. P-3, knife Ex. P-4 and revolver Ex. JP-16 as well as their clothes which were taken into possession by the police from them, 10. These witnesses were confronted with their statements under section 161, Cr.P.C, Ex. These witnesses have identified the weapons of offence Drat Ex. P-3, knife Ex. P-4 and revolver Ex. JP-16 as well as their clothes which were taken into possession by the police from them, 10. These witnesses were confronted with their statements under section 161, Cr.P.C, Ex. DD and Ex, DE respectively in order to bring on record the alleged improvements and contradictions, some of them pointed out by the learned Counsel for the accused, are that it is not found mentioned in Ex, DD that accused Jaind alias Chandermohan has given knife blow on the face of Pritam Singh; Sarvan gave knife blow on the stomach of Kashmir Kaur; Kulwant Kaur on receiving Drat blow graplled with accused Ghunghru alias Madaa Lai and the shot fired at her, hit the arm of Gbunghru alias Madan Lal. On the other hand, ft is recorded in statements Ex. DD and DE that accused Ghunghru alias Madan Lai received pistol shot in the melee and Piar Kaur had received two bullet injuries. The explanation of Piar Kaur to the discrepancies in her statement Ex. DD and the deposition in the court is that police had not conducted investigation impartially and properly She has levelled charges on the Investigation Officer that he used to visit the house of accused before visiting her house for the purpose of investigation, for which she had made complaint to the Additional District Magistrate, Una. Witness Piar Kaur has admitted in her statement Ex DD that when she narrated the occurrence to Surjit Singh, Rattan Singh and Sarpanch Sheetal Singh were also present. Both these witnesses have admitted that they had no enmity with accused Jaind alias Chandermohan and Maheshi alias Mahesh. Further, they have admitted that deceased Kashmir Singh was one of the accused in a case of murder of Rajinder Paul, the brother of. accused Ghunghru alias Madan Lal and F. I. R. was lodged in that case by accused Sarvan. Witness Piar Kaur has denied that she had put pressure on accused Sarvan not to depose against deceased Kashmir Singh in the said case and since he had not acceded to, he has been falsely implicated in the pre-seut case. accused Ghunghru alias Madan Lal and F. I. R. was lodged in that case by accused Sarvan. Witness Piar Kaur has denied that she had put pressure on accused Sarvan not to depose against deceased Kashmir Singh in the said case and since he had not acceded to, he has been falsely implicated in the pre-seut case. Witness Piar Kaur has also admitted that she had filed a complaint against Ghunghru alias Madan Lal for breaking the arm of her son when they were studying in school but he was acquitted in th it case. These witnesses have also denied the suggestion that terrorists used to take shelter in their house and in fact they had caused the occurrence in question, in which the accused have been falsely implicated. Accused Ghunghru alias Madan Lal is resident of the same village to which the complainant party belongs, whereas, accused Maheshi alias Mahesh and Sarvan are residents of Santokngarh and accused Jaind alias Chandermohan belongs to village Sajowal. Both these witnesses knew them before the occurrence. Accused Maheshi alias Mahesh and Jaiod alias Chandermohan used to visit the house of accused Ghunghru alias Madan Lal which is situated near the tubewell of the complainant party. 11. Surjit Singh PW1 is son-in-law of deceased Pritara Singh. He has corroborated the statements of Piar Kaur and Kuiwaut Kaur that he alongwith Piar Kaur reached the house of Pritam Singh at about 8:00— 8:15 p. m on the date of occurrence and went in the adjoining room of the kitchen for changing clothes, whereas, Piar Kaur went to the kitchen. According to him, he had heard gun shots after about 15 minutes and came out of the room only when the occurrence was over and found Pritam Singh lying dead in the courtyard near the outer gate and Kashmir Singh, Piar Kaur, Kashmir Kaur and Kulwant Kaur lying injured in the compound. He has also stated that one person, whose name was later on told to him as Maheshi alias Mahesh, was also lying in the courtyard in injured condition. He has also stated that one person, whose name was later on told to him as Maheshi alias Mahesh, was also lying in the courtyard in injured condition. On his enquiry, Piar Kaur had told him by giving names of all the four accused who had caused injuries to them, with pistol, Drat and knives This witness could give the names of only three accused Madan Lal, Mahesh Kumar and Sarvan and the name of fourth accused he did not remember, though he has stated that he belongs to village Sejowal. Reaching on the spot, the police had recorded the statement of this witness under section 154, Cr. P. C on the basis of which F.I.R. Ex: PA was recorded. He is also witness to Inquest Reports Ex PB, PC and PD in respect of deceased Pritam Singh, Kashmir Kaur and Kashmir Singh respectively. He has also admitted that deceased Kashmir Singh was one of the accused in the murder case of Rajinder Paul, the brother of accused Ghunghru alias Madan Lal and he was released on bail only 10-12 days prior to the occurrence. He has further admitted that when Piar Kaur had narrated the occurrence to him, many persons, including Sarpanch of the village, were present. He has denied the suggestion put to him that he was not present at the place of occurrence and his statement Ex. PA was recorded by the police when he had reached on the spot after the occurrence. This witness did not know the accused prior to the occurrence and he had given the names in his statement under section 154, Cr. P. C as told to him by Piar Kaur. He has slated that the police had come on the spot after receiving the telephonic call from Dilbag Singh, one of the cousins of his wife, who owned a van, in which the injured were taken to the hospital. 12. Dilbag Singh has appeared as PW 25 and has corroborated this part of the statement of Surjit Singh that on the date of occurrence at about 8:00/8:30 p. m. on hearing that Ghunghru alias Madan Lai had fired shots, he had given ring to Police Post, Mehatpur, thereafter came on the spot and carried the injured to the Hospital at Nangal. In his cross-examination he has stated that his house is at a distance of 50 yards from the house of deceased Pritam Singh. The said telephonic call was received by Bachittar Singh Constable No. 213, who has appeared as PW 26. He has only stated that Dilbag Singh had stated that he had heard sounds of bullets being fired from the side of the house of deceased Pritam Singh, He made entry in the Daily Diary Report No. 29, a copy whereof is Ex. PW-W In his cross-examination he has denied that Dilbag Singh had stated on the telephone that accused Gbunghru had fired the bullets, 13. PW 6 Rattan Singh is the elder brother of deceased Pritam Singh and both of them had adjoining houses in the village. He has stated that on the date of occurrence at about 8.30—8 45 p. in. he was watching the television in his house when he heard his nephew Narinder shouting from the roof of his house ‘Mar Ditta Mar Ditta. Hearing it he came out of his house and followed accused Maheshi alias Mahesh alongwith other villagers, caught hold of him and brought him to the house of Pritam Singh. The villagers had given beatings to Maheshi alias Mahesh, as a result of which he was injured and bleeding. In his cross-examination, he has explained that the distance between his house and the house of Pritam Singh is about 20 yards and also that he had seen accused Maheshi alias Mahesh coming out of the gate of the house of his brother Pritara Singh and running away and that he had hardly followed him for 20 yards when accused Maheshi alias Mahesh stumbled and fell on the ground. According to him all the injured were sent to hospital except accused Maheshi alias Mahesh before the arrival of the police. This witness has also stated that when accused Maheshi alias Mahesh was caught, he was empty handed. The place from where accused Maheshi alias Mahesh was caught is Sonali road. 14. Statement of Pradhan Sheetal Singh was also recorded as PW 9 in order to prove the recovery of revolver Ex. P-I6 vide recovery memo Ex. PR. This witness has also stated that when accused Maheshi alias Mahesh was caught, he was empty handed. The place from where accused Maheshi alias Mahesh was caught is Sonali road. 14. Statement of Pradhan Sheetal Singh was also recorded as PW 9 in order to prove the recovery of revolver Ex. P-I6 vide recovery memo Ex. PR. Six empties Ex P-27 to P 32 found in the revolver, were also identified by this witness In his cross-examination, this witness has admitted that place from where revolver was recovered, is an open field accessible to all However, this witness has not stated that he was present on the spot immediately after the occurrence and Piar Kaur had narrated the occurrence to Surjit Singh in his presence. PW 28 Avtar Chand H.C. No. 180 took into possession the clothes of Piar Kaur. He has stated that in reply to his application, he was-told by the doctors in writing Ex PXX/1 that bullet from the body of Piar Kaor was not extracted. This witness had visited the house of Pritarn Singh on the information received from Pradhan Bhagat Singh and taken into possession cartridges Ex, P-10 to P-15 vide memo Ex. PO. 15. Another witness Bhagat Singh PW 2 had reached on the spot after the occurrence and had joined the investigation, in whose presence two bullets Ex. PI and P-2 were taken into possession from the spot vide memo Ex. PF. One blood stained Drat Ex P 3 and one blood stained knife Ex. P-4 were also picked up from the compound and taken into possession vide memo Ex. PJ, on which this witness has identified his signatures. Two pieces of cloth Ex P-5 and P-6 and two Patkas Ex, P-7 and P-8 were also recovered from the spot and taken into possession vide memos Ex. PL and PM which also bear signatures of this witness. According to this witness, two cartridges and one empty Ex, PI 3 to P-15 were taken into possession from the store room of the house of Pritam Singh vide memo Ex. PO by the police who were called by him at the instance of another daughter of deceased Pritam Singh, namely, Jasbir Kaur wife of Surjit Singh PW 1. Jasbir Kaur has also been produced as PW 7 to corroborate the recovery of Ex P-13 to P-I5. PO by the police who were called by him at the instance of another daughter of deceased Pritam Singh, namely, Jasbir Kaur wife of Surjit Singh PW 1. Jasbir Kaur has also been produced as PW 7 to corroborate the recovery of Ex P-13 to P-I5. In his cross-examination PW 2 Bhagat Singh has stated that when he reached on the spot, he found dead-body of Pritam Singh lying near the gate, whereas, that of Kashmir Singh and Kashmir Kaur lying a little further. He also found Piar Kaur bleeding profusely from her injuries and crying in pain and Kulwant Kaur was also there injured and crying. In the presence of other witness Gurdas Singh PW 3, Maruti Van No. HP-20 0379 belonging to accused Ghunghru alias Madan Lal was also taken into possession vide memo Ex. PW 29/E. A sword Ex P-88, knife Ex P-89, Patka Ex. P-93 and other articles were also recovered from the said van in the presence of this witness. 16. Witness Jaswinder Singh, HC No. 178 has appeared as PW 8 to prove taking into possession of clothes of accused Ghunghru alias Madan Lal and Maheshi alias Mahesh Ex. P-20 to P-26 in the hospital vide memo Ex. PQ. Suresh Kumar, PW 10, Shiv Kumar PW 11 and Dharam Pal PW 14 are the photographers, who took the photographs during the investigation. Similarly, Surjit Singh PW 20, who is a draughtsman, has prepared site plan Ex, POO of the house of deceased Pritam Singh In his cross-examination, he has admitted that points ABCDEF were mentioned in the site plan as per the demarcation given by Piar Kaur and Kulwant Kaur. He has also stated that the said house is the first house in the street which adjoins a road under construction, which leads to the main road. 17. PW 19 Satpal has tendered his affidavit Ex. PPP in respect of issuance of service revolver No. 161-28089, 38 bore with 18 cartridges to Om Parkash PW 17 PW 21 Ramesh Chand, ASI has also placed on record his affidavit Ex. 17. PW 19 Satpal has tendered his affidavit Ex. PPP in respect of issuance of service revolver No. 161-28089, 38 bore with 18 cartridges to Om Parkash PW 17 PW 21 Ramesh Chand, ASI has also placed on record his affidavit Ex. PQQ stating that he was posted as Muhrar Head Constable in Police Station Una, when on 13-3-1992 he had received Rukka, on the basis of which he had registered F. I. R. and sent special report thereof through Kashmir Singh Constable No. 282 to Sub-Divisional Judicial Magistrate, Una and Deputy Commissioner, Una, He has further stated in his affidavit that he had Landed over duly sealed parcels mentioned therein to PW 22 Teja Singh. Similarly, PW 22 Teja Singh LMC No. 94 tendered his affidavit Ex. PRR stating that he had delivered nine parcels, bearing different seals thereon, to the Office of Chemical Examiner, Forensic Science Laboratory, Bharari, Shimla without being tampered with by anyone during the period these remained with him. 18. The investigation was conducted by ASI Karnail Singh PW 29, who has stated that he proceeded to the spot on receipt of telephonic message Ex. PWW at 8.50 p. m. on 13-3 1992 On reaching there ht found that injured were being loaded into van and truck, and he deputed police officials with them Thereafter, he recorded the statement Ex PA of Surjit Singh PW 1 and sent it for registration of F. I. R. He had investigated the spot and prepared site plan Ex. PW 29/A He also recovered from the spot two empties of the bullets, Drat and knife vide memos Ex, PF, PG and PH. Two pieces of cloth and two Patkas of Saffron colour Ex. P-5 to P-8 were also taken into possession from the spot vide memo Ex. PL. Clothes of Kulwant Kaur as well as of accused Ghunghru alias Madan Lal and Maheshi alias Mahesh were also taken into possession by him. He had recorded disclosure statement of accused Ghunghru alias Madan Lal Ex PW 29/B and got the revolver Ex. P-16 recovered in the presence of witness Sheetal Singh and others. This witness has given full account of the investigation conducted by him. He had recorded disclosure statement of accused Ghunghru alias Madan Lal Ex PW 29/B and got the revolver Ex. P-16 recovered in the presence of witness Sheetal Singh and others. This witness has given full account of the investigation conducted by him. In his .cross-examination, he has admitted that he has also conducted investigation in the case of murder of Rajinder Paul, the brother of Ghunghru alias Madan Lal, in which deceased Kashmir Singh was one of the accused. During the investigation he had found that the said murder had taken place in front of the shop of accused Sarvan, who had lodged F. I. R This witness has also admitted that the place from where the revolver was got recovered by accused Ghunghru alias Madan Lal, is an open space accessible to the public. He has further stated that accused Ghunghru alias Madan Lal was formally arrested on 16-3-1992 and he had made the disclosure statement on 30-3-1992. He has denied that Ghunghru alias Madan Lal was made accused merely on the basis of suspicion and accused Sarvan was implicated at the instance of Piar Kaur. He has admitted that no knife was recovered on the basis of any disclosure statement of any of the accused. According to him he had correctly recorded the statements of witnesses Surjit Singh, Rattan Singh, Jasbir Kaur, Sheetal Singh, Piar Kaur and Kulwant Kaur under section 161, Cr. P. C. He has given the time of reaching on the spot as 9 30 p. m. He has also stated that when he reached on the spot, Piar Kaur did not disclose to him that Maheshi alias Mahesh and Ghunghru alias Madan Lal were the accused. He had met Maheshi alias Mahesh on 16-3-1992 at about 10.00—11 00 a. m. in District Hospital, Una, though he was told by the persons present on the spot that he had been caught while he was running from the spot. He has categorically denied that F. I. R. was written after due deliberations and it was made ante time. Other witnesses are not material, except the statements of the doctors, with which we will now deal. 19. Piar Kaur and Kulwant Kaur were brought to B. B. M B. Hospital, Nangal where they were examined by Doctor Sanjay Gulati PW 13 at 11.00 p. m on the date of occurrence. Other witnesses are not material, except the statements of the doctors, with which we will now deal. 19. Piar Kaur and Kulwant Kaur were brought to B. B. M B. Hospital, Nangal where they were examined by Doctor Sanjay Gulati PW 13 at 11.00 p. m on the date of occurrence. He observed the following injuries on the person of Piar Kaur :— 1. Rounded shaped injury 1 cm. in diameter in the right breast placed 10 cm lateral to the nipple. Margins of the wound were inverted. Tatooing was absent. Fresh bleeding was present Advise4 X-ray Chest A. P. and lateral view. 2. Incised wound 4 cm, x 1 cm. on index finger of left hand on ventral aspect extending towards dorsal aspect. Fresh bleeding was present. 3. Patient was complaining of pain in both legs. Advised tharce lumber spine A, P. and lateral view. On receipt of X-ray reports No-. 410 to 412 on the next day, Injuries No. 1 and 3 were declared grievous, caused by fire-arm and Injury No. 2 simple caused by sharp-edged weapon like Drat or knife, The probable duration of injuries was less than six hours. X-ray report Ex. PZ which was in the handwriting of Doctor S. Mehta has also been proved by this witness. Medico Legal Report Ex. PAA and skiagrams Ex P-48 to P-50 of Piar Kaur are also placed on record by this witness. He has also stated that an application Ex PBB was moved on 13-3-1992 whereon he has given his opinion Ex PBB/1 that Piar Kaur and Kulwant Kaur were not fit to make statements. 20. This doctor had also examined Kulwaat Kaur and found the following injuries on her:— 1. There was a sharp wound U shape measuring 6x6x2 cm. on right side of scalp 8 cm. above right eye brow over frontal region of the scalp. Bone exposed. Fresh bleeding was present. Advised X-ray skull A P and Lateral. 2. Abrasion 4 cm. x 1/2 cm. vertically plased 8 cm. below right shoulder joint on anterio middle aspect red in colour. On receipt of X-ray Reports No, 405 and 406 and report Ex. PCC of Doctor S Mehta, this witness gave his Medico Legal Report Ex. PDD opining that Injury No. 1 was simple caused with sharp-edged weapon and its duration was within a period of six hours; The skiagrams of Kulwant Kaur Ex. On receipt of X-ray Reports No, 405 and 406 and report Ex. PCC of Doctor S Mehta, this witness gave his Medico Legal Report Ex. PDD opining that Injury No. 1 was simple caused with sharp-edged weapon and its duration was within a period of six hours; The skiagrams of Kulwant Kaur Ex. P-51 and P-52 are also placed on record by him He has also stated that injuries found on the person of Kulwant Kaur are possible with Drat Ex. P-3. 21. Doctor Gulati had also medically examined accused Madan Lal on the date of occurrence at 10.00 p. m. and found the following injuries on him :— 1. 1 cm round wound over middle part of front surface of right arm. Fresh bleeding was present Margins were inverted. No tattoing. Advised X ray right arm A. M and lateral. 2. Irregular wound with overted margins 3 cm. x 1-1/2 cm. in size 6 cm. above the injury No. 1 on the front surface of right arm. Fresh bleeding was present. Advised X-ray arm A. P. and lateral view, 3. Irregular wound with ragged margins 5 cm. x 2-1/2 cm. placed 5 cm. above injury No 2 on anterio axillary fold Fresh bleeding was present. All injuries were in a single straight line, 4. Tenderness present over middle part of clavicle, Advised X-ray chest A. P. and lateral view. On receipt of his X-ray reports No. 407 to 409 and report Ex. PBB of Doctor S, Mehta, this witness issued Medico Legal Certificate Ex. PFF and gave his opinion that the injuries were of grievous nature and caused by fire arm. The skiagrams of accused Madan Lal Ex. P-53 to P-155 are also placed on record. In his cross examination, he has admitted that if a person strikes against a sharp edged substance, which is U shaped, he may receive injury like Injury No. 1 on the person of Kulwant Kaur. He did not remember whether he had made enquiry from accused Ghunghru alias Madan Lai as to how he received injuries. He has also stated that he had not taken out the bullet from Piar Kaur, as it was lodged deep near the spinal cord and extraction was dangerous. He did not remember whether he had made enquiry from accused Ghunghru alias Madan Lai as to how he received injuries. He has also stated that he had not taken out the bullet from Piar Kaur, as it was lodged deep near the spinal cord and extraction was dangerous. Similar was the case of accused Madan Lal that the bullet was lodged deep in clavicular area and it was dangerous to extract it without general anaesthesia, The statement of this witness that he had not mentioned the blackening and charring where there was fire-arm injury, because it was absent, is material to be taken note of. According to him, he had missed to record the same, as in the case of firearm injury blackening and charring or tattoing must be present. But he was not able to give the distance from which the fire-arm would have been fired in the case of Piar Kaur as well as accused Ghunghru alias Madan Lal, though it was from right angle as the injuries on both of them being rounded. 22. Doctor S.K Nanda, the then Medical Officer, District Hospital, Una has appeared as PW 23. According to him, accused Ghunghru alias Madan Lal was admitted in the hospital at 6 30 p. m on 14-3-1992 by a doctor who was on emergency duty and later on he was brought to him for treatment. After examination this witness had extracted one pellet from the chest below right clavicle, which was handed over to the police in a sealed parcel, which was identified by this witness. Accused Ghi nghru alias Madan Lal discharged from the hospital on 27-3-1992. This witness has further stated that accused Maheshi alias Mahesh was also admitted in the hospital on 13-3-1992 and remained under his treatment till 21-3-1992 and referred to P. G. I on 20-3-1992 for further management of left facial nerve palsy. The medico legal certificate of accused Maheshi alias Mahesh, which was issued by Doctor Pardeep Sharma is also placed on record and proved through this witness. Learned Counsel appearing for the accused has not asked any question from this witness in the cross-examination. 23. Post-mortem on the dead-bodies of Pritam Singh, Kashmir Kaur and Kashmir Singh was conducted by Doctor M.D. Sharda, Sr, Medical Officer, B. B. M. B , Hospital, Nangal on 14-3-1992, who has appeared as PW 15. Learned Counsel appearing for the accused has not asked any question from this witness in the cross-examination. 23. Post-mortem on the dead-bodies of Pritam Singh, Kashmir Kaur and Kashmir Singh was conducted by Doctor M.D. Sharda, Sr, Medical Officer, B. B. M. B , Hospital, Nangal on 14-3-1992, who has appeared as PW 15. The post-mortem report in respect of deceased Kashmir Kaur is Ex. PHH and the cause of death opined by this witness was due to fire arm injury causing shock and haemorrhage and injury to the lungs. These were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. It is further stated by this witness that Injury No. 3 as recorded by him in the post-mortem report was possible with any sharp edged weapon including a knife and the possibility of its being inflicted with knife Ex P-4 cannot be ruled out The wearing apparels and the ornaments found on the dead-body of Kashmir Kaur, which were handed over to the police were also identified by this witness The post-mortem report of deceased Kashmir Singh is also placed on record by this witness as Ex. PJJ. The cause of death stated by this witness in the case of deceased Kashmir Singh was due to fire arm injury causing damage to the vital parts i.e. lungs, liver and heart. All these injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. Third post-mortem report placed on record by this witness is Ex. PKK, which pertains to deceased Pritam Singh. The cause of death in his case is again due to free arm injury causing shock and haemorrhages due to the injury to the vital organs, such as, heart, lungs and large blood vessels. Again, all the injuries were ante mortem and sufficient to cause death in the ordinary course of nature. It is further stated by this witness that Injury No 3 as recorded in Ex. PKK is possible with any sharp edged weapon with a curved blade, as it was ‘C’ shape with flap formation and the possibility cannot be ruled out that the said sharp edged weapon was knife Ex. P-4. He has also identified the clothes of Kashmir Singh and Pritam Singh, which were found on their dead-bodies and handed over to the police. 24. P-4. He has also identified the clothes of Kashmir Singh and Pritam Singh, which were found on their dead-bodies and handed over to the police. 24. In his cross-examination this witness has admitted that Injury No. 3 on the dead-body of deceased Kashmir Kaur was found stitched and the doctor who had seen the injury and stitched it, would be in a better position to give opinion about it. The injury was about 1 5 cm above the ankle on the inner side. He has further explained that Injury No. 3 on the dead-body of deceased Pritam Singh is possible if the blade of the weapon .used is curved and the possibility that Drat Ex. P 3 was weapon cannot be ruled out, as it has a curved point at the end of the blade. He has further stated that if a person falls on a sharp edged substance having shape ‘C’, Injury No. 3 found on the dead-body of deceased Pritam Singh is possible but he has given a definite opinion that Injury No 3 found on the dead-body of deceased Pritam Singh is unlikely by knife Ex. P-4, which was shown to him by opening its blade. In earlier part of his statement this witness has opined otherwise, since the blade of knife Ex. P-4 could not be opened and shown to him. According to him, only one injury of firearm shot was found on the respective dead-bodies of Kashmir Kaurt Kashmir Singh and Pritam Singh but he could not tell the distance from which the fire arm was tired, though according to him it was from a close range. 25. After analysing the evidence produced by the prosecution, now we will examine the defence set out by the accused in their respective statements under section 313, Cr. P. C. The case of accused Maheshi alias Mahesh is that he was caught by two persons while he was going to the Shrine of Bhaji Baba and beaten by them, as a result of which, he had become unconscious and did not know what happened thereafter Though he has denied that he was medically examined by Doctor Nanda on 13-3-1992, yet he has admitted that he remained admitted in the District Hospital, Una and thereafter sent to P G. I. According to him he is innocent and has been falsely implicated. Being lame from one leg he cannot even walk straight. 26. Accused Ghunghru alias Madan Lal has also denied the case of the prosecution in toto but he has admitted that on 13-3-1992 he was medically examined by Doctor Sanjay Gulati, who found four injuries on him as mentioned in medico legal certificate Ex. PFF and the opinion Ex, PFF/1 dated 14-3-1992. According to him, he was hit by a bullet while he was coming from Nangal to his house. As per his version, he has been falsely implicated in the case and the prosecution witnesses have falsely deposed against him because deceased Kashmir Singh had committed murder of his brother. Earlier he was implicated in a case under section 325, I.P.C. but acquitted. 27. The defence of third accused Sarvan is denial simpliciter. According to him, he had lodged the F.I.R. in the case against deceased Kashmir Singh and one Jasbir Kaur for the murder of Rajinder Paul as the occurrence had taken place in front of his shop and he was cited as prosecution witness, for which reason Piar Kaur and other members of her family were against him and had threatened him number of times with dire consequences and ultimately implicated in the present case falsely The defence of the fourth accused Jaind alias Chandermohan is again denial simpliciter and he has shown his ignorance why prosecution witnesses had deposed against him. According to him he is innocent, 28. Learned Counsel appearing for accused Ghunghru alias Madan Lal has placed on record copy of judgment dated 21-8-1987 of Judicial Magistrate, Una Ex. D-l, copy of judgment of High Court Ex. D 2 and copy of judgment of High Court of Punjab and Haryana as Ex. D-3. He has also produced Doctor Ramesh Kumar DW 1 and Ram Kumar DW 2 in defence Doctor Ramesh Kumar was Assistant Professor, Orthopaedics in P. G. I. From the record produced by him, he has stated that Mahesh Kumar son of Des Raj aged 24 years was admitted in the Department of Orthopaedics on 17-4-1990 with the fracture of shaft femur right with fracture of both bones right leg and h§ was operated upoo for open reduction and fixation of fracture shaft femur and fracture both bones leg on 20-4-1990. He had remained under his treatment upto 27-4-1990 and discharged on 28-4-1990. He had remained under his treatment upto 27-4-1990 and discharged on 28-4-1990. The other defence witness Ram Kumar DW 2 has stated that the Police of Una had visited the village of accused Chandermohan on 18-3-1992 and thereafter on third day but did not fiad him there as he was away to Parwanoo for the last 15 to 20 days. Thereafter accused Chandermohan was brought from Parwanoo and handed over to the Police at Mehatpur on 22/23-3-1992 la his cross-examination, this witness has shown his ignorance that if Chandermohan is also known as Jaind in the village. He has also denied his knowledge that he was working as cleaner on the taxi belonging to accused Ghunghru alias Madan Lal. 29. The Sessions Judge, Una has also inspected the spot on 24-9-1994 and his Inspection Note is as under: — “Today at about 5.35 p m. I have inspected the spot in village Majara in presence of Sh Kulwaiit Singh, P. P. and Sh. Jiwan Dass Chakervarti, Advocate learned Counsel for complainant party, Sh. F. C. Kahol, learned defence counsel and Karnail Singh, ASI, presently posted at Una. Smt, Piar Kaur and Rattan Singh PWs were also called at the spot. The situation as well as the approximate distances of temple Bhajna Pir from the main Bazar shown at point ‘A’ on Santokhgarh-Sanoli road have been shown in the rough site plan mark ‘A’. The house of the complainant party has been shown at point H’. The distance of temple Bhajna Pir from point ‘A via points C and D (direct roads) is approximately just above half km. The distance from point ‘A to the temple of Bhajna Pir through the Firni shown as points A1 and A2, leading just near the house of the complainant party, comes near about 2 kms. Therefore, these show that the route allegedly taken by Maheshi accused through the Firm of the village to the temple of Bhajna Pir is double the distance than the one through direct route via points C and D shown in the site plan mark ‘A’.” 30. We have heard learned Counsel for the parties and gone through the record. We will first deal with the points which are common in the arguments of the learned Counsel appearing for different accused persons. We have heard learned Counsel for the parties and gone through the record. We will first deal with the points which are common in the arguments of the learned Counsel appearing for different accused persons. The Sessions Judge has convicted each of accused persons Ghunghru alias Madan Lal, Sarvan and Jaind alias Chandermohan for the offences under sections 302 and 307, I P. C with the aid of section 149, I. P. C. and for offences under sections 120-B and 449, I. P. C. The first contention raised on behalf of the accused persons is that the Sessions Judge has gravely erred in convicting accused persons, namely, Ghunghru alias Madan Lal, Sarvan and Jaind alias Chandermohan under sections 302 and 307, I.P.C. with the aid of section 149, I. P. C They have pointed out that participation of five or more persons is required to constitute an unlawful assembly, as defined under section 14!, I. P. C, but in the present case on the acquittal of two of the accused persons, namely, Anil Kumar and Prem Paul, the remaining four accused, who are before this Court, did not form unlawful assembly and could not be held guilty under sections 302 and 307, I.P.C with the aid of section 149, I P C 31. We find substance in this submission and straightaway accept it. It is correct that initially charge was framed and trial was held against six accused persons but on the acquittal of two of them, the remaining four did not form unlawful assembly and section 149, I. P. C. could not be invoked for convicting them under sections 302 and 307, I.P.C, as for forming unlawful assembly five or more persons were required. Though perusal of definition of ‘unlawful assembly under section 141, I. P. C. makes this point clear, vet we may refer to some judgments of Supreme Court in Maina Singh v. State of Rajasthan, AIR 1976 SC 1084 ; Amar Singh and others v The State of Punjab, 1988 (I) Chandigarh Law Reporter 10 and K Nagamalleswara Rao and others v. State of Andhra Pradesh, 1992 (1) Chandigarh Law Reporter 640, wherein it has been consistently laid down that when initially charge and trial is against five or more persons but ultimately less than five are found guilty and remaining arc acquitted, section 149,1 P. C cannot be invoked for convicting the guilty persons and they can be held responsible for the offence, if any, which they have committed without participation of others Applying the ratio of these judgments to the facts of the present case, we hold that the conviction of accused persons Ghunghru alias Madan Lai, Sarvan and Jaind alias Chandermohan under sections 302 and 307 with the aid of section 149, I. P C does not stand the judicial scrutiny and it is set aside. 32. The next question arises whether these accused persons can be held guilty under sections 302 and 307, I.P.C. with the aid of section 34, I. P. C., though in the charge framed against them section 34, I. P. C was not mentioned. For answering this point it is necessary to refer to distinction between sections 149 and 34, L P. C. in Nanak Chand v. State of Punjab, AIR 1955 SC 274, learned Judges of the Supreme Court have examined the provisions of section 149, I. P C and held that :— "This section postulates that an offence is committed by a member of an unlawful assembly in prosecution of the common object of that assembly or such as a member of the assembly knew to be likely to be committed in prosecution of that object and declares that in such circumstances every person, who was a member of the same assembly at the time of the commission of the offence, was guilty of that offence. Under this section a person, who is a member of an 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 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. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore, when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed," Referring to section 34, I.P.C., the learned Judges further held that this section is merely explanatory that when several persons are actuated by a common intention and do criminal act in furtherance of that common intention, each of them is liable for that act as if the act had been dons by him alone, but this section does not create any specific offence. Making clear the distinction between the two provisions of section 34, I P. C. and section 149, I. P. C, the learned Judges have further held that ;— “There is a clear distinction between the provisions of sections 34 and 149, 17 P. C. and the two sections are not to be confused. The principal element in section 34, I P. C. is the common intention to commit a crime. In furtherance of the common intention several acts may pt done by several persons resulting in the commission of that crime. In such a situation section 34 provides that each one of them would be liable for that crime in the same manner, as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in section 149, I.P.C An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of that offence." 33. After examining number of earlier cases of different High Courts, the learned Judges came to the conclusion that a person charged with an offence under section 149, I. P. C. cannot be convicted of the substantive offence without a specific charge being framed, as required under section 233, Cr. P. (1 (old)/218 Cr. P. C. (new). (Please also refer to Suraj Pal v. State of Uttar Pradesh, AIR 1955 SC 439). But in the present case we find that though accused persons Ghunghru alias Madan Lal, Sarvan and Jaind alias Chandermohan are convicted under sections 302 and 307 with the aid of section 149, I. P. G f yet charge was framed against them for the substantive offences under sections 302 and 307, I P. C separately and under section 149, I. P. C. separately, as such, there is no hurdle to convict them for these substantive offences under sections 302 and 307, I P. C., if from the evidence on, record these offences are proved against them. 34. But at the moment the point before us is whether three accused persons, namely, Ghunghru alias Madan Lai. Sarvan and Jaind alias Chandermohan can be convicted for the offences under sections 302 and 307, I. P. C. with the aid of section 34, I. P C. without mention of section 34, I. P.C in the charge We find the answer in two recent judgment of the Supreme Court in volineedi Venkataramaiah and others v. State of Andhra Pradesh, 1995 SCC (Cri) 19 f and B. Bhadriah and others v. State of Andhra Pradesh, 1995 SCC (Cri) 370. In the case of Bolineedi Venkataramaiah and others (supra), nine accused were tried for offences punishable under sections 148, 302/149 and 449, I, P. C. The trial Court convicted all of them. On appeal the High Court, however, confirmed the sentence awarded against three accused persons only and acquitted the remaining six accused persons. In the case of Bolineedi Venkataramaiah and others (supra), nine accused were tried for offences punishable under sections 148, 302/149 and 449, I, P. C. The trial Court convicted all of them. On appeal the High Court, however, confirmed the sentence awarded against three accused persons only and acquitted the remaining six accused persons. In the appeal before the Supreme Court, the submission on behalf of three convicted accused persons was that on the evidence on record at the most they could be convicted for causing simple injuries and the question of applying sections 149 and 34, I. P. C did not arise. The learned Judges of the Supreme Court held that no doubt the witnesses have deposed that in the first instance when the unlawful assembly chased the deceased, these three accused inflicted injuries, one on the right thigh, another on the left thigh and one on his back, but for arriving at the conclusion of constructive liability, it was to be seen whether they had common intention or common object and the ingredients are to be considered in convicting by application of section 149 or section 34, I. P. C. The Court has to look into the proven circumstances like the formation of the unlawful assembly, the weapons with which they were armed and the active role played by them. Though the learned Judges of the Supreme Court did not directly deal with the question, whether the accused persons could be held guilty under section 302 read with section 31, I. P C when they were charged and tried for offence under section 302 read with section 149, I P C. and ultimately section 149, I. P. C. could not be invoked, as less than five persons were found guilty, yet they have upheld the conviction of substantive offence under section 302, I P. C. with the aid of section 34, I, P. C 35. Similarly, in B. Bhadriah and others v; State of Andhra Pradesh (supra), when the learned Judges of the Supreme Court only upheld the conviction of three accused persons out of five, who were convicted under section 302 read with section 149, LP.C, they converted the conviction of those three accused persons under section 302 read with section 34, I. P. C. and maintained the sentence of imprisonment for life. In this case also there was charge and trial under section 302 read with section 149, I. P.C and not under section 302 read with section 34, I. P. C Applying the ratio of these judgments, it can be held chat if accused persons are charged and tried for substantive offence with the aid of section 149,1. P. C , they can be convicted for the same substantive offence with the aid of section 34, I. P. C , even if no charge was framed for the substantive offence with the aid of section 34, I P. C but vice versa is not" correct However, conviction of substantive offence with the aid of section 34, I. P. C. is only possible if from the evidence on record common intention is gathered. In this connection reference to section 218, Cr P. C. will be helpful, which says that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Apparently, this provision is made with the purpose that no prejudice is caused to the accused, So far section 34, I. PC is concerned, as explained hereinabove, it does not constitute a substantive offence and it is only explanatory No prejudice is caused to the accused if specific charge in respect of substantive offence with the aid of this section is not framed when the charge of substantive offence with the aid of section 149, I. P. C. is already there, because both talk of vicarious liability. In the case of section 149, I. P. C. an offence is committed by a member of unlawful assembly in prosecution of common object and overt act by each member of unlawful assembly is not required, whereas, in the case of section 34, I. P. C a criminal act is done by several persons in furtherance of common intention of all and overt act by each of them is necessary. 36. 36. Applying these principles to the present case, we hold that these three accused persons can be held guilty for offences under sections 302 and 307,1, P C with the aid of section 34, L P. C , as in furtherance of common intention they had gathered on the place of occurrence with lethal weapons in their hands and accused Ghunghru alias Madan Lal had inflicted injury with Drat on the head of Kulwant Kaur, accused Jaind alias Chandermohan gave knife blow on the left side of the face of Pritatn Singh when he had already received injury and accused Sarvan gave a knife blow to Kashmir Kaur; the nature of these injuries will be discussed later on. 37. Another submission made by the learned Counsel on behalf of the accused persons is that the conviction of accused persons under section 120-B, I P C. by the Sessions Judge is not justified, as according to them, there is no evidence of criminal conspiracy on record- It is vehemently argued that unless there is material on record to show that there was an agreement or in other words, meeting of mind of accused persons before the commission of alleged offence, a case under section 120-B is not made out. In order to appreciate this argument we must refer to section 120-B, I.P.C., which says:— 120-B. Punishment of criminal conspiracy,—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both. 38. Interpreting this section, the learned Judges of the Supreme Court in Noor Mohammad Mohd. (2) Whoever is a party to criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both. 38. Interpreting this section, the learned Judges of the Supreme Court in Noor Mohammad Mohd. Yusuf Momin v. The State of Maharashtra, AIR 1971 SC 885, have held that under section 120-B, I.P.C. criminal conspiracy is made a substantive offence and it postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means, It differs from other offences in that mere agreement is. made an offence even if no step is taken to carry out that agreement Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by section 107, I. P. C\ A conspiracy from its very nature is generally hatched in secret, It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers But, like other offences, criminal conspiracy can be proved by circumstantial evidence Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in having direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to the law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto. Similar view was taken in State (Delhi Admn) v. V. C. Shukla and another, AIR 1980 SC 1382. 39. Reiterating the principles laid down in these two judgments, the learned Judges of the Supreme Court have further explained in Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, that :— "In the above context we may refer to the provisions of section 120-A of the Indian Penal Code which defines criminal conspiracy. 39. Reiterating the principles laid down in these two judgments, the learned Judges of the Supreme Court have further explained in Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420, that :— "In the above context we may refer to the provisions of section 120-A of the Indian Penal Code which defines criminal conspiracy. It provides that when two or more parsons agree to do, or cause to be done, (i) an illegal act, or (2) an act which is not illegal by illegal means, such agreement is designated a Criminal conspiracy : provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof Thus, a cursory look to the provisions contained in section 120-A reveal that a criminal conspiracy envisages an" agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus, the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence in a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in section 120-B read with the proviso to subsection (2) of section 120-A of the Indian Penal Code, then in that event mere proof of an agreement between the accused for, commission of such a crime alone is enough to bring about a conviction under section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the Grime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in section 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn ……….” (Also see: E. K. Chandrasenan v. State of Kerala, (1995) 2 SCC 99). 40. The ratio of these judgments of the Supreme Court is that there can be no direct evidence of the conspiracy, as it is not hatched in open and is secretly planned, it is to be seen whether from the circumstantial evidence available on record an inference can be drawn giving rise to the conclusion that there was an agreement or meeting of mind of the accused persons to commit the offence alleged against them. Applying this ratio to the present case, we may hold that from the sequence of events proved on record that accused Maheshi alias Mahesh armed with revolver entered the courtyard of the house of Pritam Singh from the main gate and the other accused namely Ghunghru alias Madan Lal, Sarvan and Jaind alias Chandermohan came to the courtyard after scaling down the boundary wall of the said house immediately after accused Maheshi alias Mahesh fired first shot from his revolver inflicting fatal injuries on the person of Pritam Singh, which clearly shows the agreement or meeting of mind between them to kill Pritam Singh and other members of his family. It is correct that the Sessions Judge has acquitted accused Anil Kumar and Prem Pal disbelieving that they had stolen the revolver Ex. It is correct that the Sessions Judge has acquitted accused Anil Kumar and Prem Pal disbelieving that they had stolen the revolver Ex. P 16 from Sub-Inspector Om Parkash and further transferred it to Ghunghru alias Madan Lal or Maheshi alias Mahesh and also that they had met all the accused persons to hatch a criminal conspiracy to kill Pritam Singh and members of his family, but from the facts and circumstances proved on record the meeting of mind of accused Maheshi alias Mahesh, Ghunghru alias Madan Lal, Sarvan and Jaind alias Chandermohan is proved beyond any reasonable doubt to establish that they did hatch a criminal conspiracy in pursuance of which they had come to the house of Pritam Singh armed with lethal weapons to kill Pritam Singh and members of his family In the result we hold that the conviction of all the four accused persons with the aid of section 120-B, I P C. is made out and it is upheld. 41. Another common argument raised on behalf of the accused persons is that in view of the admitted facts on record that the relations between the complainant party and the accused persons Ghunghru alias Madan Lal and Jaind alias Chandermohan were inimical, the complainant party has falsely implicated the accused persons The learned Counsel for the accused persons have pointed out to the statements of Piar Kaur PW 4 and Kulwant Kaur PW 5, wherein they have admitted that brother of accused Ghunghru alias Madan Lal, named Rajinder was murdered on 11-7-1991 and their son/brother deceased Kashmir Singh mis one of the accused and F. I. R. was lodged by accused Sarvan in that case, Piar Kaur PW 4 has also admitted in her cross-examination that she had earlier filed a complaint on the basis of which criminal case under section 325, I. P. C. was registered against accused Ghunghru alias Madan Lal for having broken the arm of her son when both of them were studying in the school, but ultimately he was acquitted It is urged that in order to take revenge against Ghunghru alias Madan Lal and Sarvan, Piar Kaiir PW 4 has named them alongwith accused Maheshr alias Mahesh and Jaind alias Chander-mohan. 42. 42. We do not find any substance in this submission The enmity between the complainant party and accused Ghunghru aiias Madan Lal and Sarvan can also be used against them as motive for commission of the crime. Admittedly, motive is a double edged weapon and it will depend upon the facts and circumstances of each case whether the motive has served as instigator for the commission of the crime or just an implicator to rope in the accused peisons in order to pay off the old scores. In the present case there is overwhelming evidence on record against the accused persons establishing their presence at the place of occurrence, identity and participation in the commission of the crime, therefore, it cannot be said that they have been falsely implicated just because of their strained relations with the complainant party. Moreover, the enmity proved on record is only with two of the accused persons, namely, Ghunghru alias Madan Lal and Sarvan and there is nothing against two other accused persons, namely, Maheshi alias Mahesh and Jaind alias Chandermohan to implicate them falsely. It does not appeal to reason that the complainant party, three members of whose family were killed and other two were seriously injured, would allow actual assailants to go scot free and involve the accused persons falsely because of their past enmity. 43. It is correct that in the telephonic message to Police Post Mehatpur, which was received by Bachittar Singh PW 26 and recorded m Daily Diary Report No, 29 Ex. PW-W, the accused persons were not named for the alleged commission of offence, though Dilbag Singh PW 25, who made the said telephonic call, has stated that he had sent the message on hearing that accused Ghunghru had fired shots. Immediately after the occurrence Surjit Singh PW 1 in his statement under section 151, Cr. P. C had named Maheshi alias Mahesh, Ghunghru alias Madan Lal and Sarvan as accused persons. So far as fourth accused person Jaind alias Chandermohan is concerned, he had given his description as resident of Sajowal, as he had forgotten his name. Admittedly, the names of accused persons and occurrence was narrated to Surjit Singh PW 1 by Piar Kaur PW 4, who was removed to hospital before Karnail Singh PW 29 had reached on the spot and recorded the statement of Surjit Singh PW 1. Admittedly, the names of accused persons and occurrence was narrated to Surjit Singh PW 1 by Piar Kaur PW 4, who was removed to hospital before Karnail Singh PW 29 had reached on the spot and recorded the statement of Surjit Singh PW 1. The statements of Piar Kaur PW 4 and Kulwaot Kaur PW 5 were recorded next day, when they named all the four accused persons as culprits. 44. It is further stated on behalf of accused Maheshi alias Mahesh that he is handicapped being lame, as proved by the statement of Doctor Ramesh Kumar DW I but the role assigned to him in the prosecution story is such that serious doubt arises about his presence on the spot and participation in the commission of crime. The defence of accused Maheshi alias Mahesh is that he was apprehended, given beatings and brought to the house of the complainant party by the villagers when he was going to Dera Bhajna Pir for paying his obeisance. But this does not inspire confidence in view of the material on record including the Inspection Note of the Sessions Judge, which he has placed on record after visiting the spot on 24-9-1994. Accused Maheshi alias Mahesh is resident of Santokhgarh and Dera of Bhajna Pir is at a distance of one kilometre from the Bazar of village Santokhgarh via Santokhgarh-Sanoli Road, whereas its distance through the Firni of village Majara is about two kilometres It does not appeal to logic that being lame accused Maheshi alias Mahesh would follow longer path for going to Dera Bhajna Pir, as admittedly the place where he was apprehended, is at a short distance from the house of complainant on Sonali Road, which goes through the Firni of the village, as stated by Rattan Singh PW 6, This witness has further deposed that he had seen accused Maheshi alias Mahesh coming out of the courtyard of the complainant party when he came out of his house after hearing the call of Narinder, another son of deceased Pritam Singh, ‘Marditta Marditta’. The argument that he was handicapped being lame and could not possibly be chosen for the part allegedly played by him in the commission of crime, cannot be accepted in view of the ocular evidence of Surjit Singh PW 1, Piar Kiur PW 4, Kulwant Kaur PW 5 and Rattan Singh PW 6. The argument that he was handicapped being lame and could not possibly be chosen for the part allegedly played by him in the commission of crime, cannot be accepted in view of the ocular evidence of Surjit Singh PW 1, Piar Kiur PW 4, Kulwant Kaur PW 5 and Rattan Singh PW 6. Rather, this argument goes against him that being lame he was entrusted with a revolver as weapon of offence and was asked to enter the compound of the complainant party through the gate instead of scaling down the boundary wall of the compound alongwith other accused persons. He was not a stranger for Piar Kaur PW 4 and Kulwant Kaur PW 5, who knew him as well as accused Jaind alias Chandermohan before the occurrence, as stated by them. Piar Kaur PW 4 has deposed that she used to watch accused Maheshi alias Mahesh and Chandermohan visiting the house of accused Ghunghru alias Madan Lai, which is situated near the tubewell of the complainant party. 45. On behalf of accused Jaind alias Chamlermohan it is urged that he has been wrongly implicated in the case on the mistaken identity, as his name did not figure in F.I.R Ex PA, wherein the fourth accused was described as a person resident of Sajowal. In support of this submission it is pointed out that accused Jaind alias Chandermohan was apprehended on 24 3-1992, eleven days after the occurrence, when he was produced by Ram Kumar DW 2, who had brought him from Parwanoo, where he was working as labourer at that time, because the police had visited Sajowal iu search of sa person named Jaind or Chandermohan on two occasions. Again, there is no substance in this submission, as stated hereinabove that Surjit Singh PW 1 had forgotten the name of fourth accused, though he had given the name of his village, This part of his statement appears to be very natural, as he was son-in law of complainant family and resident of another village, as such, he did not know the accused persons personally. Their names were given to him by Piar Kaur PW 4 immediately after the occurrence when he had come out of the room of the house of complainant party, where he had bolted himself having been scared on hearing gun shot. Their names were given to him by Piar Kaur PW 4 immediately after the occurrence when he had come out of the room of the house of complainant party, where he had bolted himself having been scared on hearing gun shot. His description of fourth accused was completed and confirmed by the statements of Piar Kaur PW 4 and Kulwant Kaur PW 5 recorded on the very next day, who had categorically named accused Jaind alias Chandermohan as fourth accused. 46. So far accused Ghunghru alias Madan Lai is concerned, he was admitted in the B. B. M. B. Hospital at Nangal at 10.00 p. m. on 13-3-1992 with bullet injury on his shoulder, as stated by Doctor Sanjay Gulati PW 13. On the next day i. e. 14-3-1992 he was shifted to District Hospital, Una where a pellet Ex. P 14 was extracted from his chest below right clavicle by Doctor S, K. Nanda PW 23. His explanation that he had received the bullet injury from some unknown person while he was driving his van from Nangal to his house (his Answers to Questions No. 20 and 68 to 70 in the statement under section 313, Cr. P. C), cannot be accepted in the absence of any material on record suggesting, even remotely, that it might have happened The injuries found on the person of accused Ghunghru alias Madan Lal were caused by a fire arm, as stated by Doctor Sanjay Gulati, and corroborate the prosecution version that he was hit by the shot of the revolver fired by accused Maheshi alias Mahesh, which was aimed at Kulwant Kaur PW 5 who had grappled with him when he had hit her with Darat, as stated by her as well as Piar Kaur PW 4 in the Court. 47. From the cross-examination of the prosecution witnesses it appears that on behalf of the accused persons a defence plea is taken that the occurrence in question was the terrorists act, which is apparent from the recovery of two Patkas Exs P-7 and P-8 vide recovery memo Ex. PL and the accused persons have been made scape goat This defence plea seems to be an after-thought of the accused person, as there is not an iota of evidence to suggest it. PL and the accused persons have been made scape goat This defence plea seems to be an after-thought of the accused person, as there is not an iota of evidence to suggest it. In reply to the questions asked in their cross-examinations both Piar Kaur PW 4 and Kulwant Kaur PW 5 have categorically stated that the complaints against their family that they were giving shelter to the terrorists from neighboring State of Punjab, were manoeuvred after the occurrence in question Even Kanail Singh PW 29 who was posted as Incharge CIA, Una, has categorically denied that to his knowledge terrorists used to visit the house of deceased Pritam Singh. Had this defence plea been correct, copies of the complaints or relevant police record would have been placed on record on behalf of the accused persons. Therefore, it is not correct that the accused persons have been falsely implicated. 48. Another point raised on behalf of the accused persons is that the medical evidence on record does not support the ocular version given by Piar Kaur PW 4 and Kulwant Kaur PW 5, which creates serious doubt in the prosecution story It is pointed out that in the F I R it was stated that the accused persons had made murderous attack with knives, Darat and Pistol on Kulwant Kaur PW 5, Piar Kaur PW 4 and others because deceased Kashmir Singh had murdered the brother of accused Ghunghru alias Madan Lai in the month of July last year and deceased Kashmir Singh was released on bail only 10-15 days ago. The detail that which of the accused persons wielded which of the weapon of offence and inflicted which of the injuries on which of the victims, was not given in the F.I.R. and it is in the statement of Piar Kaur PW 4 and Kulwant Kaur PW 5. According to Piar Kaur (PW 4) and Kulwant Kaur (PW 5), they had come out of their kitchen on hearing the sound of gun shot and saw their husband/father fallen on the ground and reeling in pain and accused Maheshi alias Mahesh standing near him with a revolver in his hand. According to Piar Kaur (PW 4) and Kulwant Kaur (PW 5), they had come out of their kitchen on hearing the sound of gun shot and saw their husband/father fallen on the ground and reeling in pain and accused Maheshi alias Mahesh standing near him with a revolver in his hand. Shortly thereafter, the other three accused persons, Ghunghru alias Madan having Darat in his hand, Jaind alias Chandermohan and Sarvan having knives in their hands, appeared on the scene scaling down the boundary wall and Chandermohan hit Pritam Singh with his knife on his face. The second shot fired by accused Maheshi alias Mahesh hit deceased Kashmir Singh, when he made an attempt to run away by crossing over the boundary wall, as a result of which he fell into the courtyard. The third shot was fired by accused Maheshi alias Mahesh at deceased Kashmir Kaur hitting her on the chest as a result of which she fell down on the ground when accused Sarvan hit her with his knife somewhere in her stomach. In the meantime, Ghunghru alias Madan hit Kulwant Kaur PW 5 on her head with Darat when she started grappling with him. At that very moment, Maheshi" alias Mahesh fired fourth shot at Kulwant Kaur which hit accused Ghunghru alias Madan on his arm. Lastly, fifth shot was fired at Piar Kaur PW 4 which hit her in the middle of her body in the front Piar Kaur PW 4 and Kulwant Kaur PW 5 were medically examined by Dr. Sanjay Gulati PW 13 and the injuries found on their person tally with their ocular version. Dr. Gulati has categorically stated that injuries No. 1 and 3 on the person of Piar Kaur PW 4 were caused by a fire arm and injury No. 2 by sharp edged weapon, like Darat or knife. Similarly, he opined that the injuries found on the person of Kulwant Kaur could be caused with Darat Ex. P-3. The statement^ of this witness could not be shattered in cross-examination. He has categorically denied that blackening, charring or tattooing, which is present in the case of fire arm injury, were not present on the person of Piar Kaur as he had not recorded the same and explained that he had just missed recording thereof. 49. So far Dr. P-3. The statement^ of this witness could not be shattered in cross-examination. He has categorically denied that blackening, charring or tattooing, which is present in the case of fire arm injury, were not present on the person of Piar Kaur as he had not recorded the same and explained that he had just missed recording thereof. 49. So far Dr. Sharda (PW 15) who had conducted post-mortem on the dead-bodies of Pritam Singh, Kashmir Singh and Kashmir Kaur is concerned, he has brought on record their post-mortem reports Ex PKK, Ex. PJJ and Ex. PHM respectively. There is no dispute that the death of these three victims was caused by fire-arm injuries as mentioned by the eye-witnesses Piar Kaur PW 4 and Kulwant Kaur PW 5 The learned Counsel for the accused have pointed out that injury No. 3 as recorded in Ex PKK was possible with any sharp edged weapon with curved blade as it was C shaped with flap formation, as stated by Dr Sharda PW 15. In his cross-examination, he has stated in reply to a court question that, "............Injury No. 3 on the person of Pritam Singh with Darat Ex. P-3 being possible cannot be ruled out as it had curved point on the end of the blade............” When the knife Ex. P-4 was opened and shown to this witness, he opined I hat injury No.-3 on the person of Pritam Singh was unlikely with it. Basing their arguments on this part of the evidence of Dr. Sharda the learned Counsel for the accused have submitted that the ocular version of Piar Kaur PW 4 and Kulwant Kaur PW 5 that accused Jaind alias Chandermohan had hit Pritam Singh with knife on bis face materially differs with the medical evidence and raises serious doubt about the ocular version given by the eye-witnesses. Sharda the learned Counsel for the accused have submitted that the ocular version of Piar Kaur PW 4 and Kulwant Kaur PW 5 that accused Jaind alias Chandermohan had hit Pritam Singh with knife on bis face materially differs with the medical evidence and raises serious doubt about the ocular version given by the eye-witnesses. The learned Counsel have also referred to the post-mortem report of Kashmir Kaur to point out that Injury No. 3 was found above the ankle on the inner side but not somewhere in the stomach as stated by Piar Kaur PW 4 and Kulwant Kaur PW 5 This injury was found stitched about which Dr, Sharda could not state anything as he had not opened it It is also submitted by the learned Counsel for the accused that neither in the F. I. R. nor in their statements recorded under section 161, Cr P. C. Piar Kaur PW 4 and Kulwant Kaur PW 5 had stated that Ghunghru alias Madan received fire shot injury while Kulwant Kaur PW 5 was grappling with him, instead they had stated in their statements under section 161,.Cr. P, C. that he had received bullet injury in the melee It is also pointed out that according to the prosecution version Darat Ex. P-3 which was taken into possession from the spot was used to inflict the injury on the person of Kulwant Kaur but according to the report Ex P-AAA of the Serologist, the blood group on the Darat was found as ‘B’ whereas the blood group found on the clothes of Kulwant Kaur was found to be ‘A’. 50. After giving our best consideration to these submissions, we do not find any substance in them. It is proved by the statements of eyewitnesses and the medical evidence that Kulwant Kaur (PW 5) received injury on her person with Darat from accused Ghunghru alias Madan and it is not material whether it was Darat Ex. P-3 or another Darat It is correct that injury No. 3 on the dead-body of Kashmir Kaur was found above the ankle on the inner side and not in the stomach as stated by the eye-witnesses and also that injury No, 2 on the person of Pritam Singh was ‘C’ shaped which could be possible by Darat and was unlikely by knife Ex. P-4 as stated by Dr. P-4 as stated by Dr. Sharda PW 15 but these contradictions in the ocular version and medical evidence are not material to belie the ocular version which has categorically proved that accused Mahcshi alias Mahesh armed with revolver, and accused Ghunghru alias Madan, Jaind alias Chandermohan and Sarvan, armed with weapons of offence like Darat and Knives, were present on the spot and had assaulted the victims who were five in number. If four persons attack five victims in the compound of a house, it is very difficult for the injured eye-witnesses to give an account of the occurrence with precision stating the exact part of the body where an injury is inflicted with a specific weapon wielded by a particular accused person. In fact, it will depend upon the factors to what extent the ocular version inspires confidence and what kind of discrepancy is found in it as compared to the medical evidence. 51. By now it is well settled that undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account is not proper. Observation of learned Judges of Supreme Court in State of U. P. v. Krishan Gopal, AI& 1988 SC 2154 (paragraph 13) are relevant : “It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process , Eye-witnesses account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility The evidence must be tested for its inherent consistency and the inherent probability of the story ; consistency with the account of other witnesses held to be creditworthy ; consistency with the undisputed facts the credit of the witnesses ; their performance in the witness box ; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 52. It is correct that the evidence of eye-witnesses who are interested should be scrutinised carefully especially where there is group rivalry and past enmity between the parties and if there arises any doubt, benefit should go to the accused persons. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 52. It is correct that the evidence of eye-witnesses who are interested should be scrutinised carefully especially where there is group rivalry and past enmity between the parties and if there arises any doubt, benefit should go to the accused persons. In the case of melee where several people are giving blows at one and the same time it is impossible to particularise the blows and if any witness attempts to do it, he may invite grave suspicion with respect to his veracity. On the other hand it is simple to make omnibus statement that all the accused persons assaulted with particular weapons of offence which would obviate close cross-examination. But in the present case it was not exactly melee as four accused persons, armed with weapons, came to the compound of complainant partys house and attacked five of t! e victims one by one, out of which three had died and two were seriously injured who have given their ocular account of the occurrence which is certainly not omnibus but contains all necessary particulars. If one or two particulars, such as part of the body where a particular injury was inflicted or which specific weapon has inflicted a particular injury, as in the present case, do not tally with the medical evidence, it is immaterial and cannot belie the remaining consistent ocular version. For appreciating the evidence of injured witnesses, the Supreme Court has laid down guidelines which are reproduced herein-below in State of Gujarat v. Bharnad Jakshibhai Nagribhai and others, 1990 Cri LJ 2531 : "For appreciating the evidence of the injured witnesses the Court should bear in mind that: (1) Their presence at the time and place of the occurrence cannot be doubted, (2) They do not have any reason to omit the real culprits and implicate falsely the accused person. (3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. (3) The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. (4) If there is any exaggeration in their evidence, then the ex-aggregation is to be discarded and not their entire evidence. (5) While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo-type investigation. (6) It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. Further, the Court should bear in mind that merely, because the prosecution has failed to produce any independent witness to the murder or to the incident which took place in the bazaar which normally would be thickly populated area would be no ground to throw out or doubt the version of injured witnesses or the evidence of relatives of the deceased who on the evidence as it stands were accompanying the deceased and whose presence cannot be doubted for any other reason. The Court should take into consideration the glaring prevailing fact in the society that independent witnesses are not forthcoming to assist the investigating agencies for various reasons such as terror by the accused, danger to their life or property because of the accused, harassment at the investigation stage, repeated adjournments in the Court and on some occasions irrelevant piercing cross-examination by the defence counsel. Therefore, merely because the prosecution has failed to examine so-called independent witnesses to the murder or incident would be no ground for discarding the evidence of the prosecution witnesses who may be either the injured or relative of the deceased accompanying the deceased." 53. Further learned Counsel for the accused persons have pointed out some improvements and contradictions in the statements of Piar Kaur, PW 4 and Kulwant Kaur, PW 5 to emphasise that these are not worthy of credence. Both these witnesses were confronted with their statements under section 161, Cr. P. C. made before the police Ext DD and DE respectively, wherein it has not been mentioned that accused Jaind alias Chandermohan has given knife blow on the face of Pritam Singh or Kashmir Singh tried to get over the boundary wall or accused Sarwan gave knife blow on the stomach of Kashmir Kaur or Kulwant Kaur, on receiving darat blow, grappled with Ghunghru alias Madan Lal and that shot fired by Maheshi alias Mahesh had hit Ghuoghru alias Madan Lal or Piar Kaur had told that she had received two injuries. But these are not material improvements which amount to such contradictions as to belie their statement in the Court Moreover, Piar Kaur lias given her explanation that police has not investigated the case impartially and properly. According to her, Investigating Officer used to visit the house of the accused before visiting their house, for which she had made complaint which was enquired into by the Additional District Magistrate, Una, which creates a doubt that Investigating Officer might not have recorded the statements of these witnesses correctly. It is well settled principle of law that the testimony of eye-witnesses cannot be discarded if it transpires from the facts and circumstances on record that due to remisness of the Investigation Officer, the investigation especially recording of evidence of witnesses was not done fairly and properly. 54. Another submission made on behalf of the accused persons is that weapon of offence Revolver Ext. P-16 alleged to have been wielded by Maheshi alias Mahesh was not connected with him as it was recovered at the instance of Ghunghru alias Madan Lal on 30th March, 1992 from the fields accessible to all. 54. Another submission made on behalf of the accused persons is that weapon of offence Revolver Ext. P-16 alleged to have been wielded by Maheshi alias Mahesh was not connected with him as it was recovered at the instance of Ghunghru alias Madan Lal on 30th March, 1992 from the fields accessible to all. It is also alleged that empties recovered earlier were already with I. O. still these alongwith Revolver were sent to Ballistic Expert as late as on 12-4-1992 which raises serious doubt about their recovery. We do not find any substance in this submission. The disclosure statement as well as Recovery Memo Ext PW 29/B are proved in accordance with law by the independent evidence of Sheetal Singh PW 9. Assuming but not admitting, that the Revolver concealed in the field was visible to everybody from the disclosure statement, the knowledge of accused Ghunghru alias Madan Lal about the Revolver lying at a particular place is proved. Accused Maheshi alias Mahesh being lame might have passed on the Revolver to accused Ghunghru alias Madan Lal at the time of fleeing away from the place of occurrence because Ghunghru alias Madan Lal was having van which was lateron recovered and found having been used for the commission of crime However, the bullet Exhibit P-47 recovered from the body of accused Ghunghru alias Madan Lal was found to have been fired through Revolver Ext. P-16 by the report of Forensic Science Laboratory Ext. P-AAA besides other cartridges Exts. P-), P 2 recovered from the place of occurrence and P-13 and P-15 recovered during investigation from the house of complainant party. 55. From the above discussion, we find that Sessions Judge has correctly read, inferred and interpreted the evidence on record to come to his findings that prosecution has proved the charges for offences punishable under sections 120-B, 302, 307 and 449, I. P. C and section 27 of Indian Arms Act beyond reasonable doubt against the accused persons. 55. From the above discussion, we find that Sessions Judge has correctly read, inferred and interpreted the evidence on record to come to his findings that prosecution has proved the charges for offences punishable under sections 120-B, 302, 307 and 449, I. P. C and section 27 of Indian Arms Act beyond reasonable doubt against the accused persons. Therefore, we affirm the conviction of the respondent-accused as held by Sessions Judge under sections 449, 120-B, 302 as well as 307, I.P.C read with section 34, I. P C except section 149, I P C. For the reasons given herein-above the conviction of accused Ghunghru alias Madan Lal, Jaind alias Chandermohan and Sarwan under section 302 as well as 307 is held with the aid of section 34, I.P.C. instead of 149, I P. C. which should not be applied to accused persons being less than five. We also uphold the sentence awarded to these accused persons by the Sessions Judge in respect of their conviction under sections 449, 120-B and 302 as well as 307 read with section 34, I P. C. 56. So far as accused Maheshi alias Mahesh is concerned, his conviction under sections 449, 302, 307, 120-B, I.P.C. and section 27 of the Indian Arms Act, 1959 is affirmed However, sentence of death awarded to him for the offence under section 302, I.P.C, is not confirmed and is modified to sentence to undergo rigorous imprisonment for life for the reasons given hereinafter. 57. Section 354 (3), Cr. P. C. lays down that when the conviction is for an offence punishable with Sentence of death, special reasons for such sentence are required to be given in the judgment. From the reasons given by the Sessions Judge, it appears that what weighed with him was the magnitude of the crime committed by him as a result of which three members of complainant party had died and two were seriously injured. The guidelines for awarding death penalty have been laid down by Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898, which were reiterated in Machhi Singh v. State of Punjab, AIR 1983 SC 957. The guidelines for awarding death penalty have been laid down by Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898, which were reiterated in Machhi Singh v. State of Punjab, AIR 1983 SC 957. These guidelines are: "(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability ; (ii) Before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the ‘crime’; (iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances; (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weight age and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised." 58. Further in Allauddin Mian and others v. State of Bihar JT 1989 (2) SC 170, it was observed that when the question of choice is under consideration the Court must not only look to the crime but also the circumstances of the crime and the impact of the crime on the community unless the nature of the crime and the circumstances of the offender reveal that the criminal is the menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not extreme punishment of death which should be reserved for exceptional cases only. Keeping in view the above noted authoritative pronouncement of the Supreme Court and also mandate of law laid down in section 354 (3), Cr. Keeping in view the above noted authoritative pronouncement of the Supreme Court and also mandate of law laid down in section 354 (3), Cr. P. C, we are of the considered view that balancing on the aggravating circumstances and the mitigating circumstances the sentence of death is not called for and imprisonment for life on Maheshi alias Mahesh for the offence under section 302, I P. C. Mould meet the ends of justice It is correct that three bread earning members of the family of complainant party fell victim to the bullets of Maheshi alias Mahesh leaving behind widow Piar Kaur who was also seriously injured by the bullets of Maheshi alias Mahesh; unmarried daughter Kulwant Kaur and minor boy Narinder Singh but looking to the age of Maheshi alias Mahesh who did not have any criminal background and who had himself met with an accident in the year 1991 and had become handicapped, he does not deserve the extreme punishment of death sentence. Admittedly he had no enmity with the complainant party and had associated with the commission of crime and played the major role as per the plot prepared by accused persons of which Ghunghru alias Madan Lal was the master mind. In the case of conspiracy and common intention each accused person would commit crime according to the part given to him in the hatched plot but lie will also be liable for the criminal act of other accused as if these are committed by him individually, as in the present case Maheshi alias Mahesh wielded revolver and fired five shots causing death of three victims and injury to one as per the agreement between them whereas the other accused persons were having darat and knives as weapons of offence with which they had inflicted only grievous or simple injuries but their common intention was to kill deceased Kashmir Singh and members of his family who would come in their way, as much all of them were guilty of killing Pritam Singh, Kashmir Singh and Kashmir Kaur and attempt to murder Piar Kaur and Kulwant Kaur. Therefore, in the facts and circumstances of this case Maheshi alias Mahesh deserves same punishment as that of other accused persons even though he is convicted under sections 302 ai)d 307, I. P. C. for his individual acts. 59. Therefore, in the facts and circumstances of this case Maheshi alias Mahesh deserves same punishment as that of other accused persons even though he is convicted under sections 302 ai)d 307, I. P. C. for his individual acts. 59. In the result, the Murder Reference No. 1 of 1994 is rejected and the death sentence awarded to Maheshi alias Mahesh is not confirmed and modified to sentence of rigorous life imprisonment. The other appeals of accused persons No. 151 of 1994 to 154 of 1994 against their conviction and sentence and of State of Himachal Pradesh No. 275 of 1994 for enhancement of sentence are dismissed. Reference rejected.