JUDGMENT 1. - The appellants eight in number, were placed on trial before the learned Sessions Judge Jhunjhunu in Sessions Case No 24/99 for having committed murder of Sumer Singh. Learned Judge vide judgment dated October 11,2000 convicted and sentenced the appellants as under ; (1) Ramesh S/o Harish Chandra : U/s 302 IPC to undergo Imprisonment for life and fine of Rs. 1,000/-, in default to further suffer six months. Imprisonment. U/s 148 IPC to undergo Two Years Rigorous Imprisonment. (2) Kailash Kumar @ Kalji (3) Sun ii Kumar S/o Mahipal : (4) Mainpal S/o Sampurnanand : (5) Balbir Singh S/o 1" xman Ram : (6) Sun ii Kumar S/o Rajendra Singh : (7) Ramesh Chaudhary S/o Ram Karan : (8) Narendra S/o Tara Chand : U/s 302/149 Each to undergo Imprisonment for life IPC and fine of Rs. 1,000/-, in default to further suffer six months Imprisonment. U/s 148 IPC Each to undergo Two Years Rigorous Imprisonment. The sentences were ordered to run concurrently. 2. The facts relevant for the disposal of instant appeal are that on October 29,1998 around 11 AM informant Yogendra Singh (PW. 1) submitted written report (Ex.P-1) to one Phool Chand, Police Officer at Roadways Bus stand Jhunjhunu. It was interalia stead in the report that on the said day at 10 AM, the informant was standing at the Traffic point near Bus stand in the company of Surendra and Ajay. Suddenly they heard ruckus coming form the front of a tea stall nearby. All the three rushed to the spot where they saw that the nephew of informant namely Sumer Singh was surrounded by the appellants who are equipped with hockies, iron rods and pipes etc., while Ramesh Kumar and a knife. Ramesh Kumar inflicted blow with hockies, iron rods and pipes. After causing injuries to Sumer Singh the assailants filed away from the scene of occurrence in a red jeep. No. RJ-19/C-6255. The incident had been witnessed by Chandra Shekhar and Krishna Kumar. It was also alleged in the report that Sumer Sing was belaboured on account of previous enmity. On the basis of said report, formal FIR was registered at. Police Station Jhunjhunu for offences punishable under Sections 302, 147, 148 and 149 IPC and investigation commenced. Site plan of the incident was drawn. Deceased was subjected to post mortem examination. Blood stained clothes of the deceased were seized. On the basis of said report, formal FIR was registered at. Police Station Jhunjhunu for offences punishable under Sections 302, 147, 148 and 149 IPC and investigation commenced. Site plan of the incident was drawn. Deceased was subjected to post mortem examination. Blood stained clothes of the deceased were seized. Control soil as also blood stained soil was lifted from the placeof incident. The accused persons were taken into custody and at their instance certain weapons as also the jeep got recovered. After doing the needful charge sheet was filed and in due course the case came up for trial before the learned Sessions Judge Jhunjhunu. Charges under Sections 147, 148, 302 in the alternate 302/149 IPC were framed against the appellants who denied the charges and claimed trial. The prosecution in support of its case examined as many as 21 witnesses and got exhibited 61 documents. In their explanation under Section 313 Cr.P.C., the appellants claimed innocence and stated that the witnesses are making lies and they also happened to be close relations of the deceased and on account of groupism there had been blatant false implication. In defence the appellant Ramesh submitted an affidavit and produced 16 documents. On hearing final submissions learned Sessions Judge convicted and sentenced the appellants as indicated herein above. 3. The fact that injuries sustained by Sumer Singh were ante mortem in nature is not disputed. Post Mortem Report of Sumer Singh (Ex.P-11) reads as under :External injuries : 1. Abrasion about 2cm x 1/2cm size on medial side of Rt. knee. 2. Abrasion about 3, 1/2cm x 2cm size below Lt. scapula. 3. Abrasion 1, 1/2cm x 1 cm size on Lt. lumber region. 4. Stab wound 2cm x 1/4 margins are clean cut edges are clean cut, placed obliquely lower and medially. On the Lt. side chest 1 cm away from mid line & at the level of apex of epigestrim. 5. Stab wound 2cm x 1cm size Omentum is coming out, Margins are clear cut, edges are clean cut, placed obliquely (in the direction of intercostal space 10th) in anterior axillery line 14cm away from mid line. 6. Stab wound gem x 1/2cm size, Margins are clean cut, edges are clean cut on Lt. side of abdomen, placed obliquely lower and medially 10 cm away from mid line & 1 cm above unblicus. 7. 6. Stab wound gem x 1/2cm size, Margins are clean cut, edges are clean cut on Lt. side of abdomen, placed obliquely lower and medially 10 cm away from mid line & 1 cm above unblicus. 7. Stab wound 1/2cm x 1/4cm x 3cm deep on Rt. back in Post, axillery line 2cm above iliac crest. Internal injuries: On dissection of injury No. 4 there was wound on the abdominal wall on the apex of epigestrium corresponding to external injury. There was a clean cut wound 2cm x 1/2cm in paricardium & diaphragm. There was clean cut wound on superior surface of Lt. lobe of liver of 2cm x 1/2cm x 2, 1/2cm deep. On dissection of injury No. 5 there was a clean cut wound in the 10th intercostal space corresponding to external injury. A clean cut wound of 1, 1/2 cm x 1/2cm x 1 cm size on spleen corresponding to external injury. On dissection of injury No. 6 depth was 3cm on the abdominal wall cutting the mussels. In the opinion of Dr.Madan Lal Gupta (PW.6) the cause of death was syncope due to internal hemorrhage due to injury to liver and spleen. 4. In order to adjudge the nature of the offence committed and the involvement of the appellants, we will analyse the testimony of witnesses examined at the trial. 5. In his deposition the informant Yogendra (PW.1) stated that on August 29, 1998 he was posted in the Traffic Police Jhunjhunu and was on duty at Roadways Bus stand point. At about 10 AM while he was discharging his duty and Surendra and Ajay were also there, a jeep of red colour bearing NO. RJ-19/C-6755 came from the side of market carrying about 8-9 persons and took turn towards main gate of Roadways stand. At the same time he heard ruckus and then he saw Ramesh Daulatpura, Ramesh Khichar, Kailash Ghodiwala, Sunil Sfo Mahipal, Sunil s/o Rajendra, Balbir Ola Ki, Dhani, Narendra Jhajhadia and Mainpal Sura Ka Bas getting down from the jeep. All of them were equipped with pipes, knife, iron-rods and hockies and they surrounded Sumer, in front of hotel Chandrolok and started inflicting blows on the person of Sumer, Ramesh Daulatpura inflicted 3-4 knife-blows on the abdomen of Sumer and others inflicted 3-4 blows with pipes, iron-rods and hockies as result of which Sumer Singh fell down. All of them were equipped with pipes, knife, iron-rods and hockies and they surrounded Sumer, in front of hotel Chandrolok and started inflicting blows on the person of Sumer, Ramesh Daulatpura inflicted 3-4 knife-blows on the abdomen of Sumer and others inflicted 3-4 blows with pipes, iron-rods and hockies as result of which Sumer Singh fell down. The informant along with Surendra and Ajay rushed to the spot. All the eight assailants then threatened the people standing nearby to kill and there after fled towards Indira colony in the jeep which was standing at a distance of 10 ft. form the place of incident. The informant then gave telephonic call to Kotwali Jhunjhunu. After about half an hour Phool Singh, SHO came and a written report was handed over to him by the informant. 6. Other eye witnesses viz. Ajay Kumar (PW.2), Chandra Shekhar (PW.3), Surendra Singh (PW.4) and Narendra Singh (PW.5) Verbatim corroborated the testimony of informant Yogendra Singh. Bhanwar Lal (PW.7), who was the owner of Jeep No. RJ-19/ C-6755, deposed that the said jeep was taken by the boys from the house of Sheo Chand situated near Chander Hotel and it got seized by the police. 7. Mr.S.R.Bajwa, learned Senior Advocate vehemently criticized the findings arrived at by learned trial Judge and canvassed that all the appellants were innocent and the trial Judge has fallen in grave error in convicting them on the basis of surmises and conjectures. The prosecution, according to learned Counsel, has endeavoured to prove the case beyond reasonable doubt on the basis of partisan witnesses who could not be, by any standard of appreciation of evidence, placed as wholly reliable' witnesses. The testimony of significant prosecution witnesses suffers from numerous inherent contradictions which referred the same to be highly dubious. It was further contended that the site plan of the place of incident drawn by investigating Agency, did not land any corroboration to the ocular evidence and the medical evidence was also in conflict with the ocular evidence. From the evidence available on record blatant over implication was strongly reflected. The prosecution had not come forward with the proximate cause as also genesis of the occurrence. So called recoveries affected by the Investigating Agency. In no manner, further the case of the prosecution. From the evidence available on record blatant over implication was strongly reflected. The prosecution had not come forward with the proximate cause as also genesis of the occurrence. So called recoveries affected by the Investigating Agency. In no manner, further the case of the prosecution. It is also urged that the actual FIR was the one in the form of telephonic message, therefore, subsequent report (Ex.P1), by no means, be considered as the FIR of the case. The attending circumstances obtaining at the time of incident squarely belie the version of the prosecution.. The incident is said to have occurred in broad day light at a place which was bustling with activities, yet no independent witness was examined by the prosecution. It was further contended that the FIR registered on October 29, 1998 at 11.30 AM reached the court of learned Magistrate on October 30, 1998 at 12.00 noon and as such the investigation was tainted. Case law on which reliance was placed shall be considered at the appropriate juncture. 8. Per contra, Mr.Jagdeep Dhankar, learned Senior Advocate,.and Mr.Alok Sharma, learned Special Public Prosecutor, supported the impugned finding and urged that deceased Sumer Singh was mercilessly belaboured by the appellants in broad day light at a centrally situated public place opposite Roadways bus-stand in Jhunjhunu. The deceased sustained as many as 7 injuries including 4 stab wounds oii vital parts. The dare delvish act of the appellants went to the extend of brow beating those who attempted to intervene. It was further urged that the prosecution case has been supported by the testimony of Yogendra Singh (PW.1), Ajay Kumar (PW.2), Chandra Shekhar (PW.3), Surendra Singh (PW.4) and Narendra (PW.5) which could not be shaken in the cross examination. On the day of incident i.e. October 29,1998 senior Police Officials visited the scene of ghastly crime and activities including arrest of some accused as also recovery of jeep involved, were taken. As many as 16 memos were drawn on the said day. In such a situation there was no force in the contention that as the FIR reached late to the Court of learned Magistrate the investigation was tainted. As many as 16 memos were drawn on the said day. In such a situation there was no force in the contention that as the FIR reached late to the Court of learned Magistrate the investigation was tainted. In so far as the contention raised on behalf of the appellants to the effect that the testimony of witnesses deserves to bo discarded on the ground that they were related to deceased, it was urged that relationship was of no consequence in the facts and circumstances of the case, as the presence of witnesses at the time of occurrence has been established beyond any reasonable doubt. Reliance was placed on various authorities that shall be considered in the later part of the judgment. 9. We have given our thoughtful consideration to the submissions advanced before us and scanned the material on record. 10. It is well settled that delay in sending the copy of FIR to the llaga Magistrate does not render the entire prosecution case doubtful but would put the court on guard. The Apex Court in Bijoy Singh v. State of Bihar (2002) 9 SCC 147 indicated thus : (Para 7) "Sending the copy of the special report to the Magistrate as required under section 157 Cr.P.C. is the only external check on the working of the police agency imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as the court was the same version as earlier reported on the FIR or was the result ofdeliberation involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 Cr.P.C. is the mandate of law. Delay whenever found is required to be explained by the prosecution. Ifthe delay is reasonably explained, no adverse inference can be drawn but to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek on explanation of the delay is not the requirement of law. Ifthe delay is reasonably explained, no adverse inference can be drawn but to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek on explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and iftendered, no adverse inference can be drawn against it." 11. In Anil Rai v. State of Bihar (2001) 7 SCC 318 their Lordships of the Supreme Court propounded thus : (para 20) "But where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. ( Pala Singh v. State of Punjab ) Extraordinary delay in sending the copy of the FIR to the Magistrate can be circumstance to provide a legitimate basis for suspecting that the first information report was recorded on a much later day than the stated day, affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence." 12. Turning to the facts of the instant case it appears that copy of FIR registered on October 29,1998 at 11.30 AM reached the court of Ilaqa Magistrate on October 30,1998 at 12.00 Noon. According to Mr.Bajwa, learned Senior counsel, the delay in ending the copy of FIR to the Magistrate justify the conclusion that the investigation was tainted. We do not find merit in the submissions because the FIR was lodged without delay and investigation was immediately started. Testimony of Phool Singh (PW.17). Mehphooz Ali (PW.18) and Rajendra Kumar (PW.20) may be referred in this regard, Phool Singh who was posted as second officers at P.S.Kotwali on the fateful day, deposed that on receiving telephonic message when the reached at Hotel Chanderlok opposite Bus stand, report (Ex.P-1) was submitted to him by Yogendra. According to Mehphooz Ali, ASI the said report was produced before him by Constable Rajesh who came to him from the place of occurrence and on the basis of the said report formal FIR (Ex.P-28) was registered by him at 11.30 AM. According to Mehphooz Ali, ASI the said report was produced before him by Constable Rajesh who came to him from the place of occurrence and on the basis of the said report formal FIR (Ex.P-28) was registered by him at 11.30 AM. Investigation was immediately started by Rajendra Kumar, Circle Officer who had drawn most of the memos on October 29, 1998 itself including arrest memos and recovery memo of Jeep. The memos drawn by Rajendra Kumar got exhibited as Ex. R-1, Ex. P-2, Ex.P-8, Ex. P-10, Ex.P.-11, Ex. P-18, Ex. P-19, Ex. P-20, Ex.P-22, Ex.P-23, Ex.P-36, Ex.P-37, Ex.P-38, Ex.P-40, Ex.P-41 and Ex.P-42. Testimony of Phool Singh, Mehphooz Ali and Rajendra Kumar could not be shattered in the cross examination and we see no ground to reject their evidence. 13. We thus find that the FIR was recorded without delay and as investigation started on the basis of the FIR immediately, the delay in sending copy of the report to the Ilaqa Magistrate.cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.WHETHER TELEPHONIC MESSAGE COULD BE TREATED AS FIR : 14. It was next contended on behalf of the appellants that the actual FIR was the one in the form of telephonic message and the subsequent report (Ex.P-1) by no means be treated as FIR of the case. Our attention was drawn to the statement of Phool Chand (PW.17), who in his deposition stated that some one gave telephonic call and told that he was intimating from Hotel Chandralok that Sumer Singh had been murdered by 5-6 boys of JP Group. He also gave number of the Jeep on which the assailants fled away. On a careful scrutiny of the evidence of Phool Chand, we find that the telephonic message was cryptic and anonymous and it would not be treated as first information report. In Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380 , the Apex Court indicated thus : "PW.4 has stated that he gave telephonic message about the incident. The entry in DDR was made by Si that after receiving the aforesaid information he was proceeding to the sport along with some other police constables. In Thaman Kumar v. State of Union Territory of Chandigarh (2003) 6 SCC 380 , the Apex Court indicated thus : "PW.4 has stated that he gave telephonic message about the incident. The entry in DDR was made by Si that after receiving the aforesaid information he was proceeding to the sport along with some other police constables. This was not a first information report of the incident but merely and entry made regarding.the departure of the police personnel to the place of occurrence and, therefore, the non-mention of the names of the assailants in this entry cannot have any bearing." In the fact of the case we are of the view that telephonic message received by Phool .Chand cannot be treated as FIR and the submission of the learned Counsel is devoid of merit: EFFECT OF THENON EXAMINATION OF INDEPENDENT WITNESS : 15. It was, next contended that although incident `occurred in a busy area, no independent witness was examined and the appellants have been convicted on the testimony of partisan witnesses who were wholly unreliable. It was canvassed that informant Yogendra Singh (PW.1) was the uncle whereas Ajay Kumar (PW.2) and Surendra Singh (PW.4) were cousins of the deceased and other two witnesses Chandra Shekhar (PW.3) and Narendra Singh (PW.5) were inhabitants of the other places far away from numerous inherent contradictions, which rendered the.same to be highly dubious. 16. It is settled proposition that only on account of relationship with the deceased credibility of a witness cannot be questioned. Reference may be made to Gangadhar Behera and others v. State of Orissa (2002) 8 SCC 381 wherein it was held that the ground that witnesses being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. The relationship is not a factor to affect credibility of a witness. 17. In State of Rajasthan v. Teja Ram and others, AIR 1999 SC 1176 , the Apex Court reversing the acquittal recorded by the High Court observed as under : (para 6 and 20) "6. But the Division Bench of the High Court of Rajasthan declined to act on the two dying declarations. High Court was not persuaded to place any reliance on the witnesses who claimed to have seen the assailants running away. High Court put forth two reasons for adopting that course. But the Division Bench of the High Court of Rajasthan declined to act on the two dying declarations. High Court was not persuaded to place any reliance on the witnesses who claimed to have seen the assailants running away. High Court put forth two reasons for adopting that course. First in that prosecution failed to examine any independent witness even though such persons were residing in the neighborhood, and the witnesses examined by the prosecution for that point close relatives of the deceased. Second is that there are discrepancies between their' versions and such discrepancies are of the a substantial nature." "20. Another reason which the Court advanced to repel the testimony of such a good number of probable witnesses in that they are all close relatives of the deceased and that independent witnesses were not examined by the prosecution. The over insistence on witnesses having no relation with the victims often results in criminal justice going awry. " (Emphasis Supplied). 18. In Ramchamreddi Chennareddi and Ors. v. State of Andhra Pradesh, 1999 Cr.L.J. 1445 , their Lordships indicated thus : (Para 22) "The sole ground to attack made by the learned counsel for the appellants is that the witnesses are the relations of the deceased. In our considered opinion that can hardly be a group to discard their version. On the other hand the relation of the deceased will not try to implicate any innocent person in the murder of the deceased." (Emphasis Supplied) 19. Mr.Bajwa, learned Senior Counsel next contended that there are material discrepancies in the statements of alleged eye witnesses. Informant Yogendra (PW.1) deposed that he did not know as to who caused injury with pipe, iron rod and stick and on which part of the body of Sumer Singh. He also did not know as to how many blows were inflicted with pipe, iron rod and stick. Yogendra made improvements in his statement at the trial. In the report (Ex.P-1) he did not state that jeep of red colour came. He did not state in the report that Ramesh Daulatpura inflicted 3-4 knife blows. He also 'did not mention that Narendra had seen the incident. Yogendra did not touch the body of Sumer Singh and his clothes did not have blood stains. He is also not the signatory of Inquest report. He did not state in the report that Ramesh Daulatpura inflicted 3-4 knife blows. He also 'did not mention that Narendra had seen the incident. Yogendra did not touch the body of Sumer Singh and his clothes did not have blood stains. He is also not the signatory of Inquest report. All these facts, according to learned counsel, reveals that Yogendra was not present at the time of incident. With regard to evidence of Ajay Kumar (PW.2) it was urged that at the trail he stated that all the assailants indiscriminately inflicted blows with pipe, iron rod and stick on the person of Sumer Singh. He did not inform anybody about the incident. He went to his village after 4 PM. In view of only three injuries from blunt weapons found on the dead body, testimony of Ajay Kumar to the effect that seven assailants indiscriminately inflicted blows with pipe, iron rod and stick is untrue. Similar discrepancies and improvements were pointed out in the statements of Chandra Shekhar (PW.3) Surendra Singh (PW.4) and Narendra Singh (PW.5). 20. We have carefully considered the submissions of learned Senior Counsel and minuteiy judged the evidence by the yardstick of trustworthiness and our conclusion is that the infirmities shown by the learned counsel in the testimony of witnesses do not materially affect the prosecution case. The discrepancies are normal and they do not affect the credibility of the case. Finding Sumer Singh dead if his uncle Yogendra did not remove him to Hospital would it mean that Yogendra did not see the incident when the prosecution has established beyond reasonable doubt that Yogendra was on duty at the relevant time ? We find ourselves unable to accept this contention that FIR was post dated or that fake documents have been drawn in connivance with the police officials to falsely implicate the appellants. Undoubtedly there are discrepancies and contradictions in the statements of prosecution witnesses but it is not every discrepancy or contradiction that renders the evidence tendered by the witness unacceptable or tainted so as to call for their rejection in toto. The evidence which is exfacie trustworthy cannot be rejected on fanciful grounds. 21. Let us consider the legal position on the point. In State of Punjab v. Jagir Singh, (1974) 3 SCC 277 , the Apex Court indicated as under: "23. A Criminal trial is not like a fairly tale wherein. The evidence which is exfacie trustworthy cannot be rejected on fanciful grounds. 21. Let us consider the legal position on the point. In State of Punjab v. Jagir Singh, (1974) 3 SCC 277 , the Apex Court indicated as under: "23. A Criminal trial is not like a fairly tale wherein. one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the life animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given, to the accused, the courts should not at the same time reject evidence which is ex-facie trustworthy on grounds which are fanciful or in the nature of conjectures." 22: in State of Himachal'Pradesh v. Lekh Raj (2000)1 SCC 247 , their Lordships of Supreme Court indicated as under : (Para 7) "7. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted.to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This court in Ousu Varghese v. State of Kerala held that ni hor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. This court in Ousu Varghese v. State of Kerala held that ni hor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. this Court held when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of' truth in the depositions. This court again in State of Rajasthan v. Kalki held that in the depositions of the witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental deposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal and not expected of a normal person." 23. In State of U.P. v. M.K.Anthony, AIR 1995 SC 48 , their Lordships of Supreme Court propounded that : "While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression of formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a.whole and evaluate them to find out whether it is against the general render of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies of trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of.the matter would not ordinarily permit rejection of the evidence as a whole." 24. In the case of hand, as already noticed the evidence of Yogendra Singh (PW.1), Ajay Kumar (PW.2) Chandra Shekhar (PW.4) and Narendra (PW:5) if read as a whole, appears to have a ring of truth. The deficiencies,draw backs and infirmities shown by learned counsel do not touch the core of the case. VICARIOUS LIABILITY: 25. In the case of hand, as already noticed the evidence of Yogendra Singh (PW.1), Ajay Kumar (PW.2) Chandra Shekhar (PW.4) and Narendra (PW:5) if read as a whole, appears to have a ring of truth. The deficiencies,draw backs and infirmities shown by learned counsel do not touch the core of the case. VICARIOUS LIABILITY: 25. On behalf of the appellants it was asserted that in the present case there can be no applicability of Section 149 IPC as iio specific role has been assigned to the appellants Kailash Kumar @ Kalji, Sunil Kumar, Mainpal, Balbir Singh, Sunil Kumar, Ramesh Chaudhary and Narendra. Only allegation against Ramesh Daulatpura was that he repeatedly inflicted knife blows on the stomach of deceased Sumer. Before we deal with the case law cited before us it is necessary to consider the circumstances that emerged from the testimony of witnesses. Conjoint reading of the testimony of Yogendra Singh (PW 1), Ajay Kumar (PW.2), Chandra Shekhar (PW.3), Surendra (PW. 4) and Narendra (PW.5) reveals that all the appellants armed with weapons came together in the jeep at the place of incident in broad day light. Place of incident situated opposite bus stand and was one of the busy market of City. Time of incident was 10.00 AM. All of them exhorted people not to come to rescue Sumer (deceased) and if they did so they would be belaboured. All the 8.assailants encircled Sumer so as to make it impossible to escape and also to stop the people from intervening. All assailants left together in the jeep with Ramesh Daulatpura, who was carrying blood stained knife showing and waving it to the people. Mr. Bajwa alternatively for the sake of arguments contended that if it is held that there was unlawful assembly, the common object of the unlawful assembly cannot be said to be to cause murder of Sumer Singh and at any rate it cannot be said that all the accused shared the same and that they had knowledge that Sumer Singh would be killed and with that knowledge continued to be the members of the unlawful assembly. However the common object can be held to be only to cause grievous hur~. Ramesh Daulatpura, however, death blows with knife and the injuries sustained by Sumer Singh proved fatal. However the common object can be held to be only to cause grievous hur~. Ramesh Daulatpura, however, death blows with knife and the injuries sustained by Sumer Singh proved fatal. Thus Ramesh Daulatpura can be held liable for his individual act but the other accused Kailash, Sunil SLo Mahipal, Mainpal, Sunil s/o Rajendra, Balbir, Ramesh Chaudhary and Narendra can be held guilty under Section 326/149 [PC. Reliance is placed on Shiva Lingappa v. State of Karnataka AIR 1995 SC 254 . 26. Section 149 IPC requires deep scrutiny and detailed and specific proof for holding that the accused persons were members of an unlawful assembly with a common object with particular reference to the part played by each of the accused persons who constituted the unlawful assembly. 27. Balkar Singh and Ors. v. State of Punjab ( AIR 1993 SC 229 ) , was the case where the Apex Court indicated as under: (Para 10) "We are also not inclined to accept the submission of the learned counsel that the common object of the other accused who were not armed with fire arms but armed with other weapons, was not to commit murder......" "They went in a body and participated in the occurrence. In such a situation even Section 34 IPC is attracted particularly having regard to the fact that four persons were killed and several others received injuries at the hands of the members of the unlawful assembly. The participation of each of these appellants is established. Therefore all of them shared the common object and Section 149 is squarely attracted." 28. In a State of U.P. v. Dan Singh, AIR 1997 SC 1654 the Apex Court indicated as under: (Para 33) "Before we deal with the testimony of these witnesses, it will be important to bear in mind that in the present case the conviction is being sought under Section 302 IPC with the aid of Section 149 IPC. The two essential ingredients of this section are that there must be a commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. The two essential ingredients of this section are that there must be a commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. It is also a well settled law (see Masalti v. State of Uttar Pradesh, AIR 1965 SC 202 ) that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. In facts observed in Lalji's case ( AIR 1989 SC 754 ) (supra) "while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149." 29. In Lalji and others v. State of U.P. AIR 1989 SC 754 , the Hon'ble Supreme Court indicated thus: (para 9 & 10) "9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence.` In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, on to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused, this section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under 5.149. It must be noted that the basis of the constructive guilt under 5.149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." "10. Thus once the court hold that certain accused persons formed an unlawful assembly and an offence is committed by any.member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of the object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it." 30. In Umesh Singh and Another v. State of Bihar, RLW 2000 (2) SC 300 , the Hon'ble Supreme Court indicated thus: (Para 4) "(4). Vicarious liability, we may state, as rightly contended for the State by Shri B.B. Singh relying upon the decisions of this Court in Shamshul Kanwar v. State of UP and Bhajan Singh and others v. State of UP extends to members of the unlawful assembly only in respect of acts done in pursuance of the common object of the unlawful assembly or such offences as the members of the unlawful assembly are likely to commit in the execution of that common object. An accused whose case falls within the terms of Section 149 [PC as aforesaid cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew, to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he had joined. It is not necessary in all cases that all the persons forming an unlawful assembly must do some overt act. Where the accused had assembled together, armed with guns and lathis, and were parties to the assault on the deceased and others, the prosecution is not obliged to prove which specific overt act was done by which of the accused. Indeed the provisions of Section 149 IPC, if properly analysed will take it clear that it makes an accused out of the region of abetment and makes him responsible as a principal for the acts of each and all merely because he is a-member of an unlawful assembly. We may also notice that under this provisions, the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge can reasonably be intended form the nature of the assembly, arms of behaviour, at or before the scene of action. If such knowledge may not reasonable be attributed to the other members of the assembly then their liability of the offence committed during the occurrence does not arise. Tested on this touchstone, we may safely. say that in the present case when the appellants were members of an unlawful assembly which was armed with lathis and guns and a declaration had been made that in the even there is any resistance to take away the paddy which is stated to have been the original object, they were willing to take life out of the deceased and take away the paddy. If that is the position, if is futile to contend for the appellants that their conviction is in any bad." 31. If that is the position, if is futile to contend for the appellants that their conviction is in any bad." 31. In Allauddin Mian and others v. State of Bihar, (1989) 3 SCC 5 , their Lordships of Supreme Court indicated thus: (Para 8) "8. We now proceed to consider whether accused 3 to 6 have been rightly convicted with the aid of Section 149 for the acts of accused 1 and 2.." "Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every members of the assembly will become liable for the same..:." "In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under Section 149 IPC...." 32. In Bhimrao alias Ramesh Pandhari Bhade and others v. State of Maharashtra, (2003) 3 SCC 37 , the Apex Court has held in para 8 of the judgment thus: (Para 8) "...it should be presumed that those members of the original unlawful assembly who only shared the common object of assaulting deceased Prabhakar cannot be attributed with the subsequent change in the common object of some of the members of the assembly who entered the house of Prabhakar and caused grievous injuries to him. So far as the present appellants are concerned, who stood outside the house of the deceased and who could not have known what actually transpired inside the house, the act of those members of the original unlawful assembly who entered the house, cannot be attributed, hence, as contended by the learned counsel for the appellants at the most these appellants will be liable to be punished for sharing the original common object which was only to assault the deceased, therefore, they can be held guilty of an offence punishable under Section 352 read with section 149 only." 33. In Anant Kumar and another v. State of M.P., AIR 1994 SC 1639 , their Lordships of Supreme Court have held that there is material to show that A-3, A-5 and A-6 were concealing the weapons and therefore it is difficult to hold that A-2 and A-4 had knowledge that others were armed with knives and they were likely to cause injuries to the deceased. If this element becomes doubtful then S.149 IPC cannot be invoked against A-2 and A-4. So far as A-5 Noora is concerned there is direct evidence as well as dying declaration to the effect that he armed with knife, caused injury No.6. Therefore his participation is established. 34. In Krishna Mochi & Others v. State of Rihar, (2002) 6 SCC 81 , their Lordships of Supreme Court indicated thus: (Para 39) "Learned counsel further pointed out that according,to the prosecution case and evidence, none of the appellants are alleged to have assaulted ,wither any of the 35 deceased or the injured persons and'that from mere presence at the place of occurrence their participation in the crime cannot be inferred inasmuch as they may be even sightseers. In my view,there is absolutely no foundation for, the submissions that the accused persons may be sightseers as no suggestions was given to any of the witnesses on this score. In my view,there is absolutely no foundation for, the submissions that the accused persons may be sightseers as no suggestions was given to any of the witnesses on this score. According to the prosecution case and the evidence, the accused persons arrived at thevifage of occurrence, pursuant to a conspiracy hatched up by them, they divided themselves into groups, different groups went to the houses of different person in the village, entered the houses by breaking open the door, forcibly took away inmates of the house after tying their hands, taking them first to the temple and thereafter near the canal where their legs were also tied and there some of them were done to death at the point of firearm, but a vast majority of them were massacred by slitting their throats with pasuli. One thing is clear that all these acts were done by the accused. persons pursuant to a conspiracy hatched up by them to completely eliminate members of a particular community in the village and to achieve that object, they formed an unlawful assembly and different members of that unlawful assembly'had played different roles. One thing is clear that all these acts were done by the accused. persons pursuant to a conspiracy hatched up by them to completely eliminate members of a particular community in the village and to achieve that object, they formed an unlawful assembly and different members of that unlawful assembly'had played different roles. In view of these facts, merely because the appellants are not said to have assaulted either any of the deceased or injured persons, it cannot be inferred, that they had no complicity with the crime, more so according to the evidence they, were also armed with deadly weapons, like firearms, bombs etc., but did not use the same: Reference in this connection may be made to a decision of this Court in the case of Masalti where it was laid down that where a crowd of assailants, who were members of an unlawful assembly, proceeds to commit the crime in pursuance of the common object of the assembly, it is often not possible for witnesses to describe the actual part played by each one of them and: when a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault as: in that case several weapons were carried by different members of the unlawful assembly and an accused who was a member of such an unlawful assembly and was carrying firearm cannot take any advantage from the fact that he did not use the firearms, though other members of the unlawful of the unlawful assembly used their respective arms. 35. In the case on hand where the prosecution has established that the appellants assembled together, armed with knife,pipe, iron rod and stick and were parties to the assault on Sumer Singh the prosecution is not obliged to, prove which. specific overt act was done by which of the accused. Section 149 IPC makes a member of the unlawful assembly responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly. Overt act and active participation' while indicate common intention, the mere presence in the unlawful' assembly may fasten vicarious criminal liability. Section 149 IPC makes a member of the unlawful assembly responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly. Overt act and active participation' while indicate common intention, the mere presence in the unlawful' assembly may fasten vicarious criminal liability. It may however also be noticed that under Section 149 IPC the liability of the other members for the offence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge can reasonably be intended 'from the nature of the assembly, aims or behaviour, at or before the scene of action. Tested on this touchstone, we may safely observe that ingredients of Section 149 IPC are present in the instant case as all the appellants came together in an open jeep at the place of incident situated opposite bus, stand in the busiest market are of 10 AM in the broad day light. All the eight accused persons were armed with weapons and all of them exhorted the people not to come to rescue of Sumer Singh and if they did they too would be belaboured. All the accused persons encircled Sumer Singh so as to make it impossible for him to escape and also to keep away the people from intervening. The accused persons left together in the open jeep with Ramesh Daulatpura carrying the blood. stained knife in his hand waving it towards people. Sumer Singh, a young boy, was done to death by inflicting four stab wounds. The manner of arriving in an open jeep carrying open knife, iron rod, pipe and stick striking terror in the public, encircling and mercilessly belabouring Sumer Singh in a broad day light in the busy market area and the dare delvish manner of leaving the place of incident after committing the murder of Sumer Singh would only demonstrate that all the appellants knew before hand that offence actually committed was likely to be committed in prosecution of common object. Facts of Shiva Lingappa v. State of Karnataka ( AIR 1995 SC 254 ) are distinguishable and ratio indicated in that case is not applicable to the facts and circumstances of the,instant case. Facts of Shiva Lingappa v. State of Karnataka ( AIR 1995 SC 254 ) are distinguishable and ratio indicated in that case is not applicable to the facts and circumstances of the,instant case. In our opinion the appellant Ramesh Daulatpura under Section 302 and 148 IPC and other appellants under Section 302/149 and 148 IPC have been rightly convicted and sentenced by the learned trial Judge. 36. For these reasons, we do not find any merit in this appeal and the same stands dismissed. Appeal dismissed. *******