G. BIKSHAPATHY, J. ( 1 ) THE revenges and retaliations have become the Order of the day and they continue to be unabated. Clash between duru family and Vadde family had produced as many as seven dead bodies on a single day. ( 2 ) (12) Accused belonging to Vaddefamily stood charged for various offences punishable under Section 302 Read with Sections 149 and 307 IPC. The details will be referred to hereinafter. However, the trial against accused No. 12 was separated and he stood discharged. Accused Nos. 8 and 11 were acquitted of the offences with which they were charged. Therefore, Accused No. 1 to 4, Accused Nos. 6, 7, 9 and 10 are the appellants before this Court assailing the judgment of the learned II Addl. Sessions judge, Guntur in S. C. No. 555 of 1997, dated 2-4-2002. ( 3 ) A-1 was convicted and sentenced to suffer Life Imprisonment for the offence punishable under Section 302 IPC, A-2 to a-4, A-6, A-7, A-9 and A-10 were convicted and sentenced to suffer Life Imprisonment for the offence under Section 302 Read with section 149 IPC. A-1 to A-4, A-6, A-7, A-9 and A-10 were convicted and sentenced to suffer R. I. for 5 years each for the offence under Section 449 IPC, A-1, A-3 and A-7 were convicted and sentenced to suffer R. I. for 7 years each for the offence under section 307 IPC, A-5 was convicted and sentenced to suffer R. I. for 2 years for the offence under Section 324 IPC, R. I. for one year for the offence under Section 452 IPC and R. I. for six months for the offence under section 148 IPC. All the sentences were ordered to be run concurrently. In asmuch as a-5 was in jail for two years and 5 months and after giving set off to the sentence undergone, he was set at liberty. ( 4 ) THE substance of the charge against the accused is that on 18-11 -1996 at about 8 p. m. all the accused formed themselves into an unlawful assembly with common object of committing murders of Duru Balaiah and his family members armed with deadly weapons like axes, knives. ( 4 ) THE substance of the charge against the accused is that on 18-11 -1996 at about 8 p. m. all the accused formed themselves into an unlawful assembly with common object of committing murders of Duru Balaiah and his family members armed with deadly weapons like axes, knives. In furtherance of their common object accused went to the house of duru Balaiah, hacked the members of Duru family killing six persons on the spot, and rahelamma died in the hospital and they attempted to kill three members of the family, who were inflicted with grievous injuries. They were tried for the offences punishable referred to above. Except A-8 and A-11, other accused were found guilty of the offences with which they were charged and they were sentenced to various periods of imprisonments. However, the case against a-12 was separated and he was discharged. Therefore, the appeals have been preferred by the accused, who were convicted by the sessions Court. ( 5 ) THE case of the prosecution as unfolded during the trial is that the accused belonging to Vaddeshwaram family and deceased belonging to Duru family. They were residing in Mulpuru village. It is alleged that prior to the incident in question people belonging to vaddeshwaram family were murdered. Apprehending that Vadde family members would retaliate Duru family was staying away from the village. Duru family have been requesting the Revenue Divisional Officer to permit them to stay at Mulpuru and to take necessary steps in that regard. ( 6 ) ON the date of the incident, namely 18-11-1996, the deceased family members went to Revenue Divisional Officer Office to seek his assistance to enable them to go to their houses in Mulpuru village. But, however, a-2 Sarpanch of Mulpuru village exhorted the Durufamily members to return to Mulpuru village. Accordingly, all the members to return to Mulpuru village at about 7. 30 p. m. After half an hour of their return to Mulpuru village, accused party Vadde family people numbering about 20 were alleged to have come to the house of Duru Balaiah, where their family consisting of 15 people were taking shelter. Accordingly, all the members to return to Mulpuru village at about 7. 30 p. m. After half an hour of their return to Mulpuru village, accused party Vadde family people numbering about 20 were alleged to have come to the house of Duru Balaiah, where their family consisting of 15 people were taking shelter. Immediately thereafter the accused party started retaliating and on apprehending the threat of the family members entered into a room and bolted from inside, but the accused alleged to have broke open the door entered into the room and attacked the Duru family killing seven persons and injuring three persons. The injured was shifted to Government Hospital, tenali and thereafter to the Government hospital, Guntur. The statement of P. W. 1 ex. P-1 was recorded by P. W. 50 and on the basis of the said statement, FIR Ex. P-50 was issued and investigation was taken up by the circle Inspector of Poiice-P. W. 51. He examined P. Ws. 1 to 4 and also eye witnesses p. Ws. 5 to 17. Ex. P-10 is the observation report and P. W. 19 and another acted as mediators. Ex. P-14, 15, 16, 21, 23and 51 are inquest reports of all the deceased. Ex. P-18 isthe seizure panchanamaform. Os. 1 to5at the instance of A-4 recorded by P. W, 21, ex. P-19 is another confessional panchanama by P. W. 21. P. W. 22 is the inquest panch for ex. P-21 and Ex. P-22. P. W. 24 is the photographer, Ex. P-25 is the post-mortem certificate issued by P. W. 25, Ex. P-26 to p-28 are wound certificates issued by p. W. 26 in respect of the injuries sustained by P. Ws. 1 to 3. Ex. P-29 is the request sent by Sub Divisional Officer to P. W. 27 to record 164 Cr. P. C. statement of P. Ws. 1 to 3. The said statements were marked as Ex. P-30 to p-34. Exs. P-25, 35, 36, 37, 38, 45 and 46 are post mortem certificates issued by P. Ws. 25, 39, 40 and 43, Ex. P-39 to P-42 are X-ray films. Ex. P-47 and P-48 are the opinions of p. W. 43 Doctor, who treated P. Ws. 1 to 3. Ex. P-52 is the confessional mediator nama drafted by P. W. 50, Ex. P-53 is the seizure mediator nama attested by P. W. 53. 25, 39, 40 and 43, Ex. P-39 to P-42 are X-ray films. Ex. P-47 and P-48 are the opinions of p. W. 43 Doctor, who treated P. Ws. 1 to 3. Ex. P-52 is the confessional mediator nama drafted by P. W. 50, Ex. P-53 is the seizure mediator nama attested by P. W. 53. Thus, the prosecution in all examined 55 witnesses. After completion of the investigation, charge sheet was filed before the learned II Additional munsif Magistrate, Tenali, which was taken on record of file as P. R. C. No. 17 of 1997. As the offence under Section 302 is exclusively triable by the Court of Sessions, the learned magistrate committed the Court to the Court of Sessions, Guntur, who after numbering as s. C. No. 555 of 1997 made over the same to the learned II Additional Sessions Judge for trial and disposal according to law. ( 7 ) THE learned trial Judge after hearing the prosecution and the accused framed the charges against the accused as follows:"first, that A-1 of you, at about 7. 30 a. m. on 18-11-1996, at the house of Dura balaiah in house bearing No. 2-148, madigapalli, Mulpuru, did commit murder intentionally or knowingly causing the death of Duru Suri Babu @ suri and thereby committed an offence punishable under Section 302 of the indian Penat Code and within my cognisance. Secondly, that A-2 to A-11 of you along with Mulpuru Rajendrababu (A-12) at about the same time and place mentioned in charge No. 1, were present and during the course of the same transaction, with the common intention of murdering the members of Duru balaiah s family, in pursuance of the said common intention of which A-1 of you committed murder and that A-2 to a-11 of you thereby committed an offence punishable under Section 302 indian Penal Code and under Section 34 of the Indian Penal Code and within my cognisance. Thirdly, that A-1 to A-11 of you along with Mulpuru Rajendrababu (A-12) at about the same time and place mentioned in charges 1 and 2 in the north western room of the house of duru Balaiah in Madigapalli Mulpuru village, did commit murder intentionally or knowingly causing the death of Duru balaiah @ Bala (1st deceased) and thereby committed an offence punishable under Section 302 of the indian Penal Code and within my cognizance. Fourthly, that A-1 to A-11 of you along with Mulpuru Rajdendrababu (A-12) at about the same time and place mentioned in above charges in the north western room of the house of Duru balaiah in Madigapalli, Mulpuru village, did commit murder intentionally or knowingly causing the death of Duru samson @ Murikodu (3rd deceased) and thereby committed an offence punishable under Section 302 of the indian Penal Code and within my cognizance. Fifthly, that A-1 to A-11 of you along with Mulpuru Rajendrababu (A-12) at about the same time and place mentioned in the above charges, did commit murder intentionally or knowingly causing the death of Duru irmiya (4th deceased) and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance. Sixthly, that A-1 to A-11 of you along with Mulpuru Rajendrababu (A-12) at about the same time and place mentioned in the above charges, did commit murder intentionally or knowingly causing the death of Duru mariyadoss (5th deceased) and thereby committedan offence punishable under section 302 of the Indian Penal Code and within my cognizance. Seventhly, that A-1 to A-11 of you along with Mulpuru Rajendrababu (A-12) at about the same time and place mentioned in the above charges, did commit murder intentionally or knowingly causing the death of Duru rahel (7th deceased) and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance. Eighthly, that A-1, A-3, A-4, A-6, A-8 anda-11 of you, at about the same time and place mentioned in charge No. 1 above, did axed, to wit, hacked and stabbed Duru Bujji (L. W. 1) with such intention and under such circumstances that if by that act, you had caused the death of said Duru Bujji (L. W. 1) you would have been guilty of murder and that you caused hurt to the said Duru bujji (L. W. 1) by the said act and thereby committed an offence punishable under section 307 of the Indian Penal Code and within my cognizance. Ninthly, that A-1 of you at about the same time and place mentioned in the above charges, did act, to wit, hacked duru Rajakumari (L. W. 2) with such intention and undersuch circumstances that if by that act, you had caused the death of said Duru Rajakumari you would have been guilty of murder and that you caused hurt to the said Duru rajakumari by the said act and thereby committed an offence punishable under section 307 of the Indian Penal Code and within my cognizance. Tenthly, that A-5 of you at about the same time and place mentioned in the above charges, did an act, to wit, hacked duru Martha (L. W. 3} with such intention and under such circumstances that if by that act, you had caused the death of said Duru Martha, you would have been guilty of murder and that you caused hurt to the said Duru Martha by the said act and thereby committed an offence punishable under Section 307 of the indian Penal Code and within my cognizance. Eleventhly, that A-1 to A-11 ofyou along with Mulpuru Rajendrababu (A-12 in the case) at about the same time and place mentioned in the above charges, committed house trespass by entering into the building of Duru Balaiah, used as a place of human dwelling in order to commission of the offence punishable with imprisonment for life or death, to wit, murder, punishable under Section 302 of the Indian Penal Code, and thereby committed an offence punishable under Section 449 of the indian Penal Code and within my cognizance. Finally, that A-1 to A-11 of you along with Mulpuru Rajendrababu (A-12) at about the same time and place mentioned in the above charges were members of unlawful assembly and did in prosecution of the object of such assembly, namely, in attempting to kill the members of the family Duru Balaiah, committed the offence of rioting with deadly weapons, to wit, knives, axes and sticks and thereby committed an offence punishable under Section 148 of Indian Penal Code and within my cognisance. " ( 8 ) THE accused pleaded not guilty and claimed to be tried. In support of the case of the prosecution 55 witnesses were examined and Ex. P-1 to P-53 were marked. Ex,d-1 is the contradiction portion in Ex. P-1. Material objects 1 to 33 were marked. " ( 8 ) THE accused pleaded not guilty and claimed to be tried. In support of the case of the prosecution 55 witnesses were examined and Ex. P-1 to P-53 were marked. Ex,d-1 is the contradiction portion in Ex. P-1. Material objects 1 to 33 were marked. The learned trial Judge after considering the evidence available on record, came to the conclusion that the accused except A-8 and A-11 were guilty of the offences referred to above and they were accordingly sentenced to suffer imprisonment under various counts including life Imprisonment. Against the said convictions and sentences, the present appeals have been preferred. ( 9 ) THE learned counsel for the appellants-accused submit that the findings recorded by the trial Court are wholly erroneous and contrary to the evidence on record. He submits that there were many inconsistencies in the version of the prosecution witnesses and therefore, their evidence cannot be believed, the learned counsel would also submit that it is highly improbable that the accused attacked the members of Duru Balaiah family whose number was 15 in one room having measurements of 15 fts. /8 fts. and on account of which seven deaths have been occurred. Therefore, the case of the prosecution suffers with inherent improbabilities. He further submits that in order to wreck vengeance against Duru family, the prosecution tried to rope in all the members of the Vadde family, the learned counsel would also submit that the evidence of the injured witnesses namely p. Ws. 1 to 3 is not reliable and their testimony cannot be accepted in asmuch as they are interested and partisan witnesses. No outside witnesses were examined to established the guilt of the accused for the offence punishable under Section 302 Indian Penal Code etc. beyond reasonable doubt. Hence, he submits that the accused are entitled for acquittal. ( 10 ) ON the other hand, the learned Public prosecutor submits that this is a ghastly incident, where almost all the members of duru family were done to death at one stroke on a single day. Unfortunately, P. Ws. 1 to 3 were able to escape from the onslaught of the accused and received grievous injuries. Accused with a common object of killing and eliminating all the members of Duru family formed themselves into an unlawful assembly on the night of 18-11-1996 armed with deadly weapons like sickles, axes etc. Unfortunately, P. Ws. 1 to 3 were able to escape from the onslaught of the accused and received grievous injuries. Accused with a common object of killing and eliminating all the members of Duru family formed themselves into an unlawful assembly on the night of 18-11-1996 armed with deadly weapons like sickles, axes etc. and indiscriminately hacked the members of Duru family, who were taken into surprise and who were not armed with any weapons. The learned counsel would further submit that the sessions Court ought to have inflicted the sentence of death penalty as it falls under rarest of rare cases and hence he submits that no case is made out for interference with the well considered judgment of the learned trial Judge. ( 11 ) THE point that arises for consideration is whether the judgment of the learned trial court is sustainable on facts and in law? and whether the prosecution has been able to establish the guilt of the accused for the offences with which they were charged beyond reasonable doubt? ( 12 ) P. WS. 1 to 3 are the prime witnesses in this case. Before going into the evidence of witnesses, it is necessary to refer to the names of the accused, which is as follows: a-1 Vaddeswarapu Vara @ Prasadarao a-2 Vaddeswarapu Sundararao @ chinapamulu a-3 Vaddeswarapu Samson a-4 Vaddeswarapu Adam a-5 Vaddeswarapu Subbarao @ Yerra subbulu a-6 Vaddeswarapu China Yellamanda @ Bullodu a-7 Vaddeswarapu Appaiah a-8 Vaddeswarapu Prabhudoss @ bulligadu a-9 Vaddeswarapu Muneswararao @ muneiah a-10 Vaddeswarapu Bullibabu @ bullodu a-11 Vaddeswarapu Atcheswara Rao @ Moogodu, a-12 Mulpuru Rajendrababu. Out of the above, A-8 and A-11 were acquitted and the case against A-12 was separated in S. C. No. 556 of 1997 and he was discharged. ( 13 ) FOR the sake of convenience, it is necessary to refer the names of deceased no. 1 to 7 also. They are as follows: d-1 Duru Balaiah @ Bala d-2 Duru Yesudayamma d-3 Duru Samson d-4 Duru Ermiya d-5 Duru Maryadas d-6 Duru Suribabu d-7 Duru Rahelamma D-4, D-5, D-6 and D-1 are own brothers. D-2 is the wife of D-6. D-3 ia the son of D-4, D-7 is the wife of D-4. ( 14 ) THE injured are (1) Duru Bujji {p. W. 1), (2) Duru Rajkumari (P. W. 2), (3) Duru Masthan (P. W. 3) and (4) Duru Mariamma (P. W. 5 ). D-2 is the wife of D-6. D-3 ia the son of D-4, D-7 is the wife of D-4. ( 14 ) THE injured are (1) Duru Bujji {p. W. 1), (2) Duru Rajkumari (P. W. 2), (3) Duru Masthan (P. W. 3) and (4) Duru Mariamma (P. W. 5 ). ( 15 ) ACCORDING to P. W. 1-Duru Bujji on 18-11-1996 at about 7. 30 p. m. , deceased no. 1 to 7 and themselves went to Revenue divisional Officer Office with President accused No. 12 and Revenue Divisional officer advised them not to go to Mulpuru village. However, the President A-12 gave an assurance that there is no trouble if they went to Mulpuru. Accordingly, they went to mulpuru to Duru Balaiah s house. Accused no. 1 to 3, 7 and 10 came there armed with axes and knives and on seeing them they closed the doors, but the accused broke open the doors, windows and went inside the house. A1 axed on her left shoulder. A-3 stabbed with knife on her neck. A-7 stabbed on her both the hands. A-1 hacked with an axe on the back of her husband (Deceased no. 5 ). A-3 hit the deceased No. 5 on the right elbow. A-7 hit with Erukala katti on Deceased no. 5, A-1 hacked on the neck of the deceased no. 5. A-3, A-7, A-8 and A-10 and A-11 hit with knives (Erukala Katti) deceased Bala, ermia, Suribabu, Yesudayamma, Rahelu, samson and A-1 with an axe axed the above persons indiscriminately. The accused went outside and again hit with knives and caused injuries to the persons. Ermia, Bala, mariyadasu, Suribabu, Yesudayamma, rahelu died on the spot. She and Rajkumari (P. W. 2) were shifted to the hospital, where her statement was recorded. Ex. P-1 is the complaint recorded by the police. After she was discharged from the hospital, her statement was recorded by the Magistrate under Section 164 Cr. P. C. ( 16 ) P. W. 2 Duru Rajakumari, who is the injured person and daughter of Deceased no. 4-lrmiya. According to her, all the accused came armed with axes and knives by raising champandira! Narakandira! and on seeing them due to fear they all went to inside the house and bolted the doors of the room. The accused broke open the doors and entered into the room. 4-lrmiya. According to her, all the accused came armed with axes and knives by raising champandira! Narakandira! and on seeing them due to fear they all went to inside the house and bolted the doors of the room. The accused broke open the doors and entered into the room. A-1 hacked on her right hand fore-arm with axe and also hacked on her right leg. A-1 also hacked P. W. 1 and Balaiah (Deceased No. 1 ). He also hacked with an axe Yesudayamma (deceased No. 2 ). He also hacked with an axe her brother Samson (deceased No. 3) and her father Irmiya (deceased No. 4) and her mother Rahelamma (deceased No. 7) and her paternal uncle on their bodies indiscriminately. A-1 hacked with an axe her sister-in-law Martha. A-1, A-7, a-4 and A-10 hacked with the knvies (cheruku naraku katti) herfather Irmia, her mother, her uncles Suribabu, Mariyadas and Bala, her brother Samson, her aunt Yesudayamma indiscriminately. She was shifted to hospital along with P. W. 2. where her statement was recorded. ( 17 ) P. W. 3 Duru Martha, wife of deceased no. 1 stated that about 15 to 16 vaddeswarapuram people came with axes, knives by saying Narakandira, Duri Vallani and on seeing them all ran inside the rooms and closed the doors, but the accused brake open the door and entered into the house and axed her uncle Bala (Deceased No. 1 ). They have also axed her mother-in-law, father-in-law, her another uncle Suri, yesudayamma-wife of Suri, her husband samson, Bujji-P. W. 1 and Rajakumari p. W. 2. A-5 also beat with an axe on her head, chest and also on legs. In the said incident, seven persons were killed and p. W. 1 and P. W. 2 were injured. Her mother-in-law rahelamma died in Guntur hospital after two days. ( 18 ) P. W. 4 Duru Jayarao. He stated that the accused as well as the deceased are relatives. He stated that on the date of the incident and they were sitting in the housed balaiah, all the accused came with knives, axes and crowbar and attacked them, then they ran into the house. Himself and sudhakara Rao ran into one room and they hiding under a cot. Then the accused brake opens the doors of the rooms and caused injuries. He found Deceased No. 1 to 7 dead and P. Ws. Himself and sudhakara Rao ran into one room and they hiding under a cot. Then the accused brake opens the doors of the rooms and caused injuries. He found Deceased No. 1 to 7 dead and P. Ws. 1 to 3 were lying with injuries. However, he did not see the accused attacking the deceased. P. Ws. 7, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15 and 16 did not support the prosecution and other witnesses are not eye witnesses. However, P. W. 51 -Sub-Inspector of Police. It is in his evidence that he went to gunturon 18-11 -1996 lo give evidencebefore the VII Addl. Munsif Magistrate Court in prattipadu case. P. W. 50 informed him that he received information regarding the murders at Mulpuru village and D. S. P. was proceeding to Mulpuru village, then he went to Duru Balaiah s house in Mulpure village straightaway. He found one dead body in the veranda, four dead bodies of males and one dead body of female in the room. He also found three women lying with multiple injuries in the room. As the injured persons were not in a position to sit, he sent them to Government hospital, Tenali and after D. S. P. came to tenali, they were shifted to Guntur, then he proceeded to Guntur Government hospital. Out of three, viz. P. W. 1, P. W. 2 and rahelamma, P. W. 1 was found to respond to the questions and to give statement. Then he recorded the statement of P. W. 1 under ex. P-1 and sent the same to the Police station for registration. Rahelamma (Deceased No. 7) died in the hospital after two days. P. W. 50-Head Constable of amrathaluru police station stated that on receiving the statement recorded by p. W. 51, he registered a case in Crime no. 56 of 1996 under Sections 147, 148, 449, 307, 302 read with Section 149 IPC and he issued Ex. P-50 Express FIR to all the concerned. ( 19 ) P. W. 52 is the Inspector of Police, bapatla. He stated that on the instructions of superintendent of Police and Deputy superintendent of Police he went to Mulpuru village on 18-11-1996 and he conducted inquest over the dead bodies of the deceased nos. 1 and 3 in the presence of P. W. 20. P. ws. ( 19 ) P. W. 52 is the Inspector of Police, bapatla. He stated that on the instructions of superintendent of Police and Deputy superintendent of Police he went to Mulpuru village on 18-11-1996 and he conducted inquest over the dead bodies of the deceased nos. 1 and 3 in the presence of P. W. 20. P. ws. 22, 35, 20, 23, 21, 34, 36, 37 and 42 are the witnesses to the inquest and signatories to the inquest report. It is to be noted that the inquest of Duru Rahelu was held at Government hospital, Guntur where she expired. ( 20 ) P. W. 25, Dr. G. B. Rajakumar, on receipt of a requisition from the police conducted post-mortem examination over the dead body of Duru Rahelu and found the following injuries: (1) Transverse suture wound of 3 cm. Length with two sutures present over left temple bone deep. (2) Oblique sutured wound of 27 cm. Length with 20 sutures present over left cheek pinna of upper part of left ear extending from 2 cm. below the upper part of Pinna of left ear passed obliquely upto angle of mouth on left side bone deep. (3) Oblique sutured wound of 3 cm. Length with two sutures present over upper eye lid on right side adjacent to the medical 1 /3rd part of eye brow skin deep. (4) Transverse sutured wound of 3 cm. length with two sutures present over upper iip skin-deep present 0. 5 cm. below the nose. (5) Transverse sutured wound of 10 cm. length with 7 sutures present over right cheek and lower part of lower lip 0. 75 cm. below the angle of mouth skin deep. (6) Oblique sutured wound of 8 cm. length 6 sutures present over chin and lower lip extending from 1 cm below the angle of mouth on left side passed downwards and towards right side made a cut over the bone of lower jaw of 0. 75 cm. depth. (7) Transverse incised wound of 3 x 0. 75 cm. size present over front of middle of neck 5 cm below the thyroid notch. On cut section overall cut injury of 3 x 2. 5 cm cavity deep present over anterior wall of trachea over 2, 3, 4 tracheal rings tracheastomy opening. 75 cm. depth. (7) Transverse incised wound of 3 x 0. 75 cm. size present over front of middle of neck 5 cm below the thyroid notch. On cut section overall cut injury of 3 x 2. 5 cm cavity deep present over anterior wall of trachea over 2, 3, 4 tracheal rings tracheastomy opening. (8) Right oblique cut laceration of 7 x 2 cm bone deep present over ulnar side of right wrist joint and made a cut over the ulnar bone of 1 cm department. (9) Right oblique cut laceration of 6 x 2 cm bone deep present over the dorsum of right hand 5 cm below the injury No. 8 and made a cut over carpal of metacarpal bones of hand. (10) Right oblique cut laceration of 6 x 2 cm. bone deep present over dorsal aspect of proximal phalaenges of index, middle, ring New Delhi little fingers of right hand cut the proximal phalaenges of index, middle, ring and little fingers with intact cutaneous and subcutaneous tissues on palmar aspect present. (11) Venesection wound with sutures and dressing present over inner aspect of right ankle. (12) Oblique sutured wound of 12 cm. length with 9 sutures muscle deep present over outer and backsides of left upper arm 9 cm. below the tip. (13) Right oblique cut laceration of 7 x 2 cm, bone deep present over outer aspect of left fore arm 4 cm below the elbow. (14) Vertical cut laceration of 6 x 1 cm. muscle deep present over outer side of left fore arm 2 cm. below the above wound. (15) Traumatic amputation of left fore arm21 cm. below the elbow present. The amputated distral part of fore arm and hand not present in situ. An amputated hand and wrist of left side sent by Sub-Divisional Police officer, Tenali which was seized at the scene of offence is consistent with the left hand of the deceased. The articulating surfaces of amputated upper limb and amputated wrist and hand are articulating with each other and belongs to the same individual. (16) Oblique cut laceration of 7 x 2 cm present over outer and back sides of left fore arm present, 18 cm. below the elbow involving the whole thickness of the fore arm including the bones except intact skin on the ventral and inner surfaces. (17) Transverse incised wound of 4 x 1 cm. (16) Oblique cut laceration of 7 x 2 cm present over outer and back sides of left fore arm present, 18 cm. below the elbow involving the whole thickness of the fore arm including the bones except intact skin on the ventral and inner surfaces. (17) Transverse incised wound of 4 x 1 cm. muscle deep, present over dorsum of left hand (amputated one) 0. 5 cm. above the junction of index and middle fingers with hand. The above injuries present are antemortem in nature. The deceased died in G. G. H. Guntur. He opined that the cause of death was due to shock and haemorrhage, as a result of multiple injuries. He issued post-mortem ex. P-25 is the post-mortem certificate. ( 21 ) P. W. 40 Dr. Srinivasa Murthy stated that on requisition from the police, he conducted autopsy on 19-11-1996 on the dead body of deceased No. 6 and found the following injuries: (1) Head is separated from the body by a traumatic injury at level of C6 measuring head and 14 x15 cms, clean margins and ragged pase, thorasic 15 x 15 cms. (2) An incised injury of 12 x 14 cms. entering into thoracic cavity on the front of upper part of left side of chest below clavical. Fracture of left i clavical sternum is cut vertically. (3) An incised injury of 17 x 14 cms. underlying cut muscles and tissues are exposed on the front of left shoulder axillary on the front of left upper arm. (4) An incised injury of 7x2cms. on the outer aspect of upper part of left shoulder. (5) A cut lacerated injury of 15 x 6 cms, with fractures both bones of forearm and wrist. (6) An obliquely placed incised injury of 11 x2 cms. On the left supra scapular region. (7) A contusion of 15x2 cms. on the left lumbar region, over which an abrasion of 2 x 1 cm. (8) Cut lacerated injury of 14 x 2 and half cms underlying fractured left parietal bone is seen (9) A lacerated injury of 5 x 1 cms. fractured occipital bone on the left side. All the injuries are ante-mortem in nature. He opined that the cause of death was due to shock and haemorrhage, as a result of multiple injuries. He issued post mortem ex. P-37 is the post-mortem certificate. fractured occipital bone on the left side. All the injuries are ante-mortem in nature. He opined that the cause of death was due to shock and haemorrhage, as a result of multiple injuries. He issued post mortem ex. P-37 is the post-mortem certificate. ( 22 ) ON the same day at about 12. 30 noon, p. W. 40 conducted autopsy over the dead body of Yesudayamma (Deceased No. 2) and noted the following injuries: (1) Crush injury on the left side of head and face, exposing the brain measuring 19 x 12 cms. Brain is lacerated into pieces and all the skull bones are fractured into multiple chips. 2. An incised injury of 9 x 4 cms. Underlying fracture humerus is seen on the left upper arm. 3. An incised injury of x x 1 cm. below injury No. 2. 4. Crush injury involving left upper arm, elbow and fore arm measuring 27 x 15 cms. exposing the cut muscles and bone of both upper arm and fore arm. 5. Left middle, ring and little fingers are cut and found separated at the level of metacapro phalfugeal joints. 6. An incised injury of 5 x 3 x 1 cm. on the middle of right leg on its inner aspect. 7. Two contusions of 2 x 1 cms. on the upper part of left side of chest 2 cms. apart. All the injuries are antemortem in nature. All the vital organs are normal size and weight and pale on section. Heart is empty. Stomach empty. Uterus normal and non- pregnant. Hyoid is intact. He opined that the cause of death was due to shock and haemorrhage, as a result of multiple injuries. He issued post-mortem ex. P-38 is the post-mortem certificate. ( 23 ) P. W. 43 Dr. J. Syama Rao held autopsy over the dead body of Duru Samson (deceased No. 3) and found the following injuries;{1) An incised wound over the right side of the forehead obliquely placed measuring 4 x 2 cms. skin deep margins clean cut. (2) A vertically placed incised wouna over the right temporal region measuring 2 x 1 cms. skin deep margins clean cut. (3) An obliquely placed incised wound over the right cheek measuring 6 x 2 cms. skin deep margins clean cut. (4) A horizontally placed incised wound over the right external ear measuring 3 x 1 cms. (2) A vertically placed incised wouna over the right temporal region measuring 2 x 1 cms. skin deep margins clean cut. (3) An obliquely placed incised wound over the right cheek measuring 6 x 2 cms. skin deep margins clean cut. (4) A horizontally placed incised wound over the right external ear measuring 3 x 1 cms. underlying temporal bone is fractured and exposed. Margins clean cut. (5) An incised wound over the right side of upper part of neck measuring 7 x 2 x 5 cms. underlying muscles, blood vessles and nerves cut horizontally placed, margins clean cut. (6) An incised wound over the left external ear and face horizontally placed measuring 4 x 2 cms. underlying temporal bone fractured and exposed. Margins clean cut. (7) A red contusion just in front of left ear measuring 2 x 2 cms. (8) An incised wound over the superior aspect of right shoulder measuring 3 x 2 x 1 cm. vertically placed margins clean cut. (9) An incised wound horizontally placed just above the right nipple measuring 6 x 3 cms, skin deep margins clean cut. (10) A vertically placed incised wound over the left upper part of chest measuring 2 x 5 cms. skin deep, margins clean cut. (11) A chap wound involving the left index and middle fingers, the distal phallenges of both fingers are partially severed and hanging. Margins clean cut. (12) A cut laceration horizontally placed over the right parietal region of scalp measuring 4 x 2 cms. margins clean cut an contused, on dissection there is a horizontal fracture of right parietal bone measuring 8 x 0. 5 cms. laceration of right parietal lobe of brain measuring 1 x 0. 5 x 0. 5 cms. and diffused sundural haematomo covering entire surface of right cerebral hemisphere. He opined that the cause of death was due to shock and haemorrhage, due to multiple injuries. He issued post-mortem Ex. P-45 is the post-mortem certificate. On the same day post-mortem examination was conducted on the dead body of Duru Mariyadoss (deceased No. 5) and found the following injuries: (1) A cut laceration overthe right parietal region of scalp measuring 8 x 1 cms. obliquely placed underlying bone exposed margins clean cut and contused. (2) An obliquely placed cut laceration over the right side of the neck measuring 18 x 6 x 8 cms. obliquely placed underlying bone exposed margins clean cut and contused. (2) An obliquely placed cut laceration over the right side of the neck measuring 18 x 6 x 8 cms. underlying muscles, blood vessels, nerves and cervical vertebra are cut and exposed. Margins clean cut and contused. (3) A horizontally placed cut laceration of back of left hand measuring 10 x 4 cms. underlying matacarpal bone cut and exposed. Except that of thumb. Terminal phallenges of 3rd and 4 fingers are cut and missing, cut margins, cut surfaces clean cut. (4) An incised wound with clean cut margins obliquely placed over the dorsum of the left hand measuring 3 x 1 cms. skin deep underlying tendons are exposed. (5) An obliquely placed incised wound over the inner aspect of back of left wrist measuring 2 x 1 cms. skin deep, margins clean cut. 6. An obliquely placed incised wound over the lower 1 /4th of right fore-arm over its back measuring 2 x 4 cms. underlying redius bone is fractured and exposed. Skin margins clean cut. 7. An obliquely placed cut laceration overthe back of right hand measuring 6 x 2 cms. underlying bones fractured and exposed, margins clean cut and contused. 8. A cut laceration over the front of right leg obliquely placed measuring 13x 8 cms. underlying tibia bone is fractured and exposed, margins of the wound clean cut and contused. 9. An incised wound obliquely placed over the right catf measuring 2 x 0. 5 cms. skin deep margins clean cut. He opined that the cause of death was due to shock and haemorrhage, due to multiple injuries. He issued post-mortem Ex. P-46 is the post-mortem certificate. ( 24 ) P. W. 39 Dr. T. Kamalakara Prasad, conducted post-mortem examination on the dead body of Duru Ermia (Deceased No. 4) and found the following injuries: (1) An ellipiticalincised injjyr of 6 x 3 cms exposing fractured occiptial bone on the left side of the head. (2) The head is cut-of-from neck and attaches to the neck with a small tag of skin and other tissues on the left side with 15 x 19 cms x underline musscelles tissues vessels, cervical spine of C-4 and C-5 of front right side and back are completely cut, margins are clean cut and contused. (3) A cut lacerated oblique injury of 24 x 8 cms. x 6 cms. (3) A cut lacerated oblique injury of 24 x 8 cms. x 6 cms. from the lower end of right ear to the left angle of mandible. (4) An incised wound of 5 x 2 x 1 cms. over the right side of chin. (5) The horizontal incised wound of 8 x 2 x 2 cms. at just over the injury no. 2 below the right ear. (6) A vertically placed cut laceration of 11 x 5 x exposing the underlying cut muscles and ribs on left side of chest. On dissection shows fracture of 2 to 5 ribs on left side at mid clavicular line, cut injury present on anterior aspect of upper lobe measuring 8 x 3 x 1 cms. (7) Cut lacerated injury of 9 x 3 x bone deep with bones of left fore-arm fractures, exposed on middle 1/3rd of left forearm. (8) A cut lacerated injury of 17 x 5 x 10 cms. with fracture of lateral 1/4th of collar bone with exposing the capusule of right shoulder entering into thrasic cavity fracturing second rib on right side. (9) A transverse incised injury of 7 x 3 x 9 cms. exposing with fractured upper part of shaft of femur. He opined that the cause of death was due to shock and haemorrhage, due to multiple injuries. He issued post-mortem Ex. P-35 is the post-mortem certificate. On the same day, he conducted autopsy over the dead body of Duru Bala @ Balaiah (deceased No. 5) and found the following injuries: (1) Cut lacerated injury of 17cms. length involving the left external ear, face and left side of the back, width 4 cms. x the underlying left temporal bone, muscles and tissues cut and exposed. (2) Cut lacerated injury below injury no. 1 and parallel to it 14 x 4 x 9 cms. with underlying mandible is cut and exposed. (3) An incised injury of 3 x 2 x 1 cms, on the back of right wrist. (4) Two contusions of 2 x 1 cms. each superior aspect of left shoulder 2 cms. apart. (5) An incised wound on front of the left shoulder obliquely placed measuring 3 x 1 x 1 cms. (6) A transversed incised injury of 4 x 1 x 1 cms. over the left side of the neck just below the injury No. 2. (7) An incised wound just below injury no. apart. (5) An incised wound on front of the left shoulder obliquely placed measuring 3 x 1 x 1 cms. (6) A transversed incised injury of 4 x 1 x 1 cms. over the left side of the neck just below the injury No. 2. (7) An incised wound just below injury no. 6 transversely on left side of the neck measuring 8 x 2 x 4 cms. (8) An incised injury over back of the neck obliquely placed measuring 7 x 2 x 4 cms. (9) An obliquely placed incised injury of 11 x 5 cms. x bone deep on infrascapular of right side. On dissection shows fractures of 3rd and 4th thrasic vertebra and posterior aspect of 3rd lib. (10) A semilunar shaped abrasion over the back of chest 18 x cms. extending over both sides. (11) An transversed incised injury of 4 x 1 x 3 cms. on left loin. (12) An incised vertical injury of 5 x 2 x 4 cms. with hair line abrasion of 4 cms on left buttock. Doctor opined that the cause of death was due to shock and haemorrhage, due to multiple injuries. He issued post-mortem ex. P. 36 is the post-mortem certificate. ( 25 ) P. W. 26 Dr. K. Vaileswari stated that on 19-11 -1996 at 12. 15 mid night P. W. 2 was brought to the hospital and she found the following injuries: (1) Lacerated injury on right fore arm reddish black in colour 20 x 10 x 5 cms. in size. (2) Abrasion on right thigh. It is of 20 x 1 cm. size. She opined that the injury no. 1 might be caused by beating with sharp cutting weapon. Injury no. 2 might be caused by beating with sharp weapon. Duration of injury is within 12 hours. X-rays were taken atggh, Gunterwith X-ray No. 3229, dated 19-11-96 right forearm A. P. and lateral view no bone injury, flexon tendon injury right fore-arm present. So it is a grievous injury. Ex. P-26 is wound certificate. On the same day at about 6-10 a. m. she examined P. W. 3 and found the following injuries: (1) Lacerated injury over the head and temporo occipital region, bony deep, 8 x 3 x 2 cm. in size. (2) Lacerated injury over the posterior aspect of the head on occipital area 8 x 3 x 2 cms. in size. On the same day at about 6-10 a. m. she examined P. W. 3 and found the following injuries: (1) Lacerated injury over the head and temporo occipital region, bony deep, 8 x 3 x 2 cm. in size. (2) Lacerated injury over the posterior aspect of the head on occipital area 8 x 3 x 2 cms. in size. (3) Stab injury on right side of the breast, it is of 5 x 2 cm. in size. (4) Lacerated injury on left knee 5x2 cms. in size. She opined that the above injuries are simple in nature. All the injuries might be caused by beating with sharp weapon like knife. Ex. P-27 is the wound certificate issued by her. On 18-11-1996 at 12 mid night she examined Duru Bujji (P. W. 1) and found the following injuries: (1) Lacerated injury on forehead 6 x 3 cm in size. It is reddish black in colour. (2) Lacerated injury on right hand, medical aspect of right hand. It is completely treared of. Bones and tendons exposed. It is of 20 x 1 0 x 5 cms. in size. (3) Lacerated injury on left hand on palmer aspect extending on to the left little finger to the base of the thumb. It is of 20 x 5 x 5 cms. (4) Lacerated injury on right upper arm 20 x 10 x 5 cms. in sieze. (5) Lacerated injury on left shoulder 7 x 4 cms. in size. (6) Lacerated injury on left chest upper part 5 x 3 x 2 cms. in size. (7) Lacerated injury on posterior aspect of the left shoulder 10 x 5 x 3 cms. in size. Patient is in shock. Blood pressure is not recordable. All the injuries are reddish black in colour. Case referred to GGH, Guntur. X-rays report atggh, guntur No. 3241/96 on 19-11-1996 there is a fracture at 2nd and 4th meta carpal bone, fracture middle and terminal phalanges of 4th and 5th fingers. X-rays skull-A. P. and lateral view shows fracture of frontal bone. X-ray of left am A. P. view shows fracture upper end of humerus. She opined that all the injuries might be caused by beating with hard sharp weapon like knives and sickle as they said. The injuries 2, 3, 4 and 5 are grievous in nature and No. 1 is simple in nature. X-ray of left am A. P. view shows fracture upper end of humerus. She opined that all the injuries might be caused by beating with hard sharp weapon like knives and sickle as they said. The injuries 2, 3, 4 and 5 are grievous in nature and No. 1 is simple in nature. Duration of the injury is within 12 hours. Ex. P-28 is the wound certificate issued by her. ( 26 ) P. W. 41 Dr. C. P. Narasimha Reddy stated that on 19-11-1996 P. W. 1 Duru Bujji was referred for X-ray and after taking X-ray film, he found fractures on left arm and other places. On the same day he examined p. W. 2 also. ( 27 ) P. W. 44 Dr. G. Varaprasad staled that on 19-11 -1996, he found injuries on the neck ofhumerusofp. W. 1 and he also found injury on P. W. 2 and she was having floxon tandon injury on right fore-arm. ( 28 ) P. W. 28 Dr. D. Paramjyothi, Addl. Asst. Engineer, A. P. S E. B. stated that there was electricity in Mulpuru village on 18-11-1996 and there was no power cut in november, 1996, ( 29 ) P. W. 38 is Revenue Divisional Officer of Tenali He stated that Duru family came to his office and filed a petition in August, 1996 requesting to ensure that they were sent to mulpuru village to live peacefully. He referred the matter to Mandal Revenue Officer. He also personally visited Mulpuru village and held a metting with the villagers. The relatives of the deceased strongly opposed the entry of Duru family people and if they enter the village there will be likelihood of breach of peace. Sarpanch-A-12 in a separate case was also present. On 18-11-1996 also he advised Duru family not to go to Mulpuru village. But, however, at 9 p. m. he was informed that Duru family people were attacked by opposite group people. ( 30 ) P. W. 27 M. R. Saravana Kumar, the then I Addl. Munsif Magistrate, Tenali. He recorded the statement under Section 164 cr. P. C. of P. Ws. 1, 3, 4, 6 and 5 under ex. P-20, P-32 to P-34. The other witnesses spoke about the arrest of the accused and their confessions, recovered the weapons under respective seizure panchanamas. Munsif Magistrate, Tenali. He recorded the statement under Section 164 cr. P. C. of P. Ws. 1, 3, 4, 6 and 5 under ex. P-20, P-32 to P-34. The other witnesses spoke about the arrest of the accused and their confessions, recovered the weapons under respective seizure panchanamas. ( 31 ) AFTER closure of the evidence, the accused were examined under Section 313 of Cr. P. C. appraising incriminating circumstances appeared in the evidence against the accused and the accused denied the commission of offence. ( 32 ) FROM the aforesaid evidence, it has to be seen whetherthe Appellant-accused have committed the offences for the offences with which they were charged? ( 33 ) THE prime witnesses were P. W. 1, who is none-else-than the wife of Deceased no. 5. P. W. 2, the daughter of Deceased no. 4, Deceased No. 7 and sister of Deceased no. 3. They had categorically stated that the accused entered into the house of the deceased No. 1 and brake open the doors of the room in which the deceased and other family members tried to take shelter and they hacked the deceased on various places. They also stated that they were also injured at various places by the accused. P. W. 3 is the wife of deceased No. 3. she has corroborated the evidence of P. W. 2 and also spoke about the injuries sustained by her. P. Ws. 1 to 3 in categorical tone narrated the incident. Added to this, the statement of p. W. 1 Ex. P-1 also supports the version of the prosecution. Though the learned counsel for the appellants tried to submit that even according to P. W. 1 her statement was recorded at Tenali by Police and another statement was recorded at Guntur, the first statement was not made available and therefore, the case of the prosecution has to be doubted. This contention carinot be accepted in asmuch as P. W. 1 was found to be in conscious stage, when she was at guntur and Sub-Inspector of Police having found her in conscious stage recorded the statement. It has to be noted that the entire family was in room when seven members of the family were hacked to death and P. W. 1 and 2 were in panic striken stage and unconscious stage. It has to be noted that the entire family was in room when seven members of the family were hacked to death and P. W. 1 and 2 were in panic striken stage and unconscious stage. Under those circumstances, it will be rather impossible for them to narrate the incident with mathematical precison. But, yet, P. W. 1 has been able to clearly describe the incident after she regained the consciousness. P. W. 51 had categorically stated that he recorded the statement of P. W. 1 at Guntur hospital and there is no reason for him to come with false version. Thus, the contention of the learned counsel is liable to be rejected. ( 34 ) IT is also contended by the learned counsel for the appellants that P. Ws. 1 to 3 closely related to deceased and they are blood relations and they are prone to spoeak in favour of the deceased and against the accused more especially when there was serious rivalry against them and therefore, their evidence cannot be relied on to convict the accused. He submits that apart from this, there is no independent evidence to convict the accused. But, this contention cannot be accepted, as merely because the witnesss are related and blood relations, it cannot be said that their evidence has to be totally discarded. The Supreme Court time and again held that there is no rule that the evidence of relations and the interested witnesses should be rejected in toto. But, however, it has to be scrutinised with care and caution. But, in the instant case, it has clearly established that on 18-11-1996 they reached Mulpuru village on the encouragement of A-12-Sarpanch. Immediately, within half an hour, the accused came to the house of Duru Balaiah, (Deceased-1) with axes and knives and started hacking indiscriminately all the Duru family, when they sought protection in one room. At this point of time, the learned counsel for the appellants Mr. A. Ramanarayana submits that the room in which the Duru family have taken protection was 15/8 fts. and it is highly impossible for the accused to break open the door and enter into the room and resort to hacking indiscriminately. In fact, all these people could not be accommodated in such asmall room. A. Ramanarayana submits that the room in which the Duru family have taken protection was 15/8 fts. and it is highly impossible for the accused to break open the door and enter into the room and resort to hacking indiscriminately. In fact, all these people could not be accommodated in such asmall room. Further, hesubmits that the version of the prosecution cannot be believed for the reason that some of the dead bodies were outside the room and therefore, the alleged injuries must have been caused by others and not the accused. But, this contention is referred only to be rejected. When unarmed persons were indiscrimiately and mercilessly sought to be hacked with deadly weapons, it is natural that some of the persons, who received injuries came out, where they succumbed to injuries. Further, the injuries sustained by p. W. 1 and P. W. 2 are also grievous in nature. It is also to be seen that all the accused belonging to Vadde family and the motive as alleged was that Duru family were alleged to ahve killed two persons of Vadde family and on account of which Duru family left the village, but on account of assurance given by Sarpanch-A-12, they went to Mulpuru village on that day, when this bizarre incident had happened. Therefore, when once the evidence of P. W. 2 and P. W. 3 is convincing, cogent and corroborative in all material particulars and their evidence also inspires the confidence, it cannot be said that their testimony has to be doubted. The medical certificates in respect of the deceased and in respect of the P. Ws. 1 to 3 clearly indicate that the accused had sufficiently took revenue by mercilessly causing injury through out the body. Under those circumstances, the ingredients of Section 149 are fully established, the common obeject of the accused and hacking the deceased and causing grievous injuries to P. Ws. 1 to 3 in furtherance of their common object to do away with the entire Duru family is established beyond reasonable doubt. ( 35 ) THE learned counsel for the appellants, however, tried to convince this Court that the alleged offences have taken place in the night and it is very doubtful as to whether the accused themselves have committed offence or and there is every possibility that the offences could have been committed by others also. ( 35 ) THE learned counsel for the appellants, however, tried to convince this Court that the alleged offences have taken place in the night and it is very doubtful as to whether the accused themselves have committed offence or and there is every possibility that the offences could have been committed by others also. Therefore, the accused are entitled for benefit of doubt. I am afraid, this contention also cannot be accepted. The exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or. lingering suspicion and thereby destory social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. Prosecution is not required to meet any every hypothesis put forward by the accused. A reasonable doubt is not an imaginary trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly it is argued that it is artificial; if acase has someflaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is guideline, not a fetish ( AIR 1978 SC 1091 ), gurucharan Singh v. Satpal Singh {alr1990 sc 2091), State of U. P. v. Ashok Kumar srivastava ( AIR 1992 SC 840 ), Gangadhar bahera v. State of Orissa 2003 (1) ALT (Crl.) 137 (SC) = (2002 (2) ALD (Crl.) 794 (SC ). ( 36 ) PER Viscount Simon in Stirland v. Director of Public Prosecution (1944 A. C. (P. C.) 315) quoted in State of U. P. v. Anil singh a judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. ( 37 ) IN Shivaji Sahebrao Bobade v. State of Maharashtra, the Supreme Court observed thus:". . . . . . . . . . . . . . . A Judge also presides to see that a guilty man does not escape. Both are public duties. ( 37 ) IN Shivaji Sahebrao Bobade v. State of Maharashtra, the Supreme Court observed thus:". . . . . . . . . . . . . . . THE dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability, The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. ". . . . . . . . . . . . . THE evil of acquitting a guilty person light-heartedly as a learned author Glanville Williams in proof of guilt has sapiently observed, goes much beyond the simple fact that, just one guilty person has gone unpunished. If unmerited acquittal become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted persons and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltness. . . . . . . . . . . . . "". . . . . . . A miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. . . . . . . . . . . . "even when the ocular evidence and medical evidence are at variance, the ocular evidence acquires primacy over the hypothetical evidence of the witnesses. Therefore, we are of the considered opinion that there is no scope whatsoever for invoking the principle of benefit of doubt. ( 38 ) YET, another contention is raised by the learned counsel for the appellant that no overtacts have been attributed to some of the accused and mere participation will not constitute unlawful assembly with acommon object to cause death of the deceased and therefore, Section 149 has no application. ( 38 ) YET, another contention is raised by the learned counsel for the appellant that no overtacts have been attributed to some of the accused and mere participation will not constitute unlawful assembly with acommon object to cause death of the deceased and therefore, Section 149 has no application. But, this aspect was also dealt with by the supreme Court in Gangadhar Behera v. State of Orissa and the Supreme Court observed in paras 23. 24 and 25 thus:"23. Another plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot sender a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of section 141. The word object means the purpose or design and, in order to make it common , it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression in prosecution of common object as appearing in Section 149 have to be strictly construed as equivalent to in order to attain the common object . It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. 24. common object is different from a common intention as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keepieng in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keepieng in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention orthe purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly, which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. 25. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result there from. Though no hard and fast rule can be laid down under the circumstances from which common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word knew used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of might have been known . Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence, which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases, which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keepieng in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keepieng in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention orthe purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly, which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. 25. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result there from. Though no hard and fast rule can be laid down under the circumstances from which common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or afte rthe scene of incident. The word knew used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of might have been know . Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence, which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases, which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. " it is established by the evidence that all the accused assembled at the house of the deceased No. 1 and they wee armed with axes and knives, they were proceeded in a group to commit the offences of murder in pursuance of common object. " it is established by the evidence that all the accused assembled at the house of the deceased No. 1 and they wee armed with axes and knives, they were proceeded in a group to commit the offences of murder in pursuance of common object. In Masaiti v. State of U. P. , the Supreme Court observed thus: "then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if 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. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. " even in State of U. P. v. Dan Singh, it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji v. State of u. P. ( (1989) 1 SCC 437 ), where it was observed that "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. Reference was made to Lalji v. State of u. P. ( (1989) 1 SCC 437 ), where it was observed that "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. Thus, we find that the accused formed themselves into an unlawful assembly with a common object of eliminating the entire Duru family. ( 39 ) THERE is also ample evidence to establish that the accused committed the offence under Sections, 302, 302 read with section 149 and 449 IPC and some of them also committed the offence punishable under section 307, 148, 324 and 452 IPC. Thus, we find that the prosecution has been able to bring home the guilt of the accused-Appellants beyond reasonable doubt and accordingly we do not find any illegality in the judgment of the learned Sessions Court. ( 40 ) IN the result, the appeals fail and dismissed.