Research › Search › Judgment

Bombay High Court · body

2005 DIGILAW 566 (BOM)

Santosh Devidas Behade v. State of Maharashtra

2005-04-26

D.D.SINHA, S.T.KHARCHE

body2005
D. D. SINHA, J.:- Heard Mr. Bapat, learned Counsel for the Appellants and Mr. Ahirkar, learned Additional Public Prosecutor for Respondent-State in Criminal Appeal NO.314 of 2001 and Mr. Daga, learned Counsel for the Appellants and Mr. Loney, learned Additional Public Prosecutor for the Respondent-State in Criminal Appeal No.346 of 2001. 2. Both the Criminal Appeals are directed against the common Judgment and Order, dated 03rd September, 2001, passed by Additional Sessions Judge, Pusad, in Sessions Trial No. WI of 1998 and 13 of 1999, whereby the appellants are convicted for the offence punishable under Section 147 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.500-00 each, in default of payment of fine, S.I., for three months. Similarly, the Appellants are also convicted for the offence punishable under Section 148 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.500-00 each, in default of payment of fine, S.I., for three months. All the Appellants I to 6 are also convicted for the offence punishable under Section 302, read with Section 149 of the Indian Penal Code and sentenced to suffer Imprisonment for Life and to pay a fine of Rs.1,000-00 each, in default of payment of fine, S.I., for six months. All the sentences are directed to run concurrently. 3. The prosecution case, in nutshell, is as follows: The Complainant - Chandrakalabai widow of Bharat Kharat was a resident of village Dharkanha. At the time of incident, she was residing with her husband - deceased Bharat Mukinda Kharat and two sons in the house situated in the field at village Dharkanha. It is the case of the prosecution that Shivcharan (P.W.6), son of the Complainant - Chandrakala (P.W.2) as well as Tanaji, son of Shakuntalabai, the keep of deceased Bharat and Shakuntalabai were residing in the said house. On the day of incident. Shakuntala was not present as she had gone to Pusad. At that time, work of uprooting the groundnut crop was in progress in the field of deceased Bharat and persons from village Londhari had been to his field for doing the said work. There was a pit dug in front of the house of Bharat for construction of one room. 4. At that time, work of uprooting the groundnut crop was in progress in the field of deceased Bharat and persons from village Londhari had been to his field for doing the said work. There was a pit dug in front of the house of Bharat for construction of one room. 4. On 07th June, 1998, at about 100 p.m., deceased Bharat and one Tulshiram Vadar had gone to Pus ad and returned home at about 7-00 p.m. After that, deceased Bharat started taking meal in his house and Tulshiram went to sleep in front of the house. After some time, at about 8-00 to 9-00 p.m., Namdev Tarpe came to the house of the complainant and told Bharat that persons from village Yehala were coming to beat him and he should run away from the spot, or release the dogs. When Bharat came out of the house, five to six persons encircled Bharat in the courtyard of his house and started beating him. They were armed with axes, sticks, Sabbals and beat Bharat with the said weapons. When Bharat was assaulted, he shouted for help and loudly said "Chandrakala, I am dying". The complainant - Chandrakala went to Tulshiram and awakened him. Tulshiram tried to rescue Bharat from the clutches of the accused; but the accused did not allow him to help the deceased. The complainant - Chandrakala thereafter went towards the persons of village Londhari and sat there along with her sons. The assailants also came there and threatened them not to disclose the incident and asked them to leave. The persons from village Londhari thereafter left the place. The accused persons also left the place. 5. The complainant Chandrakala along with her sons went near her husband deceased Bharat and noticed injuries on his person, who had already succumbed to those injuries on the spot. The complainant asked her son Shivcharan (P.W.6) the/names of the assailants. Shivcharan told her that the assailants were from village Yehala and gave their names as "Namdev Tarpe, Shamrao Behade, Subhash Behade, Santosh Behade, Sahebrao and one unknown person to whom he knew by face." 6. The complainant along with her sons thereafter sent to the house of Police Patil of village Dharkanha and narrated the incident. The complainant-stayed there for the night and on the next day, she went to Police Station, Pusad (Rural) and lodged a report. The complainant along with her sons thereafter sent to the house of Police Patil of village Dharkanha and narrated the incident. The complainant-stayed there for the night and on the next day, she went to Police Station, Pusad (Rural) and lodged a report. In the report, she mentioned the names of five accused persons and one unknown person. She also stated in the report that accused persons assaulted her husband because one year before the incident, there were murders of one Atmaram and Laxman of village Yehala and in the said crime, her husband deceased Bharat was arrested and, therefore, the assailants for taking revenge of the said murders, assaulted Bharat in the incident in question. 7. On the basis of the report lodged by the complainant, Police registered offences vide Crime No.66/98 under Sections 143, 147, 148, 149 and 302, read with Section 34 of the Indian Penal Code against Namdev and four others as well as against one unknown person. During the course of investigation, Spot Panchanama, Inquest Panchanama as well as Seizure Panchanama of weapons were drawn. The dead body of deceased Bharat was sent for post-mortem examination. Clothes of the accused were seized under separate Panchanama. Clothes of deceased Bharat were also seized under a Panchanama. The seized property was sent to Chemical Analyser for analysis. 8. During the course of investigation, Police issued a requisition letter to the Executive Magistrate for conducting Test Identification Parade. The Identification Parade was held in the Tahsil Office on 3rd August, 1998, in which witnesses Chandrakalabai and Shivcharan identified Accused No.4 - Mangal and Accused No.6 - Sudam. During investigation, Police also recorded statements of witnesses and after completion of investigation, Charge-sheet came to be filed against the Appellant Nos.1 to 6. Initially, accused Namdev was absconding and he was arrested on 12th January, 1999 and, therefore, a separate charge-sheet was filed against him. Two Sessions Cases were registered, namely Sessions Trial No.101 of 1998 against Original Accused Nos.1 to 6 and Sessions Trial No.13 of 1999 against accused Namdev. Charge came to be framed against the appellants. The same were explained and read over to them. The appellants denied the charge and claimed to be tried. The defence of the appellants was of denial. 9. Mr. Charge came to be framed against the appellants. The same were explained and read over to them. The appellants denied the charge and claimed to be tried. The defence of the appellants was of denial. 9. Mr. Daga, learned Counsel for the appellants, has contended that in the instant case the only material witnesses are Chandrakala (P.W.2) and Shivcharan (P.W.6), who are examined by the prosecution as eye-witnesses to the incident of assault. It is submitted that the testimony of Chandrakala (P.W.2) reveals that she was not knowing the assailants and their names were told to her by her son Shivcharan (P.W.6) and, therefore, her testimony does not connect the appellants with the crime in question. It is contended that the complainant in her testimony has specifically stated that her son told her the names of the appellants. It is further submitted that the alleged incident took place in the night and because of darkness, it was not possible either for Chandrakala (P.W.2), or for Shivcharan (P.W.6) to witness the incident of assault. In the instant case, the prosecution held Test Identification Parade only in respect of Appellants Sudam and Mangal, and not in respect of other appellants, even though they were not known to Chandrakala (P.W.2) and in absence thereof, the identity of the other appellants is not established by the prosecution. 10. Mr. Daga, learned Counsel for the Appellants, has further submitted that so far as evidence of Shivcharan (P.W.6) is concerned, he has only named Appellant Shamrao as an assailant in the crime in question. In Paragraph 2 of his deposition, he has specifically stated that the appellant Shamrao assaulted his father by a big stick on his head and gave two blows. This witness has not attributed any overt act in respect of other appellants. It is, therefore, submitted that the testimony of Shivcharan (P.W.6) only involves the appellant Shamrao and no other appellants in the crime in question. It is contended that the tenor of the testimonies of Chandra kala (P.W.2) and Shivcharan (P.W.6) shows that the appellant Shamrao alone is alleged to have assaulted deceased Bharat by a stick and all other appellants did not participate in the assault and there is also no specific role attributed to them by these eye-witnesses. It is submitted that the evidence of eye-witnesses is contrary to the medical evidence of Dr. (Mrs.) Meenal (P.W.S). It is submitted that the evidence of eye-witnesses is contrary to the medical evidence of Dr. (Mrs.) Meenal (P.W.S). It is contended that as per the versions of the prosecution witnesses, the incident of assault continued for half an hour and if the case of the prosecution is accepted, then all the appellants assaulted the deceased with weapons like axes, Bamboo sticks, Sabbals etc. However, the injury shown in Column 17 of the Post-mortem Report is only one, which not only falsifies the evidence of eye-witnesses, but creates a doubt about the authenticity of the entire prosecution case. 11. Mr. Daga, learned counsel, alternatively contended that in the instant case, even if it is presumed that the prosecution has established its case of murder, however, that is only against appellant Shamrao, who has been specifically named by Shivcharan (P.W.6) in his evidence, as a person who assaulted the deceased by a stick on his head. It is submitted that in the instant case, the appellants are convicted for the offence punishable under Section 302 of the Indian Penal Code with the aid of Section 149 of the Code. However, there is no evidence to show that other appellants, who were the members of the unlawful assembly, had shared the common object of killing Bharat with the appellant Shamrao. It is contended that even if it is presumed that the other appellants were present on the spot along with the appellant Shamrao, however, in absence of any specific overt act attributed to them, it is not possible to hold that they shared the common object of killing deceased Bharat with the appellant Shamrao and in absence of evidence in this regard, criminal liability for the offence punishable under Section 302 cannot be fastened on other appellants with the aid of Section 149 of the Code along with the appellant Shamrao and, therefore, the finding of conviction recorded by the Trial Court is unsustainable in law. In order to substantiate the contention, reliance is placed on the Judgment of the Supreme Court in case of Parsuram Pandey and others V s. State of Bihar reported in 2005 ALL MR (Cri) 796 (S.C.). Mr. Bapat, learned Counsel for the Appellants in Criminal Appeal No.314 of 2001, adopted the arguments advanced by Mr. Daga. 12. In order to substantiate the contention, reliance is placed on the Judgment of the Supreme Court in case of Parsuram Pandey and others V s. State of Bihar reported in 2005 ALL MR (Cri) 796 (S.C.). Mr. Bapat, learned Counsel for the Appellants in Criminal Appeal No.314 of 2001, adopted the arguments advanced by Mr. Daga. 12. Additional Public Prosecutors supported the Judgment and Order of conviction passed by the Trial Court, and contended that in the instant case, evidence of eye-witnesses, i.e. Chandrakala (P.W.2) and Shivcharan (P.W.6), is cogent and truthful and also consistent with the material particulars of the prosecution case. It is submitted that Chandrakala (P.W.2), in her testimony, has specifically stated that all the appellants assaulted her husband deceased Bharat by means of axes, Bamboo sticks etc. The testimony of this witness further demonstrates that though she was knowing the appellants, she was not aware of their names and, therefore, she asked her son Shivcharan the names of the assailants. Her testimony shows that her son Shivcharan told her the names of the appellants. It is contended that this witness was not knowing the accused Mangal and Sudam and, therefore, the prosecution held the Test Identification Parade, in which this witness has identified these two appellants. It is contended that the evidence of P.W.2 is cogent and consistent. 13. Additional Public Prosecutors further contended that so far as evidence of Shivcharan (P.W.6) is concerned, it is also truthful and consistent with the testimony of P.W.2 as well as material particulars of the prosecution case and evidence of both these eyewitnesses is corroborated by the medical evidence. It is submitted that in the instant case, there were as many as three wounds found on the person of deceased Bharat. Dr. Meenal (P.W.5), in her testimony, has specifically stated that the deceased suffered a fracture mandible left side, CLW right partialal of oxipittal region with brain matal protruding out and a fracture of right side rib. It is contended that the medical evidence is consistent with the prosecution case. Dr. Meenal (P.W.5), in her testimony, has specifically stated that the deceased suffered a fracture mandible left side, CLW right partialal of oxipittal region with brain matal protruding out and a fracture of right side rib. It is contended that the medical evidence is consistent with the prosecution case. Additional Public Prosecutors further contended that in the instant case, there is an evidence to show that all the appellants, armed with axes, Bamboo sticks etc., came together on the scene of occurrence and assaulted the deceased and, therefore, in the instant case, prosecution succeeded in proving the fact that all the appellants were the members of an unlawful assembly, which had a common object of killing Bharat and, therefore, each one of them is liable for punishment under Section 302 of the Indian Penal Code with the aid of Section 149 of the Code. In order to substantiate their contention, reliance is placed on the Judgment of the Apex Court in the case of Suresh and another Vs. State of U. P. (2001)3 SCC 673 : 2001 ALL MR (Cri) 1242 (S.C.)). 14. We have given our anxious thought to various contents canvassed by the respective counsel. In the instant case, though the prosecution has examined number of prosecution witnesses, however, the material evidence is of the complainant - Chandrakala (P.W.2), Shivcharan (P.W.6), Dr. (Mrs.) Meenal (P.W.S), who conducted the post-mortem examination on the dead body of deceased Bharat and Dnyaneshwar Raut (P.W.7), who conducted Identification Parade. 15. Chandrakala (P.W.2), in her Examination-in-Chief, has stated that on the day of the incident, her husband deceased Bharat had returned home along with one Tulshiram at about 7-00 p.m. Tulshiram went and slept in the courtyard of the house of this witness and her deceased husband was taking meal when Appellant - Namdev came to the house of this witness and told Bharat that persons from village Yehala were coming to beat him. It has tDme in the Examination-in-Chief of this witness that her husband came out of the house. At that time, six persons encircled him and started assaulting her husband by means of Bamboo sticks, Sabbals, axes etc., including the Appellant Namdev. This witness has further deposed that she immediately went to Tulshiram and woke him up and told him that some persons are assaulting her husband. At that time, six persons encircled him and started assaulting her husband by means of Bamboo sticks, Sabbals, axes etc., including the Appellant Namdev. This witness has further deposed that she immediately went to Tulshiram and woke him up and told him that some persons are assaulting her husband. Tulshiram tried to rescue her husband, but the persons, who were assaulting Bharat did not allow him to rescue deceased Bharat. It has come in the evidence of the complainant that she asked her son Shivcharan the names of the assailants and he told her the names of the assailants, i.e. Sham, Subhash, Sahebrao, Mangal, Sudam, Namdev, Santosh. This witness has specifically stated in her testimony that at the time of incident, there was an electric light burning in front of their house. This witness has stated in her testimony that after the appellants left the place, she went near her husband, who was lying dead on the spot and saw injuries on the head, face and other parts of the body. The complainant has stated in her testimony that she knew the accused persons, except accused Sudam and Mangal, whom she identified in the identification parade. This witness identified all the appellants in the Court as assailants. In the cross-examination of this witness, it has come that there was an electric light burning on the pole which was in the field of this witness and she saw the incident in the light of the electric bulb. The complainant, in her cross-examination, has admitted that when the assault was going on, on her husband, she did not intervene because she was frightened. This witness has also stated in the cross-examination that her son Shivcharan told the names of the appellants to her. After going through the entire cross-examination of this witness, defence could not get anything worthwhile to demolish her ocular testimony. The evidence of Chandrakala (P.W.2) does not suffer from any material contradictions or omissions. She being the wife of the deceased Bharat and the incident had taken place in the courtyard of the house of this witness, her presence on the spot of occurrence was most natural and her testimony is consistent with the material particulars of the prosecution case disclosed by her in the First Information Report. She being the wife of the deceased Bharat and the incident had taken place in the courtyard of the house of this witness, her presence on the spot of occurrence was most natural and her testimony is consistent with the material particulars of the prosecution case disclosed by her in the First Information Report. The testimony of this witness clearly demonstrates that at the relevant time, there was an electric light on the pole, which was in the field, where the house of this witness is located and she had witnessed the incident in the light of the electric bulb. Similarly, this witness has also identified the appellants in the Court as persons who assaulted her husband deceased Bharat and, therefore, the contention canvassed by the learned Counsel Mr. Daga in this regard is devoid of substance and misconceived. 16. Shivcharan is another eye-witness examined by the prosecution in the present case. It has come in the testimony of this witness that on the day of the incident, his father deceased Bharat and Tulshiram had gone to Pusad and returned home in the evening. Tulshiram went to sleep and Bharat was taking his meal inside his house. At about 9-00 p.m., the accused Namdev yame there and told Bharat that boys from Yehala were coming for assaulting him. Bharat came out of the house. At that time, five to six persons came from behind the house and started assaulting Bharat. This witness has specifically stated that all of them were armed with sticks, axes, Sabbals etc.. Due to assault, deceased Bharat fell down on the ground. This witness has specifically stated that the Appellant - Namdev also assaulted his father Bharat. This witness identified all the appellants in the Court as assailants and also deposed that accused Shamrao assaulted his father by a big stick on his head. It has come in the Examination-in-Chief of this witness that on the day of incident, he was knowing five accused by their names. Those are Shamrao Behre, Santosh Behare, Subhash Behere and Namdev Tarpe, and in the Identification Parade, he identified accused Mangal and Sudam. It has come in the Examination-in-Chief of this witness that on the day of incident, he was knowing five accused by their names. Those are Shamrao Behre, Santosh Behare, Subhash Behere and Namdev Tarpe, and in the Identification Parade, he identified accused Mangal and Sudam. In the cross-examination hold that they shared the common object of killing deceased Bharat with the appellant Shamrao and in absence of evidence in this regard, criminal liability for the offence punishable under Section 302 cannot be fastened on other appellants with the aid of Section 149 of the Code along with the appellant Shamrao and, therefore, the finding of conviction recorded by the Trial Court is unsustainable in law. In order to substantiate the contention, reliance is placed on the Judgment of the Supreme Court in case of Parsuram Pandey and others V s. State of Bihar reported in 2005 ALL MR (Cri) 796 (S.C.). Mr. Bapat, learned Counsel for the Appellants in Criminal Appeal No.314 of 2001, adopted the arguments advanced by Mr. Daga. 12. Additional Public Prosecutors supported the Judgment and Order of conviction passed by the Trial Court, and contended that in the instant case, evidence of eye-witnesses, i.e. Chandrakala (P.W.2) and Shivcharan (P.W.6), is cogent and truthful and also consistent with the material particulars of the prosecution case. It is submitted that Chandrakala (P.W.2), in her testimony, has specifically stated that all the appellants assaulted her husband deceased Bharat by means of axes, Bamboo sticks etc. The testimony of this witness further demonstrates that though she was knowing the appellants, she was not aware of their names and, therefore, she asked her son Shivcharan the names of the assailants. Her testimony shows that her son Shivcharan told her the names of the appellants. It is contended that this witness was not knowing the accused Mangal and Sudam and, therefore, the prosecution held the Test Identification Parade, in which this witness has identified these two appellants. It is contended that the evidence of P.W.2 is cogent and consistent. 13. Additional Public Prosecutors further contended that so far as evidence of Shivcharan (P.W.6) is concerned, it is also truthful and consistent with the testimony of P.W.2 as well as material particulars of the prosecution case and evidence of both these eyewitnesses is corroborated by the medical evidence. It is contended that the evidence of P.W.2 is cogent and consistent. 13. Additional Public Prosecutors further contended that so far as evidence of Shivcharan (P.W.6) is concerned, it is also truthful and consistent with the testimony of P.W.2 as well as material particulars of the prosecution case and evidence of both these eyewitnesses is corroborated by the medical evidence. It is submitted that in the instant case, there were as many as three wounds found on the person of deceased Bharat. Dr. Metnal (P.W.S), in her testimony, has specifically stated that the deceased suffered a fracture mandible left side, CLW right partialal of oxipittal region with brain matal protruding out and a fracture of right side rib. It is contended that the medical evidence is consistent with the prosecution case. Additional Public Prosecutors further contended that in the instant case, there is an evidence to show that all the appellants, armed with axes, Bamboo sticks etc., came together on the scene of occurrence and assaulted the deceased and, therefore, in the instant case, prosecution succeeded in proving the fact that all the appellants were the members of an unlawful assembly, which had a common object of killing Bharat and, therefore, each one of them is liable for punishment under Section 302 of the Indian Penal Code with the aid of Section 149 of the Code. In order to substantiate their contention, reliance is placed on the Judgment of the Apex Court in the case of Suresh and another Vs. State of U. P. (2001)3 SCC 673 : 2001 ALL MR (Cri) 1242 (S.C.)). 14. We have given our anxious thought to various contents canvassed by the respective counsel. In the instant case, though the prosecution has examined number of prosecution witnesses, however, the material evidence is of the complainant - Chandrakala (P.W.2), Shivcharan (P.W.6), Dr. (Mrs.) Meenal (P.W.S), who conducted the post-mortem examination on the dead body of deceased Bharat and Dnyaneshwar Raut (P.W.7), who conducted Identification Parade. 15. In the instant case, though the prosecution has examined number of prosecution witnesses, however, the material evidence is of the complainant - Chandrakala (P.W.2), Shivcharan (P.W.6), Dr. (Mrs.) Meenal (P.W.S), who conducted the post-mortem examination on the dead body of deceased Bharat and Dnyaneshwar Raut (P.W.7), who conducted Identification Parade. 15. Chandrakala (P.W.2), in her Examination-in-Chief, has stated that on the day of the incident, her husband deceased Bharat had returned home along with one Tulshiram at about 7-00 p.m. Tulshiram went and slept in the courtyard of the house of this witness and her deceased husband was taking meal when of this witness, it has come that he had disclosed the names of the assailants to his mother Chandrakala (P.W.2), since his mother was not knowing their names. It has also come in the cross-examination of this witness that the distance between the place where Tulshiram was sleeping and his father was assaulted was about 20 to 30 feet and since his father came out of the house, assailants started assaulting him in the door itself. Initially, two to three persons gave blows of sticks to his father and he fell down on the ground. His mother and brother did not try to rescue his father. This witness has specifically stated in his cross-examination that till his father fell down, he was present on the spot. It has also come in the cross-examination of this witness that he cannot tell how many blows were given to his father by the assailants. The assault was going on for half an hour. His father was assaulted till his death. The close scrutiny of the cross-examination of this witness demonstrates that all the material particulars of the prosecution case disclosed by this witness in the Examination-in-Chief are reaffirmed in his cross-examination, which renders his testimony cogent and truthful. There are no omissions and contradictions of a material nature and the testimony of this witness is also consistent with the evidence of other eyewitness Chandrakala (PW-2). This witness has also identified all the appellants in the Court as persons who assaulted his father with sticks, axes, Sabbals etc. Similarly, in the Identification Parade, this witness has also identified the accused Mangal and Sudam. 17. It is, no doubt, true that Chandrakala (PW-2) and Shivcharan (PW-6) are closely related to the deceased Bharat. This witness has also identified all the appellants in the Court as persons who assaulted his father with sticks, axes, Sabbals etc. Similarly, in the Identification Parade, this witness has also identified the accused Mangal and Sudam. 17. It is, no doubt, true that Chandrakala (PW-2) and Shivcharan (PW-6) are closely related to the deceased Bharat. However, it is well settled that testimony of a witness cannot be discarded only on the ground that he or she is closely related to the deceased being an interested witness, if his/her evidence is otherwise truthful, cogent and consistent with the material particulars of the prosecution case and is also corroborated by other evidence. The contention of Mr. Daga, learned Counsel for the Appellants, in this regard, in our considered view, is misconceived and devoid of substance. In the instant case, in our view, the presence of both these eye-witnesses at the spot of occurrence is most natural and their testimonies are not only consistent with each other, but also consistent with the material particulars of the prosecution case and, therefore, their evidence is truthful and cogent. 18. The medical evidence of Dr. (Mrs.) Meenal (PW-5) demonstrates that she performed post-mortem on the dead body of deceased Bharat on 8th June, 1998 and found following three injuries : "1) Fracture mandible left side. 2) CLW right partialal of Oxipital region with brain matal protruding out. 3) Fracture rib right side." On internal examination, Dr. Meenal found following injuries : "CLW right parito oxipital region with brain matter protruding out. Fracture of right parital bone. Blood was present in injury No.3. Thorax: right side rib fracture." According to Dr. Meenal, the probable cause of death was cardio-respiratory arrest because of neurovaxcular shock on account of head injury and fractured skull. The doctor has also opined that the injuries caused to the deceased were possible by sticks, axe, wooden logs, Sabbal etc. The medical evidence, in our view, completely corroborates all the material particulars of the prosecution case disclosed by the eye-witnesses as well as mentioned in the First Information Report lodged by Chandrakala [PW-2]. The contention of Mr. Daga that in Column No.17 of the Post-mortem Report, the doctor has mentioned only one injury sustained by the deceased is completely incorrect. The medical evidence, in our view, completely corroborates all the material particulars of the prosecution case disclosed by the eye-witnesses as well as mentioned in the First Information Report lodged by Chandrakala [PW-2]. The contention of Mr. Daga that in Column No.17 of the Post-mortem Report, the doctor has mentioned only one injury sustained by the deceased is completely incorrect. On the other hand, in Column No.17, the doctor has specifically mentioned three injuries suffered by the deceased, which are also reiterated by Dr. Meenal in her substantive evidence before the Court. In view of the ocular testimony of Dr. Meenal, coupled with the Post-mortem Report, the contention canvassed by Mr. Daga in this regard is devoid of substance and is rejected. 19. In the instant case, the evidence of Dnyaneshwar Raut [PW -7] demonstrates that at the relevant time, he was a Naib-Tahsildar and on 3rd August, 1998, he held Identification Parade in the Tahsil Office, Pusad, and in the said Identification Parade, Chandrakala [PW2] and Shivcharan [PW-6] identification appellants Mangal and Sudam. The testimony of this witness reveals that the procedure adopted by this witness for holding Identification Parade was just and proper and, therefore, the identification made by the eyewitnesses is also sustainable-in-law. However, in the instant case, since Chandrakala [PW-2] and Shivcharan [PW-6] identified all the appellants in the Court as assailants, which is a valid identification sustainable-in-law, in fact, there was no need for the prosecution to hold a separate identification parade even in respect of appellants Mangal and Sudam and identification of appellants as assailants by the eye-witnesses in the Court is sustainable-in-law and, therefore, the contention canvassed by Mr. Daga, learned Counsel for the Appellants, in this regard, is also devoid of substance. 20. In the instant case, the testimonies of eye-witnesses, coupled with the medical evidence as well as identification of appellants as assailants by the witnesses in the Court, in our view, proves that the appellants were responsible for causing injuries to the deceased. However, whether all the appellants can be fastened with the criminal liability for the offence of murder with the aid of section 149 of the India Penal Code needs to be considered on the basis of the evidence on record. The Apex Court in Paragraph 11 of its Judgment in case of Parsuram Pandey and Ors. However, whether all the appellants can be fastened with the criminal liability for the offence of murder with the aid of section 149 of the India Penal Code needs to be considered on the basis of the evidence on record. The Apex Court in Paragraph 11 of its Judgment in case of Parsuram Pandey and Ors. [2005 ALL MR (Cri) 796 (S.C.)] (cited supra) has observed thus : "11. By virtue of Section 149, IPC every member of an unlawful assembly at the time of the commission of the offence is guilty of an offence committed by any member of the unlawful assembly. The section creates constructive or vicarious liability of the members of the unlawful assembly for unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly. In a case under Section 149 the accused if is a member of the unlawful assembly, the common object of which is to commit a certain crime and if that crime is committed by one or more members of that assembly every person who happened to be a member of that assembly would be liable for that criminal act by virtue of his being a member of it, irrespective of the fact whether he actually committed the act or not. To attract Section 149 of the IPC the prosecution must prove that the commission of the offence was by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew that it was likely to be committed. Unless these three elements are satisfied by the prosecution the accused cannot be convicted with the aid of section." The above referred observations of the Apex Court make it evident that before fastening the criminal liability with the aid of Section 149 of the Code, it is for the prosecution to prove that though the offence is committed by any member of an unlawful assembly, however, such offence must have been committed in prosecution of the common object of the assembly and members of the assembly knew that it was likely to be committed. In the instant case, prosecution evidence demonstrates that all the appellants, armed with weapons like axes, Bamboo sticks, wooden logs, Sabbals etc., came together and started assaulting deceased Bharat by their respective weapons and the assault continued till deceased Bharat succumbed on the spot to the injuries sustained by him. The participation of all the appellants in the act of assault on Bharat and continuation of the attack till he died clearly demonstrates that the common object of the unlawful assembly was to commit murder of deceased Bharat and with this common object in mind, all the appellants participated in the assault and continued the same till Bharat died on the spot and, therefore, in the present case, the prosecution succeeded in proving the fact that all the appellants not only knew the common object of the unlawful assembly of murdering Bharat, but also assaulted the deceased with that object in mind and, therefore, the prosecution succeeded in proving the ingredients of Section 149 of the Code. Consequently, the conviction awarded by the Trial Court under Section 302 with the aid of Section 149 of the Indian Penal Code is sustainable in law. 21. So far as the facts.in case of Parsuram Pandey and others [2005 ALL MR (Cri) 796 (S.C.)] (supra) are concerned, those facts are entirely different than the facts involved in the case in hand. In the said case, accused Raghunath Pandey was armed with rifle and other co-accused persons, who were carrying guns and spears, did not use their weapons and it is only Raghunath Pandey who opened fire at Kanhaiya Pandey. As a result thereof, he received two gunshot injuries from the weapon used by Raghunath Pandey. Neither the co-accused Parsuram Pandey, nor the co-accused Bishram Pandey used their guns to fire at Kanhaiya Pandey, Bharat Pandey or Birender Pandey and were only standing nearby and, therefore, the conviction awarded to Parsuram Pandey and Bishram Pandey under Section 302 with the aid of Section 149, Indian Penal Code, was set aside and appeal of appellant Raghunath was dismissed and his sentence was maintained. However, in the instant case, we have already observed that the evidence of the prosecution clearly demonstrates that the appellants have not only participated in the assault on deceased Bharat, but also continued the attack till Bharat died on the spot and, therefore, in view of the facts and circumstances of the present case, the conviction awarded by the Trial Court for the offence punishable under Section 302 against the Appellants with the aid of Section 149 of the Code as well as under Sections 147, 148 of Indian Penal Code is just and proper and sustainable- in-law. For the reasons stated herein above, the Appeal suffers from lack of merit and is dismissed.