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2005 DIGILAW 690 (PAT)

Ramashankar Singh v. State Of Bihar

2005-08-04

CHANDRAMAULI KR.PRASAD, SYED MD.MAHFOOZ ALAM

body2005
Judgment Chandramauli Kr.Prasad, J. 1. Both the appeals arise out of the same judgment and as such, they were heard together and are being disposed of by this common judgment. 2. Being aggrieved by and dissatisfied with the judgment dated 24.8.2001 passed by the 4th Additional Sessions Judge, Sitamarhi in Sessions Trial No. 167 of 1995 holding the appellants guilty of offence under section 302/149 and 148 of the Indian Penal Code and further holding appellant Dharkan Singh guilty of offence under section 302/109 of the indian Penal Code and sentence to undergo rigorous imprisonment for life for offence under section 302/149 and 302/109 of the Indian Penal Code and three years for offence under section 149 of the Indian Penal Code, the appellants have preferred these appeals. Besides the substantive sentence the appellants have also been directed to pay fine of Rs. 5000/- for offence under section 302/149 of the Indian Penal Code and in default to pay the fine, to suffer rigorous imprisonment for two years. Sentences were directed to run concurrently. As appellant Dharkan Singh was sentenced to undergo rigorous imprisonment for life under section 302/149 of the Indian Penal Code, the learned Judge did not award separate sentence under section 302/109 of the Indian Penal Code. 3. The prosecution started on the basis of a report given by P.W. 12 Badri Singh before the Sub-Inspector of Police of Sheohar Police Station on 21.1.1995 at 9.15 P.M. stating therein that on 21.1.1995 at 6.45 P.M. while his villagers, namely, Brahma Singh (P.W. 1), Nagina Singh (P.W. 2), Ram Vivek Singh (P.W. 3) and Pramod Singh (P.W. 5) were around the fire place to save themselves from the cold, they saw his brother deceased Surendra Singh going towards Ojha Tola for getting medicine and the moment he reached in front of the house of Dharkan Singh, appellant Dharkan Singh exhorted. Hearing this, according to the first informant, he alongwith other persons sitting around the fire place, came there and found that appellant no. 1 Rama Shankar Singh (in Cr. Appeal No. 507/2001) armed with Farsa caught hold of Surendra Singh and dragged him in side the court-yard of the house of appellant no. 9 Sarvjit Singh (Cr. Appeal No. 507/2001). 4. According to the report, appellant no. 1 Rama Shankar Singh, appellant no. 5 Bhagya Narain Singh, appellant no. 7 Tej Narain Singh and appellant no. Appeal No. 507/2001) armed with Farsa caught hold of Surendra Singh and dragged him in side the court-yard of the house of appellant no. 9 Sarvjit Singh (Cr. Appeal No. 507/2001). 4. According to the report, appellant no. 1 Rama Shankar Singh, appellant no. 5 Bhagya Narain Singh, appellant no. 7 Tej Narain Singh and appellant no. 8 Dharkan Singh (in Cr. Appeal No. 507/2001) and the sole appellant Hari Narain Singh (in Cr. Appeal No. 509/2001) armed with Farsa, appellant no. 2 Sanjay Singh armed with Tangi and appellant no. 3 Narendra Singh, appellant no. 4 Rajan Singh, appellant no. 6 Bishwanath Singh and appellant no. 9 Sarvjit Singh armed with Bhala arrived there and started assaulting Surendra Singh and dragged him in side the court-yard of appellant Sarvjit Singh. According to the first information report, when he alongwith other witnesses saw the brutal assault on Surendra Singh, raised alarm whereupon villagers rushed there and all the appellants fled away from behind the house of Sarvjit Singh, Surendra Singh was found lying in a pool of blood in unconscious condition and the informant alongwith the help of others, put him on a tyre-cart and proceeded for treatment to the Sub-Divisional Hospital but in the way, he succumbed to the injuries. The motive of the offence according to the first information report is pendency of litigations between the family of the informant and the accused persons. The informant alongwith other witnesses, went to the Police Station and gave the report on 21.1.1995 at 9.15 p.m. and on that basis, Sheohar RS. Case No. 4/95 was registered under Sections 147, 148, 149, 341, 323, 324, 307, 302 and 504 of the Indian Penal Code. 5. The police, after investigation, submitted charge-sheet and ultimately, appellants were put on trial and charged for committing the offence of murder in prosecution of the common object punishable under sections 302/149 of the Indian Penal Code and committing riot armed with deadly weapon punishable under section 148 of the Indian Penal Code. Appellant Dharkan Singh has further been charged for abetment of murder punishable under section 302/109 of the Indian Penal Code. 6. Appellants denied to have committed any offence and their plea is of false implication due to enmity. Appellant Dharkan Singh has further been charged for abetment of murder punishable under section 302/109 of the Indian Penal Code. 6. Appellants denied to have committed any offence and their plea is of false implication due to enmity. From the trend of the cross-examination of the prosecution witnesses and their own witnesses, their defence further is that the deceased Surendra Singh entered the house of appellant Sarvjit Singh and tried to outrage the modesty of his wife, namely, Mamta Devi who shouted for help upon which the villagers assembled and assaulted him. 7. The prosecution, in support of its case, has altogether examined 15 witnesses whereas the appellants, in order to establish its defence, have examined Mamta Devi as D.W. 1 and Ram Babu Sah as D. W. 2 who had proved the report given by Ram Shankar Singh. 8. P.W. 1 Brahma Singh, P.W. 2 Nagina Singh, P.W. 3 Ram Vivek Singh, P.W. 5 Pramod Kumar Singh, P.W. 12 Badri Singh claim to be the eye witnesses to the occurrence. P.W. 12 Badri Singh is the informant of the case also. P.W. 4 Jaga Singh alias Jagat Narain Singh is a hearsay witness whereas P.W. 6 Rajendra Singh, P.W. 7 Jaylal Mahto alias Sublal Mahto, P.W. 8 Mahavir Ram, P.W. 9 Yogi Singh, and P.W. 10 Chalitar Ram have been tendered. P.W. 11 Vinod Kumar Singh is a witness to the seizure, whereas P.W. 13 Harikesh Pandey is the Investigating Officer of the case. P.W. 14 Dr. Madan Mohan Thakur is the Medical Officer, who conducted the autopsy of the dead body of the deceased Surendra Singh and proved the Post Mortem Report (Ext. 6). P.W. 15 Brajesh Kumar Mishra is the Assistant Jailor of Sitamarhi Jail, where the appellants were lodged. 9. P.W. 1 Brahma Singh in his deposition has stated that while he alongwith P. W. 2 Nagina Singh, P.W. 3 Ram Vivek Singh and P.W. 12 Badri Singh were sitting around a fire place in front of the house of Badri Singh, he saw the deceased Surendra Singh going towards Ojha Tola for purchasing the medicine for his son and no sooner he reached in front of the house of appellant Dharkan Singh, latter, ordered to apprehend him, whereupon Surendra Singh raised alarm. Hearing the alarm, according to this witness, he and other persons ran towards the house of Dharkan Singh and saw appellants Rama Shankar Singh, Dharkan Singh, Bhagya Narain Singh, Tej Narain Singh, Ha Narain Singh armed with Farsa, appellant Sanjay Singh armed with Tangi (axe) and appellants Narendra Singh, Rajan Singh, Viswanath Singh, Sarvjit Singh and Indrajit Singh armed with Bhaia had caught hold Surendra Singh and were dragging him towards the court-yard of the house of appellant Sarvjit Singh. According to this witness, he alongwith other persons also entered into the court-yard and saw appellants assaulting Surendra Singh with the weapons in their hands in the verandah of the court-yard. This witness has further stated that he identified the assailants from the flash of the torch held by P.W. 12 Badri Singh and the lantern which was in the court-yard. According to this witness, he along with other witnesses raised alarm whereupon the villagers assembled and the appellants fled away from behind the house According to this witness Surendra Singh was put on a tyre-cart and was being taken to Sadar Hospital but he succumbed to the injuries in the way. He has further stated in his evidence that P.W. 12 Badri Singh gave report to the police on the basis of which the first information report was registered and he had signed the statement given by Badri Singh as witness. He has proved his signature on the first information report. He is witness to the inquest report and has proved his signature on the inquest report, which is Ext. 1/1. He is also a witness to the seizure of three cell torch by the Investigating Officer during the course of investigation from the informant and has proved his, signature in the seizure list. 10. P.W. 2 Nagina Singh has also supported the case of the prosecution and stated that while he alongwith other witnesses were in front of the house of Badri Singh, he saw deceased Surendra Singh going towards Ojha Tola and when he reached in front of the house of appellant Dharkan Singh, latter ordered to catch hold of him, whereupon this witness rushed towards the house of Dharkan Singh and saw the appellants armed with farsa, Tangi and Bhala in the torchlight of Badri Singh. According to this witness he was the appellants dragging the deceased towards the court-yard of Sarvjit Singh and assaulting him in the verandah of the court-yard by Farsa Tangi and Bhala, According to this witness, on nulla, villagers came and then the appellants fled away from the place of occurrence. According to this witness, while Surendra Singh was on way to the Sadar Hospital, he succumbed to his injuries. This witness had emphasised that he had identified the appellants from the lantern which was hanging in the verandah of the court-yard and in the torchlight flashed by Badri Singh. 11. P.W. 3 Ram Vivek Singh and P. W. 5 Pramod Kumar Singh also claim to be the eye witnesses to the occurrence and have supported the prosecution case and their evidence is similar to what have been stated by P.W. 1, Brahama Singh and P.W. 2 Nagina Singh. They had deposed that they had seen the incident in the light of the lantern hung on the verandah of her court-yard and the torch. They have categorically stated that the appellants assaulted and dragged Surendra Singh to the court yard of Sarvjit Singh and assaulted him at its verandah by the weapons in their hands and on the arrival of the villagers on hulla, they fled away from the place of occurrence. They have also reiterated that the deceased died in the way while he was being taken to Sadar Hospital. 12. P.W. 5 Pramod Kumar Singh besides the aforesaid, has also stated about the production of three cell torch before the Investigating Officer during the course of investigation. 13. P.W. 12 Badri Singh is the informant of the case and also brother of the deceased Surendra Singh. According to this witness, on 21.1.1995 at 6.45 p.m., he alongwith aforesaid eye witnesses were sitting together around the fire place at his house, he saw his brother Surendra Singh going towards Ojha Tola for purchasing medicine and when he reached in front of the house of Dharkan Singh, he challenged and ordered to apprehend Surendra Singh. According to this witness, on 21.1.1995 at 6.45 p.m., he alongwith aforesaid eye witnesses were sitting together around the fire place at his house, he saw his brother Surendra Singh going towards Ojha Tola for purchasing medicine and when he reached in front of the house of Dharkan Singh, he challenged and ordered to apprehend Surendra Singh. According to this witness, he and other persons sitting alongwith him rushed and saw appellant Rama Shankar Singh, Bhagya Narain Singh, Tej Narain Singh, Hari Narain Singh, Dharkan Singh armed with Farsa, appellants Raj Narain Singh, Vishwanath Singh, Narendra Singh, Sarvjit Singh, Indrajit Singh armed with Bhala and appellant Sanjay Singh armed with Tangi, dragging the deceased towards the court-yard of Sarvjit Singh and assaulting him with their respective weapons. According to this witness, on hulla, the villagers came and appellants fled away. According to his deposition, he identified the appellants in the torchlight and lantern which were hanging in the court-yard. During the course of investigation, he has produced the torch which was seized and has been marked as Ext. 1. This witness has further stated that Surendra Singh died on way, while he was being taken to Sadar Hospital. 14. RW. 14 Dr.M.M. Thakur, who had conducted the Post Mortem Examination on the dead body of the deceased Surendra Singh, has found the following ante mortem injuries: 1. Sharp cut wound on the left side of chin size 2" x 1/2" bone deep, 2. Sharp cut wound on the right side of neck two in number (a) 6" x 1" visceral deep (all structures on neck including trachea cut) (b) Sharp cut wound below injury no. (a) size 4" x 1/2" x muscle deep, 3. Sharp cut wound over right cheek two in number (a) 3" x 1/4" x muscle deep, (b) 2.1/2" x 1/2" x muscle deep, 4. Incised wound over right side of forehead, size 2" x 1/4" x muscle deep, 5. Incised wound in the middle of forehead size 1" x 1.1/4" x skin deep, 6. Incised wounds three in number on the occipital parietal region of head on the right side (a) 2, 1/2" x 1/4" x scalp deep, (a) 3" x 1/4" x scalp deep (c) 2" x 1/4" x scalp deep. 7. Lacerated wound on the base of right hand size 1. 1/2" x 1/2" x muscle deep, 8. Incised wounds three in number on the occipital parietal region of head on the right side (a) 2, 1/2" x 1/4" x scalp deep, (a) 3" x 1/4" x scalp deep (c) 2" x 1/4" x scalp deep. 7. Lacerated wound on the base of right hand size 1. 1/2" x 1/2" x muscle deep, 8. Lacerated wound on the dorsal aspect of the right hand of varying sizes, 9. Sharp cut wound on the upper part of right ankle joint size 3" x 1. 1/2" x muscle deep, 10. Penetrating wound in front of chest size: (a) 1/2" x 1/8" x visceral deep (b) 1/3" x 1/4" x visceral deep 11. Lacerated wound on right iliac Fosha of 1.1/2" x 1/4" x skin deep. 15. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of injuries, specially injuries on the neck and heart. He has also opined that injury nos. 1 to 6 and 9 were caused by sharp cutting weapon such as Tangi, Farsa and Bhala and injury nos. 7. 8 and 11 by hard blunt substance which may be by blunt portion of sharp cutting weapon and injury no. 10 is by sharp pointed weapon such as Bhala. 16. Mr. Rana Pratap Singh, Senior Advocate appears on behalf of the appellants in Cr. Appeal No. 507 of 2001 whereas Mr. A.K. Tarun. represents the appellant of Cr. Appeal No. 509 of 2001. 17. Mr. Singh contends that all the material witnesses are related to each other and further they are related to the informant and the deceased and on this ground alone, their evidence is fit to be discarded. In this connection, he has drawn my attention to the evidence of P.Ws. 1, 2, 3 and 12 wherein they have admitted their agnatic relationship with the informant, the deceased and each other. 18. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however, appearing on behalf of the State, submits that the aforesaid witnesses are the natural witnesses to the occurrence and their evidence cannot be discarded on the ground of relationship. 19. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh. Aforesaid witnesses are the residents of the same village where the occurrence had taken place and their assembly around the fire place during winter is expected. 19. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh. Aforesaid witnesses are the residents of the same village where the occurrence had taken place and their assembly around the fire place during winter is expected. Hence, they are the natural witnesses to the occurrence and their evidence is not fit to be discarded only on the ground of relationship. In such circumstances, the court is required to appraise the evidence of the witnesses with due care and caution and in case, it stand the scrutiny, conviction can be based on the evidence of related witnesses. Hence, I am not inclined to discard the evidence of all these witnesses only on the ground that they are related. 20. Mr. Singh contends that in the first information report the means of identification, i.e., torch or the lantern has not been stated and as such, the witnesses later on saying that they have recognised the appellants in the torchlight and the lantern, is not fit to be accepted. He points out that the prosecution has introduced this story later on to bring home the charges. 21. Mr. Prasad, however, contends that the first information report is not an encyclopaedia and merely the fact that the informant, in his report, had not stated about the torchlight itself, shall not go to suggest that in fact there was no means of identification. 22. I do not find any substance in this submission of Mr. Singh also. P.W. 12 Badri Singh, the informant, has stated in his evidence that in fact the torch which was one of the means of identification, was seized by the Investigating Officer during the course of investigation. RW. 13 Harikesh Pandey, the Investigating Officer of the case had stated in his evidence that on the very date of the occurrence when he visited the village, the informant Badri Singh produced the torch in working condition which was seized and handed over to him on surety. The Investigating Officer had proved the seizure-list (Ext. 4) and the document giving possession of the torch to the informant in surety (Ext. 5) during the course of the trial. The informant had produced the torch during the trial as material exhibit. The Investigating Officer had proved the seizure-list (Ext. 4) and the document giving possession of the torch to the informant in surety (Ext. 5) during the course of the trial. The informant had produced the torch during the trial as material exhibit. All the witnesses have consistently stated that they had identified the appellants from the torchlight of the inform- ant as also the lantern hanging on the verandah of the court-yard and in such circumstances, it cannot be held that the eye witnesses had no means of identification. 23. Mr. Singh then submits that even if the existence of torchlight and the lantern is found, their light is not sufficient in which the appellants could have been identified. I do not find any substance in this submission of Mr. Singh also. It is neither the case of the prosecution nor of the appellants that they are strangers to each other. In fact, they are known to each other and as such, their claim for identification in the torchlight and the lantern cannot be disbelieved only on the ground that by its nature, the torchlight and lantern, do not provide sufficient light. Ail the eye witnesses to the occurrence come from the village and, therefore, tune to the life-style of the village where torch and the lantern are the sources of light. While appreciating the evidence of such witnesses, their capacity to identify in torchlight and lantern cannot be compared with that of the urban people who are acclimatised to fluorescent lights. The visible capacity of the witnesses coming from the village is conditioned to lights from torch and lantern and hence, their claim that they had identified the assailants in the torchlight and the lantern cannot be discarded on the ground that the light was too meagre to identify the participants of the crime. The view which I have taken, finds support from the judgment of the Supreme Court in the case of Kalika Tiwari & Anr. vs. State of Bihar (1997)4 SCC 445 in which it has been observed as follows: "16. The learned counsel for the appellants pointed out from evidence that the only light then available for PW 1 Sanfula Devi was an earthen lamp burning inside the room. On that score he contended that the said light was too meagre to identify the participants of the crime. The learned counsel for the appellants pointed out from evidence that the only light then available for PW 1 Sanfula Devi was an earthen lamp burning inside the room. On that score he contended that the said light was too meagre to identify the participants of the crime. The visibility capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optica! potency is attuned to country-made lamps. Their visibility is conditioned to such lights and hence it would be quite possible for them to identify man and matters in such light. A similar view has been adopted by this Court in Machhi Singh vs. State of Punjab. For that reason we are not impressed by the argument that the light from earthen lamps would not have been sufficient for these witnesses to identify the assailants." 24. Reference can be made to a decision of the Supreme Court in the case of Ram Gulam Choudhary & Ors. vs. State of Bihar 2001 SCC (Cri) 1546, in which it has been held as follows: "34. We see no substance in this submission also. It must be remembered that the incident had taken place in a village. As has been held by this Court in the case of Kalika Tiwari vs. State of Bihar, the visibility capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country-made lamps. It has been held that the visibility of villagers is conditioned to such lights and hence it would be quite possible for them to identify men and matters in such light. Also the appellants were from the same village and were known to P. W. 3 and P. W. 4." 25. Mr. Singh contends that according to the evidence of the prosecution witnesses, independent witnesses came at the place of occurrence but failure on part of the prosecution to examine them clearly goes to suggest that it wanted to conceal the real fact and a such, the appellants are entitled to be given the benefit of doubt. In this connection, he has drawn my attention to the evidence of the eye witnesses. Mr. In this connection, he has drawn my attention to the evidence of the eye witnesses. Mr. Singh is right when he contends that many persons had assembled at the place of occurrence but they have not been examined. The question, therefore, is as to whether non-examination of each and every witness shall itself create doubt in regard to the veracity of the prosecution case. I am of the opinion that it is the quality of the evidence which is material and not the quantity. Multiplying the number of witnesses itself do not give credence to the case of the prosecution or vice-versa. There may be a case in which the evidence of few witnesses or even a single witness if fit to be relied on, conviction can be based. Hence, in my opinion, mere non-examination of the persons collected at the place of occurrence itself, shall not render the case of the prosecution doubtful. 26. Mr. Singh points out that according to the prosecution, the motive for the occurrence is the litigation between the prosecution party and the appellants but nothing had happened on the date of occurrence and as such, there was no imme- diate cause for the appellants to commit the crime. I do not find any substance in the submission of the learned counsel. It is often said, motive is always in the mind of the assailant and mere its absence shall not discredit the case of the prosecution. Here, in the present case, litigation is pending between the appellants on one side and the prosecution on the other side and as such, the case of the prosecution is not fit to be discarded only on the ground that nothing happened on the date of occurrence. 27. Mr. Singh points out that accord- ing to the eye witnesses itself, no specific overt act has been alleged against any of the appellants and there is general and omnibus allegation against them. He con- tends that no specific role having been attributed to them, their conviction with the aid of Section 149 of the Indian Penal Code is illegal. 28. Mr. Prasad, however, contends that for conviction with the aid of Section 149 of the Indian Penal Code, overt act is not necessary. The rival contention necessitates examination of Section 149 of the Indian Penal Code which reads a fol- lows: "149. 28. Mr. Prasad, however, contends that for conviction with the aid of Section 149 of the Indian Penal Code, overt act is not necessary. The rival contention necessitates examination of Section 149 of the Indian Penal Code which reads a fol- lows: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object\\ an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 29. From a plain reading of Section 149 of the Indian Penal Code, it is evident that for bringing home the charge with the aid of Section 149 of the Indian Penal Code, the prosecution has to prove the following ingredients: (i) There was an unlawful assembly, (ii) The accused was a member thereof at the time of committing the offence, (iii) He intentionally joined or continued in that assembly, (iv) He knew of the common object of the assembly, (v) An offence was committed by a member of such assembly, and (vi) That, it was either committed: (a) in prosecution of the common object of the assembly, or (b) as the member of the assembly knew to be likely to be committed in prosecution of their common unlawful object." 30. Thus, for bringing home the charge under Section 149 of the Indian Penal Code, it cannot be laid down as general principle of law that unless an overt act is proved against a person who is alleged to be a member to unlawful assembly, no conviction with the aid of Section 149 of the Indian Penal Code can be rendered. In my opinion, for binging home the charge with the aid of Section 149 of the Indian Penal Code, the crucial question to determine is whether the assembly consisted of five and more persons and whether said persons shared the common object. Further what is required to be proved is that such an accused person has understood that the assembly was unlawful and was likely to commit any of the acts which come within the purview of Section 141 of the Indian Penal Code. Further what is required to be proved is that such an accused person has understood that the assembly was unlawful and was likely to commit any of the acts which come within the purview of Section 141 of the Indian Penal Code. The word "object" means the purpose or design and in order to make it common, it has to be shared by all the accused persons. 31. Here, in the present case, according to the witnesses, all the appellants were variously armed and while the deceased was passing from infront of the house of Badri Singh, appellant Dharkan Singh ordered to apprehend the deceased whereupon all the appellants who were variously armed, caught hold the deceased, assaulted and dragged him inside the courtyard of appellant Sarvjit Singh. Hence, they were not mere seeing the occurrence but participated in that. Nothing has been brought on record to show that any of the appellants in any way, dissuaded other appellants for committing the crime. In such a situation, the plea of Mr. Singh that there being general and omnibus allegation against the appellants and no specific overt act having been alleged, conviction under section 149 of the Indian Penal Code is illegal, deserves to be rejected. 32. The evidence of the eye witnesses clearly shows that the appellants were the members of unlawful assembly assaulted the deceased Surendra Singh in prosecution of the common object of the said assembly. The view which I have taken, finds support from the judgment of the Supreme Court in the case of Dani Singh and Ors. vs. State of Bihar, 2005 SCC (Cri) 127 [: 2004(4) PLJR (SC)1 in which it has been held as follows: "12. "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. 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, keeping 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 149, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the 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 eo instanti." 33. Mr. Singh submits that the evidence of the witnesses is to be discarded on the ground of omission and contradiction from their earlier statements made during the course of investigation before the police. In this connection, my attention has been drawn to paragraph nos. 19 to 24 of the evidence of the Investigating Officer Harikesh Pandey (P. W. 13). There is no difficulty in accepting the broad submission of Mr. Singh that omissions and contradictions in the evidence of the prosecution witnesses from what have been stated during the course of investigation, are relevant, for the purpose of appreciation of evidence provided that is put to the witness concerned, but at the same time, it is well settled that every omission and contradiction from the earlier statement itself shall not render the testimony of the witnesses untruthful. The omission and contradiction pointed out by Mr. Singh are not in relation to material particulars and insignificant in nature and therefore, I am not inclined to discard their evidence on this ground. 34. Mr. The omission and contradiction pointed out by Mr. Singh are not in relation to material particulars and insignificant in nature and therefore, I am not inclined to discard their evidence on this ground. 34. Mr. Singh submits that the appellants having come out with a probable story that the deceased was lynched by the villagers when he entered into the house of appellant Sarvjit Singh to outrage the modesty of his wife, Mamta Devi (D.W. 1), the appellants deserve to be given.the benefit of doubt. 35. D.W. 1 Mamta Devi, in her evidence, had stated that while she was cooking, her four years old son came from western room of the house. He stated that somebody had snatched her torch. According this witness, when she went there with the candle, she found the deceased standing there who caught hold of her and attempted to outrage her modesty and thereafter, he was assaulted by the villagers. She has also stated in her deposition that the deceased was assaulted in her court-yard by means of sharp weapons on the date and time suggested by the prosecution. She has further admitted in her deposition that her husband Sarvjit Singh and father-in law Tej Narain Singh were living in the same house and all the accused persons houses situate in the vicinity. She has categorically admitted that her father-in-law Tej Narain Singh, an accused in the case, as also her mother-in-law were in the house when the deceased tried to outrage her modesty. She had also in her deposition admitted that 20-30 persons arrived at the court-yard when she raised alarm but she could not identify them due to darkness. The only thing that this witness remembers is that Surendra Singh had come to commit rape on her. 36. True it is that the evidence of defence witness is not fit to be discarded only on the ground that she has been examined to support the .defence case. However, on account of various infirmities, hereafter discussed, her evidence does not inspire confidence and the defence put by the appellants is unacceptable. It does not seem probable that the deceased had gone to her house to outrage her modesty. According to her own statement, her father-inlaw and mother-in-law were present in the house. She admits to have seen 20-30 persons in her court-yard who had arrived on her alarm but could not identify them. It does not seem probable that the deceased had gone to her house to outrage her modesty. According to her own statement, her father-inlaw and mother-in-law were present in the house. She admits to have seen 20-30 persons in her court-yard who had arrived on her alarm but could not identify them. In her statement (Ext. A) recorded by the police during the course of investigation, she has stated that the deceased had caught hold of her hand but she escaped and raised alarm whereupon 10-11 persons in number variously armed and assaulted Surendra Singh. She had failed to identify those persons on account of insufficient light. It is an admitted position that her father-in-law and husband are the accused in the case and the infirmities aforesaid go to suggest that in order to save them, she had come out with the story. 37. Mr. Singh lastly submits that Mamta Devi gave to the police the report alleging outraging her modesty, which is an cognizable offence but the action of the police not registering the first information report and investigating the allegation made by her, clearly show that the investigation has been conducted in a slip-shod manner and hence, the appellants deserve to be given the benefit of doubt. In this connection, Mr. Singh has drawn my attention to paras 10 to 12 of cross-examination of the Investigating Officer (P.W. 13) Harikesh Pandey who in the aforesaid paragraphs has admitted to have recorded the statement of Mamta Devi. However, he has further stated that he did not register the case as he was of the opinion that as she is wife of appellant Sarvjit Singh, she had invented the story to defend him. The Investigating Officer having come to the conclusion that she had alleged outraging her modesty to save her husband nonregistration of the case does Not, in any way, creates doubt to the prosecution case. 38. P.W. 1 Brahma Singh, RW. 2 Nagina Singh, RW. 3 Ram Vivek Singh, P. W. 5 Pramod Kumar Singh and RW. 12 Badri Singh are the eye witnesses to the occurrence and have supported the case of the prosecution in material particulars. 38. P.W. 1 Brahma Singh, RW. 2 Nagina Singh, RW. 3 Ram Vivek Singh, P. W. 5 Pramod Kumar Singh and RW. 12 Badri Singh are the eye witnesses to the occurrence and have supported the case of the prosecution in material particulars. They have stated that while they were sitting around the fire place, they saw deceased Surendra Singh going towards Ojha Tola and no sooner he reached in front of the house of appellant Dharkan Singh, he exorted and all the other appellants who were variously armed, caught hold Surendra Singh, assaulted and dragged him inside the court-yard of Sarvjit Singh. The evidence of D.W. 1 Mamta Devi also lends support to the evidence of the prosecution witnesses in regard to the date, time and place of occurrence. The witnesses have stated about the means of identification during the course of examination and there is nothing in the crossxamination to discredit their claim. 39. According to the witnesses, appellants were armed with Farsa, Tangi, Bhala, RW. 14 Dr.M.M. Thakur who had conducted the post mortem examination, clearly stated that the injuries found on the person of the deceased, were caused by sharp cutting weapon, such as Tangi, Farsa and Bhala. Thus, the evidence of the eye witnesses find support from the evidence of the Medical Officer, who had conducted the post mortem examination. 40. In the result, I do not find any merit in both the appeals and they are dismissed. Such of the appellants, who are on bail, are directed to surrender and serve out the sentence. Syed Md.Mahfooz Alam, J. 41 I agree.