Judgment (Per A.H.Joshi,J) These two appeals arise out of common Judgment of conviction and sentence rendered by the Additional Sessions Judge, Khamgaon in Sessions Case No. 41/1997 and 71/1999. 2. In all 11 accused persons were tried for various offences punishable under Sections 147, 148, 149, 336, 307 and 302 of the Indian Penal Code. 3. The appeal preferred by accused no. 11 Sharifkha alias Kalya Safdarkha which was Criminal Appeal No. 197/2002 has abated due to his death. 4. All other accused who are the present appellants have been convicted as follows: (a) Accused No.1 Aminkha Amanullakha and accused No.11 Sharifkha @ Kalya Safdarkha have been convicted for the offence punishable under Section 302 of the Indian Penal Code whereas accused No. 2 Shabbirkha, accused No.3 Ummidkha, accused No. 4 Hamidkha, accused No. 5 Mukhtyarkha, accused No. 7 Subhedarkha, accused No. 8 Arifkha and accused No. 10 Ibrahimkha have been convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. (b) Accused no.4 Hamidkha and accused no. 11 Sharifkha are convicted for the offence punishable under Section 307 of the Indian Penal Code. All remaining accused (7 in number) referred to earlier for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. (c) All accused are convicted as above under Sections 147 and 148 of the Indian Penal Code. 5. All the accused have been sentenced to suffer rigorous imprisonment for life and fine etc.. 6. Heard learned Advocate Mr. S.V.Sirpurkar and learned Advocate Mr. Ahmed for appellants, perused Record and the Judgment. Heard learned A.P.P. in reply. The prosecution story. 7. on 31st May, 1997 there was a quarrel on the point of deceased Shaikh Lal who had earlier installed his pan shop on Government land from which place he was evicted and then he relocated and installed the stall near Choti Masjid. There was a quarrel between accused Subhedarkhan and Rafiqkha on the one side and Shaikh Lal on the other side and apparently due to site of relocation of pan stall. This matter was reported to the police. Deceased Shaikh Lal as well as accused persons were arrested and released on bail. There was a quarrel between accused Subhedarkhan and Rafiqkha on the one side and Shaikh Lal on the other side and apparently due to site of relocation of pan stall. This matter was reported to the police. Deceased Shaikh Lal as well as accused persons were arrested and released on bail. On the same day, deceased Shaikh Lal lodged Police report against accused Sharifkha alias Kalya that he had threatened him to end his life with the help of his brothers and that if any one intervenes those would also face serious consequences. Non-cognizable offence was registered by the police. 8. On 1.6.1997, at about 7.35 p.m., when Shaikh Lal was standing near his pan shop, accused Aminkha arrived near him. Abdul Rahman and Mohd. Irfan brothers of Shaikh Lal also arrived there and seeing accused Aminkha talking with Shaikh Lal, Abdul Rahman went to S.T.D.Booth to inform the police on phone as he apprehended an assault. On his return, he found that Shaikh Lal was attacked by accused Aminkha, Kalya Arifkha, Shabbirkha, Hamidkha and Mukhtyarkha. All the accused were having gupti and knives. When he intervened, accused Ummidkha, Subhedarkha and Ibrahimkha also attacked Abdul Rahman. Similar assault was done on Mohd. Irfan when he tried to intervene. Shaikh Lal who had suffered grave injuries and had fallen down, was taken to Hospital etc.. Initially, offence under Section 307 was registered which was later on registered under Section 302 of the Indian Penal Code after Shaikh Lal succumbed to the injuries. Mohd. Irfan and Abdul Rahman who had suffered fatal injuries were treated in the hospital even surgically. 9. Police conducted investigation and filed charge sheet against the accused under Sections 302, 307, 149, 147, 148 and 336 of the Indian Penal Code. 10. The prosecution examined 18 witnesses. Their testimonies can be, for the sake of convenience, separated in the following groups. (a) Eye Witnesses: (1) P.W. 1 Mohd. Isak; (2) P.W. 2 Ataullakhan; (3) P.W.3 Abdul Gafar; (4) P.W.4 Abdul Rehman; (5) P.W.8 Mohd. Imran; and (6) P.W. 9 Shaikh Siraj; (b) Witness on the incident of earlier date: P.W. 10 Abdul Razak to prove motive on the incident of earlier date. (c) Panch witnesses on panchanamas (1) P.W. 5 Abdul Salim; (2) P.W. 6 Mohd. Irfan; (3) P.W.7 Shaikh Harun; (4) P.W. 11 Jikarullah Khan; and (5) P.W. 12 Abrar Khan. Imran; and (6) P.W. 9 Shaikh Siraj; (b) Witness on the incident of earlier date: P.W. 10 Abdul Razak to prove motive on the incident of earlier date. (c) Panch witnesses on panchanamas (1) P.W. 5 Abdul Salim; (2) P.W. 6 Mohd. Irfan; (3) P.W.7 Shaikh Harun; (4) P.W. 11 Jikarullah Khan; and (5) P.W. 12 Abrar Khan. (d) Witnesses on medical evidence: (1) P.W. 15 Dr. Ashok Gaikwad; (2) P.W. 16 Dr. Anil Sarode; and (3) P.W. 18 Dr. Vilas Sonone. (e) Police witnesses: (1) P.W. 13 Kashinath Wawage; (2) P.W. 14 Milind Amlekar; and (3) P.W. 17 Satyanarayan Jaiswal. 11. Apparently, may be on considering the nature of the injuries, medical evidence and admitted fact that Gupti (the weapon used by accused no.11 Sharifkha alias Kalya) was recovered much later it was not referred for medical examination to chemical analyser. 12. It is necessary to analyse the evidence of the eye witnesses. MOTIVE 13. In so far as the aspect of motive is concerned, the fact of scuffle/quarrel on earlier day, recording of First Information Report, registration of non-cognizance offence and involvement of the accused in earlier police cases sufficiently demonstrates existence of enmity and motive of accused to commit the crime. In this background P.W. 10 Abdul Razak as corroborated by other witnesses has duly demonstrated, that the accused had grounds and reasons on account of the quarrel due to relocated place of pan shop by Shaikh Lal to have motive to assault the deceased Shaikh Lal and those opposing assault on him. Threats given by the main accused are also proved, which therefore constitutes adequate proof of motive. Incident 14. Since it is a case of Section 149, and the state of mind of the accused persons will have to be gathered from the surrounding circumstances as proved by the prosecution. Therefore, it becomes necessary to see as to what are the facts deposed and proved by the eye witnesses. It would be, therefore, necessary to look at the oral testimonies of all these eye witnesses. 15. On perusal of the testimonies of various injured persons who are themselves witnesses what reveals from the testimonies of each of the witnesses needs to be accounted. 16. The crux of the testimoney of P.W. 1 Mohd. Isak when referred verbatim reads as follows:. Myself and Abdul Rahman master were standing near pan stall. 15. On perusal of the testimonies of various injured persons who are themselves witnesses what reveals from the testimonies of each of the witnesses needs to be accounted. 16. The crux of the testimoney of P.W. 1 Mohd. Isak when referred verbatim reads as follows:. Myself and Abdul Rahman master were standing near pan stall. Pan stall is situated near one Nasib Hotel. There is one another pan stall near Nasib hotel. One Sk. Lal was standing there. At that time accused Aminkha came there on the scooter. He parked his scooter near pan stall adjoining to which Sk. Lal was standing. Thereafter, he went towards Sk. Lal. They talked with each other. That I could not her the same. As I was at a distance of 30 to 35 feet from the place where they were standing. I asked Rahman master to inform the police that there may be quarrel between accused Amin and Sk. Lal. Thereafter, the quarrel started between Sk. Lal and Aminkha. Accused Aminkha pushed Sk. Lal. At the same time accused Sharifkha alias Kalya, Hamidkha Daudkha, Umidkha Bismillakha, Shabbirkha, Daudkha, Arifkha Nyamatkha, Muktyarkha Mahboobkha and some other persons came on the spot where quarrel of Aminkha and Sk. Lal was going on. Sharifkha alias Kalya was having weapon Gupti in his hand. Accused Aminkha and Arifkha were having knives in their hands. They started giving blows to Sk. Lal with the aid of knives and Gupti as well as hand blows. At the same time Abdul Rahman Master came back to the spot and he had gone to phone to the police. Sk. Irfan also came there. Both are real brothers of Sk. Lal. They tried to rescue Sk. Lal from clutches of accused, at that time they were also attacked by accused with the aid of gupti and knives. Due to injuries sustained by Sk. Lal, he fell down. At that time myself and Mohd. Shabbir called one rickshaw other 2 to 3 persons also helped us. Sk. Lal was taken to the police station in one rickshaw. His two brothers came on foot to the police station Nandura. In police jeep all of them were sent to Khamgaon General Hospital for treatment. 17. P.W.2 Ataullakha (Exh.48) states as follows:. I was talking with Abdul Mistry who is contractor. Sk. Lal Abdul Rajjak at a distance of 10 to 15 feet from us. His two brothers came on foot to the police station Nandura. In police jeep all of them were sent to Khamgaon General Hospital for treatment. 17. P.W.2 Ataullakha (Exh.48) states as follows:. I was talking with Abdul Mistry who is contractor. Sk. Lal Abdul Rajjak at a distance of 10 to 15 feet from us. At that time accused Aminkha came from police station side towards Usmani chowk on his scooter. He parked his scooter in front of the shop of Ekbal. He came towards the place where Sk. Lal was standing. Thereafter they started talking with each other. Immediately thereafter Sharifkha alias Kalya, Arifkha Nyamatkha, Ibrahimkha Nyamatkha, Umedkha Bismillakha, Subhedarkha Mustafakha, Rafikkha Mustafakha, Mehboobkha Daudkhan, Hamidkha Daudkha, Shabbirkha Daudkha, Mukhtyarkha Mahboonklha, came near the spot where Sk. Lal was standing. Accused Kalya was having Gupti in his hand. Ibrahimkha was having weapon like Gupti in his hand and rests of the accused were having knives in their hands. Mehboobkha shouted that anyone who will intervene the quarrel he will loose his life. They all surrounded Sk. Lal. Thereafter, accused persons namely, Aminkha, Kalya, Arifkha, Hamidkha, Shabbirkha and Mukhtyarkha attacked Sk. Lal. Accused Kalya gave blow of Gupti to Sk. Lal. Aminkha and Arifkha gave blow of knives. Hamidkha also gave blow of knife. So also other accused gave blows of knives. At that time Sk. Rahman came to the spot to intervene the incident. Accused Umedkha, Subhedarkha, and Ibrahimkha gave blows of knives to Rahman. Thereafter, Irfan came to the spot, to intervene the quarrel. Accused Kalya, Mahboobkha, Rafiq and one another accused gave blows of Gupti and knives to Sk. Irfan. Sk. Rahman and Irfan were injured. Accused ran away from the spot. I have taken Sk. Lal in my rickshaw to police station. 18. P.W. 3 Abdul Gaffur (Exh. 52) deposed that; At that time there was rush in the said Saloon shop and therefore, I stayed near Taj Hotel, i.e. before S.T.D. booth awaiting for my number. Sk. Lal was also present there at a distance of 20 feet from me. At that time accused Aminkha Amanullakha came there on his scooter. It was about 7.45 p.m. He started to quarrel with Sk. Lal. He dragged Lala on the road. At that time 8 to 10 persons were standing in the chowk gathered there. Those persons were Shabbirkha, Arifkha, Kalya, Ibrahimkha, Mukhtyarkha, Subhedarkha, Rafiqkha and others. At that time accused Aminkha Amanullakha came there on his scooter. It was about 7.45 p.m. He started to quarrel with Sk. Lal. He dragged Lala on the road. At that time 8 to 10 persons were standing in the chowk gathered there. Those persons were Shabbirkha, Arifkha, Kalya, Ibrahimkha, Mukhtyarkha, Subhedarkha, Rafiqkha and others. At that time Kalya was having Gupti in his hand, Aminkha was having knife with him. Shabbirkha was having knife in his hands. Arifkha was also having knife. They started to give blow with the help of Gupti and knives. At that time Sk. Rahman Master and Irfan came there to rescue the quarrel. They were also beat by said persons by knife and Gupti. At that time they were also injured. At that time two person amongst them were threatening to the others that if any one will intervene the quarrel they will end their lives. Therefore, nobody dared to intervene the quarrel. Due to injuries sustained by Sk. Lal he fell down. Thereafter, all those persons ran away from the spot. Therefore, myself, Bisan Master and Ataullkha took Sk. Lal to the police station in a rickshaw. 19. P.W.4 Abdul Rahman (Exh. 54) deposed that; On dated 1.6.1997 at about 7 p.m. I had been to play Volliball in front of Navgaje Smruti Bhavan. After paying Volliball myself Mohd. Isak Master came at Usmania chowk. We were chit chatting there. After some time accused Aminkha came there on his scooter. He parked his scooter towards one side. My brother Sk. Lal was also standing near one pan stall at Usmania chowk. It was at about 7.45 p.m.. Accused Aminkha went towards Sk. Lal, where he was standing and thereafter there was exchange of words between them. At that time Isak master told to me that there will be quarrel in between Sk. Lal and Aminkha and I have to inform to the police. Therefore, I went towards S.T.D.Booth to phone to the police. I phoned to the police and informed them that accused Sk. Amin and Sk. Kalya had been to Usmaniya chowk and there will be quarrel. I then went to Usmania chowk. When I was coming from S.T.D. Booth at that time I saw accused Aminkha, Kalya, Arifkha, Shabbirkha, Hamidkha and Mukhtyarkha have surrounded Sk.Lal. They were having knives and Gupti in their hands. They attacked my brother Sk. Amin and Sk. Kalya had been to Usmaniya chowk and there will be quarrel. I then went to Usmania chowk. When I was coming from S.T.D. Booth at that time I saw accused Aminkha, Kalya, Arifkha, Shabbirkha, Hamidkha and Mukhtyarkha have surrounded Sk.Lal. They were having knives and Gupti in their hands. They attacked my brother Sk. Lal with the help of knives and Gupti. Therefore, I went towards Lala to intervene the incident. At that time accused Umidkha, Subhedarkha and Ibrahimkha attacked me with the aid of knives. Due to which I sustained injuries. At that time Mohd. Irfan Abdul Rajjak came there to rescue the quarrel. At that time Kalya was beating Sk. Lal. He returned towards my brother Sk. Irfan, and he himself and others attacked my brother Irfan. Thereafter, I was feeling vertigo. Accused ran away from the spot. I do not know what happened thereafter at Usmania chowk. I went by waling to police station. Sk. Lal was lying on the spot. 20. P.W. 8 Mohd. Imran (Exh,. 62) deposed that; It was at about 8 p.m. Sk. Siraj was also sitting with me. At that time Shabbirkha, Daudkha, Hamidkha Daudkha, Mehboobkha Daudkha, Mukhtyarkha Majitkha and others came from southern side by the road. They were saying that Maro Saloko. Accused Shabbirkha Daudkha started beating me by fist and blows on my chest and stomach and also on my back. Due to it I sustained invisible injury on my chest, back and stomach. At that time Sk. Siraj Sk. Asfaj and Sk. Siraj Sk. Ajij and Sk. Asfar Abdul Ajij were also beat by those accused persons, with the aid of stick and pieces of bricks. They were saying that they have injured Sk. Lal and they should also injured us. Due to shouts of those persons from locality gathered on the spot. Therefore, accused ran away. After incident myself, Sk. Siraj Sk.Aspak, Sk. Siraj Sk. Asfar and Sk. Asgar went to the police station. We were taken to the hospital at Wadner Bholji. 21. P.W. 9 Sk. Siraj (Exh.63) deposed that; On 1.6.1997 at about 8 p.m. myself Sk.Siraj Sk. Aspak, Mlohd. Imran and my father Sk. Apsar were sitting infront of my house. At that time Hamidkha s/o Daudkha, Mukhtyarkha Mahboobkha and Mabhoobkha Daudkha, came towards us. They started to beat Imran Sk. Siraj, Sk. Afsar and to me. 21. P.W. 9 Sk. Siraj (Exh.63) deposed that; On 1.6.1997 at about 8 p.m. myself Sk.Siraj Sk. Aspak, Mlohd. Imran and my father Sk. Apsar were sitting infront of my house. At that time Hamidkha s/o Daudkha, Mukhtyarkha Mahboobkha and Mabhoobkha Daudkha, came towards us. They started to beat Imran Sk. Siraj, Sk. Afsar and to me. After some time Hamidkha Sk. Kalu as well as Aminkha came there. They also started to beat us with the aid of stick and pieces of bricks. They were saying that they have injured 2 to 3 persons and we shall also be killed. Due to beating by accused I sustained injuries on my chest, back towards left side my left hand. Thereafter, we all rushed towards police station I know the persons whose names I have stated.. 22. From perusal of oral testimonies of all these witnesses and in specific the portions underlined what reveals even after scrutinizing the cross-examination is that accused Sharifkha alias Kalya gave a blow to Shaikh Lal, on his neck who fell down on the ground, then Amin Kha, Shabbirkha and Sharifkha gave blows with knives to the injured witnesses and all other accused gave blows with knives, fists and kicks. 23. Considering the medical evidence what reveals is as follows: From the cause of death narrated in the post-mortem report, it is clear that injury no. 7 which is incised wound of 3 cm x 1 cm and 3 cm. in depth which has resulted in causing rupture of carotid artery, and it has resulted in causing death and that this injury was caused by weapon which is sharp and conical. It has come in the evidence of all eye witnesses of incident of assault that this injury was caused by Sharifkha alias Kalya. All witnesses are concurrent on this fact of the matter and said version is not shaken. 24. The injuries caused to other witness viz. Abdul Rahman Abdul Rajjak was treated by Dr. Ashok Gaikwad. P.W. 15 Dr. Ashok Gayakwad (Exh.93) has deposed that the injury caused to Irfan Abdul Rahman was sufficient in ordinary course to cause death and such injuries could be caused by the weapons of offence recovered from the accused which are Articles 14 and 16. 25. The injuries suffered by Abdul Rahman Abdul Rajjak were proved by Dr. Vilas Sonone. P.W. 18 Dr. Vilas Sonone (Exh. 25. The injuries suffered by Abdul Rahman Abdul Rajjak were proved by Dr. Vilas Sonone. P.W. 18 Dr. Vilas Sonone (Exh. 113) has deposed that the injuries suffered by both the patients in normal course were sufficient to cause death. This witness also corroborated in addition to what Doctor Ashok has said that Articles 14 and 16 which are sharp, hard and long objects could the weapons due to which injuries in question were caused. 26. The nature of injuries suffered by these two witnesses viz. Mohd. Irfan and Abdul Rehman are narrated by them in their testimony and are corroborated by medical witnesses. 27. It is seen that there is a weaker link as far as the proof of use of weapon Gupti used by Sharifkha @ Kalya is concerned. This Court also finds on inspection of the weapon i.e. Gupti that it is not the said weapon which was used. The question of very weapon Gupti being used in the commission of the offence, however said weakness is insignificant in view of the unshattered testimonies of the eye witnesses and the fact of death of Shaikh Lal and the medical evidence in support. The presence of the accused Kalya causing murderous assaults and weapons in their hand and the injuries is proved beyond doubt whatsoever sufficiently involves the accused no.11 Sharifkha @ Kalya and proves his having committed the offence of murder. 28. Murderous assault on P.W.4 Abdul Rehman and P.W.6 Mohd. Irfan by accused no.2 Shabbirkha, accused no.3 Ummidkha, accused no. 10 Ibrahimkha and the accused no. 6 Mehboobkha and accused no. 9 Rafiqkha is also proved from testimonies of these victims who themselves are the eye witnesses. As to Common Object 29. In so far as the aspect of the common object is concerned, from the evidence it has come on record that if the accused were just standing by the side they had no reason, occasion or cause to participate with or without weapons, in the act of committing assault which on the very face of it was an assault by deadly weapons. The enormous injuries found on the person of the deceased Sheikh Lal and on other injured witnesses sufficiently prove participation with or without weapons by all other accused persons. 30. The enormous injuries found on the person of the deceased Sheikh Lal and on other injured witnesses sufficiently prove participation with or without weapons by all other accused persons. 30. It has come in evidence that all other accused were present nearby, they have suddenly participated in the act of assaulting with the weapons in their hand without any provocation leads to the conclusion that the participation was with common object to kill Shaikh Lal and even to kill or cause deadly injuries to those who intervened to save him. 31. Multiple injuries found on the person of the injured persons thus sufficiently prove that all the accused persons who are convicted were equipped with the weapons and since it was a case of assault on about four persons, injuries of different types have occurred to different victims. The common object of the unlawful assembly of those who have come to assault and those who were present on the spot and readily and willingly joined the assault, with no ambiguity attracts section 149. Individual role particularly in the light of the multiple injuries assumes no significance. There was nothing except a common object without which all other accused would have joined to assault the victims led by the assault by main accused. This evidence renders formal meeting of minds and proof thereof to be wholly unnecessary. 32. The learned Advocate for the appellants in support of appeal placed reliance on various Judgments as under: i) Bunnilal Chaudhary vs. State of Bihar (2006) 10 Supreme Cout Cases 639. ii) Anil Rai vs. State of Bihar (2001) 7 Supreme Court Cases 318; iii) Masalti and others vs. The State of Uttar Pradesh AIR 1965 Supreme Court, 202. iv) State of Punjab vs. Sanjiv Kumar & ors. AIR 2007 Supreme Court, 2430. 33. The learned A.P.P. placed reliance on the following Judgments. i) State of M.P. vs. Dharkole alias Govind Singh and others. 2005 Cr.L.J., 108; ii) State of Maharashtra vs. Kashirao and others 2004 ALL MR (Cri) 280 (SC); iii) State of U.P. vs. Jhinkoo Nai 2001 CRI LJ 3965 iv) Ramji Singh and another vs. State of Bihar 2001 CR LJ 4740 v) Lakshmi and others vs. State of U.P. (2002) 7 SCC 198 ; vi) Krishna Gope vs. State of Bihar (2003) 10 SCC 45 . 34. 34. It would not be necessary to discuss each of the Judgments relied upon as it shall sufficient to observe that the effort on the side of the appellants while relying on the Judgments is to urge that common object has not been proved. The evidence that has come on record is not adequately enough to infer common object, while the learned A.P.P. based on the Judgment sited by him urges that the common object has to be gathered from the circumstances around since the intention of common object is a matter of state of mind which has to be gathered only from the conduct. According to the learned A.P.P. the manner in which other accused persons who claimed to be just standing by have participated and their participation is proved by testimony of the witnesses and the background of the instance which occurred on 31st May, 1997 i.e. earlier date sufficiently proves the motive as well as common object. In this premises, according to the learned A.P.P., there are absolutely no grounds made out by the accused persons for any altitude no role or suspicion is carved out. The offence is duly proved and the appeals thus deserve no merit for interference. 35. In the result, this Court is of the considered view that the Judgment and order of conviction and sentence rendered by the Sessions Judge is based on sound reasons and facts as proved which are discussed hereinabove and the appeals merit no interference. The accused have been convicted on the proved facts. The appeals are, therefore, dismissed. Judge Judge At this stage, learned Advocate Mr. S.V.Sirpurkar for appellants in both the appeals prays that all accused, except Accused No.1, who are on bail, be granted thirty days' time to surrender. Time granted as prayed for.