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Uttarakhand High Court · body

2008 DIGILAW 404 (UTT)

MOHD. RAFIQ v. STATE OF U. P.

2008-09-05

J.C.S.RAWAT

body2008
JUDGMENT This appeal has been directed against the judgment and order dated 09.03.1990 passed by learned IVth Additional Sessions Judge, Nainital in Sessions Trial No. 300 of 1989, whereby the accused/appellants have been convicted & sentenced to undergo rigorous imprisonment for six months u/s 147 Indian Penal Code, 1860 (for brevity as I.P.C.), three months u/s 323 I.P.C. and three years u/s 325 and a fine of Rs. 2,000/- each. It was further directed that in default of payment of fine, the accused/appellants would further undergo imprisonment for six months each. It was further directed that all the sentences would run concurrently. 2. Brief facts of the case as emerges from the record are that on 02.08.1988 at about 8:00 a.m., the informant Babu and his father Budha were going to look after their field. When they reached in front of the house of the accused/appellant Hanif, the accused Akhlakh Ahmad who was holding a gun in his hand stated to other accused/appellants who were holding lathies in their hands that the injured Budha did not cast vote in his favour in the election. The accused Akhlakh Ahmad exhorted all of the accused/appellants to kill them. Thereupon, the accused/appellants started wielding lathies which they were holding on Budha. Due to fear, the informant Babu, son of injured Budha fled away from the place of occurrence. The said incident was witnessed by Nazir Ahmad and Shakil Ahmad. The injured Budha sustained injuries on his person. Thereafter, he was taken to police station from where he was taken to the hospital for medical examination as well as treatment. A case was registered by the informant Babu against the accused/appellants and co-accused Akhlakh Ahmad. The medical examination of the injured Budha was conducted by the Medical Officer on 02.08.1988 at about 11:10 a.m. in P.H.C. Bajpur. After completing the investigation, the Investigating Officer submitted the chargesheet against the accused persons before the court concerned. 3. After submission of chargesheet, the accused persons were committed to the court of Sessions for trial and the trial court framed charges against the accused persons. The accused persons denied the charges levelled against them and claimed to be tried. 4. The prosecution in support of its case examined Babu PW1. He is the informant and son of the injured Budha. Budha PW2 is the injured witness. The accused persons denied the charges levelled against them and claimed to be tried. 4. The prosecution in support of its case examined Babu PW1. He is the informant and son of the injured Budha. Budha PW2 is the injured witness. Shri Prithvi Singh PW3 and Shri Ramvir Prasad PW4 are the Investigting Officers of this case. Firstly, Shri Prithvi Singh PW3 has investigated the matter and later on, the investigation was entrusted to Shri Ramvir Prasad PW4. Shri Ramvir Prasad PW4 submitted the chargesheet against the accused persons. Shri T.P. Sharma PW5 is the Medical Officer who has examined the injuries on the person of injured Budha PW2. Shri Hari Om PW6, is the doctor who conducted the X-ray of the injuries of the injured. 5. The accused persons were examined u/s 313 Cr.P.C. and they have pleaded not guilty to the offence. They have stated that they have been falsely implicated in this case due to enmity. They have further stated that they did not cause any injury to the injured Budha PW2. 6. The learned Addl. Sessions Judge on appreciation of the evidence held accused/appellants guilty to the offences charged against them and convicted & sentenced them as mentioned above. However, the learned trial court acquitted the accused Akhlakh Ahmad for the charges levelled against him. 7. I have heard Mr. H.C. Pandey, Advocate with Syed Naddim, Advocate for the accused/appellants; Mr. Prabhakar Joshi, Brief Holder for the respondent/State; and perused the record. 8. At the outset, it needs to be mentioned that there is no dispute with regard to the injuries sustained by the injured Budha PW2 on the date, time and place as suggested by the prosecution. The prosecution in support of its case examined Dr. T.P. Sharma PW5 who conducted the medical examination on the person of the injured on 02.08.1988 at about 11:10 a.m. and found the following injuries on his person : 1. Traumatic swelling in an arc 10 cm. x 7 cm. on dorsal aspect of Lt. hand. Adv. X-ray Lt. hand. 2. L.W. 2 cm. x 1.5 cm. on mid and lateral side of Rt. Fore arm with traumatic swelling in art arc 4 cm. x 3 cm. of Rt. forearm. 3. Contusion 10 cm. x 3.5 cm. on front & mid of Lt. thigh. 4. Traumatic swelling in an arc 8 cm. x 6 cm. in front of Lt. hand. 2. L.W. 2 cm. x 1.5 cm. on mid and lateral side of Rt. Fore arm with traumatic swelling in art arc 4 cm. x 3 cm. of Rt. forearm. 3. Contusion 10 cm. x 3.5 cm. on front & mid of Lt. thigh. 4. Traumatic swelling in an arc 8 cm. x 6 cm. in front of Lt. knee joint. 5. L.W. 1 cm. x 0.5 cm on inner aspect of Lt. hand. 6. Contusion reddish in colour 18 cm. x 2 cm. on back of Lt. side chest on Lt. scapula vertical in direct upward to downward. 7. Contusion reddish in colour 20 cm. x 2 cm. in mid of the scapula on vertebral colour on upper side contusion 5 cm. in vertical direction. 8. Contusion 12 cm. x 2 cm. vertical in direction on back of Rt. Side chest on Rt. Scapula reddish in colour. 9. L.W. 5 cm. x 2 cm. on front & upper end of Rt. Leg. Fresh blood present. 10. L.W. 4 cm. x 2 cm. in front & upper end of Rt. Leg 4 cm. below from Inj. No. (9) with traumatic swelling are 6 cm. x 3.5 cm. 11. L.W. 5 cm. x 2 cm. with fresh clotted blood on Rt. leg 9 cm. below from Inj. No. (9). Adv. X-ray. 12. L.W. 1 cm. x 5 cm. lower end of Rt. leg on front 3 cm. below from Inj. No. (11). As per the opinion of doctor, the said injuries could have been caused by some blunt objects. The doctor referred the injured Budha PW2 for conducting X-ray for some of the injuries as indicated above. The prosecution has examined Shri Hari Om PW6 who conducted the X-ray on the body of the injured on 02.08.1988. He found a compound fracture on leg and fracture of metacarpal of middle finger. Thus, the evidence of doctors and the oral evidence led by the prosecution clearly established that the injured sustained the injuries on the date and time as pointed out by the prosecution. 9. Now, I have to examine who is the author of the injuries caused on the person of the injured Budha PW2. According to the prosecution, the said injuries had been caused by the accused/appellants on exhortation of the co-accused Akhlakh Ahmad. 9. Now, I have to examine who is the author of the injuries caused on the person of the injured Budha PW2. According to the prosecution, the said injuries had been caused by the accused/appellants on exhortation of the co-accused Akhlakh Ahmad. The defence has disputed the participation of the accused/appellants in causing the injuries on the person of the injured. It was further contended that the accused/appellants have been falsely implicated in this case. The case rests on direct evidence of the witnesses. The prosecution in support of its case examined injured Budha PW2 who has stated in his evidence that on the date of the incident at about 8:00 a.m. he alongwith his son Babu PW1 was going to look after his field. When they reached in front of the house of accused/appellant Hanif, the accused Akhlakh Ahmad who was holding a gun in his hand was standing there. The accused Akhlakh Ahmad was also accompanied with the accused/appellants at the spot. The accused/appellants were holding lathies in their hand. The accused Akhlakh Ahmad who was Gram Pradhan of the village exhorted the accused/appellants to kill the injured Budha PW2 because he did not cast vote in his favour in election. On the exhortation of the accused Akhlakh Ahmad, the accused/appellants started beating the injured Budha PW2 by the lathies which they were holding in their hands. Consequently, the injured Budha PW2 sustained the injuries on his person. He has further stated that his son Babu PW1 who has accompanied him at the time of the incident, fled away from the place of occurrence due to fear. The said incident was witnessed by Nazir Ahmad and Shakil Ahmad. The Injured Budha PW2 was taken to the police station and thereafter Primary Health Centre where he was medically examined by the doctor. The prosecution in support of its case also examined Babu PW1 who is the son of the injured. He has narrated the entire story which has been stated by his father injured Budha PW2. He has given the details of the incident in his evidence. He has further stated in his evidence that he lodged the report (Ex. Ka.1) before the police station and he has proved the said report before the court. The prosecution has examined only two witnesses, namely Babu PW1 and injured Budha PW2 in support of its case. 10. He has given the details of the incident in his evidence. He has further stated in his evidence that he lodged the report (Ex. Ka.1) before the police station and he has proved the said report before the court. The prosecution has examined only two witnesses, namely Babu PW1 and injured Budha PW2 in support of its case. 10. Learned counsel for the accused/appellants contended that the prosecution has not produced the independent witnesses namely Nazir Ahmad and Shakil Ahmad before the Court who were named in the F.I.R. as the witnesses of the prosecution case; and Babu PW1 is the son of the injured Budha PW2, as such their evidence is doubtful without corroboration. The learned Brief Holder refuted the contention. On due consideration of the submission of the learned counsel for the parties, I am of the view that although it is true that Babu PW1 is related to the injured Budha PW2 but the evidence of related witness cannot be discarded only on this ground alone. There is no rule of law or prudence which requires that the evidence of close relation must be discarded for the simple reason if they are related to each other. By now, it is a settled principle of law that if otherwise the testimony of a related witness inspires confidence, the testimony of such witness cannot be discarded solely on the ground that he is a related witness. Similarly, being relatives, it would be his endeavour to see that the real culprits are punished and normally they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished. In the case of State of Punjab Vs. Karnail Singh reported in 2004 SCC (Cri) p/135 the Hon’ble Apex Court has held as under : “8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab reported in AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed : (AIR p. 366) :- 25. Speaking through Vivian Bose, J., it was observed : (AIR p. 366) :- 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of even men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – Rameshwar v. State of Rajasthan reported in AIR 1952 SC 54 (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 9. Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed :- “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” In view of the above discussions, I do not find any force in the contention advanced by the learned counsel for the accused/appellants that Babu PW1 and Budha PW2 are related with each other and their evidence should be discarded on this ground. 11. So far as the contention with regard to non-production of independent witnesses is concerned, both the witnesses Nazir Ahmad and Shakil Ahmad have been shown as the witnesses of the incident. Their names have been indicated in the F.I.R. as well as in the chargesheet.. During the course of the trial the prosecutor has moved an application on 16.11.1984 wherein it has been alleged that the so called witnesses Nazir Ahmad and Shakil Ahmad were present in the Court. Their names have been indicated in the F.I.R. as well as in the chargesheet.. During the course of the trial the prosecutor has moved an application on 16.11.1984 wherein it has been alleged that the so called witnesses Nazir Ahmad and Shakil Ahmad were present in the Court. These witnesses have been maneuvered and they came alongwith the accused/appellants, so they are related to the accused. These witnesses are not supporting their previous statement recorded u/s 161 Cr.P.C. by the I.O. On that count it was prayed by the Public prosecutor that the said witnesses namely Nazir Ahmad and Shakil Ahmad may be allowed to be discharged. The said prayer was allowed by the trial court and the order has been recorded on the same application. 12. The prosecution has also examined injured Budha PW2 and his son Babu PW1 in this case who were accompanied at the time of the incident. Moreover, it is a well-settled position of law that it is not always necessary to multiply the evidence of the incident on the same point. It has to be seen what is the quality of the witnesses. It is the quality of the evidence and not the quantity, which is required. If the evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy then increase in the number of witnesses cannot be the requirement of the case. Moreover, it has now almost become a fashion that the public is reluctant to appear and depose before the court especially in criminal cases because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed lot. They are being threatened, intimidated and at the top of all they are subjected to unnecessary lengthy cross-examination. So, the witnesses avoid coming to the court. It is also seen that the related witness come forward to give the evidence. In such environment of society, the court should not expect the other witnesses to produce before the court, if they did not turn up before the court to adduce the evidence. But at the same time, the court would examine the evidence of the related/injured witness if it inspires confidence of the prosecution did not inspire confidence, then the corroboration is required by the other witnesses. But at the same time, the court would examine the evidence of the related/injured witness if it inspires confidence of the prosecution did not inspire confidence, then the corroboration is required by the other witnesses. In the light of the above, I will examine the evidence of Babu PW1 and Budha PW2 with regard to the factum of the corroboration later on. 13. The learned counsel for the accused/appellants further contended even assuming the evidence of the prosecution witnesses was found credible and cogent, the accused/appellants are entitled to get the benefit of doubts as there was no immediate motive for them to cause injuries upon the injured. It was further contended that the prosecution has failed to prove the motive as suggested by the prosecution., The learned Brief Holder refuted the contention. Babu PW1 has stated Akhlakh Ahmad who was elected as gram pradhan in the election held before a month, exhorted the accused/appellants to kill the injured Budha. Consequently, the accused/appellants wielded lathies upon the injured Budha PW2. The prosecution has also adduced the evidence of Babu PW1 to that effect. As the injured Budha PW2 or the complainant party did not cast vote in favour of Akhlak Ahmad, so it is the motive of the crime. The motive is a mental state of the witnesses which could not be precisely read by the witnesses at the time of the commission of the offence. The learned counsel for the accused/appellants further contended that it is in the evidence of Budha PW2 that election of the Gram Pradhan had taken place two months prior to the incident. It is also admitted to the witnesses. It was further pointed out that the said witnesses had admitted that co-accused Akhlakh Ahmad and family members of the injured Budha PW2 reside in the same village. He further pointed out that injured Budha PW2 has stated in his evidence that accused Akhlakh Ahmad met him two or three times on the way but he did not cause any harm to him. In the light of the above, the motive as suggested by the prosecution is not probable. The mental state of a person and nature & behaviour of a person may differ man to man. In the light of the above, the motive as suggested by the prosecution is not probable. The mental state of a person and nature & behaviour of a person may differ man to man. It may be that the co-accused Akhlakh Ahmad had taken this fact to his heart and he would have been waiting the time when he would meet him when Akhlakh Ahmad would have been with his supporters. There is no effective cross examination of the witnesses on that point. It is also settled position of law that if the ocular evidence is reliable, satisfactory and convincing, then the motive takes a back seat and becomes irrelevant for the decision of the case. It is also established proposition of law that even assuming that the prosecution had not put forward any motive on the part of the accused/appellants to commit the crime, it would not reflect upon the credibility of the witnesses. It is well settled principle of law that if the ocular evidence is reliable, satisfactory and convincing then the absence of motive becomes irrelevant for the decision of the case. It is also well settled law that establishment of motive is not sine-quo-non for proving the prosecution case. It was held in Yunus vs. State of M.P. SCC 2003 (1) p/429 : “The prosecution in the present case has failed to prove the motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing in this case. The illegal acts of the accused persons have resulted in the death of a young boy of 18 years. It is also well settled law that establishment of motive is not sine quo non for proving the prosecution case.” 14. The Hon’ble Apex Court has affirmed the above view in its latest decision taken in the case of Bhimapa Chandappa Hosamani vs. State of Karnataka 2007 (1) SCC (Cri) 456. The Hon’ble Apex Court has held in Ramkrushna vs. State of Maharashtra 2007 AIR SCW 3134 that : “18. The High Court might not have dealt with the question of motive elaborately but when the presence of the appellant with Balram has been established, motive takes a back seat Appellant must have come to the place of occurrence. He came with a knife. The High Court might not have dealt with the question of motive elaborately but when the presence of the appellant with Balram has been established, motive takes a back seat Appellant must have come to the place of occurrence. He came with a knife. The knife injuries were found . Even if the prosecution has not been able to establish as to the exact role played by each of the accused, the fact that both the accused had common intention to commit the crime stood established. Submissions of the learned counsel for the State in this behalf are of some significance. The learned Trial Judge as also the Trial Court cannot be said to have committed any error in relying upon the testimony of the P.W.3 in part. It is in our opinion permissible in law (See Soma Bhai Vs. State of Gujarat AIR 1975 SC 1453).” 15. In view of the above, the motive had become irrelevant if the evidence of Babu PW1 and injured Budha PW2 would be found credible and cogent. 16. Learned counsel for the accused/appellants further contended that there was enmity in between the parties, as such, the entire prosecution evidence becomes doubtful and it cannot be relied upon. The accused/appellants has filed a certify copy of the complaint in criminal case No. 104/1988, titled as Jabir Hussain Vs. Mohd. Rafiq and others u/s 323, 324, 504 and 506 I.P.C. before the Additional Munsif Magistrate, Kashipur on 27.05.1988. The said complaint was dismissed vide order dated 20.11.1988. The copy of the order has been filed by the defence. It is revealed from the document that a complaint was filed before the court which was dismissed on 30.11.1988. The date of the incident is 02.08.1988 and the said complaint is said to have been filed before the date of the incident. Thus, it is established that there was some criminal litigation pending in between the parties at the time of the incident. It is also settled proposition of law that the animosity is a double edge weapon which cuts both sides. It could be a ground for false implication and it could also be a ground for assault, which is because there was a criminal litigation pending before the parties could not be a sole ground to discard the entire evidence on that ground. It could be a ground for false implication and it could also be a ground for assault, which is because there was a criminal litigation pending before the parties could not be a sole ground to discard the entire evidence on that ground. If otherwise, the testimony of the witnesses inspire confidence, then the above fact would become irrelevant for the purposes. The evidence did not require further corroboration to seek the conviction of the accused/appellants. Thus, I do not find any force in the contention of the learned counsel for the accused/appellants. 17. Learned counsel for the accused/appellants further contended that there is difference about the place of occurrence. The learned Brief Holder refuted the contention and contended that there is no inconsistency or variation with regard to the place of incident. The learned counsel for the accused/appellants further contended that Babu PW1 has stated in his evidence that when he alongwith his father injured Budha PW2 reached in front of the house of the accused/appellant Hanif, the accused/appellants with co-accused Akhlakh Ahmad were present at the spot near the house of Shyam Lal which is situated towards the North of the house of accused/appellant Hanif. Budha PW2 has stated in his evidence that the accused/appellants and the co-accused Akhlakh Ahmad were standing near the Atta Chakki. The learned counsel for the accused/appellants further submitted that both the witnesses have changed the position of the standing of the accused/appellants at the spot, as such, the entire evidence becomes doubtful. The site plan which is Ex. Ka.2 reveals that Atta Chakki is situated towards the East of the kharancha and South of the place of the incident. The house of Shyam Lal is situated towards the North of the place of the occurrence. It is established law that things which has been seen by the Investigating Officer by his own eyes and has proved before the Court is admissible in evidence. Perusal of the site plan clearly reveals that house of Shyam Lal is situated on the North side of the court-yard; Atta Chaki is situated on the Eastern/Southern side of the said courtyard; and kharancha is existed in front of the courtyard. All these places are adjacent to each other. Both the witnesses have stated that they were standing near the house of Shyam Lal or near the Atta Chaki. All these places are adjacent to each other. Both the witnesses have stated that they were standing near the house of Shyam Lal or near the Atta Chaki. They have not specifically stated that they were standing at Atta Chaki or in the house of Shyam Lal. Thus, this proposition as suggested by the learned counsel for the defence is of no avail to him. The perception of the witnesses with regard to narrating a fact before the court may vary according to the perception of the witnesses. A witness may call a thing/spot in several ways and manners but in actual it may be the same. They all have stated that the incident occurred in front of the house of accused/appellant Hanif on the road, near the house of Shyam Lal and atta chaki. Thus, I do not find any inconsistency or variations in between the said evidence of the witnesses. Thus, I do not find any force in the said contention. 18. The learned counsel for the accused/appellants further contended that blood was not taken by the Investigating Officer at the spot, hence the place of occurrence becomes doubtful. The learned Brief Holder refuted the contention and contended that it is merely remissness on the part of the Investigating Officer. He further contended that the evidence also suggests that the blood could not have been taken at the place of occurrence. The learned counsel for the accused/appellants also contended that there is a different version regarding the presence of the blood at the spot. If the Investigating Officer has not taken the blood from the place of occurrence, it is merely a remissness on the part of the Investigating Officer. Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting the accused solely on account of the defect; to do so would tantamount to play into the hands of the investigating officer if the investigation is designedly defective. {See Dhanaj Singh Alias Shera & others Vs. State of Punjab 2004 (3) SCC p/654, Chhotu Vs. State of Maharashtra 1997 Cri. L.J. 4394 (SC) and Karnel Singh Vs. State of M.P. 1995 Cri. L.J. 4173}. In view of the above. {See Dhanaj Singh Alias Shera & others Vs. State of Punjab 2004 (3) SCC p/654, Chhotu Vs. State of Maharashtra 1997 Cri. L.J. 4394 (SC) and Karnel Singh Vs. State of M.P. 1995 Cri. L.J. 4173}. In view of the above. I do not find any force in the contention raised by the learned counsel for the accused/appellants. 19. The learned counsel for the accused/appellants contended that the co-accused Akhlakh Ahmad had been acquitted by the trial court on the specific charge u/s 308 read with 149 I.P.C. who had been assigned the role of exhorting to other accused/appellants due to which, the accused/appellants wielded lathies on the person of the injured Budha PW2. The accused/appellants have been convicted u/s 323 and 325 I.P.C. simplicitor. It was further pointed out that the State has not preferred any appeal against the acquittal of the co-accused Akhlakh Ahmad. It was further pointed out that there was unlawful assembly by the accused/appellants and the evidence of the unlawful assembly cannot be held to be credible and cogent when the accused Akhlakh Ahmad has already been acquitted by the trial court. It was further contended that the accused/appellants wielded lathies upon the injured Budha PW2 on the exhortation of accused Akhlakh Ahmad and the said part of the evidence had been disbelieved by the trial court. It was further contended that now this Court could not convict the accused/appellants u/s 149 I.P.C. as the trial court has not convicted them with the aid of Section 149 I.P.C. The learned Brief Holder appearing on behalf of the respondent/State contended that there are more than five persons who stood for trial before the trial court. The trial court has acquitted only one accused out of six. The accused/appellants have been convicted by the trial court. He further contended that the trial court has given the findings that the accused/appellants also formed unlawful assembly, in the body of the judgment, though due to clerical error conviction has not been passed with the aid of Section 149 I.P.C. Learned counsel for the State/respondent further contended that the Court while hearing the appeal can go into the question as to whether the acquittal recorded by the trial court of the co-accused was wrong or not. If the court’s come to the conclusion that the trial court has recorded a wrong acquittal, the finding of the appellate court would not result the set aside of the acquittal recorded by the trial court. The Appellate Court can only held that the acquittal was wrong and the acquittal for the other charges would stand good. He further contended that there was sufficient evidence to convict the accused Akhlakh Ahmad but it was not taken into account. Apart from this, the accused/appellants have been convicted by the trial court. The trial court has framed charge u/s 149 I.P.C. and there is omission of not convicting the accused/appellants with the aid of Section 149 I.P.C. The learned counsel for the accused/appellants relied upon the judgment of the Hon’ble Apex Court in the cases of Nanak Chand Vs. State of Punjab, AIR 1955 S.C. p/274 (Vol. 42, C.N. 48); Lakhan Mahto and others Vs. State of Bihar, AIR 1966 SC p/1742 (V. 53 C. 349); Lalji and others Vs. State of U.P., AIR 1989 SC p/754. It is true that the prosecution has not established which injuries have been caused by which of the accused and the simplicitor conviction has been recorded by the trial court. It is also true that the trial court has framed the charge against accused/appellants u/s 308 r/w 149 I.P.C. It is also true at page 6 para 2 of the judgment, the trial court has given the following finding : ßmijksDr dFku ls ;gk¡ ;g dguk vuqfpr ugha gksxk fd vfHk;qDr eksgEen jQhd] “kjhQ] tkus vkye] guhQ o “kelqnnhu ds fo#) ;g iw.kZ :i ls lkfcr gS fd mUgksaus ,d jk; gksdj fnukad 2-8-88 dks 8 cts lqcg xzke jEiqjk ,d uktk;t etek dk;e fd;k vkSj cq)k dks ykfB;ksa ls ekjihV djds lk/kkj.k o xEHkhj pksVsa igqapkbZ vkSj bl izdkj mUgksus èkkjk 147@323@325 Hkkñnñ lafgrk dk vijk/k fd;k ftlds fy;s os nf.Mr gksus ;ksX; gSAÞ 20. Thus, the trial court has observed that the accused/appellants came at the spot with a common object and caused the simple and grievous injuries on the person of the injured by wielding lathies on his person. The learned counsel for the accused./appellants further contended that the prosecution has not established the common object and the finding recorded by the trial court is against the record.. The learned counsel for the accused./appellants further contended that the prosecution has not established the common object and the finding recorded by the trial court is against the record.. It was further submitted that they have no common intention to join and commit the offence as alleged against them. As I have pointed out while narrating the evidence it is in the evidence that the accused Akhlakh Ahmad was standing near the house of Shyam Lal and the accused/appellants were also standing there. The accused/appellants were holding lathies in their hands and the accused Akhlakh Ahmad was holding tun in his hand. Accused Akhlakh Ahmad exhorted the accused/appellants to kill the injured Budha PW2 and the accused/appellants wielded lathies on the injured. For the purpose of attracting section 149 IPC, it is not necessary that there should be a pre-concert by way of a meeting of the persons of the unlawful assembly as to the common object. If a common object is adopted by all the persons and shared by them, it would serve the purpose. In the case of Bishna Vs. State of W.B. 2006(1) SCC (Cri.) 696 has held that : “63. Mizaji v. State of U.P. 1959 Cri. L.J. 777 it was observed : “Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression ‘know’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and al the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and al the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.” In Masalti V. State of U.P., AIR 1965 SC 202, it was held : “17. ..........What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly..................” 21. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly..................” 21. In fact, Section 149 makes it clear that if 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. 22. The Hon’ble Supreme Court in Bhajan Singh v. State of U.P. 1974 SCC (Cri.) 604 : “13. Section 149 IPC constitutes, per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly, known or unknown. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well knit with what followed as the dangerous finale of, call it, the beating. This is not a case where something foreign or unknown to the object has taken place all of a sudden. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused.”. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly.” 23. Section 149 IPC consists of two parts. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly.” 23. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. 24. The Hon’ble Supreme Court has observed in the case of Masalti Supra, which is as follows : “15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. The Hon’ble Supreme Court has observed in the case of Masalti Supra, which is as follows : “15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults he intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to Sift the evidence carefully and decide which part of it is true and which is not.” 16. ..................... 17. ..................... Section 149 makes it clear that if 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, 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly..........” 25. The above decision was also followed in the decisions of the Hon’ble Apex Court in Charan Singh & others Vs. State of U.P. 2004 (4) SCC 205, Ram Dular Rai Vs. State of Bihar 2003(12) SCC 352 and Bishna Vs. State of W.B. 2006(1) SCC (Cri.) 696. 26. It is in the evidence of the prosecution that all the accused persons were present at the spot and on the exhortation of the accused Akhlakh Ahmad, the other accused/appellants wielded lathies on the person of the injured due to which he sustained the injuries. Thus, it is evident that they had a common object to wield lathies on the person of the injured Budha PW2. The accused/appellants were five in numbers and the commission of the offence has been committed in furtherance of the common intention to cause the injuries on the person of the injured Budha PW2. As such, common object of the accused/appellants is established by the cogent evidence. 27. Now, the question remains on the factual aspect as to whether the evidence of prosecution can be belied on the ground that the accused Akhlakh Ahmad has been acquitted by the trial court on whose exhortation the accused/appellants wielded lathies on the person of the injured/According to the defence the main object or the genesis of the crime is destroyed by acquitting the accused Akhlakh Ahmad by the trial court. As such, the accused/appellants cannot be held to be guilty of the offence with the aid of Section 149 I.P.C. The learned Brief Holder refuted the contention. It is a settled position of law that the Court while hearing the appeal can go into the question as to whether the acquittal recorded by the trial court of the co-accused was wrong or not. If the court comes to the conclusion that the trial court has recorded a wrong acquittal, the finding of the appellate court would not result the set aside of the acquittal recorded by the trial court. The Appellate Court can only held that the acquittal was wrong and the acquittal for the other charges would stand good. In the case of Nallabothu Venkaiah Vs. State of A.P. reported in 2002 SCC (Cri.) 1615 has held in paras 24 & 25 as follows : “24. The Appellate Court can only held that the acquittal was wrong and the acquittal for the other charges would stand good. In the case of Nallabothu Venkaiah Vs. State of A.P. reported in 2002 SCC (Cri.) 1615 has held in paras 24 & 25 as follows : “24. On an analytical reading of a catena of decisions of the Hon’ble Apex Court, the following broad proposition of law clearly emerges: (a) the conviction under Section 302 simplicitor without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstances would not impede the conviction of the appellant under Section 302 read with Section 149 IPC : (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 read with Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved. 25. We have already held that Accused 3, 4, 5, 7, 8 and 10 have been wrongly acquitted by the High Court discarding the natural and reliable evidence tendered by three eyewitnesses PWs 1 to 3. If that is so, the acquittal of Accused 3, 4, 5,7, 8 and 10 would not affect the conviction of the appellant under Section 302 with the aid of Section 149 though their acquittal stood because specific overt acts have been attributed to the appellant by the eyewitnesses, corroborated by medical evidence, which are independently sufficient in the ordinary course of nature to cause the death of the deceased. 28. In view of the above proposition of law, I have to examine as to whether the acquittal of co-accused Akhlakh Ahmad was wrongful acquittal recorded by the trial court or not. Perusal of the judgment clearly reveals that the trial court has acquitted the accused Akhlakh Ahmad on the following grounds. 29. The first ground which has been alleged by the prosecution is that the accused Akhlakh Ahmad had a motive to cause the injuries on the person of the injured Budha PW2 because he did not cast vote in his favour in the election. 29. The first ground which has been alleged by the prosecution is that the accused Akhlakh Ahmad had a motive to cause the injuries on the person of the injured Budha PW2 because he did not cast vote in his favour in the election. When the accused Akhlakh Ahmad met to injured Budha PW2 on the date of the incident, he exhorted to cause injuries on the person of the injured Budha PW2 on this pretext. The trial court has disbelieved the motive on the ground that both injured Budha PW2 and accused Akhlakh Ahmad resides in the same village and they had met several times on the roads but the accused Akhlakh Ahmad did not assault the injured. The trial court has also held that election have already been held two months ago from the date of the incident. As I have already held earlier that the motive is not sine-quo-non for establishing the guilt if the evidence is credible and cogent. The accused cannot be acquitted on that ground alone. 30. The second ground which the trial court has taken into consideration was that there is a discrepancy about the place of occurrence in the site plan as well as in the statement recorded u/s161 Cr.P.C. The trial court has held as under : ßblds vfrfjDr ckcw vfHk;kstu lk{kh la[;k 1 vius c;ku esa dgrk gS fd v[kyk[k [kMUts ds ikl “;ke yky ds edku ds nf{k.k dh vksj FkkA tc fd cq)k et:o vius c;ku ds eq[; izsPNk esa v[kyk[k dks pDdh ds ikl [kM+k FkkA uD”kk utjh esa edku “;ke o pDdh fHké fHké LFkku ij fn[kk;s x;s gSaA ;fn vfHk;qDr v[kyk[k ekSds ij mifLFkr gksrk rks et:o o mldk yM+dk ckcw v[kyk[k ds feyus dk ,d gh LFkku crkrsAÞ 31. The site plan is merely a rough sketch and it cannot postulate that the spot marked on the map is in exact relation to the places shown in the site plan. The mark on the sketch-map was put by the I.O. who was obviously not an eyewitness of the incident. He could only have put it there after taking the statements of the witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the I.O. on the basis of the statements made by the witnesses to him. He could only have put it there after taking the statements of the witnesses. The marking of the spot on the sketch-map is really bringing on record the conclusion of the I.O. on the basis of the statements made by the witnesses to him. Thus, in my opinion it would not be admissible in view of the provisions of Section 162 of the Code of Criminal Procedure, for it is in effect nothing more than the statement of the I.O. that the injured eye witnesses told him that the deceased/injured were at such and such place at the time when they were hit. The sketch-map would be admissible so far as it indicates all that the I.O. saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the I.O. would be inadmissible in view of the clear provisions of Section 162 of the Code of Criminal Procedure as it will be no more than a statement made to the police during investigation. The Hon’ble Supreme Court has held in State of U.P. Vs. Babu 2004 SCC (Cri.) 144 that : “5. A bare perusal of the High Court’s judgment goes to show that its approach was rather casual and no effort was made to analyse the evidence. It is to be noted that the High Court did not examine the evidence of PWs 1 and 3 with the required care. Great emphasis was laid by the High Court on the fact that in the site plan the place where the gaslight was found had not been indicated. The site plan is not substantive evidence. The High Court seems to have proceeded on the basis that omission to indicate the location of the gaslight in the site plan was fatal. This Court in Shakti Patra v. Sttae of W.B. 1981 SCC (Cri.) 644 held that where a prosecution witness testified that he had identified the accused in the light of the torch held by him, the presence of torch would not be said to be not proved on the ground that there was no mention of the torch in the FIR or in the statement of the witness before the police, when there was testimony of other witnesses that when they reached the spot they found the torch burning. To similar effect is the conclusion in Aher Pitha Vajshi v. State of Gujarat 1983 SCC (Cri) 607. It would be proper to take note of what was stated by this Court in George v. State of Kerala 1998 SCC (Cri.) 1232 regarding statements contained in an inquest report. The statements contained in an inquest report, to the extent they related to what the investigating officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by Section 162 of the Code of Criminal Procedure, 1973 (in short “CrPC”). The position is no different in case of a site plan.” 32. In the case of State of Rajasthan Vs. Bhawani & another 2003 (7) SCC p/291, the Apex Court has held as under : “11. The High Court has extensively relied upon the site plan prepared by the investigating officer for discarding the prosecution case and for this purpose has referred to the place from where the accused are alleged to have entered the nohara, the place from where they are alleged to have fired upon the deceased and also has drawn an inference that the place wherefrom the accused are alleged to have fired upon the deceased, the shot could not have hit the houses on the eastern side of the nohara. Many things mentioned in the site plan have been noted by the investigating officer on the basis of the statements given by the witnesses. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible. This legal position was explained in Tori Singh Vs. Obviously, the place from where the accused entered the nohara and the place from where they resorted to firing is based upon the statement of the witnesses. These are clearly hit by section 162 CrPC. What the investigating officer personally saw and noted alone would be admissible. This legal position was explained in Tori Singh Vs. State of U.P. AIR 1962 SC 399 in the following words : “A rough sketch map prepared by the Sub-Inspector on the basis of statements made to him by witnesses during the course of investigation and showing the place where the deceased was hit and also the places where the witnesses were at the time of the incident would not be admissible in evidence in view of the provisions of section 162 CrPC, for it is in effect nothing more than the statement of the Sub-Inspector that the eyewitnesses told him that the deceased was at such and such place at the time when he was hit. The sketch map would be admissible so far as it indicates all that the Sub-Inspector saw himself at the spot; but any mark put on the sketch map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of section 162 CrPC as it will be no more than a statement made to the police during investigation. Therefore, such marks on the map cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, if he was standing at the spot marked on the sketch map.” 33. In view of the above, the fact that the sketch map or the site plan cannot be taken into account which is based on the statement of the witnesses till they have been contradicted as provided u/s 145 of the Indian Evidence Act. Thus, the trial court has erred in taking into account the inadmissible evidence while disbelieving the oral evidence without taking the recourse of Section 145 of the Indian Evidence Act. In view of the above, the learned trial court has erred in acquitting the accused Akhlakh Ahmad. 34. Thus, the trial court has erred in taking into account the inadmissible evidence while disbelieving the oral evidence without taking the recourse of Section 145 of the Indian Evidence Act. In view of the above, the learned trial court has erred in acquitting the accused Akhlakh Ahmad. 34. The third ground on which the accused Akhlakh Ahmad has been acquitted is that the independent witnesses Nazir Ahmad and Shakil Ahmad have not been produced before the Court to corroborate the incident who were said to be the independent witnesses of the incident. These witnesses are also named in the F.I.R. As I have pointed out earlier that the District Government Counsel has discharged these witnesses on the ground that these witnesses were not supporting the prosecution version and they have come to the Court alongwith the accused and these witnesses were discharged by the prosecution. As pointed out earlier that if the evidence on record which is produced by the prosecution is otherwise credible and cogent, the entire evidence cannot be thrown out on the ground that the other witnesses were not produced by the prosecution. For the same, the evidence of the injured as well as other witnesses would have to be scrutinized by the trial court. Thus, this ground is of no avail till the Court comes to the conclusion that the evidence already produced is not credible and cogent. It has to be seen what the quality of the witnesses is. It is the quality of the evidence and not the quantity, which is required. Thus, the trial court has erred in giving the finding of acquittal of accused Akhlakh Ahmad on this ground also. While the trial court has believed the prosecution story for the other accused/appellants. 35. The fourth ground on which the participation of accused Akhlakh Ahmad has been disbelieved was that he did not fired upon the injured Budha PW2. Why a person had not opted to fire upon the injured would depend upon the mental status of the accused. The mental status of the accused. The mental status cannot be spelt out by other persons. A person behaves differently in different situations. The action and the conduct of not firing upon the injured would not itself lead to take an inference that the credible and cogent evidence is not reliable. The mental status of the accused. The mental status cannot be spelt out by other persons. A person behaves differently in different situations. The action and the conduct of not firing upon the injured would not itself lead to take an inference that the credible and cogent evidence is not reliable. The learned trial court has erred in acquitting the accused Akhlakh Ahmad on this ground also. The learned trial court has erred in holding that there was enmity in between the parties. As I have pointed out earlier that animosity is a double-edged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. Now, the only fact remains that as to whether the evidence of Babu PW1 and Budha PW2 is credible and cogent or not. 36. The trial court while appreciating the evidence has held that the evidence with regard to the accused/appellants is credible and cogent and is not a tainted one. Whereas the trial court has acquitted the accused Akhlakh Ahmad on the ground as indicated above. 37. Budha PW1 is the injured witness of this case. It is settled position of law that the testimony of the injured witness is sufficient to base the conviction and no further corroboration is required. The presence of the injured witnesses cannot be discarded lightly. He was cross-examined at length but nothing could be elicited from his evidence to discard his testimony. His testimony is credible and cogent. The testimony of an injured witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence lends support to his testimony that the witnesses were present during the occurrence. It would be the endeavour of the victim to see that the real wrong doers are arrested and punished for their acts and he would not implicate wrong person in the crime so as to allow the real offender to escape unpunished. (Vide Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl.) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. 38. (Vide Narendra Nath Khaware Vs. Parasnath Khaware and others 2003 SCC (Crl.) 1144 and State of U.P. Vs. Kishan Chand and others 2004 SCC (Cri) 2013}. 38. Babu PW1 is also eyewitness of the incident and he fled away from the spot when the accused/appellants started wielding lathies on the person of the injured Budha PW2. He has given the vivid details of the incident in his evidence. The trial court has found evidence of Babu PW1 and Budha PW2 credible, cogent and trustworthy with regard to participation of the accused/appellants in the said offence. The evidence of Babu PW1 and Budha PW2 remains consistent and the genesis of the incident had not been disturbed during his cross-examination. I have gone through the entire evidence as well as the documents filed by the prosecution and the defence. Perusal of the entire evidence reveals that it is totally credible and cogent against the appellants and co-accused Akhlakh Ahmad. The witnesses have been cross-examined at length but nothing has been elicited to discredit their evidence. The evidence of the prosecution is further supported by the medical evidence as well as by the prompt report of the incident. I do not find any force in the contentions raised by the learned counsel for the accused/appellants. The findings recorded by the trial court with regard to the conviction of the accused/appellants is credible and cogent. So far as the evidence with regard to presence of the accused Akhlakh Ahmad at the spot and his exhortation is concerned, it remains consistent, though he was acquitted by the trial court. The credible and cogent evidence with regard to accused Akhlakh Ahmad has been discarded by the trial court which was not proper in the facts and circumstances of the case as I have indicated in the preceding paragraphs of my judgment. Thus, the acquittal of the accused Akhlakh Ahmad was wrong, though it will stand as against him as it would not disturb his acquittal, though it was a wrong acquittal. Thus, the common intention as indicated by the prosecution is established beyond reasonable doubt. 39. The learned counsel for the accused/appellants further contended that the accused/appellants cannot be convicted with the aid of Section 149, if they have not been convicted by the trial court. Thus, the common intention as indicated by the prosecution is established beyond reasonable doubt. 39. The learned counsel for the accused/appellants further contended that the accused/appellants cannot be convicted with the aid of Section 149, if they have not been convicted by the trial court. The learned counsel for the accused/appellants relied upon the judgment of the Hon’ble Apex Court in the cases of Nanak Chand Vs. State of Punjab, AIR 1955 S.C. p/274 (Vol. 42, C.N. 48); Lakhan Mahto and others Vs. State of Bihar, AIR 1966 SC p/1742 (V. 53 C. 349); Lalji and others Vs. State of U.P., AIR 1989 SC p/754. The precise question in these appeals was to be decided by the Hon’ble Apex Court is as to whether in view of the injuries caused to the injured by the unlawful assembly which is punishable under section 302 and other section of I.P.C. with the aid of Section 149 I.P.C., the participation of each individual member of the assembly would be necessary. In all these cases, either no simplicitor charge u/s 302 or other substantive offence was framed. There were less than five persons convicted and the accused were convicted u/s 302 I.P.C. or other offence simplicitor without the aid of Section 149 I.P.C. The Hon’ble Apex Court has held that if the accused remains less than five and the offence charged u/s 302 simplicitor has not been framed, the accused cannot be convicted in the case. It was further held that in such situation the charge of substantive offence must have been framed and the individual act of the accused/appellants should have been proved by the prosecution. But in this case, the charge has been framed under Section 149 Cr.P.C. (See Dumpala Chandra Reddy Vs. Nimakayala Balireddy and others, 2008 AIR SCW p/5151. It is clear that if the charges framed and the findings are recorded by the trial court against the accused/appellants and this court also comes to the conclusion that the acquittal was based on wrong ground, the accused can be convicted u/s 325 I.P.C. read by 149 I.P.C. I do not find any force in the contention raised by the learned counsel for the accused/appellants. 40. The learned counsel for the accused/appellants further contended that the accused/appellants were below 30 years of age at the time of the commission of the offence. 40. The learned counsel for the accused/appellants further contended that the accused/appellants were below 30 years of age at the time of the commission of the offence. He further contended that one of the accused Shamshuddin was about 18-½ years of age at the time of the incident. He further contended that the accused/appellants are entitled to get the benefit of the Probation of First Offenders Act. He further contended that the sentence awarded by the trial court did not commensurate with the offence of the case. Learned Brief Holder refuted the contention and contended that the trial court has rightly convicted the accused/appellants and awarded the sentence. After having regard to the facts & circumstances of the case, the nature of the offence as also the participation of the accused/appellants in the commission of the offence; the injuries sustained by the injured which ultimately led the imputation of the leg on later point of time, it would not be expedient to release the accused/appellants on probation of good conduct as submitted by the learned counsel for the accused/appellants. The sentence which has been passed by the learned trial court while convicting the accused/appellants u/s 325 I.P.C. did not commensurate with the facts and circumstances of the case. The accused/appellants are convicted u/s 147 for a period of six months; u/s 323 for a period of three months; and u/s 325 read with 149 I.P.C. for a period of six months instead of three years as awarded by the trial court u/s 325 I.P.C. The imposition of fine is hereby confirmed. 41. In view of the above, the conviction against the accused/appellants is hereby affirmed. The sentenced imposed by the trial court for a period of six months and three months against the accused/appellants u/s 147 and 323 I.P.C. is hereby confirmed. However, the sentence imposed by the trial court for a period of three years u/s 325 I.P.C. is hereby modified that the accused/appellants shall undergo six months imprisonment u/s 325 read with 149 I.P.C. The imposition of fine is hereby confirmed. 42. The appeal is partly allowed. 43. Let the lower court record be sent back to the court concerned for compliance.