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2009 DIGILAW 5375 (MAD)

Maganti Satyanarayana v. State of A. P.

2009-12-05

CHENNAKESAV REDDI, SRIRAMULU

body2009
JUDGMENT Sriramulu, J.-This appeal preferred by five accused in S.C. No. 96 of 1981 on the file of the Court of the Sessions Judge, East Godavari is directed against the judgment dated 2nd December, 1981, convicting and sentencing each of them for having committed the murders of the deceased No. 1 Kurakula Chakram and deceased No. 2 Peddisetti Rajababu on 19th May, 1981, at about 6 P. M. near the Timber Depot of Peddisetti Lakshmanaswami (P.W. 2) in Gollaprolu village of Pithapuram taluq. A-1 and A 2 were sentenced to Imprisonment for life for the offence under section 302, Indian Penal Code, for causing the murder of Kurakula Chakram (deceased No. 1). A-4 is sentenced to Imprisonment for Life for the offence under section 302, Indian Penal Code, for causing the murder of Kurkula Chakram (deceased No. 1). A-4 is sentenced to Imprisonment for Life for the offence under section 302 , Indian Penal Code, for causing the murder of Peddisetti Rajababu (deceased No 2), each of A-3 to A-5 were sentenced to Imprisonment for Life for the offence under section 302 , read with 149 , Indian Penal Code, for the murder of Chakram (D-1) each, of A-1, A-2, A-3 and A-5 were sentenced to Imprisonment for Life for the offence under section 302 read with 149, Indian Penal Code for the murder of Peddisetti Rajababu (D-2), A-1 A-2 and A-4 were convicted and sentenced toundergo R. I. for two years for the offence under section 148, Indian Penal Code and A-3 and A 5 were convicted and sentenced to undergo R. I. for one year for the offence under section 147, Indian Penal Code. All the sentences were directed to run concurrently. 2. The case of the Prosecution briefly stated is as follows: The deceased No. 1 Kurakulu Chakram, the deceased No. 2 Peddisetti Rajababu, the material witnesses for prosecution and all the accused are residents of Gollaprolu within the limits of Pithapuram Police Station. A-1 and A-4 are the sons and A.-5is the son-in-law of A-3. A-2 is the friend of A-1. The deceased No. 1 Chakram is the brother-in-law of P.W. 1 The deceased No. 2 Rajababu is the son of P.W. 5 and grandson of P.W. 2. P.W. 2, P.W. 5 and the deceased No. 2 Rajababu were residing in different portions of the same house of P.W. 2. A-2 is the friend of A-1. The deceased No. 1 Chakram is the brother-in-law of P.W. 1 The deceased No. 2 Rajababu is the son of P.W. 5 and grandson of P.W. 2. P.W. 2, P.W. 5 and the deceased No. 2 Rajababu were residing in different portions of the same house of P.W. 2. P.W. 2 and P.W. 5 have a Timber Depot attached to the house of P.W. 2. P.W. 3 is having his cattle-shed near the Timber Depot of P.W. 2. 3. The occurrence of murder of the deceased No 1 Chakram and deceased No. 2 Rajababu took place on the main road in front of the house of A-3, the cattle shed of P. A-3 and near the Timber Depot of P.W. 2. A-1, A-3, A-4 and A-5 reside in the house of A-3 which adjoins the house of P.W. 2. 4. On the night of 18th May, 1981 i.e., the previous night to the date of the occurrence, there was an altercation in the house of A-3 between A-1, A-2 and A-3 on one hand and P. W. 5 his son and his; lame brother Arjana on the other. P. W. 5 went along with his lame brother Arjana and his son to the house of A-3 and questioned A-3 as to why A-1 and A-2 should cut tender palmyrah fruit from the palm tree situate in the field of Arjana. 5. On 19th May, 1981, was the day for the withdrawal of nominations for panchayat Elections. At about 6 P.M. on that day P.W. 1 and the deceased No. 1 Chakram happened to meet near the banyan tree which was at a distance of one furlong from the house of P.W. 2 and A-3. At that time both of them saw A-1 and A-2 running towards the house of A-3. At about 6 P.M. on that day P.W. 1 and the deceased No. 1 Chakram happened to meet near the banyan tree which was at a distance of one furlong from the house of P.W. 2 and A-3. At that time both of them saw A-1 and A-2 running towards the house of A-3. In view of the altercation that took place on the evening of 18th May, 1981 between A-1, A-2 and A-3 on one hand and P.W. 5 his son and his brother on the other, out of curiosity to know the consequence of A-1 and A-2 walking hastily to wards the house of A-3, P.W. 1 and the deceased No. 1 Chakram went to the Timber Depot of P.W. 2 where P.W. 2 and the deceased No. 2 were chit-chatting, and enquired them as to the reason of A-1 and A-2 walking nastily in to the house of A-3 and enquired them whether there was any further galata. When P.W. 2 and the deceased No. 2 Rajababu informed that there was no galata, P.W. 1 and the deceased No. 1 were proceeding from the Timber Depot of P.W. 2. At that juncture A-1 and A-2 came running from the house of A-3 and A-1 suddenly took out a dagger from his waist and stabbed the deceased No 1 Chakram on his left side abdomen. Similarly A-2 took out a dagger from his waist and stabbed the deceased No. 1 on his left shoulder and the deceased No. 1 fell down On seeing this the deceased No. 2 Rajababu began to run, to deceased No. 1. In the meanwhile A-3, A-4 and A-5 came out of the house of A-3 and A-4 and A-5 caught hold of the hands of deceased No 2 Rajababu and A-4 took out a knife from his waist and stabbed the deceased No. 2 Rajababu on his back. Both the deceased No. No 1 Chakram and deceased No. 2 Rajababu died on the spot instantaneously, due to the injuries caused by the assailants. The attack on both the deceased was witnessed by P.Ws. 1, 2, 3 and 4. At about 6 P.M. P.W. 7 informed the Sub-Inspector of Police, Pithapuram (P.W. 16) on telephone that two dead bodies were lying on the road. The attack on both the deceased was witnessed by P.Ws. 1, 2, 3 and 4. At about 6 P.M. P.W. 7 informed the Sub-Inspector of Police, Pithapuram (P.W. 16) on telephone that two dead bodies were lying on the road. P. W. 16, the Sub-Inspector of Police, after receipt of the information, made a Oeneral Diary entry and proceeded to the scene of offence. P.W. 1, who was at the place of occurrence made an oral complaint of the assault on the deceased No. 1 Ghakram and deceased No. 2 Rajababu by A-1 to A-5 and his statement was recorded as in Exhibit P-1, The Sub-Inspector of Police found the dead bodies of Chakram and Rajababu with bleeding injuries. The Sub-Inspector sent the first information report. Exhibit P. 1 through a Constable to the Pithapuram Police Station with instructions to register the case under sections 302 and 149, Indian Penal Code. He also informed the Circle Inspector of Police (P.W. 17) about tee offence. After the arrival of the Sub-Inspector (P.W. 16) and the Circle Inspector (P. W. 17) the usual investigation followed. The dead bodies of the deceased No. 1Chakram and deceased No. 2 Rajababu were referred to the Medical Officer (P.W. 9) for postmortem examination. 6. P.W. 9 Dr. Swarnalatha, Woman Assistant Surgeon, Government Hospital, Pithapuram conducted autopsy on the dead bodies of the deceated on 20th May, 1984. On the dead body of deceased No. 1 Chakram she found two ante-mortem stab injuries one on the left side of the abdomen resulting in the cuts of left lung, left lateral part of the spleen and the left kidney. She also found a greivous stab injury on the left back of the chest of the deceased No. 1 Chakram. According to the Doctor, each of the two injuries was fatal and would have caused instantaneous death of the deceased No. 1 Chakram. The same day P.W. 9 held autopsy on the dead bady of the decased No. 2 Rajababu from 12 noon. She found one grievous stab wound on the right back of the chest of the deceased No. 2 Rajababu resulting in cut of the right lower lobe of the lung at hylum. The same day P.W. 9 held autopsy on the dead bady of the decased No. 2 Rajababu from 12 noon. She found one grievous stab wound on the right back of the chest of the deceased No. 2 Rajababu resulting in cut of the right lower lobe of the lung at hylum. The Doctor opined that the injury to the deceased No. 2 was also fatal and that it would have caused instantaneous death Exhibit P-7 and P-8 are the post-mortem certificates issued by the Doctor in respect of the deceased No. 1 and the deceased No. 2 respectively. 7. After completion of the investigation the investigating Officer laid the charge sheet against the accused to 5 for the offences at stated above the accused pleaded “not guilty” to the charges. 8. The prosecution examined 17 witnesses. Two witnesses were examined on behalf of the accused. D.W. 1 has been examined to prove that A-4 was aged about 18 to 20 years by the date of his evidence. D.W. 2 was examined to prove that A-3 has complained of chest pein and Hypertension on 2nd June, 1981 and 23rd July, 1981 while he was lodged in the Central Jail, Rajahmundry and that D.W. 2 on examination found that A-3 was suffering from Hypertension and Cardiac trouble. The defence of the accused was total denial of the offence. 9. The accused were tried, convicted and sentenced for the offence as stated above. 10. In this appeal, Mr. M.B.K. Sastry, the learned Counsel for the appellants contended that the Court below erred in believing the prosecution evidence contained in the testimony of P.Ws. 1. 2, 3 and 4, the alleged eye witnesses to the occurrence, which is highly interested, discrepant, unnatural, improbable and unbelievable to base the conviction of the appellants and that the motive for the offence relied upon by the prosecution was flimsy and was not enough for the accused persons to commit the crime in question. 11. Now the question is whether all or any of the accused are responsible for causing the injuries to the deceased No. 1 Kurakulah Chakram and deceased No. 2 Peddisetti Rajababu leading to their instantaneous deaths:. 12. 11. Now the question is whether all or any of the accused are responsible for causing the injuries to the deceased No. 1 Kurakulah Chakram and deceased No. 2 Peddisetti Rajababu leading to their instantaneous deaths:. 12. The case of the prosecution is that all the accused conjointly committed the murders of the deceased No. 1 Chakram and the deceased No. 2 Rajabubu by intentionally or knowingly causing their deaths in furtherance of their common object of causing the deaths of the deceased No. 1 Chakram and the deceased No. 1 Rajababu by A-1 of them stabbing the deceased No. 1 Chakram with a dagger on his left flank and A-2 of them stabbing him with a dagger on his left shoulder back resulting in his instantaneous death and A-4 among them causing the death of Peddisetti Rajababu (Deseased No. 2) by stabbing him with a dagger on his back resulting in his instantaneous death, during the course of the same transaction while A-3 and A-5 held the hands of the deceased No. 2. 13. The prosecution has attempted to furnish by way of motive the reason why the accused have assaulted the deceased No. 1 Chakram and deceased No. 2 Rajababu. The evidence cansisting the motive aspect of the story of the prosecution is furnished only in the testimony of P.W. 5. It is in the evidence of P.W. 5 that on 18tb May, 1981 i.e. one day prior to the date of the occurrence of offence, on information from his lame brother Arjana that A-1 and A-2 cut tender palmyrach fruit from the palm tree in his field, he along with others went to the house of A-1, A-2 and A-3 and questioned A-3 about it, on account of which there was an altercation among them and that he informed about the altercation to his brother-in-law P.W. 1. Nothing was suggested in the cross-examination of P.W. 5 to show that there was no altercation between A-1, A-2 and A-3 on one side and P.W. 5 and his family members on the other on the night before the date of the occurrence of offence On the contrary it is disclosed from the nature of the questions put to P.W. 1 in his cross-examination on behalf of the accused that A-1 and A-2 were at logger heads with the deceased No. 1 Chakram. It was suggested to P. W. 1 in his cross-examination that about 15 days prior to the occurrence of the offence, the deceased No. 1 Chakram quarrelled with A-2 on account of the dispute in regard to hiring of carts and that the deceased No. 1 took a vow to kill A-2 and then shave his beard and that it was the prosecution party which attacked A-1 and A-2 while they were going to the bazar to load their carts on the date and at the time of the occurrence of offence, waiting at the timber depot of Peddisetti Lakshmanaswami (P.W. 2) From the nature of the questions put to P.W. 1 in his cross-examination it is very much clear that it is the very case of the accused that A-1 and A-2 and P. W. 1 and his men were at logger heads by the date of the occurrence. The learned Sessions Judge, on a consideration of the evidence on record found that there was enough motive for the accused to commit the crime in question. Although we. are satisfied that the prosecution has established that there was enough motive in the present case for the accused persons to commit the crime, yet even if it for the shake of argument, be assumed that the proof of motive is not sufficient or that the prosecution has not been able to establish motive, the prosecution case cannot be thrown out. It has been held by their Lordships of the Supreme Court in Shivaji Sahebrao Bobade v. State of Maharashtra Shivaji Sahebrao Bobade v. State of Maharashtra (1973) Crl L.J. 1783: (1973) 2 S.C.C. 793 : (1973) S.C.C. (Crl) 1033: A.I.R. 1973 S.C. 2622. “Proof of motive satisfies the judicial mind about the likelihood of the author ship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon, if other clinching evidence exists”. 14. Again a reference in this connection may also be made with advantage to Nachhittar Singh v. State of Punjab Nachhittar Singh v. State of Punjab (1975) Crl. L.J. 66: (1975) 3 S.C.C. 266 : (1974) S.C.C. (Crl.) 874: A.I.R. 1975 S.C. 118. 14. Again a reference in this connection may also be made with advantage to Nachhittar Singh v. State of Punjab Nachhittar Singh v. State of Punjab (1975) Crl. L.J. 66: (1975) 3 S.C.C. 266 : (1974) S.C.C. (Crl.) 874: A.I.R. 1975 S.C. 118. wherein their Lordships of the Supreme Court held: “Failure of prosecution to establish the motive for the crime, does not mean that the entire prosecution case has to be thrown overboard”. 15. It thus follows that a duty is cast on the Court to scrutinise the other evidence particularly of the eye-witnesses with greater care. We shall appreciate the evidence on record in this light We have, therefore, to sift and assess the evidence in this case and find out whether the prosecution has proved its case against any or all the accused beyond reasonable doubt. The case of the prosecution mainly rests upon the testimony of P.Ws. 1, 2, 3 and 4 who are eye-witnesses to the occurrence of offence We have therefore, to scrutinise and scan the evidence of these witnesses with more than ordinary caution and circumspection. 16. The case of the prosecution is that the occurrence of offence took place at about 6 P.M. on 19th May, 1981 on the main road at Gollaprolu village near the post Office, opposite to the house of A-3 and the cattle shed of P. W. 3 and near the Timber Depot of P.W. 2. At about 6 p. m on that day while P.W. 1 and P.W. 4 wert at the banyan tree near the bus stand ae Gollaprolu as it was the day for withdrawals of nominations for Panchayat elections, the deceased No. IChakram was going that side carrying a gunny bag on his head containing bran. In the meanwhile A-1 and A-2 were seen going hastily towards the house of A-3. The deceased No. 1 Chakram on seeing A-1 and A-2 going hastily in a running manner towards the house of A 3, suspected their conduct and brought that fact to the notiee of P.W. 1. Then both P.W. 1 and the deceased No. 1 Chakram went towards the Timber Depot of P.W. 1 which adjoins the house of A-3 to find out why A-1 and A-2 were going in that manner to the house of A-3. Then both P.W. 1 and the deceased No. 1 Chakram went towards the Timber Depot of P.W. 1 which adjoins the house of A-3 to find out why A-1 and A-2 were going in that manner to the house of A-3. At that time P.W. 2 was taking rest in in easy chair and his grand-son the deceased No. 2 Rajababu was chatting with him. P.W. 1 and the deceased No. 1 Chakram brought: to the notice of P.W. 2 about A-1 and A-2 running towards the house of A-3 When P.W. 2 assured P.W. 1 and the deceased No. 1 Chakram that nothing was likely to happen, P.W. 1 and the deceased No. 1 Chakram left P.W. 2 and the deceased No. 2 Rajababu and were proceeding on the road. It is at that time A-1 and A-2 came running from the house of A-1, A-1 took out a dagger from his waist and stabbed the deceased No. 1 Chakram on his left abdomen, A-2 took out a dagger from his waist and stabbed the deceased No. 1 Chakram on his left shoulder, as a result of which the deceased No 1 Chakram fell down. On seeing this, the deceased No. 2 Rajababu went towards the fallen deceased No. 1 Chakram. In the meanwhile A-3, A-4 and A-5 came out of the house of A-3. A-3 and A-5 caught hold of the deceased No. 2 Rajababu and A-4 took out a knife from his waist and stabbed the deceased No. 2 Rajababu on his back, as a result of which Rajababu fell down. At that time P.W. 3 was at his cattle-shed sitting on the threshold P.W. 1, P.W. 2, P.W. 3 and P.W. 4 witnessed both the assaults on the deceased No. 1 Chakram and deceased No. 2 Rajababu succumbed to the injuries on the spot and their deaths were instantaneous. P.W. 1 rushed to the fallen deceased No. 2 and laid his head on his lap as a result of which his clothes M. Os. 1 and 2 became blood stained. 17. The evidence of the above mentioned 4 witnesses P.W. 1, P.W. 2, P.W. 3 and P.W. 1 was found by the learned Sessions Judge to be convicing and reliable. After having been taken to that evidence we see no cogent ground to take a view different from that of the Sessions Judge. 1 and 2 became blood stained. 17. The evidence of the above mentioned 4 witnesses P.W. 1, P.W. 2, P.W. 3 and P.W. 1 was found by the learned Sessions Judge to be convicing and reliable. After having been taken to that evidence we see no cogent ground to take a view different from that of the Sessions Judge. It is no doubt true that P.Ws. 1, 2 and 3 are related to the deceased No 1 Chakram and the deceased No. 2 Rajababu. But the relationship of the abovementioned three witnesses with the deceased No. chakram and deceased No. 2 Rajababu would, in our opinion, be not a sufficient ground for discrediting their testimony. Nothing has been suggested in the cross-examination of P.Ws. 1, 2 and 3 to disbelieve or discredit their testimony. In State of Uttar Pradesh v. Samandas State of Uttar Pradesh v. Samandas (1972) Crl.L.J. 487: (1973) 2 S.C.J. 345: (1973) MLJ. (Crl) 504: (1972) 3 S.C.R 58 : (1972) S.C.C. (Crl.) 275: (1972) 3 S.C.C. 201 : A.I.R. 1972 S.C. 677 it was held: “It is well known that the close relatives of a murdered person are most reluctant to spare the real assailant and falsely involve another person in the place of the assailant” 18. Relationship by itself is not a ground to discredit the testimony of witnesses if it lis otherwise found to be consistent and true. (Vide Sarvan Singh v. State of Punjab Sarvan Singh v. State of Punjab (1976) Crl.L.J. 1757: (1976) 4 S.C.C. 369 : (1976) S.C.C. (Crl.) 546: A.I.R. 1976 S.C. 2304; Varghese Thomas v. State of Kerala Varghese Thomas v. State of Kerala (1977)Crl.L.J. 343: (1976) 4 S.C.C. 348 : (1976) S.C.C. (Crl.) 643: A.I.R. 1977 S.C. 701; and Labh Singh v. State of Punjab Labh Singh v. State of Punjab (1976) 2 S.C.J. 176: (1976) MLJ. (Crl.) 423: (1976) 1 S.C.C. 181 : (1975) S.C.C. (Crl.) 812: (1976) Crl.L.J. 21: A.I.R 1976 S.C. 83. 19. A close relative who is a natural witness cannot be regarded as interested witness. (Vide Dalbir Kaur v. State of Punjab Dalbir Kaur v. State of Punjab (1977) 1 S.C.J. 54: (1977) MLJ. (Crl.) 50: (1977) 1 S.C.R. 280 : (1976) 4 S.C.C. 158 : (1976) S.C.C.(Crl) 527: A.I.R. 1977 S.C. 472: (1977) Crl. 19. A close relative who is a natural witness cannot be regarded as interested witness. (Vide Dalbir Kaur v. State of Punjab Dalbir Kaur v. State of Punjab (1977) 1 S.C.J. 54: (1977) MLJ. (Crl.) 50: (1977) 1 S.C.R. 280 : (1976) 4 S.C.C. 158 : (1976) S.C.C.(Crl) 527: A.I.R. 1977 S.C. 472: (1977) Crl. L.J. 273; Masalt v. State of Uttar Pradesh Masalt v. State of Uttar Pradesh (1965) 1 S.C.J. 605: (1965) MLJ. (Crl) 312: (1965)1 (Crl.) L.J. 226: (1964) 8 S.C.R. 133 : A.I.R. 1965 S.C. 202. 20. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. (Vide Dalip Singh v. State of Punjab Dalip Singh v. State of Punjab 1953 S.C.J. 532: 1954 S.C.R. 145: A.I.R. 1953 S.C. 364, Barati v. State of Uttar Pradesh Barati v. State of Uttar Pradesh (1974) Crl. L.J. 709: (1974) S.C.C. (Crl.) 420: (1974) 4 S.C.C. 258 : A.I.R. 1974 S.C. 839; Charan Singh v. State of Punjab Charan Singh v. State of Punjab (1974) S.C.C. (Crl.) 735: (1974) Crl.L.J. 1253: A.I.R. 1975 S.C. 246; and Shankar v. State of Uttar Pradesh Shankar v. State of Uttar Pradesh (1975) Crl.L.J. 634: (1975) S.C.C. (Crl.) 270: (1975) 3 S.C.C. 851 : A.I.R. 1975 S.C. 757. 21. Apart from the evidence of the aforesaid three witnesses P.Ws. 1, 2 and 3 we have the evidence of P.W. 4 who is wholly dis interested witness and he has corroborated the testimony of P.Ws. 1 to 3 in material particulars and we see no cogent ground whatever as to why his evidence be not accepted. 22. The only argument against P.Ws. 1 to 4 is that they are chance witnesses. There is no magic in the comment “chance witness”. Though this is the usual argument its implication is hardly understood In the normal course different persons are bound to follow their own avocations of life and while doing so they are likely to come across incidents which in the ordinary course they never contemplate to see. Unless their evidence is otherwise assailable it cannot be whittled down merely on the theory that they were chance witnesses. In Bahal Singh v. State of Haryana Bahal Singh v. State of Haryana (1976) Crl.L.J. 1568: (1976) 3 S.C.C. 564 : (1976) S.C.C. (Crl) 461: A.I.R. 1976 S.C. 2032. Unless their evidence is otherwise assailable it cannot be whittled down merely on the theory that they were chance witnesses. In Bahal Singh v. State of Haryana Bahal Singh v. State of Haryana (1976) Crl.L.J. 1568: (1976) 3 S.C.C. 564 : (1976) S.C.C. (Crl) 461: A.I.R. 1976 S.C. 2032. it was held: “If by coincidence or chance a person, happens to be at the place of occurrance at the time it is taking place, is called a chance witness and if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautions and close scrutiny”. In the instant case the occurrence took place in broad day light on the main road in Gollaprolu village near post office opposite to the house of A 3 and the Timber Depot of P.W. 2 which adjoin each other and also opposite to the cattle-shed of P.W 3. A-1 to A-3 resile in the house of A-3 which adjoins that of P.W. 2 the deceased No. 2 Rajababu is the grand son of P.W. 2 whoss house and Timber Depot are at a distance of a few yards from the scene of offence. It is in the evidence of P.W. 1 that while he was standing at the banyan tree near the bus stand where number of people had gathered on account of that being a day for withdrawal of nominations for Panchayat elections, he saw A-1 and A-2 walking hastily on the road and going towards the house of A-3 and that out of curiosity and also in view of the altercation that took place on the previous night, himself and the deceased No. 1 Chakram who was going on the way went to the Timber Depot of P.W. 2 where P.W. 2 and the deceased No. 2 were chatting and informed about the movements of A-1 and A-2 and it is only when himself and deceased No. 1 Chakram were returning back and proceeding on the read, at that point of time A-1 and A-2 come out of the house of A-3 and assaulted the deceased Chakram. The evidence of P.W. 1 has been corroborated by the testimony of P.W. 23 and 4 and they also saw P.W. 1 and the deceased No. 1 Chakram going to the Timber Depot of P.W. 2 and then returning and they also saw A-1 and A-2 assaulting the deceased No. 1 Chakram and A-4 assaulting the deceased No. 2 Rajababu, A-1 and A-4 are none other than the sons of A-3, A-5 is the son-in-law of A-3 and A-2 is the friend of A-1. It is in the evidence on record that A-1 and A-3 to A-5 are residing in the house of A-3, who is a neighbour of P. W. 2. 23. It is not unnatural for P.Ws. 1 to 4 to say what they had seen at the scene of occurrence which undeniably occurred at the spot. The witnesses told what they respectively saw at the scene of occurrence and substantially corroborated one another On their evidence it must, therefore, be hold that there were murders of deceased No. 1 Chakram and deceased No. 2 Rajababu at the scene of occurrence on 19th May, 1981 at about 6 p. m. 24. It was further commented on behalf of the appellants that in a small village like the village of the offence when a member of parsons were available at the banyan tree near about the place of occurrence on a public road, though the time of occurrence was before dusk, there were no independent witnesses brought on behalf of the prosecution to support its case. This submission also is without any merit. It is in the evidence of the eye-witnesses that number of other villagers wore attracted towards the scene only after the commission of the offence as the entire occurrence would not have occupied more than a few minutes, it would have useless to call them all as witnesses. They would have been merely stated that they were attracted towards the scene after the assault on the deceased was over. Nothing was elicited in the cross-examination of P.Ws. 1 to 4 to show that any other person was present at the time of the assault and witnessed the assaults on deceased No. 1 Chakram and deceased No. 2 Rajababu 25. The learned Sessions Judge has categorically held that P.Ws. Nothing was elicited in the cross-examination of P.Ws. 1 to 4 to show that any other person was present at the time of the assault and witnessed the assaults on deceased No. 1 Chakram and deceased No. 2 Rajababu 25. The learned Sessions Judge has categorically held that P.Ws. 1, 2, 3 and 4 are natural, probable and reliable witnesses and that their testimony is worthy of acceptance for basing the conviction of the appellants. On a re apprisal of their evidence we are satisfied that they are natural, probable and reliable witnesses and there is nothing in the evidence to disbelieve or discredit their testimony. On their evidence it must, therefore, be held that there were murders of the deceased No. 1 Chakram and deceased No. 2 Plajababu at the scene of occurrence on 19th May, 1981 at about 6 P.M. on the main road in front of the house of A 3, Timber depot of P.W. 2 and cattle-shed of P.W. 3. On the face of the above evidence we are not impressed with the argument of the earned Counsel for the appellants that their evidence has to be rejected on the ground that they are chance witnesses and that P.W. 1, 2 and 3 are related to the deceased No. 1 Chakram and deceased No. 2 Rajababu. On the contrary having given our careful consideration to the ariticism levelled by the learned Counsel for the appellants against the testimony of P.Ws. 1 to 4 we find that the criticism is not valid. After carefully going through the statements of these witnesses who are subjected to a lengthy cross-examination we are of the opinion that they are truthful witnesses on whom reliance can be placed by us, Although a chance witness is not necessarily of false witness we find that the lable of chance witness cannot be attacher to P.Ws 1 to 4 and the learned Sessions Judge has given elaborate reasons as to how they are natural, probable and reliable witnesses. 26. 26. The presence of P.W. 1 also stands amply assured by the prompt lodging of the First Information Report at the very scene of offence itself when the Sub-Inspector P.W. 10 arrived at the place of occurrence on receipt of a telephonic message given by P.W. 7 at about 7 P.M. to the effect that two dead bodies were lying near the Timber depot of P.W. 2 It is in the evidence of P.W. 1 that immediately after the deceased No. 2 Rajababu fell down he rushed to the place and kept Rajababu in his lap on account of which his clothes M. Os. 1 and 2 became blood stained, which were later seized by the investigating Officer at the time of inquest when he was examined. The presence of P.W. 1 is also corroborated by P.W. 2, 3 and 4. P.W. 1 was subjected to lengthy cross-examination, but nothing of any substance has been elicited which may throw a doubt on his presence. Similarly P.Ws. 2, 5 and 4 were subjected to lengthy cross-examination and nothing was elicited in their evidence to disbelieve or discredit their testimony. P.W. 1, 2, 3 and 4 have no motive to perjure against appellants. We are, therefore of the opinion that P.Ws. 1,2,3 and 4 are not chance witnesses; they are natural, probable and true witnesses. The submission of the learned Counsel for the appellants, on the contrary is, therefore, rejected. 27. The medical evidence in the case also corroborates the testimony of P.Ws. 1, 2, 3 and 4. P.W. 9 Dr. Swaranalatha, Woman Assistant Surgeon, Government Hospital, Pithapuram, held autopsy both on the dead body of deceased No. 1 Chakram and deceased No. 2 Rajababu. It is the case of the prosecution that the occurrence of offence took place at about 6 p.m. on 19th May, 1981, that A-1 stabbed the deceased No. 1 Chakram on the left abdomen with a knife and A-2 stabbed him with a knife on the back near the left shoulder and that A-1 stabbed the deceased No. 2 Rajababu on the back with a knife. The First Information Report was registered at 9 P. M. on the strength of the statement Exhibit P-1 of P.W. 1 recorderd by the Sub-Inspector P.W. 16. The inquest was held over the dead body of the deceased No. 1 Chakram between 9P. The First Information Report was registered at 9 P. M. on the strength of the statement Exhibit P-1 of P.W. 1 recorderd by the Sub-Inspector P.W. 16. The inquest was held over the dead body of the deceased No. 1 Chakram between 9P. M. and 10-30 P. M. and inquest over the dead body of the deceased No. 2 Rajababu was held from 11-00 P. m. to 00-30 A. M. by P.W. 17, the Inspector of Police, Pithapuram in the presence of panchas P.Ws. 8 and 12. The autopsy was conducted by the Doctor P.W. 9 on the dead body of the deceased No. 1 Chakram from 10-35 A. M. on 20th May, 1981 and she found a transverse eliprtacal stap would of 4“X 2” × 5 with clean-cut overted edges on the left side of the abdomen, anteriolaterally situated and a longitudinal stab injury of l“X 1” × 6“with clean-cut edges, eliptical on the left back of the chest, infrascapular region 2 ” from mid line. According to the Dector each of these two injuries on the dead body of the deceased No. 1 Chakram are fatal and could have been caused with a sharp edged weapon like a Kaijar or knife. On dis section she found laceration on the left lower lobe of the left lung, on the left lateral part of the spleen, and another cut on the left kidney. According to the Doctor the cut in kidney and spleen correspond to external injury No. 1. It is the opinion of the Doctor that the death of the deceased No. 1 Chakram would have taken place after the commission of the crime more than 18 hours and within 24 hours prior to her post mortem examination. She also, on examination of the dead body of the deceased No. 2 Rajababu found a transverse eliptical stab wound of 2“x 2” × 10“on the right back of the chest, infrascapular region 2“from the midline and on exteronal examination she found the injury 2“in length, 2“in width and 10“in depth on the right back of the chest. On internal examination she found right lower lobe of the lung cut at the hylum corresponding to external injury. According to the Doctor the injuries both to the deceased No. 1 and deceased No. 2 are fatal and that death of each of the deceased would have been instantaneous. On internal examination she found right lower lobe of the lung cut at the hylum corresponding to external injury. According to the Doctor the injuries both to the deceased No. 1 and deceased No. 2 are fatal and that death of each of the deceased would have been instantaneous. The Doctor also opined that the death of the deceased No. 1 Chakram and death of the deceased No. 2 Rajababu would have been caused with knife at about the time of the occurrence of offence. 28. Thus from the medical evidence it stands fully established that the deceased No. 1. had suffered injuries to the spleen and kidnies which proved instantaneously fatal and so also the deceased No. 2 Rajababu suffered fatal injury to right lung. The medical evidence, therefore, lends enough corroboration and assurance of the statements of P.Ws. 1, 2, 3 and 4 about the nature of injuries coused be the accused to the deceased. This the medical evidence fully supports the ocular version given by P.Ws. 1, 2, 3 and 4. 29. The contention of the learned Counsel for the appellant that the first information report was. not lodged at the place of the occurrence at about 7-30 P.M. after the offence when the Sub-Inspector P.W. 16 arrived at the scene of offence in response to a phone call made by P.W. 7 and that the first information report must have been got prepared after due deliberation in the midnight at the police-station, Pithapuram, is based upon mere conjecture. P.W. 1 the Head Constable P.W. 4 and the Sub-Inspector, P.W. 16 denied such a suggestion made to them in their cross-examination by the defence Counsel. Nothing was brought out in the cross-examination to shake the evidence of P.Ws. 1, 1.4 and 16. 30. In view of the discussion above and after carefully considering the evidence on the record, we are of the opinion that the version of the prosecution as narrated by the prosecution witnesses P.Ws. 1 to 4 is clear, consistent and convincing. All the facts spoken to by them strike as nothing but true. They are quite natural witnesses. There is absolutely nothing in their evidence to disbelieve or discredit them. They corroborate each other. Their evidence isalso corroborated by the circumstances brought but in the case as discussed above. The learned Sessions Judge believed them, and we consider it, rightly. All the facts spoken to by them strike as nothing but true. They are quite natural witnesses. There is absolutely nothing in their evidence to disbelieve or discredit them. They corroborate each other. Their evidence isalso corroborated by the circumstances brought but in the case as discussed above. The learned Sessions Judge believed them, and we consider it, rightly. It is proved beyond reasonable doubt that it was in the manner spoken to by P.Ws. 1,2, 3,and 4 that the occurrence took place. 31. Let us now turn to the question whether the accused were the members of an unlawful assembly. The learned Sessions Judge; has found that accused 1 to 5 were members of an unlawful assembly, that the common object of the unlawful assembly was to commit murders of the decesed No. 1 Chakram and the deceased No. 2 Rajababa and that it was in furtherance of their common object committed offence of rioting, that A-1 and A-2 among them committed the murder of the deceased No. 1 Chakram by A-1 stabbing the deceased No. 1 with a dagger on the left flank and A-2 stabbing him with a dagger on the left shoulder back and causing instantaneous death and A 3 and A-5 in the course of the same transaction caught hold of the hands of deceased No. 2 Rajababu and A-4 among them committed his murder by stabbing him with a dagger on his back causing instantaneous death. 32. The question as to what was the common object of the lawful assembly is determined on the facts and circumstances of each case. the motive for the crime, the weapons used in the attack, the conduct of the assailants, both before and at the time of the attack are relevant considerations. As to whether an unlawful assembly was formed and what exactly was the common object of the unlawful assembly are often times matters to be inferred from circumstances. In S.M. Singh v. State of Bihar S.M. Singh v. State of Bihar 1970 Crl.L.J. 1389: A.I.R. 1910 S.C. 1492 it was held that: “The essence of section 149 of the Indian Penal Code is that an accused person whose case falls within the terms of the section cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly. It is an offence committed by a member of an unlawful assembly in prosecution of the common object of that assembly and it is an offence such as the members of that assembly knew to be likely to be committee in prosecution of that object. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object. There is no question of common intention in section 149. The act must be one which upon the evidence appears to have been done with a view to accomplishing the common object attributed to the members of the unlawful assembly. Thus every person, who is engaged in prosecuting the same object, although he had no intention to commit the offence, will be guilty of an offence which fulfils or tends to fulfil the object which he is himself engaged in prosecuting in the circumstances mentioned in the section. It is in this sense that common object is to be understood”. 33. The learned Counsel for the appellant contended that the prosecution has failed to establish either the common object or the common intention for committing the murders of deceased No. 1 Chakram and deceased No. 2 Rajababu. The learned Counsel pointed out that except appellant Nos. 1, 2 and 4 the other two accused-appellants Nos. 3 and 5 have not committed any overt act. According to him the appellant Nos. 3 and 5 were not armed with any weapon and the allegation against them is only that they have caught hold of the hands of deceased No. 2 Rajababu and whereas a-4 dealt a fatal blow to the deceased No. 2. According to him their presence also at the place of the occurrence is not free from doubt. Relying upon the evidence of D. W. 2 he contended that A-3 was a sickly person and he is also the father of A-1 and A-4. The prosecution has tried to implicate both the father and sons also A-5 who is the son-in-law of A-3. The learned Counsel submitted that it is doubtful that the entire family would involve itself in commission of a henious crime. The prosecution has tried to implicate both the father and sons also A-5 who is the son-in-law of A-3. The learned Counsel submitted that it is doubtful that the entire family would involve itself in commission of a henious crime. A-3 is aged about 47 years and A-5, according to the evidence of D.W. 1, is aged about 18 to 20 years. In our opinion the contention of the learned Counsel that the common object was not established by the prosecution cannot be accepted. It is well settled that in all cases it is not necessary that all persons forming an unlawful assembly must do some overt act. In Masalti v. State of Uttar Pradesh. Masalti v. State of Uttar Pradesh. (1965) MLJ. (Crl.) 312: (1965) 1 S.C.J. 605: (1965) 1 Crl.L.J. 226: (1964) 8 S.C.R. 133 : A.I.R. 1965 S.C. 202, 40 persons were charged for committing several offences, the principal offence being one under section 302 read with section 149 of the Indian Penal Code. The trial judge acquitted five persons and convicted the remaining 35. For the offence under section 302 read with section 149 the sentenced 10 accused persons to death and 25 others to imprisonment for life; The 35 accused persons who were convicted by the trial Court filed appeals before the High Court. The High Court held that 7 out of the 35 persons before it were not guilty and acquitted them, in regard to the remaining 28 accused persons including the ten sentenced to death the High Court confirmed the convictions and sentences. In the incident which took place in that case five persons were murdered. In the appeals filed before the Supreme Court in the case of three of the accused persons the sentence of death was reduced to imprisonment for life as they were only 18,23 and 24 years old. With that sole modification all the appeals were dismissed. Dealing with the question whether persons of the assembly who were present at the time of occurrence but who had not done any overt act, could be made liable under section 149 of the Indian Penal Code, the Supreme Court said in the case: “Mr. With that sole modification all the appeals were dismissed. Dealing with the question whether persons of the assembly who were present at the time of occurrence but who had not done any overt act, could be made liable under section 149 of the Indian Penal Code, the Supreme Court said in the case: “Mr. Sawhney then attempted to argue that the High Court failed to give affect to the principles enunciated by this Court in the case of Baladin v. State of Uttar Pradesh Baladin v. State of Uttar Pradesh (1956) 57 Crl.L.J. 345: A.I.R. 1956 S.C. 181. In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly, unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly or unless the case falls under section 142, Indian Penal Code. The argument is that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful assembly. The observation on which Mr. Sawhney relies prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person which is alleged to be a member of an unlawfut assembly, is cannot be said that he is a member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case It appears that in the case of (1956) 57 Crl.L.J. 345: A.I.R. 1956 S.C. 181, the members of the family of the appellant and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive witnesses. Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an unlawful assembly. 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 person constituting the assembly and he entertained along with the other members of the assembly the common object as defined by section 141, Indian Penal Code. Section 142 provides that whoever, being aware of facts which rendered 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 commen object of the assembly. It is in that context that the observations made by this Court in the case of (1956) 57 Crl.L.J. 345: A.I.R. 1956 S.C. 181 assume significance otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. 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 tame 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 arid does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of A.I.R. 1956 S.C. 181, must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests”. In State, of Uttar Pradesh v. Mahendra Singh and others State, of Uttar Pradesh v. Mahendra Singh and others (1974) S.C.C. (Crl.) 922: 1975 Crl.L.J. 425: (1975) 3 S.C.C. 314 : (1975) 2 S.C.R. 418 : A.I.R. 1975 S.C. 455. Their Lordships of the Supreme Court held that: Section 149 of the Indian Penal Code, has two facets Every member of an unlawful assembly is by that section rendered liable for the offence committed by any member of the assembly in prosecution of its common object. That fixes vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common abject of the assembly. If extends even to acts which the members of the assembly “knew to be likely to be committed in persecution of that object”. The High Court having found that the common object of the assembly was to re-divert this water by use of force, if necessary, and that M and his followers had armed themselves with guns and Gandasas for carrying out that object, the conclusion was unavoidable that the members of the assembly know that the prosecution of even the limited object of the assembly was likely to result in the murder of the opposition. This latter aspect was ever-looked by the High Court. This latter aspect was ever-looked by the High Court. There can thus be no doubt that M and such of the respondents whose presence is established formed an unlawful assembly, that the common object of the unlawful assembly was to commit the murders of G and his men, that even assuming that the common object was to re-divert the water, if necessary by the use of force, the members of the assembly knew that in prosecution of such an object, murders of the opponents were likely to be committed and therefore, every member of the unlawful assembly would be vicariously liable for the acts committed by any member of that assembly.” The circumstances brought out in the present case was elaborately discussed by the learned Sessions Judge and also in view of the above discussion unmistakably show that all the accused persons were members of an unlawful assembly, that they came prepared for an attack and that the common object of the unlawful assembly was to do away with the deceased No. 1 Chakram and the common object developed on the spot was also to do away with the deceased No. 2 Rajababu who appeared in the scene after the deceased No. 1 was assaulted. A-1, A-2 and A-4 were armed with weapons and all the members of the unlawful assembly including A-3 and A-5 knew that murders were to be committed in prosecution of their common object. It is established from the evidence and rightly found by the learned Sessions Judge that A-3 and A-5 caught hold of the hands of the deceased No. 2 Rajababu and facilitated A-4 to deal a fatal blow on the deceased No. 2. In Chandrika Prasad Singh v. State of Bihar Chandrika Prasad Singh v. State of Bihar (1972) MLJ. (Crl.) 271: 1972 Crl.L.J. 22: (1972) 1 S.C.J. 492: A.I.R. 1972 S.C. 109, the argument advanced was that no overt acts have been proved against she appellants in that case and, therefore, they are entitled to be acquitted. The Supreme Court rejected such contention and held that: “It is difficult to sustain the contention that as no overt act has been proved against some of the appellants they are entitled to be acquitted. Most of the appellants had indulged in overt acts and had assaulted the victim. The Supreme Court rejected such contention and held that: “It is difficult to sustain the contention that as no overt act has been proved against some of the appellants they are entitled to be acquitted. Most of the appellants had indulged in overt acts and had assaulted the victim. If the other appellants were members of the assembly, the unlawful common object of which developed at the spot and they continued as its members then, they are clearly liable to be proceeded against and convicted. From the finding of the High Court it is clear that these appellants were present at the spot at the time of the occurrence not merely as passive or innocent spectators without intending to share the common object of the assembly, nor did they happen to be there out of idle curiosity, content by merely gazing on, having nothing to do with the assault.” 34. In the light of the principles enunciated above and on a reapprisal of the evidence on record we agree with the finding of the learned Sessions Judge that A-1 to A-5 were members of an unlawful assembly with the common object of committing the murders of deceased No. 1 Chakram so also the murder of the deceased No. 2 Rajababu, who appeared at the scene of offence, and in furtherance of their common object A-1 and A-2 dealt fatal blows on the person of deceosed No. 1 Chakram resulting in his instantaneous death and A-4 dealt a fatal blow on the person of the deceased No. 2 Rajababu resulting in his instantaneous death when A-3 and A-5 caught hold of the hands of the deceased No. 2. The learned Sessions Judge has believed not only the participation of A-1, A-2 and A-4 in the crime in question and also that of A-3 and A-5. On the facts found there can be no reasonable doubt about all the accused-appellants being members of the unlawful assembly which had illegally gathered at the place of occurrence with the coalmen object to commit order of the Deceased No. 1 and the Deceased No. 2 and in furtherance of that common object have done deceased No. 1 and deceased No. 2 to death. We are not prepared to hold that the participation of A-3 and A-5 in the crime in question has not been established. We are not prepared to hold that the participation of A-3 and A-5 in the crime in question has not been established. The learned Sessions Judge is right in rejecting the defence version. A-3 and A-5 are vicariously liable for the acts committed by A-1, A-2 and A-4 as they knew that the murders of deceased No. 1 and deceased No. 2 were likely to be committed. 35. In the result, the appeal is dismissed and the convections and sentences passed by the Sessions Judge against the accused-appellants are confirmed V.K. ----- Appeal dismissed.