Judgment ( 1. ) CRIMINAL Appeal No. 815/94 was filed by co-accused Ratan singh who has died during the pendency of appeal hence appeal against him has been abated on 29. 10. 2007. ( 2. ) APPELLANT No. 1 Shyamlal has died during the pendency of this appeal. Appeal against him has also been abated. The appeal of Vijay Shankar, Birju and Munna Tailor @ Munna @ vijay is the subject matter of this decision. ( 3. ) THIS criminal appeal under Section 374 (2) of the Code of criminal Procedure has been filed by the appellants being aggrieved by the impugned judgment, finding and sentence dated 11. 07. 1994 passed by III Additional Sessions Judge, jabalpur in Sessions Trial No. 215/90, whereby the appellants have been convicted under Sections 147, 302/149 (2 counts), 307/149 (3 counts) and sentenced to R. I. for 2 years, R. I. for life (two counts) and R. I. for 7 years (3 counts), each respectively with the direction to run the sentences concurrently. ( 4. ) THE prosecution case in short is that complainant Smt. Madhu Tiwari was Nurse at Dindori. She came to her brothers at Jabalpur in the holidays. Her brother is tempo owner. Babua @ Tarkeshwar is driver. Shyamlal and his sons Birju and Vijay Shankar used to abuse and threat him not to drive the tempo. On the day of incidence at about 10:15 p. m. Babua driver came with tempo and apprised that these persons have again abused and threatened not to drive tempo, therefore, her brothers Bala Naidu, Tara Naidu and Raju Naidu went at the house of Shyamlal to settle the matter and returned therefrom. Immediately thereafter, Shyamlal and his sons birju and Vijay Shankar came there, abused and exhorted to come out of the house. Hearing the cries complainant Smt. Madhu Tiwari, her sister Kamal, her brother Raju along with child Golu and driver Babua @ Tarkeshwar came out of the house. They abused. Ratan Singh Thakur was also with them. He was armed with gun. Shyamlal and his sons excited Ratan singh Thakur to kill entire family by shooting with gun. Ratan singh Thakur fired 3-4 shots from his gun on account of which they sustained injuries. The incident has been witnessed by her brothers and witnesses Dhiraj and Ramesh Yadav. They abused. Ratan Singh Thakur was also with them. He was armed with gun. Shyamlal and his sons excited Ratan singh Thakur to kill entire family by shooting with gun. Ratan singh Thakur fired 3-4 shots from his gun on account of which they sustained injuries. The incident has been witnessed by her brothers and witnesses Dhiraj and Ramesh Yadav. The injured persons were brought to Medical College Hospital, jabalpur where this report was lodged by Smt. Madhu Tiwari to Mohd. Aslam (PW-15 ). Crime No. 0/90 under Section 307/34 of I. P. C. was registered. Injured persons were medically examined and the injuries were on their person as detailed in medical reports. Kamal and Golu died in hospital. Marg intimation was given. Panchnama of dead bodies were prepared. The postmortem examination was conducted by Dr. K. N. Shrivastava. According to his opinion, the cause of death was shock and haemorrhage. Gunshot injuries were antemortem in nature. Duration of death was within 24 hours. Offence under Section 302 of I. P. C. was added. The clothes of the injured and deceased persons were seized. Blood stained and controlled soil were also seized from the spot. Statements of the witnesses were recorded. The weapons of offence were also recovered from the accused persons. The seized articles were sent to F. S. L. Sagar for chemical examination from where the report received. Accordingly, the blood was found on Articles A-1, A-2, A-3, B, E, F-1, F-2, F-3, G, H-1, H-2, H-3, h-4, I, J, K-1, K-2, L, M and N. After completing the investigation, the charge sheet was filed in the court of C. J. M. , jabalpur who committed the case to the Sessions Court for trial. ( 5. ) ACCUSED persons were charged under Sections 147, 302/149 (2 counts), 307/149 (3 counts) of I. P. C. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 17 witnesses and appellants also examined 2 witnesses in their defence. After appreciating the evidence trial Court found appellants guilty for the offences charged and sentenced thereto as stated hereinabove in para no. 3 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellants on the grounds mentioned therein. ( 6. After appreciating the evidence trial Court found appellants guilty for the offences charged and sentenced thereto as stated hereinabove in para no. 3 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred by the appellants on the grounds mentioned therein. ( 6. ) LEARNED counsel for the appellants submitted that the trial Court has not appreciated the evidence in proper perspective. The name of appellant Munna Tailor is missing in the F. I. R. , therefore, if his name is excluded then no unlawful assembly is constituted hence the conviction with the aid of section 149 is bad in law. No overt act has been contributed to these appellants. There are several contradictions and omissions in the statement of the prosecution witnesses. The statement of Ramesh Kumar Yadav (PW-7) has been recorded after three months of the incident. Bala Naidu is not an eyewitness. The common intention of these appellants with other accused persons has not been established. The finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. ( 7. ) ON the contrary, Shri T. K. Modh, learned Deputy advocate General appearing on behalf of the respondent/state supported the impugned judgment, finding and sentence mainly contending that the evidence of Smt. Madhu Tiwari (PW-9), Babua @ Tarkeshwar (PW-10) and Raju @ Rajan naidu (PW-11) who are injured witness is against the appellants. Similarly, the evidence of Ramesh Kumar Yadav (PW-7), Dhiraj Yadav (PW-8) and Bala Naidu (PW-14) who are the eyewitnesses of this incident is also against the appellants. Thus there is sufficient evidence and the trial Court has rightly convicted and sentenced them and calls for no interference. ( 8. ) THE main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under sections 147, 302/149 (two counts) and 307/149 (three counts) of I. P. C. ? ( 9. ) SMT. Madhu Tiwari (PW-9) has deposed that Babua driver came at about 10:15 p. m. and told that Shyamlal has again threatened not to drive tempo. Thereafter her brothers bala and Tara went at the house of Shyamlal to settle the matter and returned within 10 minutes. Thereafter the accused persons came there and abused. ( 9. ) SMT. Madhu Tiwari (PW-9) has deposed that Babua driver came at about 10:15 p. m. and told that Shyamlal has again threatened not to drive tempo. Thereafter her brothers bala and Tara went at the house of Shyamlal to settle the matter and returned within 10 minutes. Thereafter the accused persons came there and abused. Hearing the cries she came out of the house and saw that Ratan Singh was armed with gun, Shyamlal and his sons Vijay Shankar and birju were armed with Katta (country made pistol) and Munna tailor was armed with rod. Shyamlal exhorted to finish the entire family as a result thereof Ratan Singh fired with gun on account of which she herself, Raju, Kamal, Golu and Babua sustained injuries. They were carried to Medical College hospital, Jabalpur and were got admitted. There she lodged the F. I. R. (Ex. P-13 ). Her sister Kamal and son Golu expired in medical Hospital, Jabalpur. ( 10. ) THIS witness has been subjected to a very lengthy and piercing cross examination and the attempt has been made to bring the contradictions and omissions from her police report (Ex. P-13), dying declaration (Ex. D-2) and police statement (Ex. D-3 ). The main contradiction is with regard to non-mentioning the name of Munna Tailor in F. I. R. and his overt act and also with regard to the arms carried by Birju and Vijay shankar. But she has clearly mentioned about these facts in her police statement (Ex. D-3) recorded on the next day of incident. In dying declaration (Ex. D-2) also the name of munna Tailor and overt act of Vijay Shankar also found place. ( 11. ) LEARNED counsel for the appellants submitted that the name of Munna Tailor does not find place in the F. I. R. There is no any overt act attributed to him hence the evidence of this witness is not acceptable. Learned counsel has placed the reliance on the decision rendered in the case of Girish Yadav and others v. State of M. P. , 1996 (8) SCC 186 . In this case apex Court has held that promptly lodged F. I. R. reflects the first hand account of what actually happened and who were responsible for the offence in question. ( 12. ) ON the contrary, Shri T. K. Modh, learned Dy. In this case apex Court has held that promptly lodged F. I. R. reflects the first hand account of what actually happened and who were responsible for the offence in question. ( 12. ) ON the contrary, Shri T. K. Modh, learned Dy. A. G. appearing on behalf of respondent/state submitted that condition of Smt. Madhu Tiwari (PW-9) was serious and in the traumatic stage, therefore, she could not mention the name of munna Tailor in F. I. R. ( 13. ) IN the case of Pandurang and others v. State of hyderabad, AIR 1955 SC 216 , Apex Court has held that failure to mention the name of any assailant in the first information report would not be of any consequence if the circumstances of the case justified the same. ( 14. ) IN the case of Shri Bhagwan v. State of Rajasthan, 2001 Cr LJ 2925, 2928 (SC), it has been held that where five members of the family were battered to death, and FIR was lodged by a member of battered family who was under severe psychic trauma, when statement of witneess who accompanied informant was recorded immediately thereafter and in that statement the name of the omitted accused was mentioned as the person last seen with one of the deceased. ( 15. ) IN the case of Eqbal Baig v. State of A. P. , AIR 1987 sc 923 , it has been held by the Apex Court that the mere omission of the name of the accused in FIR/inquest report by the witness is no ground to brush aside his evidence. ( 16. ) SO far as the present case is concerned, the name of munna Tailor was not mentioned in F. I. R. (Ex. P-13) which was recorded on 25. 02. 1990 at 11:50 p. m. but on the next day i. e. to say on 26. 02. 1990 when her statement (Ex. D-3) was recorded she mentioned the name of Munna Tailor in it. It was also stated that he was having the rod. Thus his name finds place in the police statement (Ex. D-3) recorded on the next day of the incident and it is fact that four persons including her son were seriously injured and driver Babua was also seriously injured. It was also stated that he was having the rod. Thus his name finds place in the police statement (Ex. D-3) recorded on the next day of the incident and it is fact that four persons including her son were seriously injured and driver Babua was also seriously injured. In these circumstances, she may be under severe psychic trauma and could not mention the name of munna Tailor in F. I. R. In such circumstances, it does not adversely affect the prosecution case. Apart from it, Bala (PW-14) and Dhiraj Yadav (PW-8) were also present at the place of occurrence who have stated that Munna Tailor was there having iron rod with him. These are the eyewitnesses whose statements Ex. D-8 and Ex. D-1 respectively have been recorded on the day of the incident and they have supported the fact that Munna Tailor was also present having armed with iron rod along with other accused persons. Injured persons Babua @ Tarkeshwar (PW-10) and Raju @ Rajan naidu (PW-11) have also deposed in similar way and the name of this appellant Munna tailor finds place in their police statements Ex. D-6 and Ex. D-7. Thus the evidence of Smt. Madhu Tiwari (PW-9) further finds support from the evidence of injured witnesses also. There is no reason to disbelieve their statements regarding the presence of Munna Tailor and his participation in the crime. ( 17. ) REGARDING other appellants Birju and Vijay Shankar, smt. Madhu Tiwari (PW-9) has clearly mentioned in F. I. R. (Ex. P-13) that they were also abusing, crying and exhorting. They along with their father Shyamlal (now deceased)instigated Ratan Singh to finish the entire family of the complainant by shooting with firearm as a consequence thereof Ratan Singh fired 3-4 shots from his gun. She has also corroborated this fact before the Court in her evidence. She has further deposed that these appellants were also having katta ( country made pistol), however admitted that she has not seen them firing. ( 18. ) ON appraisal of her evidence, it reveals that she has mentioned the names of these appellants in F. I. R. and about their participation in crime but she did not mention about the arms carried by them. However, she has mentioned such fact in the police statement (Ex. D-3) recorded on the next day. ( 18. ) ON appraisal of her evidence, it reveals that she has mentioned the names of these appellants in F. I. R. and about their participation in crime but she did not mention about the arms carried by them. However, she has mentioned such fact in the police statement (Ex. D-3) recorded on the next day. In such circumstances, non-mentioning about the arms carried by these appellants in F. I. R. does not adversely affect the prosecution case. ( 19. ) BABUA @ Tarkeshwar (PW-10) and Raju @ Rajan Naidu (PW-11) are also injured witnesses. They have also supported the version of Smt. Madhu Tiwari (PW-9 ). Their evidence is that the appellants threatened Babua not to drive the tempo of raju @ Rajan Naidu. Raju with his brothers went at the house of Shyamlal to settle the matter and returned therefrom and immediately after their return appellants came at the house of complainant, abused, threatened, cried and exhorted to come out and as soon as Raju along with Golu, Kamal, Smt. Madhu tiwari and Babua @ Tarkeshwar came out of the house and they saw that the appellants Vijay Shankar and Birju were armed with Katta and Munna Tailor with iron rod. Ratan singh was having double barrel gun and Shyamlal was also having Katta. On the instigation of Shyamlal, Ratan Singh fired with his gun on account of which they sustained the injuries. ( 20. ) THESE witnesses have also been subjected to a lengthy and piercing cross examination wherein the attempt has been made to bring the contradictions and omissions from their police statements Ex. D-6 and Ex. D-7 respectively. The main contradiction is brought in the police statement Ex. D-6 of babua @ Tarkeshwar (PW-10) with regard to the fact that whether Munna Tailor threatened him not to drive the tempo and also on the fact that whether he rushed to assault with iron rod. These facts do not find place in his police statement ex. D-6 but this fact is corroborated that Munna Tailor was present there armed with iron rod. Likewise the contradiction has also been brought on record with respect to part played by appellant Birju and Vijay Shankar because in the court statement he has stated that he saw them firing with Katta but such fact does not find place in his police statement Ex. Likewise the contradiction has also been brought on record with respect to part played by appellant Birju and Vijay Shankar because in the court statement he has stated that he saw them firing with Katta but such fact does not find place in his police statement Ex. D-6, therefore, this may be an improvement in statement regarding firing Katta by these appellants. ( 21. ) IT is evident that this witness fell down after receiving the gunshot injury and, therefore, thereafter it was not possible for him to see as to who fired with katta or who sustained the injuries. However, this fact is supported that these appellants were present having armed with weapons. Since he is an injured witness, there is no reason to disbelieve his statement. ( 22. ) SOME minor contradictions have been brought on record in the evidence of Raju @ Rajan Naidu from his police statement Ex. D-7. His evidence is that he could see only first firing shot of Ratan Singh. Thereafter there were 4-5 firing shots but he could not see who fired. He was unable to depose as to how many shots were fired with Gun or Katta. This witness has been seriously injured. His right eye was badly damaged. Pallets were removed from it and afterwards his right eye has been removed. ( 23. ) THE evidence of Raju @ Rajan Naidu (PW-11) is quite natural because he has clearly stated that he could only see the firing by Ratan Singh and not by other appellants. His evidence is intact on the point that these appellants were present there having armed with weapons and participated in the crime. Since he is also an injured witness, therefore, there is no reason to disbelieve his statement. ( 24. ) BALA Naidu (PW-14) is the brother of complainant Smt. Madhu Tiwari (PW-9 ). At the time of incident he was at this house. He has stated that the appellants came in front of his house, abusing and threatening to kill them. Hearing the cries kamal, Madhu, Raju, Babua driver came out of the house and saw the accused persons armed with weapons. Ratan Singh fired with his gun on account of which Kamal sustained injuries and fell down. Second fire hit to Raju and Golu. Third fire hit to Babua @ Tarkeshwar and 4th fire hit to Smt. Madhu tiwari (PW-9 ). Ratan Singh fired with his gun on account of which Kamal sustained injuries and fell down. Second fire hit to Raju and Golu. Third fire hit to Babua @ Tarkeshwar and 4th fire hit to Smt. Madhu tiwari (PW-9 ). Appellant Vijay Shankar also fired with Katta and appellant Munna Tailor was having rod. Thereafter they went away. The injured persons were carried to Medical hospital, Jabalpur where they were examined. ( 25. ) THIS witness has also been subjected to lengthy and piercing cross examination. The question was put to him as to why he did not come out from his room at the time of incident. He has given explanation that the appellants were threatening to kill, he was frightened that they may kill him, therefore, he did not come out of his house and he has seen the incident from his room. It is evident that the incident is in front of the house of this witness. The incident is of about 10:15 p. m. at that time Babua was giving daily accounts of tempo to this witness. His presence at his house is quite natural and his evidence cannot be discarded on the ground that he did not come out of his house or did not sustain injuries. His evidence is quite natural. He has witnessed the incident and vividly described the same hence there is no question to disbelieve the statement of this witness. ( 26. ) APART from these witnesses the prosecution has also produced the other eyewitnesses they are Ramesh Kumar yadav (PW-7) and Deeraj Yadav (PW-8 ). Ramesh Kumar Yadav (PW-7) has deposed that at that time he was at his cycle shop. He saw accused persons armed with weapons going towards the house of Raju Naidu. They abused and threatened to come out of the house. They were shouting to kill. Raju along with golu, Kamal, Smt. Madhu Tiwari, Babua and Bala came out of the house. Ratan Singh fired on account of which they sustained injuries. He immediately rushed there. Thereafter he along with Dhiraj Yadav (PW-8) carried the injured persons to Medical Hospital, Jabalpur where they were admitted. He has further deposed that the house of Raju Naidu is at the distance of 50 fit from his shop and the accused persons were only at the distance of 20 fit. He immediately rushed there. Thereafter he along with Dhiraj Yadav (PW-8) carried the injured persons to Medical Hospital, Jabalpur where they were admitted. He has further deposed that the house of Raju Naidu is at the distance of 50 fit from his shop and the accused persons were only at the distance of 20 fit. The attempt has been made to bring the contradictions and omissions from his police statement (Ex. D-4) and the statement under Section 164 of cr. P. C. (Ex. D-5) but they are inconsequential. Learned counsel for appellants assailed the statement of this witness on the ground that his statement was recorded late. His statement has been recorded on 20. 03. 1990 after 25 days of the incident but he has given the explanation that he has gone to attend the marriage and when he returned therefrom, his statement was recorded by the police. Thus this witness has given the explanation regarding delay in recording the statement. No any question has been put to investigating officer Mohammad Aslam (PW-15) regarding this fact. In absence of it, the investigating officer had no opportunity to explain the delay in recording the statement of this witness. On this ground also his evidence cannot be discarded because his presence at his shop is quite natural and the place of occurrence is visible from his shop. He has given the evidence in detail regarding this incident and supports the version of the injured witnesses. There is nothing to disbelieve his statement. ( 27. ) DHIRAJ Yadav (PW-8) has deposed that at that time he was standing at betel shop. He saw the accused persons going towards the house of Raju. They were abusing and threatening and armed with weapons. When Raju along with golu came out of the house, the accused persons fired thereafter other injured persons came out of the house. The firing was done and he ran away from there. After sometime he came at the house of Raju Naidu and saw the injuries on their person. Thereafter they were carried to Medical hospital, Jabalpur while on the way he also informed to the police regarding this incident but he could not lodge the F. I. R. because the condition of injured persons was serious. From his evidence, it appears that hearing the sound of firing he hided himself due to fear but witnessed the incident from there. From his evidence, it appears that hearing the sound of firing he hided himself due to fear but witnessed the incident from there. Nothing has been brought in cross-examination so as to discredit his evidence. Thus, this witness also supports the version of injured witnesses and there is nothing to disbelieve his statement. ( 28. ) THUS, from the foregoing discussion, it is manifestly clear that these appellants were also along with Ratan Singh and Shyamlal. They were also armed with weapons. They went together and came together. They were the members of the unlawful assembly. The common object of the assembly was to abuse, assault and kill the members of Naidu family. Appellants Biraju and Vijay Shanker were having grudge against the complainant party. They were preventing Babua from driving tempo and were abusing and threatening him. They all have gone at the house of the complainant party, abused there and threatened to kill them. They were shouting to finish the entire family. Their intention was clear to commit this offence. ( 29. ) AS it is evident that the incident is of about 10. 15 p. m. , the cross-examination has been done to these witnesses regarding the source of light wherein most of the witnesses have deposed that there was tube light on the pole quite nearby to the place of occurrence. This tube light was illuminating at that time. The accused persons were identified in such light. Since the accused persons were of the same locality, well known to these witnesses, hence question of their mis-identity does not arise. There was sufficient light in which accused persons were identified by these witnesses. ( 30. ) SINCE the accused persons were five in members, they were armed with weapons, they have gone together at the spot, abused and threatened the complainant party and when the members of the complainant party came out of the house ratan Singh fired with his gun which hit to Smt. Madhu tiwari, Raju, Babua, Kamal and Golu who sustained the injuries and out of them Kamal and Golu died. After committing this crime they all went together. Thus, they formed the unlawful assembly and committed the violence. The ingredients of Section 147 of I. P. C. are made out. ( 31. After committing this crime they all went together. Thus, they formed the unlawful assembly and committed the violence. The ingredients of Section 147 of I. P. C. are made out. ( 31. ) THE provisions of Section 149 are as follows:- "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 or 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. " ( 32. ) SINCE these appellants were also the member of unlawful assembly, taking active participation in commission of this crime hence are constructively liable under Section 149 of I. P. C. ( 33. ) THE medical examination of the injured persons were done by Dr. Arun Nayak, Assistant Surgeon but he has not been examined. Summary of MLC report has been given by dr. Abhivardhan. According to statement of Dr. J. K. Tandan (PW-17) he was not traceable. He has deposed that he knows the handwriting and signature of Dr. Abhivardhan, who had been his subordinate and summary of MLC report Ex. P-33 to p-37 are in his handwriting and signature. On perusal of this report, it is evident that the injuries of Babua @ Tarkeshwar were dangerous to life, injuries to Rajan was grievous and that of Smt. Madhu Tiwari was simple in nature. The postmortem examination of Kamal and Golu was done by Dr. N. K. Shrivastava who has died and the postmortem reports have been proved by Dr. D. K. Sakalle (PW-16 ). He has given evidence that he has worked with Dr. N. K. Shrivastava for 7-8 years. The postmortem reports Ex. P-32 and Ex. P-33 of Golu and Kamal are in the handwriting and signature of Dr. N. K. Shrivastava who has died. On perusal of these postmortem reports, it reveals that gunshot injuries were found on their person which were ante-mortem in nature. Death caused due to shock and haemorrhage within 24 hours of the examination. Thus, this fact is established that these two deceased persons met with homicidal death and the injured persons also received the bullet injuries. On perusal of these postmortem reports, it reveals that gunshot injuries were found on their person which were ante-mortem in nature. Death caused due to shock and haemorrhage within 24 hours of the examination. Thus, this fact is established that these two deceased persons met with homicidal death and the injured persons also received the bullet injuries. The clothes, weapons, blood stained and controlled soil etc were seized and were sent for chemical examination to F. S. L. Sagar from where the report received. Accordingly the blood was found on Articles A-1, A-2, A-3, B, E, F-1, F-2, F-3, G, H-1, H-2, h-3, H-4, I, J, K-1, K-2, L, M and N. Thus the ocular evidence finds support from medical evidence. ( 34. ) LEARNED counsel for the appellants submitted that there was no common intention of these appellants with other accused persons. He has placed the reliance on the decision rendered in Mitthu Singh v. State of Punjab, AIR 2001 SC 1929 . Learned counsel has also placed the reliance on another decision of Supreme Court in the case of Suresh and another v. State of U. P. , AIR 2001 SC 1344 . In both these cases Apex Court has considered the circumstances in which section 34 of I. P. C. is applicable. So far as the present case is concerned, this case is of unlawful assembly constituted for unlawful object to commit this crime. These appellants were the members of the unlawful assembly and co-accused Ratan singh shot fire with his gun on account of which two persons died and three persons received injuries. So by being the member of an unlawful assembly these appellants became constructively liable for the commission of this offence. ( 35. ) LEARNED counsel for the respondent has placed the reliance on the decision rendered in the case of Yunis alias kariya etc. v. State of M. P. , AIR 2003 SC 539 . Para 9 of this judgment is quoted below: "9. The learned counsel appearing for the appellant-Liyaquat argued that no overt act is imputed to his client and he was being implicated only on the basis of Section 149, ipc. This argument, in our view, has no merit. v. State of M. P. , AIR 2003 SC 539 . Para 9 of this judgment is quoted below: "9. The learned counsel appearing for the appellant-Liyaquat argued that no overt act is imputed to his client and he was being implicated only on the basis of Section 149, ipc. This argument, in our view, has no merit. Even if no overt act is imputed to a particular person, when the charge is under Section 149, ipc, the presence of the accused as part of unlawful assembly is sufficient for conviction. The fact that Liyaquat was a member of the unlawful assembly is sufficient to hold him guilty. The presence of Liyaquat has not been disputed. " ( 36. ) LEARNED counsel for the respondent has further placed reliance on the decision rendered in the case of Kallu alias masih and Ors. v. State of M. P. , AIR 2006 SC 831 , wherein the Apex Court has held thus:- "14. Though the trial court referred to the evidence of the eye-witnesses, it chose to disbelieve them merely on account of minor inconsistencies in their evidence, relating to the exact site of occurrence and failure to name all who landed blows and the exact nature of injuries. The High Court, on the other hand, held that minor inconsistencies and discrepancies regarding the exact place or the point at which the incident took place or as to who landed the blows is not suffi-cient to disbelieve the evidence of injured eye-witnesses. It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly. In fact, it is difficult, if not impossible. This Court in Masalti scr v. State of U. P. [ 1964 (8) SCR 133 ], observed: "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 the intended victims, it may not be necessary that all of them have to take part in the actual assault. 15. The trial court was of the view that absence of an independent eye-witness in the background of previous enmity was a serious lacuna. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. 15. The trial court was of the view that absence of an independent eye-witness in the background of previous enmity was a serious lacuna. But what the trial court failed to notice is that previous enmity was not denied and the prosecution case is that Kallu and other accused came in a group to sadruddins house specifically to beat him up. Therefore, the mere fact that there was enmity between Sadruddin and Kallu cannot be a ground to reject the clear evidence of the eye-witnesses -PWs 4, 6, 7, 9 and 10 who were the injured, and pw-3. The High Court has, therefore, rightly held that the appellants and other accused were the assaulting party; that they had come together with weapons and had acted jointly and had run away after injuring Sadruddin and four female members of his family. 16. We find that the High Court has not interfered in the matter in a routine manner merely because a different view is possible. The High Court has interfered rightly, in our view, because the trial court unreasonably disbelieved the evidence of six eyewitnesses on insufficient grounds. The High court has also assigned reasons for interfering with acquittal. We find no error in the decision of the High Court. " ( 37. ) IN the light of the aforesaid pronouncement and in the facts and circumstances of the case it is evident that the appellants are the members of the unlawful assembly hence constructively liable of being member of an unlawful assembly under Section 149 of I. P. C. ( 38. ) LEARNED counsel for the appellants further submitted that there are the contradictions and omissions in the statement of the prosecution witnesses therefore they can not be relied upon but it is a fact that the cross examination of all the important witnesses has not been done on the same day on which examination-in-chief was recorded, in such circumstances the contradictions and omissions are bound to occur as held in the case of Venkatgowda and Ors. v. State of karnataka, 2007 SAR (Criminal) 29. ( 39. v. State of karnataka, 2007 SAR (Criminal) 29. ( 39. ) SINCE three witnesses are injured and other eye witnesses are of the same locality, therefore, their presence is natural and evidence is reliable. Learned counsel for the respondent has placed reliance on the judgment in the case of khujji alias Surendra Tiwari v. State of M. P. , AIR 1991 sc 1853 wherein Apex Court has held thus: "7. That brings us to the evidence of PW 1 Komal chand. Komal Chands evidence was not accepted by the trial Court on the ground that he was not a natural witness and was only a chance witness. PW 1 explained his presence by stating that he had gone to the market to purchase vegetables and while he was returning therefrom on foot with his cycle in hand he heard a commotion and saw the incident from, a short distance. Being a resident of suji Mohalla, the place of occurrence was clearly in the vicinity thereof and, therefore, his presence at the market place could not be considered to be unnatural. It is not unnatural for working people to purchase vegetable at that hour and, therefore, his explanation regarding his presence cannot be ruled out as false. The sketch map prepared by PW 11 Gaiser Prasad shows that he had seen the incident from a short distance of hardly 22 feet although PW 1 says he saw it from the square. Since the incident occurred at a public place with a lamp-post nearby, the possibility of his having identified the assailants could not be ruled out. The examination-in-chief of this witness was recorded on November 16, 1976 when he identified all the assailants by name. He stated that he knew the six accused persons in Court and they were the persons who had surrounded the rickshaw and launched an assault on PW 4 and the deceased Gulab. Of them Gopal struck PW 4 with a chain. He also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted "khujji that man is not gulab". Thereupon Khujji and his companions ran after the Gulab, overtook him and the appellant, parsu and Gudda assaulted Gulab with their weapons. He also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW 4 with a knife, Gopal shouted "khujji that man is not gulab". Thereupon Khujji and his companions ran after the Gulab, overtook him and the appellant, parsu and Gudda assaulted Gulab with their weapons. Gudda struck Gulab from the front on his chest, Parsu stabbed him on the side of the stomach while Ram Kishan and Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered shouting ,save-save and fell in front of the house of Advocate chintaman Sahu. Thereafter all the six persons ran away. His cross-examination commenced on 15th december, 1978. In his cross-examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr. Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness. The high Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of his examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that his statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of gulab, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of gulab, his presence at the scene of occurrence is not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in his evidence to doubt his testimony. He is a totally independent witness who had no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed with the trial Court for rejecting his evidence. We agree with the High court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants. " ( 40. ) THUS, from the foregoing discussion, we find that there is voluminous record against the appellants. The prosecution has proved the guilt beyond reasonable doubt against the appellants. The trial Court has dealt with every aspect in great detail and has rightly arrived at the conclusion regarding the guilt of the appellants. We find no infirmity, illegality, impropriety or perversity in such finding hence can not be set aside. We affirm the finding of guilt of appellants. Sentence being not excessive does not call for interference. The appeal being devoid of merits deserves to be dismissed. ( 41. ) CONSEQUENTLY, appeal fails and is dismissed accordingly. Since appellant Shyamlal has died during the pendency of this appeal hence appeal against him stands abated.