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2010 DIGILAW 1417 (RAJ)

Mehboob v. State of Rajasthan

2010-08-09

MEENA V.GOMBER, NARENDRA KUMAR JAIN

body2010
JUDGMENT Hon'ble JAIN, J.—These three appeals, on behalf of six accused-appellants are directed against common judgment and order dated 24.2.2003 passed by Additional Sessions Judge (Fast Track), Tonk in Sessions Case No.53/02. Therefore, they are being disposed of by this common order. 2. Learned trial court vide its impugned judgment dated 24th February, 2003 has convicted and sentenced the accused-appellants as under:- Name of Accused U/Sec. Sentence Mehboob S/o Mohd. Hussain 302 IPC Life imprisonment and a fine of Rs. 100/-. 148 IPC 2 years Rigorous Imprisonment and a fine of Rs. 100/-. 341 IPC 1 month’s simple imprisonment. Munna S/o Nanhe Khan 302/149 IPC Life imprisonment and a fine of Rs. 100/-. 148 IPC 2 years Rigorous Imprisonment and a fine of Rs. 100/-. 341 IPC 1 month’s simple imprisonment. 1. Jiyaulla S/o Vasiulla 2. Arif @ Totla S/o. Bonda 3. Nasim S/o Saeed 4. Abdul Ajij S/o. Abdul Majid 302/149 IPC Life imprisonment and a fine of Rs. 100/-. 147 IPC 1 year’s Rigorous Imprisonment and a fine of Rs. 100/-. 341 IPC 1 month’s simple imprisonment. In default of payment of fine, each of the accused-appellants will further undergo three months' simple imprisonment. 3. Briefly stated the facts of the case are that a written report (Ex.P3) was given by P.W.2 Abdul Hamid to Om Prakash Verma, Sub Inspector at Saadat Hospital, Tonk, at 10:50 p.m. On 26.3.2002, which was sent to Police Station, Kotwali, Tonk through Laxmi Narain, Constable, which reached at 11.10 p.m. and chalked F.I.R. No.137/2002 at Police Station, Tonk was registered on 26.3.2002. It was alleged in the written report that while he was standing near his brother Anis S/o Abdul Hafij at about 9:00 p.m. at the shop of Abid Bhai-shop keeper; at that time 7-8 persons of Kayam Khaniyo Ke Mohalle and Bairwao Ka Mohalla Pahadia namely Mehboob, Munna, Arif Totla, Ajij, Nasim, Feroj and Jiyaulla came there armed with weapons and told that who is the 'Dada', who had slapped. It was further alleged that all these persons started beating by weapon with Anis. It was alleged that Mehboob inflicted a number of blows with knife on the chest of his brother Anis, which directly penetrated his heart resulting into profuse bleeding as a result of which Anis became unconscious on the spot. Thereafter, all the accused persons ran away. Number of persons assembled there. It was alleged that Mehboob inflicted a number of blows with knife on the chest of his brother Anis, which directly penetrated his heart resulting into profuse bleeding as a result of which Anis became unconscious on the spot. Thereafter, all the accused persons ran away. Number of persons assembled there. He took his brother Anis to hospital, where he died. Earlier also quarrel in between Anis and these accused persons took place, as these persons wanted to take goods free of cost from his bakery. The persons, who saw the incident are Abid S/o Majhala, Raashid, Ajij, Bhayyu, Hanif S/o Abdul Hafij etc. 4. On the basis of above report, a F.I.R. was registered under Sections 147, 148, 149, 302, 341 IPC. During investigation, inquest report was prepared, postmortem of dead body was conducted and statements of prosecution witnesses were recorded under Section 161 Cr.P.C. Blood-stained clothes of deceased were recovered, which were sent for chemical examination, FSL and Serologist reports were received. After completion of investigation, a challan was filed against above named six accused appellants and one co-accused Anwar @ Feroj S/o Mohd. Jamil. 5. Learned trial court framed charges against accused persons under sections 147, 148, 341, 302 IPC and in alternative under Section 302/149 IPC. Accused persons denied the charges and claimed trial. 6. The prosecution in support of its case, examined P.W.1 to P.W.23 and produced documentary evidence Ex.P1 to Ex.P49. Thereafter, statements of accused persons under Section 313 Cr.P.C. were recorded, wherein they stated that they are innocent and have falsely been implicated in the case. They also stated that no recovery of weapon has been made. Accused Abdul Ajij stated that he was Khalasi on Truck No.RJ 14-4869 and its driver was Chand and owner was Noor Mohd. He had gone to Kota on 26th March, 2002. In defence, the accused persons examined D.W.1 to D.W.4. Learned trial court after considering the submissions of parties and examining the record acquitted co-accused Anwar @ Feroj and convicted and sentenced the accused appellants as mentioned above. 7. He had gone to Kota on 26th March, 2002. In defence, the accused persons examined D.W.1 to D.W.4. Learned trial court after considering the submissions of parties and examining the record acquitted co-accused Anwar @ Feroj and convicted and sentenced the accused appellants as mentioned above. 7. Shri N.C. Choudhary, learned counsel appearing on behalf of accused appellant Mehboob contended that there is delay in lodging the First Information Report, which is fatal to the prosecution case, any independent witness of the locality has not been examined by the prosecution, which creates doubt on the prosecution story, there are number of material contradictions in the statements of prosecution witnesses and site-plan, prosecution witnesses are relatives and interested witnesses, F.I.R. was written at Police Station and was not handed over at Saadat Hospital, scribe of F.I.R. has not been examined, the injuries sustained by deceased Anis have been attributed to Mehboob and accused Munna, whereas Injury No.1 was only fatal, therefore, it is not known as to who is the author of fatal injury and it was a case of sudden fight. 8. Shri Choudhary further contended that there was no motive to commit murder of Anis and there was no unlawful assembly or common object, therefore, it is a case of acquittal of all the accused persons including accused Mehboob. In alternate, he contended that if statements of eye-witnesses are believed and this Court comes to a conclusion that fatal injury was inflicted by accused Mehboob then in absence of any motive or object, accused Mehboob can be convicted at the most, under Section 304 Part-I IPC. Since he has served out sentence of imprisonment of about 8½ years in Jail, therefore, his sentence of imprisonment already undergone by him may be treated as sufficient and he may be released forthwith. He also contended that in fact there was only one fatal injury on the person of deceased, whereas as per statement of P.W.4 Abid and P.W.8 Moinuddin the allegations in respect of that injury are against two persons, therefore, the accused Mehboob can at the most be convicted under Section 326 IPC. In support of his submissions, he referred to Ram Swarup vs. State of Haryana ( AIR 1977 SC 664 ). He also contended that P.W.2 Hamid, P.W.3 Abid Miyan S/o Abdul Majid, P.W.4 Abid S/o Majhala, P.W.5 Raashid @ Bhayyu, P.W.6 Hanif, P.W.7 Mohd. In support of his submissions, he referred to Ram Swarup vs. State of Haryana ( AIR 1977 SC 664 ). He also contended that P.W.2 Hamid, P.W.3 Abid Miyan S/o Abdul Majid, P.W.4 Abid S/o Majhala, P.W.5 Raashid @ Bhayyu, P.W.6 Hanif, P.W.7 Mohd. Subur and P.W.8 Moinuddin are not eye-witnesses, but they are only chance witnesses and their testimony should be discarded. In support of his contention, he referred to Harjinder Singh alias Bhola vs. State of Punjab ( AIR 2004 SC 3962 ). 9. Shri Kapil Gupta, learned counsel appearing on behalf of remaining five accused appellants namely Munna, Jiyaulla, Arif @ Totla, Nasim and Abdul Ajij, contended that prosecution has suppressed the genesis of the case, there was no unlawful assembly and there was no common object of the so called assembly, the incident took place all of a sudden, there was no premeditation of mind of the accused persons, there are material and serious contradictions in the statements of the prosecution witnesses particularly in respect of a fact that all the accused persons surrounded the deceased and thereafter Mehboob and Munna inflicted injuries on the person of deceased by knife and 'Gupti'. He also contended that accused persons also sustained injuries, which is clear from Ex.P1 and Ex.P2 memo of arrest of accused Mehboob and Munna. He also contended that place of incident has been shifted, the presence of eye-witnesses have not been marked in the site-plan. The conduct of prosecution witnesses clearly reveals that they are not eye-witnesses and their statements are not reliable. He also pointed out contradictions in respect of the manner in which the incident took place. 10. Shri Gupta further argued that so far as accused Munna is concerned although prosecution witnesses had stated that he inflicted 'Gupti' blow on the person of the deceased, but no specific role was assigned against him in the written report Ex.P3 lodged by the eye-witness P.W.2. The recovery of 'Gupti' at his instance was made from open place. The independent witness of recovery of 'Gupti' has not supported the prosecution case. He, therefore, contended that learned trial court committed illegality in convicting the accused appellants. In support of his submissions, he referred to Musa Khan & Ors. vs. State of Maharashtra (1977 Vol.1 SCC 733), Manoj alias Bhau & Ors. vs. State of Maharashtra ( AIR 1999 SC 1620 ), Bharosi & Ors. He, therefore, contended that learned trial court committed illegality in convicting the accused appellants. In support of his submissions, he referred to Musa Khan & Ors. vs. State of Maharashtra (1977 Vol.1 SCC 733), Manoj alias Bhau & Ors. vs. State of Maharashtra ( AIR 1999 SC 1620 ), Bharosi & Ors. vs. State of M.P. (2002 Cri.L.J.4322), Labhu Shiva Jarag & Ors. vs. State of Maharashtra (2002 W.L.C. 324) and Basisth Roy & Ors. vs. State of Bihar ( AIR 2003 SC 1439 ). 11. Per Contra, learned Public Prosecutor argued that from the statements of eye-witnesses, it is clear beyond all reasonable doubts that all the seven accused persons came armed with weapons and surrounded the deceased and thereafter Mehboob inflicted knife blows and Munna inflicted 'Gupti' blows on the person of deceased. He contended that presence of all the seven accused persons is established from the evidence and as per Section 149 IPC, it is not necessary to prove individual act of each accused-appellant in the incident. He argued that there was an unlawful assembly of all the seven accused persons and their common object was to kill deceased and the same is proved from the prosecution evidence. All the seven accused persons came armed with weapons, two of them inflicted injuries and thereafter they all ran away from the place of incident. These facts clearly establish that there was an unlawful assembly of these seven accused persons and their common object was to murder Anis. He contended that recovery of knife and 'Gupti' was made as per information furnished by accused Mehboob and Munna respectively under Section 27 of the Evidence Act when they were in custody and in pursuance thereof recovery of weapon was made, which is proved from the statement of the Investigating Officer. The blood-stained clothes of deceased were also recovered and the same were sent for examination and as per Serologist report, human blood particularly of 'B' group was found on the clothes of the deceased as well as knife recovered as per information of accused Mehboob. He, therefore, contended that learned trial court has rightly convicted the accused appellants and there is no illegality or perversity in the findings of the trial court and the same do not call for any interference of this Court. 12. He, therefore, contended that learned trial court has rightly convicted the accused appellants and there is no illegality or perversity in the findings of the trial court and the same do not call for any interference of this Court. 12. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment as well as the record of the trial court. 13. Before considering the rival submissions, evidence and record, it will be proper to refer to and consider the case laws cited at the Bar. 10. In Ram Swarup (supra), the Hon'ble Apex Court in the facts and circumstances of that case held that incident arose out of mutual fight, therefore, conviction under Section 302 IPC was altered to one under Section 304 IPC. 14. In Harijinder Singh alias Bhola (supra), the Hon'ble Apex Court laid down the principles of evaluation of the evidence of chance witnesses. We have considered the evidence of the present case in the light of principles laid down in the aforesaid case. 15. In Musa Khan & Ors.(supra), the Hon'ble Apex Court held that culpable liability does not arise from mere presence in the assembly. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the asseembly at all these stages. 16. In Manoj alias Bhau & Ors.(supra), the Hon'ble Apex Court held that allegations that accused persons having formed unlawful assembly surrounded and assaulted deceased resulting into his death, that accused dealt gupti blows on person of deceased, same corroborated with medical evidence, conviction of accused was proper – However, witnesses are not stating overt act to have been committed by co-accused persons. It was held that guilt of co-accused is not established. Their conviction was set aside. Para 5 of the judgment is reproduced as under:- “5. .......Though this witness has indicated that accused No. 1 dealt 4 or 5 blows of gupti on the person of Raju but had not stated any specific overt act to have been committed by accused Nos. 2 and 3 apart from the general statement that all accused persons surrounded and assaulted. In other words that accused Nos. .......Though this witness has indicated that accused No. 1 dealt 4 or 5 blows of gupti on the person of Raju but had not stated any specific overt act to have been committed by accused Nos. 2 and 3 apart from the general statement that all accused persons surrounded and assaulted. In other words that accused Nos. 2 and 3 had given blows on the deceased by means of cycle chain and stick has not been stated by the witness even in the chief examination. In the cross-examination it has been elicited that he had gone on foot to lodge the report after he had visited the scene or occurrence and on this statement Mr. Lalit wanted to urge that he was not present at the scene of occurrence and reached there later. But this is belied by the very next sentence stated by the witness “It is not true that I have not witnesses the incident.” The defence had elicited from this witness certain omissions as indicated in paragraph 13 of his evidence which is to the effect that he had not stated before the police that accused Nos. 1 to 6 had come out of the house of accused No. 4 and that they had come out and then entered his courtyard and the explanation offered was that he was not in a proper frame of mind. The further omission brought out from the witness is that he had not stated before the Police that accused Nos. 1, 4, 5 and 6 abused Raju by mother and sister and also that accused No. 4 caught hold of right hand of Raju and dragged him and all the accused persons then surrounded him as I was then frightened. He had also not stated before the police that accused No. 4 had dealt a blow of hockey stick on Raju's head. He had also not stated before the police that Lakhmibai P.W.8 had placed herself over the body of Raju and told the accused not to assault Raju. It has been elicited in his cross-examination that he had not stated before the police that accused No. 4 had given a threat that if an evidence is given in the Court then he will be murdered. It was also brought out that he omitted to say that the tube-light was burning in front of his house. It has been elicited in his cross-examination that he had not stated before the police that accused No. 4 had given a threat that if an evidence is given in the Court then he will be murdered. It was also brought out that he omitted to say that the tube-light was burning in front of his house. Considering these omissions from the earlier statement as confronted to the witness we are not in a position to appreciate the contention of Mr. Lalit that his entire evidence should be disbelieved, particularly when there has been no material omission so far as the role played by accused No. 1 is concerned, that he had a gupti in his hand and assaulted Raju by means of gupti by giving 4 or 5 blows. The nature of injuries found on deceased-Raju and the medical evidence of the doctor fully corroborates the oral evidence of P.W.1 so far as the role ascribed to accused No. 1. As has been stated earlier so far as role ascribed to accused 2 and 3 are concerned the witness has not given any definite overt acts excepting making the general version that all accused surrounded and assaulted. In this view of the matter though the evidence of this witness does not assist the prosecution in bringing home the charge against accused Nos. 2 and 3 but so far as accused No. 1 is concerned the prosecution case can be said to have been proved beyond reasonable doubt on the basis of the evidence of P.W.1.” 17. In Bharosi & Ors.(supra), the Hon'ble Apex Court considered the provisions of Section 149 IPC and held as under:- “There is no difficulty in accepting the proposition that the order of acquittal cannot be lightly reversed merely because High Court could take a different view; but in this case, in our view, the High Court was quite justified in setting aside the order of acquittal although we do not agree with the High Court in applying Section 149 IPC so as to convict all the appellants for offences under Section 302 IPC. But in this case having regard to the evidence, we have no hesitation in holding that the view taken by the trial court was not a reasonable but an untenable. But in this case having regard to the evidence, we have no hesitation in holding that the view taken by the trial court was not a reasonable but an untenable. The appreciation of the evidence by the trial court was not objective and appropriate keeping in view the broad probabilities of the case and nature of the evidence. The High Court in a case like this was fully justified in setting aside the order of acquittal recorded by the trial court by dislodging the reasons given by the trial court for acquittal. The High Court has taken pains to say that merely because PW-9 is the brother of the deceased and PW-13 was servant of another brother of the deceased, their evidence could not be discarded when their evidence was corroborated and supported by the evidence of other witnesses as noticed above. Merely because Jagdish, one of the eye-witnesses was not examined, that itself could not be put against the prosecution when two eye-witnesses were examined, who fully supported the prosecution case. The High Court was right in saying that there was nothing unnatural when PW-8 did not make efforts to save the deceased when the accused were six in number armed with lathis and had attacked the deceased and as it was neither safe nor desirable for the witness to endanger his life. It is in the evidence that the dead body was removed from the place of occurrence to near the kutty machine of appellant No. 1. In that view, the High Court was right in saying that the trial court was wrong in observing that PW-8 could not witness the incident from the place where he was standing. Similarly, as to the identification of the appellants in darkness, the trial court was wrong as found by the High Court. PW-8 has specifically stated that although it was a little dark, still the faces of the appellants could be identified, more so when they were known to the witnesses. The trial court also committed the error in giving undue importance to minor discrepancies that too in regard to the subsequent events and not relating to the actual incident. In this regard, the High Court has observed that such discrepancies are bound to occur in the statements of truthful witnesses. The trial court also committed the error in giving undue importance to minor discrepancies that too in regard to the subsequent events and not relating to the actual incident. In this regard, the High Court has observed that such discrepancies are bound to occur in the statements of truthful witnesses. The doctor has found 10 injuries on the body of the deceased and his opinion was that cause of death was due to head injury caused by lathi. The High Court, while appreciating the evidence of interested witnesses, has kept in view the principles stated by this court in the case of Angnoo vs. State of Uttar Pradesh ( AIR 1971 SC 296 ). In relation to the identification of the accused in the darkness, the High Court has clearly stated that in the month of April, the sun sets at about 7.00 P.M. in the evening, the accused were known to the witnesses and could be identified even in faint darkness. Here again, the High Court has relied upon the decision of this Court in the case of Nathuni Yadav vs. State of Bihar ( 1998(9) SCC 238 ). The High Court has also noticed that the enmity between the deceased and the appellants was not disputed.” 18. In Labhu Shiva Jarag & Ors. (supra), the Hon'ble Apex Court held as under:- “10. It is prosecution case and established by the testimony of four eyewitnesses that A 1-Vyankant Shiva Jarag and A2- Lahu Shiva Jarag had an axe with them(each of them) and A3-Maruti Keraba Jarag, A4, Madhukar Shiva Jarag and A11-Bhau Shiva Jarag had iron rods with them. We have also no doubt that those assailants armed with axes and iron rods had the common object of causing the death of deceased Narayan Jarag. Hence, their conviction for the offence under section 302 with the aid of Section 149 IPC need no interference(we may mention that A1, Viyankant Shiva Jarag had died after the High Court rendered the impugned judgment and hence, the criminal proceedings against him stood abated). 11. The above finding is not enough to dispose of the these appeals as we have now to turn to the role played by A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10-Bhika Sambha Jarag who had only wooden sticks with them. 11. The above finding is not enough to dispose of the these appeals as we have now to turn to the role played by A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10-Bhika Sambha Jarag who had only wooden sticks with them. The eyewitnesses have made only a general statement as against those three accused that they too attacked Narayan Jarag but PW 13-Laxman Jarag who himself is injured, has stated that those three accused have also attacked him with wooden sticks. A vivisection of the common object as between those accused armed with lethal weapons like axes and iron rods and the three accused who had only wooden sticks is called for on the fact situation in this case because the evidence of the four eyewitnesses mentioned above is not very much helpful in discerning whether A5-Tukaram Sambhaji Jarag, A9-Balu Kearba Jarag and A10-Bhika Sambha Jarag really entertained the common object of murder. We take this view particularly in the light of the finding rendered by the trial court that the offence has not escalated beyond what the accused had done as against PW13-Laxman Jarag. We are inclined to give the benefit of doubt to A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10-Bhika Sambha Jarag regarding the common object attributed to them for causing the murder of Narayan Jarag. 12. Nonetheless, we are of the opinion that those three accused shared common object for inflicting injuries on PW13-Laxman Jarag. The injury report on him shows that he had sustained a number of fractures, though the injury sustained by PW13-Laxman Jarag are not enough to make an offence under Section 307 IPC. 13. In the result, we dismiss the appeal filed by A2-Lahu Shiva Jarag, A3-Maruti Keraba Jarag, A4-Mahdukar Shiva Jarag and A11-Bhau Shiva Jarag by confirming the conviction an sentence passed on them by the High Court as per the impugned judgment. But we modify the convic-tion and sentence passed on A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10-Bhika Sambha Jarag and alter their conviction to Section 307 read with Section 149 IPC (instead of Section 302 read with Section 149 IPC). In the circumstances of this case, we deem it fit to restrict the sentence of imprisonment as for the aforesaid three accused (A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10- Bhika Sambha Jarag to the period already undergone by them in respect of all the counts of offences. In the circumstances of this case, we deem it fit to restrict the sentence of imprisonment as for the aforesaid three accused (A5-Tukaram Sambhaji Jarag, A9-Balu Keraba Jarag and A10- Bhika Sambha Jarag to the period already undergone by them in respect of all the counts of offences. This means that the said three accused can be released from jail if they are not required in any other case.” 19. In Basisth Roy and Ors.(supra), the Hon'ble Apex Court in similar circumstances set aside the conviction of the accused persons with the aid of Section 149 IPC and held as under:- “3. ........Though in the complaint, it is generally stated that all the other accused persons were armed with lathis and took part in the attack, in the examination of the prosecution witnesses before the Court, no overt act of any sort has been attributed to the other accused persons. Surprisingly, both the Courts below without properly considering the material on record, by the aid of S. 149 have convicted all these appellants of offences punishable under S. 302 read with Sec. 149, I.P.C. and sentenced them to undergo imprisonment for life. We have very carefully gone through the material on record with the help of the learned counsel for the parties, and we find no material whatsoever to hold that any one of these appellants shared any common object of either Govind Rai, the deceased accused, or Sahai Lohar who is convicted under S. 302 for committing the murder of the deceased. Though in the complaint, there is an omnibus statement that these appellants also attacked with lathis. The medical evidence does not support this case nor in their evidence before the Court the prosecution witnesses have attributed any over act to these appellants. Learned counsel appearing for the State very fairly conceded that there is no material whatsoever to hold these appellants guilty of sharing the common object of either Govind Rai, the deceased accused, or Sahai Lohar. Therefore, we are of the opinion that the conviction recorded against these appellants is totally uncalled for and without any material hence, this appeal has to succeed and the conviction and sentence imposed on these appellants by the Courts below are set aside, and the appellants are directed to be released forthwith, if not wanted in any other case.” 20. Therefore, we are of the opinion that the conviction recorded against these appellants is totally uncalled for and without any material hence, this appeal has to succeed and the conviction and sentence imposed on these appellants by the Courts below are set aside, and the appellants are directed to be released forthwith, if not wanted in any other case.” 20. The above cases were decided in the facts and circumstances of those cases. It is settled law that each case has to be decided on the facts and circumstances of that particular case. 21. So far as present case is concerned, as per written report (Ex.P3) lodged by Abdul Hamid (P.W.2), brother of deceased, seven accused persons came armed with weapons, they surrounded the deceased, accused Mehboob inflicted number of injuries by knife on the person of deceased. P.W.2 Abdul Hamid in his statement before the court stated that seven accused persons came armed with weapons and surrounded the deceased, accused Mehboob inflicted a knife blow and accused Munna inflicted a 'Gupti' blow on the person of deceased. Other eye-witnesses namely P.W.3 Abid Miyan, P.W.4 Abid S/o Majhala, P.W.5 Raashid, P.W.6 Hanif and P.W.8 Moinuddin have also stated before the trial court that all seven accused persons came and surrounded the deceased and accused Mehboob inflicted knife blow and accused Munna inflicted 'Gupti' blow on the person of deceased. One eye-witness P.W.7 Mohd.Subur stated that Mehboob, Munna and five others came and started beating with Anis. Mehboob inflicted a knife blow on the person of deceased Anis. He did not state that any injury was inflicted by Munna on the person of deceased. Therefore, he was declared hostile by the prosecution. From the analysis of statements of eye-witnesses, there is specific overt-act against accused Mehboob and Munna and not against remaining five accused-persons. 22. Post-mortem of the dead body in the present case was conducted by a Medical Board consisting of Dr. S.P. Kothari, Dr. Arvind Looniwal and Dr. M.M. Vyas. Post-mortem report is Ex.P21, according to which four external injuries were found on the body of the deceased, which are as under:- (i) Stab wound (penetrating) 2-1/4”x1/2”x chest cavity(Lt.) deep Transversely on Lt. Chest wall anteriorly 1-1/2” below Lt. Nipple, clear cut margin, having medially, obtuse and laterly acute. (ii) Stab wound (penetrating) 1”x1/4”x chest cavity (Lt.) deep Transversely on Lt. Chest wall anteriorly 1-1/2” below Lt. Nipple, clear cut margin, having medially, obtuse and laterly acute. (ii) Stab wound (penetrating) 1”x1/4”x chest cavity (Lt.) deep Transversely on Lt. chest wall anteriorly above the half of injury No.1 (1” below & 1/2” lateral Lt. Nipple) clear cut margin elliptical, lat. Angle acute & medical angle obtuse. (iii) Incised wound 1”x1/4” muscle deep in left back of chest in posterior Axillary fold 2” above to angle of Lt. Scapula, elliptical clear cut margin. (iv) Incised wound 1”x1/4” muscle deep elliptical left anterior abdominal wall, 3-1/2” below to Lt. subcostal margin in mammary line clear cut margin. Above injuries are ante-mortem and caused by sharp weapon. Cause of Death We the members of medical board are of opinion that cause of death of Anis is haemorrhagic shock due to excessive haemorrhage cause 1 penetrating (stab) injury to heart. 23. P.W.14 Dr. S.P. Kothari was examined, who proved post-mortem report Ex.P21. He stated that all injuries were antemortem and caused by sharp weapon. He also stated that in the opinion of the members of the medical board, the cause of death of Anis was hamorrhagic shock due to excessive haemorrhage cause 1 penetrating (stab) injury to heart. According to him, injury No.1 proved to be fatal. 24. From the medical evidence, it is clear that there were four injuries by sharp edged weapon. Injury No.1 was a stab wound (penetrating) 2-1/4”x1/2”x chest cavity(Lt.) deep Transversely on Lt. Chest wall anteriorly 1-1/2” below Lt. Nipple, clear cut margin, having medially, obtuse and laterly acute. Injury No.2 stab wound (penetrating) 1”x1/4”x chest cavity (Lt.) deep Transversely on Lt. chest wall anteriorly above the half of injury No.1(1” below & 1/2” lateral Lt. Nipple) clear cut margin elliptical, lat. Angle acute & medical angle obtuse. Injury No.3 is incised wound 1”x1/4” muscle deep in left back of chest in posterior Axillary fold 2” above to angle of Lt. Scapula, elliptical clear cut margin. Injury No.4 is incised wound 1”x1/4” muscle deep elliptical left anterior abdominal wall, 3-1/2” below to Lt. subcrsal margin in mammary line clear cut margin. 25. Angle acute & medical angle obtuse. Injury No.3 is incised wound 1”x1/4” muscle deep in left back of chest in posterior Axillary fold 2” above to angle of Lt. Scapula, elliptical clear cut margin. Injury No.4 is incised wound 1”x1/4” muscle deep elliptical left anterior abdominal wall, 3-1/2” below to Lt. subcrsal margin in mammary line clear cut margin. 25. According to submissions of learned counsel for the appellants, there was delay in lodging F.I.R. We find from record that incident in the present case took place on 26th March, 2002 at 9:00 p.m. and deceased was taken to hospital immediately where written FIR was given by the brother of deceased at 10:50 p.m. and chalked FIR was lodged at 11:10 p.m. Looking to all the facts and circumstances of the case, we are not impressed with the submission of the learned counsel for the appellant that there was delay in lodging the First Information Report. 26. From Ex.P3 and Ex.P39 read with statement of P.W.2 Abdul Hamid, it is clear that written report was given at Saadat Hospital to one Om Prakash Verma, Sub Inspector, Incharge of Police Station, Kotwali at Saadat Hospital, Tonk. Therefore, it is clear that it was given at hospital itself, which was sent to Police Station, Kotwali, Tonk through Laxmi Narain, Constable-299. Therefore, there is no merit in the submission of the learned counsel for the appellants that FIR was lodged at Police Station itself and not at hospital. 27. From the statement of P.W.2 Abdul Hamid, it appears that scribe of FIR is Mujaffar, who has not been examined in the case, but from the statement of P.W.2 Abdul Hamid, the contents of written report have been proved. Therefore, non-examination of Mujaffar is not fatal to the prosecution in the present case. 28. So far as independent witnesses of the locality whether they have been examined or not, is concerned, we find P.W.3 Abid Miyan is a person, whose shop is situated at the place of incident and in front of his shop the incident had taken place. The learned counsel for the appellants has not pointed out any name of the witness of the locality, who was present and saw the incident and had not been examined by the prosecution. 29. The learned counsel for the appellants has not pointed out any name of the witness of the locality, who was present and saw the incident and had not been examined by the prosecution. 29. So far as prosecution witnesses being interested or relative witnesses is concerned, the settled proposition of law is that their testimony could not be disbelieved on this ground, but their testimony has to be examined and considered cautiously. 30. So far as contradictions pointed out in the statements of prosecution witnesses and site-plan are concerned, the effect thereof will be seen while discussing the prosecution evidence in the light of submissions of the learned counsel for the appellants. 31. The place of incident, which is alleged to have been shifted or not, by the prosecution, we have examined the relevant evidence including site-plan Ex.P6 with relevant statements of the prosecution witnesses and we find that incident took place at place 'x', injuries were inflicted by accused on the persons of Anis at place 'A-1' and he fell down at place 'A-2' shown in Site-plan Ex.P6. There is no shifting of place of incident by the prosecution as contended by the learned counsel for the accused persons. 32. The next point, which is required to be examined by this Court is whether all the seven accused persons formed an unlawful assembly and in prosecution of the common object of that assembly, they are guilty of that offence. 33. As per Section 149 IPC, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly then every person who, at the time of committing of that offence, is a member of same assembly, is guilty of that offence. Forming of an unlawful assembly is one thing and common object of that assembly is another thing. 34. As per prosecution evidence, all the seven accused persons came armed with weapons, surrounded the deceased, accused Mehboob inflicted knife blows on the chest of deceased and accused Munna inflicted 'Gupti' blows on the stomach of the deceased. There is no specific overt-act of causing injury on the person of deceased, by remaining five accused-persons. However, in the facts and circumstances of the case, it cannot be said to be a case of sudden fight. 35. There is no specific overt-act of causing injury on the person of deceased, by remaining five accused-persons. However, in the facts and circumstances of the case, it cannot be said to be a case of sudden fight. 35. As per Ex.P3 as well as statements of the prosecution witnesses, all the accused persons came armed with weapons. However, in Ex.P3, name of weapons has not been mentioned except the weapon of accused Mehboob. Recovery of weapon was made from Mehboob and Munna only and not from other accused-persons. 36. P.W.2 Abdul Hamid in his statement has specifically admitted that he did not see the remaining five accused persons (except Mehboob and Munna) beating the deceased. He stated that since accused persons were seen at the place of incident, therefore, he mentioned in Ex.P3 that all started beating by weapons to Anis. He specifically admitted that in Ex.P3, it has wrongly been mentioned that all the persons were beating the deceased by weapons. He also admitted that in his statement under Section 161 Cr.P.C. (Ex.D5), it has wrongly been recorded that all the accused persons inflicted injuries on the person of deceased Anis. He specifically admitted before the court that no other accused, except Mehboob and Munna, inflicted injury by any weapon on the person of deceased. 37. P.W.3 Abid Miyan S/o Abdul Majid also admitted in his cross examination that remaining five accused persons (except Mehboob and Munna) did not use any weapon and inflicted injuries by fists and kicks. It is relevant to mention that there are no other injuries by fists and kicks (except four as have been mentioned in the post-mortem report Ex.P21 by sharp weapon) on the person of the deceased. 38. P.W.4 Abid S/o Majhala also stated that he is not aware of as to what type of weapons were with the remaining five accused persons. He knows only about the weapons of Mehboob and Munna. 39. P.W.5 Rashid has also stated that Mehboob inflicted knife blows on the chest of Anis and Munna inflicted 'Gupti' blows on the stomach and back of the person of deceased Anis. What he stated is that all the accused persons were armed, but he has not stated that any person, other than Mehboob and Munna, inflicted injury on the person of the deceased. What he stated is that all the accused persons were armed, but he has not stated that any person, other than Mehboob and Munna, inflicted injury on the person of the deceased. He specifically admitted that it is correct that except Mehboob and Munna, the remaining five accused persons had not given any beating to the deceased. 40. P.W.7 Mohd. Subur specifically stated that Mehboob inflicted a knife blow on the person of deceased at his ribs and he did not see any other person beating. Thereafter, he was declared hostile. 41. P.W.8 Moinuddin stated that he was standing with deceased Anis, all the seven accused persons came. Mehboob was having a knife and Munna was having a 'Gupti' and other persons were also armed with weapons. He initially stated that Mehboob inflicted two knife blows on the chest of Anis and Munna inflicted two 'Gupti' blows at stomach and ribs of the person of deceased. He also stated that Anwar and Arif came to inflict injuries on his person but on hue and cry by brothers of Anis, the accused persons ran away. 42. It is relevant to mention that Mehboob and Munna were arrested and on their information during their custody, recovery of knife from Mehboob and recovery of 'Gupti' from Munna was made. But neither any information was furnished by remaining five accused-persons nor any recovery of weapon of any kind was made from them. It is proved from the record that no weapon of whatsoever kind was recovered from remaining five accused persons. 43. It is relevant to mention that there is some discrepancies in the statements of prosecution witnesses as to from which side the accused came. Some of the witnesses stated that they came from the side of Regaron Ka Mohalla and some of them have stated that the accused persons came from the side of Kayam Khaniyon Ka Mohalla. However, it is proved that incident took place at place 'x' marked in Ex.P6 site-plan and deceased was beaten at place 'A-1' and he fell down at place 'A-2' shown in site plan (Ex.P6). 44. As per statement of P.W.22 Jagannath Verma, ASI, accused Munna gave an information on 2nd April, 2002 while in custody, which was recorded vide Ex.P47 and in pursuance thereof recovery was made vide Ex.P22 and site-plan of the place of recovery of 'Gupti' is Ex.P28. 44. As per statement of P.W.22 Jagannath Verma, ASI, accused Munna gave an information on 2nd April, 2002 while in custody, which was recorded vide Ex.P47 and in pursuance thereof recovery was made vide Ex.P22 and site-plan of the place of recovery of 'Gupti' is Ex.P28. P.W.15 Ajamuttulla and P.W.16 Hamid, motbirs of Ex.P22 denied the recovery of 'Gupti' from Munna but they have admitted their signatures on recovery memo (Ex.P22). P.W.22 Jagannath Verma has proved Ex.P47, Ex.P22 and Ex.P28. 45. P.W.22 Jagannath Verma has also proved Ex.P45 information furnished by Mehboob on 31st March, 2002 while in custody with regard to knife, Ex.P13 is recovery memo of knife in pursuance of the information furnished by accused Mehboob contained in Ex.P45 and site-plan of its recovery place is Ex.P14. 46. The blood stained clothes of the deceased i.e. Pent, Baniyan etc. were recovered vide Ex.P12 and they were sent for analysis. Ex.P44 is FSL report. Packet 'A' relates to the clothes of the deceased. The report reveals that there was human blood on it and it was of 'B' group. As per the report, human blood 'B' group was also found on knife recovered vide recovery memo Ex.P13, as per information furnished by accused Mehboob. 47. P.W.2 Abdul Hamid in his written report (Ex.P3) has not stated the name of accused Munna and witness Moinuddin. However, P.W.2 and other eye-witnesses have specifically taken the name of accused Munna in their court statement and there is specific overt-act against him that he inflicted 'Gupti' blows on the person of deceased. P.W.2 in his court statement has explained that his mind was not working properly, therefore, it could not be written in written report (Ex.P3) that Munna had inflicted 'Gupti' blow at the stomach of the deceased. Therefore, it cannot be said that involvement of Munna was not there. 48. From the analysis and scrutiny of the prosecution evidence, it is clear that so far as accused Mehboob and Munna are concerned, their common intention to kill deceased Anis is clear as both were armed with knife and 'Gupti' and both of them inflicted injuries on the person of the deceased resulting into his death. 48. From the analysis and scrutiny of the prosecution evidence, it is clear that so far as accused Mehboob and Munna are concerned, their common intention to kill deceased Anis is clear as both were armed with knife and 'Gupti' and both of them inflicted injuries on the person of the deceased resulting into his death. So far as, the remaining five accused persons are concerned, it is clear that allegations against them are that they were also armed with weapons, but during cross examination, the prosecution witnesses have categorically admitted that they did not use any weapon, they are not aware as to what kind of weapon, the remaining five accused were having with them, they did not inflict any injury on the person of the deceased. As per medical report, only four injuries were there on the person of the deceased, out of which two injuries were stab wounds, which have been attributed to accused Mehboob and two injuries were incised wound which have been attributed to accused Munna. There was no other injury on the person of deceased. As per prosecution evidence, it is also proved that no weapon of whatsoever kind was recovered from remaining five accused persons. 49. Since there is no specific overt-act against remaining accused-persons and they did not inflict any injury on the person of deceased, no recovery of weapon was made from them, there is no other injury on the person of deceased, except four injuries which have been attributed to Mehboob and Munna, it is unsafe to hold that all accused persons formed an unlawful assembly with common object to kill Anis. If common object of all the accused persons would have been to kill Anis, then there was no reason for not inflicting any injury on the person of deceased by remaining five accused-persons. From Ex.P3 and statements of prosecution witnesses, it appears that accused persons came and told that who is 'Dada', who had slapped. The common object of all the seven accused-persons could be to slap the 'Dada', who had slapped or to give beating to him, but certainly not to kill him. The remaining five accused cannot be held to have share common object of the two accused Mehboob and Munna, who are attributed specific overt-act as held by Hon'ble Apex Court in Basisth Roy & Ors. vs. State of Bihar (supra). The remaining five accused cannot be held to have share common object of the two accused Mehboob and Munna, who are attributed specific overt-act as held by Hon'ble Apex Court in Basisth Roy & Ors. vs. State of Bihar (supra). Therefore, looking to all the facts and circumstances of the case, it appears that there was no intention of remaining five accused persons, (except Mehboob and Munna), to kill deceased Anis. Therefore, they cannot be held responsible for the act of Mehboob and Munna. 50. Learned trial court itself recorded a finding that remaining five accused-persons were not armed with deadly weapons, therefore, they were not convicted under section 148 IPC. The trial court has convicted and sentenced under Section 148 IPC to accused Mehboob and Munna only. 49. In view of above discussions, it is clear that the learned trial court committed an illegality in convicting the four accused appellants namely Jiyaulla, Arif, Nasim and Abdul Ajij for the offence under Sections 147, 341 and 302/149 IPC. 51. It is relevant to mention that so far as fifth accused out of remaining five accused persons, namely Anwar @ Feroj is concerned, the learned trial court has come to a conclusion that seventh accused was also present at the place of incident, but there was material contradictions with regard to his parentage, therefore, gave benefit of doubt and acquitted Anwar @ Feroj. 52. So far as appellants Mehboob and Munna are concerned, they came armed with knife and 'Gupti' and inflicted injuries on the person of the deceased. Accused Mehboob inflicted injury by knife in the chest cavity(Lt.) deep transversely on left chest wall and another stab wound in the chest cavity (Lt.) deep transversely on Lt. chest wall anteriorly above the half of injury No.1. Similarly accused Munna also inflicted injuries by sharp edged weapon on the person of deceased. There are total four injuries on the person of deceased, all by sharp edged weapon. Injury No.1 stated to be fatal, as per statement of P.W.14 Dr. S.P. Kothari. From the nature of weapon and injury sustained by deceased, it can easily be inferred that there was common intention of both the accused persons Mehboob and Munna to kill Anis. Injury No.1 was inflicted by accused Mehboob. Therefore, learned trial court was right in convicting him under Section 302 IPC. S.P. Kothari. From the nature of weapon and injury sustained by deceased, it can easily be inferred that there was common intention of both the accused persons Mehboob and Munna to kill Anis. Injury No.1 was inflicted by accused Mehboob. Therefore, learned trial court was right in convicting him under Section 302 IPC. The accused Munna is liable to be convicted under Section 302 read with 34 IPC instead of section 302 read with 149 IPC. 53. In view of above discussions, we do not find any merit in the appeals filed on behalf of appellants Mehboob and Munna and the same are liable to be dismissed. 54. So far as remaining four accused appellants namely Jiyaulla, Arif @ Totla, Nasim and Abdul Ajij are concerned, their appeal is liable to be allowed. 55. Consequently, D.B. Cr. Appeal No. 441/2003 is dismissed. The conviction and sentence of accused-appellant Mehboob is upheld. 56. D.B. Cr. Appeal No.577/2003 is also dismissed. Conviction and sentence of appellant Munna under Section 148 and 341 IPC are upheld. However, in place of section 302/149 IPC, he is convicted and sentenced under section 302/34 IPC to imprisonment for life. He is on bail. Therefore, he is directed to surrender himself before the trial court forthwith failing which the trial court shall take necessary steps to take him in custody and send him to Jail to undergo the remaining sentence. 57. D.B.Cr.Appeal No.371/2003 filed on behalf of accused-appellants Jiyaulla, Arif @ Totla, Nasim and Abdul Ajij is allowed, their conviction and sentence under section 302/149, 147, 341 IPC passed by the trial court are set aside. They are on bail and they need not to surrender. Their bail bonds are discharged.