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2013 DIGILAW 1037 (MP)

Premsingh S/O Deoji v. State of M. P.

2013-09-02

M.C.GARG, SHANTANU KEMKAR

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JUDGMENT : M. C. GARG, J. All the aforesaid appeals arise out of the common judgment delivered by the Additional Sessions Judge, Biora, District - Rajgarh in Sessions Trial No. 12/2000. In the said case the appellants were charged for having committed offences under sections 147, 148, 302, 302/149, 342, 323 and 323/149 of Indian Penal Code. The allegations were, that on 9th of December, 1999 at about 7 p.m. in village - Rampuriya of police station Suthaliya, appellants constituted an unlawful assembly outside the house of Pukharaj Singh (hereinafter referred to as the place of incident) with common object to cause death of Umraosingh (The deceased) and for inflicting injuries to Pukharaj Singh, Kesarsingh, Manoharsingh and Daryavsingh by using farsis and lathis. They not only caused injuries to the deceased with farsi and lathies but also dragged him inside the house of Chandarsingh, where also he was beaten. The Police after reaching to the place of incident got released the deceased from illegal custody, but later while being in hospital, he succumbed to the injuries. Pukharaj Singh, Kesarsingh, Manoharsingh and Daryavsingh were also injured in this incident on account of injures caused to them by the appellants by using farsis and lathies. 2. Prosecution case has been set out by the trial Court in para Nos. 3, 4 and 5 of the impugned judgment which are reproduced hereunder for the sake of reference : 3 After the charges were framed by the Sessions Court, the appellants denied the charges and took a defence that they had been falsely implicated in this case. Appellants Prem Singh, Fateh Singh and Karan Singh took a plea of Alibi and also produced fourteen witnesses in defence. According to DW-1 Mahendrasingh, DW-2 Rajeshkumar, DW-3 Bharat Verma, DW-4 Balram, DW-5 Mansingh and DW-6 Shivcharan, Premsingh was in Biora. According to Purji-DW-8 and Premsingh DW-9, on the date of incident, accused Premsingh was sent to Gram- Khanota. Narayansingh DW-7 and Ramkaran DW-10 stated that on the date of the incident, Karansingh was in village- Bhagora. Kanwarlal DW-11 and Harisingh DW-12 stated that at the time of incident, accused Fatehsingh was not present at the spot, but was near the well. Ramcharan DW-13 and Dhansingh DW-14 deposed that on the date of the incident, the appellants did not come to village - Rampuriya. However the plea of alibi did not find favour with the trial Judge. 4. Ramcharan DW-13 and Dhansingh DW-14 deposed that on the date of the incident, the appellants did not come to village - Rampuriya. However the plea of alibi did not find favour with the trial Judge. 4. The trial Court for its consideration framed the following questions :- 5. While answering these questions, it was held by the learned Trial Judge that death of deceased was homicidal. Appellants constituted unlawful assembly at the place of incident, with common object of causing death of deceased and injuries to Pukharajsingh, Manoharsingh and Daryavsingh. Appellants were armed with weapons like farsis and lathis. Members of unlawful assembly i.e. appellants at that time, by using force and using aforesaid weapons which are capable of causing death of person to whom injury was caused with these weapons, in furtherance of their common intention, caused injuries to the deceased and also to PW Pukhraj Singh, Daryavsingh and Manohar Singh with farsis and lathis. Thereafter, the deceased was dragged by them inside the house of Chandersingh, where also he was beaten and ultimately succumbed to death. All this was done by the Appellants as members of unlawful assembly with the common objective of causing death of Umraosingh and inflicting injuries to the witnesses. 6. The aforesaid decision was arrived at by the trial Judge relying upon the testimony of PW-4 Pukharajsingh who is the FIR maker, PW-2 Daryavsingh who had also informed the police about the incident besides the testimony of other eye witnesses including PW-3 Kesarsingh, PW-6 Narayankunwarbai and PW-9 Tejkunwarbai. The trial Court also took into consideration the medical evidence in the form of report given by PW-1 Dr. R. K. Agrawal and PW-12 Dr. Pradeep Jain who conducted post-mortem report on the dead body of deceased. The trial Judge also relied upon the testimony of PW-16 Bhammukunwarbai and the investigating officer R.D. Patel who appeared as PW-5. However, the trial Court did not find favour with the evidence led in defence by the appellants Premsingh, Fatehsingh and Karansingh. 7. The trial Court has convicted all the appellants under sections 147, 148, 342, 302 and 302/149 of Indian Penal Code for having caused death of deceased Umraosingh. They have also been held guilty for causing injuries to Pukharajsingh, Manoharsingh, Daryavsingh under section 323 and 323/149 of Indian Penal Code. 7. The trial Court has convicted all the appellants under sections 147, 148, 342, 302 and 302/149 of Indian Penal Code for having caused death of deceased Umraosingh. They have also been held guilty for causing injuries to Pukharajsingh, Manoharsingh, Daryavsingh under section 323 and 323/149 of Indian Penal Code. They were acquitted of the charge of causing injury to Kesarsingh under section 323/149 as no injury was found on his person. The trial Court has sentenced all the appellants for their conviction under sections 342 and 302/149 of Indian Penal Code. R.I. for life besides paying fine of Rs.1000/- each. In default of payment of fine, they have been further directed to undergo R.I. for six months each. Under section 323/149 of Indian Penal Code, they have been sentenced to undergo R.I. for six months each. For the offence under section 148 of Indian Penal Code, they have been sentenced to undergo R.I. for one year each. All these sentences were directed to run concurrently however they have been given benefit of custody during trial to be adjusted in the sentence awarded to them. 8. In the appeals filed by the appellants, Bhagwansingh has taken a plea of juvenility by submitting that he was juvenile at the time of incident. It was submitted that the order of the trial Judge dated 18/12/2001 in this regard is not sustainable in law. Appellants Premsingh, Fatehsingh and Karansingh questioned the judgment for ignoring their defence witnesses examined by them to prove their defence of alibi. 9. In addition to that, all the appellants have taken common grounds to assail the impugned judgment, having alleged that there are material contradictions in the deposition of the witnesses, they are close relatives of the deceased. It is further submitted that the report lodged on telephone itself constitutes FIR. The injuries found on the person of the appellants were not explained by the prosecution. Non-production of FSL report causes serious doubts in the case of the prosecution. It is also their submissions that medical evidence also does not support the case of the prosecution, inasmuch as no injury of farsi has been found on the person of Pukharajsingh allegedly caused by appellant Premsingh. 10. On the other hand, learned counsel appearing for State submitted that the evidence available on record proves the case of prosecution beyond reasonable doubt. 10. On the other hand, learned counsel appearing for State submitted that the evidence available on record proves the case of prosecution beyond reasonable doubt. It is also submitted that the impugned Judgment is justified and does not call for any interference by this Court. 11. We have heard the learned counsel for the parties and have also perused the records. 12. Investigation in this case commenced with the telephonic information given by PW-2 Daryavsingh. The information was recorded by R.D. Patel in Rojnamcha. Relevant portion of his statement reads as under : 13. This information though has not been proved by producing Rojnamcha, but the deposition of PW-5 R.D. Patel proves that such information was received by police and recorded in Rojnamcha. There is no cross to counter this statement. According to PW-5, information given was only to the effect that Chandarsingh and others ne marpit ki hai. This corroborates the evidence of other witnesses about the participation of other appellants in addition to Chandarsingh. 14. Next witness is Daryavsingh PW-2 in succession who has also been examined by the prosecution to prove their case. He has deposed that he gave report of the incident to the police on telephone. At tthat time he also disclosed the name of other assailants. In his deposition he has very specifically stated that Chandarsingh, Premsingh, Karansingh, Hukumsingh, Hindusingh, Fatehsingh, Nandu, Chandu, Bhagwansingh and one other person who caused injuries to the deceased and to the other injured persons including himself. He has very specifically said that Chandarsingh caused farsi blow on the head of Umraosingh while others caused other injuries by using the Pharsi and lathies. He also deposed that, when he reached the spot, he was also given beating by Chandarsingh with lathi which caused injury on his right hand. Similarly; Bhagwansingh gave lathi blow on his head near his ear and Karansingh caused injury with ulati farsi on right side of his pasali. He also took the name of PW's Kesarsingh and Manoharsingh having come there to save them. He also deposed that Chandarsingh, Premsingh and Nannusingh dragged Umraosingh inside the house of Chandarsingh and had beaten. 15. In the light of the depositions of PW-4 Pukhrajsingh and other eye witnesses no doubt, his complete statement does not form part of Rojnamcha but it cannot be said that there is contradictions in what he deposed. He also deposed that Chandarsingh, Premsingh and Nannusingh dragged Umraosingh inside the house of Chandarsingh and had beaten. 15. In the light of the depositions of PW-4 Pukhrajsingh and other eye witnesses no doubt, his complete statement does not form part of Rojnamcha but it cannot be said that there is contradictions in what he deposed. His cross examination is relevant and is reproduced hereunder for the sake of reference : 16. Except for a suggestion that he has deposed falsely because there was previous enmity between deceased Umraosingh and accused persons by, no other suggestion as to what was the enmity and what could be the reason for witnesses to make false statement has been suggested in the cross-examination. 17. PW5 ASI RD Patel is the investigating officer of the case. He came to the spot after receiving telephonic information from Daryavsingh about the incident at about 10.30 p.m. After reaching the spot he recorded statement of PW Pushkar Singh as Dehati Nalishi vide Ex.-P/8 which is also the basis of registration of FIR. Dehati Nalishi as recorded by police reads as under : 18. PW-4 Pukharajsingh proved Ex.-P/8 by appearing as witness in witness box. In his deposition, he has stated that 19. This statement of Pukharajsingh PW-4 is in line with the statement made by PW-2 Daryavsingh and PW-1 Dr. R. K. Agrawal who medically examined them soon after the incident along with Umraosingh. Report of Dr. R. K. Agrawal with respect to injuries found on the person of Umraosingh is Ex. P/4 while the report about examination of PW-4 is Ex.-P/3. Dr. Agrawal has also proved the injuries found on the person of Daryavsingh vide Ex-P/7 and Manoharsingh vide Ex.-P/6 who are the eye witnesses of the incident. 20. Dr. R. K. Agrawal also had occasion to examine Nannusingh and Chandarsingh s/o Nawalsingh. However, as per his deposition, the injuries found on their person vide Ex.-P/1 and Ex-P/2 were simple in nature. The entire deposition of Dr. R. K. Agrawal is reproduced hereunder of the sake of reference : 21. It has been submitted on behalf of the appellants that blow given to him with farsi on his head by appellant Premsingh is not supported with the medical evidence. This of course appears to the contradiction in the statement of Pukharajsingh, but the evidence has to be examined in toto. 22. Report given by Dr. It has been submitted on behalf of the appellants that blow given to him with farsi on his head by appellant Premsingh is not supported with the medical evidence. This of course appears to the contradiction in the statement of Pukharajsingh, but the evidence has to be examined in toto. 22. Report given by Dr. R. K. Agrawal in the case of deceased Umraosingh is corroborated by post-mortem report of Umraosingh conducted by Dr. Pradeep Jain PW-12 who in his deposition, has stated that : 23. In para - 4 of his deposition, he has given his opinion that the death of Umraosingh had occurred on account of injuries sustained by him of fracture in the right leg and on account of fracture in the bone of his head, about 12 hours before the post-mortem was conducted. External injuries found on the person are corroborated by the report of Dr. R. K. Agrawal PW-1 vide Ex.-P/4. In his cross-examination, again nothing has been brought on record that the injuries sustained by deceased Umraosingh had not been caused to him with weapons described to have been used in the incident by prosecution witnesses. The cross-examination is reproduced hereunder for the sake of reference. 24. Deposition of Pukharajsingh and Daryavsingh are also supported by deposition made by PW-13 Manoharsingh and PW-3 Kesarsingh. It is true that no injury has been found on the person of Kesarsingh and that is why, the trial Court has not given credence to his statement, but the deposition made by Daryavsingh and Manoharsingh proves the presence of Pukharajsingh at the spot and also proves the injuries caused to Umraosingh as well as dragging him in the house of Chander Singh from where Umraosingh was recovered by police as per PW-10 Bhupendrasingh. 25. PW-6 Narayankunwarbai, PW-9 Tejkunwarbai and PW-16 Bhammukunwarbai who are the members of family of Pukharajsingh and Umraosingh, are also natural witnesses of the incident and supports the deposition of Pukharajsingh and Daryavsingh. They fortify the presence of these witnesses at the place of occurrence and support the case of the prosecution that the appellants were members of unlawful assembly which had attacked Umraosingh with farsi and lathi; and causing injuries to Pukharajsingh, Daryavsingh and Manoharsingh. They fortify the presence of these witnesses at the place of occurrence and support the case of the prosecution that the appellants were members of unlawful assembly which had attacked Umraosingh with farsi and lathi; and causing injuries to Pukharajsingh, Daryavsingh and Manoharsingh. It is possible that they may have come out of their house a little later, but their presence at the place of occurrence cannot be doubted as the incident had occurred just outside their house. Some contradictions here and there in their statements who are illiterate and rustic villagers would not cast doubt on the story of the prosecution. 26. The trial Court has discussed their evidence while coming to the conclusion as aforesaid. The discussion finds mention in paras - 22 to 24 of the impugned judgment which are reproduced hereunder for the sake of reference as under :- 27. Having gone through the deposition of PW-4 Pukharajsingh in Court and Ex.P-8, moreover his narration about the injuries caused to Umraosingh by Chandarsingh on his head and leg is consistent. Similarly, his deposition about the injuries caused by others to Umraosingh with lathies and farsis is consistent. The deposition made by him about Premsingh having caused injury on his head with farsi of course is not supported by medical evidence. However this alone would not discredit his testimony as his testimony is required to be examined by taking entire evidence into consideration. Moreover, there is no explanation by the defence as to how, Pukharajsingh suffered injuries which were found to be present by Dr. R. K. Agrawal, soon after he was sent for medical examination by R.D. Patel PW-5 , I/O along with deceased Umraosingh. We have already discussed the report Ex. - P/3 of Dr. R. K. Agrawal with respect to injuries caused to Pukharajsingh. As per the report, Pukharajsingh had the following injuries on his person. 28. Now coming to the submissions made by the appellants that the telephonic information given by Daryavsingh ought to have been considered as FIR and therefore recording of Dehati Nalishi Ex.- P/8 and on that basis recording of another FIR being illegal. This point has been noticed by the trial Court in para - 25 of the impugned judgment which reads as under : 29. This point has been noticed by the trial Court in para - 25 of the impugned judgment which reads as under : 29. Relying upon the judgment delivered by Hon'ble Supreme in the case of T. T. Anthoni vs. State of Kerla reported in AIR 2001 SC 2637 , the trial Court held that the information given on telephone may not be considered as the FIR in this case. Relevant paragraphs of this judgment is reproduced hereunder for the sake of reference. 18. An information given under sub-section (1) of section 154 of Criminal Procedure Code is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 of Criminal Procedure Code, as the case may be, and forwarding of a police report under section 173 of Criminal Procedure Code. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 of Criminal Procedure Code. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by section 154 of Criminal Procedure Code. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 of Criminal Procedure Code. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Criminal Procedure Code. Take a case where an FIR mentions cognizable offence under section 307 or 326 Indian Penal Code and the investigating agency learns during the investigation or receives a fresh information that the victim died, no fresh FIR under section 302 Indian Penal Code need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt. Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected; it does not require filing of fresh FIR against H - the real offender-who can be arraigned in the report under section 173(2) or 173(8) of Criminal Procedure Code, as the case may be. It is of course permissible for the investigating officer to send up a report to the concerned Magistrate even earlier that investigation is being directed against the person suspected to be the accused. 30. To the same effect, there is another Judgment also given by the Apex Court in the case of Patel Manabhai Mavjibhai vs. State of Gujarat in Criminal Appeal No. 813/2005, in which while referring to an earlier judgment delivered by Hon'ble Supreme Court in the case of Ramsinh Bavaji Jadeja vs. State reported in 1994 (2) SCC 685 , it has been stated :- "7. If the telephonic message is cryptic in nature and the officer-in-charge, proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be first information report. The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer-in-charge of the police station to reach the place of occurrence. The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer-in-charge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is not cryptic and on the basis of that information, the officer-incharge, is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer "in the course of investigation" covered by section 162 of the Code. That statement cannot be treated as first information report. But any telephonic information about commission of a cognizable offence irrespective of the nature and details of such information cannot be treated as first information report". 31. The aforesaid judgments support the conclusion drawn by the trial Court, that vague information by telephone call or a cryptic telegram may not be sufficient to register FIR. In this case, only information given by PW-2 Daryavsingh by telephone as recorded in Rojnamcha was OTHER LANGUAGE The defence has not summoned the rojnamcha for the purpose of drawing a different conclusion. 32. Learned trial Court has also dealt with the submissions of the appellants, that no explanation was given by the prosecution about the injuries sustained by Nannusingh and Chandarsingh. In this regard trial Court, while referring to the report of Dr. R. K. Agrawal PW-1 who had examined them medically and only found simple injuries on their person, rightly held that the injuries being of simple nature were not required to be explained by prosecution. Reference has been made to the judgment delivered in the case of Lalu vs. State of M.P. reported in 2000(3) MPHT 224 , wherein it has been held that : 9. The injury reports Ex.D-3 to Ex.D-5 of Ramkali, Lallu and Ramraj go to show that Ramkali had one contusion on left knee and Lallu had a lacerated wound on his left ear and two abrasions and one contusion on left thumb, left knee and right thumb. Accused Ramraj had a contusion on left hand a lacerated wound on the middle finger of the left hand. These three persons were examined by Dr. Accused Ramraj had a contusion on left hand a lacerated wound on the middle finger of the left hand. These three persons were examined by Dr. V. N. Satnami (D.W.3). It is apparent that the injuries sustained by these persons were of minor nature. It is well settled that the prosecution is not bound to explain such minor injuries sustained by the accused persons in the same incident. These injuries are likely to be caused during the course of the scuffle. It has been held by the Supreme Court in Ayodhya Ram vs. State of Bihar, (1999) 9 SCC 139 , that the prosecution is not bound to explain each and every injury on the accused persons irrespective of the nature of the injury and in respect of some minor injury on the accused, if no explanation is offered by the prosecution, the prosecution would not fail on that score. Therefore, the trial Court has been right in its approach towards the accused. The appellant Lallu and Sheshmani arrived on the scene of occurrence armed with lathis and caused injuries to Chhotelal when he made entreaties to them to desist from their aggressive attitude. The offence under section 304II/34 Indian Penal Code is clearly brought home to appellants Lallu and Sheshmani and they have been rightly convicted for this offence. 33. Dealing with the allegations that there were contradictions in the statements made by the witnesses the trial Court found no substance in the submissions. Relevant observations made by the trial Court in this regard is in paras - 35 and 36 of the impugned judgment reads as under : 34. We have also examined the statements made by Narayankuwarbai, Durgeshkunwarbai and Bhammukuwarbai. No doubt, there are some contradictions in their statements, but their presence at the spot is not even questioned by defence in their cross-examination. They are natural witness of the incident. They are illiterate and rustic villagers. Minor contradictions in their defence would not make their testimony inadmissible, even if it is presumed that they did not see the incident in toto. In any case their deposition corroborates the presence of Pukharajsingh, Daryavsingh and Manoharsingh at the spot. 35. They are natural witness of the incident. They are illiterate and rustic villagers. Minor contradictions in their defence would not make their testimony inadmissible, even if it is presumed that they did not see the incident in toto. In any case their deposition corroborates the presence of Pukharajsingh, Daryavsingh and Manoharsingh at the spot. 35. With reference to plea of alibi taken by the appellants Premsingh, Fatehsingh and Karansingh, the trial Court has not found favour with the submissions made on behalf of the appellants who basically relied upon the defence witnesses cited by them. Relevant paragraphs of the judgment wherein aforesaid plea has been discussed are para Nos. 40 to 45 which read as under : 36. It is well settled that whatever defence is taken by the accused persons in criminal trial, they are required to put their defence in cross-examination of prosecution witnesses. The trial Court has rightly held that in the present case set up by appellants Premsingh, Fatehsingh and Karansingh about their presence at some other place at the time of incident has not been put by them to the prosecution witnesses. Moreover, the reasons given by the trial Court to discard the testimony of defence witnesses is probable and therefore, we do find any infirmity in his approach even on this aspect. 37. However, with respect to the plea taken by appellant Bhagwansingh that Bhagwansingh was juvenile at the time of incident, which objection has been rejected by the trial Judge vide separate order passed on 10th of December, 2001, we find that the approach of the trial Court, while dealing with the aforesaid issue, was not correct, inasmuch as, despite certificate produced from the school which shows that as on the date of the incident, age of Bhagwansingh was less than 16 years supported with the medical examination of ossification test, which also shows that the age of Bhagwansingh was between 14 - 18 years, merely because, doctor in his cross-examination stated that the age of Bhagwansingh would be between 11- 21 years and that in his bail application, his age was shown as 19 years, the trial Court believed that Bhagwansingh was not juvenile. 38. 38. Considering Rule 12 framed under the Juvenile Justice Act, it cannot be said that the bail application could be considered as evidence so as to take support of plea of the prosecution that the age of Bhagwansing was above 19 years, particularly because, in this case, not only there was certificate from the school, but there was also a report of Dr. Chore who conducted ossification test. We, therefore, do not agree with the findings of the trial Judge in its order dated 18-12-2001 holding that appellant Bhagwansingh was not juvenile. To that extent, we set aside the order passed by the learned Additional Sessions Judge, Biora, District - Rajgarh holding that appellant Bhagwansingh was not juvenile and hold that Bhagwansingh was below 18 years of age at the time of commission of crime. Thus he is entitled to benefit of the Juvenile Justice Act. Since appellant Bhagwansingh is on bail, he shall appear before the Juvenile Justice Board to undergo the sentence as may be imposed by the Board appointed on him in accordance with the provision of Juvenile Justice (Care and Protection of Children ) Act, 2000. 39. Now, coming to the case of appellant Awtarsingh about whom learned counsel appearing for him has pleaded that in the absence of any specific role assigned to him mere mention of his name by Pukharajsingh in Ex. D/8 would not be sufficient to hold him guilty in this case. It is also pleaded that no evidence is available on record assigning any specific role played by the appellant in the incident. Merely because, he is alleged to have come along with other appellants namely Hukumsingh, Nannusingh and Karansingh with a stick he cannot be convicted. Moreover the doctor in his report has talked of eight injuries on the person of Umraosingh, out of which, injury Nos. 2, 3, 4 are supposed to have been caused by sharp and edged weapons would not prove involvement of the this appellant in the light of presence of so many accused persons as per the case of the prosecution. Referring to the statement of PW-2 Daryavsingh, it has been submitted that there is no averment as to whom appellant Awtarsingh gave beating. 40. Referring to the statement of PW-2 Daryavsingh, it has been submitted that there is no averment as to whom appellant Awtarsingh gave beating. 40. Also referring to the statement of Narayankunwarbai PW-6 who stated that Awtarsingh alongwith Hindusingh and Nannusingh, it has been submitted that this statement would also not prove the case against the appellant. Same is the position of statement made by Tejkunwarbai who also talked about the presence of Awtarsingh, but did not make any mention about his specific role in the incident. 41. The other counsel also made similar submission that in the absence of evidence about the specific role played by the appellants, merely because they were found present at the spot would not make them liable to be convicted with the aid of section 149 of Indian Penal Code. To appreciate the aforesaid contentions, it would be appropriate to take note of the law laid down by the Hon'ble Supreme Court in the case of Lalji vs. State of U.P. reported in 1989 (1) SCC 432 wherein the Hon'ble Supreme Court has analysed the ingredients of section 149 of Indian Penal Code for the purpose of invoking the liability upon members of lawful assembly in the case of section 302 of Indian Penal Code. Relevant portion of the judgment reads as under : 8. Section 149 Indian Penal Code provides 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 the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in section 141 Indian Penal Code, an assembly of five or more persons is designated an 'Unlawful Assembly', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third', 'Fourth', and 'Fifth' of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in section 141, Indian Penal Code. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 10. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 10. Thus, once the Court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. 42. Learned counsel appearing for appellant Awtarsingh has relied upon the following judgments : (i) Jadu Yadav and others vs. State of Bihar, 1994 Cri.L.J. 1209 ii) Sukhan Raut and others vs. State of Bihar, AIR 2002 SC 319 iii) Sukhabir Singh vs. State of Haryana, AIR 2002 SC 1168 iv) Amzad Ali @ Amzad Khan and others vs. State of Assam, AIR 2003 SC 3587 v) Jagannath vs. State of M.P., 2007 AIR SCW 5941 vi) State of U.P. vs. Rasid and others, (2003) 9 SCC 449 43. We have gone through these judgments and find that none of the aforesaid judgments help the case of appellant Awtarsingh, rather the judgment delivered in the case of Amzad Ali @ Amzad Khan and others (supra) where the Apex Court explains the concept of formation of unlawful assembly. Para - 5 of the said judgment is relevant and is reproduced hereunder for the sake of reference "We have carefully considered the submissions of the learned counsel appearing on either side. It is incorrect to claim that prior formation of an unlawful assembly with a common object is a must and should have been found as a condition precedent before roping the accused within the fold of section 149, Indian Penal Code. It is incorrect to claim that prior formation of an unlawful assembly with a common object is a must and should have been found as a condition precedent before roping the accused within the fold of section 149, Indian Penal Code. No doubt the offence committed must be shown to be immediately connected with the common object, but whether they had the common object to cause the murder in a given case would depend and can rightly be decided on the basis of any proved rivalry between two factions, the nature of weapons used, the manner of attack as well as all surrounding circumstances. Common object has been always considered to be different from common intention and that it does not require prior concert and common meeting of minds before the attack. Common object could develop eo instanti and being a question of fact it can always be inferred and deduced from the facts and circumstances of a case projected and proved in a given case. The evidence on record, in our view, sufficiently established that there was some prior animosity and there were faction-ridden groups in existence apparently over the exercise of right to fish in the area. From the nature of the weapons like lathi, dagger, spear like iron rods, which seem to have been liberally used by the appellants, the chasing of the victims who ran for their lives and killing the three of them by merciless attack and throwing their dead-bodies in the running river rendering it almost difficult to retrieve immediately their bodies and some of them absconding from the locality for nearly about twelve days, would go to inevitably prove that by their joint armed attack, the common object to murder the victims was obvious and stood proved by convincing and cogent evidence. The mere claim that the alleged eyewitnesses to the occurrence are close relatives and were interested witnesses is an usual plea invariably repeated and is found to be reiterated in this case too. The witnesses were said to be living in and around the place of occurrence which could be visible from the place of their huts even and that, therefore, their presence at the time, seem to be not only normal and natural, but their claim that they rushed to the place of occurrence on hearing the hallas, appears to be genuine and acceptable. Yet another bogie raised vaguely that independent and impartial witnesses have been withheld, on the facts and circumstances of the case, equally does not merit any credence of acceptance. Keeping in view the faction ridden groups in the surrounding, no independent or impartial witness was likely to volunteer to give evidence even if there was anyone present at or near the place of occurrence and it is only the relatives, who were otherwise nearby and could have witnessed as legitimately claimed by them, would come to depose boldly. There is no rule of any presumption that the evidence of a related witness will always be an interested one or that such witness will have only a hostile attitude towards the accused facing trial. Except making a bald cry that independent and impartial witnesses were withheld, it was not even brought on record in some form or other as to who such persons could be and who according to the defence stand, were otherwise present nearby, but were not examined and otherwise withheld. As rightly observed by both the Courts below, the witnesses, particularly PWs.1, 2, 8 and 9, appear to be natural eyewitnesses and their version, found to be specific, cogent and trustworthy have been rightly accepted. No doubt our attention has been drawn to the fact that at the end of the FIR there is a note that having learnt about the aforesaid occurrence from his younger brother Lal Mia, he lodged the FIR but Courts accepted his evidence only as an eye witness for part of the occurrence. Even eschewing his evidence from consideration, the evidence of PW.2, PW 8 and PW.9, in our view, convincingly, cogently and sufficiently establish the participation and direct involvement of Appellants 1, 2, 4, 7, 8, 10 and 12 in the crime and there is no justification to disbelieve or condemn the evidence of these witnesses in toto. The Courts below despite the other accused acquitted by them being named also in the evidence, have chosen to give some of them benefit of doubt in the absence of positive role by any overt acts being attributed to them. The same treatment cannot be meted out to all the other accused whose complicity and specific role in the commission of the offence was firmly established by the evidence. The same treatment cannot be meted out to all the other accused whose complicity and specific role in the commission of the offence was firmly established by the evidence. Having gone through the evidence of PWs.1, 2, 8 and 9, as also PW.3, who spoke for the arrest on the spot of 1st appellant, we find that specific role and overt acts have been attributed to the above seven appellants at least and there is no scope for exonerating them from the crime by any means whatsoever either on the ground of want of evidence against them or by extension of any benefit of doubt". 44. Applying the aforesaid principle into the facts of this case, it is clear that the appellant Awtarsingh was one of the members of unlawful assembly which started beating Umraosingh by using lathis and farsis and the injuries caused by these weapons are responsible for his death. As such, name of Awtarsingh having mentioned in the first document i.e. Ex.-P/8 as also by PW-4 Pukharajsingh in his statement made in the Court, it cannot be said that he would not be fasten of liability as has been done with respect to unlawful assembly. 45. In the present case, the trial Court having agreed with the depositions of Pukharajsingh, Daryavsingh and other eye witnesses about the presence of all the appellants including appellant Awtarsingh at the place of incident having caused injuries on the person of Umraosingh with a common intention to cause his death and injuries to Pukharajsingh, Daryavsingh and Manoharsingh, in the light of the report of Dr. R. K. Agrawal. Merely because specific role of each and every appellant is not specified and the evidence is not very clear about what specific act has been performed by each of the appellants, the fact that all the appellants gathered together and started beating Umraosingh and causing injuries to eye witnesses, there cannot be any doubt that they were members of the unlawful assembly whose common object was to cause death of Umraosingh and injuries to others and in this regard they did cause injuries to the deceased and to the eye witnesses Pukhraj Singh and others. Even if the injuries were caused by any other member of the said assembly being present along with other members of the unlawful assembly they cannot escape the vicarious liability. 46. Even if the injuries were caused by any other member of the said assembly being present along with other members of the unlawful assembly they cannot escape the vicarious liability. 46. On the basis of aforesaid principle all the members of unlawful assembly including appellant Awatarsingh, even though the role of Awtarsingh has not been very specifically stated in the depositions of witnesses, but in the light of Dehati Nalish Ex. P/8 and the deposition given by Pukharajsingh, Daryavsingh and other witnesses, would also be guilty of the offences charged along with other accused person sent for trial along with him. Thus we find no substance in the plea taken by learned counsel appearing for Awtarsingh. 47. Accordingly, we dismiss the appeals filed by all the appellants except allowing the appeal of Bhagwansingh, who has been declared by us to be juvenile at the time of the incident. While we maintain the conviction of Bhagwansingh who is on bail, direct him to appear before the Juvenile Justice Board for hearing the sentence as may be awarded to him in this case by the Board on 10th of September, 2013, till then, his bail bond shall remain intact. 48. A copy of this judgment be kept in all the files and a copy be sent to the Juvenile Justice Board for pronouncement of appropriate sentence on appellant Bhagwansingh. We understand that except for appellants Chandarsingh s/o Narayansingh and Hukumsingh s/o Narayansingh, the other appellants namely Chandarsingh s/o Nawalsingh, Premsingh, Karansingh, Nannusingh, Hindusingh and Awtarsingh are on bail. Their bail bonds are cancelled and they all are directed to surrender before the trial Court forthwith so as to undergo the remaining part of their sentence.