Judgment : Dev Darshan Sud, Judge Both these appeals are being disposed by this common judgment as they arise out of the same judgment of conviction passed by the learned Sessions Judge, Chamba convicting the appellants/accused for offences punishable under Sections 302, 307 read with Sections 149 and 148 of the Indian Penal Code (hereinafter referred to as IPC). They have been sentenced for these offences as under : Under Section 148 IPC Sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 5000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months. Under Section 307 IPC read with Section 149 IPC Sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for two years. Under section 302 IPC read with section 149 IPC To undergo imprisonment for life and shall also be liable to pay fine of Rs. 10,000/- each and in default to undergo rigorous imprisonment for two years. 2. The case of the prosecution is primarily based on the evidence of three eye witnesses namely Shri Girdhari Lal (PW-7), Shri Pritam Singh (PW-8) and Shri Jaram Singh (PW-12). 3. The prosecution case, in brief, is that Budhi Prakash, Bindu, Ajeet Singh alias Jeet, Suresh Kumar and Sher Singh in furtherance of their common object murdered Ajay Kumar S/o Sh. Rattan Chand and Rattan Chand S/o Sh. Madho Ram and attempted to murder Sh. Pritam Singh S/o Sh. Singhu Ram. Adverting to the evidence of the first witness PW-7 Girdhari Lal, who states that on 17.06.2005 he was present in village Kakiana in the marriage of his niece Sushma Devi daughter of Khialo Ram which was being celebrated. He, along-with his brother Rattan Chand and nephews namely S/Sh. Pritam Chand, Suneel Kumar, Madan Lal, Anil Kumar and Ajay Kumar had come to attend Chhak (Dham). He and his brother (deceased Rattan Chand) were standing in the Court-yard waiting for the ‘Barrat’ (marriage party). At about 11.00 p.m the marriage party arrived in the house of Shri Khialo Ram. All the accused present in Court were identified by him as Budhi Prakash, Bindu, Jeet and Sher Singh. The accused called out his brother Rattan Chand and nephew Pritam Singh. At about 11.00 p.m the marriage party arrived in the house of Shri Khialo Ram. All the accused present in Court were identified by him as Budhi Prakash, Bindu, Jeet and Sher Singh. The accused called out his brother Rattan Chand and nephew Pritam Singh. On this, Rattan Chand, Pritam Singh and accused started abusing each other. He heard a noise. He went to the spot/place of occurrence which is 2/2½ yards away from the court yard. According to him, the accused persons started pushing Rattan Chand and Pritam Singh. When he intervened to save them from the clutches of the accused, accused Budhi Prakash, who was carrying a knife, assualted Rattan Chand and caused injuries on his thigh from which blood started oozing out. Accused Sonu was also carrying a knife with which he stabbed Pritam Chand on his chest. Thereafter, accused Budhi Prakash again assaulted Ajay Kumar and stabbed him on the stomach. Accused Sonu then assaulted Madan Lal, who was also injured. Accused Ajeet Kumar was carrying a ‘danda’ and he hit Suneel Kumar with it. He says that the place of occurrence was well lighted. He and his brother were also beaten up with fists and kicks. This was a sequel to the quarrel which they had on 16.06.2005 at Dham (marriage feast) of one Omi in village Kakiana. He states that injured were taken to Bathari Hospital on 17.06.2005 itself for treatment, where the police also arrived. Pritam Chand and Rattan Chand were referred to Dharamshala for better medical treatment/management. Ajay Kumar died in the hospital at Bathri and Rattan Chand died on the way to hospital at Dharamshala. He proved on record his statement Ext. PW3/B. Knife was recovered by the police in his presence at the instance of accused Sonu @ Suresh Kumar, who told the police that he had concealed a knife in bushes in the village. 4. This witness was declared hostile but what we find from his cross-examination is that he states that on 27.06.2005 he and Paras Ram were present in the Police Station, the statement of accused Suresh Kumar, Ext. PW7/A was signed in his presence. He proved his signature on this statement as also those of Paras Ram. He states that after that accused Suresh Kumar took the police party to the bushes from where knife was recovered vide memo Ext. PW7/B. Sketch Ext. PW7/A was signed in his presence. He proved his signature on this statement as also those of Paras Ram. He states that after that accused Suresh Kumar took the police party to the bushes from where knife was recovered vide memo Ext. PW7/B. Sketch Ext. PW7/C was prepared and the knife was sealed by the police in his presence. He says that accused had come with an intention to take revenge and to murder in retaliation to the incident of 16.06.2005. In fact, in cross-examination by the Public Prosecutor, he sticks to his version that the accused were responsible for causing the murder of Ajay Kumar. He was subjected to extensive cross-examination by the learned counsel for the accused but then he reaffirmed and reiterated the statement made in his examination-in-chief that it was the accused, who had caused the death of Ajay Kumar and Rattan Chand and attempted to murder Pritam Chand. He admits in his cross-examination that there were 300-400 persons present in the marriage. He also states that residents of village Kakiyana were also present. 5. We now advert to the evidence of PW-8 Pritam Singh, who corroborates this witness with respect to the presence at the venue of the wedding. He says that when he and accused were dancing, the accused who were five in numbers started pushing him. On 16.06.2005, there was a marriage in the house of Omi in village Kakiana. In this marriage, he and Rattan Chand had gone to attend the ‘Nawala (religious ceremony). He identified the accused present in the Court who were present there. He says that when he was dancing there with Rattan Chand, the accused, who were also dancing, started pushing them around. Thereafter, they went to their house after feasting. On the next day, when he and Rattan Chand were standing in the court-yard to welcome the marriage party, all the accused called out to Rattan Chand and this witness. When they went to the accused, they took out knives and attacked them. They were also pelted with stones. Accused Budhi Prakash and Suresh Kumar were armed with knives, accused Ajeet was carrying a ‘danda’ and the remaining accused persons were armed with stones. He raised a hue and cry and on hearing this commotion Girdhari Lal, Suneel Kumar reached the spot. They were also pelted with stones. Accused Budhi Prakash and Suresh Kumar were armed with knives, accused Ajeet was carrying a ‘danda’ and the remaining accused persons were armed with stones. He raised a hue and cry and on hearing this commotion Girdhari Lal, Suneel Kumar reached the spot. Accused Budhi Prakash gave a blow with the knife to Rattan Chand, who suffered injuries on his right thigh. Accused Suresh Kumar stabbed him on his chest with the knife. Whereafter, accused Budhi Prakash stabbed Ajay Kumar with a knife in the stomach. He says that accused Suresh Kumar inflicted injuries on Madan Lal and Anil Kumar, and their intention was to murder them. On hearing their cries, number of persons reached there, whereafter accused fled away from the spot. He was medically examined and treated at the hospital. He identified the knives Ext. P-1 and Ext. P-5 as the weapons used in the assault. He states that the court-yard at the venue of the wedding was well lighted. 6. PW-12 Jaram Singh son of Shri Khialo Ram states that he was joined by the police during investigation. He says that marriage of his sister was to be solemnized on 17.06.2005. Rattan Chand, Pritam Chand, Girdhari Lal, Madan Lal, Sunil Kumar, Anil Kumar and Ajay Kumar etc. had come to their house to attend this marriage. The dham (feasting) which was hosted by the maternal uncle of the bride. He says that ‘barat’ (marriage party) had arrived when the accused called out to Rattan Chand and Pritam Singh. He was busy in the marriage, when he heard a noise and went towards the place from where the noise was coming, he saw that Rattan Chand had sustained injuries and was lying in an injured condition. Accused Budhi Prakash and Sonu both were armed with the knives. Accused Sonu had attacked Pritam Singh with a knife and accused Budhi Prakash delivered a blow with a knife to Ajay Kumar who died on the spot. When he and Anil Kumar intervened and tried to save Rattan Chand and others, they inflicted injuries on the person of S/Sh. Anil Kumar, Suneel Kumar and Madan Lal on their back. Accused Jeet was armed with a ‘Chhaper’ of wood and the others were armed with the stones and sticks. Accused ran way from the spot, when others tried to intervene. Anil Kumar, Suneel Kumar and Madan Lal on their back. Accused Jeet was armed with a ‘Chhaper’ of wood and the others were armed with the stones and sticks. Accused ran way from the spot, when others tried to intervene. He says that they lifted the injured. The intention of the accused was to kill them all. He identified shirt Ext. P-11, vest Ext. P-12 of Sunil Kumar, shirt of Anil Kumar Ext. P-13, vest Ext. P-14 and vest of Madan Lal Ext. P-15. All these clothes, according to him, were taken into possession by the police. These three witnesses are the backbone of the prosecution case and it is on their evidence that the conviction follows. 7. We also advert to the evidence of Dr. Vipan Thakur, PW-14 Dr. Jagdeep Singh and PW-15 Dr. R.N. Pandey. PW-13 Dr. Vipan Thakur states that on 18.06.2005 he received a request Ext. PW13/A for the post-mortem examination of Sh. Ajay Kumar, which he performed along with Dr. V.K.Sharma. He has also proved postmortem report Ext. PW13/B. 8. PW-14 Dr. Jagdeep Singh states that on 18.06.2005 Pritam Singh had come to the hospital for treatment and he examined him. He did not find creptus or surgical emphysema in the vicinity of the stitched wound on the right lower chest of Pritam. . Xray of the chest was carried out which was found to be normal. He issued MLC Ext. PW14/A and discharge card Ext. PW14/B. 9. Dr. R.N. Pandey, PW-15, Medical Officer, PHC, Bathri says that during the night of 17.06.2005 he examined six injured who were brought by the villagers. He found following injuries on the person of Pritam Singh: “Incised wound 2.5 x 1 cm, on right side of chest, 4cm below and on medical side of right nipple. Fresh bleeding coming from the wound. Stitches were applied. The patient complained of pain on respiration . He was referred to Dharamshala Hospital for opinion and further management. The inquiry which I found on the person of Shri Pritam was simple in nature caused with a sharp edged weapon. Its probable duration was within 24 hours. I issued the MLC Ex. Pw-15/A which is in my hand and bears my signatures. Such an injury can be caused with the knife Ex. P-1 shown to me in the Court today. Its probable duration was within 24 hours. I issued the MLC Ex. Pw-15/A which is in my hand and bears my signatures. Such an injury can be caused with the knife Ex. P-1 shown to me in the Court today. On the same day, i.e. 18.6.2005, in the early morning, I examined Shri Rattan Chand, and found the following injuries on his person. Incised wound 4 x 2 Cms size on upper 1/3rd of left thigh lateral surface. Underlying tissue coming out. The patient was referred for further treatment and opinion of surgeon to Dharamshala. The opinion was reserved by me till the opinion is received from Dharamshalla. The nature of weapon of used was sharpe. The probable duration of the injury was less than 24 hours. I issued the MLC Ex. PW-15/B which is n my hand and bears my signatures. Such an injury can result with the knife Ex. P-5 shown to me in the Court today. On the same day, I examined Shri Madan Lal and found the following injuries on his person:- 1. Incised wound 1 x 1 Cm right scapular region. 2. Lacerated wound on upper lip 1 CM x 0.5 CM size on right corner of mouth with 5 mm size abrasion. Reddish in colour. 3. Lacerated would inner surface of lower lip 1 x 1 CM size on right side. All the injuries were simple in nature. Injury No.1 was caused with sharp edged weapon. Injury No.2 and 3 were caused with blunt weapon. The probable duration of the injuries was less than 24 hours. I issued the MLC Ex. Pw-15/C which is in my hand and bears my signatures. Injury No.1 on the person of Shri Madan Lal can be caused with the knife Ex. P-1 shown to me in the Court today. On the same day, I examined Shri Anil Kumar and found the following injuries on his person:- Incised wound on right shoulder lateral surface 1 x .5 Cm in size. The injury was simple in nature caused with a sharpe edged weapon. Its duration was within 24 hours. This injury can be caused with the knife Ex. P-1. I issued the MLC Ex. PW-15/D which is in my hands and bears my signatures. On the same day, I examined Shri Suneel Kumar and found the following injuries on his person:- 1. Its duration was within 24 hours. This injury can be caused with the knife Ex. P-1. I issued the MLC Ex. PW-15/D which is in my hands and bears my signatures. On the same day, I examined Shri Suneel Kumar and found the following injuries on his person:- 1. 0.5 x .5 CM incised wound on right scapula. 2. 1CM x .1 CM incised wound on right ring finger at proximal inter phalangeal joint on dorsan surface. 3. 1 CM x 1 CM abrasion on right side near wrist joint of dorsan surface reddish colour. 4. 0.5 CM long incised wound on left side of chest. 3 CM from the left nipple. All the injuries were simple in nature. Injury No.1,2 and 4 were caused with a sharp edged weapon. Injury No.3 was caused with blunt weapon. Injury No.3 can be caused with the chopper Ex. P-10 shown to me in the Court today. The other injuries can be caused with the knife. I issued the MLC Ex. PW-15/E which is in my hand and bears my signatures. On the same day, I examined Shri Ajay Kumar and found the following injuries on his person: Incised wound 1.2 x 0.5 Cm in size on lower abdomen, left side underlying tissue coming out with fresh blood. The patient vomited once in the hospital. As the condition of the patient was poor, he was referred to Dr. R.P.G.M.C. Hospital, Dharamshala after giving the first aid. But the patient claimed of restlessness and started gasping. CPR started but the patient could not be revived and was declared dead on 18.6.05 at 2.20 AM. The injury which I found on the person of Shri Ajay Kumar can be caused with the sharp edged knife Ex. P-5 shown to me in the Court today. The probable duration of the injuries was within 24 hours. The post mortem was advised for giving the final opinion. I issued the MLC Ex. PW-15/F which is in my hand and bears my signatures.” 10. We have reproduced the evidence of PW-14 Dr. R.N. Pandey, as all the injured were firstly brought to him. 11. We now advert to the submissions made by learned counsel appearing for the appellants, Shri C.N. Singh submits, who that it is the case of the prosecution that the incident occurred at around 11 p.m. on 17.6.2005. We have reproduced the evidence of PW-14 Dr. R.N. Pandey, as all the injured were firstly brought to him. 11. We now advert to the submissions made by learned counsel appearing for the appellants, Shri C.N. Singh submits, who that it is the case of the prosecution that the incident occurred at around 11 p.m. on 17.6.2005. This fact has been incorporated in FIR Ex.PW4/B and rukka Ex.PW3/B, on the statement of Girdhari Lal, PW-7, who along with his brother Rattan Chand, nephew Pritam Chand, deceased Sunil Kumar and Ajay Kumar, Anil Kumar, Madan Lal, who were injured were present in village Kaiana on the marriage of Sushma Devi, niece of the informant. The case of the prosecution is that they were present in the court yard of Khailo Ram (father of the bride) waiting for the marriage party. The court yard was lit up as befitting the occasion. At around 11.00 pm., the marriage party (barat) arrived there when they heard noise/commotion from the fields near the court yard. The complainant PW-7 Girdhari Lal along with Madan Lal, Anil Kumar, Sunil Kumar and Ajay Kumar went to the fields and saw that the accused Budhi Prakash, Bindu, Ajit Singh, Sonu alias Suresh Kumar and Sher Singh having an altercation with Rattan Chand, brother of the informant and nephew Pritam Chand. Budhi Prakash and Suresh Kumar were armed with ‘Chhura” (knife). When they reached the field, Budhi Prakash gave a knife blow to Rattan Chand, Sonu alias Suresh Kumar delivered one knife blow to Pritam Chand. Sher Singh, Bindu and Ajit Singh beat up the deceased Rattan Chand and Pritam Chand with their fists. When the complainant and other people intervened, Budhi Prakash stabbed Ajay Kumar in his abdomen, Sonu alias Suresh Kumar attacked Anil Kumar and Madan Lal. Ajit Kumar was beaten up with ‘chappals’ by accused Sunil Kumar, when this right going on, many people reached the field. On seeing these persons, all the accused fled away from the place of occurrence and injured were taken to Bathari hospital. Ajay Kumar died in the hospital and Pritam Chand and Rattan Chand were referred to Dharamshala hospital for further treatment. Sunil Kumar, Madan Lal and Ajay Kumar were treated in Bathari hospital. Rattan Chand died on the way to Dharamshala Hospital. Ajay Kumar died in the hospital and Pritam Chand and Rattan Chand were referred to Dharamshala hospital for further treatment. Sunil Kumar, Madan Lal and Ajay Kumar were treated in Bathari hospital. Rattan Chand died on the way to Dharamshala Hospital. The motive was alleged to be the quarrel which took place on 16.6.2005 when accused Budhi Prakash had quarreled with the nephew of the informant at a wedding party. It is submitted that the entire episode is the out come of enmity with Khailo Ram, who is the relative of the informant and the prosecution witnesses. In fact no occurrence took place and the accused have been falsely roped in. The accused were never invited to the marriage party nor were they present at the wedding feast on 16.6.2005, the date of quarrel between the accused and the deceased (prior to the present incident. The evidence of the witness PW-7 Girdhari Lal cannot be relied upon. Learned counsel submits that there are material contradictions with respect to the time of the incident and the factum of the information having been conveyed to the police. Learned counsel submits that PW-7 Shri Girdhari Lal has admitted in crossexamination that he along with others reached the house of the Khailo Ram at around 10/11 P.M. on 16.6.2005. Counsel emphasis that in rukka Ex.PW3/B, it is not stated that the accused were present in the court yard of Khailo Ram or the fact that Pritam Chand and Rattan Chand had been called by the accused. He also submits that the land of the accused and the injured/deceased is adjoining to each other and there is boundary dispute pending. Learned counsel submits that the evidence of PW-7 Girdhari Lal and PW-8 Pritam Singh does not identify the accused as the perpetrators of the crime. The place of occurrence is also not certain as according to learned counsel PW-7 Girdhari Lal at one point of time says that he heard the noise from the fields adjoining to the court yard, but in the Court he stated that the fight took place in the fields which are at a higher elevation from the court yard where he was standing. No motive as alleged has been proved and that the witnesses being related to the deceased cannot be believed. No motive as alleged has been proved and that the witnesses being related to the deceased cannot be believed. It is also submitted that the fact that the accused have been wrongly roped in is further fortified when one of the injured has been referred to the hospital at Dharamshala which is far of and is not the nearest hospital. The delay in treatment itself being fatal, the appellants cannot be held guilty for causing murder of the two deceased, Ajay and Rattan Chand. We have given our anxious and thoughtful consideration to the submissions of the learned counsel appearing for the appellants. 12. We now advert to the evidence of PW-7 Girdhari Lal, who as submitted cannot be relied upon. We reiterate that his evidence is clear and cogent and we could not find anything, which would exonerate the accused from their participation in the crime. He has corroborated the entire evidence with respect to the wedding feast which took place on 16.6.2005 in the house of one Shri Omi in which altercation took place between the accused and Shri Prtiam Chand, Sunil Kumar and others. He has stated that on 17.06.2005, he along with other persons took the injured to the hospital at Bathari where Ajay Kumar died, while Rattan Chand died on his way to the hospital at Dharamshala where he was referred. We note that the genesis of the incident has been described by this witness in clear and cogent terms where he says that the accused called his brother Rattan Chand and nephew Shri Pritam Singh. They started abusing each other where-after the fight ensued. He identified accused Budhi Prakash as a carrying knife with him. He used it to attack Rattan Chand; accused Sonu stabbed Pritam Chand on the chest. Accused Budhi Praksh assaulted Ajay Kumar with knife and again Sonu delivered a blow to Madan Lal. Despite the fact that he has been declared hostile, this part of his testimony remains unimpeached. He only does not corroborate the fact that he was present in the police station when the accused Suresh Kumar made a disclosure statement. Accused Budhi Praksh assaulted Ajay Kumar with knife and again Sonu delivered a blow to Madan Lal. Despite the fact that he has been declared hostile, this part of his testimony remains unimpeached. He only does not corroborate the fact that he was present in the police station when the accused Suresh Kumar made a disclosure statement. He was declared hostile by the Public Prosecutor and in cross-examination he admits his signature on Ex.PW-7/A, which is the disclosure statement of accused Suresh Kumar and that this accused led the police party to the bushes and got the knife recovered in presence of this witness and other persons. He also admits that recovery memo Ex.PW7/B was prepared in this regard which was signed by him, accused Suresh Kumar and Paras Ram. He also admits that sketch of the knife Ex.PW7/C was prepared by the police, which was signed by him and witness Paras Ram. He also identified the knife Ex.P-1. We find that he was an important eye witness who corroborates the facts and it is the consistency of his evidence which has to be considered. 13. We also advert to the evidence of Pritam Singh PW-8, who states that on 16.6.2005 there was an altercation took place with the accused in the house of Omi son of Shri Barfo Ram in village Kakiana when he and Rattan Chand had gone to attend Nawala (religious ceremony) followed by feasting. He states that all the accused present in Court were present there. He and the accused started dancing when the accused pushed them around. After the ceremony he and Rattan Chand returned home. On the next day, they went to the marriage at around 11 p.m. and were standing in the court yard to receive the marriage party when all the accused who were standing there called out to him and Rattan Chand. He and Rattan Chand went to the accused. The moment they reached near the accused, they took out knives and set upon them; stones were also pelted at them. He states that Budhi Prakash and accused Suresh were armed with knives and accused Ajit was carrying a ‘danda’ and remaining two accused were having stones in their hands. They raised an alarm and on hearing the noise, Shri Girdhari Lal, PW-7 and Shri Sunil Kumar along with others reached the spot. He states that Budhi Prakash and accused Suresh were armed with knives and accused Ajit was carrying a ‘danda’ and remaining two accused were having stones in their hands. They raised an alarm and on hearing the noise, Shri Girdhari Lal, PW-7 and Shri Sunil Kumar along with others reached the spot. He described the assault in detail as also the fact that thereafter he was taken to the hospital along with others. 14. We would have accepted the submission that evidence of these witnesses cannot be treated as the gospel truth as it may be partisan in nature if it was inconsistent and not corroborated by other facts and most importantly the medical evidence. But we find no reason to reject the evidence after scrutiny as no case of false implication is made out. We then go to the statement of PW-12 Jaram Singh, who also corroborates the statements of PW-7 Girdhari Lal and PW-8 Shri Pritam Singh and describes the assault in clear details. True that the evidence of the interested witnesses has to be scrutinized with care and caution, but that does not extend to rejecting it out right as being unacceptable by mere relationship of these witnesses to the deceased. On close scrutiny of the evidence, we find nothing in the evidence to point out towards false implication of the accused or the facts proved in any manner exonerating the accused. We find that the medical evidence considered supra is consistent with the case of the prosecution corroborating nature of injuries received by the complainants and the deceased. It is submitted before us that accused Bindu cannot be convicted for any offence as he did not take any active part in the incident. Learned counsel Mr. Anil Chauhan submits that in this view of the matter, he deserves to be acquitted out rightly. We are unable to accept this submission. In Yunis alias Kariya etc. versus State of Madhya Pradesh, AIR 2003 SC 539 , the Court holds: “9. The learned Counsel appearing for the appellant-Liyaquat argued that no overt act is imputed to his client and he was being implicated only on the basis of Section 149, IPC. This argument, in our view, has no merit. In Yunis alias Kariya etc. versus State of Madhya Pradesh, AIR 2003 SC 539 , the Court holds: “9. The learned Counsel appearing for the appellant-Liyaquat argued that no overt act is imputed to his client and he was being implicated only on the basis of Section 149, IPC. This argument, in our view, has no merit. Even if no overt actis imputed to a particular person, when the charge is under Section 149, IPC, the presence of the accused as part of unlawful assembly is sufficient for conviction. The fact that Liyaquat was a member of the unlawful assembly is sufficient to hold him guilty. The presence of Liyaquat has not been disputed. All the appeals are accordingly dismissed.” (p. 541) 15. These principles are also reiterated in Charan Singh & others versus State of H.P., (2004)4 SCC 205 . The Court holds: “13. Coming to the others who were armed with double barrel guns and country made pistols, the question is regarding applicability of Section 149, IPC. Section 149, IPC has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons. The word 'object' means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons. Who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object". It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object upto certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. 14. 'Common object' is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. 15. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known" Positive knowledge is necessary. When an offence is committed in prosecution of the common object. It would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object. (See Chikkarange Gowda and Ors. v. State of Mysore, AIR (1956) SC 731. 16. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. (See Chikkarange Gowda and Ors. v. State of Mysore, AIR (1956) SC 731. 16. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A Four-Judge Bench of this Court in Masalti's case AIR 1964 SC 202 observed as follows: (AIR p.210, para 15) "Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well-founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims. It may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different, members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not." 17. To similar effect is the observation in Lalji v. State of U.P., [1989] 1 SCC 437. It was observed that : (SCC p.441, para 8) "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 the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. " 18. It was observed that : (SCC p.441, para 8) "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 the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. " 18. In State of U.P. v. Dan Singh and Ors., [1997] 3 SCC 747 it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji's case (supra) where it was observed that: (SCC p.442, para 9) "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". 19. Above being the position, we find no substance in the plea that evidence of eyewitnesses is not sufficient to fasten guilt by application of Section 149. So far as the observations made in Roshan Lal and Mariadasan cases (supra), it is to be noted that the decision in the said case was rendered in a different factual scenario altogether. There is always peril in treating the words of a judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, on additional or different fact may make a world of difference between conclusions in two cases (See Padamasundara Rao (dead) and Ors. v. State of Tamil Nadu and Ors., JT (2002) 3 SC 1. It is more so in a case where conclusions relate to appreciation of evidence in a criminal trial.” (pp.209-212). This should put the controversy urged at rest. 16. In Deo Narain versus State of Uttar Pradesh, (2010)12 SCC 298 , again the Court reiterates: “10. It is true, as contended by Mr. T.N. Singh, that the factum of causing an injury or not causing an injury would not always be relevant where the accused is sought to be roped in with the aid of Section 149, IPC. 16. In Deo Narain versus State of Uttar Pradesh, (2010)12 SCC 298 , again the Court reiterates: “10. It is true, as contended by Mr. T.N. Singh, that the factum of causing an injury or not causing an injury would not always be relevant where the accused is sought to be roped in with the aid of Section 149, IPC. At the same time, where the animosity between the parties is admitted with a series of murders and attempted murders inter se and political rivalries going back for years together, a case of false implication is also a clear possibility. It is for this reason that the courts sift the evidence to separate the grain from the chaff and to see that in a case of admitted animosity and a large number of accused some corroborating evidence to support the eye witness account must be looked for.” (p.300) 17. Counsel for the appellants relied upon the decision of the Supreme Court in A. Shankar v. State of Karnataka, (2011)6 SCC 279 to urge that there are material contradictions in the statements of the witnesses and identity of the accused has not been established and in this event the acquittal must be the only consequence. We are not impressed with this submission as we have already held that the evidence considered supra has described the incident in clear and cogent terms in which eventuality there can be no acquittal. We reiterate what the Supreme Court lays down in Bhola alias Paras Ram versus State of Himachal Pradesh (2009) 11 SCC 460 : “11. It is to be noted that the accused persons pleaded that the evidence of the eyewitnesses cannot be accepted as there were omissions, contradictions and discrepancies in the evidence of most of the prosecution witnesses. In the effort of false implication, the prosecution made introduction of PW 9, an eyewitness. It is fairly settled position in law that even if there are some omissions, contradictions and discrepancies the entire evidence cannot be discarded. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements the court can come to a conclusion as to whether the residual evidence is sufficient to convict the accused. (See Sohrab v. State of M.P., SCC pp. 755-56, para 8 and State of U.P. v. M.K. Anthony.) 12. After exercising care and caution and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvements the court can come to a conclusion as to whether the residual evidence is sufficient to convict the accused. (See Sohrab v. State of M.P., SCC pp. 755-56, para 8 and State of U.P. v. M.K. Anthony.) 12. In Bharwada Bhoginbhai Hirihibhai v. State of Gujarat it was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be expected to possess a photographic memory and to recall the details of an incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor discrepancies were bound to occur in the statement of witnesses.” We need not repeat the well established principles. 18. We now advert to the question of sentence. We find from the facts established on record that incident has occurred in the heat of the moment in altercation and the injuries have been caused on the vital parts of the body, which cannot be by a single blow. It is in these circumstances, we hold that the appellants cannot be convicted under Section 302 IPC, as having given an anxious consideration to the evidence on record, we advert to the judgment of the Supreme Court in Salim Sahab versus State of M.P. (2007) 1 SCC 699 . The Court holds as under: “12. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it has been laid down as under: ( AIR p.366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” The above decision has since been followed in Guli Chand v. State of Rajasthan (1974) 3 SCC 698 in which Vadivelu Thevar v. State of Madras AIR 1957 SC 614 was also relied upon. 13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh Case1 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366 para 25) “25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – ‘Rameshwar v. State of Rajasthan AIR 1952 SC 54 , AIR at p. 59. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 14. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 14. Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed: ( AIR pp. 209-10 para 14) “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses….. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 15. To the same effect are the decisions in State of Punjab v. Jagir Singh (1974) 3 SCC 277 , Lehna v. State of Haryana (2002) 3 SCC 76 and Gangadhar Behera v. State of Orissa (2002) 8 SCC 381 . In the present case apart from the evidence of PW 1, the evidence of PW 5, who has no axe to grind, is there. So, the plea regarding interested witnesses is without substance. 16. “17. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. 18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (1993) 4 SCC 238 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage.” The above position was highlighted in Babulal Bhagwan Khandare v. State of Maharashtra (2005) 10 SCC 404 (SCC pp. 410-11, paras 17- 19). 17. The factual scenario shows that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, the accused attacked the deceased with a pair of scissors. It was not a very big-sized weapon though it was certainly having a sharp-edged point.” (P.702 to 704) 19. We find that this case law cited supra squarely covers this case. We, therefore, direct that the appellants be convicted under Section 304 Part II of IPC and sentence each of the accused to undergo rigorous imprisonment for a period of 10 years without altering the other sentences, as imposed by the learned trial Court. We also impose a fine of Rs.50,000/- on each of the accused, which shall be paid by them after release from the prison within a period of six months, failing which, they shall undergo rigorous imprisonment for a further period of six months. The appellants shall be released from the prison on completion of 10 years imprisonment forthwith, which would include the time they already served during the trial. 20. Both the appeals stand accordingly disposed of.