JUDGMENT : Per: Hon’ble Servesh Kumar Gupta, J. By means of this appeal, the challenge is to the judgment and order of conviction dated 19.8.2010 rendered by learned Sessions Judge, Nainital in Sessions Trial No.90 of 2006. Such trial pertains to crime no.4/2005 for the offence of Sections 148, 302/149, 307/149 and 506 IPC. The area where the crime was committed falls in the Revenue Circle Patalia, Tehsil Dhari, District Nainital, so the first information report was lodged at the outpost of such Circle recorded by the concerned Patwari (it may be mentioned here that in the hilly terrain, a Patwari remains empowered to investigate the matter like a regular Sub Inspector of Police). So, the said revenue official investigated the matter and submitted the chargesheet (Ex.Ka-20) for the said offences, which was the basis of levelling the Charge against all the accused persons by the Trial Judge. 2. For convenience, we would like to refer the accused Krishan Singh as ‘A1’, Yogesh Singh ‘A2’, Diwan Singh ‘A3’, Suresh Singh ‘A4’ and Puran Singh as ‘A5’. It may also not be lost sight that A1 and A2 are the real brothers while rest of three are also the real brethren. Both set of accused persons further are inter-related to each other and reside in the village Thali of the same revenue circle, which is almost 2 kilometers away from the place of occurrence viz. Village Khujeri. 3. This is a diabolically conceived pre-planned murder of a 30 years’ youth which was cruelly executed in the house of victim itself. The 16th July, 2005 around 7 PM is the fateful day when all the depredators, afore-named, boarded in a small Tata Sumo vehicle UA04/0459 and armed with deadly weapons, entered in the house of deceased and straightway headed to his room; A1 was armed with a gun; A2 was having a Khukhri (a sharp edged weapon) and A3 was with a knife. While A4 and A5 were catching hold of the deceased Bhim Singh, A2 and A3 began to cause fatal blow on the whole body of deceased, especially the upper part, with the object of this macabre killing of youth. In the course of such stabbing, A1 handed over his gun to A2 in exchange of Khukhri, and he (A1) too stabbed a number of wounds making Bhim Singh fatally injured. The entire spot was soaked with blood. In the course of such stabbing, A1 handed over his gun to A2 in exchange of Khukhri, and he (A1) too stabbed a number of wounds making Bhim Singh fatally injured. The entire spot was soaked with blood. As Bhupendra Singh (PW4), the real younger brother of deceased, arrived at the spot meanwhile and picked up a baton from the courtyard of the house to his brother’s rescue, so in that course, the grip of A4 and A5 on the deceased became loose and he (deceased) escaped from the spot, as a last resort, to save his life. He could barely run 50 paces from this spot and entered the house of one Smt. Leela Devi, confining himself in a room inside. He bolted such room from inside, but there too, accused persons, after chasing such seriously wounded Bhim Singh, thronged in the house of Smt. Leela and began to break the door of such room where the hapless deceased had closed himself. Smt. Leela was on the roof of her house; she shouted on the accused persons but by that time, they succeeded in entering the same room and further ensured that Bhim Singh had breathed his last. 4. It is also relevant to note that when the accused persons entered in the house of deceased, informant Naresh Singh, (PW1 & father of deceased) was sitting along with his spouse Basanti Devi (PW2). Their young daughter Ms. Yamuna Kunwar was also present in the yard. That apart, the young wife of deceased, namely, Champa Devi was also present there, who along with her mother in law (PW2) strived to save Bhim Singh from the clutches of the accused persons and in that course, they both suffered the injuries. They all shouted and raised screams but since all the accused persons were in the prime of their age, so all the inmates could hardly be of any help to encounter the valour and fiendish act of the culprits. Thus, Bhim Singh met with a homicidal death being soaked in the pool of blood. At the time of moving the house of Smt. Leela, all the accused persons threatened the whole surroundings to face the dreaded consequences if anyone would speak about this incident. Thus, Bhim Singh met with a homicidal death being soaked in the pool of blood. At the time of moving the house of Smt. Leela, all the accused persons threatened the whole surroundings to face the dreaded consequences if anyone would speak about this incident. It was quite dark by then, even so, the FIR was immediately prepared by PW1 Naresh Singh but the same could be lodged only in the morning of next day i.e. on 17.7.2005 at 9 AM. 5. Revenue police came into motion and inquest report Ex.Ka-9 was prepared wherein Autopsy was recommended. 6. Post-mortem (Ex.Ka-2) was conducted on the body of deceased on 17.7.2005 at 10 AM in the hospital at Haldwani by PW3 Dr. Nilamber Bhatt. The following injuries were noted:- 1. “Multiple incised wounds over head: - A. Behind right Pinna 8 x 2 cm x bone deep oblique. B. Just parallel to wound (A), another wound 5 x 1 x bone deep. C. Wound having size 13 x 3 cm x bone deep over back of head (horizontal), just below occipital. D. Wound 9 x 1.5 cm x bone deep, obliquely, behind left Pinna, E. Wound 8 x 1 cm x bone deep, vertical, behind left Pinna, adjacent to wound (D). On further exploration, bone below wounds (A) and (C) are cut; Haematoma and congestion is there in muscle with bleeding. On further exploration, brain membrane and brain matter is congested. 2. Abrasion of 4 x 2.5 cm over front of left side of head is there; 3. Abrasion of 2 x 2 cm over Chin is there; 4. Abrasion of 3 x 2 cm over left side of face, just front of left ear. 5. Incised wound of 3 x 1.5 cm over front of left side of chest, viscera deep, situated 6 cm below left nipple. On exploration, haemetoma and congestion in subcutaneous bone; muscles are cut with cut of left Pleura and blood is seen about 1.5 liters in left Pleural cavity, with cut in stomach and cut on spleen and hemo-peritorinum, about 2 liters blood is there. 6. Incised wound of 3 x 1 cm x viscera deep over back of left side of chest, 4 cm below scapula band. On exploration, cut on pleura and lungs; blood seen in left peritoneal cavity. 7. Abrasion of 5 x 0.5 cm over left shoulder; 8. 6. Incised wound of 3 x 1 cm x viscera deep over back of left side of chest, 4 cm below scapula band. On exploration, cut on pleura and lungs; blood seen in left peritoneal cavity. 7. Abrasion of 5 x 0.5 cm over left shoulder; 8. Incised wound over ventricle aspect of left middle and ring finger measuring 1 x 0.5 cm on each finger. 9. Incised wound of 1 x 0.5 cm over dorsal aspect of right thumb is there.” On internal examination, heart was found empty. In the opinion of the doctor, cause of death was shock and coma as a result of above-noted multiple anti-mortem incised wounds. 7. It is also relevant to note here that Smt. Basanti Devi (mother of deceased), aged about 55 years, W/o Naresh Singh, who got some injuries at the time of rescuing her son, was examined on 18.7.2005 at 11 AM by PW5 Dr. Piyush Rastogi and the following injuries were found on her body:- 1. “A bruise mark (Bluish) on the front of upper arm (left side) about 3 x 3 inches, tender to touch; 2. A lacerated wound about 1 inch long, ¼ inch wide and ¼ inch deep, present on the lateral side of left hand. Edges swollen and pus coming out. In the opinion of doctor, injury no.1 could be inflicted by some blunt object like rear portion of gun whereas no.2 could be caused by a knife. 8. Likewise, Smt. Champa Devi (deceased’s wife), aged about 23 years, was examined on the same date and time and following single injury was found on her body: - ‘A sharp cut wound about 3 inches long x 1 inch deep x 1 inch wide in centre with tapering margins over back of left hand over wrist joint and extending upto first finger base. Margin swollen and pus coming out.’ 9. PW5 Dr. Piyush Rastogi has proved the injury reports and has opined that the injuries on the person of both the injured were 2-3 days old, and in this away, those do match with the date and time of incident. 10. Margin swollen and pus coming out.’ 9. PW5 Dr. Piyush Rastogi has proved the injury reports and has opined that the injuries on the person of both the injured were 2-3 days old, and in this away, those do match with the date and time of incident. 10. It is difficult to ignore that after submission of chargesheet in the Court in the beginning of October, 2005, the Charge could be levelled against the accused persons only on 20.6.2007 i.e. after almost 21 months, and having a look on the order-sheet of the court below, it is abundantly clear that these accused persons permitted the Trial Judge to level the Charge after such delay on account of moving repeated exemption applications either on behalf of one accused or the other. So, they were interested to protract the trial, obviously for the reason to win over the witnesses of surroundings; for this reason only, Smt. Leela Devi and many other witnesses, who have their dwelling units as neighbouring houses, could not be produced by the prosecution. However, the prosecution produced PW1 Naresh Singh (father of deceased), PW2 Smt. Basanti Devi (deceased’s mother) and PW4 B.S. Bora (younger brother of deceased) besides other formal witnesses. PW1, PW2 and PW4 have all given the occular version and we find that simply being the relatives of deceased, their testimony cannot be discarded just on the ground of minor discrepancies and incongruities; all the more, it is also germane to note here that these are the village witnesses belonging to hilly area who could be examined in the Court, due to the delay tactics on the part of accused persons, only after 2½ -3 years of the occurrence. They all have deposed in a corroborative manner the entire facts and sequence of incident which happened on such sensitive moments. We are not inclined to reproduce the verbatim deposition of these witnesses which has been entailed in the impugned judgment. 11. The contention of learned Senior Counsel on behalf of the appellants that the prosecution could not prove any motive, is totally irrelevant for the reason that where the eyewitness account is available and that too almost being corroborative in nature, then the motive becomes insignificant. 11. The contention of learned Senior Counsel on behalf of the appellants that the prosecution could not prove any motive, is totally irrelevant for the reason that where the eyewitness account is available and that too almost being corroborative in nature, then the motive becomes insignificant. Furthermore, accused persons too, in their statements u/s 313 Cr.P.C. have not explained anything as to why they were implicated by the prosecution sparing the real culprits (if any other one). 12. Next argument of learned Senior Counsel that wife and sister of deceased, namely Smt. Champa Devi and Ms. Yamuna Kunwar respectively, were not produced by the prosecution, is also not of any avail because multiplicity of evidence, to prove the same fact, is neither a rule of law nor the prudence so demands. More so, when PW4 B.S. Bora (real brother of deceased) has explained that soon after the occurrence, Smt. Champa Devi had left the parental house, from where, her whereabouts were not known probably for the reason that she entered into a second wedlock. 13. It was next argued on behalf of appellants that the deceased could not have run 50 meters after having been so injured. We find that this argument does not hold any water because even if a person was so mortally wounded, then as a last ditch effort to save his life, it was but natural for the deceased to escape from the spot and to take shelter in the nearby house located at a distance which he could possible run and cover in such a serious state. 14. The Investigating Officer has prepared the Map of the spot which is Ex.Ka-14 and has proved the same. At the instance of Krishna Singh (A1), a Khukhri was recovered on 21.7.2005 which was the weapon of assault and this incriminating evidence strengthens the prosecution version. Its recovery memo is Ex.Ka-5, whereon, the signature has not been denied by A1 in his statement u/s 313 Cr.P.C. 15. Similarly, the knife used in the incident was also recovered at the instance of Deewan Singh (A3); memo of such recovery is Ex.Ka-6 and signature thereon too has not been denied by this accused while being examined in the Court u/s 313 Cr.P.C. 16. Similarly, the knife used in the incident was also recovered at the instance of Deewan Singh (A3); memo of such recovery is Ex.Ka-6 and signature thereon too has not been denied by this accused while being examined in the Court u/s 313 Cr.P.C. 16. Blood-soaked clothes and soil of the spot were sent to the Forensic Science Laboratory for chemical examination, the report whereof is Ex.Ka-19, which ratifies the presence of human blood on all such articles. 17. It was next argued by learned Senior Counsel for the appellants that the first information report did not depict the details of weapons held by the respective accused. This, in our view, is also not considerable for the reason that when the FIR was reduced in writing soon after the incident in such horrific moments, then laying down each and every detail as well as sequence of happening, is not a necessity for anyone. 18. On the question of ‘common object’, there are catena of judgments propounded by the Hon’ble Apex Court. One such case is of ‘Allauddin Mian Sharif Mian v. State of Bihari’ AIR 1989 S.C. 1456 , wherein it was held that ‘there must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same’. 19. Like-wise, in case of ‘Waman v. State of Maharashtra’ AIR 2011 SC 3327 , it was laid down that ‘in order to attract section 149 of the Code, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under section 149’. 20. In yet another precedent of Hon’ble Apex Court in case of ‘Yunis alias Kariya v. State of Madhya Pradesh’ AIR 2003 SC 539 , it was held that ‘even if no overt act is imputed to a particular person, when the charge is under section 149, then the presence of the accused as part of unlawful assembly is sufficient for conviction’. 21. 21. So, in view of what has been set forth above, the role assigned to A4 and A5, for catching hold of the deceased, is no less incriminating than rest of accused persons in view of the dictum of the Apex Court in case of ‘Amerika Rai v. State of Bihar’ AIR 2011 SC 1379 , wherein it was held that even the presence in the unlawful assembly, but with an active mind, to achieve the common object, makes such a person vicariously liable for the acts of the unlawful assembly’. 22. We find that there is formidable evidence available on record to hold all these appellants guilty for the offences, wherefor learned Sessions Judge has appropriately sentenced them by the impugned judgment, and there is no reason for us to interfere with the same. With the result, the appeal is bereft of any merit and is thus, dismissed. All the appellants are on bail. Their bail bonds are cancelled. Let they be taken into judicial custody forthwith to serve out the sentence as awarded. 23. A copy of this judgment and order, along with the LCR, be sent to the court concerned for compliance.