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2016 DIGILAW 4166 (ALL)

Waheed Khan v. State of U. P.

2016-12-23

ARVIND KUMAR TRIPATHI, MUKHTAR AHMAD

body2016
JUDGMENT Arvind K. Tripathi, J. 1. The present criminal appeal with criminal appeal no.68 of 1984 has been preferred against the impugned judgment and order of conviction and sentence dated 7.1.1984 passed by 3rd Additional Sessions Judge, Bulandshahr in S.T. No.462 of 1983 arising out of case crime no.55 of 1983, P.S. Ahamadgarh, District Bulandshahr convicting and sentencing the appellants Waheed Khan and Wahid Khan for two years rigorous imprisonment under section 148 IPC and life imprisonment under section 302 read with section 149 IPC, and convicting and sentencing the accused appellants Latafat, Farukh, Abid, Badiuzzama and Sabir under section 147 IPC for one and half years rigorous imprisonment and under section 302 IPC read with section 149 IPC for life imprisonment. 2. Being aggrieved against the impugned judgment the above noted two criminal appeals were preferred. 3. The present criminal appeal no.97 of 1984 was filed by Waheed Khan S/o Rashid Khan and Wahid Khan S/o Mohammad Ali connected with criminal appeal no.68 of 1984, which was preferred by Latafat, Farook, Abid, Badiuzzama and Sabir. 4. During pendency of appeal Wahid Khan S/o Mohammad Ali, Abid and Badiuzzama died hence appeal stood abated in respect of Wahid Khan S/o Mohammad Ali and Badiuzzama vide order dated 27.4.2016 and in respect of appellant Abid vide order dated 2.8.2016 passed by this Court. The date of occurrence is 6th May, 1983 at 8.00 A.M. in jungle of village Barari, P.S. Ahmadgarh, Tehsil Khurja, District Bulandshahar. The FIR was lodged by Ausaf Ali S/o Riyasat Ali, nephew of deceased Mukhtar Khan. The FIR was registered on 6.5.1983 at 9.30 A. M. at P.S. Ahmadgarh as case crime no.55 of 1983, undeer sections 147, 148, 307, 149 IPC. The distance from the place of incident to the police station was about 8 km. In the first information report nine accused were named including the seven appellants. After death case was converted under section 302 IPC. The accused Yunus S/o Ashiq and Sahid S/o Mohd. Ali, who were armed with katta were absconding hence seven above noted appellants faced the trial. 5. As per FIR version registered on written report of Ausaf Ali nephew of deceased Mukhtar Khan his uncle Mukhtar Khan went to jungle (agricultural field) to bring fodder at about 8.00 A.M. on 6th May, 1983 on which date report was lodged. Ali, who were armed with katta were absconding hence seven above noted appellants faced the trial. 5. As per FIR version registered on written report of Ausaf Ali nephew of deceased Mukhtar Khan his uncle Mukhtar Khan went to jungle (agricultural field) to bring fodder at about 8.00 A.M. on 6th May, 1983 on which date report was lodged. As soon as he reached near the sugarcane field, Yunis S/o Ashiq Ali, Waheed Khan, Latafat, Farukh, Abid, Badiuzzama, Sabir and Wahid Khan S/o Mohammad Ali with common object surrounded him. Yunis, Waheed Khan, Wahid Khan and Sahid were having countrymade pistol and remaining accused were having lathi, ballam and farsa. The accused armed with fire arms, shot fire. After first shot hit to his uncle he ran to save him, thereafter, they surrounded and again shot fire from all side. The persons, who were working nearby the sugarcane field namely Sarafat, Nanha, Chhunnu, Sahadat and other villagers reached and saved him. The accused were having grudge and enmity due to village party-bandi and litigation and with intention to kill his uncle they attacked. The request was made to register the report and take legal action. By bullock-cart injured was taken to the police station and after registration of the case injured Mukhtar Khan was referred for the medical examination to Deebai hospital but he succumbed to his injuries on way to hospital. The body was brought back to the police station at about 10.40 A.M. by Constable. The inquest report was prepared by Sub Inspector Netrapal Singh. He also prepared Chalan Nash and Photo Nash, the letter was written to the C.M.O. for autopsy. The body was handed over in sealed cover with the cloth to Constable Iqramuddin and Lileyram. Initially case was registered under section 147, 148, 307 read with section 149 IPC, however, after death section 307 IPC was converted under section 302 IPC in the G.D. Entry no.14. The investigation was handed over to S.I. Prem Singh Nagar, who proceeded to the place of occurrence, investigated the spot, interrogated Sharafat and Nanha. The site plan was prepared, blood stained and simple earth was collected from the spot and same were sealed in separate containers. 6. The investigation was handed over to S.I. Prem Singh Nagar, who proceeded to the place of occurrence, investigated the spot, interrogated Sharafat and Nanha. The site plan was prepared, blood stained and simple earth was collected from the spot and same were sealed in separate containers. 6. When case was registered under section 307 IPC, S.I. Netrapal, whom investigation was handed over, interrogated Head Moharrir Netrapal Singh, the scribe of the chick report and the G.D. entry, the informant Ausaf Ali and the eye witnesses mentioned in the written report namely Chhunnu, Shahadat, Sharafat, who accompanied the victim to the police station. 7. The search was made to arrest the accused, who were not available in the village in their houses. The accused Badiuzamma was arrested on 7.5.1983, Farooq and Waheed were arrested from police station Angota. The other accused surrendered in court but accused Yunis and Shahid were absconding. 8. The post-mortem examination was conducted on 6.5.1983 at 5.00 P.M. by M. K. Goyal the then Medical Officer, District Bulandshahar and time of death was noted about half day old. He noted following injuries : - I. Gun shot wound with lacerated edges 1" x 1/2" on the epigastric region of abdomen surrounded with 3 other penetrat. Wounds over an area of 1 & 1/2" x 1" from 12 to 3 O' Clock position. Size of each being 1/4" x 1/4" x muscle. There was blackening all around the pig wound, which was abdominal cavity deep. II. Multiple (four) abrasions on the epygastric region right side to injury no.1, obliquely, placed, parralal to each other, size of each varied from 1 & 1/2" x 2" to 1/2" x 1/2" and they were quarter inch part upwards from injury no.1. III. Gun shot wound with lacerated edges 1" x 1" on the right side at the root of neck directing down-wards chest cavity deep. IV. Incised wound 1/2" x 1/2" on the left side of back. 3rd and 4th ribs on the right side posterior end were fractured. The pleura of the right lung was perforated. The right lung was also lacerated from which pellet was extricated. The pleural cavity of the right lung contained 3 ounces of blood and a pellet. 3 pellets were taken out from the front of chest which were embedded in the muscle. The pleura of the right lung was perforated. The right lung was also lacerated from which pellet was extricated. The pleural cavity of the right lung contained 3 ounces of blood and a pellet. 3 pellets were taken out from the front of chest which were embedded in the muscle. The liver was also lacerated by the shot and a pellet was taken out of it. The cause of death was shock and haemorrhage, resulting from ante-mortem injuries. The post-mortem report has been proved as Ex. Ka-4. According to doctor the injuries were sufficient in the ordinary course to cause death. 9. After completing the investigation and necessary formalities charge-sheet was submitted. The case was committed to the court of sessions. Vide order dated 29.9.1983. The 3rd Additional Sessions Judge, Bulandshahar framed charges under section 147, 148, 302 read with section 149 IPC against Latafat, Farukh, Abid, Badiuzzama and Sabir and under section 148, 302 read with section 149 IPC against Waheed Khan and Wahid Khan. The charges were read-over and explained to the accused appellants in Hindi. They pleaded not guilty and claimed to be tried. The prosecution to prove its case examined as many as six witnesses, P.W. 1, Ausaf Ali, nephew of deceased claiming to be eye witness, P.W. 2 Nanha as eye witness, P.W. 3 Sharafat, brother of deceased eye witness, Shahadat as eye witnesses of the murder was examined as P.W. 4, P.W. 5 Prem Singh Nagar, Investigating Officer, and P.W. 6, Dr. M. K. Goyal, who conducted post-mortem examination. After the evidence was closed from the side of the prosecution the statement of accused appellants were recorded under section 313 Cr.P.C. After hearing the counsel for the parties the trial court found the appellants guilty, convicted and sentenced vide impugned judgement and order dated 7.1.1984. Being aggrieved against the same, above noted criminal appeals have been preferred. 10. Mr. Rajiv Lochan Shukla, learned Advocate, appeared on behalf of appellants and Mr. Chandrajeet Yadav, learned AGA on behalf of State. 11. Learned counsel for the appellants challenged the impugned judgment and order of conviction and sentence on the ground that there was over writing in the inquest report (Ext. Ka-5) with regard to the time and section 147, 148 was not mentioned on the top of the inquest report hence prosecution story becomes doubtful. 11. Learned counsel for the appellants challenged the impugned judgment and order of conviction and sentence on the ground that there was over writing in the inquest report (Ext. Ka-5) with regard to the time and section 147, 148 was not mentioned on the top of the inquest report hence prosecution story becomes doubtful. It appears that FIR was ante timed and at the time of inquest FIR was not in existence. Subsequently, with consultation merely on the basis of litigation in between the parties and village party-bandi, the appellants were falsely implicated in the present case. 12. He further submitted that in fact no one has seen the incident and only family members and related witnesses were examined on behalf of prosecution. It appears that deceased Mukhtar Khan was killed by unknown person and subsequently when family members came to know then the first information report was lodged implicating the appellants. The conduct of the witnesses also appears to be unnatural because they did not try to make any sincere effort to save deceased Mukhtar Khan and to chase the accused hence presence of alleged witnesses P.W. 1 to 4 appears to be doubtful. 13. He also submitted that according to prosecution case one set of witnesses ran towards south of the village and the other to a different direction hence it appears that some of the appellants ran towards north east from which side the witnesses also rushed to the place of incident, which is unnatural and unbelievable hence this also shows that none of the witnesses were present near the place of incident and they had no opportunity to witnessed the incident. Only family members, relative and partition witnesses were examined because the incident was not witnessed by any person hence there is no single independent witness to support the prosecution story. If the farmers were working in the nearby field then not only the witnesses, who were examined but the farmers might have been examined. P.W. 2 and 3, did not take name of informant Ausaf Ali to show his presence. He also contended that according to Dr. M. K. Goyal, who conducted post-mortem examination, the injury no.4 might have been caused by sharp edge weapon or due to fall over field of sugarcane. He also submitted that according to prosecution case itself, prior to 7.00 A.M. witnesses were not present near the place of incident. He also contended that according to Dr. M. K. Goyal, who conducted post-mortem examination, the injury no.4 might have been caused by sharp edge weapon or due to fall over field of sugarcane. He also submitted that according to prosecution case itself, prior to 7.00 A.M. witnesses were not present near the place of incident. The incident took place at 8.00 A.M. The presence of even Ausaf Ali, informant, is also doubtful because it was unnatural that he remained standing and watching the incident without raising any voice or without any effort to save his own uncle. 14. Four persons were assigned role of firing out of which two appellants faced trial and out of two only Waheed S/o Rashid Khan is alive. Wahid Khan S/o Mohd. Ali died during pendency of the appeal and other two accused namely Unis and Sahid were absconding so they did not face the trial. The remaining appellants were armed with lathi, ballam, farsa but there was no attempt to assault Mukhtar khan, which shows that there was no common object and section 149 is not applicable in the present case. No charge was framed under section 302 IPC against any of the appellants rather they were convicted and sentenced under section 302 read with section 149 IPC for life imprisonment. On these circumstances, not only the prosecution story appears to be doubtful but even according to prosecution story 149 IPC is not applicable. Had there been intention or common object to commit murder of Mukhtar Khan, and if all the accused appellants surrounded with weapon to cause death, they might have also assaulted. He further submitted that according to prosecution case, Sharafat and Chhunnu, Jabbid went to police station along-with injured Mukhtar Khan but they are not witness of the inquest report except one Sharafat S/o Mohd. Safiq, if he is the same person who went along-with injured the statement of Sharafat and Nanha were recorded at the place of incident. The conduct of informant Ausaf Ali was also unnatural because after lodging of the first information report he did not went to hospital along-with his uncle, who was injured and whose condition was serious rather he returned to his house from police station. In view of the circumstances, considering the prosecution case and distance of the police station even FIR appears to be too prompt to be believed. In view of the circumstances, considering the prosecution case and distance of the police station even FIR appears to be too prompt to be believed. He also submitted that if except informant Ausaf Ali other witnesses were working near the thresher and two thresher were running then in the sound of running thresher there was no possibility to hear the sound of fire. 15. Considering the fact that the witnesses are chance witnesses and wholly unreliable, the prosecution failed to prove the case beyond doubt and as such impugned judgment and order of conviction and sentence is liable to be set aside. 16. Learned AGA vehemently opposed the prayer and submitted that the presence of witnesses are natural. They were working at the thresher. There was enmity of all the accused with the deceased and there was no reason of false implication by the witnesses. As far as some minor contradictions are concerned, those are natural while witnesses were working at the thresher for threshing wheat is also natural and there presence is natural and they cannot be said as a chance witness and after first shot was fire, they heard and they rushed towards the place of incident. There would be no such sound of thresher while working that they could not hear the sound of firing by fire-arm. He also contended that as far as cutting in the inquest report is concerned, first information report was lodged at 9.30 A.M. and Mohd. Mukhtar Khan while going to hospital succumbed to his injuries then he was taken back to police station at 10.40 A. M. and the case was converted under section 302 from 307 IPC. The time of lodging of the FIR was 9.30 A.M. but it appears that since case was converted under section 302 IPC at 10.40 A.M. then that time was mentioned in the inquest report by correction. Merely on this correction it cannot be said that FIR was ante time and there was manipulation. From perusal of the G.D. entry, it is also clear that informant went for lodging of the first information report along-with other persons. Merely on this correction it cannot be said that FIR was ante time and there was manipulation. From perusal of the G.D. entry, it is also clear that informant went for lodging of the first information report along-with other persons. He also contended that it was clarified by the witnesses that deceased was not surrounded from all side rather they surrounded only from 2-3 side and even the firing was not from all side merely on this ground that in 161 Cr.P.C. it was mentioned that they were surrounded and there was firing from all the side, the statement of witnesses before the court has not to be disbelieved. 17. Further though there is a motive but since there is a direct evidence regarding involvement of the appellants to commit murder hence motive has not to be given much importance. It was also submitted by learned AGA that those, who were not armed with fire-arm but they were having lathi, ballam farsa. They have not assaulted but they went there with intention to kill and in furtherance of common object appellants shot fire, who were having fire-arm and when after first injury was caused by fire-arm the deceased tried to run away then he was chased by seven appellants and two co-accused (who were absconding so did not face the trial) and as such appellants were rightly convicted with the aid of section 149 IPC. Since there is no contradiction or discrepancies in the evidence with regard to the time, place and role assigned to the appellants, the trial court rightly held them guilty and convicted and sentenced them and as such appeal is liable to be dismissed. 18. Learned counsel for the appellant in rejoinder further submitted that according to prosecution story those who were not armed with fire-arms there was no overt-act on their behalf. They have not assaulted and merely their presence was shown that would not produce apprehension in the mind of the man of a common prudence and a person of rational and firm man regarding violence. There would not be any reasonable apprehension that they were involved in any violence to commit murder hence there was no ingredients in the present case to show that appellants were member of unlawful assembly. Had there been intention of all the accused appellant to kill them they might have assaulted with there respective weapons. 19. There would not be any reasonable apprehension that they were involved in any violence to commit murder hence there was no ingredients in the present case to show that appellants were member of unlawful assembly. Had there been intention of all the accused appellant to kill them they might have assaulted with there respective weapons. 19. Considered the submission of learned counsel for the parties. According to prosecution case, the first information report was lodged against 9 named persons including the 7 appellants and as per allegation 4 accused namely Waheed Khan, Yunis, Wahid Khan and Sahid were armed with countrymade pistol, Yunis and Sahid were absconding, who did not face trial. Waheed Khan S/o Mohd. Ali died during pendency of the appeal. There is no allegation against other appellants that they assaulted with their respective weapon, lathi, ballam and farsa but from the statement of witnesses, it is clear that when accused shot fire upon deceased Mukhtar Khan he run towards the sugarcane field situated northern side. He was chased by the accused appellants and co-accused and they surrounded from three side and shot fire, so there was no assault by other accused, who were armed with lathi, ballam and farsa. The question for consideration is whether there would be a vicarious liability of other accused, who were not armed with fire-arm as the general allegation was made of firing by the accused upon deceased. According to learned counsel for the appellants, it appears that no one has seen the incident and apart from that out of 9 persons five persons were shown having lathi, ballam and farsa but they did not assault, which shows that there was no intention or common object to commit murder of deceased Mukhtar Khan but it is clear from the evidence that they also came along-with those accused, who were having loaded countrymade pistol in their hand from which they shot fire upon deceased after he was chased and surrounded by all the accused after first shot hence it shows that in furtherance of common object the offence was committed. 20. The para 8 and 9 of the judgment of the Apex Court in case of Lalji and others Vs. State of U.P. 1989 SCC (Crl.) 211 : 1981 (1) SCC 437 are reproduced hereinbelow: - "8. 20. The para 8 and 9 of the judgment of the Apex Court in case of Lalji and others Vs. State of U.P. 1989 SCC (Crl.) 211 : 1981 (1) SCC 437 are reproduced hereinbelow: - "8. Section 149 I.P.C. 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 I.P.C., 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. 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. 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 I.P.C. 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. 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 falls within the ingredients of the section the question that he did nothing with his own hand 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. 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." 21. It was held by Hon'ble the Apex Court that even if the assembly was initially not unlawful subsequently the same may become unlawful assembly and if intentionally they joined assembly or continue as member of the unlawful assembly and number of persons are five are more for carrying out the common object then every member of an unlawful assembly would be guilty of that offence committed by any member of the unlawful assembly. In view of provision of section 149 it creates a constructive or vicarious liability of all the members of unlawful assembly for the unlawful acts committed by any of the member in furtherance of common object so it is not necessary that every member of the unlawful assembly to assault the victim/deceased. If the accused is member of unlawful assembly the prosecution is not obliged to prove, which specific overt-act was done by which of the accused. 22. The para 39 of 2002 SCC (Crl.) 1220 Krishna Mochi and Others Vs. State of Bihar in which the previous judgment including case of Machhi Singh Vs. State of Punjab 1983 (3) SCC 470 : 1983 SCC (Crl.) 681 and Bachan Singh Vs. State of Punjab 1980 SCC (Crl.) 580 : AIR 1980 SC 898 were considered, which is quoted hereinbelow: - "Learned counsel further pointed out that according to the prosecution case and evidence, none of the appellants are alleged to have assaulted either any of the 35 deceased or the injured persons and that from mere presence at the place of occurrence their participation in the crime cannot be inferred inasmuch as they may be even sight seers. In my view, there is absolutely no foundation for the submissions that the accused persons may be sight seers as no suggestion was given to any of the witnesses on this score. In my view, there is absolutely no foundation for the submissions that the accused persons may be sight seers as no suggestion was given to any of the witnesses on this score. According to the prosecution case and the evidence, the accused persons arrived at the village of occurrence, pursuant to a conspiracy hatched up by them, they divided themselves into several groups, different groups went to the houses of different persons in the village, entered the houses by breaking open the door, forcibly took away inmates of the house after tying their hands, taking them first to the temple and thereafter near the canal where their legs were also tied and there some of them were done to death at the point of firearm, but a vast majority of them were massacred by slitting their throats with pasuli. One thing is clear that all these acts were done by the accused persons pursuant to a conspiracy hatched up by them to completely eliminate members of a particular community in the village and to achieve that object, they formed an unlawful assembly and different members of that unlawful assembly had played different roles. In view of these facts, merely because the appellants are not said to have assaulted either any of the deceased or injured persons, it cannot be inferred that they had no complicity with the crime, more so according to the evidence they were also armed with deadly weapons, like firearms, bombs, etc., but did not use the same. In view of these facts, merely because the appellants are not said to have assaulted either any of the deceased or injured persons, it cannot be inferred that they had no complicity with the crime, more so according to the evidence they were also armed with deadly weapons, like firearms, bombs, etc., but did not use the same. Reference in this connection may be made to a decision of this Court in the case of Masalti (supra) where it was laid down that where a crowd of assailants, who were members of an unlawful assembly, proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for witnesses to describe actual part played by each one of them and when 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 as in that case several weapons were carried by different members of the unlawful assembly and an accused who was a member of such an unlawful assembly and was carrying firearm cannot take any advantage from the fact that he did not use the firearms, though other members of the unlawful assembly used their respective arms." 23. In case of Krishna Mochi (supra) according to prosecution case and the evidence, the accused persons in pursuance to conspiracy arrived at the village of occurrence, they divided themselves into several groups went to the houses of different persons in the village, entered the houses by breaking open the door, forcibly took away inmates of the house after tying their hands, taken them to the temple and thereafter they were taken near the canal, where their legs were also tied and there some of them were done to death at the point of firearm, but a vast majority of them were massacred by slitting their throats with pasuli. It was held that they formed unlawful assembly and different members of that unlawful assembly had played different role and committed offence in pursuance to a conspiracy set up by them to completely eliminate member of particular community and to achieve the common object. It was held that they formed unlawful assembly and different members of that unlawful assembly had played different role and committed offence in pursuance to a conspiracy set up by them to completely eliminate member of particular community and to achieve the common object. It was held that merely because the appellants have not assaulted any of the deceased or injured then it cannot be inferred that they had no complicity with the crime, more so according to the evidence they were also armed with deadly weapons, like firearms, bombs, etc., but did not use the same. The accused, who was member of such an unlawful assembly and was carrying firearm cannot take any advantage from the fact that he did not use the firearms, though other members of the unlawful assembly committed office using their respective weapons. 24. Para 27 and 28 of the judgement delivered by the Apex Court in case of Jaishree Yadav Vs. State of U.P. 2006 (1) SCC (Crl.) 160 is reproduced herein below: - "27. The trial court even found that these two accused persons also carried deadly weapons and some of the injuries found on the dead body could be attributed to the weapons carried by them. Of course, the High Court differs with the trial court in this regard that there was no corresponding injury which could be attributed to the weapon carried by these appellants but that by itself, in our opinion, is not sufficient to extricate these two accused persons from the charge of being members of an unlawful assembly which attacked and killed Abid Ali and Mahmood Shah. It is trite law that a person who is a member of an unlawful assembly even if he does not commit any overt act but shares the common object of such an unlawful assembly, will be liable for the consequences of the same. We do not think that this principle in law requires any precedent to be relied upon but if need be, the same could be found in the judgment of this Court in the case of Yunis alias Kariya Vs. State of M.P. ( 2003 1 SCC 425 ) wherein this Court has held that "Even if no overt act is imputed to a particular person, when the charge is under section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction. State of M.P. ( 2003 1 SCC 425 ) wherein this Court has held that "Even if no overt act is imputed to a particular person, when the charge is under section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction. The fact that the accused was a member of the unlawful assembly is sufficient to hold him guilty." 28. In view of the above principle in law, since the trial court has found these respondent-accused guilty of being members of an unlawful assembly with the common object of causing the murder of the deceased, and the High Court having not differed from the said finding, it erred in acquitting these respondent- accused solely on the ground that there is no evidence to show that they had taken part in the actual assault. In our opinion, assuming that the High Court was correct in coming to the conclusion that these respondent-accused have not taken part in the attack even then they having come together with the other accused armed, and having been members of the unlawful assembly and having shared the common object, they will be guilty of an offence punishable under section 302 read with section 149 IPC." 25. In case of Jaishree Yadav (supra) the trial court convicted, however, acquittal was by the High Court on the ground that two accused personsppellants, who did not use their weapon were not the member of the unlawful assembly. 26. Earlier in case of Yunis alias Kariya Vs. State of M.P. 2003 (1) SCC 425 it was held by the Apex Court that "Even if no overt act is imputed to a particular person, when the charge is under section 149 IPC, the presence of the accused as part of an unlawful assembly is sufficient for conviction. The fact that the accused was a member of the unlawful assembly is sufficient to hold him guilty." 27. In the present case, according to prosecution case and evidence nine accused person including the seven appellants with intention to kill came with countrymade pistol, lathi, ballam farsa and on first fire deceased Mukhtar Khan tried to run away to save him towards sugarcane field. He was chased by all the nine accused and those, who were armed with countrymade pistol shot fire upon deceased Mukhtar Khan in pursuant to the common object. He was chased by all the nine accused and those, who were armed with countrymade pistol shot fire upon deceased Mukhtar Khan in pursuant to the common object. Hence it clearly shows that they were member of the unlawful assembly and the offence was committed in furtherance of the common object. Hence every member of the unlawful assembly is guilty. They are not entitled to get any advantage because they did not use their respective weapons to assault the deceased. Apart from that if they would have tried to assault by lathi, ballam, farsa they were likely to receive fire-arm injuries and as such contention of the learned counsel for the appellants that they were not member of the unlawful assembly and since the number is reduced to 4 and as such section 149 would not be applicable for convicting the appellants, is not acceptable as the same has no force. 28. The contention of learned counsel for the appellants is that no one has seen the incident and offence might have been committed in late night or in hours and after informant came to know regarding the incident the first information report was lodged naming the accused appellants due to enmity. It was pointed out that there was overwriting on the timing of the inquest report, which was changed to 10.40 A.M. In fact the first information report was lodged and registered at 9.30 A.M. Mukhtar Khan, who has received fire-arm injuries was referred to hospital, however, in the way to hospital he succumbed to injuries, thereafter, his body was taken back to police station, where inquest report was prepared. The case was converted from section 307 to 302 IPC and while preparing the panchayatnama the timing of lodging of the FIR was corrected and the time was mentioned 10.40, which was the time when body returned to police station and the case was converted under section 302 IPC so merely on this ground prosecution story has not to be disbelieved. No material contradictions were pointed out in the statement of witnesses to hold that they are not reliable and trustworthy barring some minor contradictions, which are natural. The witnesses have also not to be disbelieved merely on the ground that they are related or interested witnesses. No material contradictions were pointed out in the statement of witnesses to hold that they are not reliable and trustworthy barring some minor contradictions, which are natural. The witnesses have also not to be disbelieved merely on the ground that they are related or interested witnesses. In fact, rarely independent witnesses, who are not close to the victim or family of the victim, wants to be witnessed in any criminal matter specially in the grievous offences. As far as the statement of related and interested witnesses are concerned, the same has to be examined carefully and occasionally and if it is found reliable and trustworthy then the same will not be disbelieved even if they are family members, relative or close to the victim as they are not expected to implicate innocent person sparing real culprits. 29. The incident took place on 6.5.1983 at 8.00 A.M. The distance from the police station Ahmadnagar was about 8 km. and first information report was lodged on the same day at about 9.30 A.M. so it cannot be said that either F.I.R. was too prompt or there was delay in lodging of the FIR. From the place of incident blood stained and plain earth were collected. The presence of witnesses at the thresher, which was running for threshing the wheat, is not unnatural during season of harvesting of wheat crops. 30. Learned counsel for the appellants also submitted that prosecution story is not corroborated by the medical report because injury no.4, which was incised wound 1/2" x 1/2" x muscle deep on the left side of back, is not explained because there was no allegation of assault either by farsa or ballam. Admittedly it is clear from the evidence that the place of occurrence was sugarcane field, which was recently harvested, cultivated and the sugarcane crop was sown and there were chances of presence of dried peace of sugarcane, which might cause such simple incised wound on the back when the victim had fallen down and even the doctor has stated that such injuries can be caused. Hence in view of the evidence such injuries could have been caused by sharp pointed dry sugarcane peace (Scots). Hence in view of the evidence such injuries could have been caused by sharp pointed dry sugarcane peace (Scots). Apart from that, though there is no allegation, but while he was being chased and if ballam, which is of the pointed out sharp edged weapon would touch the back of the injured, such simple incised wound could be caused but it is not case of the prosecution. 31. The witnesses was contradicted on the basis of statement recorded under section 161 Cr.P.C. that the injured was caught hold by the accused and those accused, who were having fire-arm shot fire, but this was neither mentioned in the FIR nor before the court in the statement of witnesses and even there is no allegation of firing from all the side, so there might have been chances of causing fire-arm injury to the son of the accused standing other-side across the victim. In view of the statement it is clear that deceased was not surrounded from all the side and the fire was from three side. After the incident they ran into two different directions. When witnesses after hearing the alarm and sound of fire ran towards the place of incident, the accused divided into two parts and ran away, in two different directions. 32. This was also argued on behalf of the appellants that some of the accused ran towards the village side and towards the side from where witnesses were coming, which is also unnatural. They have neither assaulted any of the witnesses nor witnesses tried to caught hold or assault them. It is not clear from the site plan or from any evidence that they ran towards that side from which side witnesses were coming to the place of incident after hearing the sound of fire-arm but merely on this ground it cannot be said that they were not involved in the incident rather they were only running from the place of occurrence after firing as considered earlier in earlier paragraphs. In view of the prosecution case and evidence they came along-with those accused, who were armed with countrymade pistol. In view of the prosecution case and evidence they came along-with those accused, who were armed with countrymade pistol. Those accused, who were not having countrymade pistol rather they were having lathi, ballam, farsa did not use their weapon but they came along-with those four accused, who were armed with a countrymade pistol and after first fire when deceased Mukhtar khan tried to run away to save him he was chased by all of them and when those accused, who were armed with countrymade pistol shot fire at victim. Merely because they have not chosen to assault by their respective weapons they will not be discharged with the liability in furtherance of common object being member of unlawful assembly they would be member of unlawful assembly and would be liable for the offence committed by those accused, who shot fire causing death of deceased Mukhtar Khan in view of the sections 141 and 149 IPC. 33. As far as conduct of the informant is concerned, it cannot be said that conduct of the informant was unnatural because immediately he did not rush to save Mukhtar Khan, his uncle because all the nine accused were armed with weapons and he was without any arm. When other witnesses, who were present at the thresher rush towards the place of incident, then accused appellants ran away from the place of occurrence but due to the injuries caused by fire-arm Mukhtar Khan succumbed to the injuries. 34. Informant is also nephew of deceased Mukhtar Khan, who took him by 'Bailgadi' to Debai from there he was referred to district hospital, however, from their he returned to village but along-with injured Sharafat S/o Mohd. Safiq and other persons, went along-with injured Mohd. Khan to hospital so this is also not unnatural that informant did not went to hospital along-with him since other persons including the family member Sharafat were there with him. Merely because informant did not went along-with injured to hospital or he and some other persons, who went along-with him, were not member of the inquest report, it cannot be presumed that he did not went to lodge the FIR at 9.30 A.M. From perusal of the G.D. entry it is clear that Ausaf Ali, informant, S/o Riyasat Ali went along-with other persons to police station for lodging of the FIR. 35. 35. In view of the aforesaid discussion, it is clear that there was no reason of false implication of the appellants leaving the real culprit. It is a day light incident, which took place at 5.00 P.M. and at that time there was clear light and visibility. According to statement of doctor, the incident might have taken place at about 5.00 P.M. The trial court has rightly held the appellants guilty and rightly convicted and sentenced for life imprisonment apart from sentence under section 148 and 147 IPC. 36. Accordingly, present criminal appeals being devoid of merit are hereby dismissed. The sureties are discharged. The appellants shall be taken into custody. 37. Let this order be communicated to the trial court, concerned, for compliance of the order. The Superintendent of Police, concerned, is also expected to ensure compliance of the order for custody of the appellants, to serve out the sentence. 38. One of the appellant Waheed Khan was aged about 75 years, according to his statement when his statement was recorded in November, 1983 under section 313 Cr.P.C. hence now he is aged about 100 years, if there would be a difference of 5-6 years in the age he is at least about 90 years. Since minimum punishment is life imprisonment under section 302 read with section 149 IPC hence after he is sent to jail his matter may be referred to the State Government to consider his case for remission of sentence on the ground of age. The relevant papers shall be forwarded by the Superintendent/Senior Superintendent of Jail to the Govt. for necessary orders.