JUDGMENT : SANDEEP MEHTA, J. 1. The appellants Hem Raj @ Kalu, Raju, Pusha Lal and Ravi Harijan stand convicted and sentenced as below vide judgment dated 03.08.2013 passed by learned Additional Sessions Judge No. 3, Bhilwara in Sessions Case No. 45/2012. Name of the appellant-applicant Offence for which convicted Sentence awarded 1. Hem Raj @ Kalu 302/149 IPC Life imprisonment and a fine of Rs.3000/- and in default of payment of fine, further to undergo eight months’ additional rigorous imprisonment 2. Raju 323/149 IPC Six months’ rigorous imprisonment and a fine of Rs.500/- and in default of payment of fine, further to undergo fifteen days’ additional rigorous imprisonment 3. Pusha Lai 324/149 IPC One year’s rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, further to undergo one month’s additional rigorous imprisonment 4. Ravi 148 IPC One year’s rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, further to undergo one month’s additional rigorous imprisonment 1. Hemraj @ Kalu 4/25 Arms Act One year’s rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, further to undergo one month’s additional rigorous imprisonment 2. Ravi Harijan 2. All the sentences were ordered to run concurrently. By the same judgment, learned trial court acquitted Smt. Lali W/o. Bhairu of the charges. 3. Being aggrieved by their conviction and the sentences awarded to them, the appellants have preferred the instant appeal under Section 374 (2) CrPC. 4. Succinct facts relevant and essential for decision of the appeal are noted hereinbelow. 5. Sonu Singh (P.W.6) submitted a written report (Ex. P/17) to the officer of the Police Station Pratap Nagar, Bhilwara on 17.05.2011 at 11.00 p.m. alleging inter alia that on the very same day at about 7.30 p.m., he alongwith his brother Surendra Singh, Karan Singh, Deepu Singh and Raju Rathore were standing outside their house. Hem Raj @ Kalu, his brother Raju, Pusha Lai, Ravi Harijan, and 4-5 other persons armed with swords and sticks etc. came around and launched an attack on Surendra Singh, Karan Singh, Deepu Singh and Raju Rathore, who received numerous injuries at the hands of the accused. Whilst Hem Raj and Ravi Harijan inflicted blows by swords, the other accused persons used sticks upon the members of the complainant party. The accused escaped after the assault. came around and launched an attack on Surendra Singh, Karan Singh, Deepu Singh and Raju Rathore, who received numerous injuries at the hands of the accused. Whilst Hem Raj and Ravi Harijan inflicted blows by swords, the other accused persons used sticks upon the members of the complainant party. The accused escaped after the assault. The injured were taken to the hospital, where Surendra Singh passed away while undergoing treatment. It was alleged that the accused were having a prior enmity with the complainant party and on the previous evening as well, they had abused them and that the present assault perpetrated with the intention of killing Surendra Singh was fueled by this motive. 6. On the basis of this report, a formal FIR No. 234/2011 was registered at the Police Station Pratapnagar, Bhilwara for the offences under Sections 147, 148, 149, 307 and 302 IPC and investigation was commenced. 7. The accused appellants as well as Smt. Lali, wife of Bhairu, who too was implicated in this case, were arrested and after making the usual recoveries etc., investigation was completed and charge-sheet was filed against these five accused in the court of the concerned Magistrate for the offences under Sections 148, 323/149, 324/149, 326 in the alternative 326/149 and 302/149 IPC. Accused Hem Raj @ Kalu and Ravi Harijan were also charge-sheeted for the offence under Section 4/25 of the Arms Act. Since the offences were Sessions triable, the case was committed to the Court of Sessions Judge, Bhilwara, from where, the same was transferred for trial to the Court of Additional Sessions Judge No. 3, Bhilwara. 8. The trial court framed charges against the accused for the above mentioned offences. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 24 witnesses and exhibited 50 documents in support of its case. The accused were questioned and confronted with the substratum of the prosecution’s allegations in their statements recorded under Section 313 CrPC. They denied these allegations and claimed to be innocent. No evidence was led in defence despite opportunity being provided. After hearing the arguments advanced by the prosecution as well as the defence and after appreciating the evidence available on record, learned trial court proceeded to convict and sentence the appellants as above. However, the co-accused Smt. Lali was acquitted of the charges. Hence, this appeal. 9. Learned counsel Mr. No evidence was led in defence despite opportunity being provided. After hearing the arguments advanced by the prosecution as well as the defence and after appreciating the evidence available on record, learned trial court proceeded to convict and sentence the appellants as above. However, the co-accused Smt. Lali was acquitted of the charges. Hence, this appeal. 9. Learned counsel Mr. R.K. Charan, representing the accused appellants Hem Raj, Raju and Pusha Lai, vehemently and fervently contended that these persons have been falsely implicated in this case owing to prior enmity. The prosecution is guilty of concealing the genesis of occurrence. The incident, as a matter of fact, did not happen in the manner alleged by the prosecution witnesses. The members of the complainant party were the aggressors. The accused had gone to attend a wedding and they were abused by the members of the complainant party and in this process, a quarrel ensued. He urged that since the incident took place without any pre-meditation and without any prior concert between the accused, the charge under Section 302/149 IPC cannot be sustained. 10. In arguendo, he urged that since the charge-sheet was filed against the five accused and as one of them, namely, Smt. Lali, has been acquitted, the charge under Section 149 IPC cannot be sustained and the accused, other than Hem Raj, to whom, the fatal blow is specifically attributed, deserve to be acquitted by giving them the benefit of doubt. He, thus, carved acceptance of the appeal in these terms. 11. Mr. Vinod Sharma, learned Amicus Curiae representing the accused appellant Ravi Harijan, vehemently and fervently contended that the said accused is not related to the remaining co-accused in any manner. He had gone in his individual capacity to participate in the wedding ceremony, which was being solemnized near the complainant’s house. At that time, a sudden quarrel broke out, in which, both the parties freely fought with each other. In this process, a single sharp weapon injury was allegedly inflicted by the accused appellant Ravi Harijan on the arm of the deceased Surendra Singh, which did not prove fatal and thus, as per Mr. Sharma, the offence, if any against the accused Ravi, would not travel beyond Section 326 IPC. In this process, a single sharp weapon injury was allegedly inflicted by the accused appellant Ravi Harijan on the arm of the deceased Surendra Singh, which did not prove fatal and thus, as per Mr. Sharma, the offence, if any against the accused Ravi, would not travel beyond Section 326 IPC. He, thus, sought modification of the impugned judgment to this extent and prayed that the conviction of the accused appellant Ravi should be toned down to the appropriate offence. 12. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by learned counsel for the appellants. He urged that the accused appellants, who were armed with dangerous weapons, accompanied by four to five unknown assailants formed an unlawful assembly. They recklessly and mercilessly assaulted the members of the complainant party causing death of the Surendra Singh and inflicted large number of injuries to Karan Singh, Deepu Singh and Raju Rathore. The case of the prosecution is founded on the reliable and unflinching testimony of injured witnesses and there does not exist any reason so as to doubt the veracity thereof. He submitted that the accused acted in an extremely cruel manner. The fact that the two persons from the unlawful assembly formed by the accused party were armed with dangerous weapons like sword and knife, by itself fortifies the prosecution case that the common object of the unlawful assembly was to murder all the members of the complainant party. He urged that the learned trial court appreciated the evidence available on record in an absolutely apropos manner and came to the only logical and possible conclusion that the accused formed an unlawful assembly, the object whereof, was to assault and kill the members of the complainant party and hence, as per him, mere acquittal of Smt. Lali would not save the accused from the rigour of Section 149 IPC because it is the categoric assertion of the complainant and the injured witnesses that there were four to five unknown assailants with the named accused and that all of them indiscriminately assaulted the victims. He, thus, sought dismissal of the appeal in entirety. 13. We have given our thoughtful consideration to the submissions advanced at bar; perused the impugned judgment and threadbare sifted the evidence available on record. 14. He, thus, sought dismissal of the appeal in entirety. 13. We have given our thoughtful consideration to the submissions advanced at bar; perused the impugned judgment and threadbare sifted the evidence available on record. 14. We shall now discuss the evidence of the material prosecution witnesses so as to find out as to whether their testimony suffers from any such shortcomings, which could persuade the court to discard the same. The prosecution case hinges around the testimony of the first informant Sonu Singh (P.W.6), Vijay Singh (P.W.5), Karan Singh (P.W.13), Raju Singh Rathore (P.W.16) and Deepu Singh (P.W.18). The names of the four accused appellants are clearly set out in the FIR and it is also alleged that there were four to five more unknown assailants, who also participated in the assault. 15. While giving evidence in the court, P.W.5 Vijay Singh stated that he had gone to Jawahar Nagar for participating in a wedding ceremony. At about 7.00-7.30 p.m., five to seven persons including a woman came out from a house having roof of terra cota tiles. One of these persons was armed with a sword, one was having a Gupti. All of them launched an indiscriminate assault on Surendra Singh, who was standing besides the witness. Deepu Singh, Karan Singh, Sonu and Raju Rathore were also standing nearby. The accused stabbed Surendra Singh on his abdomen with a sword. They also assaulted the four witnesses, who tried to intervene for saving the deceased. The witness identified Hem Raj as the person armed with the sword and Ravi Harijan as the one armed with the Gupti. He also alleged that one woman was present at the site and that she was throwing stones and was exhorting that all should be killed and eliminated. However, when cross-examined by the defence, the witness candidly conceded that when his statement was recorded by the police under Section 161 Cr.P.C., he categorically gave out that he did not know the accused from before. There is nothing in the previous statement (Ex. D/1) of the witness, which indicates that he could identify the accused, if they came before him. Thus, we feel that it will be unsafe to rely upon this witness so far as the identification of the accused is concerned and we would refrain from recording any finding against the accused on the basis of his testimony. D/1) of the witness, which indicates that he could identify the accused, if they came before him. Thus, we feel that it will be unsafe to rely upon this witness so far as the identification of the accused is concerned and we would refrain from recording any finding against the accused on the basis of his testimony. However, what can safely be inferred from his evidence is that five to seven persons came out from one house having a tiled roof, of which, two were armed with sharp weapons, whereas the others were having lathis in their hands. Thus, from the evidence of this witness, the presence of an unlawful assembly comprising of about five to seven individuals and a female at the spot is clearly established. 16. P.W.6 Sonu Singh (the first informant) stated in his evidence that he, Surendra Singh, Deepu Singh, Karan Singh and Raju Rathore were proceeding to have dinner in a wedding being solemnized in their colony. At that time, the accused appellants and four to five other unknown persons came out as a unit from the house of Hem Raj. Hemraj was armed with a sword and Ravi was having a small sword. Pusha Lal and Raju were having wooden sticks and their mother was pelting stones. The accused party, acting in unison launched a concerted assault on the complainant party. Hem Raj gave a sword blow above the abdomen of Surendra Singh, whereas Ravi Harijan gave blow by the sharp weapon held by him on the hand of Surendra Singh. Raju Rathore and Karan Singh also received injuries at the hands of the accused in this very incident. The witness was mainly cross-examined in relation to omission of Lali’s name in the FIR. He was also confronted with his previous version as set out in the FIR and his previous statement (Ex. D/2), wherein, the specific overt acts of the accused Hem Raj and Ravi Harijan are not mentioned precisely. Upon a careful evaluation of the statement of this witness, we are duly satisfied that not even a bald suggestion was given to the witness in the cross-examination that the incident took place at the spur of the moment or that the accused had not come out as a unit from the house of Hem Raj with the objective of assaulting the members of the complainant party. Thus, the contention of the counsel representing the appellants that the accused had no common object to assault the deceased is not supported by questions/suggestions given to star prosecution witness the first informant Sonu in his cross-examination. 17. P.W. 13 Karan Singh also gave evidence in tune with the testimony of Sonu (RW.6). He too was confronted with his previous statement recorded by the Investigating Officer under Section 161 Cr.P.C., wherein, the specific part played by the particular accused is not mentioned. A bald suggestion was given to the witness in defence that the quarrel between them and the accused party had taken place about one and half years ago. A suggestion was also given that the complainant party had molested the women folk, who were going in the Barat procession, and that the Baratis had beaten them up. Thus, we are duly satisfied that even in the cross-examination of this witness, the defence has not given any such suggestion, which could segregate the roles played by the accused so as to bring any one out from the composition of the unlawful assembly, the common object whereof was to assault the members of the complainant party. The bald suggestion given to this witness that the Baratis assaulted the complainant party because they had misbehaved with the women folk is unacceptable when we consider the fact that no such suggestion was given to Sonu Singh and so also the fact that the accused did not lead any evidence in defence to support this conjectural theory. 18. Injured eye-witness P.W. 16 Raju Singh Rathore also gave evidence in tune with the testimony of the first informant Sonu Singh (RW.6) and Karan Singh (RW.13). In addition, he also stated that Ravi Harijan stabbed him on the thigh and near the abdomen with the Gupti held by him. Not even a single question was put to this witness regarding this aspect of his examination-in-chief when he was cross-examined by the defence. 19. Injured eye-witness RW. 18 Deepu Singh also gave firm and clinching evidence implicating the accused appellants in the incident. He categorically stated that Ravi gave a Katar blow on the hand of Surendra Singh. Hem Raj gave him a sword blow on his thigh, whereas, Ravi stabbed him with Katar on his back. No significant cross-examination on this aspect was made from this witness. 20. He categorically stated that Ravi gave a Katar blow on the hand of Surendra Singh. Hem Raj gave him a sword blow on his thigh, whereas, Ravi stabbed him with Katar on his back. No significant cross-examination on this aspect was made from this witness. 20. P.W. 19 Babita Devi is a totally independent witness belonging to a caste different from the other prosecution eyewitnesses. She also supported the prosecution case and claimed that she saw the accused assaulting the deceased. Nothing significant was elicited in the cross-examination of this witness. 21. P.W.22 Shahid Hussain @ Bhola also gave ocular evidence supporting the prosecution case to the hilt. This witness was cross-examined on the lines that he was a chance witness, but we are duly satisfied that his presence at the scene of occurrence was natural and he had no reason to give false evidence against the accused. 22. P.W.24 Goma Ram, being the SHO of the Police Station Pratapnagar, Bhilwara, registered the FIR, conducted investigation, effected recoveries from the accused and filed charge-sheet in the case. In his cross-examination, a suggestion was given to him that the assault upon the deceased and the injured was perpetrated by the Baratis because the complainant party had misbehaved with the ladies; however, the Investigating Officer did not conform to this suggestion of the defence. 23. The Investigating Officer Gomaram stated that he effected recovery of a sword vide recovery memo (Ex. P/22) in furtherance of the information (Ex. P/48) provided by accused appellant Hemraj under Section 27 of the Evidence Act. The accused appellant Ravi Harijan gave information Ex. P/49 to the Investigating Officer under Section 27 of the Evidence Act and in furtherance thereof, a Gupti was recovered from his own house vide recovery memo (Ex. P/24). Lathis were recovered at the instance of the other accused. The Investigating Officer was also questioned and confronted with the so called infirmities in the procedure of effecting recoveries; however, nothing significant was elicited by the defence in this regard during his cross-examination. 24. The recovered sharp weapons viz. the sword and the Gupti were forwarded to the Forensic Science Laboratory alongwith the articles of clothing collected from the body of the deceased and the soil collected from the place of occurrence. 24. The recovered sharp weapons viz. the sword and the Gupti were forwarded to the Forensic Science Laboratory alongwith the articles of clothing collected from the body of the deceased and the soil collected from the place of occurrence. Upon analysis, the stains on the shirt, baniyan and pant of the deceased as well as those on the sword and Gupti were found to be ‘B’ group human blood. Thus, apparently, the weapons recovered from the two accused Hem Raj and Ravi Harijan were both found laced with the blood group matching with that of the deceased Shri Surendra Singh. Manifestly, the participation of these two accused in the incident is also corroborated by the FSL report. 25. Postmortem on the body of the deceased Surendra Singh, aged 21 years and the medical examination of the injured Raju Rathore, Karan Singh and Deepu Singh was conducted by Dr. V.D. Sharma (P.W.1). He issued the Postmortem report (Ex. P/1) and the injury reports of Raju Singh (Ex. P/2), Karan Singh (Ex. P/5) and Deepu Singh (Ex. P/8). 26. The postmortem report of the deceased Surendra Singh was proved as Ex. P/1, in which it is elaborated that upon opening the injury No. 1, being a stab wound 1 ¼ in. x 3/4 in. on the left side of the rib cage between 7th intercostal space going deep till pleural cavity. 1 ½ to 2 liters of blood was seen collected therein. The left lung was collapsed and the injury was travelling upto the lobe of the liver. He was having an incised wound 2 in. x ½ in. muscle deep in the right arm. He was also having 3 bruises on his hand, knee and leg. The injury No. 1 was opined to be sufficient in the ordinary course of nature to cause death because the same penetrated left lung as well as liver. 27. Raju Singh was found suffering from a stab wound on his abdomen, which was going deep till his intestine, which was protruding. He was provided surgical assistance for treating the injury. 28. Karan Singh was found suffering from swelling pain and tenderness on the left shoulder in 2 in. x 1 ½ in. area. No corresponding fracture was found. 29. Deepu Singh was found suffering from one incised wound 2 in. x ¼ in. muscle deep on his left thigh. He was provided surgical assistance for treating the injury. 28. Karan Singh was found suffering from swelling pain and tenderness on the left shoulder in 2 in. x 1 ½ in. area. No corresponding fracture was found. 29. Deepu Singh was found suffering from one incised wound 2 in. x ¼ in. muscle deep on his left thigh. He also suffered from an incised wound 2 in. x ¼ in. muscle deep on back in lumber region. His sciatic nerve was damaged, for which, he was operated. 30. On a threadbare appraisal and evaluation of the testimony of these witnesses, we are duly satisfied that the participation of all the four accused and some unknown assembly in the assault is proved beyond all manner of doubt. There is a categoric aspersion of the injured eye-witnesses and independent witnesses Smt. Babita and Shri Shahid Hussain that all the accused appellants and four to five other unknown assailants came out from the house of Hem Raj as a team. Two of them, i.e. Hem Raj and Ravi Harijan, were openly flashing dangerous weapons like sword and Gupti in their hands. They approached the complainant party in an ominous manner and launched an indiscriminate assault causing large number of sharp weapon and blunt weapon injuries to the deceased as well as the injured persons. Thus, not for a moment, do we feel persuaded by the defence theory that the accused had any objective other than making a fatal assault on the members of the complainant party. Without any doubt, the entire endeavour of the unlawful assembly was to kill the victims at all cost. With this very objective, the deadly blow by a sword was inflicted by Hem Raj to the deceased Surendra Singh. The accused Ravi Harijan made his own contribution by inflicting a blow with the Gupti on the hand of the deceased. These two persons also used their respective weapons to cause a large number of injuries to the injured Raju Singh Rathore, Karan Singh and Deepu Singh. The injury caused on the abdominal region of Raju was definitely life-threatening and he could only be saved because of timely medical intervention. These two persons also used their respective weapons to cause a large number of injuries to the injured Raju Singh Rathore, Karan Singh and Deepu Singh. The injury caused on the abdominal region of Raju was definitely life-threatening and he could only be saved because of timely medical intervention. The sharp weapon injury caused to Deepu Singh damaged his sciatic nerve and thus, apparently, the accused showed no mercy whatsoever while launching assault so that even a second thought can be given by this court to the proposition that they were not acting in furtherance of a common design to kill the members of the complainant party. The ocular testimony of the first informant, the injured witnesses and three independent witnesses is duly and amply corroborated by the medical evidence as deposed by Dr. V.D. Sharma (P.W.1). Having gone through the entire material available on record, we are of the firm opinion that this case is a perfect example, presenting a situation which warrants the invocation of Section 149 IPC beyond all manner of doubt so as to implicate every member of the unlawful assembly as being vicariously liable for the principal offences under Section 302 and 326 IPC amongst others. As the four accused appellants and four to five unknown assailants made an indiscriminate brutal assault on the members of the complainant party by sharp as well as blunt weapons, killing one and injuring three persons, they were rightly held guilty of the charges framed against them. 31. In view of the discussion made hereinabove, we are of the firm opinion that the trial court appreciated the evidence available on record in an absolutely apropos and justifiable manner and that the impugned judgment dated 03.08.2013 does not suffer from any infirmity, factual or legal, warranting interference therein. 32. Hence, we find no merit in the appeal, which is hereby dismissed.