JUDGMENT : Shree Chandrashekhar, J. Chakradharpur P.S Case No. 41 of 2005 was lodged against Md. Aslam, Md. Sartaj, Md. Ansar, Md. Sahnawaj, Md. Sahawaj @ Baris and Sawana Begum @ Baby Sabiha, on an allegation that they formed unlawful assembly and mounted murderous attack on Md. Sayeed and his son Ejaj Ahmad with an intention to kill them. Ejaj Ahmad succumbed to the injuries on 15.04.2005 and accordingly the offence under section 302 of the Indian Penal Code was added in the report. Md. Sahawaj @ Baris was declared juvenile and the case records were accordingly separated. A charge-sheet was filed against Md. Sartaj Alam and Md. Sahawaj @ Baris under sections 147, 148, 149, 323, 324, 307 and 302 of the Indian Penal Code. Later on a supplementary charge-sheet was laid against Md. Aslam, Md. Ansar, Md. Sahnawaj and Sawana Begum @ Baby Sabiha while Md. Amiruddin who was not named in the First Information Report was shown absconder and his case record was split up. A common charge against the above named accused persons was framed under sections 147, 148, 307/149 and 302/149 of the Indian Penal Code, by an order dated 15.12.2006 and the case was committed to the Court of Sessions against them in S.T. No. 14 of 2006, except Md. Amiruddin. After Md. Amiruddin was apprehended the record of sessions case with respect to him was numbered S.T. No. 246 of 2006 and finally this sessions case was amalgamated with S.T. No. 14 of 2006. 2. In Sessions Trial No. 14 of 2006/ Sessions Trial No. 246 of 2006, the accused-appellants were convicted and sentenced to RI for two years under section 148 of the Indian Penal Code; RI for one year under section 323/149 of the Indian Penal Code; RI for life with a fine of Rs. 5,000/-each under section 302/149 of the Indian Penal Code, with a default stipulation to serve further sentence of SI for six months. 3. This batch of the criminal appeals are preferred by the convicts under section 374 (2) of the Code of Criminal Procedure to challenge the judgment of their conviction in the aforesaid sessions trials. 4. Mr. 5,000/-each under section 302/149 of the Indian Penal Code, with a default stipulation to serve further sentence of SI for six months. 3. This batch of the criminal appeals are preferred by the convicts under section 374 (2) of the Code of Criminal Procedure to challenge the judgment of their conviction in the aforesaid sessions trials. 4. Mr. A. K. Kashyap, the learned Senior counsel for the appellants has raised three fold contentions : (i) testimony of the prosecution witnesses suffers from such serious contradiction as to place reliance to convict the appellants for murder, (ii) the prosecution witnesses have exaggerated their version of the occurrence which is reflected in their cross-examination read with the admissions of the investigating officer regarding the statements not made by them in course of the investigation, and (iii) the prosecution has failed to establish that murder of Ejaj Ahmad was committed in furtherance of common object of the unlawful assembly, and, at the best the accused are liable to be convicted and sentenced under section 304 Part-II of the Indian Penal Code. 5. The learned Senior counsel has referred to the judgments in “Imrat Singh and others vs. State of Madhya Pradesh” (2020) 14 SCC 257 ; “Sabbi Mallesu and others vs. State of A.P.” (2006) 10 SCC 543 , and; “Badal Murmu and others vs. State of West Bengal” (2014) 3 SCC 366 . 6. Mr. Avishek Prasad, the learned counsel who appears for Md. Amiruddin in Criminal Appeal (DB) No. 423 of 2013 has relied on the judgment in “State of Punjab vs. Sanjiv Kumar @ Sanju and others” (2007) 9 SCC 791 . 7. The prosecution has examined twenty witnesses during the trial to prove the charges framed against the accused, out of which six witnesses are intimately related to Ejaj Ahmad. PW1-Ali Hassain, PW2-Suraiya Tabbasum, PW5-Noor Jahan, PW6-Md. Sayeed and PW12-Nazia Tarannum were projected by the prosecution as eye-witnesses and the learned Sessions Judge has recorded a finding that they are reliable and trustworthy witnesses. These witnesses are close relatives of Ejaj Ahmad and therefore their testimony is required to be scrutinized with the kind of care and caution as indicated by the Hon'ble Supreme Court in catena of judgments. These witnesses are close relatives of Ejaj Ahmad and therefore their testimony is required to be scrutinized with the kind of care and caution as indicated by the Hon'ble Supreme Court in catena of judgments. But at the same time we also need to keep in mind that relationship is not a ground to discard testimony of a witness particularly for the reason as indicated by the Hon'ble Supreme Court in “Dinesh Kumar vs. State of Rajasthan” (2008) 8 SCC 270 , that generally a relative would not try to shield the real culprit and rope in the innocent person. 8. PW1 who has been labeled as independent witness was related to both sides. He has deposed in the Court that while returning home he was passing through the house of Md. Anwar and he saw Md. Aslam and his wife exhorting their sons to assault Md. Sayeed. He tried to intervene but was warned by the family members of Md. Aslam. He has further stated that the accused persons assaulted Md. Sayeed and when his son Ejaj Ahmad came in his rescue the accused pounced upon him and assaulted him indiscriminately. PW2 is daughter of the informant. She has stated that on hearing hulla she came out of the house and saw Md. Aslam, his wife and their sons assaulting her father and when her elder brother Ejaj Ahmad came there he was also assaulted by the accused. PW5 is daughter-in-law of the informant, who has stated in the Court that while going to offer Namaz when her father reached near the house of Md. Aslam the accused persons started quarreling and assaulting him and on hearing hulla when her brother Ejaj Ahmad came there he was also brutally assaulted by them. PW6 is the informant and he is an injured witness. He has also spoken about involvement of all the accused in the occurrence and supported the prosecution case in entirety. PW12 who is another daughter of the informant has also supported the prosecution case. She has narrated the incident of the evening of 03.04.2005 in a similar manner as described by the other witnesses. 9. The evidence of PW2 was challenged on the ground that on her own saying she came out from the house on hearing hulla and therefore she has not seen the appellants assaulting her father and brother. She has narrated the incident of the evening of 03.04.2005 in a similar manner as described by the other witnesses. 9. The evidence of PW2 was challenged on the ground that on her own saying she came out from the house on hearing hulla and therefore she has not seen the appellants assaulting her father and brother. There is a suggestion to this effect in paragraph no. 19 of her cross-examination and similar questions were put to the investigating officer in paragraph no. 22 of his cross-examination. However, we find that PW2 has remained firm to her stand and the investigating officer has also not admitted in his cross-examination that PW2 did not claim before him that she has not seen the occurrence. PW1 was given a suggestion in paragraph no. 18 of his cross-examination that he did not state before the police that Md. Aslam and his wife instigated their son to beat Md. Sayeed and his son and to that extent the investigating officer has admitted in the Court that PW1 did not state such facts before him in course of the investigation. Similar suggestions were given to PW5 and PW12 also and reading together their testimony with the statement of the investigating officer in his cross-examination we gather that few statements made by them in the Court were not stated by them before the police during the investigation. But then, we find that their presence at the place of occurrence on the day and at the time of occurrence was not challenged by the defence. It is not a case set-up by the defence that the house of the informant is at a far distance from the house of Md. Aslam and therefore the family members of the informant could not have seen assault upon him and his son. These witnesses have remained firm to the core of the prosecution case and except Md. Amiruddin whose name was not disclosed in the First Information Report presence of the other accused at the time of occurrence was never in doubt. We find that notwithstanding minor embellishments and exaggerations in their testimony these witnesses are the eyewitness and the learned Sessions Judge has rightly placed reliance on their evidence. 10. Mrs. Amiruddin whose name was not disclosed in the First Information Report presence of the other accused at the time of occurrence was never in doubt. We find that notwithstanding minor embellishments and exaggerations in their testimony these witnesses are the eyewitness and the learned Sessions Judge has rightly placed reliance on their evidence. 10. Mrs. Priya Shreshtha, the learned Spl.PP would contend that mere participation is sufficient to fasten criminal liability to an accused with the aid of section 149 of the Indian Penal Code and it is not necessary for the prosecution to establish which member of the unlawful assembly has committed what overt act. The learned Spl.PP has relied on the decisions in “Chikkarange Gowda and others vs. State of Mysore” AIR 1956 SC 731 ; “Lalji and others vs. State of U.P” (1989) 1 SCC 437 and “Govindappa and others vs. State of Karnataka” 1994 Supp (3) SCC 357, to fortify her contentions. The learned Spl. PP has also referred to the judgment in “State of UP vs. Dan Singh and others” (1997) 3 SCC 747 ; “Bolineedi Venkataramaiah and others vs. State of A.P” 1994 Supp (3) SCC 732, “Mallappa and others vs. State of Karnataka” 1995 Supp (1) SCC 767; “Umesh Singh and another vs. State of Bihar” (2000) 6 SCC 89 , to submit that in face of cogent and consistent evidence laid by the prosecution witnesses even though they are related witnesses participation of the appellants in the occurrence is established and while so, they have rightly been convicted and sentenced by the learned Sessions Judge. 11. In so far as involvement of Md. Amiruddin in the occurrence is concerned, Mr. Avishek Prasad, the learned counsel would contend that merely for the reason that he was a friend of the son of Md. Aslam he was implicated in the case. We also find that the explanation offered by the informant for not disclosing the name of Md. Amiruddin in the First Information Report as the person who also participated in the occurrence is not satisfactory. Still, even assuming his presence at the scene of the crime the quality of evidence tendered by the prosecution against him is not such as to convict him for murder of Ejaj Ahmad with the aid of section 149 of the Indian Penal Code. 12. Still, even assuming his presence at the scene of the crime the quality of evidence tendered by the prosecution against him is not such as to convict him for murder of Ejaj Ahmad with the aid of section 149 of the Indian Penal Code. 12. Section 149 of the Indian Penal Code incorporates the rule of constructive liability on proof of participation as a member of unlawful assembly, and mere presence in the unlawful assembly would render a member liable provided it is proved by the prosecution that he shared common object with the other members and in furtherance of which crime was committed by one or more members. 13. In“Queen v. Sabid Ali” reported in 20 Weekly Reporter (Criminal) 5, it was pointed out that Section 149 did not ascribe every offence which might be committed by one member of an unlawful assembly while the assembly was existing, to every other member. The section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. 14. In “Lalji and others vs. State of U.P” (1989) 1 SCC 437 , the Hon'ble Supreme Court has observed that common object of the unlawful assembly can be gathered from nature of the assembly, weapon used by the accused and behavior of the accused at or before the crime was committed. 15. In “Lalji” the Hon'ble Supreme Court has observed as under: “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 objects 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. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects 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 hands would be immaterial. He cannot put forward the defence that he did not with his own hand 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.” 16. The consistent case of the prosecution is that Md. Sartaj Alam, Md. Ansar and Md. Sahanawaj assaulted Ejaj Ahmad with sabal on his head. There is general allegation made by the prosecution witnesses against Md. Amiruddin, Md. Aslam and Sawana Begum @ Baby Sabiha that they were also part of the unlawful assembly and have assaulted the informant and his son. 17. PW11, Dr. P. Pradhan who clinically examined Md. Sayeed on 03.04.2005 at Primary Health Centre, Chakradharpur has found one small lacerated wound about half inch in size, skin deep, over chin of Md. Sayeed. This injury in the opinion of PW11 was caused by hard and blunt substance and was simple in nature. The prosecution case that Md. Sayeed was assaulted by seven persons with sabal, iron rod and lathi-danda is not corroborated by the medical evidence. The learned trial Judge has himself recorded a finding that the accused did not share common object to commit murder of Md. Sayeed. 18. In yet another decision, in “Govindappa v. State of Karnataka” 1994 Supp (3) SCC 357 the Hon'ble Supreme Court has observed as under: “8. …. The learned trial Judge has himself recorded a finding that the accused did not share common object to commit murder of Md. Sayeed. 18. In yet another decision, in “Govindappa v. State of Karnataka” 1994 Supp (3) SCC 357 the Hon'ble Supreme Court has observed as under: “8. …. No doubt the scope of Section 149 IPC is very wide, but when we come to the participation and the presence in the unlawful assembly to be fixed on that basis, the part played by every one of them assumes importance and in that context the medical evidence also has to be considered…” 19. In so far as assault upon Ejaj Ahmad by these appellants, namely, Md. Amiruddin, Md. Aslam and Sawana Begum @ Baby Sabiha is concerned, we find that the prosecution evidence is lacking in details and the prosecution has failed to establish that they shared common object to commit murder of Ejaj Ahmad, or that, they had knowledge that death of Ejaj Ahmad may be caused in the occurrence. The specific allegation against Md. Aslam and Sawana Begum @ Baby Sabiha is of exhorting their sons and even assuming presence of Md. Amiruddin at the time of the occurrence, their conviction under section 302 with the aid of section 149 of the Indian Penal Code is not sustainable and, accordingly, it is set-aside. 20. On the basis of the materials on record, we hold that Md. Amiruddin, Md. Aslam and Sawana Begum @ Baby Sabiha are liable to be convicted and sentenced to RI for two years under section 324 of the Indian Penal Code. 21. The prosecution evidence against Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam is consistent that they have assaulted Ejaj Ahmad on his head with sabal/iron rod. The ocular evidence of the prosecution witnesses on this point is entirely corroborated by the medical evidence. 22. PW11, Dr. P. Pradhan who examined Ejaj Ahmad on 03.04.2005 at Primary Health Centre, Chakradharpur has found the following injuries on his person: Site of injuries on head – multiple lacerated wounds three in numbers; (i) Left side of scalp 1 ½”curb x skin deep, bleeding from the side was present (ii) 1” x ½”x skin deep, left side of scalp (iii) 1”x ¾” x skin deep, left side of scalp, bleeding from the wound present. 23. 23. PW11 has deposed in the Court that at the time his examination Ejaj Ahmad was conscious and speaking. 24. PW17, Dr. Chandra Sekhar Prasad who conducted the postmortem examination on the dead body of Ejaj Ahmad has found the following injuries: (i) 3cm x ½ cm x scalp deep on left parietal region of head. (ii) 3cm x ½ cm x bone deep on left parietal region of head near the mid line cutting the soft tissue, left parietal bone, duramater and brain underneath with presence of blood and blood clot over left parietal cape of brain. 25. The injury nos. 1 and 2 were grievous in nature. In the opinion of the doctor, the injuries were caused by hard and blunt substance and death was caused due to head injury. 26. Mr. A. K. Kashyap, the learned Senior counsel for these appellants would contend that there are serious discrepancies in the medical evidence tendered by PW11 and PW17 and the prosecution has failed to establish who has caused head injuries to Ejaj Ahmad. 27. Under section 45 of the Indian Evidence Act which speaks of opinion of the experts evidence of the doctor is only a relevant fact. In “The Queen v. Ahmed Ally” 1869 (11) Sutherland W R Cr. 25, Nariman, J. has observed that the evidence of a medical man or other skilled witnesses however eminent is ordinarily a matter of mere opinion. 28. In “Madan Gopal Kakkad v. Naval Dubey” 1992) 3 SCC 204 the Hon'ble Supreme Court has observed as under: “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert’s opinion because once the expert’s opinion is accepted, it is not the opinion of the medical officer but of the Court.” 29. We do not find any inconsistency in the medical evidence of the doctors. We do not find any inconsistency in the medical evidence of the doctors. In our opinion the prosecution has tendered sufficient evidence to establish assault by Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam on the head of Ejaj Ahmad. However, conviction of these appellants for murder with the aid of section 149 of the Indian Penal Code is not proper. Ejaj Ahmad has died about 12 days after the occurrence. He was provided treatment at PHC, Chakradharpur and Marwari Seva Sadan, Ranchi, however, he could not survive and died on 15.04.2005. It was a trivial issue which triggered the incident. It is stated that while the children along with the son of Md. Sayeed were playing the cricket ball hit the courtyard of the house of Md. Aslam which infuriated him. On 03.04.2005 at about 08:00 PM when Md. Sayeed left home for offering Namaz he was apprehended by Md. Aslam and his sons. A quarrel started, the accused assaulted him and when his son came in his rescue he was beaten by them. From the evidence tendered by the prosecution, it is difficult to infer premeditation on the part of the accused and keeping in mind the number of injuries caused to Ejaj Ahmad we are satisfied that Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam did not share common object to commit murder. Furthermore, the fact that the death has occurred 12 days after Ejaj Ahmad suffered head injury at the hands of Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam is sufficient ground to hold that they did not intent to cause his death. 30. Accordingly, the judgment of conviction of the appellants, namely, Md. Sahnawaj, Md. Ansar, Md. Sartaj Alam, Md. Amiruddin, Sawana Begum @ Baby Sabiha and Md. Aslam under section 302/149 of the Indian Penal Code dated 18.03.2013 and the order of sentence of R.I for life and a fine of Rs. 5,000/- each under section 302/149 of the Indian Penal Code dated 21.03.2013, passed by the learned Additional Sessions Judge-I, Singhbhum (W) at Chaibasa in Sessions Trial No. 14 of 2006/Sessions Trial No. 246 of 2006 are set-aside. The conviction of all the appellants under sections 148 and 323 of the Indian Penal Code is affirmed and the sentences awarded to them shall run concurrently. 31. The appellants, namely, Md. Amiruddin, Sawana Begum @ Baby Sabiha and Md. The conviction of all the appellants under sections 148 and 323 of the Indian Penal Code is affirmed and the sentences awarded to them shall run concurrently. 31. The appellants, namely, Md. Amiruddin, Sawana Begum @ Baby Sabiha and Md. Aslam are convicted and sentenced to R.I for Two years under section 324 of the Indian Penal Code. 32. The appellants, namely, Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam are convicted and sentenced to R.I for Ten years under section 304 Part I of the Indian Penal Code. 33. The learned Spl.PP states that the appellants, namely, Md. Amiruddin [in Criminal Appeal (DB) No.423 of 2013], Sawana Begum @ Baby Sabiha [in Criminal Appeal (DB) No.549 of 2013] and Md. Aslam [in Criminal Appeal (DB) No.694 of 2013] have remained in custody for more than Two years and they are on bail. 34. Accordingly, they are discharged of liability of the bail-bonds furnished by them. 35. The learned Spl.PP further states that the appellants, namely, Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam [in Criminal Appeal (DB) No.842 of 2013] are in custody and they have served the sentence of about Twelve years, with remission. 36. Accordingly, the appellants, namely, Md. Sahnawaj, Md. Ansar and Md. Sartaj Alam [in Criminal Appeal (DB) No.842 of 2013] who are in custody shall be released forthwith, if not wanted in connection to any other case. 37. In the result, Criminal Appeal (DB) No. 842 of 2013, Criminal Appeal (DB) No. 423 of 2013, Criminal Appeal (DB) No. 549 of 2013 and Criminal Appeal (DB) No. 694 of 2013 are partly allowed, in the aforesaid terms. 38. Let the lower Court records be sent to the Court concerned forthwith. 39. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'Fax'.