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2023 DIGILAW 205 (JK)

Raflan Lal v. State of J&K

2023-05-26

RAJESH SEKHRI, SANJAY DHAR

body2023
JUDGMENT : (Sanjay Dhar, J.) : 1. The appellants have assailed judgment of conviction dated 30.07.2005 as also the order of sentence dated 01.08.2005 passed by the learned Additional Sessions Judge, Jammu (hereinafter to be referred as the trial court), whereby they have been convicted and sentenced for offences under sections 302, 307, 149, 451, 324 and 323 RPC. In proof of offence under section 302 read with Section 149 RPC, they have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. In default of payment of fine, they have been directed to undergo further simple imprisonment of six months. In proof of offence under sections 307 read with 149 RPC, the appellants have been sentenced to undergo simple imprisonment for a period of 7 years and to pay a fine of Rs. 5,000/-. In default of payment of fine, they have been directed to undergo further simple imprisonment for a period of six months. In proof of offence under sections 451 read with 149 RPC, the appellants have been sentenced to simple imprisonment for a period of one year. In proof of offence under section 324/149 RPC, the appellants have been sentenced to simple imprisonment of one year, whereas in proof of offence under section 323 read with 149 RPC, the appellants have been sentenced to imprisonment of six months. All the sentences have been directed to run concurrently. The learned trial court has also made a reference to this Court for confirmation of sentence in terms of Section 374 of the Jammu and Kashmir Code of Criminal Procedure. 2. By this common judgment, we propose to decide both the appeal filed by the appellants as well as the reference made by the learned trial court. It is pertinent to mention here that during the pendency of these proceedings, appellant No. 4-Taro Devi has passed away as such, in terms of Section 431 of the Jammu and Kashmir Code of Criminal Procedure, the appeal to her extent stands abated. 3. Briefly stated, as per the prosecution case, on 14.01.1996 at about 1:30 A.M. PW Ram Dayal, in an injured condition, accompanied by PW Jagdish Raj approached Police Station, Akhnoor and lodged a report alleging therein that on 13.01.1996, an altercation had been taken place between appellant-Rattan Lal and deceased-Jia Lal, who happened to be the brother of PW-Ram Dayal. 3. Briefly stated, as per the prosecution case, on 14.01.1996 at about 1:30 A.M. PW Ram Dayal, in an injured condition, accompanied by PW Jagdish Raj approached Police Station, Akhnoor and lodged a report alleging therein that on 13.01.1996, an altercation had been taken place between appellant-Rattan Lal and deceased-Jia Lal, who happened to be the brother of PW-Ram Dayal. It was further alleged in the report that the appellants-Bachan Lal and Dharam Chand also participated in the altercation that had taken place on the issue of erection of electric poles. As per the report, the issue was resolved with the intervention of people of the locality but on the same day at about 10 P.M., the appellants, who were armed with weapons, in order to seek revenge upon the complainant party, trespassed into the courtyard of the residence of deceased-Jia Lal, whereafter they launched an attack upon the complainant party. It was also alleged in the report that the appellants hurled abuses upon the complainant party including informant PW-Ram Dayal and deceased-Jia Lal, whereafter they were attacked by the appellants. Appellant-Rattan Lal was carrying an iron rod with which he inflicted blows upon the head of deceased-Jia Lal thereby causing grievous injuries to him. When informant PW-Ram Dayal tried to catch hold of appellant- Rattan Lal, he was attacked with a 'Kai' on his head by appellant-Bachan Lal. In the meantime, PWs Shallu Ram and Khushal Chand also came on spot to rescue the injured but appellant- Dharam Paul who was carrying an iron spade with him launched an attack with it upon PWs Khushal Chand and Shallu Ram. The appellants-Taro Devi and Kamla Devi were armed with clubs and they also participated in the attack by inflicting blows upon the complainant party with clubs. In the meantime, other inhabitants of the locality came on spot and the appellants ran away from there. 4. On the basis of the above report, FIR No. 3/1996 for offences under sections 307, 451, 147, 148 and 149 RPC was registered and investigation was set into motion. During investigation of the case, deceased-Jia Lal succumbed to injuries and as such, offence under section 302 RPC was added. On the basis of disclosure statement of appellant-Bachan Lal, weapon of offence 'Dah' was recovered, whereas on the basis of disclosure statement made by appellant-Rattan Lal, weapon of offence-iron rod was recovered. During investigation of the case, deceased-Jia Lal succumbed to injuries and as such, offence under section 302 RPC was added. On the basis of disclosure statement of appellant-Bachan Lal, weapon of offence 'Dah' was recovered, whereas on the basis of disclosure statement made by appellant-Rattan Lal, weapon of offence-iron rod was recovered. The other weapons of offence like Kai, spade and clubs were also recovered during the investigation of the case. 5. After conducting investigation of the case, it was established that the appellants had, on the day of occurrence, with a common object trespassed into the courtyard of the complainant party and they were armed with weapons at the relevant time. It was also found that the deceased-Jia Lal was attacked by the appellants and when PWs Ram Dayal, Shallu Ram and Khushal Chand came on spot to rescue the deceased, they were also attacked by the appellants. It was further established that deceased-Jia Lal succumbed to injuries sustained by him. Thus, offences under sections 302, 307, 148, 149, 447 RPC were found established against the appellants and the challan was laid before the trial court. Vide order dated 25.05.1996 passed by the trial court, the appellant- Bachan Lal was charged for offences under sections 302, 307 and 491, 147, 148 and 149 RPC and 4/25 Arms Act whereas other appellants were charged for offences under sections 302, 307, 491, 147, 148 and 149 RPC. The appellants pleaded not guilty to the charges and as such, the prosecution was asked to lead evidence in support of its case. 6. Out of 24 witnesses listed in the challan, the prosecution has examined as many as 17 witnesses. After completion of the prosecution evidence, the incriminating circumstances appearing in the evidence were put to appellants/accused and their statements under section 342 J&K Cr.P.C. were recorded on 17.10.2000. In their statements, the appellants denied the allegations and claimed that the deceased along with PW Ram Dayal and others launched an attack upon the appellant-Dharam Paul with a sharp edged weapon and when he bowed towards one side, the blow of sharp edged weapon landed on the head of deceased-Jia Lal, as a result of which, he died. However, the appellants did not lead any evidence in defence. 7. However, the appellants did not lead any evidence in defence. 7. The learned trial court after hearing the parties and after appreciating the evidence led by the prosecution, came to the conclusion that the charges against the appellants are proved and accordingly, vide impugned judgment of conviction dated 30.07.2005, the appellants have been convicted for offences under sections 302, 307, 149, 451, 324 and 323 RPC. Thereafter, they have been sentenced in terms of impugned order of sentence dated 01.08.2005. 8. The appellants have challenged the impugned judgment of conviction and order of sentence on the ground that the learned trial court has not properly evaluated and appreciated the evidence led by the prosecution, inasmuch as, contradictions in the statements of prosecution witnesses have not been taken into account by the trial court. It has been further contended that the prosecution has not explained the injuries on the person of appellant-Dharam Paul thereby suppressing the genesis of the occurrence. It has been submitted that this aspect of the matter has not been properly dealt with by the learned trial court while passing the impugned judgment. It has also been contended that there has been unexplained delay in recording the statements of witnesses, which has resulted in planting of witnesses so as to fabricate evidence to suit the prosecution version. Lastly, it has been argued that there has been unexplained delay in forwarding the FIR to the Magistrate. 9. We have heard learned counsel for the parties and perused the grounds of appeal, the impugned judgment and the record of the trial court including the evidence led in the case. 10. As already noted, the case of the prosecution is that on the day of occurrence, during the day time, there was an altercation between the appellants, Rattan Lal, Bachan Lal and Dharam Paul on one side with deceased-Jia Lal on the other side. The matter subsided with the intervention of some inhabitants of the locality but in the night at about 10 P.M., the appellants with a common object of taking revenge upon the complainant party, trespassed into the courtyard of the complainant party. At the relevant time, they armed with weapons like iron rod, 'Dah', 'Kai', spade and clubs. The matter subsided with the intervention of some inhabitants of the locality but in the night at about 10 P.M., the appellants with a common object of taking revenge upon the complainant party, trespassed into the courtyard of the complainant party. At the relevant time, they armed with weapons like iron rod, 'Dah', 'Kai', spade and clubs. The appellants are alleged to have challenged the complainant party and when deceased-Jia Lal came out of his house, he was given blows of iron rod on his head by appellant- Rattan Lal, as a result of which, he suffered fatal injuries. It is further case of the prosecution that when other prosecution witnesses, namely, PWs Ram Dayal, Shallu Ram and Khushal Chand tried to rescue the deceased, all of them were attacked by the appellants with the weapons which they were carrying and this resulted in injuries to these witnesses as well. Thus, the most important witnesses to the occurrence are the injured viz., PWs Ram Dayal, Khushal Chand and Shallu Ram. The statements of PWs Taro Devi and Rano Devi are also of great significance in view of the fact that PW Rano Devi happens to be the widow of deceased-Jia Lal, whereas Taro Devi happens to be his mother and both of them were residing in the same house in which the occurrence has taken place. All the afore-named witnesses are related to each other. 11. The afore-named witnesses have in one voice stated that on 13.01.1996, during day time, an altercation had taken place between some of the appellants and deceased-Jia Lal on some issue with regard to erection of electric pole. They have further stated that at about 10 P.M., the appellants armed with weapons like iron rod, 'Kai', 'Dah' spade and clubs came to the courtyard of deceased-Jia Lal and they challenged him. It has also come in the statement of these witnesses that as soon as deceased-Jia Lal came out of his house, the appellant-Rattan Lal inflicted two/three blows of iron rod on his head, as a result of which, he fell down and later on he succumbed to the injuries. These witnesses have given vivid account of the occurrence by stating that appellant- Bachan Lal obtained 'Dah' from appellant Kamla Devi and inflicted injuries on the head of PW Ram Dayal, who fell down unconscious. These witnesses have given vivid account of the occurrence by stating that appellant- Bachan Lal obtained 'Dah' from appellant Kamla Devi and inflicted injuries on the head of PW Ram Dayal, who fell down unconscious. They have also stated that the appellants inflicted injuries with sharp edged weapons upon PW Shallu Ram and even PW Khushal Chand was beaten up by appellants Kamla Devi and Dharam Paul with spade and “Kai”. The witnesses at the time of occurrence, as per their version, were watching TV. Being related to each other, their presence in the same house, at the relevant time appears to be natural. Even otherwise, there is nothing in their cross-examination to show that they were not present on spot at the time of the occurrence. Not even a suggestion to this effect has been put to these witnesses by the defence during cross- examination. The fact that some of these witnesses viz., PWs Ram Dayal, Khushal Chand and Shallu Ram have received injuries during the occurrence confirms their presence on spot at the relevant time. 12. The statements of the aforesaid witnesses are also corroborated by the statements of two more eye witnesses viz., PWs Mohan Lal and Jeet Raj. PW Jeet Raj has stated that he is residing at a distance of 20-25 yards from the house of the deceased-Jia Lal and that he along with PW Mohan Lal reached the spot together. He has stated that appellant-Rattan Lal gave blows of iron rod on the head of the deceased and at the relevant time, the appellant was holding iron rods with both his hands. He has also given vivid details about the occurrence and stated that on the day of occurrence at about 3:00 P.M., there was an altercation between the deceased and some of the appellants. He further stated that when other witnesses viz., PWs Ram Dayal, Shallu Ram and Khushal Chand tried to rescue the deceased, they were also attacked by the appellants with 'Kai', 'Dah' spade and clubs. The witness has been cross-examined at length as regards his relationship with the complainant party but the defence has been unable to bring forth any material to show that he is related to the complainant party. 13. Another independent witness to the occurrence is PW Mohan Lal. The witness has been cross-examined at length as regards his relationship with the complainant party but the defence has been unable to bring forth any material to show that he is related to the complainant party. 13. Another independent witness to the occurrence is PW Mohan Lal. He has also deposed about the altercation that took place between the deceased and some of the appellants at about 3 P.M. on the day of occurrence and thereafter he has gone on to state that at about 10 P.M. on the same day, the appellants trespassed into the residence of the deceased. He has stated that when the appellants passed through his house, he heard the noise and he followed them to the house of the deceased. The witness goes on to give details with regard to the manner in which the occurrence has taken place by stating that the appellant Rattan Lal gave blows of iron rod on head of the deceased and when PW Ram Dayal tried to rescue him, appellant-Bachan Lal after obtaining 'Dah' from his wife-appellant Kamla Devi, gave a blow on the head of PW Ram Dayal. He has further stated that when PWs Shallu Ram and Khushal Chand came on spot to rescue PW Ram Dayal, appellants Taro Devi and Kamla Devi along with appellants-Dharam Paul and Rattan Lal launched attack upon them. According to him, PW Taro Devi was carrying a club whereas appellant Dharam Paul was carrying a spade and appellant Kamla Devi was carrying a 'Kai' with which they launched upon the complainant party. He also stated that appellants dragged PWs Khushal Chand and Shallu Ram to a vegetable field, whereafter they fled away from there. The witness during his cross examination stated that his house is located at a distance of 100 yards from the house of the deceased and that in order to proceed to the house of the deceased, one has to cross his courtyard. He has confirmed that he saw the appellants passing through his courtyard and proceeding towards the courtyard of the deceased. The witness was also extensively cross examined as regards his relationship with the complainant party but nothing could be brought on record that would suggest that the witness is in any manner related to the complainant party. 14. He has confirmed that he saw the appellants passing through his courtyard and proceeding towards the courtyard of the deceased. The witness was also extensively cross examined as regards his relationship with the complainant party but nothing could be brought on record that would suggest that the witness is in any manner related to the complainant party. 14. Besides the above ocular evidence, we have on record the post-mortem report of the deceased, which has been proved by Dr. Annayat Ullah Sheikh. As per this report, the deceased has received three injuries on his head details whereof are given as under: (1) A stellate fracture with three limbs each 1.5 cm on frontal region across the midline. The scalp tissue bruised over 5” area bearing stitched wound and there was also a fissure fracture of the frontal bone 2 inches below and parallel to mid line. (2) Bruising of scalp tissue on left parietal region with fissure fracture of the bones underneath. (3) Bruising of the scalp on the right fronto temporal region. 15. The doctor says that the death of the deceased has taken placed due to cranio cerebral damage on account of blunt injury on the head. Then we have injury certificates of deceased Jia Lal Exhibit PM/1, PW Ram Dayal Exhibit PM/2, PW Shallu Ram Exhibit PM/3 and PW Khushal Chand Exhibit PM/4. These certificates have been proved by Dr. Ravinder Singh. The medical evidence on record proves that death of deceased was homicidal in nature and PWs Ram Dayal, Shallu Ram and Khushal Chand did receive injuries on their persons. 16. The version of occurrence given by injured PWs Ram Dayal, Khushal Chand and Shallu Ram gets further corroboration from the statements of PWs Rano Devi and Taro Devi as also from the statements of independent witnesses PWs Mohan Lal and Jeet Raj. Not only this, corroboration to the statements of injured also comes from the medical evidence and the disclosure statements made by appellant Rattan Lal (Expw RD/5) and Bachan Lal (Expw RD/6) on the basis of which weapons of offence, the iron rod has been recovered vide memo Expw RD/7 and 'Dah' has been recovered vide memo Expw RD/8. Thus, the version of occurrence given by the prosecution is supported by overwhelming material on record. 17. Thus, the version of occurrence given by the prosecution is supported by overwhelming material on record. 17. The defence put up by the appellants is that it was a case of free fight in which the deceased and the injured launched an attack upon the appellants and when PW Ram Dayal tried to inflict injuries upon appellant Dharam Paul with a sharp edged weapon, he turned aside and the blow of sharp edged weapon landed upon deceased Jia Lal, as a result of which, he died. The aforesaid defence put up by the accused/ appellants appears to be without any substance because the deceased, as per medical evidence on record, has died as a result of cranio cerebral damage due to blunt head injury, whereas, according to defence put upon by the appellants, he had died as result of blow of sharp edged weapon that landed on the head of the deceased while PW Ram Dayal was trying to attack appellant-Dharam Paul. Having regard to the nature of injuries which the deceased had received on his head, it is impossible that the same could have been caused by a sharp edged weapon, which according to the defence, PW Ram Dayal was carrying. 18. The other ground on which much emphasis has been laid by the learned Senior counsel appearing for the appellants is that there is evidence on record to show that appellant-Dharam Paul has received injuries during the occurrence and there is no explanation from the prosecution in this regard. The learned Senior counsel has submitted that from this, it can be inferred that the prosecution has suppressed the genesis of the occurrence. It is contended that because the prosecution has tried to prove the occurrence on the basis of the testimonies of the interested witnesses, as such, in absence of any explanation regarding the injuries found on the person of the accused/appellant Ram Dayal, the case of the prosecution cannot be believed. In this regard, he has relied upon the judgments of the Supreme Court in the cases of Lakshmi Singh & Ors. v. State of Bihar (1976) 4 SCC 394 and Nand Lal & Ors. v. The State of Chattisgarh, 2023 SCC Online SC 262. 19. If we have a look at the evidence on record, first Investigating Officer-PW Satpal Singh has, in his cross-examination, deposed that appellant, Dharam Paul received injuries during the occurrence. v. State of Bihar (1976) 4 SCC 394 and Nand Lal & Ors. v. The State of Chattisgarh, 2023 SCC Online SC 262. 19. If we have a look at the evidence on record, first Investigating Officer-PW Satpal Singh has, in his cross-examination, deposed that appellant, Dharam Paul received injuries during the occurrence. The second Investigating Officer PW Dharam Singh, ASI has also stated during his cross examination that when he took over the investigation, appellant-Dharam Paul was undergoing treatment in the hospital. On this basis, it has been submitted that there is evidence on record to show that the appellant Dharam Paul had received injuries during the occurrence, but the same have not been explained by the prosecution. 20. Before testing the merits of the contention raised by the learned Senior counsel appearing for the appellants in the above context, it would be apt to find an answer to the question whether or not in every case where the prosecution has not explained the presence of injuries on the accused, the same would be fatal to its case. 21. In Lakshmi Singh's case (supra), the Supreme Court has observed that there may be a case where the non explanation of the injuries by the prosecution may not effect the prosecution case. The Court observed that this principle would obviously apply to the cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. 22. A Three Judge Bench of the Supreme Court in the case of Thakhaji Hiraji v. Thakore Kubersing Chamansing & Ors. (2001) 6 SCC 145 has, while answering the question as to what would be the effect of non explanation of injuries sustained by the accused persons, held as under: “The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajendra Singh & Ors. v. State of Bihar, (2000) 4 SCC 298 , Ram Sunder Yadav & Ors. v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh & Ors. In Rajendra Singh & Ors. v. State of Bihar, (2000) 4 SCC 298 , Ram Sunder Yadav & Ors. v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh & Ors. v. State of U.P., (1990) 3 SCC 190 , all 3-Judges Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions : (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear cogent and credit worthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.” 23. From the aforesaid analysis of law on the subject, it is clear that while non explanation of injuries found on the person of the accused, is an important circumstance from which court can draw inference that the prosecution has suppressed the genesis and origin of the occurrence and the witnesses who have denied the presence of the injuries on the person of the accused are lying on a material aspect of the case, but at the same time, the prosecution case cannot be thrown out merely on the basis of the non explanation of the injuries by the prosecution, if these injuries are minor in nature or the evidence on record is cogent and convincing so as to outweigh the effect of the omission on the part of the prosecution to explain these injuries. 24. 24. Applying these principles to the facts of the instant case, it appears that the appellant Dharam Paul did sustain injuries during the occurrence. Both the Investigating Officers have deposed about this in their cross examination. It is also correct that second Investigating Officer PW Dharam Singh, ASI has, in cross examination, stated that when he took over the investigation, appellant Dharam Paul was undergoing treatment in the hospital but this does not prove that appellant-Dharam Paul had received any serious injury. Even otherwise, first Investigating Officer PW Satpaul Singh has, on the basis of the record, deposed that FIR No. 4/1996 for offences under sections 307 and 34 RPC was registered on the basis of the complaint made by the accused party and this FIR related to the injuries sustained by appellant-Dharam Paul. He has, on the basis of the record, stated that after investigation of the case, the same was closed and that in the said case, Verma, Bhola Ram and Des Raj were booked as the accused, meaning thereby that the occurrence regarding alleged attack by the complainant party upon appellant Dharam Paul has not been substantiated after the investigation. 25. The appellants have not led any defence evidence to prove that appellant Dharam Paul had received any serious injuries. No medical record in this regard has been produced by the appellants during the trial of the case nor have they led any oral evidence in this regard. Appellant-Dharam Paul has not stated anything about the nature of his injury while making his statement under section 342 J&K Cr.P.C. He has only stated that he was attacked by PW Ram Dayal with a sharp edged weapon but it missed the target and landed upon the head of the deceased. In these circumstances, it has not been established from the evidence on record that appellant Dharam Paul or any other appellant had received any such serious injury during the occurrence, the non explanation whereof by the prosecution would be fatal to its case. 26. Apart from the above, it has been established from the evidence on record that the occurrence took place at about 10 P.M. in the courtyard of the deceased. Thus, the defence put up by the appellants that the complainant party, had launched the attack upon them, is not plausible. 26. Apart from the above, it has been established from the evidence on record that the occurrence took place at about 10 P.M. in the courtyard of the deceased. Thus, the defence put up by the appellants that the complainant party, had launched the attack upon them, is not plausible. Had it been a case where occurrence had taken place in the courtyard of the appellants then one could accept the explanation that the complainant party had launched an attack upon them but it is a case where shoe in the other foot. Having regard to the fact that the occurrence took place at 10:00 PM in the courtyard of the deceased, it can safely be stated that the appellants were the aggressors. 27. There is yet another reason to reject the contention raised by the learned Senior counsel for the appellants. As already discussed hereinbefore, there is consistent, cogent and convincing evidence on record which has withstood the test of cross examination by the defence to prove that the occurrence took place in the courtyard of the house of the deceased when the appellants armed with iron rod, spade, 'Dah', 'Kai' and clubs trespassed into the courtyard and thereafter they challenged the deceased and launched an attack upon him as also upon the other injured persons. This version of occurrence is supported not only by the testimonies of the injured persons, but the same is also corroborated by testimonies of two independent witnesses viz. PWs Jeet Raj and Mohan Lal besides other the circumstantial evidence in the shape of medical evidence and recovery of weapons of offence on the basis of disclosure statements made by the two of the appellants. In such circumstances, the mere non explanation of some injury upon the person of the appellant-Dharam Paul is not a good enough reason to throw out the prosecution case. 28. It has been next contended by the appellants that there are contradictions in the statements of the prosecution witnesses on the important aspect of the case like the number of blows that were received by the deceased. As per medical evidence on record, the deceased has received three injuries on his head. PW Ram Dayal stated that appellant Rattan Lal gave two-three blows with a rod upon the head of the deceased. As per medical evidence on record, the deceased has received three injuries on his head. PW Ram Dayal stated that appellant Rattan Lal gave two-three blows with a rod upon the head of the deceased. PW Mohan Lal has stated that appellant Rattan Lal gave three blows of iron rod upon the head of the deceased. PW Jeet Raj has stated that deceased-Jia Lal was given two-three blows of iron rod by appellant Rattan Lal. According to PW Shallu Ram, two blows of iron rod were given by appellant-Rattan Lal upon the head of the deceased. PW Taro Devi has stated that deceased was given three blows of iron rod by appellant- Rattan Lal. PW Rano Devi has stated that the appellant gave two-three blows of iron pipe upon the head of the deceased. PW Khushal Chand has also stated that appellant-Rattan Lal had given two-three blows of iron rod upon the head of the deceased. 29. From the aforesaid statements of the eye witnesses, it is clear that the witnesses have stated that two- three blows of iron rod were given by the appellant-Rattan Lal upon the head of the deceased. Merely because there is variation in the testimonies of the eye witnesses as regards the number of blows given by appellant-Rattan Lal upon the head of the deceased, does not mean that they have contradicted each other to such an extent as to make their statements unworthy of credit. Minor contradictions and discrepancies in the version of testimonies of prosecution witnesses which are not glaring, are not fatal to the prosecution case. In fact these minor contractions and variations in the statements of prosecution witnesses lend credence to their testimony and are hallmark of the truth of their testimony. Therefore, the argument of the learned counsel appearing for the appellants in this regard, is without any merit. 30. It has also been argued that the statements of important eye witnesses to the occurrence have been recorded after a delay ranging from a couple of days to about a week after the occurrence, therefore, planting of witnesses to suit the prosecution version cannot be ruled out. 30. It has also been argued that the statements of important eye witnesses to the occurrence have been recorded after a delay ranging from a couple of days to about a week after the occurrence, therefore, planting of witnesses to suit the prosecution version cannot be ruled out. In this regard, it is to be noted that when the witnesses were cross-examined on this aspect of the matter, they have clearly explained that because of death in their family, it was not possible for them to immediately depose and make statements before the Police. PW Rano Devi, the widow of the deceased has stated that her statement was recorded after four-five days of the occurrence because they were mourning the death of the deceased. Thus, it cannot be stated that there has been any unexplained delay in recording the statements of the prosecution witnesses by the Police. 31. Another argument that has been raised by the appellants is that there has been delay in forwarding the FIR to the Magistrate, inasmuch as, the FIR was lodged on 14.01.1996 at 1:30 PM but the same was received by the Magistrate on 15.01.1996 at 3:05 P.M. In this regard, it is to be noted that the occurrence took place on 13.01.1996 on the day of Lohri, which is a public holiday in Jammu. 14.01.1996 was a Sunday and on the next working day i.e. 15.01.1996, the FIR was received in the office of the Magistrate. Therefore, there has been no delay in forwarding the FIR to the Magistrate. 32. Lastly, it has been argued that there is no evidence on record to prove that all the appellants shared the common object of committing the murder of deceased-Jia Lal. It has been submitted that as per the evidence on record, only appellant-Rattan Lal is stated to have attacked the deceased with iron rod and no other accused has launched any attack on him. On this ground, it is urged that it cannot be stated that other appellants shared common object of committing murder of the deceased. 33. The Supreme Court in the case of Mohinder Singh & Ors. v. State of Punjab (2006) 10 SCC 418 has discussed the scope and ambit of section 149 of IPC. While doing so, the Court has taken note of its earlier judgments on the subject and observed as under: 21. 33. The Supreme Court in the case of Mohinder Singh & Ors. v. State of Punjab (2006) 10 SCC 418 has discussed the scope and ambit of section 149 of IPC. While doing so, the Court has taken note of its earlier judgments on the subject and observed as under: 21. “In Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 , it is held by this Court that an accused is vicariously guilty of the offence committed by other accused persons only if he is proved to be a member of an unlawful assembly sharing its common object. Once the existence of common object of unlawful assembly is proved, each member of such an assembly shall be liable for the main offence notwithstanding his actual participation in the commission of the offence. It is not necessary that each of the accused, forming the unlawful assembly, must have committed the offence with his own hands. 22. The members of the unlawful assembly can be held liable under section 149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence. 23. In Rajendra Shantaram Todankar v. State of Maharashtra & Ors., (2003) 2 SCC 257 , this Court has held that Section 149 of the Indian Penal Code 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 that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 either clause is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly, every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. 24. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. 24. In State of Rajasthan v. Nathu & Ors., (2003) 5 SCC 537 , this Court has held that if death had been caused in prosecution of the common object of an unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly. 25. It is held in Parsuram Pandey & Ors. v. State of Bihar, (2004) 13 SCC 189 that to attract Section 149 IPC the prosecution must prove that the commission of the offence was by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew that it was likely to be committed. Unless these three elements are satisfied by the prosecution the accused cannot be convicted with the aid of Section 149 IPC. 26. In Rabindra Mahto & Ors., v. State of Jharkhand, JT 2006 (1) SC 137, this Court has held that under section 149 IPC, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case.” 34. Again in the case of Kattukulangara Madhavan (dead) & Ors. v. Majeed & Ors. (2017) 5 SCC 568 , the Supreme Court has explained the concept of common object of an unlawful assembly in the following manner: “2 In the first place, the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly. When the prosecution establishes such presence, then it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfill the object of the assembly, or not. It could well be that an accused had no intention to participate in the object of the assembly. For example, if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. The following questions arise with regard to the conduct of such an accused:- 1. What was the point of time at which he discovered that the assembly intended to kill the victim? 2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object? 3. If he did, and failed, did he dissociate himself from the assembly by getting away? 3. The answer to these questions would determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory.” 35. From the foregoing analysis of law on the subject, it is clear that it is not necessary for the prosecution to prove particular acts of the members of an unlawful assembly. Common object of unlawful assembly can be gathered from the nature of the assembly, the kind of arms used by them and the behaviour of assembly at or before the scene of occurrence and inference in this regard can be deduced from the facts and circumstances of the case and overt act or active participation may indicate common intention of the person perpetrating the crime. Mere presence in the unlawful assembly may fasten vicarious criminal liability under section 149 of the IPC and the time of forming an unlawful intent is not material. An assembly of persons which may at its initiation be lawful, may become unlawful subsequently as it can develop such an object even during the currency of the occurrence. 36. Coming to the facts that have been established in the instant case, it has to be noted that the occurrence has taken place at 10 P.M. in the courtyard of the deceased and it has also been established that the appellants were not residing in the vicinity of the house of the deceased meaning thereby that they had come together from a distance to the house of the deceased. It has also been established that the appellants were carrying arms like iron rod, 'Kai', 'Dah', spade and clubs with them and all of them came together to the site of the occurrence. In the first instance, the appellant-Rattan Lal gave blows of iron rod on the head of deceased Jia Lal, who was challenged by the appellants. The other appellants even after watching the deceased fall down continued to attack PW-Ram Dayal who tried to rescue the deceased. Thereafter, all the appellants attacked PWs Khushal Chand and Shallu Ram who tried to rescue PW Ram Dayal. This clearly shows that none of the appellants made any attempt to stop the assembly from pursuing the object nor did they dissuade themselves from the assembly. The evidence on record shows that all the appellants actively participated in the crime and they continued to beat the injured in spite of deceased-Jia Lal having fallen down after receiving head injury. In the face of these proved circumstances, the inescapable inference that can be drawn is that the appellants shared a common object of committing murder of the deceased and they being part of the unlawful assembly, each one of them is vicariously liable for the death of the deceased and also for causing injuries to other prosecution witnesses. 37. For the foregoing discussion, we do not find any ground to interfere in the well reasoned and lucid judgment of conviction and order of sentence passed by the learned trial court. The impugned judgment of conviction and order of sentence is, therefore, upheld. Accordingly, the reference made by the trial court is accepted and the order of sentence passed by the said court is confirmed. 38. The bail bonds of the appellants are cancelled and they are directed to surrender before the learned trial court within a period of 15 days from the date of this judgment. The learned trial court shall upon their surrender, send the appellants to jail for serving the balance sentence. In case, the appellants do not surrender before the trial court during the aforesaid period, the learned trial court shall adopt coercive measures for securing their presence, where-after they shall be sent to jail for serving the balance sentence. 39. The record of the trial court be sent back along with a copy of this judgment.