ORDER : Shree Chandrashekhar, J. In Sessions Trial No. 52 of 1998, Budhan Ganjhu was charged under sections 147, 148, 149, 341, 323, 307, 302 of the Indian Penal Code, section 27 of the Arms Act and section 17(i)(ii) of the Criminal Law Amendment Act for committing murder of Jhamman Singh with firearm. 2. The judgment of conviction dated 26th April 2012 of the appellant under section 302 read with 149 IPC, sections 148, 341 and 307 IPC as well as under section 27 of the Arms Act and section 17(i)(ii) of the CLA Act and the order of sentence dated 30th April 2012 passed in Sessions Trial No. 52 of 1998 have been challenged by the appellant by filing the present criminal appeal under sections 374(2) of the Code of Criminal Procedure (in short, Cr.P.C). 3. Chatra PS Case No. 104 of 1997 has been registered on the basis of the fardbeyan of Bishun Singh which was recorded on 7th September 1997 at around 10:45 AM at village Amkudar. In his statement made before the officer-in-charge of Sadar (Chatra PS), Bishun Singh has narrated incident of 6th September 1997 in which he alongwith Parmila Devi and Kawleshwar Singh Bhokta have suffered injuries and his father Jhamman Singh has died. In the said occurrence, 10 persons have died on account of firearm injuries in course of exchange of fire between two groups of people. While the investigation against other accused continued, a charge-sheet was laid against the appellant for committing the offence under sections 147, 148, 149, 341, 323, 324, 307, 302 IPC, section 27 of the Arms Act and section 17(i)(ii) of the CLA Act. The autopsy over the dead body of Jhamman Singh was conducted by Dr. Shyam Nandan Singh who has found a punctured wound on the left lateral side of his neck and oval wound on his left temporal region. In the opinion of the doctor, the aforesaid injuries were caused by firearm and the time elapsed since death was between 24 to 36 hours. 4. On the basis of the materials collected in course of the investigation charges were framed against Budhan Ganjhu under sections 147, 148, 149, 341, 323, 324, 307, 302 IPC, section 27 of the Arms Act and section 17(i)(ii) of the CLA Act, by an order dated 26th February 2001. 5. 4. On the basis of the materials collected in course of the investigation charges were framed against Budhan Ganjhu under sections 147, 148, 149, 341, 323, 324, 307, 302 IPC, section 27 of the Arms Act and section 17(i)(ii) of the CLA Act, by an order dated 26th February 2001. 5. To prove the charge as framed against the appellant, the prosecution has tendered evidence through 15 witnesses out of whom Bhola Singh who was examined as PW3 is son of the deceased. 6. The learned trial Judge has appreciated the prosecution evidence in the following manner: “16. It has further come in para 13, 14, 15, 16, 17, 18 and 19 of P.W.9 that Kauleshwar Singh, Bishun Singh, Ramdev Bhuian, Kola Singh Bhokta, Kauleshwar Bhuian, Budhan Singh and Pramila Devi were also examined by the doctor for their injuries which they allegedly received in course of occurrence. Some of these alleged injured persons have been subjected to witness box and they have specifically stated about the injuries which they received during occurrence and their evidence has been fully corroborated by P.W.9 in his evidence. Thus it is clear that P.W.3, 4, 5, 6 & 14 were present at the P.O. and they saw the occurrence in which accused Budhan Ganjhu killed Jhaman Singh, the father of Bhola Singh and others by inflicting fire armed injuries. 17. It has been argued on behalf of defence that there was no motive in the mind of accused to cause the occurrence as the motive has not been proved by the prosecution and in absence of such motive, no conviction can be warranted u/s 302 IPC. It is significant to mention here that prosecution has successfully establish that on 06.09.97 at about 11:00 AM a meeting was arranged in village Amkudar beneath the 'imali, tree and it continued till 4:00 PM when rain started and simultaneous with the rain, firing started in which 10 persons were killed at spot and several others were injured and any way survived. The circumstances clearly reveal that there was a complete preparation to make such attack on the mob collected beneath imali tree started with common design of all and motive to cause death of persons collected there. The circumstances clearly reveal that there was a complete preparation to make such attack on the mob collected beneath imali tree started with common design of all and motive to cause death of persons collected there. It has further been proved by prosecution by adducing evidence that in prosecution of that common object to kill the persons participating in the meeting, the accused Budhan Ganjhu caught hold of Jhaman Ganjhu and killed him by gun fire giving repeated three fire on his person who died on the spot. Thus, the mens rea and motive both were present especially in view of this unimpeachable evidence that group of extremists was being led by accused Budhan Ganjhu, who caused massacre at the place of occurrence on the alleged date and time. Thus, the contention of learned counsel that accused had no motive and intention to cause the occurrence is not tenable at all. 18. If the whole prosecution evidence is taken in its entirety, it is clear beyond all reasonable doubts that accused Budhan Ganjhu led the extremists group of MCCI on 06.09.97 at about 4:00 P.M. and went to place of occurrence and committed murder of ten persons present beneath the imali tree by taking them out from their houses and other places of concealment when they tried to save their life by fleeing from the place of occurrence. Thus, the circumstances involved in the case clearly reveal that accused was governing the whole extremists who had a common object to kill the persons present at P.O and they took all effort for their re-assemblance there and thereafter causing their death by showering gun fire on them. 19. On the basis of discussion, made-above, and evidence oral and documentary, I have come to a clear conclusion that prosecution has successfully proved and established that on 06.09.97 at about 4:00 P.M. accused Budhan Ganjhu formed an unlawful assembly alongwith his guilty associates being armed with deadly weapons such as gun, rifle, and committed murder of Jhaman Singh and 9 others and attempted to kill Bhola Singh, Pramila Devi and others by attacking on them by fire by wrongfully restraining them beneath imali tree in prosecution of common object of unlawful assembly. Accordingly, I find and hold that accused Budhan Ganjhu is guilty of charges u/s 148, 341, 307, 302 read with section 149 of IPC, 27 Arms Act and 17(i) (ii) C.L.A. Act and accordingly accused Budhan Ganjhu is convicted thereunder.” 7. The prosecution has projected PW3, PW4, PW5 and PW6 as the star witnesses. The informant who has been examined as PW14 did not support the prosecution when he was tendering evidence in the Court and, accordingly, he was declared hostile at the instance of the prosecution. Section 154 of the Evidence Act provides that the Court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Sub-section (2) provides that the person who calls a witness for cross-examination shall not be disentitled to rely on any part of the evidence of such witness. 8. Therefore, it is lawful for the prosecution to rely on a part of the evidence of a witness who took a different position in the Court and did not support the prosecution. The logic behind bringing its own witness for cross-examination by the prosecution is that sometimes the witness may on account of lapse of time or forgetfulness forget the actual happening on the day of the occurrence. When the witness is shown his previous statement made under section 161 Cr.P.C so as to refresh his memory, he may accept making of such previous statement before the police. However, a witness who does not accept his previous statement made before the police or Magistrate renders himself unreliable, atleast in part. The law on the subject is by now well-settled that evidence of a hostile witness is not discarded altogether and the prosecution can rely on a part of his evidence which supports his case. 9. In “Sat Paul v. Delhi Admn.” (1976) 1 SCC 727 the Hon'ble Supreme Court has observed that in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him his evidence is not washed off the record altogether and a part of his testimony can still be believed. 9. In “Sat Paul v. Delhi Admn.” (1976) 1 SCC 727 the Hon'ble Supreme Court has observed that in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him his evidence is not washed off the record altogether and a part of his testimony can still be believed. In “Syad Akbar v. State of Karnataka” (1980) 1 SCC 30 the Hon’ble Supreme Court has observed as under: “............As a legal proposition, it is now settled by the decisions of this Court that the evidence of a prosecution witness cannot be rejected, wholesale merely on the ground that the prosecution had dubbed him hostile and had cross-examined him.” 10. PW14 who is the informant of this case has deposed in his examination-in-chief that there was a meeting convened in the village and firing had taken place. He has deposed that he also suffered firearm injury in the occurrence. This part of the evidence of the informant supports the prosecution case and can be relied upon to establish that there was exchange of fire between two groups of villagers on 6th September 1997. PW3 is the son of Jhamman Singh whose presence in the village at the time of the occurrence is not under challenge. He has deposed in the Court that about 40-50 persons were present in the meeting which was convened at village Amkudar regarding a land dispute. He has further stated that the panchayati did not continue due to absence of one group of villagers and the meeting was postponed for 4:00 PM in the evening. According to this witness, in the meantime, rain had started and he heard sound of heavy firing. This witness has further stated that Budhan Singh suffered firearm injuries and others had started fleeing for their lives. Many of the villagers were apprehended by the miscreants who had tied their hands and his father was one of such villagers who was also brought beneath the tamarind tree. PW3 has specifically made the allegation of firing on his father by the appellant. In the cross-examination, PW3 has remained unshaken and did not waver from his previous statement made under section 161 Cr.P.C. He has stated that Kawleshwar Singh Bhokta has suffered firearm injury but he survived, and alongwith Urmila Devi and Bishun Singh about two dozen villagers were also beaten by the miscreants. 11. In the cross-examination, PW3 has remained unshaken and did not waver from his previous statement made under section 161 Cr.P.C. He has stated that Kawleshwar Singh Bhokta has suffered firearm injury but he survived, and alongwith Urmila Devi and Bishun Singh about two dozen villagers were also beaten by the miscreants. 11. PW4 Parmila Devi is an injured witness who has deposed in the Court that Jhamman Singh was shot dead by firearm. She has also stated that the meeting was postponed because Garar Singh, Budhan Singh and Meghan Singh did not arrive there to participate in the meeting. Her evidence is also important for the prosecution to establish that a meeting was convened in the village and there was heavy exchange of fire in which many persons died. PW5 Anju Devi has stated in her examination-in-chief that the land dispute between the two groups led to the occurrence in which 10 persons were killed. She has further stated that in the panchayati which was convened on 6th September 1997 about 80-90 people had assembled under a tamarind tree. However, the meeting which was to start around 12:00 PM noon could not continue as the other group did not participate. The presence of PW5 at the place of occurrence has been challenged by the defence on the ground that she is not a resident of village Amkudar. However, this witness has stood to her grounds and deposed in the Court that she has seen the appellant firing at Jhamman Singh. She has stated that it was raining around 4:00 PM and she could hear sound of firing from a distance. Therefore, a suggestion was put to her by the defence that it was not possible to identify the person who has fired at Jhamman Singh. However, she has remained firm to her stand that the appellant has fired shot at Jhamman Singh and clarified that it was still not dark at the time of the occurrence. PW6 Kawleshwar Singh Bhokta is another injured witness who has seen the occurrence in which 10 people were killed in the firing. He has stated about a land dispute between Garar Singh and other villagers in connection to which a meeting was to be held in the village. 12. Mr. Arwind Kumar, the learned counsel for the appellant has referred to the statement of PW3 in his cross-examination under paragraph nos. He has stated about a land dispute between Garar Singh and other villagers in connection to which a meeting was to be held in the village. 12. Mr. Arwind Kumar, the learned counsel for the appellant has referred to the statement of PW3 in his cross-examination under paragraph nos. 21 to 25 to challenge the prosecution story on the ground that PW3 and other witnesses are themselves extremists and their evidence therefore can not be made the basis for recording conviction of the appellant for murder of Jhamman Singh. The learned counsel for the appellant submits that the extremely charged atmosphere in the village and the strained relationship between the two sides are the reason PW3, PW4, PW5 and PW6 have tendered partisan evidence. It is further submitted that if the prosecution story of heavy firing were to be believed it is very unlikely that any of the so-called eye witnesses has seen the appellant firing at Jhamman Singh. 13. The statements made by PW3 in his cross-examination are extracted below: ^^¼21½ ge yksxksa dk laca/k Hkkdik ¼ekys½ ls FkkA ¼22½ ?kVuk ds fnu ckfj'k gks jgh FkhA jkr va/ksjk gks x;k FkkA Lor% dgrk gS ?kVuk pkj cts dk gS mlds ckn va/ksjk gks x;k FkkA ¼23½ dkQh taxy Fkk ogk¡ ijA rsrj ds isM+ ¼beyh dk isM+½ ds mÙkj rjQ 20 xt dh nwjh ij igkM+ FkkA igkM+ ij ls Hkh xksyh pyh FkhA xksyh igkM+ ds uhps xk¡o ds ikl ls xksyh pyhA vkokt gqvk rks eSa Hkkx x;kA ogha ij ?kkl esa ysVdj Nhi x, FksA ¼24½ yxHkx lkS Msढ+ lkS xksfy;k¡ pyh FkhA eSaus mxzokfn;ksa }kjk pyk;k x;k xksyh dk [kkyh [kksdk ugha cjken fd;kA ¼25½ cq/ku xa>w dk psgjk ns[ksA mldk dksbZ leku ugha ogk¡ ns[ksA** English Translation: “21. We were related to CPI (ML). 22. It was raining on the day of occurrence. It was dark at night. He himself states that the occurrence took place at 4:00 0'clock and thereafter it became dark. 23. There was a dense forest. There was a hill at a distance of 20 yards to the north of tamarind tree. Shots were also fired from the hill. Shots were fired from the foot of the hill which is very close to the village. I ran away hearing the sound of firing. I hid there lying in the grass. 24. Around 100-150 shots were fired. There was a hill at a distance of 20 yards to the north of tamarind tree. Shots were also fired from the hill. Shots were fired from the foot of the hill which is very close to the village. I ran away hearing the sound of firing. I hid there lying in the grass. 24. Around 100-150 shots were fired. I did not collect the blank cartridge of shots fired by the extremists. 25. I saw the face of Budhan Ganjhu. I did not see any of his articles there.” 14. A clear proof of motive for the crime lends additional support to the prosecution but absence thereof does not lead to an inescapable conclusion that the prosecution has failed to prove involvement of an accused in the crime. In course of scrutinizing the evidence of the inimical witness the Courts are adopting a little more cautious approach so as to eliminate every possibility of false implication of the accused. An inimical or partisan witness is always considered a truthful witness unless the Court finds serious variance in his evidence or the witness has failed to establish his presence at the time of occurrence. In “Ramashish Rai v. Jagdish Singh” (2005) 10 SCC 498 the Hon'ble Supreme Court has held that only requirement in law is that the testimony of inimical witness has to be considered with caution. 15. In “Ramashish Rai” the Hon'ble Supreme Court has held as under: “7. ……….. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the present case the High Court has rejected the otherwise creditworthy testimony of eyewitness account merely on the ground that there was enmity between the prosecution party and the accused party.” 16. In “State of Maharashtra v. Tulshiram BhanudasKamble” (2007) 14 SCC 627 the Hon'ble Supreme Court has held that only because the witness was inimical to the accused his evidence cannot be discarded. 17. In “State of Maharashtra v. Tulshiram BhanudasKamble” (2007) 14 SCC 627 the Hon'ble Supreme Court has held that only because the witness was inimical to the accused his evidence cannot be discarded. 17. In “Tulshiram Bhanudas Kamble” the Hon'ble Supreme Court has held as under: 29. Each of the reasoning assigned by the High Court, in our opinion, is contrary to the well-settled legal principle. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained. …………………………………………………………… 33. As regards enmity, it is well known that enmity is a double-edged weapon. It can be a ground for false implication, but it can also be a ground for correct implication. 18. Normally the evidence of an injured witness is put on the same pedestal and examined with the same yardstick as that of any eyewitness. However, the evidence of an injured witness lends assurance to the Court that he who has suffered injury must have been present at the time of the occurrence. Dr. Shyam Nandan Singh (PW9) was posted at Sadar Hospital, Chatra on 8th September 1997. According to this witness, a Medical Board consisting of Dr. N. Kumar, Dr. S.K. Choudhary, Dr. N.K.P. Jaiswal and Dr. S.N. Singh was constituted to conduct post-mortem examination over the dead body of 10 persons who were killed in the occurrence of 6th September 1997. The evidence of PW3, PW5, PW6 and PW9 clearly establish firing 23 shots at Jhamman Singh by the appellant. PW9 has stated that the firearm injuries to those 10 persons were caused from a “close distance”. He has further stated that on 8th September 1997 seven injured persons were brought to the hospital for their medical examination. As would appear from the materials on record, PW9 has conducted medical examination of Kawleshwar Singh Bhokta-PW6, Bishun Singh-PW14, Kameshwar Bhuian-PW7, Parmila Devi-PW4, Ramdeo Bhuian, Bhola Singh and Budhan Singh and has found injuries on their person. The medical evidence tendered through PW9 who has stated about postmortem examination over ten deadbody and injuries to several others is in syne with the prosecution story of attack by a group of extremists. The medical evidence tendered through PW9 who has stated about postmortem examination over ten deadbody and injuries to several others is in syne with the prosecution story of attack by a group of extremists. On the basis of the evidence of PW9, the learned trial Judge has formed an opinion that PW3, PW4, PW5, PW6 and PW14 were present at the place of occurrence and at the time of occurrence. 19. In “Tulshiram BhanudasKamble” the Hon’ble Supreme Court has observed as under: “29. …. The witnesses examined on behalf of the prosecution, apart from being eyewitnesses, were injured witnesses. Their presence at the place of occurrence, therefore, cannot be doubted. Only because they were inimical to the respondents, the same by itself cannot be a ground to discard their evidence. Although in accepting the same, some amount of caution is required to be maintained. ……………………………………………………………… 39. Though it is true that it is not necessary to invariably accept the version of the injured witnesses but it is well settled that greater weight has to be given to the testimony of the injured witnesses. We see no reason to disbelieve them and we agree with the view taken by the trial court. (See Nain Singh v. State of U.P, State of Punjab v. Gurmit Singh and Ramappa Halappa Pujar v. State of Karnataka.)” 20. Mr. Arwind Kumar, the learned counsel for the appellant has further contended that this has not been established with certainty that Jhamman Singh has suffered firearm injury caused by Budhan Ganjhu. 21. While conducting autopsy over the dead body of Jhamman Singh, PW9 has observed the following injuries on his person: “(i) There was an oval 4” x 2” punctured wound on left side lateral aspect of neck with collor of grease and abrasion; with margins inverted, red brown. (ii) There was an oval 3” x 2” wound on left temporal region with everted margin, red brown, brain matter was seen coming through this opening. (iii) On dissection, wound No.1 & 2 communicated, traversing and lacerating left cerebellar hemisphere and left parieto frontal lobes with contusion of these structures. (iv) Chest : - lung mild congestion. (v) PA : Stomach contained semi digested food material. Liver, spleen. kidneys were mildly congested.” 22. (iii) On dissection, wound No.1 & 2 communicated, traversing and lacerating left cerebellar hemisphere and left parieto frontal lobes with contusion of these structures. (iv) Chest : - lung mild congestion. (v) PA : Stomach contained semi digested food material. Liver, spleen. kidneys were mildly congested.” 22. As many as four out of whom three are injured witnesses have deposed in the Court that the appellant has fired shots at Jhamman Singh on account of which he died. The enmity between two groups in the village and death of 10 persons in the occurrence are the admitted position. In a case of this nature even if specific role played by an accused is not established he must be held guilty for the offence committed by others. In the present case, the doctor has tendered an opinion that Jhamman Singh who had gone into coma suffered hemorrhagic shock resulting from the injuries caused by firearm. He has also stated in the Court that firing at Jhamman Singh was done from a distance. The learned trial Judge has relied on the medical evidence to form an opinion that Jhamman Singh has suffered death on account of firing in the evening of 6th September 1997. 23. From the prosecution evidence this can be easily gathered that a large number of accused persons had formed unlawful assembly as defined under section 141 Cr.P.C and committed murder of as many as 10 persons. Section 149 IPC which incorporates constructive liability of all persons forming part of the unlawful assembly provides that each member of the assembly shall be liable for the offence committed by one or more persons in furtherance of common object of the assembly. In “Masalti v. The State of U.P” AIR 1965 SC 202 the Hon'ble Supreme Court has held that overt act on the part of every member of the unlawful assembly is not necessary to fasten the liability on the accused with the aid of section 149 IPC and if it is established that the accused was member of the unlawful assembly having knowledge of the common object of the unlawful assembly he is liable to be convicted for the main offence with the aid of section 149 IPC. 24. In “Joseph v. State Rep. by Inspector of Police” (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11. 24. In “Joseph v. State Rep. by Inspector of Police” (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts: 11.1. The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. 11.2. The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed. 11.3. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.” 25. The prosecution has produced clinching evidence through PW3, PW4, PW5, PW6 and PW9 to establish that Jhamman Singh has suffered homicidal death caused by firearm, the author of which is no one else but the appellant. Therefore, it is not even necessary to call section 149 IPC in aid for convicting the appellant for committing murder of Jhamman Singh as the prosecution witnesses have tendered evidence of such sterling quality that does not admit any doubt about the appellant causing murder of Jhamman Singh by firearm. 26. Therefore, it is not even necessary to call section 149 IPC in aid for convicting the appellant for committing murder of Jhamman Singh as the prosecution witnesses have tendered evidence of such sterling quality that does not admit any doubt about the appellant causing murder of Jhamman Singh by firearm. 26. The 1st Additional Sessions Judge, Chatra has found the appellant guilty under section 302 read with 149 IPC and sentenced him to imprisonment for life with fine of Rs.5,000/-for the said offence. The appellant has also been found guilty of committing the offence under sections 148, 341 and 307 IPC, section 27 of the Arms Act and section 17(i) (ii) of the CLA Act for which no separate sentence has been awarded to him. 27. However, in view of the aforesaid discussions, finding no reason to differ with the decision of the learned trial Judge convicting the appellant under section 302 read with 149 IPC and sections 148, 341 and 307 IPC, section 27 of the Arms Act and section 17 of the CLA Act, Criminal Appeal (DB) No. 726 of 2012 is dismissed. 28. Let the lower Court records be transmitted to the Court concerned, forthwith. 29. Let a copy of the Judgment be transmitted to the Court concerned through FAX.