1 CRA Nos.1499/2024 2025:CGHC:39049-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1499 of 2024 1 - Santoshi W/o Vijay Telgu Aged About 35 Years R/o Santoshi Nagar, Bheemkhoj, P.S. And District- Mahasamund, Chhattisgarh. 2 - Yashoda W/o Nandkishore Telgu Aged About 46 Years R/o Santoshi Nagar, Bheemkhoj, P.S. And District- Mahasamund, Chhattisgarh. 3 - Nandkishore S/o Dadu Telgu Aged About 51 Years R/o Santoshi Nagar, Bheemkhoj, District- Mahasamund, Chhattisgarh. --- Appellants versus State Of Chhattisgarh Through The Station House Officer, P.S. And District- Mahasamund, Chhattisgarh. --- Respondent (Cause-title taken from Case Information System) ---------------------------------------------------------------------------------------- For Appellants : Mr. Siddharth Rathod, Advocate For Respondent-State : Mr. Shashank Thakur,Dy. A.G. ----------------------------------------------------------------------------------------- Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Judgment on Board Per Bibhu Datta Guru, Judge 12.08.2025 1. This appeal filed by the appellants-accused under Section 415(2) of B.N.S.S. is directed against the impugned judgment of conviction and order of sentence dated 12/07/2024, passed by the learned 1st Additional Sessions Judge, Mahasamund, (C.G.) in Sessions Case No. 31/2019, K GOWRI SANKARA RAO Digitally signed by K GOWRI SANKARA RAO Date: 2025.08.13 19:21:28 +0530 2 CRA Nos.1499/2024 whereby the appellants-accused have been convicted and sentenced as under:- Conviction Sentence Under Section 148 of the IPC R.I. for 2 years & fine of Rs.1000/-, in default, additional R.I. for 1 month each Under Section 302/149 of the IPC Life imprisonment & fine of Rs.5000/-, in default, additional R.I. for 5 months each Under Section 307/149 of the IPC R.I. for 7 years & fine of Rs.3000/-, in default, additional R.I. for 3 months each Under Section 460 of the IPC R.I. for 10 years & fine of Rs.2000/-, in default, additional R.I. for 2 months each All the sentences are directed to run concurrently. 2. (a) In this case there are total 20 accused persons namely; Arjun (A1), Kondi Bai (A2), Phool Singh (A3), Dinesh (A4), Girdhari (A5), Nandkishore (A6), Neelkanth (A7), Punit (A8), Potraju (A9), Dholu (A10), Vijay (A11), Pintu (A12), Dharmu (A13), Budha Arjun (A14), Chotababu (A15), Baigraju (A16), Chinna (A17), Ganeshwari (A18), Yasodha (A19) and Santoshi (A20). (b) Out of them four namely; A10, A11, A12 & A15 are juvenile and eight are still absconding namely; A5, A7, A9, A13, A14, A16, A17 and A18. (c) Earlier A2, A1, A8, A3 & A4 were arrested and they were put on trial in ST No.423/2003 for murder of the Deceased wherein they have been convicted by the trial Court. Against the said judgment, they filed 3 CRA Nos.1499/2024 CRA No.35/2006, 129/2006 and 162/2006. The said appeals were decided on 16-4-2010 by this Court and while maintaining the conviction of A1, A8, A3 & A4 for the aforementioned charges, the Court has acquitted A2. (d) Present appeals are preferred by A20, A19 and A6. 3. At the outset, it is noteworthy to mention here that in the case at hand though the examination-in-chief of eye witness PW-1 Nagi Bai, mother of deceased Ranjeet and PW-3 Krishna @ Krishna Kumar, brother of deceased taken from the earlier trial bearing ST No.423/2003, but they have not been cross-examined owing to their death before commencement of the present trial i.e. ST No.31/2019. Thus, we are not placing much emphasis on the evidence of these witnesses because the accused persons have not got any opportunity to cross-examine them in support of their defence. 4. Conviction is impugned on the ground that without any iota of evidence, especially constitution of unlawful assembly with common object of commission of murder of Ranjeet and attempt to commit murder of Nagi Bai, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 5. Case of the prosecution, in brief, is that both the parties were in inimical terms and on the fateful night of 26-8-2003 between 2-2.30 a.m. (mid night) Ranjeet (since deceased) & his wife Seema Bai (PW-19) were sleeping in their house along with their children and Nagi Bai (PW-1) (now dead) – mother of Ranjeet was also sleeping in the same house. 4 CRA Nos.1499/2024 Seema Bai (PW-19) woke up on account of stroke of stick, at that time, Girdhari, Nand Kishore, Chinna, Pot Raju, Baiga Raju, Neelkanth, Dholu, Vijay, Punit, Pintu, Arjun, Budha Arjun, Dharmu, Chota Babu & others were present, they were holding sword, dagger, axe, cricket bat & stick, they assaulted her husband Ranjeet (since deceased), her mother- in-law came to intervene to save her son Ranjeet on which accused Girdhari, Chinna & Nand Kishore assaulted her as of result she fell down. The accused persons dragged Ranjeet from verandah to courtyard and assaulted him with sword, axe and with weapons which they were holding as a result of which Ranjeet fell down. They also chased Seema Bai (PW-19), then she ran away with her children towards the house of her elder brother-in-law (jeth) Dukalu. The accused persons again chased her on which she went to the house of Rajesh and hide herself. The accused persons assaulted Jeth in the house and they were telling that they will kill all members of the family. After some time, she went to the house of Jeth where dead body of her elder brother-in-law Ravi was lying in the verandah and dead body of Dukalu was lying in the room. She came back to her house, her husband was breathing, she shouted for help and after some time her husband died. Police came to her village and she lodged dehati nalsi vide Ex.P-25 and dehati merg vide Ex.P-26. Registered merg was recorded vide Ex.P-21 and F.I.R. was registered vide Ex.P-20. The Investigating Officer after summoning the witnesses vide Ex.P-1 prepared inquest over the dead body of Ranjeet vide Ex.P-2. Dead body of Ranjeet was sent for autopsy 5 CRA Nos.1499/2024 to Govt. Hospital, Mahasamund vide Ex.P-14A and autopsy was conducted by Dr. S. Chandravanshi (PW-9) vide Ex.P-14 who found following injuries: - • Incised wound 6 c.m. x 0.2 c.m. x 0.3 c.m. over mid forehead, frontal bone was also incised. • Incised wound 10 c.m. x 0.2 c.m. x 0.3 c.m. over left side of forehead up to left ear, frontal & temporal bones were also incised. • Incised wound 1.5 c.m. x 0.2 c.m. x 0.3 c.m. over base of nose. • Incised wound 2 c.m. x 0.2 c.m. x 0.2 c.m. over tip of nose. • Incised wound 7 c.m. x 0.8 c.m. x 1 c.m. over left mid cheek. • Incised wound 6 c.m. x 1 c.m. x 1 c.m. over left arm middle 1/3 lateral. • Incised wound 7 c.m. x 2 c.m. x 1 c.m. over left arm lower 1/3 lateral. • Compound fracture of left forearm middle 1/3. • Incised wound 8 c.m. x 0.3 c.m. x 0.5 c.m. over left mid palm. • Incised wound 8 c.m. x 1 c.m. x 0.5 c.m. over distal palm, 4 metacarpal bones were found cut completely at distal end. • Incised wound 8 c.m. x 1 c.m. x 3 c.m. over right arm middle 1/3, humerus completely cut and arm was hanging attached to post skin. • Incised wound 2 c.m. x 0.5 c.m. x 0.2 c.m. over right mid skin. • Incised wound 8 c.m. x 1 c.m. x 2 c.m. over left foot. • Mode of death was shock as a result of excessive haemorrhage. 6 CRA Nos.1499/2024 Injured Nagi Bai (now dead) was also examined by Dr. S. Chandravanshi (PW-9) vide Ex.P-15 and following injuries were found: - ◦ Incised wound 10 c.m. x 1 c.m. x 2 c.m. at the base of right palm, metacarpal bones were visible. ◦ Incised wound 1.5 c.m. x 1 c.m. x 0.5 c.m. over base of right index finger. ◦ Lacerated wound 3 c.m. x 0.5 c.m. x 0.2 c.m. over right forearm. ◦ Incised wound 8 c.m. x 2 c.m. x 1 c.m. over left shoulder, humerus bone was visible. ◦ Incised wound 8 c.m. x 1 c.m. x 1 c.m. over left arm, bone was visible. ◦ Incised wound 4 c.m. x 1 c.m. x 0.5 c.m. over left forearm. ◦ Incised wound 20 c.m. x 1 c.m. x 2 c.m. over right side of abdomen, peritoneum membrane was visible. Injuries were caused by sharp edged weapon. Radiological examination of Nagi Bai was also done vide Ex.P-16 and fracture of proximal phalynx of right thumb, fracture of proximal phalynx of right index finger, fracture of acremian processes of left scapula and fracture of left humerus head were found. Injuries were sufficient for causing death. 6. During the course of investigation, the appellants herein (A20, A19 & A6) were taken into custody. Statements of the witnesses were recorded. The incriminating articles were seized and the investigation was concluded. Subsequently, a charge-sheet was submitted before the concerned Court. The charges were read over to the appellants herein, 7 CRA Nos.1499/2024 which they denied and claimed to be tried. 7. In order to prove the guilt of the appellants herein, the prosecution has examined as many as twenty four witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances appearing against them, pleaded innocence and false implication on account of enmity. They have examined Jagat (DW-1), Ishwar Prasad Sahu (DW-2), Shyam Rao (DW-3) & Amravatin Bai (DW-4) in their defence. They have exhibited four documents also i.e. D1 to D4. 8. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellants as aforementioned. Thus, this appeal. 9. (i) Learned counsel for appellants vehemently argued that the evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the appellants have committed the offence. According to the case of the prosecution, Nagi Bai (PW-1) – mother of Ranjeet & injured witness; Rajesh (PW-2) in whose house Seema Bai (PW-19) has taken shelter; Krishna alias Krishna Kumar (PW-3) (now dead) – brother of Ranjeet who was present in the house at the time of incident; Shanti Bai (PW-5) – wife of another deceased Dukalu; Shankar (PW-6) – nephew of deceased persons Dukalu, Ravi & Ranjeet who was present in the house of Dukalu; Kanta Bai (PW-7) – wife of deceased Ravi and Seema Bai (PW-19) – wife of deceased Ranjeet, have claimed themselves to be eyewitnesses. According to the case of the prosecution, 8 CRA Nos.1499/2024 Nagi Bai (PW-1) & Seema Bai (PW-19) were present in the house where Ranjeet was sleeping and both are injured witnesses, according to their statements. (ii) Learned counsel for appellants also argued that no specific part played by the aforesaid appellants has been deposed by the witnesses in their evidence. The prosecution has also not proved the fact that the appellants have ever constituted unlawful assembly and were armed with deadly weapons having its common object of causing murder of Ranjeet. Therefore, even mere presence, or causing any one or two injuries, or simple injuries to any person is not sufficient for drawing inference that the appellants herein have constituted unlawful assembly along with other accused persons having common object to commit murder of Ranjeet and in furtherance of common object of the unlawful assembly, they have committed murder and attempted to commit murder after committing the offence of house breaking by night. This is a case of series of murders in which after murder of Ranjeet and fatal injuries to Nagi Bai, murder of two other persons namely Dukalu & Ravi – brother of Ranjeet and series of injuries to other persons were caused. But the evidence of the prosecution witnesses clearly establish that injuries were caused by goondas came from outside and the three deceased persons who died on the spot were having inimical terms with so many persons, they were facing criminal trial for commission of so many offences and therefore, there was likelihood of causing injuries or committing their murder by their enemies, and the witnesses have 9 CRA Nos.1499/2024 falsely implicated these appellants without any credible, clinching & reliable evidence. (iii) Learned counsel for the appellants would submit that in absence of reliable evidence to show that accused with common intent assaulted or caused injuries either to deceased or any of his family members and in case their presence at the site of the incident was doubtful, they are entitled for acquittal. Thus, the impugned judgment of conviction and order of sentence deserve to be set-aside. 10. (A) On the other hand, learned State counsel vehemently opposed the submission and submitted that this is a case of triple murder in one series, the offence took place between 2-2.30 a.m. (at night) it was not the normal time where presence of any person for any other purpose may be presumed. At the time of commission of offence, persons of the village were sleeping in their houses, the appellants gathered at one place and after holding deadly weapons they entered into the house of Ranjeet from the way not meant for common entry and thereby committed the offence of house breaking, and after entering into the house of Ranjeet, they assaulted Nagi Bai & Seema Bai and committed murder of Ranjeet, they chased Seema Bai, when she fled from the spot, they followed her up to the house of Dukalu, they committed the murder of Dukalu & Ravi and also caused serious injuries to other persons with deadly weapons. The prosecution has adduced evidence to this effect which is sufficient for drawing inference that the appellants armed with deadly weapons have formed unlawful assembly the common object of 10 CRA Nos.1499/2024 which was to kill Ranjeet and attempt to commit murder of Seema Bai and in furtherance of common object of the unlawful assembly the accused persons & other members of the assembly had caused injuries jointly & severally. Therefore, all members of the unlawful assembly are liable for commission of the aforesaid offence with the aid of Section 149 of the I.P.C. In the present case, the prosecution is not required to prove individual acts of the appellants. The prosecution is required to establish that the appellants armed with deadly weapons have formed unlawful assembly with common object to kill Ranjeet and attempt to commit murder of Seema Bai. In the present case, the prosecution has proved the aforesaid facts by adducing evidence of eyewitnesses. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that the appellants have committed the aforesaid offence. (B) Learned State counsel further submitted that evidence of Nagi Bai (PW-1), Rajesh (PW-2), Krishna alias Krishna Kumar (PW-3) – injured witness, Shanti Bai (PW-5) – wife of deceased Dukalu, Shankar (PW-6) injured witness, Kanta Bai (PW-7) and Seema Bai (PW-19) – injured witness & wife of deceased Ranjeet are sufficient for drawing inference that the appellants formed unlawful assembly, they were armed with deadly weapons and after committing house breaking by night in furtherance of the common object of unlawful assembly, they committed culpable homicide amounting to murder of Ranjeet and have attempted to commit murder of Nagi Bai. The trial Court has rightly convicted & 11 CRA Nos.1499/2024 sentenced the appellants. 11. We have heard learned learned counsel for the parties and perused the documents with utmost circumspection. 12. In the present case, homicidal death of Ranjeet as a result of ante mortem fatal injuries and fatal injuries to Nagi Bai (PW-1) have not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. S. Chandravanshi (PW-9), autopsy report Ex.P-14, injury report of Nagi Bai Ex.P-15 and X-ray report Ex.P-16, that death of Ranjeet is homicidal in nature and injuries caused to Nagi Bai are fatal to life. 13. As regards complicity of the appellants in the crime in question, conviction is based on the evidence of eyewitnesses Nagi Bai (PW-1) – mother of deceased Ranjeet & injured witness and Seema Bai (PW-19) – wife of deceased Ranjeet. 14. Seema Bai (PW-19) has deposed in her evidence that they were in inimical terms with the appellants & other accused persons, on 26-8- 2003 she was sleeping along with her husband & children, between 2-3 a.m. at night accused Girdhari, Nand Kishore, Chinna, Neelkanth, Daulu, Dharmu, Kodu Raju, Baiga Raju, Arjun, Kodi, Phool Singh, Punit, Dinesh, Chote Babu, Pintu, Ganeshi, Yashoda, Santoshi & other persons came to her house, they were holding sword, axe, stick & nanchaku, they came inside her house by jumping the wall and firstly they assaulted her, then her husband and thereafter, her mother-in-law Nagi Bai (PW-1). When they tried to assault her children, her husband 12 CRA Nos.1499/2024 Ranjeet directed her to go with children to save them on which she along with her two children left her house and while leaving her house she was watching the incident by hiding herself, her mother-in-law Nagi Bai (PW-1) after opening the door tried to call the persons whereupon accused Girdhari, Dalu & Neelkanth assaulted her with stick, accused Vijay & Girdhari assaulted her husband with sword, they chopped his hand & leg and assaulted over his body. Thereafter, she fled towards her bother-in-law Dukalu’s house. The accused persons also reached to the house of Dukalu before she reached there. 15. Nagi Bai (PW-1) – mother of deceased Ranjeet & injured witness has deposed in her examination-in-chief that on the fateful night at about 2- 2.30 a.m. she was sleeping in her house, at that time after jumping the wall of her kitchen garden accused Vijay, Nand Kishore, Girdhari, Chinna, Neelkanth, Punit, Gauri & Sanotshi came to her house, they were holding sword, betel axe, rod, dagger & crowbar, they assaulted Ranjeet, they also assaulted her with sharp edged weapon and caused fatal injuries on her abdomen & other parts of the body including hands. They committed murder of Ranjeet. They chopped the body of Ranjeet. Thereafter, the accused persons went to the house of Dukalu. She fled towards the village and thereafter, she came to know that the accused persons have killed Ravi & Dukalu. 16. Rajesh (PW-2) – neighbour of Ranjeet has deposed that on the fateful night at about 3 a.m. wife of Ranjeet suddenly came along with her two children and started weeping, her blouse was stained with blood, she 13 CRA Nos.1499/2024 told that goondas are assaulting her husband and she requested to save her husband as they will kill her husband whereupon he proceeded towards the house of Dukalu, where he saw that some persons were assaulting Ravi with hockey stick, sword & dagger (bhala). Accused Punit, Dharmu & Neelkanth were also assaulting, then he hide himself, after some time, he came back at that time, Ravi, Ranjeet & Dukalu were in injured condition and they took Dukalu to hospital, but he died on the way. 17. Krishna alias Krishna Kumar (PW-3) has also corroborated the evidence of Nagi Bai (PW-1). Shanti Bai (PW-5) – wife of another deceased Dukalu and Kanta Bai (PW-7) – wife of another deceased Ravi have deposed in their evidence that the appellants and other accused assaulted Dukalu & Ravi in their house. Parvati (PW-16) has deposed in her evidence that Dukalu made dying declaration before her that Girdhari, Nand Kishore, Dharmu, Punit, Vijay, Phool Singh, Arjun, Dinesh, Neelkanth, Daulu, Kondi Bai, Ganesri, Yashoda & others have assaulted him. 18. This case relates to commission of murder of Ranjeet. According to the case of the prosecution, Nagi Bai (PW-1) and Seema Bai (PW-19) have witnessed the incident, they were present in the house where Ranjeet was murdered and Seema Bai & Nagi Bai were injured. Though, both the witnesses have named the appellants and stated that they entered into their house, they have not attributed any specific role played by the present appellants while committing murder of the Ranjeet and 14 CRA Nos.1499/2024 assaulting PW1- Nagi Bai. The prosecution has cross-examined Nagi Bai (PW-1) & Seema Bai (PW-19) in detail and both the witnesses have specifically admitted in their evidence that the accused persons had assaulted them. Seema Bai (PW-19) has lodged the report, but her report does not reveal about chopping of hands & legs of Ranjeet, however, medical report reveals that hands & legs of Ranjeet were chopped. They are injured witnesses and grievous injuries were caused to Nagi Bai (PW-1) who is aged about 60 years. The incident took place at 2-2.30 a.m. at night. According to the case of the prosecution, total twenty accused were present with deadly weapons and they assaulted three persons in the house of Ranjeet. In these circumstances, detailed evidence with detailed description by any witness, particularly of the person whom the accused were assaulting, or whose son or husband was victim of the offence and was murdered mercilessly, would not be possible, but the witness would be in a position to state as to who were present, what weapon they were holding and substantially to whom they caused injuries. Evidence of both the witnesses (PW-1 & PW-19) are sufficient to establish the fact that appellants were present along with other persons while they were causing injuries to Nagi Bai, Ranjeet & Seema Bai in the house of Ranjeet. They have specifically stated their presence. Both the witnesses are relative witnesses and are having inimical terms with the appellants, but their evidence cannot be discarded only on the ground of their relation or on the ground of enmity. 15 CRA Nos.1499/2024 19. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. While dealing with the question of evidentiary value of the relative witnesses, the Apex Court in the matter of Dalip Singh and others v. The State of Punjab1 has held that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted. Para 26 of the said judgment reads as under:- “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” 20. While dealing with same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar2 has held thus; 1 AIR 1953 SC 364 2 2008 AIR SCW 3739 16 CRA Nos.1499/2024 “……it will be erroneous to lay down as a rule of universal application that non-examination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the victim, which is otherwise credit-worthy, cannot be relied upon unless corroborated by public witnesses. Insofar as the question of credit-worthiness of the evidence of relatives of the victim is concerned, it is well settled though the Court has to scrutinize such evidence with greater care and caution but such evidence cannot be discarded on the sole ground of their interest in the prosecution. The relationship per se does not affect the credibility of a witness. Merely because a witness happens to be a relative of the victim of the crime, he/she cannot be characterized as an “interested” witness. It is trite that the term “interested” postulates that the person concerned has some direct or indirect interest in seeing that the accused is somehow or the other convicted either because he had some animus with the accused or for some other oblique motive.” 21. While dealing with same question, the Apex Court in the matter of Hari v. State of Maharashtra3 has held that relationship by itself cannot be ground to discredit the evidence of eyewitnesses relatives of deceased, more so, when deceased was murdered by his cousin (relative). Paras 21, 22 & 23 of the said judgment read thus: “21. It may be true that all the vital witnesses, namely, PW 1, 2 and 8 are relations of the deceased but that by itself cannot discredit their evidence. It is a fight between the relations it has come on record that the 3 2009 AIR SCW 2250 17 CRA Nos.1499/2024 appellant is the cousin of the deceased. In such a case, the relations are likely to be the most appropriate witnesses. 22. Certain decisions have been cited at the Bar which need to be considered and explained. About appreciation of evidence of witnesses who are related to the deceased, learned counsel for the appellant relied on a decision of this Court in Avtar Singh vs. State of Punjab, (2006) 12 SCC 524. In that case the facts were totally different and it was opined by the learned Judges, in the peculiar facts of that case, that enmity and bad blood between the rival groups was established beyond doubt. In that case no report was lodged with the police regarding the occurrence and this Court looked into the evidence and opined that the story about making an effort to lodge a report earlier was not true. In that case the nambardar and the chowkidar who were alleged to have accompanied PW-1 to the police station were not examined and there was a categoric denial by PW6-Station House Officer about anyone reporting the incident to him before 4.12.1989. This Court found that the High Court has not at all noticed the facts. In the background of those facts, this Court held that proper caution was not exercised by the High Court in appreciating the highly partisan evidence adduced by the prosecution. 23. But in the instant case, the factual scenario is totally different. Here the occurrence took place within the house at the instance of the close relatives and in such a situation only relatives would be the witnesses. Of course, in the present case also there was some enmity in view of the land dispute but that by itself is not a ground to discard the evidence of the witnesses, who are relatives when their evidence is cogent and credible. Factually, the 18 CRA Nos.1499/2024 decision of this Court in Avtar Singh (supra) stands on a completely different footing.” 22. In the matter of Mohabbat and Ors. v. State of M.P.4 the Apex Court has held that relationship is not ground to affect credibility of witness, foundation has to be laid if plea of false implication is raised. Para 7 of the said judgment reads thus: “7. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyze evidence to find out whether it is cogent and credible.” 23. Statements of the relative witnesses cannot be discarded only on the ground of their relationship. The Courts are required to scrutinize their evidence with great care and caution. 24. On close scrutiny of the evidence of Nagi Bai (PW-1) & Seema Bai (PW-19) in the light of law propounded by the Apex Court in the aforesaid cases, the evidence of Nagi Bai (PW-1) & Seema Bai (PW-19) 4 2009 AIR SCW 1486 19 CRA Nos.1499/2024 are sufficient for drawing inference that appellants were present in the house of Ranjeet at the time of commission of offence, they entered in the house of Ranjeet after jumping the wall of courtyard and they were armed with deadly weapons and as per the evidence of PW1 & PW19, they attacked them and also committed murder of the Deceased. 25. 25. Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. Mere presence as a stranger, by passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence. 26. While dealing with the question of formation of unlawful assembly, the Apex Court in the matter of Chandra Bihari Gautam & Ors. v. State of Bihar5 has held that unlawful assembly may be constituted at any moment and even assembled of accused, but the existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. Para 6 of the said judgment reads 5 JT 2002 (4) 62 20 CRA Nos.1499/2024 as under: “6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further established that they were not mere by-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to be committed in prosecution of the common object, persons provide to be members cannot escape the consequences arising from the doing of that act which amounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the 21 CRA Nos.1499/2024 victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred.” 27. While dealing with same question, the Apex Court in the matter of Pandurang Chandrakant Mhatre v. State of Maharashtra6 has held that conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code. 28. While dealing with same question, the Apex Court in the matter of Masalti v. State of U.P.7 has held in para 17 as under:- “17. …..What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more 6 (2009) 10 SCC 773 7 AIR 1965 SC 202 22 CRA Nos.1499/2024 persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.” 29. While dealing with same question, the Apex Court in the matter of Sherey and others v. State of U.P.8 has held in para 4 as under:- “4. ………But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom over acts are attributed…….” 30. While dealing with the question of need of overt act or active participation of member of unlawful assembly, the Apex Court in the matter of Lalji and others v. State of U.P.9 has held that once formation of unlawful assembly is established, then no overt act or active participation of any member of unlawful assembly is required and mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act is sufficient to constitute offence. Paras 8 and 9 of the said judgment read as under:- 8 1991 Supp (2) SCC 437 9 (1989) 1 SCC 437 23 CRA Nos.1499/2024 “8. Section 149 IPC provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in Section 141 IPC, an assembly of five or more persons is designated an “Unlawful Assembly”, if the common object of the persons composing that assembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth”, and “Fifth” of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of 24 CRA Nos.1499/2024 the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common 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 25 CRA Nos.1499/2024 of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.” 31. While dealing with the question of intention/common object of unlawful assembly, the Apex Court in State of U.P. v. Dan Singh and others10 has held that intent of members of assaulting party can be gathered from number and nature of injuries and arms used by them. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 of the said judgment read as under:- “30. From the aforesaid facts, as found by the High Court, let us examine whether there existed any unlawful assembly and what was its common object. It is possible that there was no unlawful assembly in existence at the time when the “doli” was stopped. Nevertheless as per the evidence of all the eyewitnesses, a large number of 10 (1997) 3 SCC 747 26 CRA Nos.1499/2024 villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141 IPC an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P. {(1989) 1 SCC 437 : 1989 SCC (Cri) 211} “that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case”. What has happened in the present case is precisely what has been envisaged in the explanation to Section 141 IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eyewitnesses have said that fifty or more villagers had 27 CRA Nos.1499/2024 taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks and stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object. 31. It was sought to be contended that there is nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were fourteen corpses. It is only those members of the marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, is that there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent.” 32. While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Apex Court in the matter of Gangadhar Behera and others v. State of Orissa11 has held that evidence relating to common object generally not available and same has to be gathered from the act committed and result therefrom. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the 11 (2002) 8 SCC 381 28 CRA Nos.1499/2024 said judgment read as under:- “22. Another plea which was emphasized relates to the question whether Section 149 IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word “object” means the purpose or design and, in order to make it “common”, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not 29 CRA Nos.1499/2024 continue to be the same. It may be modified or altered or abandoned at any stage. The expression “in prosecution of common object” as appearing in Section 149 have to be strictly construed as equivalent to “in order to attain the common object”? It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly. 23. “Common object” is different from a “common intention” as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the 30 CRA Nos.1499/2024 members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot eo instanti. 24. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish 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 a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now 31 CRA Nos.1499/2024 the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word “knew” used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of “might have been known”. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange 32 CRA Nos.1499/2024 Gowda v. State of Mysore, AIR 1956 SC 731 : 1956 Cri LJ 1365.)” 33. In the light of law as propounded by the Apex Court in the aforesaid cases, for constitution of unlawful assembly, five or more than five members are required, their common objects must be for commission of the offence as envisaged in Section 141 of the Indian Penal Code. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assembly and if result of such act is once proved that the unlawful assembly has been constituted, any overt act or active participation of any member of unlawful assembly is not necessary. All members would be liable for commission of offence or for the act committed by any member of unlawful assembly in accordance with Section 149 of the Indian Penal Code. 34. In the light of the law propounded in the aforesaid authorities, we have examined the material for formation of unlawful assembly by the appellants. The witnesses have specifically deposed relating to presence the appellants along with 15-20 other persons who have committed murder of Ranjeet and attempted to commit murder of Nagi Bai, they were members of the unlawful assembly and they came along with other accused persons at about 2.30 at night by jumping the wall and after breaking the door, they committed the aforesaid offence. It was not normal time, presence of the appellants on the place of incident was not natural. It is difficult to hold that at about 2.30 a.m. at night the 33 CRA Nos.1499/2024 appellants could move around the house of Ranjeet without any reasonable cause. They have not gathered on the spot to see the incident after hearing the cry or they were not present to save Ranjeet & other persons. Gathering at night at about 2.30 a.m. with deadly arms after jumping the wall in the house of Ranjeet itself is sufficient for drawing inference that all the appellants have formed unlawful assembly, their common object was to commit culpable homicide amounting to murder of Ranjeet & attempt to commit murder of the Nagi Bai (PW1), and thereby they have committed the aforesaid offence. 35. In these circumstances, the prosecution was not required to prove specific role attributed to each of the appellants, part played by each of them, or the overt act of the appellants at the time of commission of such offence. Commission of murder and attempt to commit murder by any member or other members of the unlawful assembly are sufficient for making these appellants liable for commission of such offence with the aid of Section 149 of the I.P.C. 36. In the present case, the prosecution has proved presence of appellants along with other accused at odd hours i.e. 2.30 a.m. (at night) inside the house of the deceased and has proved their active presence and formation of unlawful assembly. 37. Despite non-consideration of evidence of dead persons i.e. Nagi Bai (PW-1) and Krishna @ Krishna Kumar (PW-3), then also from the evidence of other witnesses including the evidence of Seema Bai (PW- 19), wife of the deceased Ranjeet, it is crystal clear that the prosecution 34 CRA Nos.1499/2024 has established its case beyond all reasonable doubt and presence of the appellants has been proved at the place of occurrence. 38. After appreciating the evidence available on record, learned trial Court has rightly convicted the appellants under Sections 148, 302 read with Section 149, 307 read with Section 149 & 460 of the I.P.C., who, in the fateful night of the incident, entered into the house of Ranjeet at the time of commission of the offence. Finding relating to appellants is based on credible & clinching evidence sustainable under the law. 39. Consequently, for the foregoing reasons the appeal is hereby dismissed. A20 & A19 (Appellant No.1 & 2 herein) are on bail. Their bail bonds are cancelled and they are directed to surrender forthwith and/or be taken into custody for serving out the remaining sentence. A6 (appellant No.3 herein) is in jail. 40. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned and the concerned Jail Superintendent forthwith for necessary information and compliance. They are directed to apprise the appellants that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Rahul/Gowri