1 CRA No 1503/2024 2025:CGHC:39049-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1503 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, P.S. And District Mahasamund, Chhattisgarh. ---Appellants Versus State Of Chhattisgarh Through The Station House Officer, P.S. And District Mahasamund, Chhattisgarh. ... Respondent (Cause-title is 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 K GOWRI SANKARA RAO Digitally signed by K GOWRI SANKARA RAO Date: 2025.08.13 19:22:08 +0530 2 CRA No 1503/2024 order of sentence dated 12/07/2024, passed by the learned 1st Additional Sessions Judge, Mahasamund, (C.G.) in Sessions Case No. 52/2019, 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 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 324/149 of the IPC R.I. for 2 years & fine of Rs.1000/-, in default, additional R.I. for 1 month 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 3 CRA No 1503/2024 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.424/2003 (for D2 & D3) and ST No.423/2003 (for D1) wherein they have been convicted by the trial Court. Against the said judgments, they filed CRA No.24/2006, 133/2006 and 161/2006 (D2 & D3) and CRA No.35/2006, 129/2006 and 162/2006 (D1). The said appeals were decided on 16-4-2010 by this Court. In respect of murder of D2 & D3 their appeals were dismissed. However, in respect of murder of D1 the appeal of A2 was allowed and the appeals of A1, A8, A3 & A4 were dismissed. (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 witness PW-1 Nagi Bai, mother of deceased Dukalu & sister of mother of deceased Ravi and PW-2 Krishna @ Krishna Kumar, brother of deceased Dukalu and cousin of deceased Ravi taken from the earlier trial bearing ST No.424/2003, but they have not been cross-examined owing to their death before commencement of the present trial i.e. ST No.52/2019. 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 evidence relating to formation of unlawful assembly having 4 CRA No 1503/2024 common object of commission of murder of Ravi & Dukalu, attempt to commit murder of Shankar (PW4) and simple injuries to Shanti Bai (PW3), 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) Shanti Bai (PW-3) – wife of Dukalu (since deceased) was sleeping with her husband & children inside her room after closing the door, Ravi (since deceased) – her brother-in-law was sleeping in another room. Ravi cried for help on which she woke up, opened the door and put on the light. At that time, accused Girdhari, Nand Kishore, Babu, Budha Arjun, Potraju, Bada Arjun, Dinesh, Arjun, Phool Singh, Yashoda, Ganesi, Kondi Bai, Santoshi, Daulu, Neelkanth, Punit, Pintu & Vijay were present, they were holding sword, dagger, axe, kukri, spade, rod & stick, they were assaulting Ravi as a result of which Ravi fell down, thereafter, they came towards Shanti Bai (PW-3) and assaulted her also, Bega Raju assaulted her with sword. Dukalu (since deceased) went inside his house and closed the door from inside on which all the accused persons broke the door, entered inside the room and assaulted Dukalu, they chopped hands & legs of Dukalu as of result he fell down and they assaulted Shankar also. Ravi died on the spot. Dukalu was alive for some time. All the accused persons have assaulted them on account of previous enmity. On the date of incident some accused had come from outside. Police came to the village of Shanti Bai (PW-3), 5 CRA No 1503/2024 then she lodged dehati nalsi vide Ex.P-27. On the basis of dehati nalsi, F.I.R. was lodged vide Ex.P-16. Dehati merg was recorded vide Ex.P- 26. Registered merg was recorded vide Exs.P-17 & P-18 relating to Ravi & Dukalu. After summoning the witnesses vide Ex.P-1, inquest over the dead body of Dukalu was prepared vide Ex.P-2. After summoning the witnesses vide Ex.P-3, inquest over the dead body of Ravi was prepared vide Ex.P-14. Dead bodies were sent for autopsy to Govt. Hospital, Mahasamund vide Ex.P-20A & P-21A. Dr. S. Chandravanshi (PW-13) conducted autopsy on the dead body of Ravi vide Ex.P-20 and found following injuries: - • Lacerated wound 6 c.m. x 0.5 c.m. x 0.2 c.m. over right forehead. • Lacerated wound 5 c.m. x 0.5 c.m. x 0.2 c.m. over left occipital region. • Incised wound 5 c.m. x 1 c.m. x 1.5 c.m. bone deep over left shoulder, humerus bone was visible. • Four stab wounds over left arm lower 1/3 posterior & lateral 0.8 c.m. x 0.3 c.m. x 1 c.m. each. • Haematoma 6 c.m. x 6 c.m. with complete fracture of left forearm middle 1/3, fractured part was freely movable. • Stab wound 0.8 c.m. x 0.3 c.m. x 1 c.m. over right arm middle 1/3 posterior. • Compound fracture of lower 1/3 of left lower limb, 8 c.m. above left ankle, tibia bone was protruding out from fracture. • Four stab wounds over right lower limb 1 c.m. x 0.4 c.m. x 2 c.m. each. • Mode of death of Ravi was shock as a result of excessive haemorrhage. 6 CRA No 1503/2024 Autopsy on the dead body of Dukalu was also conducted by Dr. S. Chandravanshi (PW-13) vide Ex.P-21 and following injuries were found: - • Incised wound 4 c.m. x 0.3 c.m. x 0.3 c.m. over left parietal region. • Incised wound 6 c.m. x 1.5 c.m. x 4 c.m. over left forearm lower 1/3. Radius & ulna completely cut, left hand hanging attached with post skin only. • Incised wound 6 c.m. x 1.5 c.m. x 4 c.m. over right forearm lower 1/3. Radius & ulna completely cut attached with post skin only. Right hand was hanging. • Incised wound 6 c.m. x 1 c.m. x 1 c.m. over right arm middle 1/3 lateral. • Incised wound 6 c.m. x 0.3 c.m. x 0.5 c.m. over right hand palmer side. • Incised wound 5 c.m. x 1 c.m. x 1 c.m. over left knee joint medially. • Stab wound 0.8 c.m. x 0.3 c.m. x 0.5 c.m. over left mid skin. • Incised wound 5 c.m. x 1 c.m. x 1 c.m. over upper 1/3 of right lower limb lateral. • Stab wound 1 c.m. x 0.3 c.m. x 0.3 c.m. over right knee joint anterior. • Mode of death of Dukalu was shock as a result of excessive haemorrhage. Injured Shankar was also examined by Dr. S. Chandravanshi (PW-13) vide Ex.P-22 and following injuries were found: - • Incised wound 3.5 c.m. x 1.5 c.m. x 1 c.m. over right elbow joint, bone was visible. • Lacerated wound 2 c.m. x 0.5 c.m. x 0.2 c.m. over right forearm upper 1/3 posteriorly. 7 CRA No 1503/2024 • Haematoma 5 c.m. x 5 c.m. over left forearm upper 1/3 dorsally, contusion 5 c.m. x 1 c.m. blackish in colour over haematoma. • Contusion 4 c.m. x 1 c.m. over right middle thigh, middle 1/3 laterally, blackish. • Contusion 3 c.m. x 0.5 c.m. over right lower limb middle 1/3, blackish, laterally. X-ray of Shankar was conducted. Fracture of middle shaft of left ulna and lateral condyne of right humerus bone were found vide Ex.P-23. Injured Shanti was also examined by Dr. S. Chandravanshi (PW- 13) vide Ex.P-24 and following injuries were found: - • Incised wound 1 c.m. x 0.2 c.m. x 0.2 c.m. over left parietal region. • Incised wound 3 c.m. x 0.2 c.m. x 0.2 c.m. over left arm middle 1/3 laterally. • Lacerated wound 0.7 c.m. x 0.2 c.m. x 0.1 c.m. over left middle finger tip. • Haematoma 2 c.m. x 2 c.m. over right forearm upper 1/3 dorsally. • Haematoma 4 c.m. x 4 c.m. over left forearm middle 1/3 dorsally. • Haematoma 1 c.m. x 1 c.m. at the base of left thumb dorsally. • Haematoma 2 c.m. x 2 c.m. over left lower limb, 8 c.m. above left ankle joint, laterally. • Haematoma 2 c.m. x 2 c.m. over right lower limb, 10 c.m. above right ankle joint, laterally. 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, 8 CRA No 1503/2024 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 five 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 only Shanti Bai (PW-3) & Shankar (PW-4) have told the name of the appellants and have stated that they were also present, but they have not specifically deposed as to what role the appellants have played. In absence of any part played by them, mere their presence is not sufficient for drawing inference that they formed unlawful assembly along with other accused persons with common object to commit murder of Ravi & Dukalu and causing fatal injuries to other persons, and in furtherance of common object of unlawful assembly, they along with other members have caused the aforesaid offence. (ii) Learned counsel for the appellants further argues that the appellants were having inimical terms with the complainant party. 9 CRA No 1503/2024 Deceased Ravi, deceased Dukalu & deceased Ranjeet (deceased in another case) were having inimical terms with so many persons, so many criminal cases were pending against them, they were having criminal antecedents and they have been murdered by goondas on the date of incident, but on account of enmity, respective wives of the deceased persons and their close relatives have falsely implicated the appellants. The appellants have not caused any injury, they have not formed unlawful assembly having its common object of committing murder of Ravi & Dukalu and fatal injuries to other persons including Shankar & Shanti Bai. Evidence of highly interested witnesses do not inspire confidence, their evidence are not trustworthy and safe to rely. (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 persons 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 opposes the submissions of the counsel for the appellants and submits that evidence of Nagi Bai (PW-1) (now dead), mother of Dukalu and Tai (Badi Mummi of Ravi), Shanti Bai (PW-3), wife of Dukalu, Shankar (PW-4), nephew of the deceased person & Seema Bai (PW-19), wife of Ranjeet are sufficient for drawing inference that the appellants along with co-accused has formed unlawful assembly, they were armed with deadly weapons and 10 CRA No 1503/2024 in furtherance of common object of unlawful assembly they committed murder of Ravi & Dukalu and injuries to other persons. (B) Learned counsel would submit that the appellants formed unlawful assembly, they were armed with deadly weapons and after committing house breaking in night, and in furtherance of the common object of unlawful assembly, they committed culpable homicide amounting to murder of three persons and have attempted to commit murder of Nagi Bai and also caused injuries to Seema Bai, Shanti Bai and Shakar. As such, the trial Court has rightly convicted & sentenced the appellants. 11. We have heard learned counsel for the parties and perused the record with utmost circumspection. 12. In the present case, homicidal death of Ravi & Dukalu as a result of fatal ante-mortem injuries, fatal injuries to Shankar and simple injuries by sharp edged weapon to Shanti Bai, have not been substantially disputed on behalf of the appellants, otherwise also established by the evidence of Dr. S. Chandravanshi (PW-13), autopsy report of Ravi Ex.P-20, autopsy report of Dukalu Ex.P-21, injury report of Shankar Ex.P-22, X- ray report Ex.P-23 and injury report of Shanti Bai Ex.P-24, X-ray report Ex.P-25, that death of Ravi & Dukalu are homicidal in nature and injuries caused to Shankar & Shanti Bai are fatal to life. 13. As regards complicity of the appellants in the crime in question, according to the case of the prosecution, firstly all the accused persons entered into the house of Ranjeet after committing house breaking by 11 CRA No 1503/2024 night and committed culpable homicide amounting to murder of Ranjeet as of result the FIR was registered. After committing murder of Ranjeet, all the accused persons went to the house of Ravi & Dukalu and committed their murder (the present offence). Both the offences were investigated simultaneously by the same Investigating Officer and charge sheet was filed before the same Magistrate who had committed the cases to the Court of Sessions. 1st Additional Sessions Judge, Mahasamund had tried both the sessions trials viz., S.T.Nos.423/2003 & 424/2003 (the instant case) and convicted & sentenced the appellants in both the sessions trials. Learned Additional Sessions Judge has convicted & sentenced the appellants herein in S.T.No. 31/2019 for commission of murder of Ranjeet and for attempting to commit murder of Nagi Bai after forming unlawful assembly armed with deadly weapons and after committing house breaking by night. After commission of the aforesaid offence, the appellants herein have committed the present offence i.e. murder of Ravi & Dukalu. Witnesses in both the sessions trials have substantially deposed against the appellants, only their number and chronological order of documents are different. 14. Cr.A.No 1499/2004 has been filed by the appellants herein against their conviction recorded in S.T.No. 31/2019 (in respect murder of deceased Ranjeet) which is being disposed of today by a separate judgment. 15. Conviction is substantially based on the evidence of eyewitnesses. Nagi Bai (PW-1) – mother of deceased Dukalu, sister of mother of deceased 12 CRA No 1503/2024 Ravi and mother of another deceased Ranjeet, has deposed in her evidence that between 2-2.30 a.m. at night while she was sleeping in her house, appellant Punit along with other accused persons Vijay, Nand Kishore, Santoshi & others came to her house i.e. house of Ranjeet where they assaulted Ranjeet, herself & wife of Ranjeet Seema Bai (PW-19). Ranjeet died on the spot and then she fled towards the village. Thereafter, the appellants & accused persons went to the house of Dukalu where they caused serious injuries to Dukalu and killed Ravi. 16. Seema Bai (PW-19) – wife of deceased Ranjeet has deposed in her evidence that at the time of incident, accused Arjun, Kondi, Phool Singh, Punit & Dinesh, Girdhari, Nand Kishore, Chinna, Neelkanth, Daulu, Dharmu, Kodu Raju, Baiga Raju, Babu, Pintu, Ganesi, Yashoda & Santoshi came, they were holding dangerous weapons, they came inside their house after jumping wall and they assaulted Ranjeet & herself and then she fled towards the house of Dukalu. The accused persons chased and reached to the house of Dukalu where they killed Ravi and caused fatal injuries to Dukalu, Shankar & Shanti Bai. 17. Both the witnesses viz., Nagi Bai (PW-1) & Seema Bai (PW-19) had witnessed first part of the incident. In the present case, injured witness Krishna alias Krishna Kumar (PW-2) (now dead) – brother of Ranjeet has deposed that on the date of incident he was sleeping in the house of Ranjeet, accused Arjun, Phool Singh, Dinesh & other accused persons assaulted Ranjeet, and one person took him to a safe place (field) and thereby he was saved. 13 CRA No 1503/2024 18. To prove the second part of incident which is the dispute in the present case, Shanti Bai (PW-3) – wife of Dukalu, who was present in the house of Dukalu at the time of commission of incident, has deposed that on the fateful night Dukalu & Ravi were present in the house, between 2-2.30 a.m. (mid night) accused Girdhari, Nand Kishore & others started causing injuries to Ravi on which Ravi cried for help; at that time, Girdhari, Nand Kishore, Babu, Budha Arjun, Potraju, Bada Arjun, Dinesh, Arjun, Phool Singh, Yashoda, Ganesi, Kondi Bai, Santoshi, Daulu, Neelkanth, Punit, Pintu & Vijay were present in her house; they were holding sword, rod, dagger, naanchaku, stick, axe, betel axe & bhujali; they assaulted Ravi; when she came out of her room and put on the light, they assaulted her also. Baiga Raju assaulted her over her left hand. Dukalu closed the door from inside on which the accused persons broke the door, entered into the room and assaulted Dukalu. The accused persons chopped hands & legs of Dukalu. They also assaulted Shankar and chopped his hand. They also assaulted her mother-in-law Nagi Bai. 19. Injured witness Shankar (PW-4), who was sleeping in another room of deceased Dukalu’s house, has also corroborated the evidence of Shanti Bai (PW-3) and has admitted the presence of appellants Punit, Phool Singh & other accused persons holding weapons and assaulting Dukalu & Ravi. He has stated that the accused persons assaulted him also. 20. Kanta Bai (PW-5) – wife of deceased Ravi has substantially corroborated the evidence of Shanti Bai (PW-3) and has deposed that the 14 CRA No 1503/2024 accused persons have assaulted her husband Ravi on which he shouted for help. Punit, Neelkanth, Daulu, Nand Kishore, Girdhari, Chinna, Pintu, Babu, Dinesh & Ganesh were assaulting her husband with axe, sword, hockey stick, dagger & crowbar on which she flee to her aunt’s village Auradabri, but again she met the accused persons on the way and she came back to her house. 21. Defence has cross-examined Kanta Bai (PW-5) in detail, but she was stuck to her version that she has seen the incident and the accused have killed her husband Ravi. Defence has also cross-examined Shanti Bai (PW-3) & Shankar (PW-4) in detail, but they have specifically and categorically deposed that the accused were present at the time of commission of offence, they assaulted Ravi & Dukalu brutally and chopped their hands & legs and also assaulted Shanti Bai (PW-3) & Shankar (PW-4) and caused fracture of hand of Shankar (PW-4). Shanti Bai (PW-3) & Shankar (PW-4) are injured & relative witnesses and as per the evidence of the prosecution they were having grudge & enmity against the appellants, but their evidence cannot be discarded only on account of their relation and enmity, only minute scrutiny of their evidence is required. 22. 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 1 AIR 1953 SC 364 15 CRA No 1503/2024 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.” 23. While dealing with same question, the Apex Court in the matter of Ashok Kumar Chaudhary & Ors. v. State of Bihar2 has held thus: “……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 2 2008 AIR SCW 3739 16 CRA No 1503/2024 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.” 24. 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 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 3 2009 AIR SCW 2250 17 CRA No 1503/2024 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 decision of this Court in Avtar Singh (supra) stands on a completely different footing.” 25. 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, 4 2009 AIR SCW 1486 18 CRA No 1503/2024 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.” 26. 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. 27. 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 19 CRA No 1503/2024 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. 28. 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 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 5 JT 2002 (4) 62 20 CRA No 1503/2024 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 victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred.” 29. 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. 30. While dealing with same question, the Apex Court in the matter of 6 (2009) 10 SCC 773 21 CRA No 1503/2024 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 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.” 31. 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 7 AIR 1965 SC 202 8 1991 Supp (2) SCC 437 22 CRA No 1503/2024 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…….” 32. 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 (supra) 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. 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 23 CRA No 1503/2024 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 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. 24 CRA No 1503/2024 However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. 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.” 25 CRA No 1503/2024 33. While dealing with the question of intention/common object of unlawful assembly, the Apex Court in Dan Singh’s case (supra) 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 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 26 CRA No 1503/2024 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 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 27 CRA No 1503/2024 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.” 34. 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 (supra) 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 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 28 CRA No 1503/2024 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 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 29 CRA No 1503/2024 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 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 30 CRA No 1503/2024 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 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 31 CRA No 1503/2024 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 Gowda v. State of Mysore, AIR 1956 SC 731 : 1956 Cri LJ 1365.)” 35. 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 32 CRA No 1503/2024 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. 36. In the light of the law propounded by the aforesaid authorities, we have examined the evidence adduced on behalf of the prosecution. Evidence adduced on behalf of the prosecution is sufficient to establish the fact that all the appellants along with 15-20 other persons were present at the time of commission of offence between 2-2.30 a.m. at night in the house of Ravi & Dukalu, they had caused brutal injuries resulting into death of Ravi & Dukalu by dangerous weapons and have also attempted to commit murder of Shankar. In the present case, all the appellants including other co-accused persons were present in the house of Dukalu & Ravi at 2.30 at night after committing house breaking by night, they have killed Dukalu & Ravi and also caused fatal injuries to Shankar with deadly weapons. Presence of the appellants at 2.30 a.m. in the house of Ravi & Dukalu was otherwise not natural and there was no cause for their presence, the appellants had not gathered to see the incident committed by other persons after hearing the cries or they were not present on the spot to save the deceased & injured persons. Presence of the appellants along with other persons, commission of murder of Ravi & Dukalu by such unlawful assembly and fatal injuries to Shankar clearly establish that the appellants along with other persons have formed unlawful assembly having its common object to commit the murder of Ravi & Dukalu and to cause fatal injuries to Shankar after 33 CRA No 1503/2024 house breaking, and in furtherance of common object of the unlawful assembly the appellants & other persons, who were armed with deadly weapons, have committed the aforesaid offence. In these circumstances, the prosecution is not required to prove specific part played by the appellants and the role attributed to them or their overt act, and the appellants are liable with the aid of Section 149 of the I.P.C. for commission of aforesaid offence. 37. In the present case, the prosecution has proved presence of the appellants 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. 38. Despite non-consideration of evidence of dead persons i.e. Nagi Bai (PW-1) and Krishna @ Krishna Kumar (PW-2), then also from the evidence of other witnesses including the evidence of Shanti Bai (PW- 3), wife of the deceased Dukalu, it is crystal clear that the prosecution has established its case beyond all reasonable doubt and presence of the appellants has been proved at the place of occurrence. 39. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellants in the aforesaid manner. Conviction & sentences of the appellants are based on credible, clinching & legal evidence sustainable under the law. The appellants after forming unlawful assembly had committed brutal murder of two persons in the present case and committed murder of 34 CRA No 1503/2024 Ranjeet (in another case). The trial Court has not committed any illegality in convicting and sentencing the appellants. On close scrutiny of evidence, we do not find any illegality in the judgment impugned. 40. 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. 41. 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