B. Seshasayana Reddy, J.
1. These two Criminal Appeals are directed against the judgment dated 21-1-2002 passed in S.C. No. 53 of 2000 on the file of IV Additional Sessions Judge, Kurnool, by which the learned Additional Sessions Judge convicted A-1-Ediga Jagannadha Gowd, A-3-Ediga Venkateswara Gowd, A-4-Ediga Sivasankara Gowd, A-5-Ediga Anjaneya Gowd and A-6-Ediga Nageswara Gowd for the offences punishable under Sections-302 read with 149 of Indian Penal Code and sentenced each of them to suffer imprisonment for life and further convicted A-1 for the offence under Section 324 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for a period of one year. However, the learned Additional Sessions Judge found A-2-Ediga Saibaba Gowd, A-7-Ediga Narashimha Gowd, A-8-Ediga Maddileti Gowd, A-9-Vadde Madduleti, A-10-Vadde Thimmanna alias Thimmulu, A-11-Vadde Venkateswarly, A-12-Shalanna alias Vadde Shalanna, A-13 Vadee Ramudu, A-14-Madiga Sekhar, A-15-Madiga Karunakar, A-16 Madiga Yerramala, A-17-Madiga Jetti Mallaiah, A-18-Pedda Shamulu alias Shafa and A-19-Vadde Maddileti alias Chevulodu not guilty for any of the offences with which they stood charged and acquitted them accordingly. Criminal Appeal No. 282 of 2002 is filed by A-1, A-3 to A-6 assailing the judgment of conviction whereas Criminal Appeal No. 1023 of 2003 is filed by the State assailing the acquittal of A-2, A-7 to A-19.
2. The accused persons (19) were put on trial before the IV Additional Sessions Judge, Kurnool for the offences punishable under Sections-148, 302, 302 read with 149, 324, 324 read with 149 of Indian Penal Code. The gravamen of the charge against the accused is that on 6-9-1994 at about 4.30 p.m. at Chowtukuru village, all the accused formed themselves into an unlawful assembly armed with knives and daggers with the common object of murdering Baleeswara Reddy, and in furtherance of their common object, they caused the death of the said Baleeswara Reddy and also caused injuries to P.W. 2-M. Koteswara Reddy.
3. The case of the prosecution is briefly as follows :--
Madireddy Baleeswara Reddy, Ediga Janardhana Reddy, Madireddy Venugopala Reddy, Madireddy Gangadhara Reddy and Madireddy Purushothama Reddy are brothers. P.W. 1-Nagavendramma is brother's wife, P.W. 2-M. Koteswara Reddy is son and P.W. 3-Madireddi Vengala Reddy is nephew of Baleeswara Reddy. In 1997 Janardhana Reddy was murdered, for which A-1, A-2, A-5, A-7, A-9, A-10 to A-12 were challaned. Baleeswara Reddy and his brothers were supporters of Congress party whereas the accused were supporters of Telugu Desam party. Because of political rivalry there was bitter enmity between Baleeswara Reddy (hereinafter referred to as the deceased) and the accused party. A day prior to the incident i.e. on 5-9-1999, the State Assembly Polls took place. The deceased and his brothers canvassed and cast their votes to the Congress party in Assembly elections. On 6-9-1999 at about 4.30 p.m., P.Ws. 1 to 3 and one Mohan Reddy were canvassing on the pials in the verandah of P.W. 1's house. While so, A-1 to A-19 armed with knives and daggers came there and A-1 challenged the deceased about his active participation in the Congress party and getting votes polled for the said party against the wish of his party and also challenged him as to who could save if they kill him. So saying he along with A3 climbed the pail and attacked the deceased. A-1 allegedly hacked the deceased with a knife thrice on his neck causing bleeding injuries and A-3 hacked the deceased on his forehead causing a bleeding injury. It is also alleged that A-4 to A-6 dragged the deceased from the pial to a distance of about 10 feet where A-4 stabbed him with a dagger on right side abdomen and A-5 stabbed him with a dagger on left side abdomen and A-6 stabbed him with a dagger on his back. When P.Ws. 1 to 3 tried to intervene, the accused allegedly threatened them with dire consequences. However, P.W. 2 intervened to rescue the deceased his father and thereupon A-1 beat him on his forehead and right fingers causing bleeding injuries. Thereafter, all the accused left the place. The deceased succumbed to the injuries on the spot. P.W. 8-P. Narayana, Inspector of Police, Nandikothkur was camping at Midthur Police Station on 6-9-1999. At about 7 p.m., he received vague information about the murders in Chowthkuru village located at a distance of 18 to 20 kilometers from Midthur. He rushed to the village and saw the dead body of the deceased at the house of P.W. 1. He received Ex. P-1 -report from P.W. 1 at about 8 p.m., and sent it to Midthur Police Station through the Head Constable No. 2128. P.W. -7-Y.R. Srinivasa Reddy, Sub-Inspector of Police, Midthur Police Station received Ex. P-1 report at about 9 p.m., registered a case in Cr. No. 51 of 1999 and issued Ex. P-5 First Information Report. P.W. 8 received copy of the First Information Report and took up investigation and posted guard at the scene of offence. On 7-9-1999 at about 7 a.m., he conducted inquest on the dead body of the deceased, examined P.Ws. 1 to 3 and one Mohan Reddy and recorded their statements. During the course of inquest, he effected seizure of M.O.-1-blood stained white full pancha, M.O.-2-blood stained white banian, M.O.-3-blood stained blue colour drawer, M.O.-4-Red waist thread. M.O.-5-blood stained earth and M.O.-6-controlled earth. While observing the scene of offence, he also prepared rough sketch of the scene, which has been exhibited as Ex. P-6. After the inquest, he sent the dead body of the deceased to the hospital for the post-mortem examination. Since P.W. 2 had injury on his person he was referred to Government hospital for treatment. P.W. 5-Dr. G. Thirupal Reddy, Medical Officer, examined P.W. 2 on 8-9-1999 at 1.30 p.m. and found the following injuries on his person :--
'(1) Incised injury over palmar aspect of left thumb. 2.5 cm x 0.5 cm x skin deep (cm) edges clear cut;
(2) Incised injury over middle of left hypothenaliniminance 3.5 cm x 1/2 cm x 1/2 cm x skin deep, edges clean cut and
(3) Incised injury over right forehead 2 cm x 1/2 cm x skin deep edges clean cut.'
He classified the injuries as simple in nature and issued Ex. P-3-Wound Certificate. P.W. 6-Dr. M. Naga Rao conducted post-mortem examination on the dead body of the deceased on 7-9-1999 at 1.10 p.m. and found the following external ante mortem injuries:--
(1) A cut laceration over left side of neck 18 x 20 x 6 cms. In its depth muscles, blood vessels and nerves are cut.
(2) Cut laceration over upper part of frontal region 5 x 2 cms x bone deep;
(3) Stab injury over abdomen left side peritoneal of loops of intestines 4 x 2 cms x bone peritoneal cavity depth;
(4) Cut injury over front of abdomen scalp deep 4 x 2 cms and
(5) Scratch of 16 cms linear, vertical over back of chest.
He opined that the deceased died of shock and haemorrhage due to multiple injuries. He further opined that injury Nos. 1, 2 and 4 would have been caused by sharp object like knife and injury No. 3 would have been caused by sharp edged weapon like dagger and injury No. 5 would have been caused with tip of a sharp edged object. Ex. P-4 is Post-mortem report issued by him. P.W. 8 arrested A-7 on 27-9-1999 and sent him for remand. Other accused surrendered themselves before the Judicial First Class Magistrate, Nadikotkur and consequently, they came to be remanded to judicial custody. All the material objects came to be forwarded to Forensic Science laboratory through Judicial First Class, Nandikotkur. Ex. P-7 is the letter of Advice. Ex. P-8 is F.S.L. report. After completion of investigation, P.W. 8 laid charge-sheet in the Court of Judicial First, Class Magistrate, Nandikotkur. The learned Magistrate took the charge-sheet on file as P. R. C. No. 47 of 1999 and committed the case to the Court of Session as the offence under Section 302 of Indian Penal Code is exclusively triable by the Sessions Court. On committal the learned Sessions Judge. Kurnool, took the case on file as S. C. No. 53 of 2000 and made over the same to the IV Additional Sessions Judge, Kurnool for disposal according to law. On hearing the prosecution and the accused, the learned Additional Sessions Judge framed the following charges:--
Charge No. 1: against A-1 to A-19 for the offence of rioting armed with deadly weapons punishable under Section 148 of Indian Penal Code.
Charge No. 2: against A--1, A- 3 to A-6 for the offence of murder punishable under Section 302 of Indian Penal Code.
Charge No. 3: against A-2, A-7 to A-19 under constructive liability for the offence of murder punishable under Section 302 read with 149 of Indian Penal Code.
Charge No. 4: against A--1 for causing simple hurt to P.W. 2 punishable under Section 324 of Indian Penal Code and Charge No. 5: against A-2 to A-19 under constructive liability for causing simple hurt to P.W. 2 for the offence punishable under Sections 324 read with 149 of Indian Penal Code.
The accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused with which they stood charged, the prosecution examined P.Ws. 1 to 8 and marked Exs. P-1 to P-8 and M.Os. 1 to 6. On behalf of the accused neither ocular nor documentary evidence was adduced. The learned Additional Sessions Judge, on appreciation of the evidence brought on record, found A-1, A-3 to A-6 guilty for the offence punishable under Sections 302 read with 149 of Indian Penal Code and found A-1 further guilty for the offence under Section 324 of Indian Penal Code and convicted them accordingly, while finding A-2, A-7 to A-19 not guilty for the offences with which they stood charged and acquitted them accordingly. Assailing the judgment of conviction, A-1, A-3 to A-6 filed Criminal Appeal No. 282 of 2002 whereas the State filed Criminal Appeal No. 1023 of 2003 questioning the acquittal of A-2, A-7 to A-19.
4. Since both the Criminal Appeals arise out of the judgment passed in S. C. No. 53 of 2000, they are being disposed of under the common judgment. For the sake of convenience, the accused hereinafter referred to as they are arrayed in S. C. No. 53 of 2000.
5. Learned Senior Counsel appearing for the accused submits that P.Ws. 1 to 3 are highly partisan and interested witnesses and therefore, no implicit reliance can be placed on their testimony. It is also submitted by him that there is delay in lodging the report and it creates any amount of suspicion in the version of the incident stated by P.W. 1 in Ex. P-1 report. It is also submitted by him that the injuries found on the deceased do not tally with the ocular testimony of P.W. 1 and therefore, the highly interested testimony of P.Ws. 1 to 3 deserves to be rejected. His further submission is that non-examination of P.Ws. 1 to 3 on the night of the incident creates any amount of suspicion in the story woven by P.Ws. 1 to 3 during the course of investigation. His another submission is that the time gap has been used by the prosecution party to implicate the accused by taking advantage of the earlier enmity they had with them. He also tried to impress upon the Court by drawing our attention to the time of receipt of the copy of the First Information Report by the Area Magistrate that the First Information Report came to be fabricated after due deliberations. In support of his submissions he placed reliance on the following decisions in Ranbir Yadav v. State of Bihar, : 1995CriLJ2665 ; Purushotham v. State of Madhya Pradesh, : 1980CriLJ1298 ; Mallappa v. State of Karnataka, 1995 SCC (Cri) 414; Amar Singh v. State of Punjab, : 1987CriLJ706 ; Awadhesh v. State of Madhya Pradesh, : 1988CriLJ1154 ; State of Madhya Pradesh v. Surbhan, (1996) 2 Andh LT (Cri) 96 : (1996 Cri LJ 3199) (SC); Chandra Bihari Gautam v. State of Bihar, (2002) 2 Andh LJ (Cri) 4 : (2002 Cri LJ 2541) (SC); Anil Rai v. State of Bihar with Subash Chandra Rai v. State of Bihar with Awani Rai v. State of Bihar, AIR 2001 SC 3173 : (2001 Cri LJ 3969);; V, Sathyamaiah v. State of Andhra Pradesh, (1978) 1 APLJ 83 and Bajwa v. State of Uttar Pradesh, 1975 Mad LJ (Cri) 54 : (1973 Cri LJ 769) (SC).
6. Per contra, learned Public Prosecutor submits that P.Ws. 1 to 3 are natural witnesses since the incident occurred at their house and therefore, the trial Court is justified in placing reliance on their testimony to record conviction of A-1 and A-3 to A-6. She further submits that the trial Court having accepted that the accused formed themselves into an unlawful assembly with the common object of doing away with the life of Baleeswara Reddy committed error in not recording the conviction of A-2 and A-7 to A-19 by invoking Section 149 of Indian Penal Code i.e. constructive liability for the offences under Sections 302 and 324 of Indian Penal Code. She further submits that lapses on the part of the Investigating Officer in not recording the statements of P.Ws. 1 to 3 on the night of 6-9-1999 cannot be a ground to reject their testimony. Her further submission is that in case of conflict between the medical evidence and ocular evidence, the latter is to be preferred. In support of her submissions, she placed reliance on the following decisions in Gangadhar Behara v. State of Orissa, 2003 SCC (Cri) 32 : (2002 Cri LJ 41); Chanakya Dhibar (Dead) v. State of West Bengal, (2004) 1 Andh LD (Cri) 343 (SC); Yunis alias Kuriya v. State of Madhya Pradesh, : 2003CriLJ817 : (2003 Cri LJ 817); Gurdev Singh v. State of Punjab, 2003 SCC (Cri) 1616 : (2003 Cri LJ 3764); State of Uttar Pradesh v. Sikandar Ali, 1998 (1) ALD 735 (sic).
7. The incident occurred at the house of P.W. 1. P.W. 8 lifted bloodstained slab stone and controlled slab stone while observing the scene of offence and sent them along with other material objects to the Forensic Science Laboratory for report. Ex. P-8 is the F.S.L. report. As per the report, the bloodstains found on slab stone are of 'AB' group, which tally with the group of blood found on the clothes of the deceased. Therefore, there cannot be any dispute with regard to the scene of offence. P.W. 2 is son and P.W. 3 is nephew of the deceased. It is the evidence of P.Ws. 1 to 3 that they were conversing with the deceased at the time of incident. It is the evidence of P.W. 2 that when he tried to rescue the deceased, A-1 beat him with a knife causing injury on his left thumb. P.W. 5-Dr. G. Thirupal Reddy, Medical Officer examined P.W. 2 on 8-9-1999 at 1.30 p.m. and found three incised injuries on his person and classified the injuries as simple in nature. Ex. P-3 is the Wound certificate. P.W. 1 presented Ex. P-1-report before P.W. 8, who arrived on the scene on coming to know of the incident at 8 p.m. P.W. 1 mentions in Ex. P-1-report that apart from P.Ws. 2 and 3, one Mohan Reddy witnessed the incident. Therefore, the presence of P.Ws. 1 to 3 at the time of incident cannot be disputed. Since the incident occurred at the house of P.W. 1, P.Ws. 1 to 3 are the natural witnesses to speak of the occurrence. P.Ws. 1 to 3 attributed specific overt acts to A-1, A-3 to A-6. P.W. 1 admits in his cross-examination that the offence took place within five or six minutes and the accused against whom no overt acts attributed were standing on either side of the house. For better appreciation, we may refer the cross-examination of P.W. 1 in his own words, which is thus :--
'The entire offence took place within 5 or 6 minutes. Other than the accused against whom the overt acts are attributed the other accused in this case were standing on either side of my house, some people towards the eastern rastha and some people towards west. I did not request any of P.Ws. 2, 3 and Mohan Reddy to rush towards the agricultural lands to inform the news of murder to the two other brothers of the deceased.'
8. Had A-2, A-7 to A-19 shared the common object of the other accused, who inflicted injuries on the deceased, they would not have stayed at the scene as mere spectators. To make A-2, A-7 to A-19 also liable for the murder of the deceased-Baleswra Reddy, P.Ws. 1 to 3 made an omnibus allegation that all the accused threatened them with dire consequences when they ventured to go in rescue of the deceased. Had really, A-2, A-7 to A-19 shared the common object; they would not have allowed P.W. 2 to move forward to rescue the deceased. It was only A-2, who was taking active part in assaulting the deceased prevented P.W. 2 to go in rescue of his father the deceased. In these circumstances, it cannot be said that A-2, A-7 to A-19 shared the common object of the unlawful assembly. The trial Court considered the evidence on this aspect in right perspective and recorded acquittal of A-2, A-7 to A-19. We see no ground to interfere with the acquittal of A-2, A-7 to A-19.
9. Learned Senior Counsel appearing for the accused contends that there is delay in submitting the report with regard to the incident and the said delay has been utilized by the prosecution party to implicate the accused after due deliberations. It is nextly submitted by him that abnormal delay in sending the report to the Magistrate is another factor which creates any amount of doubt on the account of the incident stated by P.W. 1 in Ex. P-1. We do not see any merit in his contention for the reason that P.W. 8 reached the scene of offence by 7 p.m. and thereupon P.W. 1 presented Ex. P-1-report before him and the said report came to be sent to the Station House Officer, Midthru, who received it at 9 p.m. through H. C. No. 2128, registered a case in Cr. No. 51 of 1999 and issued Ex. P-5. Two family members of the prosecution party were killed within a gap of half-an-hour on the date of the incident. The distance between the Police Station and the scene of offence is about 18 to 20 kilometers vide the evidence of P.W. 8. In these circumstances, no one in the family of the deceased could be expected to move out from the village to present a report before the Police. The copy of the First Information Report reached the Area Magistrate on 7-9-1999 at 10 a.m. Nothing is elicited in the cross-examination of P.W. 7 who registered the crime or P.W. 8 who investigated the case with regard to distance between Midthur Police Station and Nandikotkur wherein the Courthouse is situated.
10. It is well settled that delay in sending the copy of report to Magistrate by itself does not render whole of the prosecution case doubtful vide the decision of Supreme Court in Bijoy Singh v. State of Bihar, : 2002CriLJ2623 . Section 157, Cr. P. C. provides sending a copy of the First Information Report to the Area Magistrate. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to enable to control the investigation and if necessary to give appropriate direction under Section 159 of Code of Criminal Procedure. But where the First Information Report is shown to have actually been recorded without delay and investigation stated on the basis of First Information Report, the delay in sending the copy of the report to the Magistrate cannot itself justify the conclusion that the investigation was tainted and the prosecution insupportable vide the decision of Supreme Court in Anil Rai v. State of Bihar, 2001 SCC (Cri) 1009 : (2001 Cri LJ 3969).
11. The evidence brought on record clearly establishes that the investigation had commenced even before the Area Magistrate received the copy of the First Information Report. Therefore, delay in sending the copy of the report to the Area Magistrate is not a ground to throw out the prosecution case in its entirety.
12. Learned Senior Counsel appearing for the accused submits that the ocular evidence of P.Ws. 1 to 3 does not tally with the medical evidence and therefore, no implicit reliance can be placed on their testimony. He drew our attention to Ex. P-4-Post-mortem report to appreciate his contention. He also placed reliance on the decision of the Supreme Court, reported in State of Madhya Pradesh v. Surbhan, (1996) 2 Andh LD (Cri) 96 ; (1996 Cri LJ 3199). In the cited case, the Supreme Court was dealing with a sole child eye-witness to the incident. The sole eye-witness stated therein that the accused beat only one blow on the deceased whereas the medical evidence indicated that the deceased sustained three incised injuries. Basing on those facts, the Supreme Court observed in para No. 6 of the above referred judgment as follows :--
'A reading of the medical evidence clearly indicates that three incised wounds were inflicted upon the deceased, one on the nape of the neck, another on the left side of mandible and third on the left side of the elbow joint. In other words, there are three separate injuries inflicted upon the deceased, by three separate blows but P.W. 2 does not speak of the accused having inflicted those three injuries. Prosecution case is that the accused-respondent had inflicted the injury only once and that too from behind. The single blow cannot cause three incised injuries of different dimensions at three different places. Under these circumstances, the High Court had not placed implicit reliance on the evidence of P.W. 2. If the evidence of P.W. 2 is excluded from consideration, we do not find any other evidence to support the prosecution case.'
Coming to the facts of the case on hand, P.W. 1 stated that A-1 hacked the deceased with a knife thrice on neck, A-3 hacked the deceased with knife on his forehead, A-5 stabbed him with a dagger on his abdomen. A-6 stabbed him on his back with a dagger. P.W. 2 stated that A-1 hacked the deceased with a knife twice on neck, A-3 hacked him on forehead and A-4 stabbed him on the right side of abdomen, A-5 stabbed him on the left side of the abdomen, A-6 stabbed him with a dagger on his back. P.W. 5 stated that A-1 hacked the deceased with knife twice or thrice on neck, A-3 hacked him on forehead, A-4 stabbed him on right side of abdomen, A-5 stabbed him with dagger on left side of abdomen and A-6 stabbed him on his back. P.W. 6 is the post-mortem doctor. He noticed five external injuries on the dead body. The injuries noted by him are as follows :--
'(1) A cut laceration over left side of neck 18 x 10 x 6 cms. In its depth muscles, blood vessels, and nerves are cut.
(2) Cut laceration over upper part of frontal region 5 x 2 cms x bone deep,
(3) Stab injury over abdomen left side peritoneal of loops of intestines 4 x 2 cms x bone peritoneal cavity depth,
(5) Cut injury over front of abdomen scalp deep 4 x 2 cms and scratch of 16 cms linear, vertical over back of chest.'
13. By referring the evidence of P.Ws. 1 to 3 and Ex. P-6, the learned Senior Counsel contends that overt acts attributed to A-1 cannot be believable for the reason that the deceased had only injury on the neck. In Ex. P-1 -report P.W. 1 stated that A-1 and A-3 dealt blows on the deceased on left side of the neck and front of the face. The allegation is specific that A-1 and A-3 dealt one blow each on the deceased on the neck and front of the head respectively. The evidence of P.Ws. 1 to 3 that A-1 dealt blows twice or thrice on the neck is a little bit exaggeration. Merely because P.Ws. 1 and 3 exaggerated the overt acts of A-1 with regard to number of blows, it cannot be a ground to reject their testimony. This discrepancy with regard to number of blows does not in any way affect the credibility of P.Ws. 1 to 3. We are of the view that the discrepancy with regard to number of blows on the neck is not a material discrepancy in the circumstances of the case. The witnesses are specific that A-1 is the person who dealt blows on the neck of the deceased and the same is corroborated by the medical evidence.
14. It is nextly contended by the learned Senior Counsel that the overt acts attributed to A-6 is not corroborated by medical evidence. Therefore, he is entitled for acquittal. Learned Public Prosecutor submits that A-1 being member of unlawful assembly, his membership itself is sufficient to make him liable for the act of any member of the unlawful assembly. Learned Public Prosecutor submits that overt acts test need not be applied to the facts of the case. Let us examine whether overt act attributed to A-6 is supported by medical evidence. It is consistent version of P.Ws. 1 to 3 that A-6 stabbed the deceased with a dagger on his back. As seen from the post-mortem report which has been exhibited as Ex. P-4 and the evidence of post-mortem Doctor, the deceased had no injury on his back. It can be said without any controversy that overt acts attributed to A-6 is supported by the post-mortem report.
15. Applicability of constructive liability would depend on the facts of each case. 'Common object' is different from a 'common intention' as it does not require a prior consent 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 offence. 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 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 at the spot eo instanti.
16. Section 149, I.P.C. consists of two parts. The first part of the Section means that the offence to be committed in prosecution of 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 fall under Section 141 I.P.C., 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. An object is entertained in the 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 assembly, arms it carried and behaviour at or before or after the scene of incident. The applicability of Section 149, I.P.C. would depend on the facts of each case. Common object as contemplated by Section 149 of the I.P.C. does not require prior consent or meeting of minds before the attack. Generally no direct evidence is available regarding the existence of common object which, in each case, has to be ascertained from the attending facts and circumstances. The question whether the members shared the common object to cause the murder of the deceased has to be decided on the basis of the nature of weapons used by such members, the manner and sequences of attack made by them on the deceased and the settings and surroundings under which the occurrence took place.
17. The scope of Section 149, I.P.C. has been explained by the Supreme Court in various judgments holding that application of Section 149, I.P.C. would be highly unsafe unless it is positively proved that each one of the accused shared the common object and accordingly participated in the occurrence. In Masalti v. State of U. P., : [1964]8SCR133 it was observed : [1964]8SCR133 :
'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, I.P.C. Section 142 provides that however, 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 in 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. It is in that context that the observations made by this Court in the case of Baladin v. State of U. P., : 1956CriLJ345 assume significance otherwise in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact Section 149 makes it clear 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 member of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and docs not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.' 1956 Cri LJ 345.
In Lalji v. State of U. P., : 1989CriLJ850 the Supreme Court held as follows : '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 and vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common liabilities of the members of the unlawful assembly extends only to the acts done in pursuance of the common object 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 hands 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 result 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 membership of the unlawful assembly, with the requisite common object or knowledge.'
In Shamshul Kanwar v. State of U. P., : [1995]3SCR1197 it was held that to infer common object it is not necessary that each one of the accused should have participated in the attack when the evidence of the eye-witnesses clearly establishes that each one of those convicted accused was member of the unlawful assembly whose common object was to commit murder. Where the prosecution fails to prove the existence of sharing of common object by all the members of the unlawful assembly it is unsafe to convict all the accused persons merely on proof of their presence or some overt act, which did not cause the death of the deceased.
18. In a case of party factions and group rivalries, there is a tendency on the part of the prosecution witnesses to implicate some innocent persons also along with guilty ones. Generally in such cases the witnesses of the prosecution case are prone to exaggerating the culpability of actual assailants and to extend the participation in the occurrence to some possible innocent members of the opposite group as well. In such a case a duty is cast upon the Court to sift the evidence and after a close scrutiny with proper care and caution to come to a judicial conclusion as to who out of the accused persons can be considered to have actually committed the offence. The Supreme Court while dealing with a case arising out of faction in Bijoy Singh v. State of Bihar, 2003 SCC (Cri) 1093 : (2002 Cri LJ 2623) has reminded the duty of Criminal Court in appreciating the evidence of witness in cases arising out of faction and group rivalry as follows :
'An onerous duty is cast upon the Criminal Courts in the country to ensure that no innocent is convicted and deprived of his fundamental liberties. However, in case of group clashes and organized crimes, persons behind the screens executing the crime should not be allowed to go scot free. In cases involving number of accused persons, a balanced approach by the Court is required to be insisted upon neither any innocent person should be convicted nor a guilty acquitted under the cloak and cover of loose and liberal interpretation of the statutory provisions and technicalities of procedural wrangles. In cases of arson and murder where a large number of people are accused of committing the crime, the Courts should be cautious to rely upon the testimony of witnesses speaking generally and in an omnibus way without specific reference to the accused or the role played by them.'
19. The Supreme Court in Pandurang v. State of Hyderabad, : 1955CriLJ572 had cautioned the Courts with regard to acceptance of omnibus inclusions where there are number of accused. It is useful to refer paras (32) and (33) of the above referred judgment and they are as follows :
'32. Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King-Emperor (1945 (46) Cri LJ 689 : AIR 1945 PC 118). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor (1925 (26) Cri LJ 431 : AIR 1925 PC 1) and Mahbub Shah v. King-Emperor (1945 (46) Cri LJ 689 : AIR 1945 PC 118). As their Lordships say in the latter case, 'the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice'.
33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example, when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.'
20. Keeping in view of the principles enunciated by the Supreme Court with regard to appreciation of evidence in group rivalry, we sift the evidence of P.Ws. 1 to 3 with care and circumspection. P.Ws. 1 to 3 attributed specific overt act to A-6. But the overt act attributed to A-6 has not been supported by medical evidence. Had there not attributed specific overt acts to A-6, he would have been made liable under constructive liability by being a member of the unlawful assembly. P.Ws. 1 to 3 having assigned definite role to A-6 and when once the role attributed to A-6 is proved to be false by medical evidence, his sharing common object with other persons in the unlawful assembly become doubtful and the benefit of doubt should go to him. By giving the benefit of doubt, we are inclined to set aside the conviction of A-6 for the offences under Sections 148 and 302 read with 149 of Indian Penal Code.
21. It is nextly submitted by the learned Senior Counsel that failure of the Investigating Officer to record the statements of P.Ws. 1 to 3 soon after his taking investigation creates any amount of suspicion on the prosecution version and it lends support to the plea of the accused that Ex.P-1 Report is pressed into service after due deliberations with the members of the prosecution party. No doubt the Investigating Officer did not record the statements of P.Ws. 1 to 3 on the night of 6-9-1999. It is definitely lapse on the part of the Investigating Officer but that itself is not a ground to reject the testimony of P.Ws. 1 to 3, which is otherwise cogent and convincing. Supreme Court in State of Uttar Pradesh v. Sikander Ali (supra), held that the lapse of Investigating Officer should not prevent the Court from accepting the evidence of the witnesses.
22. In the result, Criminal Appeal No. 282 of 2002 is partly allowed setting aside the conviction and sentence of appellant No. 5/A6 Ediga Nageswara Gowd for the offences under Sections 148 and 302 r/w 149 IPC and he is acquitted of the same while confirming the conviction and sentence appellants 1 to 4 (A1, A3, Ar and A5). Criminal Appeal No. 1023 of 2003 is dismissed.