U.L. Bhat, J.
1. At about 7 p.m. on 4-12-1983, now deceased George, husband of P.W. 1 sustained fatal injuries and succumbed to the injuries on the way to General Hospital, Thiruvalla. At 11 p.m. P.W.1 went to the Thiruvalla police station and gave information on the basis of which case was registered against eight persons under Sections 143, 147, 148, 341, 323 and 302 I.P.C. read with Section 149 I.P.C. Ultimately, P.W.23 Circle Inspector of Police, Thiruvalla laid charge against these eight persons for the aforesaid offences. The trial court convicted them under Sections 143, 147, 148 and 341 read with Section 149 I.P.C. and Section 302 read with Section 149 I.P.C. For the offence under Section 302 I.P.C. they were sentenced to undergo imprisonment for life. No separate sentence was awarded under the othercounts. Second accused was further convicted under Section 323 I.P.C. Accused have filed the above appeals challenging the conviction and sentence entered against them.
2. Prosecution case can be summarised as follows : George had an affair with P.W. 7, wife of the third accused on account of which he incurred enmity of the third accused. Accused are mutually related to each other. P.W. 1 is a vegetable vendor and George a fish vendor, both conducting their business in the Koottoor market. On the evening of 4-12-1983 P.W.1 was doing business in the market. At about 7 p.m. George rushed to her and asked her to collect vegetables in the basket and suggested that they should leave the place since accused persons were coming there and he did not know why they were doing so. P.W.1 began to collect vegetables. By that time the eight accused reached the scene. First accused was armed with M.O.5 sword stick. Third accused was armed with M.O. 8 iron rod. Fourth accused was armed with M.O. 6 dagger. Fifth accused was armed with M.O. 9 spring stick. Other accused were not armed. Third accused beat George above the left eye brow with M.O. 8. First accused hit him with sword stick on his chest, right elbow and left hip. Second accused snatched a tapioca stump which was being used by P.W. 1 for hanging the balance and beat George on his left shoulder and the stump broke into M.O. 7 series. Second accused beat P.W.1 on her neck with his hand. Fourth accused stabbed George with M.O. 6 dagger on his back and. left finger. Fifth accused beat him on the back of his head. Accused 6 to 8 pushed George down and dragged him to and fro on the ground. When people rushed to the scene accused left with their weapons. P.W. 1 helped George to stand up and he took a few steps and fell down. P.Ws. 1, 6 and others took George to General Hospital, Thiruvalla in a car driven by P.W. 9. P.W. 13 Civil Surgeon attached to the hospital examined George at 7.30 p.m. and found him dead. At 11 p.m. P.W. 1 went to Thiruvalla police station and gave Ext. Pl information on the basis of which P.W. 22, A.S.I, registered the case. The next day P.W. 23 took over investigation. He held inquest over the body and questioned witnesses. Post-mortem was conducted by P.W. 14. P.W. 23 prepared scene mahazar and seized M.O. 7 tapioca stump. He arrested accused 2, 5, 6 and 8 on 27-12-1983 and on the information given by them he recovered M.O. 9 as per Ext. P8 mahazar attested by P.W. 16. He arrested accused 3 and 7 on 7-1-1984 and on the information given by the third accused he seized M.O. 8 under Ext. P9 mahazar attested by P.W. 7. He arrested accused 1 and 4 on 22-1-1984. On the basis of the information given by the first accused he recovered M.O. 5 under Ex.P10 mahazar attested by P.W. 18. On the basis of the information given by the fourth accused he recovered M.O. 6 dagger under Ext. P11 mahazar attested by P.W. 18. Material objects were caused to be sent and plan of the scene was got prepared. He laid the charge after completing investigation.
3. Accused told the Sessions Court that they originally belonged to Marxist Communist Party but left the party and formed a new group and therefore the local marxists entertained ill-feeling towards them and foisted a false case. They denied their complicity in the occurrence, denied the evidence regarding motive and the occurrence. Sixth accused who had a shop near the scene stated that George went to his shop and broke his petromax and when a crowd gathered George went eastwards followed by the group and he was involved in a fight.
4. There is no doubt that late in the evening of 4-12-1983 George sustained serious injuries and succumbed to the same. The evidence of P.W. 14 who conducted autopsy shows that George had as many as 12 external injuries, Of them injuries 1 and 7 were lacerated injuries on the lateral end of the left eye brow and dorsal aspect of the right elbow, injuries 4, 8, 1.1 and 12 were incised injuries, above the left anterior superior iliac spine, on the left side of the root of neck, below the right nipple and between 7th and 8th ribs left to the midline, injuries 2, 3, 5, 6 and three injuries in item 9 were abrasions near the right eye, over left shoulder, on the dorsurn of left forearm, on the dorsum of root of left index finger and lateral to tenth spine on the back side and right side. Injury No. 10 was a contusion on the scalp at the occipital region in the midline. Thoracic cavity contained dark fluid blood. Vital organs were pale. Corresponding to external injury No. 11 there was an incised wound at the centre on the anterior aspect of the right lower lobe and corresponding to injury No. 12 there was an incised wound on the posterolateral aspect of the left lower lobe. According to P.W. 14 death was due to internal injury haemorrhage and shock and injuries 11 and 12 could be fatal.
5. In order to establish the guilt of the accused prosecution relied on (a) eye witness testimony of P.Ws. 1 to 5, (b) evidence regarding motive provided by P.Ws. 1, 3, 5, 7, 8, 10 and 21, and (c) medical evidence.
6. Before dealing with the evidence we would like to deal with the manner in which case diary contradictions have been brought on record and proved. Our attention is invited to the decision of a Division Bench of this court in Puthenthara Mohanan v. State of Kerala (1989) 1 Ker LN 462 : (1990 Cri LJ 1059). In that case only the beginning and the end of the portions of statements with some dotted lines in between them were put in inverted comas and attention of the witnesses was drawn to these portions. Prosecutor must have read the relevant portions, but for the purpose of reducing the burden of writing, the learned Sessions Judge wrote only the beginning and the end of the portions of the statements with dotted lines in between the inverted comas. The court observed that this practice has been deprecated by this court. The objection pointed out was 'In the instant case, the entire portions of the statement with which the witnesses were sought to be confronted were not seen put to the witness. The inverted comas contained only the beginning and the end of the statements with dotted lines in between.' The Bench further observed (at p. 1065 of Cri LJ):--
'So also portions of the statements with which the witnesses were sought to be confronted with were not put to P.W. 13, investigation officer and he was only asked whether P.Ws. 2 to 4 had stated as contained in Exts. P2, P3 and P4. This can be hardly treated as proof of the statements.'
In the present case P.W. 7, wife of the third accused, refused to support the prosecution and she was cross-examined by the prosecutor with permission of the court. She was confronted with her C.D. statement with permission of the court. The deposition shows that practically the entire C.D. statement was read over to her; this was obviously because she denied each and every one of those statements and the statements are relevant for the purpose of cross-examination. The learned Sessions Judge did not extract the entire statement in the deposition but wrote only the portions in the beginning and at the end and connected the two portions with dots. At the same time the learned Sessions Judge noted that the statement has been read over and marked Ext. P2. Thus we find that the procedure followed in the present case is to some extent different from the procedure followed in Mohanan's case. (1989) 1 Ker LN 462 : (1990 Cri LJ 1059).
7. We do not think any hard and fast rule can be laid down in regard to the procedure to be adopted in following Section 145 of the Evidence Act, with particular reference to case diary statements. Case diary statements are recorded under Section 161(3) of the Code of Criminal Procedure. Sub-section (1) of Section 162 states, inter alia, that such statement shall not be used for any purpose, save as provided in any inquiry or trial in respect of any offence under investigation at the time when such statement was made. The proviso permits use of the statement, if duly proved, by the accused, and with the permission of the court by the prosecution, to contradict such witness in the manner provided by Section 145 of the Evidence Act. Section 145 of the Indian Evidence Act is in two parts. The first part permits cross-examination of the witness as to his previous statement in writing when such writing being shown to him or being proved. The second part requires that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts which are to be used for the purpose of contradicting him. Reading Section 162(1) proviso and Section 145 together, it is clear that a witness may be cross-examined as to his case diary statement without such statement being shown to him or being proved; however if the intention is to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose of contradicting him before the writing can be proved. Sometimes objection is raised regarding marking the entire C.D. statement or large portions of it. There cannot be a universal rule against such a procedure. Whether in a given case it amounts to substantial compliance of Section 145 depends on the situation in each case.
8. In Bhagwan Singh v. State of Punjab, AIR 1952 SC 214 : (1952 Cri LJ 1131), it was seen that the entire previous statement (it was not a case diary statement) was put to the witness point by point and passage by passage. One of the passages was reproduced in inverted commas and the Supreme Court concluded therefrom that the passage in inverted commas must have been read out from the statement. Immediately after the witness had been questioned about each separate fact point by point, the whole statement was read out to him and he admitted the same. The Supreme Court observed (para 26):-
'Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction that may, in a given case, confuse a witness and not be a fair method of affording him an opportunity to explain but in the present case the previous statement is a short one and the witness was questioned about every material passage in it point by point. Accordingly, the procedure adopted here was in substantial compliance with what Section 145 requires. There can be no hard and fast rule. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. We are satisfied that was done here. The matter is one of substance and not of mere form.'
In Tahsildar Singh v. State of U.P., AIR 1959 SC 1012 : (1959 Cri LJ 1231) the Supreme Court observed (para 13) :-
'If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer.'
9. In Mohanan's case (1989) 1 Ker LN 462: (1990 Cri LJ 1059) reliance has been placed on the decision in Krishnan Nair v. State of Kerala, 1971 Ker LT 326. That was a case in which statements themselves were not proved or marked and there was nothing to show that the witnesses were confronted with the recorded statements as such, or the relevant portions thereof. Witnesses were asked whether they had not made certain statements to the police. These statements put to them were recorded in inverted commas in the depositions. They denied having made the statements. These very statements, again in inverted commas, were put to the Investigating Officer and he was asked whether the witnesses had not made them in the course of investigation under Section 162 of the Code of Criminal Procedure. Dealing with this situation the court observed :-
'This appears to us to be scant compliance with the requirements of Section 145 of the Evidence Act and of Section 162 of the Criminal Procedure Code....... if it is intended to contradict the witness under the second part of Section 145 of the Evidence Act, he should be confronted with the concerned portions of the writing....... The Investigating Officer did not even offer formal evidence that the statements within inverted commas put to him and to the witnesses were taken from the recorded statements under Section 162 of the Criminal Procedure Code. The statements themselves were not marked. We are satisfied that this was a serious defect committed by the prosecution and by Sessions Judge.'
Obviously in the above case relevant portions of the statement had been fully extracted in the deposition within inverted commas. But witness's attention was not drawn to the fact that these statements appeared in his case diary statement recorded in writing. Relevant portion was also extracted within inverted commas in the deposition of the Investigating Officer. But he did not state that that portion was taken from the recorded statements. Portions of the recorded statements themselves were not marked. The court objected to this procedure obviously because there was nothing on record to show that the portions appearing within inverted commas were as a matter of fact found in the recorded statement. This decision will not help us in the particular controversy arising in this case.
10 In George v. State, (1988) 1 Ker LT 256 Padmanabhan, J. observed that 'The exact portion sought to be contradicted must be put to the witness and recorded in the deposition and it will have to be marked subject to proof by the Investigating Officer.' When the learned judge referred to 'marking', the reference obviously was to marking statement in writing as a document. The learned judge had no occasion to consider whether there was any way of bringing the statement, in the deposition without recording the relevant portion of the statement. In Sethumadhavan v. State (1988) 1 Ker L.T (Sh. N) case No. 17 page 9 statements given by the witnesses were straightway marked as exhibits and were later relied on by the court. One of us (Balakrishnan, J.) noticed that 'sometimes the statements which have been denied by the witness are provisionally marked for convenience to be later proved through the investigating officer who recorded the same' and held that 'the cross-examiner must read out to the witness the relevant portion of the statement recorded which is alleged to be contradictory to his statement in court and give him an opportunity to reconcile the same'. In Imbayi v. State, (1989) 1 Ker LT 956 the prosecutor brought the entire case diary statements marked though the statements in full were not incorporated in the depositions. Only the beginning and end were put in inverted commas. Significantly the case diary statements contain contradicted and uncontradicted portions and the portions sought to be contradicted were not put to the witnesses and were not duly proved by putting to the Investigating Officer. He was made to swear generally that the witness stated as seen in such and such exhibits. Nevertheless, the court took the view that it was not a case of non-compliance in substance or that prejudice had resulted.
11. One of us (Bhat, J.) in A.H. Abdulla v. State of Kerala, ILR (1981) 1 Kerala 508 : (1981 Cri LJ NOC 55) held that :--
'This does not mean that there is only one way of bringing on record a contradiction contained in a previous statement recorded under Section 161(3) of the Code. There may be several ways of doing it. One way would be to read out the specific portion from the statement to the witness and incorporate that portion specifically within inverted commas in the deposition. That would be the ideal way of doing it. Some courts adopt the method of extracting only first few words and the last few words of the previous statement and marking the relevant passage. Some other courts, instead of extracting the portion in the deposition, merely mark the portion in the document containing the statement and allow it to be read out or shown to the witness.'
However, in that case when the Investigating Officer was examined specific portions of the statement were not read out and extracted in the deposition, nor were portions marked and put to him. Therefore it was held that there was non-compliance.
12. On a careful consideration of the above decisions, we are unable to find any differences in approach. As observed by the Supreme Court in Bhagawan Singh's case AIR 1952 SC 214 : (1952 Cri LJ 1131) what is really necessary is substantial compliance of the requirements of Section 145 of the Evidence Act and the purpose of the second part of Section 145 is to treat the witness fairly by giving him a reasonable opportunity to explain the contradictions after his attention has been drawn to them in a fair and reasonable manner. The matter is one of substance and not of mere form. Previous statement if denied must be properly proved through the person who recorded the statement. The court must be satisfied that there is a contradiction between the previous statement in writing and the statement made in court. When that portion has been brought to the attention of the witness he is given a reasonable opportunity to explain the contradiction and the previous statement is duly proved. The question is how and in what manner the deposition should reflect these factors. The ideal procedure would be to record and extract in the deposition relevant previous statement, whether it be a long or a short passage. But it is really unnecessary to subject the overworked Sessions Judges with the task of recording the entire portions. There is nothing wrong in principle if instead of writing the relevant portion of the statement, only the commencing words and the ending words are recorded within inverted commas to indicate the particular passage in the written case diary statement and that portion is marked subject to proof and the deposition indicates that the relevant portion has been read out to the witness. There is no reason why the same procedure should not be adopted when the previous statement is attempted to be proved through the Investigating Officer; there is nothing wrong in the officer deposing that the witness had stated to him as seen stated in such and such exhibit (already marked). What is necessary is that the deposition shows that the making of the previous statement is proved by him and that that statement is seen in the recorded statement in the case diary. When the relevant portion is marked and the Investigating Officer refers to that portion or exhibit, ordinarily that is sufficient to show that he has proved the previous statement which is part of the statement in writing. We are satisfied that in this case the procedure followed is in substantial compliance with the requirements of Section 145.
13. P-Ws. 1 to 5 are the eye-witnesses. They have given evidence consistent with the prosecution case and in all details. Their evidence would show that P. W. 1, a vegetable vendor was conducting trade in the Koottoor market in the evening and George came and talked to her. That he asked her to collect vegetables in the basket and suggested that they should leave the place since accused persons were coming there was spoken to by P.Ws. 1 and 4 while the other eye-witnesses stated only that George talked to her. Immediately thereafter P.W. 1 began to collect vegetables in the basket. She had a balance which was placed in position by using three sticks. At that time accused came there and surrounded George. Of them first accused had M.O. 5 sword stick, third accused had M.O. 8 iron rod, fourth accused had M.O. 6 dagger and the fifth accused had M.O. 9 spring stick. Third accused beat George above the left eye brow. First accused hit him on his chest, right elbow and left hip. Second accused snatched one of the tapioca stumps used to keep the balance in position and beat George on the left shoulder and the stump broke into two pieces (M.O. 7 series). Second accused beat P.W. 1 on her neck with his hand. Fourth accused stabbed George on his back and left finger. Fifth accused beat him on the back of his head with M.O. 9 spring stick. George fell down. Accused 6 to 8 caught hold of his hands and legs and dragged him to and fro on the ground. When people came accused ran away with their weapons. P.W. 1 helped George to stand up and take a few steps and then George collapsed on the ground. This version is more or less uniformly spoken to by P.Ws. 1 to 5. The learned Sessions Judge chose to act on the above evidence.
14. P.Ws 1, 6 and others took George to General Hospital, Thiruvalla where the doctor examined him and found him dead. That was at about 7.30 p.m. P.W. 1 went to Thiruvalla police station at 11 p.m. and gave Ext. P1 F.I. statement. F.I. statement is a clear and detailed statement containing a full and complete version of the occurrence. F.I. statement would indicate that P.Ws 1 and 4 and shop keepers had witnessed the occurrence. Ext.P1 does not mention presence of P.Ws 2, 3 or 5. Two more eye-witnesses cited were not examined, namely, C.W.6 Baby residing about 20 kilometres away and C.W. 7 Omanakuttan, neighbouring shop keeper.
15. Learned counsel for the appellant would contend that Ext. P1 is a manipulated document and could have been created only the next morning after P.W. 1 regained consciousness, that all the eye-witnesses examined are interested witnesses, that the occurrence could not have taken place in the market at the place where P.W. 1 was selling vegetables since no blood was seen anywhere in the market and the only place where blood was seen was the middle of Thengali road. According to learned counsel, the version given by the sixth accused that George came to his shop and broke the petromax and he closed the shop, George went eastwards, namely, towards the junction followed by a crowd and there was a fight in which George might have sustained injuries is more probable. Learned counsel also contended that this is a false case foisted at the instance of the local Marxist leaders who bear enmity towards the accused since accused left the party and formed a new political group. According to learned counsel, there are material contradictions, in the evidence of the eye-witnesses.
16. P.W. 7 is the wife of the third accused. It is the consistent evidence of P.Ws. 1 and 3 that there was an affair between P.W. 7 and George. P.W. 8 who is the Secretary of Cheramar Society deposed that third accused had presented a petition about this affair in 1983 and both parties were called and the matter was closed. According to him, two or three days later third accused went to him and complained about the conduct of George in having insulted P.W. 7. He advised a complaint to be filed before police and gave him a draft: P.W. 1 also spoke about the latter incident. She deposed that police sent for both the parties and though she and George went to the police accused did not turn up P.W. 3 also deposed that there was a further quarrel after the settlement by the community organisation. This of course is denied by P.W. 7. Second incident between George and P.W. 7 is spoken to by P.W. 10 who had seen the incident. P.W. 21, S.I. of Police, spoke about the complaint given by P.W. 7 and both parties being called and only one of the parties turning up in the inquiry. The above evidence is acceptable to the extent of holding that there was an allegation of affair between George and P.W. 7 and this would naturally have been resented by the third accused. The evidence indicates that all the accused are related. This is the background in which the occurrence took place.
17. The occurrence took place late in the evening and F.I. statement was given at 11 p.m. on the same night. F.I.R. reached the court the next day. F.I. statement contains a fairly detailed version of the occurrence naming P.Ws 1 and 4 and other shop keepers as eye-witnesses. We find no reason to suspect the genuineness of the F.I. statement. P.W. 1 who gave the F.I. statement had gone to the hospital along with the injured husband. She stated at one stage that when she realised that her husband was dead she lay without consciousness. At the same time she stated that she went to the police station and gave information. In cross-examination she stated that she became conscious the next morning. From these answers it is not possible to draw an inference that from the time when she came to know of her husband's death till the next morning she was throughout unconscious F.I.R. cannot be treated as suspicious at all.
18. P.W. 1 is the widow of the deceased; but for that reason her testimony cannot be rejected as that of an interested person. The evidence of P.Ws. 1 and 2 shows that George was sympathiser of the Marxist party. P.W. 2 admitted that accused formerly belonged to Marxist party but later left the party. P.W... 5 deposed that they ceased to co-operate with the Marxist party. The evidence would clearly indicate that P.Ws. 2, 3 and 5 are sympathisers of Marxist party. On account of the political schism it may be necessary to examine the evidence of P.Ws. 2, 3 and 5 with a degree of caution. However, P.W. 4 whose presence is mentioned in the F.I. statement is not seen to be associated with any political party. All that is elicited is he has regard for the local panchayat president who belongs to the Marxist party. But that is no reason to view his evidence with any suspicion.
19. Near the scene is the junction of M.C. Road and Thengali road. At the junction to the north of Thengali road and west of M.C. Road is a shopping complex with four or five shops. In between the two roads and the shop building is an open vacant space which is used as market place. According to the prosecution, the occurrence took place in this open space used for market. That was where P.Ws. 1. and 4 were conducting vegetable trade. Scene of occurrence is marked in Ext, P7 plan as No. 1. The next day Investigating Officer did not see any bloodstains in the open space and saw bloodstains only in the road at a place marked as No. 2 in the plan. Going by the scale of the plan, according to the author of the plan P.W. 15, scene of occurrence and the place where bloodstain was seen are 25 ft. apart though without reference to the scale he would say that they are only 4 or 5 ft apart. Plan was prepared with reference to the scene mahazar. P.W. 23 deposed that bloodstains were seen at the northern edge of the road and not the middle of the road. Taking all these circumstances into consideration it is clear that bloodstains were seen a few feet away from the place where the occurrence was alleged to have been taken place. The evidence would also show that the accused ran away from the place on seeing a large number of persons approaching the scene. A public meeting of the Marxist party was scheduled to be held a short distance away at the junction on the southern side of the Thengali road. It is natural to expect that quite a large number of persons would have come to the scene and in the process bloodstains in the open space near the scene would have been erased. Therefore absence of bloodstains at the scene is not a circumstance against the prosecution case. Nor does the presence of bloodstains in the road or at the northern edge of the road go against the prosecution case. The evidence is that a car was fetched and George was put in the car. The evidence would also show that at the end of occurrence George with the help of his wife P.W. 1 took a few steps and fell down. Either when he was lying down or when he was in the process of being carried to the hospital drops of blood might have been fallen on the road. The evidence and circumstances do not throw any doubt about the truth of the prosecution case; nor do they support to any extent defence suggestion of George having sustained injuries in some other manner or as alleged by the accused.
20. Learned counsel also commented on the failure of the Investigating Officer to find any vegetables near the scene when he prepared scene mahazar the next day. The consistent evidence of the eye witnesses is that vegetables were lying at the scene on the previous evening. So also the basket and the balance belonging to P.W. 1. At the time of the scene mahazar none of these things were found. That may be because during the several hours which elapsed between the time of occurrence and the time when the scene mahazar was prepared, these articles might have been taken away by someone.
21. Learned counsel strenuously challenges the evidence of P.Ws. 2, 3 and 5 who are admittedly sympathisers or workers of the Marxist party. The consistent evidence Of P.Ws. 1 to 5 is that public-meeting organised by the Marxist party was scheduled to be held on that evening. P.Ws. 2, 3 and 5 do not belong to that particular place and had come to attend that meeting. P.W. 1 deposed that the meeting commenced at about 5.30 p.m. P.W. 2 in cross-examination stated that the meeting was not actually held that evening. P.W. 3 stated that the meeting began at 7 p.m. According to P.W. 4 who left the place immediately after the occurrence, there was a meeting held. P.W. 5 at one stage stated that there was a meeting at 6 or 6.30 p.m. and at another stage stated that the meeting did not take place. We do not think any definite inference, can be drawn against the prosecution on the basis of this evidence. It is usual to, have music before the commencement of the meeting to attract people. When one witness says that the meeting actually commenced, that may be a reference to commencement of the music. It is quite possible that before the occurrence the actual speeches did not begin or somebody might have spoken for a short while after the occurrence was over and the injured was taken to the hospital. Since P.Ws. 2, 3 and 5 do not belong to that place no inference can be drawn from the circumstance that their names were not mentioned in the F.I. statement. It is quite probable that the meeting was scheduled to take place and loud speaker set was used for music. This would support the presence of P.Ws. 2, 3 and 5 who belong to the Marxist party. Therefore their presence is satisfactorily explained, even though they reside some distance away from the scene. P.W. 4 who resides 3 kilometres away is a vegetable vendor in the market. His presence is spoken to by the other eye witnesses and mentioned in the F.I. statement. All these witnesses were questioned without any delay. The presence of P.W.1 cannot be challenged. Even if the evidence of P.Ws. 2, 3 and 5 is not to be relied on, evidence of P.W. 1 fully corroborated by a disinterested witness P.W. 4 can certainly be accepted. In this view, the non-examination of shop keepers does not warrant any adverse inference against the prosecution. The shop keepers might not have seen the occurrence or the entirety of the occurrence.
22. Medical evidence also fully supports the prosecution version of the occurrence when we compare the overt acts attributed to accused 1 to 5 and the injuries. Injury No. 1 is a lacerated injury above the left eye brow. That could be caused by M.O. 8 iron rod used by the third accused. Injury No. 8 is an incised wound on the left side of the root of neck. Injury No. 12 is an incised wound between the seventh and eighth ribs. These injuries could be caused by the stabs with M.O. 6 attributed to fourth accused. Injury No. 4 is an incised wound above the left anterior superior iliac spine which could be caused by using M.O. 5 and the act atributed to the first accused. This weapon could also caused injury No. 11. Injury No. 10 is a contusion which could be caused by beating with M.O. 9 The other injuries are all abrasions which could be caused either by beating or contact with hard object. Medical evidence therefore is consistent with the prosecution version.
23. In the light of the above discussion, we have no hesitation to agree with the learned Sessions Judge that the prosecution version regarding the overt acts of accused 1 to 5 have been proved. The overt act attributed to accused 6 to 8 does not appear to be natural or probable and therefore we are not prepared to accept the evidence which attributes such overt act to accused 6 to 8.
24. The prosecution evidence is that the eight accused came there. There is no evidence to show that in what manner they approached the scene, whether all of them came in a group or not. Accused 1, 3, 4 and 5 no doubt came armed with deadly weapons and they committed specific overt acts against George, using the deadly weapons. But the same cannot be said of accused 2 and 6 to 8. They came unarmed. Second accused is alleged to have used a stump used to set up the balance belonging to P. W. 1 and inflicted a beating on the left shoulder of George. If really accused 2 and 6 to 8 had shared any common intention or common object with the other accused, it is reasonable to expect that they would have come to the scene with suitable weapons. We have already indicated doubt about the overt act attributed to accused 6 to 8. In these circumstances, we cannot uphold the finding of the learned Sessions Judge .that there was any unlawful assembly with the common object to commit the murder of George. Therefore conviction under Sections 143, 147 and 148 and the conviction regarding the substantive offences read with Section 149, I.P.C. cannot stand. So also offence under Section 341 is not seen made out.
25. The fatal injuries were inflicted by the fourth accused. Injuries inflicted by accused 1, 3 and 5 are simple injuries. We have already held that accused 2 and 6 to 8 cannot be held to have shared any common intention or common object with the other accused. But the manner in which accused 1, 3 and 5 came armed with deadly weapons and attacked George would clearly establish common intention on their part to cause his death. Accused 1, 3 and 5 can certainly be held to be guilty of the offence of murder in the light of Section 34, I.P.C. The evidence on which prosecution relied to establish unlawful assembly with the common object to commit the murder of George is sufficient to establish the applicability of Section 34, I.P.C. In these circumstances we have to confirm the conviction of accused 1, 3, 4 and 5 under Section 302 I.P.C. The conviction of accused 1, 3 and 5 for that offence cannot be under Section 149, I.P.C., it could be only by virtue of Section 34, I.P.C. Second accused could he convicted only for the offence under Section 323, I.P.C.
26. We set aside the; conviction and sentence entered against accused 6 to 8 under Sections 143, 147, 148 and 341 read with Section 149 I.P.C. and 302 read with Section 149, I.P.C. We acquit them of all the charges. The conviction and sentence entered against the second accused fox the, aforesaid offences are set aside. Instead he is convicted under Section 323 I.P.C. with sentence of simple imprisonment for six months. However, considering his extreme youth we suspend the sentence and put him on probation with supervision under the concerned Probation Officer in regard to which he is directed, to appear before the Sessions Court within three weeks and execute a bond.
27. We set aside the conviction and sentence entered against accused 1, 3, 4 and 5 under Sections 143, 147, 148 and 341, I.P.C. The conviction and sentence entered against the fourth accused under Section 302 I.P.C. are confirmed. The conviction and sentence of accused 1, 3 and 5 under Section 302 read with with Section 149 I.P.C. are altered to one under Section 302 read with Section 34, I.P.C. The appeals are disposed of accordingly. Accused 6 to 8 will be set at liberty if their custody is not required in connection with any other case.