1. Heard learned counsel

2. This is an appeal filed under Section 379 CrPC read with Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. A rioting took place on August 7, 1977 at about 5 p. m. in Village Gholanayakanahalli within the limit of Yalahanka Police Station in the course of which one Jayarama Reddy - the deceased in the case received fatal injuries. PW 2 in the case lodged the First Information Report implicating several persons. In respect of this offence 16 persons were tried. Out of them A-12 and A-13 were ladies. They were tried for offences punishable under Sections 143, 148, 302/149 IPC. The trial court acquitted five of them and convicted A-1 to A-11 under Sections 326/149 IPC and sentenced each of them to undergo RI for six years. All of them preferred an appeal to the High Court. During the pendency of the appeal, A-11 (Chikka Govindappa) died. Therefore, his appeal stood abated. The State also preferred appeals being Nos. 280 and 281 of 1981 - one for enhancement of the sentence and another against acquittal of the accused or the murder charge. The High Court dismissed the Criminal appeal filed by the convicted accused but allowed the other criminal appeal filed by the State and altered the convictions to one under Sections 302/149 and sentenced each of the convicted accused to undergo imprisonment for life. The other appeal for enhancement was, however, dismissed. The ten accused, A-1 to A-10 have preferred this appeal. Out of them A-1 died during the pendency of the appeal in this Court. Therefore, we are left with only A-2 to A-10. The prosecution case is as follows

3. There was a political enmity between A-1 and his group on one hand and the deceased and his followers. It started with the Lok Sabha elections in 1977. A-1 supported the Congress candidature. After the elections are over, it is alleged that A-1 had took revenge with the rest of the villagers as they did not support the Congress Party. There were some incidents. PW 25 - a practising lawyer who belongs to the said village also went up in objection to the higher authorities. A night before the occurrence it is alleged that the accused had assembled in the house of A-1. On the day of occurrence, when the deceased was coming out of his house to collect the coolies for his next days work, it is alleged that all the accused formed into an unlawful assembly and tried to attack the deceased. When the deceased reached the fields, he was surrounded and the two ladies are alleged to have thrown mirch powder into the eyes of the deceased and when the deceased pleaded against hitting him, Govindappa (A-1) instigated that the deceased should be finished and dealt sickle blows on the left side of the neck of Jayarama Reddy - the deceased. The deceased fell down and then A-1 again instigated others to finish him. Then, A-3 dealt a blow on the left shoulder of the deceased, the deceased fell down, A-5 gave a blow on the hand with a dagger. A-7 speared on the left buttock. A-8 speared in the same region. A-7 and A-8 went with the spears against the deceased. In that process, A-9 received injuries on his left hand. PW 2 - the cousin brother of the deceased witnessed the occurrence. The other witnesses viz., PWs 3 to 9 also witnessed the occurrence. PW 2 went to the Police Station almost immediately and gave the report. The case was registered and the investigation was taken up. Inquest was held on the dead body and the same was sent for post-mortem. The doctor who conducted post-mortem found as many as six injuries on the dead body of the deceased. The doctor opined three injuries - injury Nos. 1 to 3 in the following terms1. Chopped injury on the middle of front parietal region 4" x 1 1/4" outer table of the skull bone correspondingly cut

2. Chopped injury on the left side of the face and neck just below the ear, 6" x 1" depth at its anterior part bone deep -and at the posterior part up to the vertebrae

3. Chopped injury on the left shoulder and its back measuring 7" x 2", outer end of the clavicle was completely cut, the muscles were cut to a depth of 1"

The doctor also opined that the injuries, particularly injuries 1 and 2 by themselves are sufficient to cause death in the ordinary course of nature. The investigating authority arrested some of the accused on that very date and also recovered some weapons. Another doctor examined A-9 and found on him one incised punctured wound on the dorsum of the left hand with an elliptical opening 1 1/2" x 1/4" and one lacerated wound on the palmer aspect of the left hand 2 1/2" x 1/2". It appears that a report was given on that very night and in that it was mentioned that the deceased tried to stab A-9 where A-2 was present and he attacked the deceased in exercise of the right of defence of the person of A-9. The other accused pleaded not guilty. The learned Sessions Judge after having considered the evidence of the eyewitnesses came to the conclusion that the male members were members of the unlawful assembly and with the common object of causing grievous hurt only. He, however, acquitted the women accused and two others giving them benefit of doubt. In arriving at this conclusion, the learned Sessions Judge observed that the accused would not have known that the deceased would be passing that way and there was no premeditation as such to commit murder, and having regard to the nature of the participation in the occurrence, the common object was to cause grievous hurt and accordingly convicted them under Sections 326/149 IPC and for other minor offences as mentioned above

4. The High Court, however, took the view that the version put forward by A-2 and A-9 cannot be accepted at all and it was an after-thought and having regard to the nature of the weapons used and the injuries inflicted on the deceased, the common object of unlawful assembly was to cause murder and accordingly convicted them

5. In this appeal, the learned counsel for the appellants submits that the prosecution has failed to explain the injury found on A-9 and that the plea put forward by A-2 and A-9 are quite probable. Consequently, the prosecution has suppressed the genesis of the occurrence and since all the eyewitnesses are interested, their evidence should be rejected when they did not put forward the whole truth before the court. The learned counsel also submitted that no specific overt acts are attributed to A-4, A-6, A-9 and A-10. Omnibus allegations were made against them and therefore, it would be highly unsafe to rely on such evidence and convict these accused

6. The version given by A-2 and A-9 as to how A-9 received injuries and how A-2 inflicted some injuries on the deceased on the face of it appears to be highly artificial. As mentioned above, the injury found on A-9 was on the dorsum of the left hand and in the melee it is quite possible that he would have received such injury. Merely because such an injury is not explained by the prosecution it cannot be held that the witnesses suppressed the genesis of the incident and the court cannot go to the extent of rejecting the entire case. Non-explanation of injuries and its effect depend on the facts and circumstances of each case. We do not think that in this case non-explanation of the injuries is fatal to the prosecution case. At any rate, we may incidentally point out that the eyewitnesses have stated that A-8 tried to spear the deceased and the blow fell on the hand of A-9 resulting in the incised wound/injury. Therefore, it cannot strictly be said that there was no explanation at all. Anyway, this aspect need not detain us from further proceeding with the case

7. As mentioned above, PW 2 is the principal witness who set the law into motion. He claimed to be the eyewitness and immediately after the occurrence he gave the report and had mentioned as many as 13 names and later during investigation three more accused were added on the ground that they hatched the conspiracy. The occurrence is said to have taken place near about the village and the courts below also have acquitted some of the accused on the ground that they did not share the common object. In such a situation, the important question to consider is whether all the persons whose names are mentioned could be held to be members of the unlawful assembly It is always cautioned that the wayfarers and sightseers also could be there in that melee and that the courts should take care to see that such persons are not roped in. To avoid the danger of convicting such accused, the courts will have to take into consideration the nature of the gathering and how they assembled and what weapons they were armed with and how they proceeded and further the part played by them. In a case of this nature, the participation is one of the sure tests to fix the presence of members of the unlawful assembly. We think there are several tests to be applied in this case

8. In the earliest report which is an important document in such cases, PW 2 no doubt mentioned several names but attributed the overt acts only to A-1 to A-5. It is mentioned there that A-1 instigated and also dealt a blow with chopper. A-3 thereupon hit the deceased with the sickle in his hand on the left shoulder of the deceased. Then, in a general way it is mentioned that A-2, A-4 and A-5 also beat the deceased with sickles. No other overt acts are attributed to any one of the other persons mentioned in that report, except stating that they all came in a body. No doubt the scope of Section 149 IPC is very wide, but when we come to the participation and the presence in the unlawful assembly to be fixed on that basis, the part played by every one of them assumes importance and in that context the medical evidence also has to be considered. The doctor (PW 1) who examined the deceased has noted in his report seven injuries. The seventh injury is only a linear scratch abrasion which could be due to fall. Then, there are only six injuries left. If, really so many persons as alleged, armed with spears and choppers with a common object to commit the murder of the deceased, the injuries would not have been only six. However, the medical evidence corroborates to the extent of overt acts attributed to some of the accused, particularly, A-1, A-2, A-3 and A-5 and also A-7 and A-8. It must be noted at this stage that no part was attributed to A-7 and A-8 in the earliest report. When overt acts of other accused are mentioned and no participation is attributed to A-7 and A-8, we think, under the circumstances, they should get the benefit of doubt. In Exhibit P-2, as mentioned above, specific overt acts are attributed only to A-1 to A-5, but somehow in their depositions no witnesses deposed attributing any overt acts to A-7. This omission is very material and the FIR by itself is not evidence. Therefore, A-4 also gets the benefit of doubt. Accordingly, it can be concluded that the prosecution has established beyond all reasonable doubt the participation of A-1, A-2, A-3 and A-5 in the attack on the deceased with deadly weapons, like daggers and spears. The injuries found on the deceased are quite serious and there cannot be any doubt that those injuries were caused with the intention of either causing injuries which are sufficient in the ordinary course of nature to cause death or with intention to cause death. In either view clause I or clause III of Section 300 IPC is attracted. The High Court has convicted all the appellants under Sections 302/149 IPC. In the view we are taking only the presence and participation of A-1, A-2, A-3 and A-5 is proved. The others are entitled to acquittal. Therefore, since we are convicting only four accused viz., A-1, A-2, A-3 and A-5, we alter their convictions to one under Sections 302/34 IPC as they directly participated in the occurrence and inflicted fatal injuries with deadly weapons. In the result, the convictions of A-4, A-6 to A-10 are set aside and their bail bonds stand cancelled. The conviction of A-1, A-2, A-3 and A-5 under Sections 302/149 IPC is altered to one under Sections 302/34 IPC and the sentence of imprisonment for life is confirmed. As we are told and mentioned earlier that A-1 died during the pendency of the appeal in this Court, therefore his appeal stands dismissed as abated. In the result, the appeal is allowed in respect of A-4 and A-6 to A-10 and dismissed in respect of A-2, A-3 and A-5.