1. This appeal under Section 374 (2) Cr.P.C. is directed against the judgment of conviction and order of sentence dated 27/11/2000 passed by Additional Sessions Judge, Bhind (M.P.) in Sessions Trial No.229/1993; whereby, the appellants have been convicted and sentenced as under:

2. The admitted facts of the present case are that the accused and Vishambhar Singh (PW-2), Nahar Singh (PW-3), Dilip Singh (PW-4), Kamal Singh (PW-5), Satyapal (PW-7), Sobran Singh (PW-8), Radha Bai (PW-11), Nanne Khan (PW-12), Kallu (PW-13), Nathuram (PW14) and Sher Singh (PW-24) are known to each other even before from the date of incident. It is also admitted that Vishambhar Singh (PW-2), Nahar Singh (PW-3), Dilip Singh (PW-4), Kamal Singh (PW-5), Satyapal (PW-7), Radha Bai (PW-11), Kallu (PW-13) and Sher Singh (PW-24) being the members of one and the same family are near relatives of each other. Accused have also admitted in the present case that Balister Singh and Shyam Singh are no more.

3. Prosecution story, as found proved, in nutshell, is that on 20.05.1993 at about 08:20 pm, Vishambhar Singh (PW-2) along with Satyapal Singh, Dilip Singh and Sher Singh, lodged a report at Police Endori, District Bhind (M.P.) to the effect that at about 06:30 pm he was at his home and his son Narendra was fetching water from the well before him. When daughter of Ajmer Singh, namely, Gudiya showed slipper to his son Narendra (an insulting way of gesture), Narendra also showed his leg to her in the same manner. On this a quarrel ensued in the course of which mother of Gudiya came there indulged in heated altercation. Complainant Vishambhar Singh also reached. Kamal Singh, Dilip Singh, Satyapal Singh, Jagdish Singh, Nahar Singh, Kamlabai, Radhabai, Nathu Kori, Khan, Balister Singh, Kallu, Sobran Singh also came there and tried to appease the parties and settle the dispute. Shyam Singh, father of complainant Vishambhar Singh with folded hands sought forgiveness for the mistake committed by his grandson and assured its non-recurrence. Thereafter Lakhan Singh armed with 12 bore gun of his father, Ramprakash axe, Shiv Singh, Janak Singh bare-handed, Jaikaran Singh along with gun, Kedar barehanded, Majboot Singh along with Bhala came on the spot and in pursuance of the common object to kill, Lakhan opened his first fire on the members of the complainant party from the house of his grand-father-Shiv Singh, the pellets of which hit the head, ear, temple of Balister Singh and back of shoulder of Nahar Singh due to which blood started oozing out from the injuries. Thereafter Lakhan made second fire on the complainant party from the terrace of his house which hit the stomach, chest and armpit of Kallu; pellets of the second fire also hit on different parts of the body of Nanhe Khan, Nathuram, Sobaran Singh, Radha Devi and Kamla Bai. Third fire was by Lakhan Singh hit the father of complainant Shyam Singh in his stomach, near private parts, hands and on both the legs due to which blood started oozing. The father of the complainant died on the spot. On the basis of the aforesaid, crime was registered against the accused persons. Pachayatnama of body of Shyam Singh was prepared. Injured persons were sent for their medical examination. Injured Balister Singh was sent to the J.A. Hospital, Gwalior where, during treatment, he succumbed to the injuries and died. Autopsy was also conducted at J.A. Hospital, Gwalior. After completion of the investigation, charge-sheet against all the accused/ appellants was filed in the Court of JMFC, Gohad, District Bhind (M.P.) who committed the case to the Court of Session for trial.

4. Appellant- Lakhan Singh, on being charged with the offence punishable under Sections 302, 147, 148, 307/149 IPC and the rest appellants under Sections 147, 148, 307/149 & 302/149 IPC abjured the guilt. In the examination under Section 313 of the Code of Criminal Procedure, they pleaded false implication.

5. During trial, the prosecution examined as many as 28 witnesses viz. Dr. Shivnath Singh Bhadoriya (PW-1), Vishambhar Singh (PW-2), Nahar Singh (PW-3), Dilip Singh (PW-4), Kamal Singh (PW-5), Constable No.913 Rambharose (PW-6), Satyapal (PW-7), Sobran Singh (PW-8), Naresh Singh (PW-9), Prabhashankar (PW-10), Radha (PW-11), Nanhe Khan (PW-12), Kallu (PW-13), Nathuram (PW-14), Kailash Narayan Tripathi (PW-15), Surendra (PW-16), Vijaypal (PW-17), Head Constable No.67 Nathuram Sharma (PW-18), Kunwarpal Singh (PW-19), Rameshwar (PW-20), Dr. Vijay Kumar Deewan (PW-21), Constable Rampraksh Rathore (PW-22), Dr. R.C. Chakravarti (PW-23), Sher Singh (PW-24), Omprakash (PW-25), P.S. Tomar (PW-26), Rajpal Singh (PW-27) and Rustam Khan (PW-28) whereas defence examined three witnesses, namely, Janved Singh (DW-1), Prahlad Singh (DW-2) and Rajpal Singh (DW-3).

6. Learned counsel for the appellants submits that conviction of appellants No.1,2,3,4 and 5 under Section 302/149 and 307/149 of I.P.C and sentence of life imprisonment and ten years' RI are bad in law for the reasons namely :

(a). There was no premeditation of mind of these appellants with appellant No.6;

(b). There was no common object;

(c). No act much less overt act is attributed to any of the appellants No.1 to 5 either in the FIR or in the statements of eye witnesses recorded under Section 161 of Cr.P.C and during trial;

(d). Presence of appellants No.1 to 5 at the site of scene was natural and purely accidental as they all live in different adjacent houses of the locality, as the the same can be appreciated from the Spot Map (Ex.P/13).

Learned counsel for the appellants further submits that presence of appellants No.1 to 5 at the site of scene, therefore, cannot constitute unlawful assembly as defined under Section 141 of I.P.C. Therefore, conviction of appellants under Section 302/149 and 307/149 of I.P.C is bad in law.

It is further submitted by learned counsel that appellant No.6 Lakhan Singh could not have been convicted for the offences under Section 302/149 and 307/149 of I.P.C and awarded life sentence, regard being had to the evidence on record that due to sudden and grave provocation, he had fired from the gun of his father Ajmer Singh (Seized vide Ex.P/36) and there was no intention to cause homicidal death of Shyam Singh and Balister Singh. Therefore, at the most, appellant No.6 Lakhan Singh could have been convicted for offence under Section 304 Part 2 of IPC. Since he has already undergone sixteen and half years jail sentence, and maximum sentence prescribed under Section 304 Part 2 of IPC is up to ten years, therefore, his conviction deserves to be converted under section 304 Part 2 of IPC and he deserves to be released.

Learned counsel for the appellants relies upon the judgments of Hon'ble Supreme Court in the case of Bhudeo Mandal Vs. State of Bihar, reported in, AIR 1981 SC 1219 Para1, Lalji and Others Vs. State of U.P. reported in (1989) 1 SCC 437, Kuldip Yadav Vs. State of Bihar, reported in AIR 2011 SC 1736 Para 26 and 31, Roy Fernandes Vs. State of Goa reported in AIR 2012 SC 1030 and Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., reported in 2009 (4) Crimes 158 (SC) to buttress his submissions.

With the aforesaid submissions, learned counsel prays for setting aside of the impugned judgment.

7. Per contra, Shri Rajesh Shukla, learned Dy. Advocate General for the State while supporting the impugned judgment submits that appellant no.1 Jaikaran Singh was armed with gun (which though could not be seized) and appellant No.5 Majboot Singh was armed with Bhala. Appellants No.2 Kedar, appellant No.3 Shiv Singh and appellant No.4 Janak Singh were not armed with any weapon, but all of them are members of the same family along with appellant No.6 Lakhan, as is well evident from the cause title. Appellant No.2 Kedar, appellant No.3 Shiv Singh and appellant No.4 Janak Singh are real brothers, appellant No.1 Jaikaran is the son of appellant no.2 Kedar Singh and appellant no.5 Majboot Singh is the son of appellant No.4 Janak Singh. Appellant No.6 Lakhan is the Grandson of appellant No.2 Kedar Singh, as his father Ajmer Singh is the son of appellant No.3 Kedar. All the appellants after hearing quarrelsome noises in close proximity of their houses, premeditated and with common object, first armed themselves with weapons as described in the FIR and then came together on spot. Therefore, presence of appellants on the spot has rightly been held to be as members of `unlawful assembly', as defined under Section 141 of IPC and well corroborated with the deposition of Nahar Singh (PW3). They all threatened the dead and injured persons with dire consequences and also exhorted to kill, as is evident from para 2 of the deposition of Nahar Singh (PW3).

Learned counsel further submits that the ingredients of `unlawful assembly' are, as such, present in the present case. It is not necessary that an act or an overt act is to be attributed to each of the member of the `unlawful assembly'. The evidence on record brings on surface that the appellants as members of such assembly also knew that there was every likelihood of causing alleged homicidal death of deceased Shyam Singh and Balister Singh in furtherance of common object. Due to three gunshots fired by appellant No.6 Lakhan Singh, both the deceased have suffered homicidal death and six persons were injured having sustained fire arm injury. Hence, each one of appellants has rightly been convicted for offences under Section 302/149 and 307/149 of IPC.

Learned counsel relies upon the judgment of Hon'ble Supreme Court in the case of Masalti and Others Vs. The State of U.P., reported in AIR 1965 SC 202 , Lalji and Others Vs. State of U.P. reported in (1989) 1 SCC 437 and State of U.P. Vs. Ravindra alias Babloo and Others reported in (2019) 19 SCC 65 .

8. Having heard learned counsel for the parties, it is expedient to first analyze the term `unlawful assembly' as defined under Section 141 of IPC because, unless appellants No.1 to 5 are held to be members of the unlawful assembly, their conviction under Section 302/149 and 307/149 of IPC cannot be sustained.

It is settled law that an assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is falling in any one of the clauses amongst first, second, third fourth and fifth of Section 141 of IPC. Indeed, an explanation appended thereto, also suggests that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

Hence, primary ingredient of “unlawful assembly” are :

(a). an assembly of five or more persons;

(b). existence of common object to commit an offence as described in first to fifth clause.

Indeed, determination of common object in fact, is a pure question of fact and is required to be analyzed with facts and circumstances of each case, of course, coupled with the conduct of parties including the weapons of offence they carried or were seized on the spot.

As regards the explanation appended to Section 141 of IPC, suffice it to say that common object may form on spur of moment. Prior concert in the sense of meeting of unlawful assembly members is not necessary. (Roy Fernandes Vs. State of Goa reported in AIR 2012 SC 1030 and Ramchandran and Others Vs. State of Kerala reported in AIR 2011 SC 3581 are referred).

At this juncture, it may also be necessary that unless the court records an impeccable finding as regards nature of common object and that object was unlawful, it shall not be safe to convict a person for offence under Section 302 with the aid of Section 149 of IPC only for the reason that he was armed with weapon. The judgment in Bhudeo Mandal Vs. State of Bihar, reported in AIR 1981 SC 1219 is relied upon in Kuldip Yadav Vs. State of Bihar, reported in AIR 2011 SC 1736 .

With the aforesaid settled principles of law, let us now examine the evidence brought on record.

9. To begin with, it is expedient to refer to the spot map Ex.P/13 wherein, it is described that the residences of appellant No.2 Kedar Singh, appellant No.3 Shiv Singh, appellant No.4 Janak Singh and that of deceased Shyam Singh are adjacent to each other. The incident had occurred in front of the house of Shiv Singh. The residences of all the appellants are in the close proximity of the place of incident.

In the first information report lodged by Vishambhar Singh (PW2), it is alleged that on 20.5.1993 at about 6.30 PM, while his son Narendra was fetching water from the well, a girl by the name of Gudiya, daughter of Ajmer Singh and sister of appellant No.6 Lakhan Singh in close proximity showed slipper to Narendra (insulting way of gesture), in reaction whereof, he showed his leg. During this period, mother of Gudiya came on the spot and picked up a quarrel with Narendra in abusive language. Having overheard the aforesaid noises, complainant Vishambhar Singh came out of the house along with Kamal Singh, Dileep Singh, Satyapal Singh, Jagdish Singh, Nahar Singh, Kamla Bai, Radha Bai, Nanhe Khan, Kallu, Sobran Singh, Balister Singh, and Nathu and made all possible efforts to settle the dispute. Thereafter, deceased Shyam Singh also came on the spot and with folded hands, apologized for any mistake committed by his Grandson Narendra. Thereafter, appellant No.6 Lakhan Singh armed with gun of his father Ajmer Singh, Jaikaran Singh armed with gun (which was not seized during investigation), Majboot Singh with Bhala and one Ramprakash with axe (since deceased during trial) while appellant No.2 Kedar Singh, appellant No.3 Shiv Singh and appellant No.4 Janak Singh came bare handed on spot. Appellant No.6 Lakhan Singh fired three gunshots with intention to kill aforesaid persons standing on the spot. First gunshot injury was suffered by deceased Balister Singh on his head, earlobe and face, besides, Nahar Singh sustained injuries on his eyebrows and back with the pellets of bullet. The second gunshot injury hit chest, stomach and armpit of Kallu and others namely Nannnu Khan, Nathuram, Radha Bai, Kamla Bai and Sobran suffered injuries by pellets of bullets and the third gunshot hit Shyam Singh on his stomach, private parts, hands and legs causing homicidal death. As a result, Shyam Singh and Balister Singh died unnatural death on the spot. However, Kallu and other injured could survive.

Eye witnesses Vishambhar Singh (PW2), Nahar Singh (PW3), Dileep Singh (PW4), Kamal Singh (PW5), Satyapal Singh (PW7), Sobran Singh (Pw8), Radha Bai (PW11), Nanhe Khan (PW12), Nathuram (PW14) and Sher Singh (PW24) were examined. However, Sobran Singh (PW8), Nanhe Khan (PW12) and Nathuram (PW14) turned hostile and belied the story of prosecution. Further, Dileep Singh (PW4), Kamal Singh (PW5), Satyapal (PW7) and Sher Singh (PW24) have specifically stated that none of the appellants No.1,2,3,4 and 5 were armed with weapons. However, other eye witnesses namely Vishambhar (PW2), Radha (PW11) and Kallu (PW13) have stated that appellant no.1 was armed with gun and appellant No.5 was armed with Bhala. However, even these witnesses did not allege that appellants No.2,3 and 4 were armed with any weapon.

Indeed, Nahar Singh (PW3) in his ocular evidence has stated that they were shouting to kill all the members of complainant party present their. Albeit, he has not pin-pointed as to which of the accused, had exhorted.

Upon analysis of the evidence brought on record, it is well evident that all appellants came out together from different houses after hearing quarrelsome noises at the site of scene. It is difficult to conclude that each of the appellants assembled with pre-meditation of mind in furtherance of common object to cause homicidal death of members of the complainant party. There is no cavil of doubt that except appellant No.6, none of the appellants no.1 to 5 have either acted or overtly acted to commit the offence of the nature alleged against them with the aid of Section 149 of I.P.C. Besides, none of the appellants No.1 to 5 have used force or the alleged arm of gun or Bhala in the hands of Jaikaran and Majboot Singh. The allegation of exhortation coming in the evidence of Nahar Singh (PW3), is also vague and omnibus and not pointed to any particular appellant.

10. Now, applying the principles as laid down by Hon'ble Supreme Court in the context of “unlawful assembly”, we need to address if the factual matrix in hand, tantamounts to formation of unlawful assembly by appellants No.1 to 5 along with appellant No.6 to sustain the conviction under Section 302/149 and 307/149 of IPC. We have gone through the evidence of each of the eye witnesses and other material collected during course of investigation. Regard being had to the factual matrix in hand, we are of the view that appellants No.1,2,3,4 and 5 could not be said to be a member of unlawful assembly with common object to cause homicidal death of deceased Shyam Singh and Balister Singh and cause injuries to other injured witnesses.

11. It is evident that the dispute had arisen between sister of accused/appellant no.6 Lakhan Singh, Gudiya and Narendra son of complainant Vishambhar Singh (PW2) where, mother of Lakhan Singh had also involved herself. Lakhan got infuriated and thereafter armed with the gun, he reached on the spot and instantly fired three gunshots, one gunshot from the ground and two gunshots from the terrace as described in the FIR as well as ocular evidence of each of the eye witnesses and discussed above. There is no evidence on record that appellants No.1 to 5 either instigated appellant No.6 Lakhan Singh to fire first gunshot or other two gunshots from the terrace. As such, role of any of the appellants No.1 to 5, in no way, can be said to be in tune with that of appellant No.6 in furtherance of the common object of causing homicidal death of deceased Shyam Singh and Balister Singh.

12. Consequently, we are of the view that the court below has committed grave illegality while having convicted appellants No.1 to 5 under Sections 147, 302/149 and 307/149 of IPC and appellants No.1 and 5 under Section 148 of IPC along with appellant No.6 Lakhan Singh. Resultantly, the impugned judgment is set-aside so far as appellants No.1 to 5 are concerned. They are on bail. Their bail bonds and surety bonds stand discharged.

13. Now, we consider the submissions of learned counsel for the appellant No.6 Lakhan Singh and of respondent/State on the question of conviction and sentence of appellant No.6 under Section 302 and 307 of IPC.

14. Though learned counsel for the appellant submits that appellant No.6 out of sudden and grave provocation had picked up the gun and fired gun shots, as brought on record in the FIR and through ocular evidence, nevertheless, he did not have the intention to cause homicidal death of Shyam Singh and Balister Singh and injuries to other present on spot. Therefore, the court below has committed error of law and fact while convicting him under Section 302 and 307 of IPC. In all fairness, at the most, he could have been convicted under Section 304 Part 2 of IPC and since he has already undergone sixteen and half years in jail custody therefore, he deserves to be released as the maximum punishment for offence under Section 304 Part 2 of I.P.C is ten years.

15. Shri Shukla, on the other hand while combating the aforesaid submissions submits that conduct and act of appellant No.6 Lakhan Singh as surfaced through evidence on record unequivocally and unambiguously leads to the conclusion that with object to kill each of the deceased and injured the witnesses standing on the site, he had full knowledge and intention when he fired three gunshots, one from the ground and thereafter two from the terrace. The course of event and sequence of facts therefore, leads to the irresistible conclusion that with an intention to kill, appellant No.6 Lakhan Singh had fired three gunshots resulting into the death of deceased Shyam Singh and Balister Singh and injuries sustained by other eye witnesses, as discussed above.

16. Before entering into the merits of the rival contentions in this behalf, the act of appellant Lakhan is to be analyzed in juxtaposition with the provision of S.300, IPC.

It is noteworthy that genesis of the incident is a petty face-off between Narendra, son of complainant and Gudiya, daughter of Ajmer Singh, while Narendra was drawing water from the Well. There was no provocation of any sort, much less grave and sudden for appellant Lakhan so as to justify his act of firing three gun shots from different locations on the complainant party resulting into death of Shyam Singh and Balister Singh and various injuries to other persons. At the cost of repetition, it is worthwhile to recapitulate that Lakhan first fired a gunshot from the house of his grandfather Shiv Singh causing injuries to Balister Singh and Nahar Singh. Not satisfied with the fatality of this shot, he then climbed to the terrace of his house and fired a second gunshot, pellets whereof caused injuries to various members of the complainant party. Still dissatisfied, he fired a third gunshot at Shyam Singh, father of complainant, who died on the spot,while Balister Singh died during treatment. Thus, it can safely be deduced that appellant Lakhan had fired with an intention of causing death or of causing such bodily injury which he knew was likely to cause death. As such, his act clearly falls within the definition of S.300, IPC (firstly and secondly) which reads thus:

300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— (Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or—

Further, by no stretch of imagination the aforesaid act falls within any of the exceptions appended thereto.

In view of the aforesaid, the impugned judgment convicting and sentencing appellant No.6 Lakhan Singh for offences under Section 302, 307 of IPC is, consequently upheld.

The appeal stands partly allowed and disposed of.