V.K. Mathur, J.All the aforesaid appeals under Section 374 Cr.RC. arises out of the impugned judgment dated 27.02.2008 passed by the learned Additional District and Sessions Judge, (Fast Track) No. 3, Ajmer, Camp Kishangarh in Sessions case No. 22/2005, and as such they are being decided by this common judgment.

2. The learned trial court has convicted that accused appellants Shyam Singh, Mahipal Singh, Bhim Singh and Raju Singh @ Rajendra Singh under Section 302 read with Section 149 IPC and sentenced them for life imprisonment with a fine of Rs. 5,000/- each in default of which, each to further undergo 2 years R.l. For the offence under Section 148 IPC, the trial court has sentenced the accused appellants for 3 years R.l. Both the sentences were to run concurrently. However, accused appellant Shyam Singh was acquitted of the offence under Section 3/25 of Arms Act.

3. Instant criminal proceedings were initiated on a report (Ex.P-1) lodged by Malta Ram son of Shri Harchand Jat at Police Station Arai on 12.01.2001 at about 11.15 A.M. It was mentioned in the report that on 12.01.2001, at about 09.00 A.M., the informant, Shyochand, Teju and wife of Shyochand, namely Suji had gone to Chosala Bus Stand for attending a hearing in the Court at Kishangarh. At about 10.00 A.M., while they were sitting at chabutara and waiting for a bus, a white colour vehicle came from the side of the village and went towards Kishangarh. As soon as the persons in the vehicle had seen the informant and others, they turned back towards Arai and stopped. It is further mentioned that Shyam Singh was sitting in the front seat of the car whereas in the rear seat, there were 5 to 6 persons, amongst them were Raju Dholi, Teju Dholi, Raj Singh, Mahipal, Bhim Singh and two other persons who came before them. It is alleged in the report that all the occupants of the car had stated that today is the opportunity to take revenge. Soon thereafter, Shyam Singh Dholpuria who was having a gun in his hand opened fire on Shyochand and Teju when they were trying to escape. Suji had gone towards the bus stand and saved herself by standing near a wail from where she had continued to see the incident. Shyochand and Teju, after having received bulled injuries went towards the shop and then fell down near the handpump. Thereafter, they collapsed. They they opened fire resulting in severe injury on the head of both the deceased. The assailants had thereafter stated that the work had been done and they have taken the revenge. At that time Sawara and Ramdev of Barna village were sitting on the Chosala at the Bus Stand and they had also witnessed the incident in which Shyochand and Teju died. It was stated in the report that murder had been committed because of a marpeet which had taken place a year ago with the complainant party. A little later police came from the side of village Arai and saw the place of occurrence.

4. On the aforesaid report, a first information report No.06/2001 (Ex.P-2) was registered at Police Station Arai for the offences, inter alia under Sections 143, 148, 149 and 302 IPC and under Section 3/25 of the Arms Act. Thereafter, the usual investigation commenced and during the course of it, the investigation officer had prepared the site plan; panchnama of the deceased persons; the postmortem of the dead bodies were conducted and thereafter the same were handed over to the relatives. The investigation officer had also packed up blood stained mud and ordinary mud. The empty cartridges and a vehicle Tata Sumo had also been seized. The accused Poonam Chand, Teju Dholi and Raju @ Rajaram were arrested. On conclusion of the investigation, a challan came to be filed against the accused Teju @ Tejaram, Poonam Chand and Raju @ Rajaram, before the concerning court. The investigation in respect of the accused Shyam Singh, Bhim Singh, Raju Singh, Mahipal Singh and Raju Dholi was kept pending under Section 173(8) Cr.RC.

5. The case being triable by the Court of Sessions, the same was committed to the Sessions Court from where it was transferred to the court of Additional District and Sessions Judge, Kishangarh. Thereafter, the learned District and Sessions Judge, Ajmer transferred the matter to the learned Additional District and Sessions Judge, (Fast Track) No.3, Ajmer, Camp Kishangarh for trial where the same was registered. So far as the accused Teju @ Tejaram, Raju @ Rajaram and Poonam Chand are concerned, trial was concluded by passing the judgment dated 12.03.2004. As regard the accused Teju @ Tejaram and Raju @ Rajaram, they were sentenced to life imprisonment and a fine of Rs. 5,000/-. They were also convicted under Section 148 IPC and sentenced for three years R.l. The accused Poonam Chand was acuquitted of the aforesaid offences on account of lack of evidence against him.

6. Subsequently, the accused Shyam Singh, Raju Singh and Lokendra Singh were arrested and on their information, the place of occurrence was got identified; on the information of the accused Shyam Singh, a 12 bore gun was recovered and on the information given by the other accused person, lathis were recovered. Supplement challan had thereafter been filed against the accused Shyam Singh and Raju Singh for the offence under Section 147, 148, 149 and 302 IPC and under Section 3//25 of the Arms Act. Charge-sheet was filed against Lokendra Singh for the offence under Section 212 IPC and after his arrest, he was enlarged on bail. The investigation against the accused Mahipal Singh, Bhim Singh and Padam Singh was kept pending under Section 173 (8) Cr.RC.

7. Later on the accused Mahipal Singh, Bhim Singh and Padam Singh were arrested and supplement charge-sheet was filed against Mahipal Singh and Bhim Singh for the offence under Sections 147, 148, 149 and 302 IPC. On committal of the case by the Court of Sessions, the same was transferred to the case by the Court of Sessions, the same was transferred to the learned Additional District and Session Judge Kishangarh. Thereafter on the direction of the District and Sessions Judge, Ajmer, the matter was transferred to the learned Additional District and Sessions Judge, (Fast Track) No.3, Ajmer, Camp Kishangarh.

8. On appearance of the accused before the Court below, the trial commenced after framing of charge against Shyam Singh for the offences lihder Section 148, 302/149 IPC and Section 3/25 of the Arms Act. The charges against Raju Singh @ Rajendra Singh, Mahipal Singh and Bhim Singh were framed for the offences under Section 148 and 302/149 IPC. The accused appellants denied the charges and claimed for trial. The accused Lokendra Singh and Padam Singh were later on discharged for the offence under Section 212 IPC.

The prosecution had, in support of its case, produced 59 witnesses and submitted 87 documents which were duly exhibited by the learned trial court. Thereafter, the statements of the accused persons were recorded under Section 313 Cr.PC., wherein it was stated that they are innocent and have been falsely implicated in the case on account of enmity. The defence had produced 4 witnesses in support of its case and exhibited 4 documents. On conclusion of the trial, the accused appellants were convicted and sentenced, as aforementioned. Hence the present appeals have been preferred by the accused appellants.

9. The learned counsel for the accused appellants have submitted that the learned trial court had erred in passing the impugned judgment as the prosecution has failed to prove its beyond reasonable doubt. Further, it has been submitted that the prosecution had subsequently changed the version because initial version which has come in the first information report and during the course of investigation, was later on improved by the prosecution witnesses during the trial, it has also been submitted that as a matter of fact, in the instant case, there are two sets of evidence produced by the prosecution. The learned counsel for the accused appellants have also submitted that the prosecution witnesses belonged to the same place and were interested person whereas the only independent witness, namely Sawara Ram had been declared hostile. It has also been submitted that a perusal of the statement of the prosecution witnesses would go to show that apart from the improvements which they had made in the version during the course of investigation, there was contradiction, so much so that the statement of the prosecution witnesses themselves were not consistent.

Further, it has been submitted that the prosecution has failed to produce any evidence so as to connect the accused Shyam Singh in the commission of the crime because no weapon of offence was recovered from him. Moreover, the report of FSL states that the weapon so recovered was non-functional. The prosecution had even produced the witness which was not even named in the first information report, which further goes to show that the prosecution is guilty of changing the version and making i improvements in the case. The accused appellants have been falsely implicated in the present case on account of enmity which was there between the parties on account of some earlier incident of marpeet which had taken place between them. The learned counsel for the accused appellants have further pointed out that the prosecution version is totally false which is o established from the fact that earlier, the prosecution case had come with the case that it was Shyam Singh alone who had opened fire on both the deceased persons, whereas at a later point of time, the prosecution witnesses had deposed that Shyam Singh as well as Mahipal Singh had fired on two deceased persons. Therefore, the learned counsel for the accused appellants have submitted that the prosecution has grossly failed to prove its case beyond reasonable doubt and as such, the learned trial court had committed grave error in convicting and sentencing the accused appellants and the same deserves to be quashed and set aside.

10. The learned counsels for the accused appellants have relied upon the case of Laxman and others v. State of Rajasthan 2005 (3) RCC 1456 in which PW-1, PW-2 and PW-3 disowned the statements made earlier when they were examined later and gave clean chit to six accused persons and made an attempt to implicate three appellants. The witnesses were not found reliable and the appellants were acquitted all the charges. In L.L. Kale v. State of Maharasthra and others 2000 Criminal Law Reporter (SC) 87 testimony of all the three prosecution witnesses were found untrustworthy, contradictory about the nature of injury inflicted and it was held that conviction is not sustainable. In Badam Singh v. State of Madhya Pradesh 2004(1) WLC (SC) Cri. 71 : 2004-05 (Supp.) Criminal Law Reporter (SC) 468, the conduct of the alleged eye witnesses was highly unnatural; medical evidence was showing that there was no blackening and charring of skin around the wound; presence of witnesses held to be doubtful and the accused appellants was given benefit of doubt. In State of U.P. v. Raja Ram and others 2008(1) WLC (SC) Cri. 394 : 2007 (4) Criminal Court Cases (SC) 505 the witnesses introduced different versions which was not in line with medical evidence. It was held by the High Court that trial court had rightly acquitted the accused by giving them benefit of doubt.

11. On the other hand, the learned Public Prosecutor and counsel for the complainant have supported the impugned judgment passed by the learned trial court. Further, they have submitted that from the very beginning i.e. lodging of first information report, it is more than clear that it was the accused appellants alone who had committed the offence. They had reached the place of occurrence duly armed and with full preparation. It is also established from the medical evidence on record that both the deceased persons died on account of firearm injury which they had sustained at the hands of the accused persons. Moreover, the accused persons had openly declared that today is an opportunity to take revenge from the complainant party. In pursuance thereof, the occurrence took place and two persons Shyochand and Teju died instantly on the spot. The learned Public Prosecutor has submitted that a minor inconsistent and contradictory statements does not mean that the entire case of the prosecution should be thrown out. On the contrary, inconsistency between the statements of the prosecution witnesses is natural as no two persons would narrate the version in the same words or manner. The learned Public Prosecutor and the learned counsel for the complainant has, therefore, submitted that there is no illegality or infirmity in the judgment passed by the learned trial court and the same deserves to be affirmed by this Court. Accordingly, the appeal filed by the accused persons deserves to be dismissed.

12. The learned Public Prosecutor and the learned counsel for the complainant has placed reliance on the case of Bhargavan and others v. State of Kerala 2004(1) WLC (SC) Cri. 239 : (2004) 12 SCC 414 , in which the deceased was brutally assaulted by accused persons and evidence of PW-18 was found sufficient to uphold the conviction, it was held that relationship is not a factor to affect credibility of a witness. It was also held that once a common object is formed, it may continue to exist upto a particular stage where after it may get modified or abandoned. Thus affect of Section 149 IPC may be different on different members of the same assembly. In this case interference with conviction and sentence of the accused was not called for. In Debashis Daw and others v. State of West Bengal 2011(1) WLC (SC) Cri. 60 : 2010 (9) SCC 111 it was held that mere presence of accused does not make him liable for conviction, it must be established that each accused participated with the common object of the unlawful assembly. In this case medical evidence supported evidence of PW-5 and PW-8 and conviction was upheld. In Jeevan and others v. State of Uttrakhand 2012 (13) SCC 598 it was held that entire trustworthy evidence cannot be rejected on fanciful ground or treated to be conjectures. It was held that discrepancies in the statement of eye witnesses were not material in nature and conviction was confirmed. In Rameshwar Dayal and others v. State of M.P. and another 2002(1) WLC (SC) Cri. 266 : 2002 Criminal Law Reporter SC 280, the accused formed unlawful assembly and inflicted multiple injuries to FT. Conduct of accused before and after incident sufficiently demonstrated their common object. Conviction and sentenced of the accused was upheld.

13. We have carefully considered the submissions made by the learned counsels for the parties and have carefully perused the evidence on record of the learned trial court.

14. A careful consideration of the evidence adduced by the prosecution would to go show that there are mainly three witnesses namely Ram Dev (PW-5), Malla Ram (PW-18) and Smt. Suji (PW-19) with regard to the alleged incident. We have to consider whether the prosecution has established the case against the accused appellants under Section 148 and 302/149 IPC

15. The Honble Supreme Court in the case of Shaji & Ors. v. State of Kerala, AIR 2011 SC 1825 , while examining the provisions of Section 149 IPC held as under:

"10. In order to understand the rival claims, it is useful to refer Section 149 IPC which reads as under:

"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of 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."

11. While considering the applicability of necessary ingredients of Section 149 IPC, we had an occasion to consider the same in Kuldip Yadav & Ors. v. State of Bihar, JT 2011 (4) SC 436 : (2011 AIR SCW 2404). After analyzing the conditions therein, it was held in paragraph 26 of the judgment as under:

"26 The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the o accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established "

The above principles have been reiterated in Bhudeo Mandal & Ors. v. State of Bihar, (1981) 2 SCC 755 : (AIR 1981 SC 1219 ), Ranbir Yadav v. State of Bihar (1995) 4 SCC 392 : (AIR 1995 SC 1219 : 1995 AIR SCW 1980), Allauddin Mian & Ors. Sharif Mian & Anr. v. State of Bihar, (1989) 3 SCC 5 : (AIR 1989 SC 1456 ), Rajendra Shantaram Todankar v. State of Maharashtra & Ors. (2003) 2 SCC 257 : (AIR 2003 SC 1110 : 2003 AIR SCW 647) and State of Punjab v. Sanjiv Kumar @ Sanju & Ors. (2007) 9 SCC 791 : (AIR 2007 SC 2430 : 2007 AIR SCW 4313).

12. The following conclusion in Kuldip Yadav (supra) is also relevant which reads as under: "It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC"

13. Though as per the decision of the Constitution Bench, the prosecution is well within its jurisdiction to establish the charge under Section 149 IPC even after the acquittal of two members of the unlawful assembly, however, in order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object "

16. The prosecution witness Malla Ram (PW-18) has stated that on 12.01.2001, he along with his uncles Teju and Shyochand had come to Chosala to attend hearing in a court. The incident had occurred at Chosala Bus Stand where many people were sitting and a white vehicle came from Arai side and stopped, after turning back. Five to seven people got down of it and amongst them 2-3 persons were having guns in their hands, namely Mahipal Singh, Raju Singh, Bhim Singh, Teju Dholi and there were 2-3 other persons whom he could not recognize. All of them gave threatening, as a result of which the people ran away. Thereafter, accused Shyam Singh and Mahipal Singh fired resulting in death of - Shyochand and Teju after their heads being shattered. This witness ran away from the spot to a nearby Gali and Suji, Sawara and Ram Dev were also with him. Thereafter the accused fired 3 rounds in the air and said that they have taken the revenge. Earlier there was quarrel between Jats and Rajputs and as a result of the enmity this incident took place. Thereafter the accused turned their car and fled towards Kishangarh. The prosecution witness Malla Ram (PW-18) has stated in his cross-examination that the accused Mahipal Singh and Shyam Singh had fired from their guns. Mahipal Singh fired thrice from his two barrel gun at Teju. The first fire of Mahipal Singh was on the head of Teju as a result of which Teju fell down near the nali and he could not get up. Then he fired 2-3 rounds on him. This witness had further stated that he did not tell the police that the accused Mahipal Singh had fired thrice. Further he stated that he had not mentioned that anyone had fired. This witness had also stated that in his earlier statement before the court that the accused Mahipal Singh was having a lathi in his hand was incorrect and what he is stating today is correct. This witness had further mentioned in his police statement that the accused Shyam Singh had fired at Teju and Shyochand, which is correct. The accused Shyam Singh had blasted the heads of Teju and Shyochand gun fire and his statement that Mahipal Singh had fired at the deceased was wrong.

17. The prosecution witness Smt. Suji (PW-19) has mentioned in her statement that at about 9-10 A.M. at Chosala Bus Stand a vehicle came from Arai side which turned back and the accused Raju, Mahipal Singh, Shyam Singh, Bhim Singh, Teju Dholi and Raju Dholi and 5-7 persons got down for it. The accused Shyam Singh then fired in the air and thereafter Shyam Singh put the gun under the Jaw of Shyochand and he also fired on the back of his head. The third fire was at the back of Shyochand. The accused Mahipal Singh fired at Jaw of Teju as a result of which the skull of Teju broke in two pieces. The accused also fired in the stomach. After killing these two persons, the accused fled towards Kishangarh. This witness was present at the Bus Stand along with Malla, Shyochand and Teju. There were other people present at the Bus Stand whom she does not know. The accused had taken revenge on account of murder of the wife of Mai Singh. After the incident accused/assailants ran away.

18. In her cross-examination Smt. Suji (PW-19) has stated that Teju Dholi and Raju Dholi had lathies with them, which were not used for beating but only for threatening. The accused Mahipal Singh had a gun and his earlier statement that he had a lathi in his hand, is wrong. She does not know why the police did not mention that Mahipal Singh had a gun in his hand. This witness has further stated that she and Malla (PW-18) did not receive any injuries in the incident. She has stated that the accused Mahipal Singh had fired at Teju and the accused Shyam Singh had fired at Shyoji. She does not know as to why this fact has not been written in her police statement.

19. The prosecution witness Ram Dev (PW-5) has stated that he was at Chosala Bus Stand at about 10.00 am for going to his Village Kutsra. At that time, a white colour Jeep coming from Arai stopped and turned back. The accused Mahipal Singh, Bhim Singh, Raju and Teju were having lathies and the accused Shyam Singh a gun with him. The accused Shyam Singh while getting down, fired with his gun at Teju and Shyoji. Teju had then fallen in a nali and Shyoji on the road. Thereafter, all the accused fled towards Kishangarh. At that time, 6-7 shots were fired. Later the police came to the site. Teju and Shyoji were accompanied by Malla and a lady whos name he does not remember. He knew the accused Shyam Singh and another accused who used to come to his Village. In his cross- examination this witness has stated that he had not seen the accused Mahipal Singh firing and had seen only one person doing so. This witness has further stated that the vehicle was driven by Poonam Chand who did not get down from it and he had not seen any other person firing from a gun.

20. The prosecution witness Sawar LJ (PW-44), who had turned hostile, has stated that he was sitting on Chosala Bus Stand for going to Indoli and in all about 10-20 persons were sitting there. At that time, accused Shyam Singh came in a white colour vehicle along with 5-6 persons. The vehicle stopped at the crossing, out of which 3-4 people got down and were carrying lathies in their hands. This witness has further stated that he did not see any person giving beating and running away from the spot. This witness saw that Shyochand had injuries on his head but he does not know who had fired on him.

21. The prosecution witnesses Dr. Gopal Mathur (PW-31) and Dr. A.P. Modi (PVV-32) had conducted the postmortem of deceased Teju and Shyochand and the postmortem reports are Ex.P-21 and Ex.P-22 respectively.

22. The deceased Teju as per postmortem report Ex.P-21 had the following injuries:-

Description-injuries of Skull, face, left lower side of chest and upper abdomen and right side chest below Axilla

1. Complete Avulsion of skull bones and scalp extending from right sided forehead encircling the left tempero parietal, occipital region upto right side of back of skull, exposing all bones and brain matter along with membranes, flap of scalp attached over right tempero frontal region. All skull bones broken to multiple pieces and brain matter lying out of skull. A lacerated wound (wound of entry) 3" x 2" just above the left ear, margins are blackened and charring.

2. A lacerated wound (wound of exit) 1" x " right side of forehead, margins are everted.

Fracture of left maxilla is present.

3. A lacerated wound 5"x4" on left lower side of chest and upper abdomen with blackening and charring of skin margins, sub cutaneaus tissues and muscles. Food material coming out from the wound (wound of entry).

4. A lacerated wound 1"x ", margins everted on right side of chest below axilla (wound of exist).

5. Fracture of left 9th, 10th, 11th Ribs is present.

6. A lacerated wound 2"x3" on left upper arm middle part anteriorly.

Opinion :- In the opinion of board the cause of death is shock and haemorrhage due to extensive Flead Injury (Brain), Injury to right lung as above as a result of gun shot wound. All injuries are ante mortem in nature.

23. The deceased Shyochand as per postmortem report Ex.P- 22 and the following injuries on his body:-

Description of injuries of skull, face, left forearm and knee joint.

1. Complete Avulsion of skull bones with scalp from middle of forehead to right side of back of scalp, only a portion of scalp attached on right temporal region. A wound of entry 3"x2" size is seen on left tempro parietal region of skull above left ear wound of entry is blackened and charred. There are multiple pieces of bones of the skull and all brain matter with menings was lying out of the skull.

2. Lacerated would " x " on middle of chin everted (wound of exit) fracture of both maxilla, fracture of both madulla is seen thus disfiguring the face.

Both central incisor teeth were absent.

3. Lacerated wound on assume of left forearm 3"x2" with fracture of both forearms.

4. Lacerated wound 2"x1" on front of left knee joint.

Opinion In the opinion of board, the cause of death is shock and haemorrhage due to extensive head injury (brain) as a result of gun shot wound.

All injuries are ante mortem in nature.

24. In the present case, admittedly the prosecution case rests on the evidence of Mallaram (PW-18), Smt. Suji (PW-19) and Ram Dev (PW-5) who have been said to have witnessed the occurrence.

25. The prosecution witness Ram Dev (PW-5) has categorically stated i that on getting down from the Jeep, the accused Shyam Singh fired from his gun at Teju and Shyochand who fell down in the Nali and on the road respectively and died. At that time, 6-7 shots were fired. The other accused Mahipal Singh, Bhim Singh, Raju and Teju had lathies with them and threatened the persons standing nearby not to come. Thereafter the accused ; appellants left in the Jeep towards Kishangarh. Though, Ram Dev had stated that the other accused persons were carrying lathies, but he has not elaborated anything about the role of the accused Mahipal Singh, Bhim Singh and Raju Singh @ Rajendra Singh and no overt act has been assigned to them.

26. The prosecution witness Malla Ram (PW-18), who is the complainant and had lodged the written report Exhibit P-1, has stated that the accused Shyam Singh and Mahipal Singh had fired from their gun at Shyochand and Teju who had died on the spot and their skulls were shattered. In his cross-examination this witness has stated that the gun was double barrel and the accused Mahipal Singh had fired three shots at Teju. However, this witness had stated that he had not mentioned to the police that the accused Mahipal Singh had fired three shots at Teju. This witness has stated as under :-

"efgiky flag }kjk rstw ij rhu Qk;j djus okyh ckr iqfyl dks ugha crkbZ%&

eSaus igys dksVZ esa tks c;ku gq, mlesa efgiky flag ds gkFk esa yM+dh dk gksuk crk;k] og ckr xyr gSA vkt tks c;ku fn, gSa og lgh gSa&

iqfyl c;ku esa eSaus ;ke flag }kjk cUnwd ls xksyh pykdj rstw o ;ks pUn dh [kksiM+h m+Mk nsus okyh ckr crkbZ gSA og lgh gSA rstw ;ks pUn dh [kksifM+;kWa ;ke flag us cUnwd ls xksyh pykdj mM+k nhA eSuas ;fn efgiky flag }kjk cUnwd pykdj [kksiM+h mM+k nsus okyh ckr crkbZ rks xyr gSA"

27. It is evident from the statement of Mallaram (PW-18) that he has also involved accused Mahipal Singh for firing at Teju which is contrary to the written report (Ex. P-1) wherein he had specifically stated that the accused Shyam Singh had a gun in his hand and he had fired at Shyochand and Teju 3 whose skull were shattered and they died on the spot. Mallarams account of the accused Mahipal Singh firing at Teju does not find place in his statement to the police and in the FIR (Ex.P-1). Thus, it is clear that Mallaram has introduced the name of accused Mahipal Singh in order to involve him in firing at Teju and Shyochand.

28. The prosecution witness Smt. Suji (PW-19) had stated that the accused Shyam Singh had fired at Shyochand and the accused Mahipal Singh at Teju resulting in their death. In her cross-examination, this witness has stated that in the police statement (Ex.D-3) she had mentioned that the accused Mahipal Singh had a gun in his hand but the police has not written so this fact. She had stated as under:-

"iznkZ Mh&3 esa efgiky flag ds gkFk esa cUnwd gksus dh ckr eSaus fy[kk nh FkhA iqfyl us D;ksa ugha fy[kh irk ugha%&

eSaus efgiky flag }kjk rstw ds xksyh ekjus dh ckr fy[kokbZ FkhA ;fn iqfyl ;k dksVZ esa ugha fy[kh gks rks eSa ugha crk ldrh D;ksafd eSa vui<+ gwWaA"

29. It is evident from the statement of Smt. Suji that she has made material improvement by involving accused Mahipal Singh in firing at Teju and fact does not find place in her police statement.

30. A critical analysis of the evidence, thus, clearly shows that the deposition made by the prosecution witnesses is consistent insofar as the allegation against the accused appellant Shyam Singh for opening fire at Teju and Shyochand. However, with regard to firing by the other accused Mahipal Singh at Teju is highly doubtful and there has been improvements by the prosecution witnesses Mallaram (PW-18) and Smt. Suji (PW-19). They have in their court statement sought to involve the accused Mahipal Singh for firing at Teju which had not been mentioned in the written report (Ex.P-1) on the basis of which, FIR (Ex.P-2) was registered at police station Arai, District Ajmer.

31. In the present case, it is clearly established from the statements of eyewitnesses Mallaram (PW-18), Smt. Suji (PW-19) and Ram Dev (PW-5) that the accused were coming in a Jeep from Arai and going to Kishangarh. On having seen the complainant Mallaram, Shyochand, Teju and Smt. Suji sitting at Chosala Bus Stand, the Jeep turned back. The accused appellants got down from the Jeep and the accused Shyam Singh fired at Teju and Shyochand, resulting in their death on the spot. The other accused appellants Mahipal Singh, Bhim Singh and Raju @ Rajendra Singh were carrying lathies and had threatened the other persons present at the Bus Stand.

32. in these circumstances, it cannot be inferred that the accused appellants had formed an unlawful assembly with the object to commit murder of Teju and Shyochand. After analysing the evidence of the prosecution witnesses, as above, it is amply clear that only accused Shyam Singh fired at Teju and Shyochand, resulting in their death.

33. In view of the above discussion and in the facts and circumstances of the present case, it is clear that the prosecution has failed to prove that the appellants Shyam Singh, Mahipal Singh, Bhim Singh and Raju @ Rajendra Singh were members of unlawful assembly whose object was to cause death of Teju and Shyochand. The eye witnesses have attributed the overt act to one accused Shyam Singh only who had caused death of Teju and Shyochand by firearm. The prosecution has further failed to attribute any overt act to the accused Mahipal Singh, Bhim Singh and Raju @ Rajendra Singh. Mere fact that these accused were armed with lathies would not be sufficient to prove the common object. The recovery of firearm from the accused Shyam Singh has not been proved but it cannot be held to be fatal to the prosecution case, in view of the statements of eyewitnesses regarding the act of the accused Shyam Singh.

34. As Section 149 IPC creates specific offence and deals with punishment of that offence, in order to convict a person or persons with the aid of Section 149 IPC, a clear evidence regarding the object of the assembly must be available and it must show not only the nature of the common object but also that it was unlawful. In the present case, we are satisfied that the ingredients of the offence have not been fulfilled or established by the prosecution.

35. Thus, the prosecution has not been able to prove its case beyond reasonable doubt that the accused appellants were members of unlawful assembly whose object was to cause of death of Teju and Shyochand.

36. The prosecution witnesses Dr. Gopal Mathur (PW-31) and Dr. A.P. Modi (PW-33) who were members of the board have opined that the cause of death of Teju was shock and haemorrhage due to extensive head injury (Brain), to right Lung, as a result of gun shot. The cause of death of Shyochand was also shock and haemorrhage due to extensive head injury (Brain) as a result of gun shot. It is thus proved from the evidence of prosecution that the head injuries of Teju and Shyochand were caused by accused appellant Shyam Singh and they were homicidal in nature.

37. It is clear from the postmortem reports Exhibit P-21 of Teju and Exhibit P-22 of Shyochand that injuries Nos. 1 and 3 of the deceased Teju had marks of blackening and charring. The injury No. 1 of deceased Shyochand was also blackened and charred which establishes that the fire was made from a close range. The distance from which fire had been opened at Teju and Shyochand and the extent of damage caused to the skull and internal organs, is indicative of the intention of the accused Shyam Singh to murder them.

38. We are, therefore, inclined to hold that the accused appellant Shyam Singh was responsible for causing death of Teju and Shyochand which he had done with the intention of causing such injury as he knew was likely to cause of death or with the intention of causing such bodily injury as sufficient in the ordinary course of nature to cause the death.

39. Consequently, the appeal filed by Shyam Singh S/o Shri Himmat Singh (287/2008) is partly allowed. The impugned judgment dated 27.02.2008 passed by the learned Additional District and Sessions Judge, (Fast Track) No.3, Ajmer, Camp Kishangarh in Sessions case No.22/2005, qua the accused Shyam Singh, is modified. He is acquitted of the offences under Section 148 IPC, but convicted for the offence under Section 302 IPC simplicitor and is sentenced to life imprisonment and a fine of Rs. 5,000/- in default of which to further undergo 2 years R.l. He is in jail and shall serve the remaining sentence.

40. However, the appeals filed by Mahipal Singh S/o Shri Himmat Singh (286/2008), Bheem Singh S/o Shri Bhom Singh (347/2008) and Raju Singh @ Rajendra Singh S/o Shri Maal Singh (538/2008) are allowed. The impugned judgment dated 27.02.2008 passed by the learned Additional District and Sessions Judge, (Fast Track) No.3, Ajmer, Camp Kishangarh in Sessions Case No.22/2005, qua the accused appellants Mahipal Singh, Bheem Singh and Raju Singh @ Rajendra Singh is quashed and set aside. They are acquitted of all the charges levelled against them. They are in jail and shall be released forthwith, if not required in any other case.

41. Appeal of Partly and of others fully allowed.