GURMAIL SINGHversusSTATE OF PUNJAB & ANR.

                    [2012] 13 S.C.R. 517


                      GURMAIL SINGH                                A
                               v.
               STATE OF PUNJAB & ANR.
          (Criminal Appeal No. 1782 of 2008 etc.
                   NOVEMBER 21, 2012
                                                                   B
  [SWATANTER KUMAR AND MADAN B. LOKUR, JJ.]

    Penal Code, 1860:

    ss. 3021149 - Death caused by 8 accused - By fire-arm          c
and sharp-edged 'gandasa' - Land dispute between nval
parties - Leading to one murder by a relative of the accused
- Prosecution against three of the accused abated due to their
death - Trial court convicted one appellant-accused u/s. 324
and u/s. 25 of Arms Act and acquitted the other appellant-         0
accused of all the charges - Another accused was convicted
uls. 304 (Part I) - High Court convicted all the accused
including the two appellants-accused uls. 3021149 - On
appeal, held: The conviction of the appellants-accused u/s.
3021149 is co"ect - The facts of the case prove that the           E
accused assembled with a common object of committing
murder - Arms Act, 1959 - s. 25.

     s. 149.,. Applicability of - Held: To bring a case withins.
149, there lnust be in existence an unlawful assembly; an
offence is committed by a member of such assembly and the          F
offence committed must be in prosecution of a common
object of the unlawful assembly or must be such that the
members of the unlawful assembly knew that it was likely to
be committed in prosecution of the common object.
                                                                   G
    The two appellants-accused alongwith six others
were prosecuted for having caused death of one person
and for causing Injuries to others. The prosecution case
was that there was a land dispute pending in a court
                              517                                  H
    518      SUPREME COURT REPORTS            [2012] 13 S.C.R.


A between the accused party and the complainant partly.
  The dispute had also led to murder of the son of the
  deceased by a relative of the accused party to which the
  deceased was the eye-witness. One of the appellant-
  accused also sustained injuries during the incident.
B During trial, three of the accused died and thus the
  prosecution abated against them. The trial court believed
  the prosecution story. However, it held that no case was
  made out that the accused persons formed unlawful
  assembly with any common object. The Court convicted
c one accused u/s. 304 (Part-I) IPC. Appellant-accused in
  Appeal No. 1782/2008 was punished u/s. 324 IPC and the
  appellant-accused in Appeal No.1783/2008 was acquitted
  Qf all the charges. Appeals were filed by the convicts as
  well as the State. High Court upheld all the conclusions
0 of the trial court except the conclusion regarding
  formation of unlawful assembly with a common object
  and held that presence of eight persons armed with guns
  and gandasas with a motive to wreak vengeance on the
  deceased and his family, pointed to the existence of an
  unlawful assembly having a common object and thus the
E ingredients of s. 149 IPC were made out. Further it held
  that an offence u/s. 302 IPC was made out against the
  accused (including the two appellants) and sentenced
  them to life imprisonment. Hence the present appeals.

F         Dismissing the appeals, the Court

      HELD: 1. The appellants are liable to be convicted for
  an offence punishable u/s. 302 IPC. The record does not
  show any undue delay either in lodging the FIR or in
G dispatching the special report to the lllaqa Magistrate. It
  is wrong to make a fetish out of every delay in lodging
  an FIR. Given the facts of this case, there was no
  unreasonable or unexplained delay in lodging the FIR.
  [Paras 37, 40 and 71] [530-C; 531-B; 540-F]
H
       GURMAIL SINGH v. STATE OF PUNJAB                  519


    Jitender Kumar v. State of Haryana (2012) 6 SCC 204:        A
2012 (4) SCR 408 - relied on.

     2. It is not correct to say that there was no motive for
the appellants to commit the crime. It is quite clear that
there was a land dispute between the families of rival          B
parties. Evidence in this. regard was led by PW-3, a Court
Ahlmad working in the concerned court. The existence
of a land dispute was also testified to by PW-4. That the
land dispute was not a trivial matter is clear from the fact
that it even led to the murder allegedly by a relative of the   C
accused. The deceased was an eye-witness to the
murder. Thus, not only was there a motive for committing
the crime but the motive had already led to a murder on
an earlier occasion. [Paras 41 & 42) [531-C-E]

     3. The courts below have not doubted the presence          D
of PW4 -complainant at the scene of the crime and there
is no reason to differ with this concurrent finding only
because he did not suffer any injuries or that his
presence was not mentioned by the deceased in his
dying declaration. Under the circumstances of the case          E
that his sister was married to the son of the deceased,
the presence of PW-4 in the village is explained. [Paras
45 and 48) [532-B-F]

    4. The prosecution's "failure" to explain the injuries
on the accused would not disprove the case of the               F
prosecution .. Although the accused in his statement u/s.
313 Cr.P.C. says that complainant party attacked him with
gandasas, the evidence on record does not indicate that
any of the victims were armed. On the contrary, the
evidence indicates that the accused received injuries at        G
the hands of his co-accused in the darkness. As long as
the evidence on record is trustworthy, the failure of the
prosecution to explain the injuries on an accused may
not necessarily impact on its case. [Paras 49 and 50] [532-
G-H; 533-A-C]                                                   H
    520    SUPREME COURT REPORTS           [2012] 13 S.C.R.


A      Mano Dutt v. State of U.P. (2012) 4 SCC 79: 2012 (3)
    SCR 686 • relied on.
       5. Section 149 IPC constructively criminalizes all the
  members of an unlawful assembly, if a member of that
  assembly commits an offence in prosecution of a
9
  common object of that assembly or if the members of that
  assembly knew likely to be committed in prosecution of
  that object. To bring a case within Section 149 IPC, three
  features must be present. Firstly, there must be in
  existence an unlawful assembly within the meaning of
C Section 141 IPC. This is a mixed question of fact and law,
  which was overlooked by the trial Judge. Secondly, an
  offence must have been committed by a member of the
  unlawful assembly. Thirdly, the offence committed must
  be in prosecution of a common object of the unlawful
D assembly or must be such as the members of the
  unlawful assembly knew likely to be committed in
  prosecution of that object. (Para 54] [535-A·D]

        6. In the present case, eight persons had assembled
E with guns and sharp-edged gandasas. There cannot be
  any conclusive proof with regard to what was in the
  contemplation of the unlawful assembly, but it is clear that
  the assembly was not without a purpose. Their getting
  together and firing a few shots in the air before the
F incident actually took place suggests that they gathered
  to either display a show of strength or commit an offence..
  It is unlikely that they would have gathered in the village
  from two other villages, only for a show of strength. Even
  if they did, the explanation to Section 141 IPC makes it
G clear that an assembly, not unlawful when It assembled,
  may subsequently become an unlawful assembly. Thus,
  the accused persons had assembled with a common
  object of committing an offence and not merely as a show
  of strength and, therefore, they constituted an unlawful
  assembly. [Paras 56 and 59) [536-E-G; 537-C-D]
H
       GURMAIL SINGH v. STATE OF PUNJAB                  521


     7. The trial court held that offences under part I of      A
Section 304 of the IPC and under Section 324 of the IPC
were committed. The trial court proceeded on the basis
that since the injuries inflicted on the deceased were not
on any vital part of his body, it cannot be said that the
common object of the unlawful assembly was to kill him.         B
It is not possible to overlook the fact that at least one
injury caused to the deceased with a firearm was on a vital
part of his body. That apart, he had as many as 116
lacerated wounds and 15 pallets were found in his body.
He also had a couple of incised wounds, though not on           c
any vital part of his body. It is not as if only one gunshot
was fired or one gandasa blow given to him. The
evidence is clear that the offence committed was murder.
Assuming this was not so, in view of the third clause of
Section 300 IPC, there can be no doubt that if the              0
unlawful assembly did not murder the deceased, it
certainly caused such bodily injury to the deceased and
others with him as to result in his death. Given the
number and nature of injuries, it is difficult to come to any
conclusion other than that the injuries were sufficient in      E
the ordinary course of nature to cause death. [Paras 60,
61 and 63] [537-D-G; 538-C-E]

     Lalji v. State of U.P. (1989) 1 SCC 437: 1989 (1) SCR
130; Chanakya Dhibar (dead) v. State of West Bengal (2004)
12 SCC 398: 2003 (6) Suppl. SCR 1181; Roy Fernandes v.          F
State of Goa (2012) 3 SCC 221: 2012 (1) SCR 477 - relied
on.
                    Case Law Reference:
    2012 (4) SCR 408            Relied on         Para 38       G
    2012 (3) SCR 686            Relied on         Para 50
    1989 (1) SCR 130            Relied on         Para 65
    2003 (6) Suppl. SCR 1181 Relied on            Para 65       H
    522      SUPREME COURT REPORTS               [2012] 13 S.C.R.


A         2012 (1) SCR 477           Relied on         Para 65
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1782 of 2008.
      From the Judgment & Order dated 10.10.2006 of the High
B Court of Punjab & Haryana at Chandigarh in Crl. Appeal Nos.
  445-DBA, 232-SB of 1995 and in Criminal Revision No. 514
  of 1995.
                                  WITH
C Crl. A. No. 1783 of 2008.
        Rajeev Sharma, Rupesh Kumar, Sukh Deo Singh for the
    Appellant.
        V. Madhukar, AAG, Paritosh Anil (for Kuldip Singh) for the
    Respondents.
D
          The Judgment of the Court was delivered by
        MADAN B. LOKUR, J. 1. The substantive question before
  us is whether the High Court was right in reversing the view
  expressed by the Trial Court that the provisions of Section 149
E of the Indian Penal Code (for short IPC) did not apply to the
  facts and circumstances of the case. Our answer is in the
  affirmative and we uphold the decision of the High Court in this
  regard. The appeals before us require to be dismissed.
    The appeals:
F
       2. Two appeals are before us: The first appeal is Criminal
  Appeal No. 1782 of 2008 filed by Gurmail Singh son of Bachan
  Singh. He has challenged his conviction by the High Court for
  an offence punishable under Section 302 of the IPC for which
  he was earlier acquitted by the Trial Court. He has also
G challenged the upholding of his conviction by the High Court for
  an offence under Section 324 of the IPC for causing injuries to
  Kaka Singh and Piaro.
          3. The second appeal is Criminal Appeal No. 1783 of 2008
    filed by Gurmail Singh son of Nahar Singh. He has challenged
       GURMAIL SINGH v. STATE OF PUNJAB                       523
             [MADAN B. LOKUR, J.]
his conviction by the High Court for an offence punishable under     A
Section 302 of the IPC read with Section 149 thereof as well
as for an offence under Section 148 of the IPC. Gurmail Singh
son of Nahar Singh has also challenged his conviction under
Section 324 read with Section 34 of the IPC for causing simple
injuries to Kaka Singh and Piaro as well as his conviction under     B
Section 326 read with Section 149 of the IPC for causing
grievous injuries to Gurmail Kaur. Gurmail Singh son of Nahar
Singh had earlier been acquitted of all charges by the Trial
Court.
The facts:                                                           c
    4. There was a dispute between the families of Gurdial
Singh and Nachhatar Singh. The disputants are related. The
dispute pertained to ownership of land and a civil suit is
pending between the parties in this regard in Mansa.
                                                                     D
     5. It appears that as a result of the land dispute, Nachhatar
Singh allegedly murdered Gurdial Singh's son Mohinder Singh
on 20th February 1989. Gurdial Singh was an eyewitness to
the alleged murder. We are told that the trial is still pending.
    6. On 10th March 1989 at about 9/9.30 p.m. Gurdial Singh         E
and his two brothers, Kaka Singh and Dial Singh along with
Joginder Singh, the complainant (whose daughter is married
to Gurdial Singh's son) were irrigating their fields in village
Heeron Kalan, Police Station Bhikhi, District Bhatinda (Punjab).
They were informed by Gurmail Kaur and Piaro (both daughters         F
of Gurdial Singh) that some shots were fired in the village near
Nachhatar Singh's house. On receiving this information, all of
them left for the village.
     7. When they were about to enter their house, a lalkara (a
challenge) was given by Gurmail Singh son of Nahar Singh (and        G
nephew of Nachhatar Singh) and Bibi (Nachhatar Singh's
sister) to the effect that no one from Gurdial Singh's party would
be spared. On this, eight persons (the accused) which included
Nachhatar Singh's nephews, their associates and Nachhatar
Singh's sister Bibi attacked them. It needs to be mentioned          H
    524     SUPREME COURT REPORTS               (2012] 13 S.C.R.

A here that some of these eight persons were residents of village
  Shahpur Kalan, while others were residents of village Jharon,
  both under Police Station Longowal, District Sangrur (Punjab).
        8. During the attack, Jarnail Singh (nephew of Nachhatar
  Singh) allegedly fired a shot with a 12-bore double barrel gun
B at Gurdial Singh and injured him on his left thigh. He allegedly
  fired another shot at Gurdial Singh and injured him on the finger
  of his right hand. Jarnail Singh has been convicted by the High
  Court of an offence punishable under Section 302 of the IPC,
  but we say nothing in this regard since he has filed a separate
C petition in this Court against his conviction.
       9. Gurmail Singh son of Bachan Singh (an associate) fired
  at Piaro with a 12-bore double barrel gun and injured her left
  ankle. He also fired two shots at Kaka Singh which hit him on
  the front side of his right shoulder and behind his right upper
D arm.

       10. Gurmail Singh son of Nahar Singh (and nephew of
  Nachhatar Singh) along with Pargat Singh (an associate) gave
  gandasa blows to Gurdial Singh on his right shoulder and on
E his right arm. Shingara Singh (husband of Bibi) also gave
  Gurdial Singh a gandasa blow on the left side of the forehead.
         11. Shingara Singh and Raju gave gandasa blows to
    Gurmail Kaur (daughter of Gurdial Singh) from the blunt end of
    the gandasa. Dial Singh also received some injuries.
F       12. In the scuffle that took place, Gurmail Singh son of
    Bachan Singh received some injuries.
        13. After the attack and on cries being raised by the
  victims, the assailants left the scene. The injured were taken
G to the Civil Hospital where Gurdial Singh succumbed to his
  injuries. Necessary medical attention was provided to Kaka
  Singh, Dial Singh, Gurmail Kaur and Piaro who had sustained
  injuries. Joginder Singh (complainant) went to the police station
  and lodged a first information report (FIR for short) at about
H 11.30 p.m. This reached the llaqa Magistrate the next morning
       GURMAIL SINGH v. STATE OF PUNJAB                      525
             [MADAN B. LOKUR, J.]
at about 6.30 a.m.                                                  A
     14. Based on the FIR, investigations were carried out and
a charge sheet was filed against eight persons. During the trial,
three accused Shingara Singh, Bibi and Raju died and the
prosecution abated against them. Of the remaining five
accused, we are concerned only with the appeals of Gurmail          B
Singh son of Bachan Singh (an associate) and Gurmail Singh
son of Nahar Singh and nephew of Nachhatar Singh.
     15. As can be seen, Gurmail Singh son of Bachan Singh
had injured Piaro and Kaka Singh with a 12-bore double barrel       C
gun. He also received some injuries in the scuffle that took
place. Gurmail Singh son of Nahar Singh was responsible for
giving gandasa blows to Gurdial Singh.
     16. In the trial before the Additional Sessions Judge,
Bhatinda, the prosecution examined twelve witnesses while the       D
defence examined one witness. The Trial Judge convicted
Jamail Singh under part I of Section 304 of the IPC. Gurmail
Singh son of Bachan Singh was convicted under Section 25
of the Arms Act for possessing an unlicenced gun. He was also
convicted under Section 324 of the IPC for causing injuries to      E
Kaka Singh and Piaro. Gurmail Singh son of Nahar Singh was
acquitted of the charges against him.
Decision of the Trial Court:
     17. The Trial Judge held that there was a land dispute
between Gurdial Singh and Nachhatar Singh. He relied on the F
statement of PW-3 Darshan Singh, a Court Ahlmad who
confirmed the pendency of the civil suit between Gurdial Singh
and Nachhatar Singh. The Trial Judge also relied on the
evidence of PW-4 Joginder Singh (complainant) to hold that
there was a land dispute between Gurdial Singh and Nachhatar G
Singh. He also noted his testimony to the effect that Mohinder
Singh son of Gurdial Singh was murdered by Nachhatar Singh
and that Gurdial Singh was an eyewitness to the alleged
murder. On this basis, the Trial Judge concluded that there
some enmity between the two families and that the appellants H
   526       SUPREME COURT REPORTS               [2012) 13 S.C.R.


A and others had a motive for committing the offences for which
  they were charged.
       18. Before the Trial Judge, it was contended that there was
  a delay in lodging the FIR of the incident and in sending a report
  to the llaqa Magistrate. The Trial Judge did not attach much
B significance to this and observed that the FIR was lodged after
  a delay of about 1% hours and it is not as if the delay was
  unreasonable. Moreover, the offence was first registered under
  Section 307 of the IPC but on the death of Gurdial Singh, it was
  converted into one punishable under Section 302 of the IPC. It
C was held that there was no challenge to the genuineness of the
  FIR nor was there any allegation that it was fabricated or
  doctored.
       19. On the merits of the case, the Trial Judge relied on the
  evidence of the eyewitnesses, PW-4 Joginder Singh, PW-5
0 Gurmail Kaur and PW-6 Piaro. Kaka Singh did not enter the
  witness box (he was apparently won over by the defence) but
  the testimony of the eyewitnesses was relied on to hold that
  Gurmail Singh son of Bachan Singh had injured him. The Trial
  Judge rejected the contention that PW-5 Gurmail Kaur and PW-
E 6 Piaro were interested witnesses and therefore they ought not
  to be believed.
       20. It was urged that Joginder Singh (complainant) was not
  present when the occurrence took place since he did not
F receive any injury. The Trial Judge rejected this contention,
  taking note of the fact that Joginder Singh (complainant) hid
  himself.
       21. The Trial Judge also rejected the contention that there
  were improvements in the statements of PW-5 Gurmail Kaur
G and PW-6 Piaro and held that there could be discrepancies with
  the passage of time.
       22. The medical evidence indicated that Gurdial Singh had
  received two injuries caused by a firearm and injuries from a
  sharp weapon. The post-mortem examination of the body of
H Gurdial Singh showed as many as 116 lacerated wounds and
        GURMAIL SINGH v. STATE OF PUNJAB                      527
              [MADAN B. LOKUR, J.]
15 pellets were found in his thigh. The injuries were ante mortem    A
in nature. The medical evidence also showed that Kaka Singh
received two injuries through a firearm and similarly a firearm
caused the injury received by Piaro. The injuries on Gurmail
Kaur from a blunt object were confirmed by the medical
evidence.                                                            B
     23. Therefore, on the facts alleged by the prosecution, the
Trial Judge agreed with the prosecution and believed all its
witnesses. On the issues raised regarding the motive for the
crime and the alleged delay in lodging the FIR and submitting
a report to the llaqa Magistrate, the Trial Judge ruled in favour    C
of the prosecution.
     24. However, on the substantive legal issue before him,
the Trial Judge pithily observed that the prosecution did not lead
any evidence to show the formation of an unlawful assembly by
the accused persons nor was any evidence led to show that            0
the assembly had any common object. Individual convictions
were, accordingly, handed down.
     25. The Trial Judge was of the view that since the firearm
and gandasa injuries caused to Gurdial Singh were on non-vital       E
parts of his body, they were not dangerous to life and so there
was no intention on the part of Jarnail Singh and Gurmail Singh
son of Nahar Singh to kill him. Under these circumstances,
Jarnail Singh was convicted of an offence punishable under part
I of Section 304 of the IPC.
                                                                     F
     26. As far as Gurmail Singh son of Nahar Singh is
concerned, it was held that since the accused party was armed
with guns, causing injuries to Gurdial Singh with gandasas does
not arise. Therefore, Gurmail Singh son of Nahar Singh was
acquitted of the charges against him.                                G
    27. With regard to the firearm injuries caused to Kaka
Singh and Piaro on non-vital parts of their body, it was held that
Gurmail Singh son of Bachan Singh was guilty of an offence
punishable under Section 324 of the IPC.
                                                                     H
    528     SUPREME COURT REPORTS                (2012) 13 S.C.R.

A Decision of the High Court:
       28. Against the decision of the Trial Judge, the convicts
  filed appeals and the State also preferred appeals, though
  against the acquittal and for enhancement of the sentence
  awarded. The High Court of Punjab and Haryana disposed of
B the appeals by .judgment and order dated 10th October 2006
  (under appeal).
       29. The ~ntentions urged by the accused persons before
  the High Court were essentially a reiteration of the contentions
C urged before the Trial Court.
        30. The High Court held that the accused had a motive for
  committing the crime. The motive being the land dispute
  between the families and also that Gurdial Singh was an
  eyewitness to the alleged murder of his son Mohinder Singh
o by Nachhatar Singh. It was held that there was no delay in
  lodging the FIR by Joginder Singh. The High Court found that
  there was no substance in the contention that Joginder Singh
  was not present at the scene of the crime. The High Court did
  not give much significance to the contention that had Joginder
E Singh been present, he too would have suffered some injuries.
  The High Court was of the view that the witnesses had withstood
  their cross examination and it could not be said that they had
  given an incorrect version of the events because of inimical
  relations. The High Court found no merit in the contention that
F the investigating officer was biased.
       31. With regard to the injuries suffered by Gurmail Singh
  son of Nahar Singh, it was held that the evidence showed that
  the injuries were caused by his co-accused in the darkness. In
  any case, it was held that the question was not about the injuries
G suffered by Gurmail Singh son of Nahar Singh but the murder
  of Gurdial Singh and the injuries to his brother and two
  daughters.
         32. In other words, the High Court agreed with and upheld
    the conclusions arrived at by the Trial Judge on all issues.
H
        GURMAIL SINGH v. STATE OF PUNJAB                       529
              [MADAN B. LOKUR, J.]

     33. However, with regard to the constitution of an unlawful       A
assembly, the High Court disagreed with the Trial Court. It was
held that the presence of eight persons armed with guns and
gandasas with a motive to wreak vengeance on Gurdial Singh
and his family clearly pointed to the existence of an unlawful
assembly having a common object. That Gurdial Singh was the            B
target is clear from the number and nature of injuries received
by him, which subsequently resulted in his death. Alternatively,
it was held that the members of the unlawful assembly knew
that an offence against Gurdial Singh was likely to be
committed. As such, the ingredients of Section 149 of the IPC          c
were made out.
     34. With regard to an offence under part I of Section 304
of the IPC, it was held that the intention of the appellants was
to cause the death of Gurdial Singh or to inflict such bodily injury
as is likely to cause death. Consequently, it was held that an         D
offence punishable under Section 302 of the IPC was made
out. Accordingly, the appellants were sentenced to
imprisonment for life.
Submissions and discussion:
                                                                       E
     35. Learned counsel for the appellants reiterated the
contentions urged before the High Court. But we find no merit
in them.
Peripheral issues:
                                                                       F
     (a) Delay in lodging the FIR:
     36. It was contended that there was considerable delay in
lodging the FIR and also in sending the special report to the
llaqa Magistrate. The incident took place on 10th March, 1989
at about 9/9.30 p.m. and the FIR was lodged at about 11.30             G
p.m. There was, therefore, a delay of about two hours in lodging
the FIR. We do not think this delay is per se unreasonable.
       37. In situations such as the present, a realistic and
 pragmatic approach is necessary. It is not as if the incident of
_firinq and inflicting of gandasa blows was over within a minute       H
    530       SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A or so. The entire incident would have taken some time, and
  thereafter, the victims would have to recover from the shock and
  trauma caused by injuries suffered by them and make
  arrangements for medical treatment. Often several emergent
  issues need attention and so, it is not as if the moment an
B incident is over, someone is expected to rush to the police
  station for lodging an FIR. However, if there is an unreasonable
  or unexplained delay in lodging a complaint, an argument can
  surely be made, but it is wrong to make a fetish out of every
  delay in lodging an FIR. Given the facts of this case, we do not
c think there was any unreasonable or unexplained delay in
  lodging an FIR.
       38. In this context, we may only refer to a recent decision
  of this Court (authored by one of us, Swatanter Kumar, J) in
  Jitender Kumar v. State of Haryana, (2012) 6 SCC 204 in
D which it was held:
          "It is a settled principle of criminal jurisprudence that mere
          delay in lodging the Fl R may not prove fatal in all cases,
          but in the given circumstances of a case, delay in lodging
          the FIR can be one of the factors which corrode the
E         credibility of the prosecution version. Delay in lodging the
          FIR cannot be a ground by itself for throwing away the
          entire prosecution case. The court has to seek an
          explanation for delay and check the truthfulness of the
          version put forward. If the court is satisfied, then the case
F         of the prosecution cannot fail on this ground alone."
         39. As far as the delay in sending the special report to the
  lllaqa Magistrate is concerned, it has come on record that
  Gurdial Singh was shifted to a Civil Hospital, along with other
G injured persons. The victims of the incident were being treated
  till sometime after 2.00 a.m. the next morning. Initially, an offence
  under Section 307 of the IPC was made out, but after Gurdial
  Singh succumbed to his injuries, it was converted to an offence
  punishable under Section 302 of the IPC. It is then that
  information about the death was conveyed to the lllaqa
H Magistrate. The fact that ttie lllaqa Magistrate was informed at
       GURMAIL SINGH v. STATE OF PUNJAB                     531
             [MADAN B. LOKUR, J.]
about 6.30 a.m. the next morning indicates that the information     A
was not unnecessarily delayed.
     40. We are satisfied that the record does not show any
undue delay either in lodging the FIR or in dispatching the
special report to the lllaqa Magistrate. The concurrent findings
of both the courts are upheld.                                      B
    (b) Motive:
     41. It was then contended that there was no motive for the
appellants to commit the crime. We do not agree. It is quite
clear that there was a land dispute between the families of         C
Gurdial Singh and Nachhatar Singh. Evidence in this regard
was led by PW-3 Darshan Singh, a Court Ahlmad working in
the concerned court at Mansa. The existence of a land dispute
was also testified to by PW-4 Joginder Singh.
     42. That the land dispute was not a trivial matter is clear    D
from the fact that it even led to the murder of Mohinder Singh
son of Gurdial Singh on 20th February, 1989 allegedly by
Nachhatar Singh. Gurdial Singh was an eyewitness to the
murder. Therefore, not only was there a motive for committing
the crime but the motive had already led to a murder on an          E
earlier occasion.
     43. We, therefore, reject the submission advanced by
learned counsel for the appellants in this regard and uphold the
concurrent opinion of both the courts below.
                                                                    F
     (c) Presence of complainant:
     44. Learned counsel for the appellants submitted that the
presence of PW-4 Joginder Singh at the scene of the crime
was doubtful and therefore the complaint lodged by him with
the police ought not to be taken note of. In this context, it was   G
contended that the absence of any injury on PW-4 Joginder
Singh strongly suggests that he was not present when the
incident occurred.
    45. We are of the opinion that too much is being read into      H
      532      SUPREME COURT REPORTS               [2012] 13 S.C.R.

 A this aspect of the case. Joginder Sing h's sister, Charanjit Kaur
   was married to Mohinder Singh son of Gurdial Singh. After
   Mohinder Singh's murder on 20th February 1989, Charanjit
   Kaur married Kewal Singh, another son of Gurdial Singh. Under
   the circumstances, the presence of Joginder Singh in the village
 B is explained.
        46. Joginder Singh would surely have been aware of the
   enmity between the parties and when the attack took place, he
   hid himself so as to escape the wrath of the appellants. This is
   quite natural, considering the unfortunate events that had taken
 C place only a few weeks earlier. It is for this reason that Joginder
   Singh did not receive any injury, as explained by him.
         47. At this stage, we may mention that learned counsel also
    sought to take advantage of the absence of any mention of
    Joginder Singh in the dying declaration Exhibit PW8/A given
  0 by Gurdial Singh. The dying declaration has not been relied on,
    either way or for any purpose, both by the Trial Court and the
    High Court. Therefore, we also do not think it appropriate to
    deal with the contents of the dying declaration. We may,
    however, only note that the failure of Gurdial Singh to mention
 .E the presence of Joginder Singh poes not necessarily mean that
    Joginder Singh was not present at the scene of the crime.
        48. We may also note that both the courts below have not
   doubted the presence of Joginder Singh at the scene of the
 F crime and we see no reason to differ with this concurrent finding
   only because Joginder Singh did not suffer any injuries or that
   his presence was not mentioned by Gurdial Singh in his dying
   declaration.
            (d) Injuries on Gurmail Singh:
- G      49. Learned counsel for the appellants contended that
   Gurmail Singh son of Bachan Singh had suffered serious
   injuries and the prosecution has not explained these. Although
   Gurmail Singh son of Bachan Singh in his statement under
   Section 313 of the Criminal PrQcedure Code says that Gurdial
 H Singh, Dial Singh and Kaka Singh attacked him with gandasas,
       GURMAIL SINGH v. STATE OF PUNJAB                       533
             [MADAN B. LOKUR, J.]

the evidence on record does not indicate that any of the victims      A
were armed. On the contrary, the evidence indicates that
Gurmail Singh son of Bachan Singh received injuries at the
hands of his co-accused in the darkness. In these
circumstances, the prosecution's "failure" to explain the injuries
on Gurmail Singh son of Bachan Singh would not disprove the           B
case of the prosecution, namely, that Gurdial Singh was killed
and some of those with him had been seriously injured.
     50. As long as the evidence on record is trustworthy (and
it has found to be so by both the courts below) the failure of
the prosecution to explain the injuries on an accused person          C
may not necessarily adversely impact on its case. In a recent
decision Mano Dutt v. State of U.P., (2012) 4 SCC 79
(authored by one of us, Swatanter Kumar, J) it was held as
follows:
                                                                      D
     "...... this Court has taken a consistent view that the normal
     rule is that whenever the accused sustains injury in the
     same occurrence in which the complainant suffered the
     injury, the prosecution should explain the injury upon the
     accused. But, it is not a rule without exception that if the
     prosecution fails to give explanation, the prosecution case      E
     must fail.
          Before the non-explanation of the injuries on the
     person of the accused, by the prosecution witnesses, may
     be held to affect the prosecution case, the Court has to         F
     be satisfied of the existence of two conditions:
            (i) that the injuries on the person of the accused
            were also of a serious nature; and
            (ii) that such injuries must have been caused at the
            time of the occurrence in question.                       G
     Where the evidence is clear, cogent and creditworthy; and
     where the court can distinguish the truth from falsehood,
     the mere fact that the injuries on the person of the accused
     are not explained by the prosecution cannot, by itself, be       H
    534       SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A         the sole basis to reject the testimony of the prosecution
          witnesses and consequently, the whole case of the
          prosecution. Reference in this regard can be made to
          Rajender Singh v. State of Bihar [(2000) 4 SCC 298],
          Ram Sunder Yadav v. State of Bihar ((1998) 7 SCC 365]
B         and Vijayee Singh v. State of U.P. [(1990) 3 SCC 190]."
        51. It is interesting to note that the issue of injuries suffered
    by Gurmail Singh son of Bachan Singh was not raised by the
    appellants at the trial stage and has, therefore, not even been
    adverted to by the Trial Judge.
c Substantive issue of Section 149 of the IPC:
        52. The final and more significant contention urged by
  learned counsel for the appellants was that the ingredients of
  Section149 of the IPC were not made out. It was pointed out
D that the Trial Court concluded that there was no evidence of an
  unlawful assembly, nor was there any evidence to show that the
  appellants and those with them had any common object to
  commit the murder of Gurdial Singh and injure Kaka Singh,
  Piaro and Gurmail Kaur. It was submitted that this finding was
E reversed by the High Court without any sufficient material on
  record.
         53. Before proceeding any further, it is worthwhile to quote
    in entirety what the Trial Judge had to say on the issue:
          "No evidence has been led by the prosecution to show that
F         unlawful assembly was formed by the accused with the
          common object of those composing such assembly. They
          can be convicted under S. 149 IPC only if the prosecution
          by way of evidence proved that the persons forming
          unlawful assembly should be animated by common object.
G         In the instant case no evidence has come forward to spell
          out that all the accused formed an unlawful assembly in
          prosecution of the common object of that assembly to inflict
          injuries to Gurdial Singh deceased etc. and in view of all
          this it is not possible to hold that (accused) guilty under
H         sections 148/149 IPC."
       GURMAIL SINGH v. STATE OF PUNJAB                        535
             [MADAN B. LOKUR, J.]
    54. Section 149 of the IPC constructively criminalizes all        A
members of an unlawful assembly if a member of that assembly
commits an offence in prosecution of a common object of that
assembly or if the members of that assembly knew likely to be
committed in prosecution of that object. To bring a case within
Section 149 of the IPC three features must be present. Firstly,       B
there must be in existence an unlawful assembly within the
meaning of Section 141 of the IPC. This is a mixed question
of fact and law, which was overlooked by the Trial Judge.
Secondly, an offence must have been committed by a member
of the unlawful assembly. Thirdly, the offence committed must         c
be in prosecution of a common object of the unlawful assembly
or must be such as the members of the unlawful assembly knew
likely to be committed in prosecution of that object. Once these
ingredients are satisfied, the provisions of Section 149 of the
IPC will come into play and cover every member of the unlawful
                                                                      0
assembly.
    55. Section 141 of the IPC is reproduced for convenience:
    141. Unlawful assembly.-An assembly of five or more
    persons is designated an "unlawful assembly", if the
    common object of the persons composing that assembly              E
    is-
    First.-To overawe by criminal force, or show of criminal
    force, the Central or any State Government or Parliament
    or the Legislature of any State, or any public servant in the
                                                                      F
    exercise of the lawful power of such public servant; or
    Second.-To resist the execution of any law, or of any legal
    process; or
    Third.-To commit any mischief or criminal trespass, or
    other offence; or                                                 G
    Fourth.-By means of criminal force, or show of criminal
    force, to any person to take or obtain possession of any
    property, or to deprive any person of the enjoyment of a
    right of way, or of the use of water or other incorporeal right   H
    536       SUPREME COURT REPORTS                [2012] 13 S.C.R.


A         of which he is in possession or enjoyment, or to enforce
          any right or supposed right; or
          Fifth.-By means of criminal force, or show of criminal
          force, to compel any person to do what he is not legally
          bound to do, or to omit to do what he is legally entitled to
B         do.
          Explanation.-An assembly which was not unlawful when
          it assembled, may subsequently become an unlawful
          assembly."
c         Section 149 of the IPC is reproduced for convenience:
          "149. Every member of unlawful assembly guilty of
          offence committed in prosecution of common
          object.-lf an offence is committed by any member of an
          unlawful assembly in prosecution of the common object of
D         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."
E
        56. Insofar as the present case is concerned, as many as
  eight persons had assembled with guns and sharp-edged
  gandasas. There cannot be any conclusive proof with regard
  to what was in the contemplation of the unlawful assembly, but
  it is clear that the assembly was not without a purpose. Their
F getting together and firing a few shots in the air before the
  incident actually took place suggests that they gathered to
  either display a show of strength or commit an offence. It is
  unlikely that they would have gathered in village Heeren Kalan
  (District Bhatinda) from two other villages, Shahpur Kalan and
G Jharon (District Sangrur) only for a show of strength. Even if they
  did, the explanation to Section 141 of the IPC makes it clear
  that an assembly, not unlawful when it assembled, may
  subsequently become an unlawful assembly.
          57. Also, given the fact that the assembly was armed, it
H
        GURMAIL SINGH v. STATE OF PUNJAB                        537
              [MADAN B. LOKUR, J.]
would not be off the mark to expect it to be for a somewhat             A
disreputable purpose and not merely by way of a show of
strength. This view is fortified by what actually transpired at the
scene of occurrence, namely, the lalkara given members of the
assembly that no one from Gurdial Singh's party will be spared.
     58. Additionally, it is also necessary to keep in mind the         B
antecedent circumstances, namely, the land dispute between
the parties and the murder of Mohinder Singh on 20th February
1989.
     59. In our opinion, if all the facts are looked at conjunctively   C
and not disjointedly, an overall picture of compelling
circumstances would emerge that the accused persons had
assembled with a common object of committing an offence and
not merely as a show of strength and, therefore, they constituted
an unlawful assembly.
                                                                        D
      60. What is the offence committed by members of the
unlawful assembly? The Trial Court would have us believe that
offences under part I of Section 304 of the IPC and under
Section 324 of the IPC were committed. The Trial Court
proceeded on the basis that since the injuries inflicted on             E
Gurdial Singh were not on any vital part of his body, it cannot
be said that the common object of the unlawful assembly was
to kill him.
     61. The High Court has not agreed with this view and we
endorse the opinion of the High Court in this regard. It is not         F
possible to overlook th'3 fact that at least one injury caused to
Gurdial Singh with a firearm was on a vital part of his body. That
apart, Gurdial Singh had as many as 116 lacerated wounds
and 15 pallets were found in his body. He also had a couple of
incised wounds, though not on any vital part of his body. It is         G
not as if only one gunshot was fired or one gandasa blow given
to Gurdial Singh - two shots were fired at him and gandasa
blows given.
    62. The High Court has referred to the third clause of
Section 300 of the IPC which reads as follows:                          H
    538       SUPREME COURT REPORTS                [2012] 13-S.C.R.


A         "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-
          2nd/y.- xxx xxx xxx

8         3rdly.-lf it is done with the intention of causing bodily
          injury to any person and the bodily injury intended to be
          inflicted is sufficient in the ordinary course of nature to
          cause death, or-
          4th/y.- xxx xxx xxx"
c       63. In our opinion, the evidence is clear that the offence
  committed was the murder of Gurdial Singh. Assuming this was
  not so, the High Court has drawn attention to the third clause
  of Section 300 of the IPC. There can be no doubt that if the
  unlawful assembly did not murder Gurdial Singh, it certainly
D caused such bodily injury to Gurdial Singh and others with him
  as to result in his death. Given the number and nature of
  injuries, it is difficult to come to any conclusion other than that
  the injuries were sufficient in the ordinary course of nature to
  cause death. In fact, Gurdial Singh did succumb to the injuries.
E
         64. We have no doubt that the offence committed by the
    unlawful assembly was the murder of Gurdial Singh and injuries
    to other members of his party.
        65. Did the unlawful assembly have, as a common object
F the murder of Gurdial Singh, or knew that he was likely to be
  killed in prosecution of that common object? It was pointed out
  in Lalji V. State of U.P., (1989) 1 sec 437 (and approved in
  Chanakya Dhibar (dead) v. State of West Bengal, (2004) 12
  SCC 398 and Roy Fernandes v. State of Goa, (2012) 3 SCC
G 221) that,
          "Common object of the unlawful assembly can be gathered
          from the nature of the assembly, arms used by them and
          the behaviour of the assembly at or before scene of
          occurrence. It is an inference to be deduced from the facts
H         and circumstances of each case."
       GURMAIL SINGH v. STATE OF PUNJAB                       539
             [MADAN B. LOKUR, J.]
      66. From the facts and circumstances of the case, it is         A
quite clear that the assembly of eight had come from two
different villages (Shahpur Kalan and Jharon) to Heeron Kalan
at about 9/9.30 p.m. That they came with an aggressive intent
is clear from the fact that two of them were armed with 12-bore
double barreled guns and others with sharp-edged gandasas.            B
Two members of the assembly (Gurmail Singh, nephew of
Nachhatar Singh and Bibi, sister of Nachhatar Singh) gave a
lalkara (a challenge) to effectively "finish off" Gurdial Singh and
his party. Following up on this, shots were fired at Gurdial Singh,
Kaka Singh and Piaro. Gurdial Singh, Dial Singh and Gurmail           c
Kaur were subjected to gandasa blows. No one from Gurdial
Sing h's party (all of whom were unarmed) was spared, except
Joginder Singh who had hidden himself. As already noted,
Gurdial Singh succumbed to his injuries.
     67. That the death of Gurdial Singh was the common object        D
of the unlawful assembly would be clear from the result of the
post mortem examination conducted on Gurdial Singh. This
showed the following injuries as recorded by PW-2 Dr. H.S.
Lumba, Senior Medical Officer, Civil Hospital, Sangrur:
    1. There were 116 lacerated wounds varying from 0.5 cm            E
    to 0.5 cm and 0.75 cm to 0.75 cm in size on the front of
    left thigh in the middle part in an area of 25 ems x 27 ems.
    The thigh was swollen. On dissection clotted blood was
    present and the muscle and vessels were found lacerated
    15 pallets were found & packed.                                   F
    2. Incised wound 2 ems x 0.2 cm on the back of proximal
    inter-phalangeal joint of right index finger. The underlying
    bone was fractured.
    3. Lacerated wound 4 in number on the back of right index         G
    finger 0.5 cm x 0.5 cm (2) and other two 0.5 cm x 0.75
    cm. There was no bone injury.
    4. Lacerated wounds 2 in number on the back of right
    middle finger 0.5 cm x 0.5 cm. There was no bone injury.
                                                                      H
    540      SUPREME COURT REPORTS               [2012] 13 S.C.R.

A         5. Incised wound 3 ems x 0.2 cm x 0.75 cm on the lateral
          side of proximal phalanx of the left index finger. On
          dissection there was no bone injury.
          6. Lacerated wound 0.5 cm x 0.75 cm on the front and
          middle of penis.
B
        68. Surely, these injuries are severe enough to lead to a
    reasonable conclusion that the common object of the unlawful
    assembly was the murder of Gurdia! Singh.
       69. In addition to the above, we need to recall that the
C appellants had a cause for wreaking vengeance upon Gurdial
  Singh. As mentioned above, the motive was the land dispute
  between Gurdial Singh and Nachhatar Singh in respect of
  which a case was pending. The additional reason was the fact
  that Gurdial Singh was an eyewitness to the murder of his son
o Mohinder Singh, allegedly by Nachhatar Singh.
        70. The inference, on a totality of the facts and
  circumstances of the case, is compelling that the attack on
  Gurdial Singh was with the object of killing him and injuring
  those with him. The third requirement of Section 149 of the IPC
E is also met in this case.
         71. All the ingredients of Section 149 of the IPC having
    been met, we have no doubt that the High Court arrived at the
    correct conclusion that the appellants are liable for an offence
F   punishable under Section 302 of the IPC.
    Conclusion:
       72. Under the circumstances, we find no reason to interfere
  with the judgment and order under appeal. Accordingly, both
  the appeals are dismissed. However, we make it clear that
G since Jarnail Singh is not before us, we should not be
  understood to have made any comment on his role in the
  incident.
    K.K.T.                                    Appeals dismissed.