INDER SINGH & ORS.versusSTATE OF RAJASTHAN

                    [2015] 1 S.C.R. 563


                  INDER SINGH & ORS.                             A
                           v.
                 STATE OF RAJASTHAN
         (Criminal Appeal Nos. 493-495 of 2009)
                    JANUARY 06, 2015                             B
      [M.Y. EQBAL AND SHIVA KIRTI SINGH, ;J.l

     Penal Code, 1860: ss. 3021149, 3071149, 147 and 148
- Four persons died on account of assault - Complainant
seriously injured in the occurrence - 29 accused - Conviction    C
of 21 appellants - Challenged - .1-feld: Consistent deposition
of 6 eye witnesses to support prosecution version - Accused
persons chased, surrounded and caused death of 4 pers9ns
which showed their common object to commit crime - Courts
below rightly convicted the members of unlawful assembly for     D
offence u/ss. 302 and 307 with the aid of s. 149.

    Disposing of the appeals, the court

     HELD: 1. Since the number of accused persons was
                                                                 E
quite large and they were bold and strong enough to
cause four deaths in the open field in presence of large
number of persons, it cannot be difficult to understand
as to why independent witnesses from the village who
might have seen the occurrence, did not prefer to come
out to support the prosecution. But that will not take away      F
from the worth of deposition of six eye witnesses when
they have given a consistent account of the occurrence
which was disclosed in a nutshell soon after the
occurrence in the FIR lodged by P.W.15 who was
seriously and critically injured in the same occurrence          G
and whose presence cannot be doubted. The eye version
account of the occurrence and the medical evidence
showing large number of injuries including firearm

                             563                                 H
    564     SUPREME COURT REPORTS            [2015] 1 S.C.R.


A   in1uries supported each other. On this issue, the
    discussion and findings of the trial court against the
    accused persons is found to have sufficient merit. The
    criticism that some of the accused had sustained injuries
    for which the prosecution has not offered any explanation
B   was rightly rejected by the trial court because there was
    no counter version or even a suggestion disclosing that
    any of the accused had received injuries in the same
    occurrence and at the same place. Only if these two
    inqredients were established, the defence would have
c   been entitled to seek an explanation from the prosecution
    in respect of some injuries on three of the accused
    persons. Their injuries were neither fatal nor they caused
    any threat to life and that also reduces the burden upon
    the prosecution to explain injuries on the accused. [Paras
D   12, 13] [573-G-H; 574-8-E; 575-A]

        Siri Kishan & Ors. v. State of Haryana (2009) 12 SCC
    757: 2009 (6) SCR 1184; Lakshmi Singh & Ors. v. State of
    Bihar (1976) 4 SCC 394 - Distinguished.

E       Khairuddin & Ors. v. State of West Bengal (2013) 5 SCC
    753: 2013 (3) SCR 478 - held inapplicable.

       Whether the courts below have rightly applied
    Section 149 of the IPC against the appellants for
    convicting them for the death of four persons and for
F
    murderous assault on the informant?

         2. As per Section 149, even if any one member of an
    unlawful assembly commits an offence in prosecution of
    the common object of that assembly, every person who
G   at the time of committing of that offence was a member
    of the unlawful assembly is guilty of that offence. The
    group of persons who chased deceased no.1 and
    caused his death and thereafter chased, surrounded and
    caused death of three more persons besides causing
H
  INDER SINGH & ORS. v. STATE OF RAJASTHAN            565


grievous injuries to the informant was an assembly of five    A
or more persons rightfully deserving to be designated as
an unlawful assembly because by its action it showed
that its common object was to commit offence. The
subsequent acts clearly showed that the unlawful
assembly carried out its common object of committing          B
serious offence of murder of four persons and grievous
injuries to the informant. The courts below committed no
error in applying Section 149, IPC and convicting the
members of the unlawful assembly for offences under
Sections 302 and 307 of the IPC (with the aid of Section      c
149 IPC). [Paras 14, 17, 19 and 20] [576-F-G; 577-D-F]

    Roy Fernandes v. State of Goa & Ors. (2012) 3 SCC
221: 2012 (1) SCR 477; Ramchandran & Ors. v. State of
Kera/a (2011) 9 SCC 257: 2011 (13) SCR 923 - relied on.
                                                              D
    Ku/dip Yadav & Ors. v. State of Bihar (2011) 5 SCC
324:2011 (5) SCR 186 - referred to.

     3. In the peculiar facts of the case, the courts below
should have further decided as to how much
                                                              E
corroboration was required for accepting the presence
and participation of individual accused person. The
informant had though claimed presence of 29 persons
but subsequently five were acquitted by the trial court and
one was acquitted by the High Court. It was held in
Masalti that the courts should be cautious in cases of        F
arson and murder where the number of accused is large,
to rely upon the testimony of the witnesses speaking
generally without specific reference to the accused or the
specific role played by them. On this issue, on going
through the charts disclosing number of witnesses who         G
have deposed against individual appellants to show their
presence, participation, weapon and overt act, if any, the
test approved in Masalti's case needs to be followed in
this case also. Since the accused persons and the 6
                                                              H
    566      SUPREME COURT REPORTS            [2015] 1 S.C.R.


A   material eye witnesses in this case were co-villagers, it
    is expected that at least three witnesses should be in a
    position to name individual accused persons for
    sustaining his conviction. Applying that test, it is found
    that accused no.9, 18, 20, 27 and no.28 deserve to be
B   acquitted by granting benefit of doubt. This benefit of
    doubt arose in their favour because although they were
    named specifically by informant P.W.15 as persons who
    were members of the unlawful assembly and who
    participated in assault but such claim of the informant
c   was not supported by more than one witness. The
    appeals of remaining 16 appellants are dismissed. [Paras
    21 to 23] [577-H; 578-A-B, E-H; 579-D]

        Busi Koteswara Rao & Ors. v. State of Andhra Pradesh
D   (2012) 12 SCC 711: 2012 (9) SCR 1046; Masa/ti etc. v. State
    of Uttar Pradesh AIR 1965 SC 202: 1964 SCR 133 - relied
    on.

                       Case law reference :
          2009 (6) SCR 1184     Distinguished        Para 7
E
          (1976) 4 sec 394      Distinguished        Para 7
          2011 (5) SCR 186      referred to          Para 8
          2012 (9) SCR 1046     relied on            Para 8
F
          2013 (3) SCR 478      held inapplicable    Para 8
          1964 SCR 133          relied on            Para 9
          2012 (1) SCR 477      relied on            Para 18
G         2011 (13) SCR 923     relied on            Para 18
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    Nos .493-495 of 2009.

          From the Judgment and Order dated 29.05.2008 of the
H
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                567


High Court of Judicature for Rajesthan Bench at Jaipur in D.B.   A
Criminal Appeal No.313, 339 and 385 of 2004.

   R. Basant, Gouri Karuna, Das Mohanti, Ali Jethmalani,
Suman Kashyap, Saurab Ajay Gupta for the the Appellants.
                                                                 B
     Gp. Cpt. Karan Singh Bhati, Ajay Chowdhary, Madhurima
Ghosh, Jayant Bhatt (For Milind Kumar), Ram Naresh Yadav
(For Ruchi Kohli) for the Respondent.

    The Judgment of the Court was delivered by.
                                                                 c
      SHIVA KIRTI SINGH, J. 1. All these eight appeals arise
out of one criminal case bearing FIR No.188/01 dated
10.09.2001 of P.S. Sunail, Distt. Jhalwada (Rajasthan) lodged
by informant Amar Singh (P.W.15) against 29 named co-
villagers. All the 29 accused persons were chargesheeted by D
the police. After trial, five accused were acquitted and the rest
24 were convicted for various offences. Five appeals preferred
by 22 convicts were disposed of by a common judgment of the         •
High Court dated 29.05.2008 which is impugned in 7 criminal
appeals - 6 of them lodged in 2009 and Criminal Appeal
                                                                  E
No.1892 of 2011 by convict Kalu Lal lodged in 2011. Two of
the convicts, namely, Ram Singh and Kesar Singh (accused
nos.24 and 4 respectively) approached the High Court
belatedly through jail appeals which were disposed of by
judgment dated 10.03.2011 which is impugned in Criminal
Appeal No.1194 of 2011. Since all the matters arise out of one F
criminal case, they have been heard together and are being
disposed of by this common judgment.

     2. Before noticing the prosecution case and the main
defence of the appellants, it is noted that out of29 accused who G
were put on trial, accused nos.12, 15, 16, 22 and 23 (as per
number in the trial court judgment) were acquitted by the trial
court. The High Court acquitted accused no.17 whereas
accused no.19 died during the pendency of his appeal before
the High Court. The records show that accused no.8, appellant H
    568      SUPREME COURT REPORTS               [2015] 1 S.C.R.


A   Maan Singh has died during the pendency of his appeal before
    this Court. Thus presently there are 21 appellants who have
    been convicted of offences under Sections 302/149, 307/149,
    147 and 148 of the IPC. Accused nos.1, 2 and 3 have also been.
    convicted for offences under Section 27 of the Arms Act, 1959.
B   All have been awarded life imprisonment along with other
    sentences which are to run concurrently.

       3. Before adverting to the prosecution case, it is also
  useful to note that the occurrence is alleged to have taken place
c on 10th September 2001 at 06:45 p.m. in Village Dhodi, at a
  distance of 18 kms. from the concerned police station. The
  statement of informant Ram Singh (P.W.15) who was seriously
  injured, was recorded on the same date at 09:30 p.m. in
  presence of his uncle Chen Singh (P.W.17), by SHO at Camp
0 Dhodi and formal FIR was recorded on same date at 10:30
  p.m. The FIR was duly communicated to and seen by the Addi.
  Chief Metropolitan Magistrate on 11.09.2001. There were 29
  accused persons named in the FIR, all residents of Village
  Dhodi. The four deceased who died on account of assault in
E the same occurrence as well as the injured informant and
  material eye witnesses, i.e., P.Ws.12, 14, 15, 17, 19 and 24
  also belong to the same village. The genealogy prepared by
  the defence and shown to us, discloses that at least accused
  no.8-Maan Singh and his two sons accused nos.5 and 29
  belong to the same larger family as that of the four deceased
F and the injured informant Amar Singh. Accused no.8-Maan
  Singh happens to be brother of deceased no.2-Bapu Singh and
  deceased no.4-Manohar Singh whereas deceased no.1-lnder
  Singh and deceased no.3-Nagu Singh are sons of deceased
  Manohar Singh. Informant Amar Singh is son of deceased
G Bapu Singh. The accused persons named in the FIR and
  chargesheeted by name never challenged their identification
  either before the police Oi before the Magistrate. Nor there was
  any cross-examination of the witnesses on the point of
  identification when the witnesses in their depositions have
H referred to the accused persons and the appellants by their
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                  569
            [SHIVA KIRTI SINGH, J.]

name as well as village relationship.                              A

     4. According to the Parcha Bayan of Amar Singh (P.W.15)
he was at his house at around 06:45 p.m. of 10.09.2001 and
at that time he heard cries of his cousin lnder Singh (deceased
no.1) from the side of a field known as 'Patwari ka Kher. He B
came out of the house and saw his uncle Maan Singh (accused
no.8) and 28 other named accused running behind lnder Singh.
They were armed with sword, gun, country-made pistol, lathi
and gandasi. They all together killed lnder Singh (deceased
no.1). Then they ran towards informant (P.W.15) and caused a       c
sword bldW at the wrist of his right hand. On his cries, his father
Bapu Singh (deceased no.2) came running to rescue the
informant. His uncle Maan Singh fired with his gun due to which
Bapu Singh fell down and died in the khaal in presence of
everybody. His uncle Manohar Singh (deceased no.4) and his D
son Nagu Singh (deceased no.3) also came running to save
them but the accused persons assaulted them also leading to
their death. Many persons of the village were watching the
incident. The accused persons had registered cases of theft
of water motor against deceased lnder Singh and he had been E
recently released from the jail custody. The accused had
declared that since police did not do anything, now they would
see lnder Singh. There was an existing dispute over land
between the informant side and accused Maan Singh and for
these reasons Maan Singh and his associates, armed with
weapons had caused death ·of four persons and had also F
caused injuries to the informant with an intention to kill him.
Informant claimed that he, his uncle Chen Singh (P.W.17), his
mother (P.W.16) and his wife could save themselves by hiding
in the house.
                                                                    G
     5. During trial, 24 witnesses were examined on behalf of
the prosecution and several documents were marked as
Exhibits P-1 to P-149. Defence also examined four witnesses
and exhibited 21 documents marked as Exhibits D-1 to D-21.
As noted earlier, after trial the learned Special Judge, SC/ST, H
    570      SUPREME COURT REPORTS                 [2015] 1 ,S.C.R.

A   Jhalawar, Rajasthan, vide judgment dated 13.02.2004 passed
    in Sessions Trial No.123 of 2002 (13/2002), convicted 24 out
    of 29 accused for various offences including offence under
    Section 302/149 of the IPC for which all were awarded rigorous
    imprisonment for life. The trial court acquitted the appellants of
B   charge under Sectfon 1208 of the IPC. The appeals preferred
    by the appellants before the Rajasthan High Court at Jaipur
    Bench were dismissed leading to confirmation of their
    conviction and sentence.

          6. On behalf of the appellants, Mr. Basant, learned senior
c   advocate first raised an issue of fact relating to identification
    of all appellants because none of the material witnesses, i.e.,
    P.Ws 12, 14, 15, 17, 19 and 24 have laid any specific claim in
    their examination-in-chief that they can identify the accused
    persons/appellants. The submission advanced is that due to
D
    such lacuna, the appellants' presence and participation in the
    occurrence is not established and hence they deseNe acquittal.
    We find no merit in this contention in the light of salient facts
    noted earlier which disclose that all the accused persons/
    appellants are named in the FIR. They are co-villagers and well
E   known to the witnesses and challenge to their identification by
    name etc. was never raised by the accused persons at any
    stage of either the investigation or the trial. The presence of
    the appellants and their identification flows out of the fact that
    they were named in the earliest version of the occurrence
F   disclosed in the FIR and have been subsequently named by
    several of the witnesses in course of the trial with clear
    allegation that they were present and participated in the
    occurrence in one way or the other as an accused. In such
    factual background, the issue relating to identification raised
G   on behalf of the appellants is found to be without any
    substance.

        7. On behalf of the appellants, several other issues of facts
    were also raised with a view to criticize the prosecution case
    and persuade us to hold that the prosecution has failed to prove
H
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                  571
            [SHIVA KIRTI SINGH, J.] •

the charges against the appellants beyond reasonable doubts. A
The general criticisms are that the six eye witnesses relied upon
are interested and three of them, i.e., P.Ws 12, 14 and 24 are
minors whose names were not disclosed in the FIR that they
had also witnessed the occurrence. It was also submitted that
the occurrence took place in open field and was allegedly B
witnessed by large number of villagers but no independent
witness, unrelated to the family of the deceased persons has
been examined and, therefore, prosecution case deserves to
be rejected. It was also pointed out that the investigating officer
could not recover pellets from the place of occurrence and c
ballistic report was not made available tQ corroborate use of
fire arms by some of the accused persons. Our attention was
also drawn to injuries sustained by some of the accused
persons and it was contended by learned senior counsel for the
appellants that in absence of any explanation for the injuries on
                                                                    0
the side of the accused persons, the prosecution case deserves
to be rejected. In support of this proposition, reliance was
placed upon judgments of this Court in the case of Siri Kishan
& Ors. v. State of Haryana (2009) 12   sec   757 and in the case
of Lakshmi Singh & Ors. v. State of Bihar (1976) 4 SCC 394. E

     8. Learned senior counsel also raised a serious grievance
against the trial court and the High Court judgment on the plea
that they had failed to analyse the roles played by individual
accused persons which, according to learned counsel, was
necessary for fastening the charges under Section 302 and 307      F
IPC with the aid of Section 149 IPC. The substance of this
contention was that unless allegations against individual
accused are considered separately it will not be proper to hold
that they were actually members of an unlawful assembly. To
highlight the ambit and scope of Section 149 IPC and related       G
issues, reliance was placed by learned senior counsel on the
following judgments of this Court :

      (i)   Ku/dip Yadav & Ors. v. State of Bihar (2011) 5
            sec 324                                                H
    572           SUPREME COURT REPORTS            [2015] 1 S.C.R.


A         (ii)     Busi Koteswara Rao & Ors. v. State of Andhra
                   Pradesh (2012) 12 SCC 711

          (iii)    Khairuddin & Ors. v. State of West Bengal (2013)
                   5 sec 753
B
         9. Lastly it was contended on behalf of appellants that
  ·considering the fact that all the accused were co-villagers of
   the witnesses and well known from before, the naming of some
   of the appellants by only few of the witnesses and not all should
   have been treated to be a significant factor to grant acquittal
c  on the basis of benefit of doubt. Reliance was placed upon the
   judgment of this Court in the case of Masalti etc. v. State of
   Uttar Pradesh Al R 1965 SC 202 wherein it has been held that
   no doubt trustworthy evidence of a single witness may be
   enough to convict accused persons in appropriate cases but
D where a criminal court is dealing with evidence pertaining to
   an offence involving large number of offenders and a large
   number of victims, it is usual to adopt the test of support by two
   or three or more witnesses if they give a consistent account of
   the incident. The court approved such a test after noticing that
E it may appear to be mechanical but its use in appropriate cases
   cannot be treated as irrational or unreasonable. In order to
   assist this Court to apply such a test in the present case,
   detailed notes and charts have also been furnished to indicate
    individual cases of appellants in respect of evidence of eye
F  witnesses   appearing against them, their weapon and alleged
   specific role.

         10. On the other hand, learned counsel for the informant
    and also learned counsel for the State have placed reliance
    upon judgments of trial court and the High Court and have
G   submitted that the oral as well as documentary evidence has
    received due consideration by both the courts and in the facts
    of the case, no interference is required with the concurrent
    findings of guilt recorded against the appellants. It was
    highlighted on behalf of prosecution that when large number of
H   accused persons had run after the deceased and indulged in
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                  573
            [SHIVA KIRTI SINGH, J.]
indiscriminate assault resulting into death of four persons in      A
open field and serious injuries to the informant, the witnesses
cannot be expected to notice, remember and depose the
individual acts committed by different accused persons vis-a-
vis the five victims. It was pointed out on behalf of prosecution
that medical evidence and the injuries have been correctly noted    B
by the trial court which show that firearm injuries were found on
as many as three deceased, namely, Nagu Singh from whose
dead body two pellets were recovered, one from the wrist of
the left arm and one from the stomach; deceased lnder Singh
from whose back part of the body 12 pellets were recovered          c
and deceased Bapu Singh who was found to have sustained
a gun shot injury on the jaw from which 66 pellets were taken
out along with a plastic circular cap. Pellets were also taken
out from the brain.

      11. Learned counsel for the informant and the State also      D
submitted that no doubt innocent bystanders or witnesses
cannot be and should not be included in the list of accused as
members of unlawful assembly and the court is required to be
vigilant and aware of all the facts showing involvement of the
accused persons - from their conduct prior to as well as during     E
and after the occurrence. Incriminating conduct will vary from
case to case and can be ascertained only in the peculiar facts
of each case having regard to, inter alia, nature of conduct,
overt act and possession of weapons, if any. For this purpose,
according to prosecution, the courts below have analysed the        F
ocular evidence in detail and have also noticed recovery of
different weapons from the accused persons. Therefore, as per
their submission, the conviction of the appellants requires no
interference.
                                                                    G
     12. On going through the entire evidence of material
witnesses, other materials and judgment of the courts below,
we find that since the number of accused persons was quite
large and they were bold and strong enough to cause four
deaths in the open field in presence of large number of persons,
                                                                    H
    574       SUPREME COURT REPORTS                    (2015] 1 S.C.R.


A   it cannot be difficult to understand and appreciate as to why
    independent witnesses from the village who might have seen
    the occurrence, did not prefer to come out to support the
    prosecution. But that will not take away from the worth of
    deposition of six eye witnesses when they have given a
B   consistent account of the occurrence which was disclosed in a
    nutshell soon after the occurrence in the FIR lodged by P.W.15
    who was seriously and critically injured in the same occurrence
    and whose presence cannot be doubted. If, per chance, he
    would have been the sole witness, even then it may have been
c   possible for the courts below to convict the accused persons
    on his testimony after testing its veracity in the light of his earlier
    statement contained in the FIR. In such a factual scenario, we
    find no reason to doubt the prosecution case if the 1.0. failed
    to recover pellets from the open field which was the place of
0   occurrence or if he could not obtain ballistic report. The eye
    version account of the occurrence and the medical evidence
    showing large number of injuries including firearm injuries
    support each other. On this issue, the discussion and findings
    of the trial court against the accused persons is found to have
    sufficient merit.
E
       13. The criticism that some of the accused had sustained
  injuries for which the prosecution has not offered any
  explanation has rightly been rejected by the trial court because
  there is no counter version or even a suggestion disclosing that
F any of the accused had received injuries in the same
  occurrence and at the same place. None of the persons
  allegedly injured on the side of the defence have lodged any
  case disclosing where and under what circumstances they
  sustained the injuries. In the facts of the case, in absence of
G any counter version and any plea of self-defence, it would be
  hazardous to presume at the instance of the defence that the
  accused persons sustained the injuries in course of same
  occurrence and at the same place. Only if these two ingredients
  were established, the defence would have been entitled to seek
H an explanation from the prosecution in respect of some injuries
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                 575
            [SHIVA KIRTI SINGH, J.]

on three of the accused persons. Their injuries were neither       A
fatal nor they caused any threat to life and that also reduces
the burden upon the prosecution to explain injuries on the
accused. In view of above discussion, we are of the view that
judgments in the case of Siri Kishan (supra) and Lakshmi
Singh (supra) do not help the appellants. In paragraph 12 of       B
the judgment in the case of Lakshmi Singh (supra) the court
had found that in the circumstances of that case there could be
no doubt that the accused must have received grievous injuries
in course of the assault. In the case at hand, the facts are
different and hence the prosecution version cannot be              c
disbelieved on account of some injuries allegedly sustained by
some of the accused, namely, Maan Singh (accused no.8); Ram
Prasad (accused no.28); and Bahadur Singh (accused no.29).

     14. The main issue that now requires consideration is
                                                                   D
whether the courts below have rightly applied Section 149 of
the IPC against the appellants for convicting them for the death
of four persons and for murderous assault on the informant. The
principle of law governing application of Section 149 IPC has
been explained by this Court in many judgments including those
                                                                   E
cited by learned senior counsel for the appellants. In the case
of Ku/dip Yadav (supra), the law was stated in paragraph 39
in the following words :

    "39. It is not the intention of the legislature in enacting
    Section 149 to render every member of unlawful assembly        F
    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        G
    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."           H
    576      SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A        15. In the case of Busi Koteswara Rao (supra) the facts
    showed involvement of large number of persons and, therefore,
    while approving the view taken in the case of Masalti (supra)
    this Court cautioned in paragraph 11 of the judgment that the
    courts should be cautious in cases of arson and murder where
B   the number of accused is large, to rely upon the testimony of
    the witnesses speaking generally without specific reference to
    the accused or the specific role played by them.

          16. Reliance placed by appellants on the judgment in the
C   case of Khairuddin (supra) is misplaced. In that case, as
    paragraphs 12, 13 and 14 disclose, overt act of assault was
    found proved against five appellants grouped together and
    hence their conviction was affirmed whereas against some
    others included in a different group it was found that there was
    no evidence showing that they were either present on the spot
D   or participated in the occurrence. In the case at hand, the
    finding on appraisal of evidence is different.

         17. The ingredients of Section 149 IPC require presence
    of an unlawful assembly which is defined under Section 141 of
E   the IPC as an assembly of five or more persons, if the common
    object of the persons composing that assembly is any of the
    five objects fully enunciated in Section 141 of IPC. The third
    object is - "to commit any mischief or criminal trespass or other
    offence." The explanation to Section 141 clarifies that an
F   assembly which was not unlawful when it assembled, may
    subsequently become an unlawful assembly. As per Section
    149, even if any one member of an unlawful assembly commits
    an offence in prosecution of the common object of that
    assembly, every person who at the time of committing of that
G   offence was a member of the unlawful assembly is guilty of that
    offence.

        18. Since it was vehemently contended that courts below
    have not applied their mind as to whether the appellants were
    members of an unlawful assembly or not, it is our duty to remind
H   ourselves of the law on the subject. It is settled law, as held in
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                     577
            [SHIVA KIRTI SINGH, J.]
the case of Roy Fernandes v. State of Goa & Ors. (2012) 3 A
sec 221, that to determine the existence of common object,
the court is required to see the circumstances in which the
incident had taken place, the conduct of members of unlawful
assembly as well as the weapon of offence they carried or used
on the spot. It is also established law, as held in the case of B
Ramchandran & Ors. v. State of Kera/a (2011) 9 SCC 257,
that common object may form on spur of the moment. Prior
concert by way of meeting of members of unlawful assembly is
not necessary.

      19. In that view of settled law, the facts of the present case
                                                                       c
as alleged in the FIR and as proved in the court leave no
manner of doubt that the group of persons who chased
deceased no.1-lnder Singh and caused his death and thereafter
chased, surrounded and caused death of three more persons
besides causing grievous injuries to the informant-Amar Singh          D
was an assembly of five or more persons rightfully deseNing
to be designated as an unlawful assembly because by its action
it showed that its common object was to commit offence. The
subsequent acts clearly show that the unlawful assembly carried
out its common object of committing serious offence of murder          E
of four persons and grievous injuries to the informant.

     20. This Court, therefore, finds that the courts below
committed no error in applying Section 149 of the IPC and
convicting the members of the unlawful assembly for offences           F
under Sections 302 and 307 of the IPC (with the aid of Section
149 IPC). Some argument was advanced on there being lack
of any clear motive but that is not at all necessary or material
when the offences have been proved by clear and cogent
evidence including eye-witnesses.
                                                                       G
    21. So far as the principle of caution as enunciated in the
case of Masalti (supra) is concerned, we find ourselves in
agreement with the submission advanced by learned senior
counsel Mr. Basant that in the peculiar facts of the case, the
                                                                       H
    578       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A   courts below should have further decided as to how much
    corroboration was required for accepting the presence and
    participation of individual accused person. The informant had
    though claimed presence of 29 persons but subsequently five
    were acquitted by the trial court and one was acquitted by the
B   High Court. On this issue, on going through the charts disclosing
    number of witnesses who have deposed against individual
    appellants to show their presence, participation, weapon and
    overt act, if any, we find that the test approved in Masa/ti's case
    (supra) and subsequently followed in several other cases
c   including the case of Busi Koteswara Rao (supra) needs to be
    followed in this case also. In the latter jud~ment in paragraph
    13 the law on the subject has been expounded in very clear
    terms:

          "13. It is clear that when a criminal court has to deal with
D         evidence pertaining to the commission of an offence
          involvin·g a large number of offenders and a large number
          of victims, the normal test is that the conviction could be
          sustained only if it is supported by two or more witnesses
          who give a consistent account of the incident in question."
E
       22. Since the accused persons and the 6 material eye
  witnesses in this case are co-villagers, it is expected that at
  least three witnesses should be in a position to name individual
  accused persons for sustaining his conviction. Applying that
F test, it is found that accused no.9-Bhagwan Singh, son of
  Prabhu Lal; accused no.18-Suresh Kumar, son of Ram
  Dhakad; accused no.20-Kanhi Ram, son of Prabhu Lal;
  accused no.27-Prahlad Singh, son of Nathu Lal; and accused
  no.28-Ram Prasad, son of Bheru Lal deserve to be acquitted
G by granting benefit of doubt. This benefit of doubt arises in their
  favour because although they have been named specifically by
  informant P.W.15 as persons who were members of the
  unlawful assembly and who participated in assault but such
  claim of the informant has not been supported by more than
H one witness. In other words. there is no clear and cogent
  INDER SINGH & ORS. v. STATE OF RAJASTHAN                579
            [SHIVA KIRTI SINGH, J.]
evidence of three witnesses against the aforesaid accused A
persons. So far as accused no.28-Ram Prasad is concerned,
no doubt his name has been taken by P.W.12 and P.W.24 also
but they have not specified as to whether it was Ram Prasad,
son of Bheru Lal or another accused by the same name, i.e.
accused no.25-Ram Prasad, son of Jeth Ram.                   B

     23. The appeals preferred by the aforesaid five appellants,
namely, Bhagwan Singh, son of Prabhu Lal (appellant no.3 in
Crl. Appeal No.1239 of 2009); Suresh Kumar, son of Ram
Dhakad (appellant no.3 in Crl. Appeal No.493 of 2009); Kanhi C
Ram, son of Prabhu Lal (appellant no.4 in Crl. Appeal No.1239
of 2009); Prahlad Singh, son of Nathu Lal (sole appellant in Crl.
Appeal No.1241 of 2009); and Ram Prasad, son of Bheru Lal
(appellant no.4 in Crl. Appeal No.493 of 2009) are allowed.
They are granted benefit of doubt and acquitted of all the
charges. The appeals of remaining 16 appellants are D
dismissed. If on bail, their bail bonds shall stand cancelled and
they shall be taken into custody forthwith to serve out the
remaining sentence in accordance with law.

Oevika Gujral                               Appeals disposed of