KISHAN RAM & ORS.versusSTATE OF UTTARAKHAND

                     [2013] 10 S.C.R. 405


                    KISHAN RAM & ORS.                                A
                               v.
                STATE OF UTIARAKHAND
            (Criminal Appeal No. 1196 of 2007)
                      OCTOBER 1, 2013
                                                                     B
 [A.K. PATNAIK AND RANJANA PRAKASH DESAI, JJ.]

      Penal Code, 1860 - s. 302 rlw s. 149 and s. 147 - Murder -
Assault with lathis and dandas leading to death - Five
accused including the three appellants - Conviction of               C
appellants by Courts below - Justification - Held: On facts,
justified -Evidence of the three eye-witnesses (PWs1, 2 and
 6) as corroborated by the statement of PW-1 in the FIR within
 four hours of the incident clearly establish that the five
 accused persons including the three appellants had                  D
 assaulted the deceased with lathis and dandas when the
 hands and legs of the deceased were tied with a rope - PW-
 3, PW-4 and PW-7 supported the prosecution case - Delay
 of four hours in lodging the FIR was sufficiently explained -
 Oral testimony of the eye-witnesses, the recovery of rope from      E
 the spot and the medical evidence establish beyond
 reasonable doubt that the five accused persons tied the hands
 and legs of the deceased and gave him jointly 27 injuries with
 /athis and dandas - Hence, the common object of the
 assembly was to commit the offence u/s.302, /PC - Trial court       F
 and the High Court, therefore, rightly held the appellants guilty
 of the offence of murder uls.302 rlw s.149, /PC.

     The prosecution story as given eut by PW-1, PW-2
and PW-6 was that the five accused including the three
appellants assaulted the husband of PW1 with lathis and G
dandas while his hands and legs were tied up with a
rope, which led to his death. The trial court convicted the
five accused persons under Section 147 and Section 302
rfw Section 149 of IPC and sentenced them to life
                           405                              H
    401;>      SUPREME COURT REPORTS           [2013) 10 S.C.R.


A   imprisonment. The conviction and sentence was
    confirmed by the High Court.
       The appellants challenged their conviction before
  this Court contending that 1) PW-1 was not able to
  identify the assailants of the deceased; 2) that there was
8
  inordinate delay in lodging of the FIR; and 3) that even if
  the evidence of PW-1, PW-2 and PW-6 are to be believed,
  the appellants could not be convicted for the offence of
  murder under Section 302, IPC, read with Section 149,
  IPC, ·since the common object of the appellants was not
C to commit the offence of murder and, therefore, they were
  not liable for the sentence of imprisonment for life. The
  appellants submitted that this was at best a case of
  culpable homicide not amounting to murder under
  Section 304, IPC, read with Section 149, IPC.
D
            Dismissing the appeal, the Court
        HELD: 1. The evidence of the three eye-witnesses
    (PWs1, 2 and 6) as corroborated by the statement of PW-
E 1 In the FIR within four hours of the incident clearly
  .establish that the five accused persons including the
  , three appellants had assaulted the deceased with lathis
    and dandas when the hands and legs of the deceased
    were tied with a rope. [Para 11] [414-D-E]
F      2. PW-3, PW-4 and PW-7 supported the prosecution
  case that the deceased had been assaulted when his hands
  and legs were tied but they did not name the persons who
  had assaulted the deceased perhaps because they had
  arrived at the scene of occurrence only after the incident
G had taken place. [Para 12] [415-A·B]
      3. It is true that the incident took place at about .7.30
  p.m. on 03.07.1986 and the FIR was lodged about four
  hours thereafter at 11.50 p.m. on the same day, but this
H delay of four hours has been sufficiently explained by the
KISHAN RAM & ORS. v. STATE OF UTTARAKHAND 407

evidence of PW-1 and PW-6. PW-1 has stated that she          A
first rushed to village Roorkee and informed PW-6 and
then PW-1, PW-2 and PW-6 came back to Chilkiya Temple
and saw that the deceased had died and the accused
persons were present there and then they went to the
Patwari of village Pandey to give the .information of the    B
incident but there was a lock on the door and only
thereafter they went to Police Chowki Kotabagh and
handed over the report of the incident to the Chowki after
it was scribed by PW-6. PW-6 has corroborated what PW-
1 has stated. The delay of four hours from 7.30 p.m. to      c
11.50 p.m. in lodging the FIR is, thus, sufficiently
explained and does not make the prosecution case
doubtful. [Para 13] [415-C-E, G]
     4. The autopsy report (Ext.A-1) read with the
statement of CW-1 Dr. S.C. Pant discloses as many as 27      D
injuries on the body of the deceased. Dr. S.C. Pant has
opined that there was haematoma under injuries no.1
and 3 and the deceased died due to shock and
haemorrhage on account of injuries no.1 and 3. PW-1 and
PW-2 have stated that all the five accused persons were      E
assaulting the deceased by their respective lathis and
dandas and the hands and legs of the deceased were
tied with rope. At the time of inquest on the morning of
04.07.1986, PW-5 also took into possession the rope from
the spot. Considering the fact that all the five accused     F
persons assaulted the deceased when the hands and
legs of the deceased were tied and they caused as many
as 27 injuries on different parts of the body of the
deceased, there is no escape from the conclusion that the
common object of the assembly was to commit the              G
offence of murder under Section 302, IPC, and all the five
members of the unlawful assembly were liable for the
offence under Section 302, IPC, as provided in Section
149, IPC. [Para 14] [416-A; 418-B-D]
                                                             H
    408       SUPREME COURT REPORTS              (2013] 10 S.C.R.


A      5. The oral testimony of the eye-witnesses, the
  recovery of rope from the spot and the medical evidence
  in this case establish beyond reasonable doubt that the
  five accused persons tied the hands and legs of the
  deceased and gave him jointly 27 injuries with lathis and
B dandas. Hence, the common object of the assembly was
  to commit the offence under Section 302, IPC. The trial
  court and the High Court, therefore, rightly held the
  appellants guilty of the offence of murder under Section
  302 read with Section 149, IPC. [Para 19] [420-A-C]
c       Bhudeo Manda/ & Ors. v. State of Bihar 1981 (2) SCC
    755: 1981 (3) SCR 291; Sannan & Ors. v. State of M.P. 1993
    Supp (2) SCC 356; Thakore Do/ji Vanvirji & Ors. v. State of
    Gujarat 1993 Supp (2) SCC 534; Rajaram v. State of-M.P.
    1994 Supp (2) SCC 153 - distinguished.
D
                          Case Law Reference:
          1981 (3) SCR 291             distinguished      Para 6
          1993 Supp (2) sec 356        distinguished      Para 6
E         1993 Supp (2) sec 534        distinguished      Para 6
          1994 Supp (2) sec 153        distinguished      Para 6
        CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
F   No. 1196 of 2007.

        From the Judgment and Order dated 16.04.2007 of the
    High Court of Uttarakhand at Nainital in Criminal Appeal No.
    1951 of 2001 (Old No. 1963 of 1990).

G         T.N. Singh, P. Narasimhan for the Appellants.

          Jatinder Kumar Bhatia for the Respondents.

          The Judgment of the Court was delivered by

H
KISHAN RAM & ORS. v. STATE OF UTTARAKHAND \409


    A.K. PATNAIK, J. 1. This is an appeal against the              A
judgment dated 16.04.2007 of the High Court of Uttarakhand
in Criminal Appeal No. 1951 of 2001 by way of special leave
under Article 136 of the Constitution.

Facts:                                                             B
     2. The facts very briefly are that on 03.07.1986 Smt.
Gulachi Devi lodged a First Information Report (for short 'FIR')
at the Police outpost at Kotabagh. In this FIR, she alleged that
her husband Suresh Chandra was working on the post of Beldar
with Kumaun Jal Sansthan and on 03.07.1986 after he had            C
returned to his quarter at about 7.00 p.m. Kishan Ram and Pani
Ram came to his quarter which is inside the water works, called
Suresh Chandra and took him along with them. She further
stated in the FIR that her neighbour Puran Ram told her that
he has heard the scream of Suresh Chandra from the side of         D
Chilkiya Temple and she went along with Puran Ram near the
Chilkiya Temple and saw that the hands and legs of Suresh
Chandra were tied with rope and he was being assaulted by
Kishan Ram, Pani Ram, Dev Singh, Har Ram and Chandan
Singh with lathis and dandas. She also stated in the FIR that      E
the assailants did not permit them to go near Suresh Chandra
and she went running to Roorkee and gave information of the
incident to Dan Singh, who is a Fitter of the Jal Sansthan, and
again came along with Puran Ram and Dan Singh near the
Chilkiya Temple to see Suresh Chandra, but found that Suresh       F
Chandra had lost his breath and the assailants were standing
near the dead body. She further stated in the FIR that she then
went to give information of this incident to the Chowki of
Patwari Halka at village Pandey, but the Patwari was not
available and, therefore, she had come to lodge the FIR in the     G
Police outpost at Kotabagh. Sub-Inspector Roop Singh Bisht
proceeded to the place of incident and saw Suresh Chandra
lying dead with his hands and legs tied. He could not prepare
the inquest report in the night, but next morning on 04.07.1986
prepared the site plan, took the rope into possession, prepared    H
    410      SUPREME COURT REPORTS                 [2013) 10 S.C.R.


A the inquest report and sent the dead body of Suresh Chandra
  (hereinafter referred to as 'the deceased) for post mortem
  examination. Dr. S.C. Pant, Medical Officer, Civil Hospital,
  Haldwani, conducted the autopsy on the dead body of the
  deceased and prepared the post mortem report. On
B 05.07.1986, the Sub-Inspector Roop Singh Bisht entrusted the
  investigation to Ani Ram, a Supervisor Kanoongo, who
  recorded the statements of witnesses, inspected the spot,
  prepared the site plan and arrested Dev Singh, Chand an
  Singh, Kishan Ram, Pani Ram and Har Ram and after
c completing investigation, submitted a chargesheet against the
  aforesaid five accused persons as well as three others, namely,
  Nain Singh, Gopal Ram and Hari Ram.

           3. All the accused pleaded not guilty and were tried. At the
    trial, nine witnesses were examined. The informant Gulachi Devi
D   was examined as PW-1, Puran Ram was examined as PW-2,
    Dan Singh was examined as PW-6, Dr. S.C. Pant was
    examined as CW-1 and Ani Ram was examined as PW-8. The
    accused persons were examined under Section 313 of the
    Criminal Procedure Code, 1973 (for short 'Cr.P.C.'), but they
E   did not examine any witness and relied on some documents.
    After hearing the arguments, the trial court found the apcused
    Kishan Ram, Pani Ram, Dev Singh, Har Ram and Chandan
    Singh guilty of the offences under Section 147 and Section 302
    read with Section 149 of the Indian Penal Code, 1860 (for short
F   'IPC'). The trial court, however, acquitted Nain Singh, Gopal
    Ram and Hari Ram of all the charges. After hearing on the
    question of sentence, the trial court imposed the sentence of
    one year rigorous imprisonment for the offence punishable
    under Section 147, IPC, and imprisonment for life under Section
G   3021149, IPC. Aggrieved, the five accused persons who were
    found guilty filed Criminal Appeals before the High Court and
    by the impugned judgment, the High Court has dismissed the
    appeals. Of the five accused persons found guilty, Dev Singh
    and Chandan Singh have already expired and hence we are
H   called upon to decide the appeals of only Kishan Ram, Pani
KISHAN RAM & ORS. v. STATE OF UTIARAKHAND 411
             [A.K. PATNAIK, J.]
Ram and Har Ram.                                                    A
Contentions on behalf of learned counsel for the parties

     4. Mr. T.N. Singh, learned counsel for the appellants,
submitted that the trial court and the High Court have relied on
the eye-witness account of PW-1 and PW-2 for holding the            8
appellants guilty. Referring to the evidence of PW-1, he
submitted that PW-1 did not belong to the locality in which the
incident took place and she has not been able to identify the
assailants of the deceased. He referred to the evidence of PW-
1 to show that she has relied on Dan Singh (PW-6) to know           C
the name of the accused persons. He submitted that it will be
clear from the evidence of PW-1 that she is confused between
the two accused peraons Har Ram and Hari Ram and she does
not know the name of the father of either Har Ram or Hari Ram.
He submitted that PW-3, PW-4 and PW-7 have not supported            D
the prosecution case and PW-6 (Dan Singh) has stated that
the names of the accused persons were given by PW-1 but
PW-1 has not been able to identify the assailants.

      5. Mr. Singh next submitted that the incident took place on   E
03.07.1986 at about 7.30 p.m. whereas the FIR was lodged
four hours thereafter at 11.50 p.m. on the same day and,
therefore, there was a delay of four hours in lodging the FIR
itself. He argued that the delay in lodging the FIR is a good
ground to disbelieve the prosecution story as given out by PW-
1 PW-2 and PW-6.
                                                                    F

     6. Mr. Singh finally submitted that even if the evidence of
PW-1, PW-2 and PW-6 in this case are to be believed, the
appellants could not be convicted for the offence of murder
under Section 302, IPC, read with Section 149, IPC, because         G
the common object of the appellants was not to commit the
offence of murder and, therefore, they were not liable for the
sentence of imprisonment for life. He submitted that this is at
best a case of culpable ho.micide not amounting to murder
under Section 304, IPC, read with Section 149, IPC. In support      H
    412      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A of this submission, he relied on the decisions of this Court in
  Bhudeo Manda/ & Ors. v. State of Bihar [(1981 (2) SCC 755],
  Sarman & Ors. v. State of M.P. [1993 Supp (2) SCC 356],
  Thakore Dolji Vanvirji & Ors. v. State of Gujarat [1993 Supp
  (2) SCC 534] and Rajaram v. State of M.P. [1994 Supp (2)
B sec 153].
       7. In reply, Mr. Jatinder Kumar Bhatia, learned counsel
  appearing for the State, submitted that it is true that PW-1 did
  not belong to the locality in which the incident took place, but
  she has taken the help of PW-2 and PW-6 to identify the
C assailants and to lodge the FIR. He submitted that the trial court
  has held in the judgment that PW-1 being an outsider from the
  plains and not belonging to the hill area was not expected to
  differentiate between Hari Ram and Har Ram and there is
  nothing improbable or unnatural in it and the testimony of Puran
D Ram (PW-2) and Dan Singh (PW-6) coupled with the written
  FIR (Ext. Ka.2) leaves no room for doubt that Kishan Ram, Pani·
  Ram, Dev Singh, Har Ram and Chandan Singh attacked
  Suresh Chandra with lathis and dandas. He also submitted that
  PW-3, PW-4 and PW-7 have been declared hostile but they
E also have supported the prosecution case with reQard to the
  date, time and place of occurrence.

       8. Regarding the delay in lodging the FIR, Mr. Bhatia
  submitted that the trial court had found that soon after the
F incident on 03.07.1986 at 7.30 p.m. PW-1 and PW-2 had first
  gone to the Chowki at village Pandey to lodge the report and
  then from there they proceeded to Kotabagh Police out-post,
  which is about eight kilometers away from the place of
  occurrence by a tractor and lodged the FIR at 11.50 p.m. on
G 03.07.1986 and in these circumstances there was no delay in
  lodging of the FIR.

       9. Mr. Bhatia submitted that the argument of learned
  counsel for the appellants that there was no common object of
  the accused persons to commit the offence under Section 302,
H IPC, should not be accepted by the Court as the post mortem
 KISHAN RAM & ORS. v. STATE OF UTTARAKHAND 413
              [A.K. PATNAIK, J.]

report and the medical evidence reveal as many as 27 injuries      A
on the body of the deceased. He vehemently argued that the
evidence on record established that the common object of the
accused persons was to commit the offence under Section
302, IPC, and hence the trial court and the High Court have
rightly held the appellants guilty of the offence under Section    B
302 read with Section 149, IPC, and sentenced them to life
imprisonment.

Findings of the Court:

      10. We have gone through the evidence of PW-1 and we         C
 find that she has deposed that at about 7.00 p.m. on
 03.07.1986 Kishan Ram and Pani Ram came to their house
 and took away the deceased along with them and after some
 time PW:2 told her that he was hearing the shrieks of the
 deceased from the side of the Chilkiya Temple and then both       D
 PW-1 and PW-2 went to the Chilkiya Temple and saw that the
·hands and legs of the deceased were tied up and he was being
 assaulted by all the five accused persons with their respective
 lathis and dandas. In her cross-examination, PW-1 has, of
 course, faltered when questions were put to her as to whether     E
 Har Ram and Hari Ram were the same persons and she has
 also admitted that she did not know the names of the fathers
 of either Har Ram or Hari Ram, but in the FIR she has named
 Har Ram along with Kishan Ram, Pani Ram, Dev Singh and
 Chandan Singh as the assailants of the deceased and, thus,        F
 the evidence of PW-1 is corroborated by her statement
 recorded in the FIR immediately after the incident.

     11. The evidence of PW-1 is also corroborated by PW-2
who has stated in his deposition that he heard the scream of
the deceased and then he along with PW-1 went to Chilkiya          G
Temple from where the sound of the scream was coming and
having reached there, he saw that the hands and legs of the
deceased were tied with a rope and he was being assaulted
by the five accused persons. Similarly, PW-6 has stated that
on 03.07.1986 at about 8.30 p.m. in the night, PW-1 and PW-        H
    414     SUPREME COURT REPORTS              [2013] 10 S.C.R.


A 2 came to him and PW-1 told him that her husband was being
  assaulted by the accused Kishan Ram, Pani Ram, Har Ram,
  Dev Singh and Chandan Singh near Chilkiya Temple and after
  hearing this, he collected some persons from the village and
  reached near Chilkiya Temple where he saw that the hands and
B legs of the deceased were tied with rope and injuries were
  found on his body and the deceased was dead and the
  accused persons Har Ram, Kishan Ram, Pani Ram, Dev Singh
  and Chandan Singh were present there. PW-6 has further
  deposed that he went with PW-1 to lodge the report in village
c Pandey, but the Patwari was not present and they went to the
  police outpost at Kotabagh where PW-1 lodged the report (Ext.
  Ka.2}. PW-6 has also stated that the report was written by him
  on the dictation of PW-1 and thereafter it was read over to PW-
  1 and she put her thumb impression on the report. Thus, the
  evidence of the three eye-witnesses as corroborated by the
D statement of PW-1 in the FIR within four hours of the incident
  clearly establish that the five accused persons including the
  three appellants had assaulted the deceased with lathis and
  dandas when the hands and legs of the deceased were tied
E with a rope.

       12. PW-3 has stated that he had seen the dead body near
  Chilkiya Temple and the hands and legs of the deceased were
  tied and there were some persons also standing, but he had
  not seen the incident. PW-4 has stated that on 03.07.1986 at
F about 8.30 - 9.00 p.m. he had heard the scream of one lady
  and then he came out and saw that the persons of the village
  were proceeding towards Chilkiya Temple and he ~lso went to
  Chilkiya Temple and saw that the deceased was lying dead and
  his hands and legs were tied with a rope and there were 40-
G 50 persons present there but he could not identify them due to
  darkness. PW-7 has similarly stated that on 03.07.1986 at
  about 8.30 p.m. or 9.00 p.m. he was in his house when PW-6
  and PW-1 came there and told him that some persons were
  assaulting the deceased in Chilkiya and they reached Chilkiya
H Temple and saw that there were number of persons assembled
KISHAN RAM & ORS. v. STATE OF UTIARAKHAND 415
             [A.K. PATNAIK, J.]
there and the husband of PW-1 was lying dead and his hands          A
and legs were tied and blood was oozing out from his body.
Thus, it appears that PW-3, PW-4 and PW-7 supported the
prosecution case that the deceased had been assaulted when
his hands and legs were tied but they did not name the persons
who had assaulted the deceased perhaps because they had             B
arrived at the scene of occurrence only after the incident had
taken place.

     13. It is true, as has been submitted by Mr. Singh, that the
incident took place at about 7.30 p.m. on 03.07.1986 and the        C
FIR was lodged about four hours thereafter at 11.50 p.m. on
the same day, but this delay of four hours has been sufficiently
explained by the evidence of PW-1 and PW-6. PW-1 has stated
that she first rushed to village Roorkee and informed PW-6 and
then PW-1, PW-2 and PW-6 came back to Chilkiya Temple and
saw that the deceased had died and the accused persons were         D
present there and then they went to the Patwari of village
Pandey to give the information of the incident but there was a
lock on the door and only thereafter they went to Police Chowki
Kotabagh and handed over the report of the incident to the
Chowki after it was scribed by PW-6. PW-6 has corroborated          E
what PW-1 has stated by stating that at about 8.30 p.m. on
03.07.1986, PW-1 and PW-2 came to him and after hearing
the incident they went to Chilkiya Temple and thereafter they
went to village Pandey to lodge the report with the Patwari but
Patwariji was not present and then they went to the police          F
outpost at Kotabagh where PW-1 lodged the report (Ext. Ka.2).
The delay of four hours from 7.30 p.m. to 11.50 p.m. in lodging
the FIR is, thus, sufficiently explained and does not make the
prosecution case doubtful.
           '
     14. We may now eonsider the submission of Mr. Singh that
                                                                    G
even if the evidence of PW-1, PW-2 and PW-6 in this case are
to be believed, the appellants could not be convicted for the
offence of murder under Section 302, IPC, read with Section
149, IPC, as the common object of the appellants was not to         H
    416       SUPREME COURT REPORTS               (2013) 10 S.C.R.


A   commit the offence of murder. The autopsy report (Ext.A-1) read
    with the statement of CW-1 Dr. S.C. Pant discloses as many
    as 27 injuries on the body of the deceased as detailed
    hereunder:

B         "1. Contusion 3 cm X 1 cm over left temporal region, 2 cm
          lateral to left eye. Clotted blood present underneath.

          2. Contusion 3 cm X 1 cm over mid of forehead. Clotted
          blood present.

c         3. Contusion 4 cm X 3 cm over right temporal region.
          Clotted blood present.

          4. Two contusions 5 cm X 0.5 cm parallel to each other, 1
          cm apart over right lateral side of neck. Clotted blood
          present.
D
          5. Two contusions 11 cm X 0.5 cm parallel and 1 cm apart
          over lateral side of right arm. Clotted blood present.

          6. Contusion 4 cm X 4 cm over trip of right shoulder.
E         Clotted blood present.

          7. Contusion 10 cm X 5 cm over lateral aspect of right
          forearm. Clotted blood present.

          8. Contusion around the right wrist with a groove.
F
          9. Contusion 16 cm X 9 cm over lateral side of left arm.
          Clotted blood present.

          10. Contusion 5 cm X 1.5 cm over left seapular. Clotted
          blood present.
G
          11. Contusion 4 cm X 1.5 cm, 3 cm below the injury no.10.
          Clotted blood present.

          12. Contusion 8 cm X 2 cm over right scapula. Clotted
          blood present.
H
KISHAN RAM & ORS. v. STATE OF UTTARAKHAND 417
             [AK. PATNAIK, J.]
  13. Contusion 8 cm X 1.5 cm over left side of back, 4 cm        A
  below the injury no.11. Clotted blood present.

  14. Contusion 2 cm X 0.5 cm over mid of back. Clotted
  blood present.

  15. Contusion all over lateral aspect of thigh. Clotted blood   8
  present.

  16. Contusion 18 cm X 1O cm over back and medical
  aspect of left thigh. Clotted blood present.

  17. Contusion 6 cm X 1 cm over left knee joint. Clotted
                                                                  c
  blood present.

  18. Contusion 5 cm X 6 cm anterior side of left leg. Clotted
  blood present.
                                                                  D
  19. Contusion 7 cm X 0.5 cm over back of left elbow.
  Clotted blood present.

  20. Contusion 3 cm X 2 cm over post aspect of left
  forearm. Clotted blood present.
                                                                  E
  21. Contusion 4 cm X 2 cm over post aspect of left arm.
  Clotted blood present.

  22. Contusion alongwith groove around the left wrist.
  Clotted blood present.                                          F

  23. Two contusions 10 cm X 0.5 cm and 1 cm apart over
  right side of abdomen. Clotted blood present.

  24. Contusion all over right glutial region. Clotted blood
  present.                                                        G

  25. Contusion all over posterior and medical aspect of
  right thigh. Clotted blood present.

  26. Two contusions 8 cm X 0.5 cm parallel and 1 cm apart
                                                                  H
    418       SUPREME COURT REPORTS               [2013] 10 S.C.R.


A         and 6 cm above the right knee joint. Clotted blood present.

          27. Contusion 6 cm X 0.5 cm over left ankle joint. Clotted
          blood present."

    Dr. S.C. Pant has opined that there was haematoma under
B   injuries no.1 and 3 and the deceased died due to shock and
    haemorrhage on account of injuries no.1 and 3. PW-1 and PW-
    2 have stated that all the five accused persons were assaulting
    the deceased by their respective lathis and dandas and the
    hands and legs of the deceased were tied with rope. At the time
C   of inquest on the morning of 04.07.1986, PW-5 also took into
    possession the rope from the spot. Considering the fact that
    all the five accused persons assaulted the deceased when the
    hands and legs of the deceased were tied and they caused as
    many as 27 injuries on different parts of the body of the
D   deceased, there is no escape from the conclusion that the
    common object of the assembly was to commit the offence of
    murder under Section 302, IPC, and all the five members of
    the unlawful assembly were liable for the offence under Section
    302, IPC, as provided in Section 149, IPC. Hence, the
E   contention of the learned counsel for the appellants that the
    appellants were not guilty of the offence of murder under
    Section 302, IPC, is not correct.

       15. In Bhudeo Manda/ & Ors. v. State of Bihar (supra},
  cited by the learned counsel for the appellants, this Court had
F held that before convicting the accused with the aid of Section
  149, IPC, the Court must give a clear finding regarding the
  nature of the common object which was unlawful. In the
  aforesaid case of Bhudeo Manda/ & Ors. v. State of Bihar
  (supra}, this Court had found that Bhudeo Mandal had given a
G blow to Mainu Mandal, but so far as the other appellants are
  concerned they were armed with lathis but they did not cause
  any injuries either to the witnesses or to the deceased and on
  these facts, this Court held that they did not have the common
  object of committing the offence under Section 326, IPC, and
H hence could not be roped in with the aid of Section 149, IPC.
KISHAN RAM & ORS. v. STATE OF UTTARAKHAND 419
             [A.K. PATNAIK, J.]
     16. In Sarman & Ors. v. State of M.P. (supra), cited by        A
learned counsel for the appellants, this Court found that all the
appellants were armed with lathis and the doctor, who
conducted the post mortem, noticed 17 injuries on the body of
the deceased and only injury no.15 had resulted in the
depressed fracture of parietal bone, which according to the         B
doctor, was individually sufficient to cause death of the
deceased. The Court further found that the prosecution case
in general was that all of them were found with lathis and
nobody had stated which of them caused injury no.15 which
unfortunately resulted in the death of the deceased and the         c
Court held that if anyone of the appellants had acted on his own
exceeding the common object, it would be his individual act and
in these circumstances, it was difficult to award punishment
under Sections 302/149, IPC.

     17. In Thakore Dolji Vanvirji & Ors. v. State of Gujarat       D
(supra), cited by the learned counsel for the appellants, the
Court found that ac~used no.1 had dealt a fatal blow on the
head of the deceased with a sword and only omnibus
allegations had been made against rest of the accused persons
and the Court held that accused no.1 had to be convicted under      E
Section 302, IPC, but it was not safe to convict every one of
them for the offence of murder by applying Section 149, IPC.

     18. In Rajaram v. State of M.P. (supra), cited by the
learned counsel for the appellants, the Court found that by way     F
of an omnibus allegation the witnesses deposed that all the
nineteen accused persons inflicted injuries, but the medical
evidence did not support such omnibus allegations. The Court
held that it was highly unsafe to confirm the conviction of the
appellants under Section 302, IPC, read with Section 149, IPC,      G
particularly when the medical evidence had not fully supported
the allegation made by the two witnesses particularly when only
one injury was found to be fatal which was a multiple contusion
on the back.
                                                                    H
    420      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A       19. The facts of the present case, however, are different
  from the aforesaid cases cited by the learned counsel for the
  appellants. The oral testimony of the eye-witnesses, the
  recovery of rope from the spot and the medical evidence in this
  case establish beyond reasonable doubt that the five accused
B persons tred the hands and legs of the deceased and gave him
  jointly 27 injuries with lathis and dandas. Hence, the common
  object of the assembly was to commit the offence under Section
  302, IPC. The trial court and the High Court, therefore, rightly
  held the appellants guilty of the offence of murder under Section
c 302 read with Section 149, IPC.
        20. We do not, therefore, find any merit in this appeal and
    we accordingly dismiss the same.

    B.B.B.                                     Appeal dismissed.