( Jabalpur, dtd.23.04.2019) Per : Vijay Kumar Shukla, J.-The instant appeals have been filed under Section 374(2) of the Code of Criminal Procedure [for brevity `the CrPC'] challenging the judgment dated 23-5-2009 passed by the learned 1 st Additional Sessions Judge, Narsinghpur in S.T. No.100/2008 [State of M.P. vs. Ramphal and others], whereby the accused-appellants have been convicted and sentenced as under:302/149 of the Rs.100/- each, in default, further R.I. for Indian Penal two months each.Under Section Rigorous imprisonment for 5 years and 449 of the Indian fine of Rs.100/- each, in default, to Penal Code.undergo further R.I. for two months each.Under Section Rigorous imprisonment for 1 year and 148 of the Indian fine of Rs.100/- each, in default, further Penal Code.According to the case of the prosecution, on the date of the incident, i.e. 16-4-2008 at about 08:00 a.m. the appellant - Ramphal went to the house of the deceased - Ganesh and enquired that 3 why was he suspecting him and his sons to fill boring.Some heated words were exchanged between the parties.It is alleged that the other accused persons armed with lethal weapons came at the place of the incident in furtherance of their common object in order to cause death of the deceased-Ganesh.They also caused injuries to Sheelabai and Dalchand, the wife and son of the deceased.Soon after the incident Munnalal - Kotwar of the Village, informed the Police Station at about 10:15 a.m. that Ganesh, Sheelabai and Dalchand have been subjected to beatings.On the said intimation a Roznamcha, Ex.P/49 was written by Rajesh (PW-12).The Investigating Officer (PW-13) after visiting the place of incident recorded in the Roznamcha, Ex.P/50 that the complainant and the family members of the deceased were not found at the spot, as they had already left for the Govt. Hospital, Gadarwara, District Narsinghpur.The report - Dehati Nalishi, Ex.P/1 was recorded at 15:00 hrs.on narration of the incident in the Hospital by the wife of the deceased, Sheelabai (PW-01).She narrated that at about 08:00 a.m. when she was preparing tea and her husband Ganesh and son Dalchand were at home, at that time her brother-in-law (elder brother of the husband) Ramphal came to the house and asked for Ganesh and inquired about the boring.When her husband denied the same, Ramphal started abusing him.At that time, the accused persons, namely, Mathura, Lalman, Govind, Hirendra, Narendra alias Nindu, 4 Bori alias Premnarayan arrived there with deadly weapons.It is alleged that Mathura, Lalmani and Hirendra were carrying `farsas' and Nindu and Govind were having axes.Premnarayan alias Bori and Nindu had hit her son Dalchand on the back whereas Ramphal and wives of Mathura, Lalman and Ramphal hit on her back.She further alleged reported that Lalman had hit with 'farsa' on the head of the deceased and killed him.The incident was also witnessed by Moorat Kaurav and Sudama Kaurav.The incident was informed to Kotwar Munna.Her husband was taken to Gadarwara Hospital where he was declared dead by the doctor.Copy of Dehati Nalishi recorded by the investigating officer Shafiq Khan, PW-13 is Ex.The duration of recording of the Dehati Nalishi is 15 hrs.The spot map, Ex.P/2 was prepared by the investigating officer and in the said map the time is mentioned as 11:20 a.m. Sheelabai, PW-01 deposed that at about 8:00 a.m. in the morning when she was preparing tea at home, her husband Ganesh and son Dalchand were at home the accused Ramphal came to the house, called Ganesh and inquired about the boring.On exchange of some heated words 5 Ramphal abused him.It is stated that at that time Mathura, Lalman, Govind, Hirendra, Nindu and Bori alias Premnarayan came at the spot and Mathura, Lalman and Hirendra were armed with 'farsa' whereas the accused Ramphal, Nindu and Govind were having axes.Wives of Mathura, Lalman and Ramphal also came at the spot and they were having `lathis'.Mathura and Lalman had hit on the legs of the deceased with `farsa' and the accused Hirendra caused injuries on the hands.In the Court statement she stated that the accused Ramphal had given an axe blow on the head of the deceased causing deep incised injury.Govind and Nindu had inflicted injuries on the back of her son Dalchand with the backside of the axe.Ramphal had caused axe blow on her face and wives of Mathura and Lalman had beaten her.In the Dehati Nalishi she had not stated that Ramphal had caused any injury to the deceased on his head.She had stated that Lalman had caused injuries on the head of the deceased by means of `farsa'.The other injured witness PW-02, Dalchand deposed that when he was at home along with his father, the mother was preparing tea, his uncle Ramphal came to his house, called his father and inquired about the boring and thereafter he started abusing him.After some time, other accused persons, namely, Mathura, Bori alias Prenmarayan, Govind, Nindi and wifes of Lalman, Mathura and Ramphal also came at the spot.Mathura, Lalman and Hirendra were armed with 'farsa', whereas Govind, Nindu and Ramphal were having `lathis'.He stated that Mathura and Lalman had hit his father on legs with a `farsa' and Ramphal hit him with an axe on his mouth.Hirendra hit his father by means of a `farsa' and ladies present at the spot had also beaten him.R.I. for two months each.Under Section Rigorous imprisonment for six months 324/149 of the to each.In Criminal Appeal No.1086/2009 the appellant No.1, Ramphal and appellant No.4, Govind @ Baddu have been enlarged on bail as their jail sentence has been suspended.Thereafter, the accused Ramphal also brought an axe.The wives of the accused Lalman, Mathura and Ramphal also came at the spot with `lathis'.It is alleged that Mathura and Lalman hit on the legs of the deceased, Ganesh with a `farsa' whereas Hirendra hit on hands of Ganesh by means of a `farsa'.When he tried to intercede he was beaten by Govind, and Nindu and Ramphal had also beaten his mother.Thereafter he called his brother Hemraj and father was taken to the hospital.He also stated that the police had reached at about 11 o'clock and the father was taken to the hospital on the tractor of Moorat Singh. 7The investigating officer Safiq Khan, PW-13 stated that at about 10:15 a.m. a telephonic information was received from the Kotwar that Ganesh, Sheelabai and Dalchant of the village have been beaten.On the basis of the said information he went to the spot and when he reached at the spot he found blood, broken bangles and sickle.According to him the deceased and the injured Sheelabai and Dalchand had already left for hospital.Thereafter he came back to the police station and made entry in the Roznamcha and went to the District Hospital, Gadarwara where he recorded the Dehati Nalishi on the statement of Sheelabai.He admitted his signatures at `A' to 'A'.On the basis of Dehati Nalishi, Ex.P/1 and spot map, Ex.P/2 and the statements of the witnesses, PW-01, PW-02 and PW-13 learned counsel for the appellants submitted that in Ex.P/2, spot map the time is mentioned as 11:20 a.m., dated 16-4-2008, whereas Dehati Nalishi was prepared on 16-4-2008 at 13:00 hrs.As per statement of the investigating officer and roznamcha entry, when he reached at the spot the deceased Ganesh, Sheelabal (PW-01 and Dalchant (PW-02) had already left for hospital then how the map could have been prepared on the information of PW-01, Sheelabai at 11:20 a.m. It is submitted that the prosecution has cropped up a false story and the facts were known to the police immediately after the incident and intentionally Dehati Nalishi was recorded at 03:00 p.m. ( 15:00 hrs.).Further, in para 6 of the cross-examination PW-01 has stated that the police had come at 8 about 11:00 a.m. and had prepared the spot map at 11:00 a.m. Thus, when the investigating officer, PW-13 reached at the spot, the deceased Ganesh, Sheelabai (PW-01) and Dalchand (PW-02) were present at the spot and then the report ought to have been registered at that time.on 16-4- 2008 whereas in the spot map prepared by the Investigating Office (PW-13) the date and time were mentioned as 16-4-2008 at 11:20 a.m. In the Roznamcha entry, Ex.P/50-A he mentioned that when he reached at the spot, the deceased, Sheelabai (PW-01) and Dalchand (PW-02) were not at the spot.There is no explanation that how he could have recorded the spot map on the information of Sheelabai at 11:20 a.m. , when he met for the first time Sheelabai and others in the hospital in the afternoon at 15:00 hrs.Dalchand (PW-02) has stated that the police had come to his village at about 11:00 a.m. and spot map was prepared at 11:00 a.m. and thereafter they had gone to the 9 hospital.It is correct that there are certain defects and faults in the investigation, but taking into consideration the testimony of injured eye witnesses, Sheelabai (PW-01) and Dalchand (PW-02) we are unable to disown the entire prosecution case merely on the ground of defective investigation.The law in this regard is well settled.The maxim falsus in uno falsus in omnibus does not apply in Indian criminal law jurisprudence.Learned counsel for the appellants vehemently argued that the conviction with the aid of Section 149 of the Indian Penal Code [for short "the IPC"] is not legal as there is no evidence to establish that there was any formation of unlawful assembly with a common object in order to cause death of the deceased-Ganesh, therefore, the trial Court ought to have examined the individual role attributed to the accused.The question that springs up for consideration in the present case is whether any unlawful assembly was formed with a common object to lynch Ganesh and if not, then what individual role is attributed to the accused-appellants ?According to the case of the prosecution the first report was registered in the form of Dehati Nalish, Ex.P/1, on the information given by Sheelabai (PW-01).She has stated that the incident had taken place at about 08:00 a.m. when she was preparing tea in the house at that time her husband, Ganesh (since deceased) and son Dalchand (PW-02) were at home.At that time her brother-in-law, Ramphal came to her house and called Ganesh and uttered that as to why he was suspecting about filling of boring by him.When the same was denied 11 by Ganesh, the accused Ramphal started him abusing.On a careful scrutiny of this statement, we find that Ramphal had gone alone to the house of the deceased unarmed.Ramphal was residing in the adjoining house at a close distance to the house of the deceased, as he is real brother of the deceased and the same is evident from the spot map, Ex.P/2 also.As per her statement, thereafter other accused persons, namely, Mathura, Lalman, Govind, Hirendra, Nindu and Bori alias Premnarayan arrived on the spot.They were armed with the weapons usually kept by the villagers in rural areas for cultivation and cutting purposes, i.e. sickle (hansia), farsa and axe etc. It is clear that Ramphal had come first without any weapon to meet the deceased, who is his real brother and thereafter, there was exchange of heated words between them.It is also stated in the report that ladies had also come at the spot carrying `lathis'.She has stated that when the accused persons started beating her husband - Ganesh, her son - Dalchand also brought a `lathi'.She informed that the accused Lalman had given a blow by means of farsa on the head of her husband.In her deposition in the Court PW-01, Sheelabai stated that Ramphal had caused head injury to the deceased with the help of a farsa, though in her first report - Dehati Nalishi she stated that Lalman had inflicted injury on the head of the deceased with a 'farsa'.There is material contradiction regarding fatal blow on the head of the deceased.PW-02, Dalchand deposed that Mathura had 12 given 'farsa' blow on the head of the deceased.In para 2 of his statement he also stated that Mathura and Lalman had given `farsa' blows on the legs of his father and the accused Ramphal had inflicted injuries on the face of his mother with an axe.On appreciation of the evidence of these two injured witnesses - Sheelabai (PW-01) and Dalchand (PW-02) it is established that the accused Ramphal, who is the real brother of the deceased came alone in the house of the deceased unarmed.There was exchange of heated words between them.Thereafter, other co-accused persons - sons and wife of Ramphal and other ladies of the family reached at the spot and started inflicting injuries to the deceased - Ganesh, and Sheelabai (PW-01) and Dalchand (PW-02) and Ramphal was unarmed at that time.It is alleged that after other accused persons reached at the spot, he brought an axe and Dalchand (PW-02) also brought a `lathi'.Thus, on assimilation of facts and evidence we do not find any evidence that the accused persons formed an unlawful assembly and made preparation and acted in furtherance of their common object in order to cause death of Ganesh.The facts and evidence reveal that the accused Ramphal reached first in the house of the deceased and inquired about the boring and there was exchange of heated words between them, which lead coming of other accused persons at the spot and then it is alleged that injuries were caused to the deceased and Sheelabai and Dalchand.In absence of any cogent and plausible 13 evidence that there was any formation of unlawful assembly with the common object to kill Ganesh or any other family members, we are unable to sustain the finding of the trial Court that there was formation of an unlawful assembly and, therefore, all the accused persons are responsible on the principle of constructive liability for being a part of an unlawful assembly without establishing individual role attributed to them.Since we have already held that there was no formation of unlawful assembly before causing death of the deceased - Ganesh.Therefore, all the accused persons cannot be convicted with the aid of Section 149 of IPC.We have also noted that the accused persons have not trespassed in the house of the deceased.They are living in the same compound adjoining to the house of the deceased.The incident has taken place in the courtyard which was a common place.Now as per evidence in regard to the role attributed to the accused persons, the case of the appellants are examined and they are convicted and sentenced as under:In Criminal Appeal No.1086/2009 there are four appellants, namely, Ramphal, Lalman, Mathura and Govind.Appellant No.1, Ramphal 14 We have already noted that there were material contradictions and omissions in the allegations made by injured witness, Sheelabai (PW-01) in Dehati Nalishi, Ex.P/1 and her court statement.In respect of Ramphal she had stated in the Dehati Nalishi that Ramphal had given axe blow on her face which had caused injury near the eye, but in her Court statement she stated that Ramphal had hit on the head of the deceased by means of an axe.In the Dehati Nalishi the allegation regarding causing injury on the head was made against the accused Lalman that he had given 'farsa' blow on the head of the deceased and on his legs.Dehati Nalishi is the first report in which information regarding commission of the offence was given to the Investigating Officer (PW-13).Whereas the statement in the Court was recorded after a period of more than four months.It is relevant to mention here that the accused-Ramphal is the younger brother of the deceased, Ganesh and, therefore, the statement made by Sheelabai (PW-01) that an axe blow was given on the head of the deceased by Ramphal after four months of the incident.But it is proved that Ramphal had caused injuries with the help of an axe on the face of Sheelabai (PW-01).Dalchand (PW- 1502) has also stated that Ramphal had inflicted injuries on the face.Dr. K.S. Rajput, PW-07, had conducted MLC of both the injured persons, Sheelabai and Dalchand.The report is Ex.He stated that on the examination of Sheelabai he found two injuries - one in the nature of swelling (xqEek) - 1 x inch on the left lumber region and contusion - x 1 inch at left forearm.As per postmortem report of the deceased, Ex.P/10 and the statement of the autopsy surgeon, Dr. Rajeev Rathoria the deceased had received as many as 13 injuries.The injuries No.1,2,3,9,10,12 and 13 were caused by hard and blunt object.All the injuries were ante-mortem and homicidal in nature.In para 4 of the statement in cross-examination he stated that the injury No.1 was on the vital part of the body whereas other injuries were on non-vital parts.Thus, as per allegations made in the Dehati Nalishi by Sheelabau (PW-01) and the statement of Dalchand (PW-02) there is no allegation that the appellant No.1, Ramphal had inflicted head injury on the deceased.Therefore, the appellant is acquitted of the charges under sections 302/149, 449 and 148 of IPC.The jail sentence of the appellant was suspended by this Court and he is on bail.In view of extensive consideration of the allegations delineated in the Dehati Nalish, Ex.P/1 and the Court statement of the injured witnesses Sheelabai (PW-01) and Dalchand (PW-02) the allegations against him are that he had given fatal `lathi' blows on the deceased and on the leg of Sheelabai (PW-01).The injured (PW-02) has also stated that the accused-Lalman had caused injuries with the help of a `farsa' and had given `lathi' blows on the head of the deceased.As we have already discussed that the Autopsy Surgeon (PW-05) - Dr. Rajeev Rathoria has stated that the injury No.1 inflicted on the head was at a vital part which had caused shock and haemorrhage.Considering the aforesaid, conviction of the appellant No.2, Lalman under Sections 302/149, 324/149, 323/149, 449 and 148 of the IPC are set aside.However, conviction and sentence of the appellant No.2, Lalman are modified as under:In view of the analysis of the evidence in preceding paragraphs, we find that as per Dehati Nalishi he had inflicted injury on the leg of the deceased with the help of `farsa' and the injured witness (PW-02) stated that Mathura had given `farsa' blow on the head of the deceased.The appellant is acquitted of the charges under sections 302/149, 324/149, 323/149, 449 and 148 of IPC.However, conviction and sentence of the appellant No.3, Mathura are altered as under :However, conviction and sentence of the appellant No.4, Govind are modified hereunder:In Criminal Appeal No.1152/2009 there are two accused persons, namely, Narendra @ Nindu and Harendra @ Heerendra, appellants No.1 and 2 respectively.It is alleged that the appellant No.1, Narendra alias Nindu had caused injuries by means of a `farsa' on the hands of the deceased and further he inflicted injuries to Dalchand (PW-02), but from his cross-examination, it is evincible that neither in the FIR nor in the Ex.D/1, statement of widow of the deceased and Ex.D/2 any allegation against the present appellant 19 regarding his involvement in respect of causing injuries to the deceased has been made.There are material lapse and omission in the statements of the witnesses from the case diary statement, Dehati Nalish and the FIR.Appellant No.1, Narendra @ Nindu:However, conviction and sentence of the appellant No.1, Narendra @ Nindu are modified as follows :In the light of discussion on Dehati Nalishi and testimonies of PW-01 and PW-02, Sheelabai and Dalchand respectively, and the medical evidence as well, we have already held that the prosecution has failed to prove formation of an unlawful assembly, therefore, therefore, conviction with the aid of Section 149 of IPC is unsustainable.On individual scrutiny of the evidence, we find that the allegation against the appellant No.2, Harendra is that he had caused injuries on the left eye of the deceased by means of a `farsa', as per postmortem report, Ex.P/10 and testimony of Autopsy Surgeon Dr. Rajeev Rathoria, the injury No.1 which was caused on the head of the deceased was on vital part of the body and other injuries were on non- vital parts.

Cited provisions: Section 149 in The Indian Penal Code; Section 148 in The Indian Penal Code; Section 324 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 323 in The Indian Penal Code