In order to examine the rival contentions raised in thepresent appeals, it will be necessary for us to refer to the factsappearing from the case of the prosecution.On 19.11.1988 at about 6.15 P.M. one Deo Pal, who wasexamined as PW1, had lodged the FIR in the Police Station atKakkarwai stating that on the evening of 19.11.1988 at about4.30 P.M., he along with his brother Devi Singh and one Kalluwere sitting in the cattle shed of Jawahar, carpenter.He hadgone to sharpen his sickle.After about 10 minutes, his brotherBahadur Singh (since deceased) came there to sharpen hisgandasa.In the meanwhile, appellants Ram Sanehi, Baladin @Balla, Shiv Dayal and Ramadin came there.Accused Shiv Dayalhas a sphere and Ram Sanehi, Baladin and Ramadin had guns.Appellant Shiv Dayal inflicted sphere blow on the left shoulderof Bahadur Singh and thereafter, the three accused carrying 6 guns fired from their respective guns.After receiving the bulletinjuries, Bahadur Singh fell down and died.The witnesses,present there, were not able to save him because of the fearcaused by the accused persons.After murdering BahadurSingh, Ram Sanehi said that they had killed him and his fatherPyare Lal should also be killed.Saying these words, theappellants proceeded towards the fields where Pyare Lal waswatering his bajara crops.Deopal, Devi Singh and his wifeMoola Bai were present in the field.At that time, appellantDharnidhar also came there and joined the other appellants.Dharnidhar snatched the kulhari of Pyare Lal.Thereafter, thesaid three accused, who were carrying guns, fired on Pyare Lal.Sustaining the fire arm injuries, Pyare Lal fell down.Notsatisfied with the same, Dharnidhar then cut his neck withkulhari.Deopal then raised an alarm and made a hue and cry.Several village persons rushed towards the spot but before theycould reach, the appellants escaped and went towards thejungle.This incident took place at about 4.45p.m.PW1 reportedthe matter to the police station, as already noticed, and on the 7 basis of the report, H.C. Shiv Charan prepared the report(Ext.Ka 27) made endorsement on the same at the G.D. report(Ext.Ka 28) and registered the case against all the appellantsunder Sections 147, 149, 302 and 149 of the I.P.C.The case was initially investigated by Ram Autar Mathur(PW 10) who went to the spot along with two constables but theinvestigation could not be completed because of paucity of light.Next morning the I.O. conducted inquest of the body of deceasedBahadur Singh and recovered one empty cartridge from the spot,collected blood stained and simple earth sample from the spotand prepared recovery memos.Pleura was lacerated.These injuries caused and it may be possible that these injuries caused on dated 19.11.88 at 4.30 o' clock in the evening.These injuries were normal but these injuries are sufficient for death.I had seized from the body of the deceased one cork and 21 metal pallets from the left side's lungs.One Cork and 12 pallets were seized from the right lung and from forensic cavity of muscles.2 Corks and 18 pallets were recovered from the lever and stomach cavity.From the body of the deceased one Baniyan and one Chaddi, One Lungi was recovered and after preparing its Bundles were given to the constable.The injury No. 1 and 2 by Kulahdi Ex2 was possible to have occurred.Axe was shown to the witness injury No.3 to 8 is possible to be caused by fire arms.Injury No. 9 to 10 could be caused by falling on the ground.be caused by fire arms.Injury No. 9 to 10These injuries were sufficient to cause death.These injuries could have been possibly caused on 19.11.88 at about 4.30 in the evening.One cork one big pellet and two small pellets' were recovered from his level and two corks and five small pallets were recovered from his left and right lever.These articles were handed over to the constable after sealing it.That from the body of the deceased one Kurta, One Dhoti, One Baniyan and One ring of Coper were recovered which were sealed and handed over to the Constable who had come with."This witness was cross examined at some length, but nothingfavourable to the accused could come on record.The statement 24 of this witness clearly shows that there were gun shot injurieson the bodies of both the deceased as well as sphere and kulhariinjuries on their shoulder and neck respectively.Their presence at the site was natural.In addition to this, it must be noticed that upon the statement ofShiv Dayal, the sphere (Ext. Ka 1) was recovered from thebushes of the village Kharwanch in presence of Thakur Das,PW 7, and Kanhaiya Lal.The ld.Sessions Judge, Jhansi,vide its judgment dated 7th August, 1992 after finding all theaccused guilty of different offences, including Section 302 of theIndian Penal Code (hereinafter referred to as "IPC") punishedthem.The order of punishment reads as under:"Accused Ram Sanehi, Ramadin, Baladin and Shiv Dayal are hereby sentenced to suffer life imprisonment under section 302/34, I.P.C. for committing murder of Bahadur Singh.They and accused Dharnidhar are also sentenced to life imprisonment under section 302/149, I.P.C. for committing murder of Pyare Lal.Accused Ram Sanehi, Ramadin, Baladin and Shiv Dayal are mentioned to the year's R.I. u/s 148 I.P.C. and accused Dharnidhar is sentenced to six month's R.I. u/s 147, I.P.C. All these sentences shall run concurrently.All the accused preferred appeals against the judgment ofconviction and order of sentence before the High Court whichalso came to be dismissed vide judgment dated March 22, 2004,wherein the High Court declined to interfere either with thefindings of conviction or order of sentence which consequentlystood confirmed.Accused Dharnidhar filed Criminal AppealNo.239 of 2005 against the judgment of the High Court, accusedRam Sanehi along with other accused filed an appeal beingCriminal Appeal No. 429 of 2005 and Shiv Dayal preferred aseparate appeal being Criminal Appeal No. 430 of 2005 againstthe judgment of the High Court.Thus, by this judgment weshall dispose of all the above three appeals as they are directedagainst the common judgment of the High Court and are basedupon common evidence.Sessions Judge, inter alia, is primarilyon the following grounds:i) The alleged eye witnesses PW1 and PW3 are family members of the deceased and as such are interested witnesses.The conviction of the appellants is based, 3 primarily, on the statements of these witnesses, which as such, is liable to be set aside.ii) The prosecution has failed to prove any motive for the alleged commission of the crime.The appellants had no motive to commit the said crime and, therefore, the story put forward by the prosecution stands falsified.iii) The evidence, including the evidence of Dr. P.N.On the contrary, learned counsel appearing for therespondent has vehemently argued that there was sufficientdocumentary and expert evidence on record.The version of theeye witnesses cannot be doubted, their presence on the site wasnatural and they had no reason to falsely implicate all or any ofthe accused in the murder of their brother and father.He also completed theinvestigation at the place of the murder of Pyare Lal.The deadbodies of Bahadur Singh and Pyare Lal were subjected toautopsy on 21.11.1988 by PW6, and he found the followinginjuries on the bodies of the deceased."Postmortem report of Bahadur SinghAnte mortem injuries:-(1) Gun shot wound of entry 2 = cm x 2 cm x thoracic cavity deep on the left nipple.Blackening present.Direction from front to back.Margins inverted.(2) Gun shot wound of entry 1 cm x 0.75 cm x thoracic cavity deep on upper and medical portions of chest of right side, 2 cm below from medical margin of clavicle.Blackening present and direction from back to front and backwards.Margins inverted.(3) Two gun shot wounds of exit measuring 1 cm x 0.75 cm diameter in an area of 2 cm on right lower portion of back of chest.(4) Gun shot wound of entry 2 cm x 2 cm on left lower portion of back, 30 cm below from left shoulder joint, direction from left to right.(5) Gun shot wound of entry 2 cm x 1 cm x muscle deep on epigastria portion of abdomen 18 cm above from umbilicus.Direction front to back.(6) Gun shot wound of entry 2 cm x 1 cm on the epigtastrian portion of abdomen, 1 cm above from injury no. 5, Direction from front to back.(7) Contusion 4 cm x 3 cm on middle and front of forehead.(8) Contusion 5 cm x 2 cm on middle and right side of back of chest, 4 cm away from mid line.(9) Contusion 3 cm x 2 cm on lower and left side of back of chest.(10) Incised wound 2 cm x 2 cm x muscle deep, 9 cm below from the left shoulder.9 Internal examination showed that third and fourth ribs of left side and third rib of right side were fractured.Both lungs were lacerated.Thoracic cavity contained about 1 = liters of liquid blood.Peritoneal cavity contained about = liter of Liquid Blood.Stomach was lacerated and contained semi digested food material.Liver, gall bladder and spleen were lacerated, death was caused due to shock and hemorrhage resulting from ante mortem injuries.The doctor recovered one cork and 21 metallic pellets from left lung and thoracic cavity.One cork and 12 metallic shots were recovered from right lung, liver and thoracic cavity.Two corks, 18 metallic shots were recovered from spleen stomach and abdominal cavity.Postmortem report of Pyare LalAnte mortem injuries:-(1) Incised wound 8 cm x 3 cm x bone deep on right lower jaw.4 cm below from angle of mouth right side.(2) Incised wound 10 cm x 6 cm x bone deep on front portion of neck.Under lying bone of cervical vertebrae No. 3 fractured.Soft tissues and muscle cut.(3) Gun shot wound of entry 3 cm x 2 cm x muscle deep on lower and front portion of left arm.Direction from left to right, 8 cm above from elbow joint.Blackening present.Margins inverted.10 (4) Gun shot wound of exit 4 cm x 2 = cm on lower and front portion of left arm.Margins everted.(5) Gun shot wound of entry 2 cm x 2 cm x muscle deep on left exilla.(6) Gun shot wound of entry 2 = cm x 1 = cm x thoracic cavity deep on left side of chest 11 cm below from left axilla.(8) Gun shot wound of entry 1 cm x 1 cm x abdominal cavity deep on upper and left portion of abdomen, 10 cm above from umbilicus, Blackening present.Margins inverted.Directions from front to back.(9) Abrasion 5 cm x 1 = cm on right lower front portion of thigh, 7 cm above from knee joint.(10) Abrasion 2 cm x 2 cm on the rest of the middle finger of right hand.Internal examination showed that brain was pulpy.Third cervical vertebrae was fractured.Pleura was lacerated.Larynx, trachea and bronchi were cut.Both lungs were lacerated.Neck was cut.Abdominal cavity contained 11 about 200 ml liquid blood.Stomach was lacerated.Liver was partially lacerated.Cause of death was shock and hemorrhage resulting from ante mortem injuries.The doctor recovered one cork, one big metallic shot and two small metallic shot from stomach, 2 corks and 5 small metallic shorts were recovered from right and left lung." The prosecution had amongst others examined Deopal,PW1, Devi Singh, PW 2 and Manohar, PW 3 who had claimedto be the eye witnesses to either or both of the murders.Duringthe course of investigation, recoveries were made upon thestatements made by the accused.Thakur Das, PW 7 was anindependent witness for the recovery of sphere, as pointed out byaccused Shiv Dayal.The investigation of the case was conductedby different officers.H.C. Shiv Charan Singh, PW 11 was postedas Head Muherer and he had prepared (Ext. Ka 27) as well asregistered the case in GD as (Ext.Ka 28).PW1 and PW2 hadfully supported the case of the prosecution.The blood markswere found at both the places of occurrence.After completingthe investigation, challan under Section 173 of the CriminalProcedure Code (hereinafter referred to as `Cr.P.C.') was filed 12 before the Court of competent jurisdiction.After the case wascommitted to the Court of Sessions, all the accused were tried inaccordance with the law.Statement under Section 313 Cr.P.C.was recorded and finally, as noticed above, they were convictedand sentenced by the trial Court and the same was sustained bythe High Court, giving rise to the present appeals.The arguments raised on behalf of the appellants, in fact,can be discussed together inasmuch as they are based uponsomewhat common submissions.There is no doubt that PW1and PW2, both are related to the deceased.The contentionraised before us is that both of them are interested witnessesand have not stated true facts before the Court and thus, theirstatements should be entirely disbelieved.It has come on record that PyareLal was pursuing a case in which members of the family of theaccused persons were involved in a murder.There wasapparently some anger and rift between the families.Accordingto the story of the prosecution, they had come prepared to killBahadur Singh as well as Pyare Lal as they were carrying guns, 13 sphere etc. The deceased were attacked by the accused in thepresence of their brothers, who could not intervene and savethem because of the fear of the gun fire and the manner in whichthe incident occurred.It was but natural for the prosecution toproduce PW1 and PW2 as the main eye witnesses as they hadactually seen the occurrence and they have been believed by thetrial Court, as well as by the High Court.The primary endeavour of the court must be to look for consistency.Thakur Das, PW 7, appeared as awitness and corroborated the evidence of Ranjit Singh, PW 9.The sphere was sent for chemical and serological examination.The report of the Chemical Examiner and Serologist (Ext. Ka 32)was received and it showed that the sphere contained humanblood.The involvement of accused Shiv Dayal along withother accused persons, the recovery of the weapons and the factthat human blood was traced on the recovered weaponcompletes the chain of events relating to the commission of the 25 crime.It will not be in conformity with the settled canons ofcriminal jurisprudence to disregard the evidence merelybecause Devi Singh, PW 2, had made a variable statement whichcould be the result of confusion or lack of understanding thequestion in its proper perspective, more so, when he immediatelyin answer to the Court's question, stated, that he had gone tovillage Durkhuru on the day subsequent to the commission ofthe crime and not on the same day.It will be unfair, in any case,to disbelieve the presence of PW1 and PW3 at the respectiveplaces of occurrence and their statements, merely because PW2'sstatement creates certain doubts as regards his presence.Asalready noticed, the counsel for the appellant had, with somevehemence, argued about the unnatural conduct attributed bythe prosecution to the accused.It was argued that brother ofdeceased Bahadur Singh was right in front of the accused at theplace of first occurrence, and they would have killed him ratherthan going to the other site to kill Pyare Lal, the father ofdeceased Bahadur Singh.This argument hardly cuts ice, muchless, leads to any favourable conclusion for the accused.There 26 is specific evidence on record which has been noticed by theHigh Court as well as by the Trial Court that Bahadur Singhwas prosecuted for the murder of Umrao, Ram Sanehi's fatherand was acquitted.The case was contested by Pyare Lal, fatherof Bahadur Singh.We have already indicated that there is somemotive apparent for commission of the crime, which furtherindicates in the light of this evidence that they preferred to killBahadur Singh and his father Pyare Lal.If this witness was lying, then he would havecertainly deposed that he also was an eye-witness to the firstoccurrence i.e. murder of Bahadur Singh.Thetruthfulness and bona fide of this witness can hardly be doubted.27 He has further deposed that Dharnidhar had not come withother accused but had suddenly entered there and snatched thekulhadi from his father.With that kulhadi, he has causedinjury on the neck of the deceased Pyare Lal.If this witness wasto falsely implicate all the accused, nothing preventing him fromstating that Dharnidhar had come with all other accused andthey together attacked the deceased and also that he was awitness to the murder of Bahadur Singh and that evenDharnidhar was involved in the murder of his brother.Hisstatement is fully supported by PW1, as well as theInvestigating Officer.If they were falsely implicated, in allprobability, PW1, PW2 and the Investigating Officer could havenamed Dharnidhar in relation to the first occurrence, i.e. murderof Bahadur Singh.The attempt was also made to create a dentin the case of the prosecution on the ground that Jawahar, whowas stated to be present, was not examined by the prosecutionand was the only independent witness.Thus, adverse inferenceshould be drawn against the prosecution for this purpose.Thiscontention has rightly been rejected by the learned trial Court 28 and for correct reasons.Shiv Dayal was stated to have given sphere blow to thedeceased Bahadur Singh and thereafter with the intention to killPyare Lal, moved together with the other accused to the sitewhere Pyare Lal was murdered.Dharnidhar had joined RamSanehi, Baladin, Ramadin and Shiv Dayal.Thus, there were 5 34 persons who constituted a common unlawful assembly and werecarrying weapons with an intention to commit an offence.Shiv Dayal has been thrown the bhala to my brother namely Bahadur which was hit to his left shoulder sides chest portion.Then Ramsanehi, Balaprasad and Ramadinhad fired with their own rifflesrespectively.My brother Bahadur fallen onthe ground we persons who were presentthere has not said any word on account offear.After theirdeparture I have seen my brother Bahadur.He was dead.My brother Bahadur was laydown in the court yard which was in frontdoor of the Jawahar Badhai.I Devi andLally have been followed to Ram Sanehi andothers and reached to the court yard of thefield where my father was busy in storingthe jwar.My brother Manohar and motherMula bai were present there.I have seenthat these four accused were present there.In the meanwhile Dharnidhar came fromsome where/or from some place Dharnidharhas snatched the Kulhadi (an axe) from thehands of my father.Ram Sanehi, Baladinalias Balla & Ramadin had fired on myfather from their own riffles.My father laydown on the ground.Dharnidhar wascutting the neck of my father.After hearing theshouting so many persons rushed out here.But they could not reach at the spot.My father had been fallenat the distance of 7 steps away from theMahua Tree in the Ladaiya fields.Whenthe accused persons left that place at thattime we had gone to seen the condition ofmy father."36 (emphasis supplied) Let us examine the judgments of this Court in relation tocommon intention and commission of crime by the members ofan unlawful assembly.It is a settled principle of law that toshow common intention to commit a crime it is not necessary forthe prosecution to establish, as a matter of fact, that there was apre-meeting of the minds and planning before the crime wascommitted.

Cited provisions: Section 149 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 34 in The Indian Penal Code; Section 147 in The Indian Penal Code; Section 148 in The Indian Penal Code