IMPORTANT POINT
In the instant case prosecution has established the existence of the common object of the unlawful assembly viz. to commit murder of the informant and his family members and arson for attracting the applicability of Section 149 IPC and the mere fact that no overt act has been attributed to each of the accused persons is not sufficient to hold that charge u/s. 149 IPC has not been proved against them.

JUDGMENT

Sethi, J.-Contending that the prosecution had failed to prove the presence of all the appellants and the existence of common object within the meaning of Section 149 of the Indian Penal Code, the learned counsel for the appellants has argued that except appellant Manoj Kumar no other accused could be convicted or sentenced for the death of the deceased persons. It is submitted that even if the appellants are proved to be present on spot when the occurrence took place, they cannot be held guilty for the commission of any offence as they were not proved to be sharing any common object but were only by-standers. It has been further argued on behalf of some appellants that the prosecution witnesses being interested were not reliable and the courts below wrongly relied upon their testimony to convict and sentence the appellants.

2. The facts giving rise to the filing of the present appeals are that on 23rd July, 1994 at about 2.00 a.m. the appellants accompanied by 300-400 persons, armed with deadly weapons like guns, attacked the house of Ganesh Singh in Village Amarpur. Bholi Singh was shot dead and Nawlesh Singh, Shiv Narain Singh, Kedar Singh, Sanjay Singh and Ajay Kumar were burnt alive inside the room where they were hiding. According to the First Information Report, the informant, namely, Ganesh Singh (PW5) along with other members of the family had slept on the upper floor of his house in open. At about 1.30 a.m. in the night there was some drizzling whereupon female members of the family came down to the ground floor of the house and male members moved inside three separate rooms on the southern side of the upper floor of the house. In the western room facing north Nawlesh Singh, Sanjay Singh, Ajay Kumar, Kedar Singh, Shiv Narain Singh and Bholi Singh went to sleep. The informant (PW5) himself occupied the middle room and in the room on the eastern side his nephew Dhanju Kumar (PW1) slept. After about half an hour, the informant heard sounds of firing from northern side of the roof of his house and he got up. He heard one person saying that Nawlesh should come out and surrender as the person speaking claimed to be the officer-incharge of the police station. He heard Nawlesh saying that if the person seeking surrender was the officer-incharge of the police station, he should come to the front door of the house. Ganesh Singh (PW5) further stated that he saw some fire like substance and then raised an alarm that the extremists had arrived in Khakhi dress. The culprits set the room on fire in which Nawlesh was sleeping along with others. The fire was set with the help of petrol bombs. The occurrence was seen by the informant through a hole in the room where he was sleeping. Out of the mob of 300-400 persons, he identified 19 persons in the light of torch flashed by fire in the room including the appellants. All the aforesaid persons were named in his statement. In the entire process about 300-400 rounds of firing were made terrifying the whole of the locality. The motive behind the commission of the crime was stated to be the enmity of Manoj Kumar with the family of the informant.

3. After completion of the investigation the prosecution filed the charge-sheet in the trial court against 16 persons - including the appellants. To prove its case the prosecution examined 8 witnesses. During the pendency of the trial one of the accused, namely, Mani Singh (A-16) died. Out of the remaining 15 accused - persons Ram Binay Singh (A-4), Bageshwari Sharma (A-7) and Divya Kumar Madhu (A-15) were acquitted by the trial court. A-2, namely, Hirdaya Singh @ Dhirendra Singh and Manoj Kumar Gautam (A-11) were convicted under Section 302 of the Indian Penal Code and sentenced to death by the trial court. The other accused were convicted for the commission of offences under Section 302 read with Section 149 IPC and sentenced to life imprisonment. The accused were also convicted for the commission of offences u