JUDGMENT

Kuldip Singh, J. - The appellants were tried for the murder of Jang Singh-and Ram Sarup by the Designated Court, Bhiwani at Hissar. Hawa Singh was convicted under Sections 148,302,307 and 323/149, Indian Penal Code (I.P.C.). He was further convicted under Section 27 Arms Act read with Section 6(1) of the Terrorists and Disruptive Activities (Prevention) Act. 1985. He was sentenced to life imprisonment and other sentences on different counts. Uday Singh was convicted under Section 302 read with Section 149 I.P.C. and was sentenced to imprisonment for life and a fine of Rs. 1,000/- with usual default clause. He was also convicted under Sections 307/149 and 323/149 I.P.C. Rai Singh was convicted under Sections 302/149, 307/149, and 323/149 I.P.C. and was sentenced to life imprisonment. Ram Kumar was convicted under Sections 302/149, 307/149 and 323 I.P.C. He was sentenced to life imprisonment. Pala was convicted under Sections 302/149, 307/149 and 323 I.P.C. He was also sentenced to imprisonment for life. This appeal by the appellants is under Section 19 of the Terrorists and Disruptive Activities (prevention) Act, 1985.

2. According to the prosecution story Balraj along with his wife and brother Sat Narain were returning from their fields on September 9, 1986 at about sun-set. As they reached near the house of Pal a, appellant Ram Kumar armed with an axe and Pala with a lathi came running towards Balraj and Sat Narain wielding their weapons. Both the brothers tried to run away but in the process appellant Ram Kumar gave an axe blow on the head of Balraj and Pala gave a lathi blow on his back. They raised an alarm which attracted Jang Singh deceased, who was going ahead in the street. Jang Singh turned back where appellant Hawa Singh fired gun shot while standing on the roof of his house which hit Jang Singh. In the meantime Ram Sarup and Inder came in the street. Hawa Singh fired another shot which hits Ram Sarup and some of the pellets also hit Inder Singh. Appellant Uday Singh was handing over the cartridges to Hawa Singh who was firing the gun. Hawa Singh fired three more shots to scare those who were present at the spot. When Balraj and Sat Narain tried to run towards their house they found appellant Rai Singh blocking the street with a gandasa in his hand. After receiving the gun shot Jang Singh walked few steps and finally fell in the street. Jang Singh and Ram Sarup succumbed to the gun shot injuries.

3. The prosecution primarily relied on the eyewitness testimony of Balraj P.Ws. 11, Inder P.Ws. 12 and Sat Narain P.Ws. 13.

4. Mr. Prem Malhotra, learned counsel for the appellants vehemently argued that the designated court acted illegally in applying Section 149 I.P.C. to the facts of this case. According to him, even if the prosecution story is accepted in toto no offence can be made out under Sections 148 and 149 I.P.C. This contention was also raised before the designated court and it rejected the same on the following reasoning:

"The accused are five in number. One of P.Ws. 1. was armed with a DBBL gun and the other was assisting him by handing over the cartridges. One of P.Ws. 1. was armed with an axe and another one with lathi. The last one was armed with a gandasa keeping a gaurd at the end of the street. Simply because the accused were positioned at different places will not go to show that their object was not common. There is no gainsaying the fact that mere presence in a assembly does not make a person to be member of an unlawful assembly unless it is shown that he has done something or omitted to do something which would make him a member of an unlawful assembly. In the present case all the five accused did some act in furtherance of their common object. So, the contention of learned defence counsel that there was no common object of the alleged unlawful assembly, does not find favour with this court.

5. After giving our thoughtful consideration to the prosecution story and the evidence on the record, we