IMPORTANT POINT
For fastening of liability with the aid of section 149 of the Indian Penal Code, commission of overt act is not necessary.

JUDGMENT

Hansaria, J.- In these two appeals the six appellants have challenged the judgment of the High Court of Andhra Pradesh by which the conviction as awarded on them by the Additional Sessions Judge, Krishna Division, Vijayawada was upheld. Of the six appellants, three in Crl. Appeal No. 484/82, who are Kaki Ramesh, Daimadugula Peddy Baburao and Dadimadugla Chinna Baburao have come to be convicted under section 302 of the Penal Code; the remaining three, namely Senagasetti Subba Rao; Paladugu Veerayya and Senagasetti Durga Prasad, who are the appellants in Crl. Appeal No. 485/82, have been found guilty under section 302/149.

2. The prosecution case which need be noticed for the disposal of the appeals is that the six appellants along with many others had attacked one Raja Babu on the night of 3.8.1979 while the deceased and his brother P.W. 1, nephew P.W. 2 and mother P.W. 3 were sleeping in their house. The attackers were armed with axes, spears and sticks. On hearing the shouts, P.W. 1 opened the door when the members of unlawfully assembly entered forcibly in the house of the deceased and when he was about to get up from his bed, appellant No. 1 in Crl. Appeal No. 484/82, namely, Kaki, cut him with an axe on his neck and asked others to drag the deceased out. On this being done, he was attacked by two other appellants of this appeal with axes. On seeing this, P.W s. 1 and 2 ran away to a distance; P.W. 3 the old mother having fled away a little earlier. After the accused party left, these P.Ws; came back to the place where the deceased was lying in a pool of blood. Town Police Station Vijayawada was informed about the matter soon thereafter, which set the police in action and after conclusion of the investigation, the six appellants were booked for trial and came to be convicted as aforesaid, which convictions were upheld by the High Court on appeal being preferred.

3. Shri Natarajan, learned senior advocate, who has addressed principally on behalf of the appellants has raised four submissions to persuade us that the conviction of the appellants was not warranted by law. These contentions are that there being no clinching matter on record about any lamp being inside the room where the first assault on deceased was made, the identify of the assailants is a matter of doubt. Secondly, no having been found inside the room, the occurrence had not taken place in the manner urged by the prosecution. It is then submitted there being no abrasion on the back of the deceased, the story of his having been dragged out is doubtful, The final submission is that the room being small, all the members of the unlawful assembly could not have entered the same, as is the prosecution case.

4. Let us deal with these submissions serration in so far as absence of lamp is concerned, it may be pointed out that this was not contention raised on behalf of the appellants either before the trial court or the High Court. This might have been because of the fact that among others P.W. 1 had clearly stated in his evidence that he had seen the accused with the help of light in their house. Shri Natarajan contends that this P.W. had not stated about the lamp to the Investigating Officer nor had this fact been mentioned in the F.I.R. We do not think if in the F.I.R. this was required to be done or, for that matter, the P.W. was required to state about it to the Investigating Officer (I.O.) nor was the I.O. required to ask about it. This for the reason that the assault having taken place inside the sleeping room, it can be well presumed it had a lamp, may be half-burning. Had the occurrence taken place on a dark night either in a jungle or on road side not having street light, the question of existence of sufficient light to identify the culprits would have been a relevant question.

5. Insofar as absence of blood inside the room is concerned we would state that blood having been found on the pillow (M.O. 4) and on the clarinet (M.O. 3), the case of prosecution