The prosecution must prove that the offence was committed by a member of an unlawful assembly in prosecution of the common object, and the importance of conducting a Test Identification Parade when necessary.

ORDER :

All these appeals are being disposed of by this common judgment as they arise out of the judgment of conviction of the appellants imposed by the learned Additional Sessions Judge, Sehore, in Sessions Trial No. 80/92 and affirmed by the High Court.

2. It is worthwhile to mention that as many as ten accused persons namely, Makhan (A1), Uday Singh (A2), Mulla (A3), Balram (A4), Vijay Singh (A5), Magan Lal (A6), Ganpat Singh (A7), Ramesh (A8), Narpat Singh @ Takhat Singh (A9) and Kamal Singh (A10) were proceeded against for the offences punishable under Sections 302 read with Sections 149 and 148 of the Indian Penal Code, 1860 ('IPC') and were sentenced to undergo life imprisonment and rigorous imprisonment for a period of 1 year respectively.

3. In brief, the case of the prosecution is that on 07.10.1991 at 17.00 hours, Batu (PW-1) lodged First Information Report in Police Station, Ichhawar to the effect that in village Sevania, he along with his three brothers namely, Devi Singh (hereinafter referred to as 'the deceased'), Sitaram and Ram Singh were illegally possessing a piece of Government land for the last several years, which they were using for growing crops and grazing their own cattle. Earlier, the villagers of the Sevania village had also made a complaint to the said effect to the Tehsildar, who had ordered them to vacate the land but they continued to be in possession. It is further alleged that on the day of incident, viz. 07.10.1991, at about 03.00 p.m., the accused persons went to the plot to graze their cattle but the deceased refrained them from doing so by saying that they could graze their cattle only after the standing crop of Jwar (maize) would be harvested. As per the case of the prosecution, the accused persons did not accept the say of the deceased and started beating him. It is the further case of the prosecution that A1 held the deceased and A4 hit him with the lathi and the other accused persons also encircled and started hitting the deceased with lathi, lahangi etc. At that moment, these accused persons were scolding that the deceased should be killed because he happened to harass them.

4. After completion of the investigation, the police filed charge sheet against the appellants under Sections 148 and 302 read with Section 149 of the I.P.C. to which they pleaded not guilty and claimed trial.

5. In order to substantiate the charges, the prosecution examined thirteen witnesses, namely, Vasu (PW-1), Ohri Bai (PW-2), Chander Singh (PW-3), Lohari Singh (PW-4), Kunwar Singh (PW-5), Tulsiram (PW-6), Majan Singh (PW-7), Dr. K.K. Bhargava (PW-8), Babulal (PW-9), Gatvu Singh (PW-10), Surmi Bai (PW-11), Dr. S. Vaish (PW-12) & R.Srivastava (PW-13) and placed documents Ex. P/1 to P/21 on record. In defence, the accused persons examined four witnesses namely Manju @ Mangilal (DW-1), Krishan Kumar (DW-2), Gyan Singh (DW-3) and Bachhanlal Sharma (DW-4).

6. The trial Court, upon consideration of the evidence and material available on record, by its judgment dated 10.02.1994 in Sessions Trial No.80 of 1992 found the appellants guilty and while convicting them imposed rigorous imprisonment for life apart from a fine of Rs. 2,000/- each and in default of payment of fine to undergo rigorous imprisonment for one year for the charge of offence under Section 302 read with Section 149 I.P.C. For the offence under Section 148 I.P.C., the appellants were sentenced to undergo one year rigorous imprisonment. It was also directed that the sentences shall run concurrently.

7. Aggrieved by the order of conviction, the accused persons preferred an appeal before the High Court. The High Court upon re-appreciation of the evidence and the totality of circumstances affirmed the conviction and award of sentence against all the accused persons. Hence, A1, A2, A3, A5, A6, A7, A8, & A10 (appellants herein) are before us in these appeals challenging their conviction and award of sentence affirmed by the High Court under Sections 302/149 and 14