IMPORTANT POINTS
For application of section 149 IPC clear finding as to nature of common object of the assembly and unlawfulness of the object and the assembly must be recorded.
Sections 141 only defines unlawful assembly. Non-inclusion of section 141 in charges will not render the trial illegal.
Two courts below returning concurrent findings - Supreme Court shall not act as third Court of appeal.
When the courts below return concurrent findings, Supreme Court shall not act as third Court of appeal.
Minor discrepancies in evidence are not fatal to prosecution story.

JUDGMENT :

SANJAY KISHAN KAUL, J.

1. On the fateful date of 28.7.1994 at 3 a.m., Jaibir @ Gabbu (for short ‘deceased’) was murdered. An FIR was registered on the same date by one Surender (PW-7). The prelude culminating in the incident has been set out in the FIR.

2. The residential house of the deceased was under-construction, at Modawala Bagh in Bhiwani. A group of friends – Surender (PW-7), the deceased, Ajay Bhan (PW-8), another Surender S/o Rajender Singh (not examined), Sandeep (not examined) and Narender (not examined) were sitting and consuming liquor in one of the rooms of the under construction house. It appears that the liquor possibly fell short, as the deceased asked Sandeep to bring half a bottle of liquor from the English vend. After some time, the remaining friends who were in the room heard raised voices of Sandeep. In order to enquire as to what was transpiring, Surender (PW-7/complainant), the deceased and Narender went towards the liquor shop. In the proximity of the liquor shop, near the tea shop of Naresh Kumar, these three persons saw accused Krishan and Vidhya Rattan (original accused No.3/appellant [Appellant in Crl.Appeal No.300/2010]) abusing and quarrelling with Sandeep. Heated words were exchanged and threats were held out. The deceased asked Krishan and Vidhya Rattan to come during the day to discuss the matter with the complainant and his friends. The complainant, the deceased, Narendar and Sandeep thereafter came back to the under-construction, residential house.

3. It is the case of the complainant that just as these friends were, once again, in the process of resuming their drink, seven persons (all arrayed as accused before the trial court) entered the under-construction house of the deceased, armed with deadly weapons like wooden rafter, lathis and sword. Rajesh Yadav (accused No.1), who has since passed away, was armed with a bahi (a rectangular wooden rafter, which is used in making cots), and proclaimed that the deceased, referred to as the ‘leader’, be killed, and then he hit the deceased on the head with the wooden rafter. A lathi blow was given by Krishan on the head of the deceased. The consequence of these blows was that the deceased fell to the ground. The assault continued when Suresh (original accused No.5/appellant [Appellant in Crl. Appeal No.302/2010]) also gave a wooden rafter blow on the left leg of the deceased. Rajesh Yadav (accused No.1), since deceased, raised a lalkara that Jaibir (the deceased) be killed altogether. All the accused thereafter started hitting the deceased indiscriminately with their respective weapons. A variety of weapons were used to carry out the assault, with Rajesh Yadav and Suresh being armed with bahis, while Rajesh Jogi (original accused No.4/appellant[Appellant in Crl. Appeal No.1139/2010]) being armed with kirpan (sword) and the remaining four accused carrying lathis.

4. The endeavour of the complainant to intervene, only ended up in blows being received by him from different accused, and the same was the consequence for Ajay Bhan (PW-8), on his endeavour to intervene, too. All the accused persons are stated to have run away from the place of occurrence of the event, once the remaining companions of deceased herein raised an alarm. The deceased succumbed to his injuries, though was taken for treatment to the General Hospital, Bhiwani. The examination of PW-8 and PW-7 resulted in the doctor opining that PW-8 had multiple lacerated wounds on the scalp, and that his right forearm bones, left forearm bones and right foot were fractured. After giving necessary medical treatment, he was referred to the Medical College, Rohtak on the same day. Surender (PW-7/complainant) was found with a surgical emphysema[A condition in which the air sacs of the lungs are damaged and enlarged, causing breathlessness.] on the right side, which was the reason for his reference to the Medical College, Rohtak. The ruqa was sent to the Police Station, Bhiwani at 4:15 a.m. by t