IMPORTANT POINT
When there is a general allegation against a large number of persons the court hesitates to convict all of them on the theory of Constructive liability on vague evidence.

JUDGMENT

K. Jayachandra Reddy, J. - There are 25 appellants in this appeal. They were tried for offences punishable under Sections 147, 148 and 302,307,323 and 325 all read with Section 149 I.P.C. in respect of a rioting that took place on 24-9-1967 at 12.30 p.m. in the village Jaipur District Gorakhpur. During the course of the said occurrence, three persons died and five persons received injuries. Most of the injuries were caused by sharp-edged weapons. It appears that there was a dispute between Hindus and Muslims of the village regarding the grove. The Hindus claimed that the grove and the pond nearby were their properties where dead bodies were cremated and according to the Muslims it was their graveyard. There was security proceedings and also proceedings were initiated under Section 145.

2. While so, the wife of P.W.3, Guptar, a local Hindu, died and P.W.3 and other Hindus carried the dead body to the said pond in the grove in order to cremate her body. They dug a pit and as the funeral pyre was being prepared, 25 persons along with another person came there shouting "YA ALI". Some of them were armed with lathis while others were armed with swords etc. Seeing them armed the Hindus tried to escape but they were overtaken and three deceased persons and the injured witnesses were assaulted. Due to the said assault, two of the deceased died on the spot and the third deceased died a little later. P.W.1 who was one of the eye- witnesses left for the police station and lodged an F.I.R P.W.4 a Constable made an entry in the general diary. P.W.15, the Station House Officer reached the spot and took over the investigations. He sent the dead bodies for post-mortem and injured persons for treatment. The Doctor who conducted the post-mortems over the dead bodies found a number of injuries and also similar injuries on the injured witnesses. He opined that fatal injuries inflicted on the three deceased persons were antemortem and were sufficient in the ordinary course of nature to cause death. There are six eyewitnesses and all of them stated that they had gone alongwith P.W.3 to cremate the dead body of his wife and all of them have named the 25 appellants. Now in the present deposition they have also described the weapons in their hands. They attributed overt acts only to two persons but even that version was not accepted by the courts below on the ground that they could not have noted the details in such a melee. But both the courts have accepted the evidence of the eye-witnesses against the appellants whose names they have mentioned and stated that they were members of an unlawful assembly. The trial court convicted some of them under Section 147 and sentenced to six months' R.I. and the rest under Section 148 sentenced to one year's R.I. All of them were convicted under Section 307 read with 149 I.P.C. and sentenced to 3 years' RI. and also under Section 302 read with 149 I.P.C. and sentenced to imprisonment for life. The sentences are directed to run concurrently. The High Court confirmed the same. Hence the present appeal.

3. Learned counsel for the appellants submitted that it is highly unsafe to rely on omnibus allegations made by these witnesses and on the basis of their mere presence on the spot they cannot be held to be constructively liable by the application of Section 149 I.P.C.

4. We have carefully gone through the evidence. We have no doubt that all the eyewitnesses were present. Nothing significant has been elicited in their cross-examination. However, the eye-witnesses simply named these appellants and identified them. So, the question is whether it is safe to convict all the appellants. In a case of this nature, the evidence of the witnesses has to be subjected to a close scrutiny in the light of their former statements. The earliest report namely the F.I.R. has to be examined carefully. No doubt in their present deposition they have described the arms carried by the respective accused but we have to see the versio