Important Points
1. In an appeal against acquittal High Court has full power to review the evidence upon which acquittal is based and paramount consideration of Court is to ensure, that miscarriage of justice is avoided.
2. Common object u/s. 149 IPC does not require prior concert or meeting of minds before the attack and when persons forming the assembly are shown to be having ­identical interest in pursuance of which some of them come armed, others though not armed would, under normal circumstances, be deemed to be members of unlawful assembly.

Judgment

Sethi, J.—The appellants, alongwith two others, were charged under Sections 148, 302 336, 337, 427 read with Section 149 of the Indian Penal Code by the Court of Additional Sessions Judge, Burhanpur and after trial acquitted by the trial court vide its judgment dated 24th June, 1987. The appeal filed by the State against the order of acquittal was allowed by the High Court vide the judgment impugned convicting the appellants for offences under Section 302/149 and sentencing them to life imprisonment besides paying a fine of Rs. 5,000/- each in default of which they have been directed to suffer further rigorous imprisonment for one year each. They were also convicted for the commission of offence under Section 148 IPC and sentenced to rigorous imprisonment for one year each.

2. Not satisfied with the judgment of the High Court, the appellants have preferred this appeal under Section 379 of the Code of Criminal Procedure read with Order XXI Rules 12 to 29 of the Supreme Court Rules, 1966.

3. According to the prosecution there was a dispute between Amarnath (deceased) and Ram Singh, appellant with respect to four mango trees grown on Khasra No. 212 situated at Village Sarai. Litigation was pending between both the parties and police had registered several cases under Sections 147 and 145 of the Code of Criminal Procedure. According to the FIR recorded on the statement of PW22 Jagdish that he along with his family members was watching TV at his house. Amarnath and Hari Ram were also there. When he was about to start his meals, they heard the cries of “Bachao-Bachao” (save-save) raised by Surender. They saw all the 16 accused persons assaulting Surender with lathis, Dhariya, Khartaliya and Pata. When Hari Ram went to intervene, the accused attacked him. Similarly when Amarnath went forward he was also ­assaulted. Ram Singh instigated other accused persons to finish Amarnath saying that as he was responsible for everything, he should be finished today. Thereafter Ram Singh, Bhagwan Singh, Sardar Singh, Roop Singh and Dhyansingh attacked Amarnath with lethal weapons in their possession. Witness rushed forward to save his father and was also attacked by the aforesaid accused persons. He ran away to the house to save himself. The accused then threw stones on the house which broke roof tiles, doors and also damaged the walls. After registration of the FIR, the investigating officers sent the injured, namely, Surender and Hari Ram to the District Hospital, Khandwa where they died the same night, the information of which was sent to the police by Hospital Authorities. Mukesh was also found injured and sent for treatment to the hospital. In the occurrence three persons, namely, Surender, Hari Ram and Amarnath were murdered and some of the witnesses injured.

4. The trial court acquitted the accused persons on finding that appellants Bhagwan Singh, Ram Singh, Roop Singh had received injuries and “seeing danger of life and other accused utilised right of private defence and there aggressors died and rest aggressors fled away. Hence the act of the accused fall within the definition of right of private defence u/s 100 IPC and their act is not punishable ­according to provisions of Section 96 IPC”. The trial court further held, “I find that prosecution failed to prove case beyond reasonable doubts and accused committed murder of deceased Amarnath, Surender and Hariram and caused injuries to Mukesh witness and damaged house of Jagdish after throwing stones”. Holding that the prosecution had failed to prove the offence against accused beyond all reasonable doubts and giving them the benefit of right of self-defence, as contemplated under Section 100 IPC, he acquitted the accused persons.

5. The High Court rightly found that the trial court had been led astray by the simple fact that the “injuries on the person of the ­accused had not been explained by the prosecution witnesses. After referring to number of judgments of this Co