The liability of members of an unlawful assembly for offences committed by other members depends on whether they acted in furtherance of a common object or knew that the offence was likely to be committed.

JUDGMENT

1. This appeal under Section 374 Cr.P.C. has been filed against the judgment of conviction and order of sentence dated 29.09.2008 passed by the learned Additional District & Sessions Judge (Fast Track), No.2, Pali in Sessinos Case No.5/2008, whereby the accused-appellants have been convicted for the offences under Sections 148, 302, 302/149, 323, 323/149, 324, 324/149 IPC and have been sentenced as under:-

U/s.148 IPC

All the accused-appellants were sentenced to undergo three years' simple imprisonment with fine of Rs.500/-, in default of payment of fine to further undergo one month's simple imprisonment.

U/s.302, 302/149 IPC

All the accused-appellants were sentenced to undergo imprisonment for life with fine of Rs.5000/-, in default of payment of fine to further undergo one year's simple imprisonment.

U/s.323 and 323/149 IPC

All the accused-appellants were sentenced to undergo one year's simple imprisonment with fine of Rs.500/-, in default of payment of fine to further undergo one month's simple imprisonment.

U/s.324 and 324/149 IPC

All the accused-appellants were sentenced to undergo three years' simple imprisonment with fine of Rs.1000/-, in default of payment of fine to further undergo three months' simple imprisonment.

All the sentenced were ordered to run concurrently.

2. Briefly stated the facts of the case are that a written report (Ex.P/49) was submitted by the complainant Ramkaran @ Om Karan @ Omiya on 12.11.2007 at 2.00 P.M. at Camp Jagdamba Colony, Naya Gaon, Pali wherein it is stated that he was sitting with his mother, maternal uncle (eTeT) and sister near the hut, at that time, Shankerlal, Mishrilal, Prakash, Ummed Ram, Sukha Ram, Kanya came there with a common intention. Shankarlal, Mishrilal and Prakash were carrying a kunt and other co-accused were carrying lathis in their hands and threatened to bury them as they did not leave the plot and with that intention, accused-appellants Shankarlal and Mishrilal inflicted kunt blows to his mother, resultantly, she received injuries on head and neck and she fell down and his maternal uncle (eeT) was beaten by lathis, resultantly he fell down. Meanwhile, his cousin Bhundaram (son of his maternal uncle) came from village side, then Shankerlal, Mishrilal and Prakash inflicted kunt blows due to which he fell down on the ground. It was stated that on seeing this he started running, then Shankerlal inflicted kunt blow from backside. Due to the incident, his mother and Bhundaram died on the spot. At that time, due to hue and cry, Binjaram, Anwar Khan and Sayari reached there who saw the incident. His sister Indra was also there.

3. On the basis of this information, FIR was registered and filed charge-sheet for the offences as mentioned in the FIR and the charges under the above mentioned offences were framed. The accused denied the charges and sought trial.

4. During trial, the prosecution examined as many as 24 witnesses and exhibited 69 documents in support of prosecution story. The appellants-accused were examined under Section 313 Cr.P.C. and after hearing the rival submissions of the prosecution and the defence, the trial court convicted and sentenced the appellants-accused vide judgment dated 29.09.2008 as aforesaid. Being aggrieved by the same, the appellants have preferred this appeal.

5. Heard learned counsel for the appellants-accused and the learned Public Prosecutor.

6. Learned counsel for the appellants-accused contended that Sayari (PW-13) was projected as eye-witness of the incident. Smt. Sayari Devi (PW-13) has not supported the prosecution story. If she would have been an eye-witness, then certainly she, being a relative of the deceased, must have disclosed the real story before the trial court. The learned trial court, while convicting the appellants-accused, has not considered this aspect of the matter. Hence, the prosecution has failed to prove the guilt against the appellants-accused beyond reasonable doubt.

It was also contended that no offence