Dr. B.S Chauhan, J.— This appeal has been preferred against the judgment and order dated 7-4-2005 passed by the High Court of Kerala at Ernakulam in Ramachandran v. State of Kerala by which the High Court, while affirming the findings of fact, modified the judgment and order of the trial court dated 29-8-2003 in Sessions Case No. 58 of 2001 i.e Criminal Appeal No. 1675 of 2003 stood dismissed, while Criminal Appeal No. 1955 of 2003 was partly allowed.
2. Facts and circumstance giving rise to this appeal are that: Babu (PW 1), Sobhanan (PW 2), and Parvathy (PW 4) all relatives were having inimical terms with the appellants. Several criminal cases were pending between them. In order to take revenge, the appellants formed an unlawful assembly for the purpose of committing murder of Sobhanan (PW 2). They waited in the house of Sudhakaran (A-1) on 12-4-2000, which was the last day of mahotsavam conducted in Shanmughaviiasam Temple at Kulasekharamangalam, at about 10.00 p.m
3. Sobhanan (PW 2) came along with his eight year old son along the pathway on the eastern side of the house of Sudhakaran (A-1) from the temple. Sudhakaran (A-1) repeatedly shouted “catch him”. The accused chased him and on seeing this, Sobhanan (PW 2) ran from the place leaving his son there towards the house of Sobhana (PW 3) i.e “Sophia Bhawan”. However, before Sobhanan (PW 2) could enter “Sophia Bhawan”, Sudhakaran (A-1) inflicted cut injury on his hand. Sobhanan (PW 2) entered the said house and succeeded in closing the door from inside. All the accused except Shaji (A-18) broke open the door and inflicted injuries on Sobhanan (PW 2) with their respective weapons and he was dragged to the western courtyard and again beaten. In this process, a large number of articles of the use of “Sophia Bhawan” got destroyed.
4. While hearing the hue and cry, Kuttappan (the deceased) father of Sobhanan (PW 2) and Babu (PW 1) reached there. The appellants rushed towards Kuttappan (the deceased) shouting “kill them” and thereafter, Sudhakaran (A-1) inflicted a cut injury on the head of the deceased with a sword stick in his hand and the other accused inflicted injuries on him with their respective weapons, namely, choppers, knives and iron rods. When Babu (PW 1) and Parvathy (PW 4) made an attempt to intervene, they were also attacked by the appellants and injured. Kuttappan succumbed to the injuries caused by the accused at the spot and the accused persons ran away from the spot.
5. An FIR in respect of the incident was lodged and thus, investigation commenced. The recovery of the weapons was made at the instance of the accused and after completing the formalities, 18 accused were put on trial. The prosecution to prove its case examined a large number of witnesses including five eyewitnesses. Out of them, four had been injured witnesses.
6. On conclusion of the trial, the court acquitted Shaji (A-18) and convicted A-1 to A-11, A-14 and A-15 under Sections 143, 147, 148, 307, 323, 324, 449, 427 and 302 of the Penal Code, 1860 (hereinafter called “IPC”) read with Section 149 IPC and sentenced them to undergo imprisonment for life and also for payment of fine of Rs 25,000 each, in default to undergo rigorous imprisonment for five years under Section 302 IPC and they were further sentenced to undergo rigorous imprisonment for ten years each and also to pay a fine of Rs 10,000 each, in default to undergo rigorous imprisonment for three years each under Section 307 IPC and further sentenced to undergo rigorous imprisonment for one year each and also to pay a fine of Rs 3000 each, in default to undergo rigorous imprisonment for two months each under Section 324 IPC and they were also liable to be sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs 1000 each. In default to undergo rigorous imprisonment for two months each under Section 323 IPC and further sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs 1000 each, in default to undergo rigorous imprisonment for two months each under Section 427 IPC and they were further sentenced to undergo rigorous imprisonment for seven years each and also to pay a fine of Rs 5000 each, in default to undergo rigorous imprisonment for two years each under Section 449 IPC and they were also sentenced to undergo rigorous imprisonment for six months each under Section 143 IPC and further sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC and the sentences were directed to run concurrently.
7. Other accused, namely, A-12, A-13, A-16 and A-17 were convicted under Sections 143, 147, 148, 307, 323, 449, 427 read with Section 149 IPC. They were sentenced to undergo rigorous imprisonment for 10 years each and also to pay a fine of Rs 10,000 each, in default to undergo rigorous imprisonment for 3 years each under Section 307 IPC and further sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs 1000 each, in default to undergo rigorous imprisonment for two months each under Section 323 IPC and further sentenced to undergo rigorous imprisonment for six months each and also to pay a fine of Rs 1000 each, in default to undergo rigorous imprisonment for two months each under Section 427 IPC and further sentenced to undergo rigorous imprisonment for seven years each, and also to pay a fine of Rs 5000 each, in default to undergo rigorous imprisonment for two years each under Section 449 IPC and further sentenced to undergo rigorous imprisonment for one year each under Section 148 IPC and also further sentenced to undergo rigorous imprisonment for six months each under Section 143 IPC.
8. Being aggrieved, the appellants preferred the appeals which have been disposed of by common judgment and order dated 7-4-2005 by which the High Court modified the order of the trial court to the extent that conviction of A-7, A-10 and A-11 under Section 302 IPC was set aside. However, their conviction and sentence for other offences have been confirmed. Hence, this appeal.
9. Shri C.N Sreekumar, learned counsel appearing for the appellants, has submitted that the courts below erred in making the case of some of the appellants distinguishable from others as one set of appellants stood convicted under Sections 302/149 IPC, etc. and another set of appellants has been convicted under Sections 307/149 IPC, etc. though, under the facts and circumstances of the case, no distinction is permissible. Even if the case of some of the appellants has to be separated from others, the set of appellants who have been convicted under Sections 302/149 IPC would have been convicted under Section 304 Part I IPC. This was necessary in view of the evidence of the doctors, who conducted the post-mortem examination of Kuttappan (the deceased) and examined other persons. The appellants had not proceeded with the common object to kill any person inasmuch as to kill Kuttappan, thus, provisions of Section 149 IPC are not attracted. From the facts available on record, inference can be drawn that some of the appellants had an object to catch hold of Sobhanan (PW 2), however, there was no intention to kill him. No independent witness has been examined and all the injured witnesses had been very close to the deceased. In a case where a very large number of assailants are there and the incident is over in a short span of time, it is not possible for the eyewitnesses to identify all the accused and give detailed description of participation of each of them. Thus, evidence of the eyewitnesses cannot be relied upon. The appeal deserves to be allowed.
10. Per contra, Shri M.T George, learned counsel appearing for the respondent State, has opposed the appeal, contending that in the facts and circumstances of the case, provisions of Section 149 IPC have rightly been applied. The prosecution succeeded in proving its case by examining five eyewitnesses, out of them four had been injured witnesses. The medical evidence supports the case of the prosecution. Thus, the appeal lacks merit and is liable to be dismissed.
11. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
12. There is enough evidence on record to establish that the appellants were present, armed with sword stick, choppers, knife and iron rods. Dr. Girish (PW 18) conducted the post-mortem on the body of Kuttappan (the deceased) and prepared report (Ext. P-14), according to which, the following 34 injuries were found on his person:
(1) Incised wound 7 cm × 1.5 cm bone-deep sagitally placed on right side of front of head, 3 cm outer to midline and 4 cm above eyebrow. Frontal bone underneath showed fissured fracture 8.5 cm long extending to margin of coronal suture. Subarachnoid bleeding present on both sides of brain. Gyri of brain flattened and sulci narrowed.
(2) Contused abrasion 0.5 cm × 0.5 cm on left side of face, 3 cm in front of ear.
(3) Contused abrasion 7.5 cm × 0.7 cm horizontal, on right side of front of chest, just outer to midline and 8.5 cm below collar bone.
(4) Multiple small abrasions over an area 3.5 cm × 1 cm on back of right elbow.
(5) Contused abrasion 6 cm × 0.5 cm oblique on outer aspect of right forearm 4 cm below elbow.
(6) Lacerated wound 0.7 cm × 0.5 cm on the front of right forearm 10 cm below elbow.
(7) Contused abrasion 16 cm × 2 cm oblique on back of right forearm 1 cm above wrist.
(8) Multiple small contused abrasions over an area 4 cm × 2 cm on back of right wrist and hand.
(9) Contused abrasion 3 cm × 1 cm oblique on the outer aspect of right elbow.
(10) Contused abrasion 7 cm × 2 cm oblique on the outer aspect of right hip.
(11) Multiple contused abrasions over an area 11 cm × 4 cm on the outer aspect of right thigh 7cm above knee.
(12) Contused abrasion 2 cm × 1cm on front of right knee.
(13) Multiple small contused abrasions over an area 10 cm × 8 cm on back of right leg 3cm below knee.
(14) Contused abrasion 2.5 cm × 1 cm on front of right leg 16 cm above ankle.
(15) Contused abrasion 2 cm × 1 cm on front of right ankle.
(16) Multiple small contused abrasions over an area 30 cm × 7 cm on front of left leg, just below knee.
(17) Incised punctured wound 5 cm × 2 cm × 9 cm oblique on outer aspect of left leg 2 cm below knee. Upper back end showed splitting of tissues and other end sharply cut. The wound was directed downwards.
(18) Contused abrasion 5.5 cm × 1 cm oblique on outer aspect of left knee.
(19) Multiple small contused abrasions over an area 20 cm × 16 cm on the front of left thigh and knee.
(20) Incised punctured wound 3.5 cm × 1 cm × 7.5 cm oblique on outer aspect of left hip. Upper back end was blunt and other end sharply cut. The wound was directed downwards.
(21) Abrasion 2 cm × 1 cm on the outer aspect of left hip, 2 cm above Injury 20.
(22) Incised punctured wound 3.5 cm × 1.5 cm × 1 cm oblique over left buttock. The upper inner end was blunt and other end sharp. The wound was directed forwards.
(23) Incised wound 1.5 cm × 0.3 cm × 0.5 cm over left buttock, 2 cm below Injury 2.
(24) Contused abrasion 11 cm × 2 cm oblique on right side of back of trunk 10 cm below the tip of shoulder blade.
(25) Contused abrasion 2.5 cm × 1 cm oblique on right side of back of trunk, 2 cm outer to midline and 5 cm above iliac crest.
(26) Multiple contused abrasions over an area 24 cm × 11 cm on left side of chest 8 cm below armpit. 8th and 9th ribs underneath showed fracture at their outer angles.
(27) Incised punctured wound 2 cm × 0.5 cm on left side of back of trunk. Inner upper blunt end being 4 cm below the tip of shoulder blade.
(28) Contused abrasion 1 cm × 0.5 cm on back of left hand, just above the root of middle finger.
(29) Incised wound 4 cm × 1 cm × 0.5 cm oblique on back of left wrist.
(30) Incised wound 3 cm × 1 cm × 0.5 cm oblique on back of left forearm 15 cm below elbow.
(31) Multiple small abrasions over an area 13 cm × 4 cm on the front of left forearm just below elbow.
(32) Multiple contused abrasions over an area 25 cm × 10 cm on back of left arm, just above elbow.
(33) Abrasion 5 cm × 3 cm on top of left shoulder.
(34) Abrasion 5 cm × 3 cm on the tip of penis.
In the opinion of Dr. Girish (PW 18), the injuries were caused with the weapons recovered from the appellants and Kuttappan died of head injury i.e Injury 1 as it was sufficient to cause death.
13. Babu (PW 1) was examined by Dr. C.P Venugopal (PW 20) and the following injuries were found on his person:
(1) Cut injury 10 cm × 3 cm × 1 cm on the left thigh, posterior aspect.
(2) Lacerated injury 6 cm × 2 cm × 1.5 cm on the back of scalp left side bleeding.
14. Sobhanan (PW 2), son of the deceased was examined by Dr. P.R Anil Kumar (PW 21) and the following injuries were found on his person:
(1) A cut injury on the right elbow.
(2) Lacerated wound frontal to occipital areas of the scalp approximately 20 cm length.
(3) Cut injury on the right thigh and right leg.
(4) Lacerated injury in the left ear.
(5) Lacerated injury on the left forearm, right palm and right forearm and right elbow.
(6) Lacerated injury on the right thigh.
(7) Punctured wound in the right thigh and right leg.
(8) Abrasions left and right shoulder.
(9) Swelling left cheek.
(10) Fracture mandible left side. Comminuted fracture left lateral malleus.
(11) Comminuted fracture fibular neck.
(12) Fracture lateral condyle left.”
According to the opinion of Dr. P.R Anil Kumar (PW 21), Sobhanan (PW 2) suffered very serious injuries of grave nature and had a very narrow escape from death.
15. In this factual scenario, Mr C.N Sreekumar has mainly argued on the application of the provisions of Section 149 IPC, contending that all the appellants did not have the common object to cause death of Kuttappan (the deceased) and as seventeen persons had been involved, it was not possible for the alleged eyewitnesses to give minute detail about their respective overt acts. More so, Sobhanan (PW 2) had become unconscious after being beaten and regained consciousness after two days, thus, it was not possible for him to see the incident regarding the death of his father Kuttuppan.
16. The issue raised hereinabove along with other issues particularly that all the witnesses were partisan and no independent witness was examined; there was no light on the spot, therefore, the witnesses could not see the incident properly, recovery effected was not proved properly; identification of arms was far from satisfaction; there was lack of credibility of the version of the prosecution and minor contradictions in their statements have been properly considered by the courts below and those factual issues do not require any further appreciation.
Section 149 IPC: Scope and object
17. Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
18. For “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
19. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. (Vide Bhanwar Singh v. State of M.P (2008) 16 SCC 657) Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression “know” does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated. (See Mizaji v. State of U.P AIR 1959 SC 572, 1959 Cri LJ 777 and Gangadhar Behera v. State of Orissa (2002) 8 SCC 381, AIR 2002 SC 3633.)
20. However, once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. (See Daya Kishan v. State of Haryana (2010) 5 SCC 81; Sikandar Singh v. State of Bihar (2010) 7 SCC 477 and Debashis Daw v. State of W.B (2010) 9 SCC 111)
21. The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. (Vide Masalti v. State of U.P AIR 1965 SC 202, (1965) 1 Cri LJ 226)
22. In K.M Ravi v. State of Karnataka (2009) 16 SCC 337 this Court observed that mere presence or association with other members alone does not per se become sufficient to hold every one of them criminally liable for the offences committed by the others unless there is sufficient evidence on record to show that each intended to or knew the likelihood of commission of such an offending act.
23. Similarly, in State of U.P v. Kishanpal (2008) 16 SCC 73 this Court held that once a membership of an unlawful assembly is established it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in prosecution of the common object or such as the members of the assembly knew were likely to be committed.
24. In Amerika Rai v. State of Bihar (2011) 4 SCC 677 this Court opined that for a member of an unlawful assembly having common object what is liable to be seen is as to whether there was any active participation and the presence of all the accused persons was with an active mind in furtherance of their common object. The law of vicarious liability under Section 149 IPC is crystal clear that even the mere presence in the unlawful assembly, but with an active mind, to achieve the common object makes such a person vicariously liable for the acts of the unlawful assembly.
25. Regarding the application of Section 149, the following observations from Charan Singh v. State of U.P (2004) 4 SCC 205 are very relevant:
“13. … The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. … The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression ‘in prosecution of common object’ as appearing in Section 149 has to be strictly construed as equivalent to ‘in order to attain the common object’. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter.”
26. In Bhanwar Singh v. State of M.P (2008) 16 SCC 657 this Court held:
“44. Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment (see also Sukha v. State of Rajasthan AIR 1956 SC 513, 1956 Cri LJ 923). Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc. (See also Rachamreddi Chenna Reddy v. State of A.P (1999) 3 SCC 97)”
27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. “Common object” may also be developed at the time of incident.
28. The trial court after appreciating the entire facts reached the following conclusion:
“Further the manner in which the injuries were inflicted on this witness as deposed by PWs 2, 3 and 5 will go to show that the intention of Accused 1 to 17 who inflicted the injury on PW 2 was with a common object to killing him. Further, it was also brought out in the evidence of these witnesses that all the accused persons, namely, Accused 1 to 17 were holding dangerous weapons in their hands. Further, it cannot be said that any of the accused persons were not involved in committing the offence and it cannot also be said that they were not aware of the consequences of their act or result of the act that is likely to be resulted on account of the overt act committed by any one of the member of that assembly. Similarly, the evidence of PW 3 will go to show that all these accused persons have criminally trespassed into her house and committed the crime. It is also brought out in evidence that the seventeenth accused, Sisupalan had beaten on her chest with hand and also Ext. 3, scene mahazar will go to show that on account of the act of Accused 1, 8, 12 and 5 the western door of the house has been broken open and caused damage to the same. Further, some of the vessels were also damaged in the incident which is spoken to by PW 3 and that is also evident from the broken piece of wooden reaper with bold (sic bolt) (MO 10) and also the steel vessel (MO 16) will go to show that damage has been caused to the building of PW 3 and also damage to the vessels. It is also brought out in the evidence of PW 3 that the food articles were also damaged in the incident. So it cannot be said that the accused persons who are the members of the assembly did not know about the consequence of their act. So it can be safely concluded that Accused 1 to 17 have formed themselves into an unlawful assembly for the purpose of rioting with deadly weapons and also with the common object of causing murder of PW 2 Sobhanan, attacked him with deadly weapons in their hands and also for the purpose of committing the crime, they criminally trespassed into the house of PW 3 and also caused simple injury to her and caused damage to her house and also the food articles in the house and thereby all the accused persons, namely, Accused 1 to 17 have committed the offences punishable under Sections 143, 147, 148, 323, 307, 449 and 427 read with Section 149 IPC.”
29. The High Court dealt with this issue and held as under:
“The accused persons armed with weapons were waiting in the house of Accused 1 for return of PW 2 to his house through the usual pathway after attending the temple festival. Even when he tried to escape by entering into the house of PW 3, they followed, chased and inflicted serious injuries on him at the house of PW 3. It is true that he luckily saved his life. But, when his father and PW 1 came hearing the cry, they were also assaulted and father of PW 2 was murdered. Yet, the Sessions Court convicted for murder of the deceased only (sic some) of the persons who participated in that act which was proved by evidence. Others, namely, Accused 12, 13, 16 and 17 were convicted only for the offences under Sections 143, 147, 148, 323, 307, 449 and 427 IPC read with Section 149 IPC. It was deposed that A-18 was unarmed and no witness has stated his role. Therefore he was acquitted. Considering the evidence in this case, the Sessions Court found that Accused 1 to 17 armed with weapons, formed an unlawful assembly with a common object of attacking PW 2 and also they trespassed into the house of PW 3 and brutally attacked PW 2. Even though he suffered serious injuries, he escaped from death by luck. Common object can develop during the course of incident at the spot.… The Sessions Court found that even though common object of the assembly was originally to attack PW 2, when hearing the cry PW 1 and the deceased arrived, they were attacked by some of the persons in the group which attacked PW 2. All of them may not have shared the common object of murdering the deceased. The Sessions Court found that since Accused 12, 13 and 16 were not attributed to have caused injury on the deceased, they cannot be held guilty under Section 302 IPC read with Section 149 IPC as it cannot be positively inferred that they shared the common intention with the others to murder the deceased. We are of the opinion that A-10 and A-11 only attacked PW 1 and their involvement with regard to the deceased is equal to Accused 12 and 13. Similarly, A-7 also can be compared with A-12 and A-13 as it is not proved beyond doubt that they shared the common object to inflict injuries on the deceased.”
30. It is evident from the above that the trial court as well as the High Court have proceeded in correct perspective and applied the provisions of Section 149 IPC correctly. The facts have properly been analysed and appreciated. In the instant case, seventeen accused gathered at the residence of Sudhakaran (A-1) and waited for the appropriate time knowing it well that Sobhanan (PW 2) would return from the temple. Immediately, after seeing him, Sudhakaran (A-1) shouted “chase him, chase him”. In order to save his life, he ran away and entered into “Sophia Bhawan”. However, before he could enter the house, he was inflicted injury by Sudhakaran (A-1) with the sword stick. Sobhanan (PW 2) succeeded in entering the house and closing the door from inside. The appellant-accused broke open the door and caused injuries of very serious nature to Sobhanan (PW 2) and left him under the impression that he had died. The accused were having one sword stick, two choppers, one knife and twelve iron rods. All these weapons were used by the appellants for committing the offences and causing injuries to their victims. Kuttappan (the deceased) received as many as 34 injuries. In view thereof, if all the circumstances are taken into consideration, it cannot be held that the appellants had not participated to prosecute a “common object”. Even if it was not so, it had developed at the time of incident. In view thereof, submission made by the learned counsel for the appellants in respect of applicability of Section 149 IPC is not worth consideration.
31. We do not find any force in the submission made by the learned counsel for the appellants that as the number of accused had been seventeen and the incident was over within a very short time, it was not possible for the witnesses to give as detailed description as has been given in this case, and there had been several contradictions therein, therefore, their evidence is not reliable. In such a case even if minor contradictions appeared in the evidence of witnesses, it is to be ignored for the reason that it is natural that exact version of the incident revealing any minute detail i.e meticulous exactitude of individual acts cannot be expected from the eyewitnesses. (See Abdul Sayeed v. State of M.P (2010) 10 SCC 259)
32. In this case all the accused were very well known to the witnesses. So their identification, etc. has not been in issue. As their participation being governed by the second part of Section 149 IPC, overt act of an individual lost significance.
33. However, the courts below have made a distinction in the two sets of the appellant-accused and that attained finality as the State did not prefer any appeal against the same. All the appellants in the second set have been convicted for the offence punishable under Sections 307/149 IPC, etc. and awarded sentence of 10 years' rigorous imprisonment. These appellants have submitted the certificates of service of sentence rendered by them. According to the said certificate, these appellants have served 4½ years to 8 years. All of them have been granted bail by this Court vide order dated 9-12-2009. In the facts and circumstances of the case, their conviction is upheld, however, the sentence is reduced as undergone. Their bail bonds are discharged. Appeal of the other appellants stands dismissed.
34. Subject to the above modification, the appeal stands disposed of.