NAND KUMARversusSTATE OF CHHATIISGARH

                        [2014] 12 S.C.R. 1146


A                           NANO KUMAR
                                   v.
                    STATE OF CHHATIISGARH
                 (Criminal Appeal No. 906 of 2012)
                        OCTOBER 31, 2014
B
        [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
               ABHAY MANOHAR SAPRE, JJ.]

         Penal Code, 1860 - s.302 rlw ss.149, 148 - Unlawful
C   assembly - Murder - Three deiceased - Weapons of offence
    including lathis, battle axe, sword and rods - Conviction of
    accused-appellants - Justification - Held: Justified - Ocular
    evidence of two eye witnesse's (PWs 1 and 3) conclusively
    prove not only the involvement of accused persons but their
o   actual active role in killing the three persons - Corroboration
    from medical evidence of thre,e doctors PW12 and 13 and 14
    and their respective post-mo1tem reports (Exs-P-56, 59 and
    61) - Accused persons did not listen to the prayer of PWs1
    and 3 and with a pre-deterrmned motive killed the deceased
E   persons by beating them dw3 to which two of them died on
    the spot and one succumbecf in the hospital after some time
    - PWs-1 and 3 elaborately narrated the entire incident by
    taking the names of every accused whom they knew to be the
    residents of the same area.
F        Penal Code, 1860 - ss. 141, 142 and 149 - Unlawful
    assembly - Common obje«i:t - Circumstances, in which a
    member of an unlawful assembly can be held to have
    committed an offence in pursuance of the common object of
    such assembly of which he is a member - Principles of law
G   discussed.
        Evidence - Related witness - Appreciation of - Murder
    case - Plea that since Pv1fs 1 and 3 were in close relation

H                               1146
   NAND KUMAR v. STATE OF CHHATIISGARH               1147

with the deceased persons being wife/mother or daughter/ A
sister and that they should not be believed for want of
evidence of any independent witness, rejected.

    Evidence - Evidence of witness - Discrepancies -
Appreciation of.
                                                            B
    Dismissing the appeals, the Court

     HELD:1.1. In the case on hand, the mother and
daughter saw from their naked eyes that their father/
husband and two sons/brothers were being killed in their c
presence with the use of Lathis, battle axe, sword and
rods by the accused persons mercilessly and both the
helpless ladies standing in front of the mob (accused
persons) with folded hands praying "please do not kill
them and leave them". The accused persons did not 0
listen to their prayer and with a pre-determine~ motive
killed the deceased persons by beating them due to
which two of them died on the spot and one succumbed
in the hospital after some time. The sworn testimonies of
these two eye-witnesses remained consistent throughout
on material issues. Indeed, there is no valid reason for E
this Court to disbelieve them. [Paras 27, 28] [1161-B-E]

     1.2. When several people participate in commission
of an offence with deadly weapons and attack one or
more persons with an intention to kill them then the F
witnesses who are closely related to the victim(s) are not
expected to describe the incident in graphic detail and
with such precision that which member and in what
manner he participated in the commission of offence.
Their evidence is required to be appreciated in its totality. G
In the case on hand, PWs-1 and 3 elaborately narrated the
entire incident by taking the names of every accused
whom they knew to be the residents of the same area.
The law does not say that the prosecution must examine
                                                             H
    1148    SUPREME COURT REPOF:TS              [2014] 12 S.C.R.


A   all the eye-witnesses cited by the prosecution. When the
    evidence of two eye-witnesses, PWs 1 and 3 was found
    worthy of acceptance to prove the case then it was not
    necessary for the prosecution to examine any more eye-
    witnesses. It is for the prosecution to decide as to how
8   many and who should be examined as their witnesses
    for proving their case. [Paras 33, 34, 36) [1163-C-H]

      Masalti etc. etc. vs. State of U.P. AIR 1965 SC 202:
   1964 SCR 133; Om Prakash vs. State of Haryana (2014)
  5 SCC 753; Da/bir Kaur and Ors. vs. State of Punjab (1976)
C 4 SCC 158: 1977 (1) SCR 280; Harbans l<aur and Anr. vs.
  State of Haryana (2005) 9 SCC 195: 2005 (2) SCR 450;
  Namdeo vs.State of Maharashtra (2007) 14 SCC 150: 2007
  (3) SCR 939 and Munshi Prasaa and Ors. vs. State of Bihar
                                   1



  (2002) 1 sec 351: 2001 (4) Suppl. SCR 25 - relied on.
D
      Baladin and Ors. vs. State of' Uttar Pradesh AIR 1956 SC
  181 -referred to.

                       Case Law Reference:

E       AIR 1956 SC 181           referred to         Para 22
        1964 SCR 133              relied on           Para 22
        (2014) 5 sec 753          relied on           Para 23
       1977 (1) SCR 280           relied on           Para 29
F
       2005 (2) SCR450           relied on            Para 29
       2007 (3) SCR 939           relied on           Para 29
       2001 (4) Suppl. SCR 2.5 relied on              Para 31
G
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 906 of 2012.

       From the Judgment and Order dated 11-05-2007 of the

H
    NANO KUMAR v. STATE OF CHHATTISGARH                1149


High Court of Chhatisgarh at Bilaspur in Criminal Appeal       A
No. 785 of 2001.

                           WITH

Crl.A. Nos. 900-902, 908, 909-910, 911, 912, 913 & 914 of
2012.                                                          B
      Dharam Bir Raj, Vohra, Yash Pal Dhingra, Binay Kr. Das
for the Appellant.

    Dharmendra Kumar Sinha, Apoorv Kurup, V.C. Shukla,         C
C.D. Singh, for the Respondent.

    The Judgment of the Court was delivered by

     ABHAY MANOHAR SAPRE, J. 1. These appeals have
been directed against the final common judgment dated o
11.05.2007 passed by the High Court of Chhatisgarh at
Bilaspur in Criminal Appeal Nos. 785, 866, 762, 868, 761,
853, 875, 970, 851, 873 and 842 of 2001, whereby the High
Court upheld the conviction and sentence of the appellants
herein under Section 302 read with Sections 149 and 148 of E
the Indian Penal Code, 1860 (in short "IPC") which was
awarded to them by the Sessions Court whereas the High
Court allowed the Criminal Appeals of other accused and
acquitted them of the charges by setting aside the judgment of
the Sessions Court dated 12.07.2001 in Sessions Trial No. 342 F
of 1995 to that extent.

     2. The concluding part of the impugned judgment of the
High Court reads as under:

    "In the result, the appeals filed by accused Raj Kumar G
    Singh, Dhananjay, Rohit, Nirmal, Surjan, Santosh Singh,
    Gopal Das, Chhatram, Balchand and Devilal succeeds.
    Conviction and sentences imposed upon them under
    Sections 302 read with Sections 149 and 148 of the IPC
    are set aside. They are acquitted of the said charges.  H
      1150     SUPREME COURT REPORTS                [2014] 12 S.C.R.


A          a. Balchand, Devilal, Chhatram & Su~an are on bail. Their
           bail bonds are discharged and they need not surrender to
           their bail bonds.

           b. Santosh Singh, Rohit, Gopal Das, Raj Kumar Singh,
           Nirmal and Dhananjay are in detention since 18-1-1995.
B
           They are directed to be releai;ed forthwith, if not required
           in any other case.

           The appeal filed by accused Rameshwar Singh stands
           abated.
c
          The appeals filed by accused Kumar Singh, Nande Singh,
          Nand Kumar, Baran, Jaipal, Resham Lal, Guharam,
          Amritlal and Basant Das an:! dismissed. Conviction and
          sentences imposed upon th 1em under Sections 302 read
          with Sections 149 and 148 of the IPC are maintained.
D
          Baran, Jaipal and Resharn Lal are on bail. Their bail
          bonds are discharged and they are directed to surrender
          before the trial court forthwith to serve out the remaining
          sentence."

E          3. The question that arise:s for consideration in these
      appeals is whether the High Court was justified in upholding
      the conviction and sentence of the present appellants.

            4. In order to appreciate the issue involved in these
F     appeals, it is necessary to stat1~ the prosecution case in brief
      infra.

          5. In a village - Bhaismudi in District Janjgir, there were
      two groups of villagers. One ~1roup consisted of deceased -
      Jawahar Singh, Bhupendra Sinuh and others whereas the other
<;3   group consisted of the appellants herein and other accused.
      There were disputes between the two groups on account of
      Panchayat elec,ions in the village and also several other
      reasons.

H
    NANO KUMAR v. STATE OF CHHATIISGARH                   1151
         [ABHAY MANOHAR SAPRE, J.]

     6. In the intervening night of 16th & 17th January 1995, the A
accused persons convened a meeting and hatched up a
conspiracy to eliminate Jawahar Singh and others. The accused
persons accordingly formed an unlawful assembly with a
common object to murder Viki Singh, Jawahar Singh,
Bhupendra Singh, Shailendra Singh - both sons of Jawahar B
Singh, and Kalicharan and in furtherance of this common object,
all accused persons with deadly weapons (lathi, sword, ballam,
Tabbals, iron roads) first went to the residence of Viki Singh
near a place called Nawa Talab, and killed Viki Singh by
severely beating him with the weapons which they had carried       c
with them. The accused persons then proceeded towards the
agriculture field of Jawahar Singh where they killed Jawahar
Singh and his two sons - Bhupendra Singh and Shailendra
Singh by severely beating them with the weapons, w~ich they
were carrying with them. Thereafter, the accused party
                                                                  0
proceeded to a place called - Holha Chowk of Bhaismudi and
killed Kalicharan with the aid of same weapons.

     7. Madhubala Bai (PW-1) reported this incident by lodging
Dehati Nalishi (Ex-P-1) on the spot on 17.01.1995 around 3.00
P.M.                                                               E

     8. At this stage it is proper to reproduce the substance of
the contents of Ex-P-1 herein below: -

           " ....... that she is resident of village Bhaismudi, at F
     about 11.30 a.m. she was at her shop, at that time, Karia
     Sabaria came crying to her shop and said that Viki Singh
     has been murdered near Nawa Talab by Shiv Sena
     persons namely, Kumar Singh, Nande Singh, Guharam,
     Rohit, Jaipal, Resham, Rajkumar Singh, Prahlad Singh,
     Rameshwar Singh, Dhananjay, Nand Kumar, Santosh & G
     others. When she reached the spot, she saw that all these
     persons were carrying lathi, rod, battle axe etc. They were
     crying and saying 'let us now go to the field of Jawahar
     Singh and finish them there', they started going towards
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     1152    SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A         the agricultural field of her father. She and her mother also
          followed them and requested tl1at once they should save
          their life, but they did not acceide to their request. While
          going to the agricultural field, she informed Vinay Singh
          that Babuji has been murdered near Nawa Talab, Nirmal
B       · Kashyap, Amrit, Basant and Baran were also along with
          them. After reaching the agricultural field, these persons
          attacked her father Jawahar Singh and brothers
          Bhupender Singh and Shaih~nder Singh with lathi and
       · Tabbal as a result of which heir father Jawahar Singh and
          brother Bhupender Singh succumbed to the injuries
c        sustained by them instantaneously, and brother Shailender
          Singh succumbed to the injuries after 15-20 minutes. All
         these persons have committed the murder of her father and
         brothers."

D      9. On receipt of the aforesaid report, Brajender Singh (PW-
  16) - the Head Constable of Police Station Janjgir, registered
  the FIR (Ex-P-64) for commission of the offence under Sections
  302, 147, 148 and 149 IPC. Brajender Singh (PW-16) gave
  intimation in respect of the death of Shailendra Singh - (Ex-P-
E 65) whereas intimation in respect of the death of Bhupendra
  Singh and Jawahar Singh were given by M.L. Shandilya (PW-
  22), Inspector of police - Exs-P-70 and P-71.

       10. After giving necessary notices (Exs. P-2, 51, and 63),
F the Investigating Officer prepari:id inquest of Bhupendra Singh
  (Ex-P-3), Shailendra Singh (Ex-P-52) and Jawahar Singh (Ex-
  P-64). Dr P.K. Narula (PW-12) conducted post-mortem on the
  body of Bhupendra Singh (Ex-P-56). In his opinion, the cause
  of death of Bhupendra Singh was due to shock as a result.of
G hemorrhage on account of extEmsive homicidal head injury. Dr.
  U.C. Sharma (PW-13) conducted post-mortem on the body of
  Jawahar Singh, who vide his reiport (Ex.P-59) opined that cause
  of death of Jawahar Singh was due to shock and hemorrhage
  as a result of extensive head injury and that the death is
  homicidal in nature. Dr. A.K. Paliwal (PW- 14) conducted post-
H
    NANO KUMAR v. STATE OF CHHATTISGARH                      1153
         [ABHAY MANOHAR SAPRE, J.]
mortem on the body of Shailendra Singh and vide his report            A
(Ex-P-61) opined that cause of death was due to shock
resulting from hemorrhage caused by extensive head injury and
that death is homicidal in nature.

     11. After completing the. investigation and collecting all the
                                                                      8
evidence, the charge-sheet was filed against 29 accused
persons for commission of offences punishable under Sections
147, 148, 149 and 302 of the !PC in the Court of Judicial
Magistrate First Class, Janjigir, who in turn committed the case
to the Session Judge, Bilaspur, who in turn transferred it to the
Additional Sessions Judge. During the trial, one of the accused       C
- Prahlad Singh, died.

      12. Prosecution examined as many as 22 witnesses at the
trial to prove the case. Statements of accused persons were
then recorded under Section 313 of the Criminal Procedure D
Code, 1973 (hereinafter referred to as Cr.P.C.), in which all the
accused persons denied their involvement in the commission
of the offences and also denied the material collected against
them in the form of evidence. They stated that they were falsely
implicated in the crime and are thus innocent. One of the E
accused, Ganesh, stated that the deceased and their party
members were indulged in selling illicit liquor and since
members of their party -Shiv Sena were not allowing them to
do such acts which included accused, who were also the
 members of Shiv Sena, they were falsely involved in this case F
due to this grudge against them. He also stated that since in
Panchayat elections, some candidates of the deceased party
 had lost the election and hence, they were hostile to the
 accused persons. Another accused - Gopal Das stated that on
 the date of incident, he was at Raigarh for medical test. The · G
 accused in defence examined Lalit Kumar (DW-1) and Dinesh
 Chandra Pathak (DW-2).

    13. The trial Court, by judgment dated 12.07.2001,
acquitted eight accused and convicted the remaining accused.
                                                                      H
    1154    SUPREME COURT REPORTS              (2014) 12 S.C.R.


A All the convicted appellants were directed to undergo life
  imprisonment under Section 302 read with Sections 148 and
  149 with a fine of Rs. 2000/- each.

      14. The convicted accused persons filed appeals in the
  High Court. By impugned judgment the High Court upheld the
B conviction of nine accused persons by dismissing their appeals
  and acquitted the remaining accus€id persons by allowing their
  appeals. One appeal was held abat,ed due to death of accused.

      15. The details regarding conviction/acquittal ofaccused
C persons by the High Court are me:ntioned herein below:

        Name and Number of the Accused-Appellant Acquittal I
    Conviction
     .
        Gopal Das (A 3)                Acquitted
D
        Kumar Singh (A 4)              Conviction Upheld
        Rajkumar Singh (A 5)           Acquitted

        Baran (A 6)                    Conviction Upheld
E
       Amrit (A 7)                     Conviction Upheld
        Guharam (A 8)                  Conviction Upheld
       Jaipal (A 9)                    Conviction Upheld
F
       Santosh Singh (A 10)           Acquitted
       Nande Singh (A 11)             Conviction Upheld
       Resham (A 13)                  Conviction Upheld
G
       Rameshwar Singh (A 14)         Appeal Abated
       Dhananjay (A 15)               Acquitted
       Rohit Kumar Karsh (A 16)       Acquitted
H
    NANO KUMAR v. STATE OF CHHATTISGARH                  1155
         [ABHAY MANOHAR SAPRE, J.]
     Nirmal (A 17)                   Acquitted                  A

     Basant (A 19)                   Conviction Upheld

     Surjan (A 20)                   Acquitted.
     Chhatram (A 24)                 Acquitted                   B

     Balchand (A 25)                 Acquitted

     Devilal (A 27)                  Acquitted

     Nand Kumar (A 28)               Conviction Upheld           c
       16. Against this judgment of the High Court, the convicted
. accused persons have preferred these appeals before this
  Court questioning the correctness of the impugned judgment
  in so far as their conviction and sentence is concerned.        D
      17. Learned Counsel for the appellants, while assailing the
conviction and sentence of the appellants, contended that the
High Court was not right in upholding the conviction of the
appellants. It was further contended that there was no role
played by any of the appellants in the commission of the offence E
in question and nor was there any overt act played by any of
them so as to render them liable to suffer. conviction and
sentence under Sections 302/147/148/149 of the IPC. Learned
Counsel urged that non-examination of Kariya Sabaria, who
was important eyewitness even according to the prosecution, F
has rendered the appellants' conviction bad in law. Learned
counsel maintained that where group of persons commits any
crime, it becomes necessary for the prosecution to prove the
 role of every person of such group in commission of the offence
 including what every person actually did such as whether he G
actually assaulted the deceased, which weapon he used, how
 much force he used, whether he was aggressor, whether his
 role was prominent and if so to what extent etc. Learned
 Counsel submitted that since evidence adduced by the
                                                                 H
     1156    SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A prosecution is lacking on these material issues and hence the
  appellants must be given the benefit of doubt and they be
  acquitted of the charges alike those! acquitted by the trial court
  and the High Court and lastly, it was urged that since the
  conviction is based solely on th,e testimony of interested
8 witnesses (PW- 1 and 3), who were related to the deceased
  persons and, therefore, their testimony was not reliable for
  convicting the appellants for want of any other independent eye-
  witness.

         18. Learned Counsel for the res·pondent-State, in reply,
C   while supporting the impugned jL1dgment contended that no
    case is made out to call for any interference in the impugned
    judgment. Firstly, he submitted thcit the High Court was right in
    upholding the appellants' conviction and sentence; secondly,
    both the courts below rightly appreciated the evidence adduced
D   by the prosecution, which was sulficient in the ordinary course
    to sustain the finding of conviction under Section 302 read with
    Sections 147/148/149 of IPC; thirdly, the appellants' conviction
    was based on the testimony of two eye-witnesses, namely,
    Madhubala Bai (PW-1) and Saraswati Bai, (PW-3), whose
E   presence at the time of occurreni::e was not disputed; fourthly,
    keeping in view the law laid down by this Court in several
    decisions explairiing therein the parameters to be applied for
    convicting any member of unlawful assembly, the prosecution
    was able to adduce sufficient evidence to sustain the appellants'
F   conviction; and lastly, lookin~1 to the gruesome murders
    committed by the appellants killin 1g as many as five persons with
    a pre-determined motive, this Court should uphold the
    conviction and sentence of all the appellants, who are sailing
    in the same boat and dismiss these appeals.
G         19. Coming first to the queistion as to whether the death
    of three persons, which is the subject matter of these appeals,
    namely - Jawahar Singh, Shailendra Singh & Bhupendra Singh
    is homicidal. We are of the .considered opinion that it is
    homicidal in na~ure. It is amply established from the medical
H
    NANO KUMAR v. STATE OF CHHATTISGARH                    1157
         [ABHAY MANOHAR S~PRE, J.]
evidence of three doctors namely, Dr. P.K. Narula (PW-12), Dr.     A
U.C. Sharma (PW-13) and Dr. AK. Paliwal (PW-14) and their
respective post-mortem reports (Exs-P-56, 59 and 61) as also
ocular evidence of two eye-witnesses, Smt. Madhubala Devi
(PW-1) & Saraswati Bai (PW-3). We, therefore, uphold the
finding of two courts below on this issue.                         B

     20. This takes us to the main question as to whether the
courts below were justified in holding the appellants guilty for
committing murder of three persons named above?

     21. Before we peruse the ocular evidence adduced by the       C
prosecution, it is necessary to take note of the law on the
question as to under what circumstances, a member of an
unlawful assembly can be held to have committed an offence
in pursuance of the common object of such assembly of which
he is a member.                                                    D

     22. While distinguishing on facts and then explaining the
view taken by this Court in Saladin and Ors. Vs. State of
Uttar Pradesh, AIR 1956 SC 181, the four Judge-Bench
speaking through Justice Gajendragadkar in Masalti etc. etc.       E
Vs. State of U.P., AIR 1965 SC 202, laid down the following
principle of law on the aforesaid question:

    "17. . ......... in the case of Ba ladin v. State of Uttar
    Pradesh, AIR 1956 SC 181, ........ , it was observed by
    Sinha, J., who spoke for the Court that it is well-settled that F
    mere presence in an assembly does not make a person,
    who is present, a member of an unlawful assembly unless
    it is shown that he had done something or omitted to do
    something which would make him a member of an unlawful
    assembly, or unless the case falls under Section 142 IPC. G
    The argument is that evidence adduced used by the
    prosecution in the present case does not assign any
    specific part to most of the accused persons in relation to
    any overt act, and so, the High Court was in error in holding
                                                                   H
    1158   SUPREME COURT REPORTS                 [2014) 12 S.C.R.


A      that the appellants Were members of an unlawful
       assembly......................................................

       It appears that in the case of Baladin the members of the
       family of the appellants c:md other residents of the village
       had assembled togethrer; some of them shared the
B      common object of the unlawful assembly, while others were
       merely passive witnesses. Dealing with such an assembly,
       this Court observed that the presence of a person in an
       assembly of that kind would not necessarily show that he
       was a member of an unlciwful assembly. What has to be
c      proved against a person who is alleged to be a member
       of an unlawful assembly i8 that he was one of the persons
       constituting the assembly and he entertained long with the
       other members of the assembly the common object as
       defined by Section 141 IPC Section 142 provides that
D      however, being aware of facts which render any assembly
       an unlawful assembly intentionally joins that assembly, or
       continue in it, is said to be a member of an unlawful
       assembly. In other words, an assembly of five or more
       persons actuated by, and entertaining one or more of the
E      common object specified by the five clauses of Section
       141, is an unlawful assembly. The crucial question to
       determine in such a ca:se is whether the assembly
       consisted of five or more persons and whether the said
        persons entertained one or more of the common objects
F       as 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
G       common object of the assE~mbly. It is in that context that
        the observations made by this Court In the case of Baladin
        assume significance; otherwise, in law, it would not be
        correct to say that before a person is held to be a member
        of an unlawful assembly, it must be shown that he had
        committed some illegal overt act or had been guilty of
H
    NANO KUMAR v. STATE OF CHHATIISGARH                    1159
         [ABHAY MANOHAR SAPRE, J.]
    some illegal omission in pursuance of the common object         A
    of the assembly. In fact, Section 149 makes it clear that if
    an offence is committed by any member of an unlawful
    assembly in prosecution of the common object of that
    assembly, or such as the members of that assembly knew
    to be likely to be committed in prosecution-of that object,     B
    every person who, at the time of the committing of that
    offence, is a member of the same assembly, is guilty of
    that offence; and that emphatically brings out the principle
    that the punishment prescribed by Section 149 is in a
    sense vicarious and does not always proceed on the basis        C
    that the offence has been actually committed by every
    member of the unlawful assembly. Therefore, we are
    satisfied that the observations made in the case of
    Ba/adin~ must be read in the context of the special facts
    of that case and cannot be treated as laying down an
                                                                    0
    unqualified proposition or law..... "

     23. Recently, this Court in Om Prakash Vs. State of
Haryana, (2014) 5 SCC 753, placed reliance on the aforesaid
principle laid down in Masalti (supra) in following words:
                                                                    E
    "15. The aforesaid enunciation of law was considered by
    a four-Judge Bench in Masalti v. State of U.P.,AIR 1965
    SC 202 which distinguished the observations made in
    Baladin AIR 1956 SC 181 on the foundation that the said
    decision should be read in the context of the special facts
                                                                    F
    of the case and may not be treated as laying down an
    unqualified proposition of law. The four-Judge Bench, after
    enunciating the principle, stated as follows: (AIR p.
    211, para 17)

   . "17. ... it would not be correct to say that before a person   G
     is held to be a member of an unlawful assembly, it must
     be shown that he had committed some illegal overt act or
     had been guilty of some illegal omission in pursuance of
     the common object of the assembly. In fact, Section 149
                                                                    H
    1160    SUPREME COURT REPORTS               [2014] 12 S.C.R.


A       makes it clear that if an offence is committed by any
        member of an unlawful assembly in prosecution of the
        common object of that assembly, or such as the members
        of that assembly knew to be likely to be committed in
        prosecution of that objE!ct, every person who, at the time
B       of committing of that offence, is a member of the same
        assembly, is guilty of that offence; and that emphatically
        brings out the principle that the punishment prescribed by
        Section 149 is in a sense vicarious and does not always
        proceed on the basis that the offence has been actually
        committed by every member of the unlawful assembly".
c
         24. Keeping the aforesaid principle of law in mind, when
    we peruse the prosecution e'vidence, we have no hesitation in
    upHblding the findings of thEi courts below. We do this for the
    following reasons.
D
       25. In the first place, names of these accused are
  mentioned in Dehati Nalish (Ex-P-1). Secondly, their names are
  also mentioned in the statements of P.W-1 and P.W-3, which
  were recorded under Section 161 of the Cr.P.C. Likewise these
E two witnesses (PWs 1 and 3:) also categorically stated in their
  evidence in Court about the overt act played by the accused
  persons in committing the murders of Jawahar Singh and his
  two sons, Bhupendra and Shailendra. In other words, a conjoint
  reading of these two statements clearly establishes the overt
F acts played by the accused persons while killing these three
  persons one after another on the same day. Thirdly and most
  importantly, the ocular evidence of two eye witnesses (PWs 1
  and 3) conclusively prove not only the involvement of the
  accused persons but their actual active role played in killing
  these three persons. We have undertaken the exercise of
G appreciating the evidence and especially of two eye witnesses
  (PWs 1 and 3) and we find that their sworn testimonies deserve
  to be accepted.

         26. It is not in dispute, as it has come in evidence, that
H
    NANO KUMAR v, STATE OF CHHATTISGARH                     1161
         [ABHAY MANOHAR SAPRE, J.]
Madhubala (PW-1) is the daughter of the deceased- Jawahar            A
Singh, and sister of the deceased Bhupendra and Shailendra,
whereas Saraswati Bai (PW-3) is the wife of the deceased
Jawahar and mother of Madhubala (PW-1) and the deceased
Bhupendra and Shailendra.

      27. In the case on hand, the mother and daughter saw from B
their naked eyes that their father/husband and two sons/
brothers were being killed in their presence with the use of
Lathis, battle axe, sword and rods by the accused persons
mercilessly and both the helpless ladies standing in front of the
mob (accused persons) with folded hands praying "please do C
not kill them and leave them". The accused persons did not
listen to their prayer and with a pre-determined motive killed
the deceased persons by beating them due to which two of
them died on the spot and one succumbed in the hospital after
some time.                                                        D

    28. It will be a travesty of justice, if we do not believe the
sworn testimonies of these two eye-witnesses, which in our
considered opinior:i, remained consistent throughout on material
issues. Indeed, there is no valid reason for this Court to           E
disbelieve them.

     29. The submission of learned Counsel for the appellants
that since PWs 1 and 3 were in close relation with the
deceased persons being wife/mother or daughter/sister and
that they should not be believed for want of evidence of any         F
independent witness, deserves to be rejected in the light of the
law laid down by this Court in Dalbir Kaur and Ors. Vs. State
of Punjab, (1976) 4 SCC 158, and Harbans Kaur and Anr.
Vs. State of Haryana, (2005) 9 SCC 195, which lays down
the following proposition:                                           G

     "There is no proposition in law that relatives are to be
     treated as untruthful witnesses. On the contrary, reason has
     to be shown when a plea of partiality is raised to show that
                                                                     H
    1162     SUPREME COUHT REPORTS                [2014] 12 S.C.R.


A       the witnesses had reason to shield actual culprit and falsely
        implicate the accused."

         In Namdeo Vs. State of Mahiirashtra, (2007) 14 SCC
    150, this Court further held:

B       "38 ........... it is clear that a close relative cannot be
        characterised as an "interested" witness. He is a "natural"
        witness. His evidenc1~. however, must be scrutinised
        carefully. If on such scrutiny, his evidence is found to be
        intrinsically reliable, inherently probable and wholly
c       trustworthy, conviction can be based on the "sole"
        testimony of such witn,ess. Close relationship of witness
        with the deceased or victim is no ground to reject his
        evidence. On the contrary, close relative of the deceased
        would normally be most reluctant to spare the real culprit
        and falsely implicate an innocent one."
0
        30. We follow this well settled principle of law for rejecting
    the submissions of learned Gounsel for the appellants.

         31. Yet another submission of learned counsel that due to
E   discrepancies in the evidence of PWs 1 and 3 and in their
    statements recorded .under Section 161, should not be relied
    on and deserves to be reject ed in the light of the law laid down
                                  1



    by this Court in Munshi Pra:sad and Ors. vs. State of Bihar,
    (2002) 1 sec 351, which reads as under:
F
         "Incidentally, be it noted that while appreciating the
         evidence of a witness, minor discrepancies on trivial
         matters without affecting the core of the prosecution case,
         ought not to prompt th1~ court to reject evidence in its
         entirety. If the general teinor of the evidence given by the
G        witness and the trial coLrrt upon appreciation of evidence
         forms opinion about the credibility thereof, in the normal
         circumstances the appellate court would not be justified to
         review it once again without justifiable reasons. It is the
         totality of the situation, which has to be taken note of, and
H
    NANO KUMAR v. STATE OF CHHATTISGARH                   1163
         [ABHAY MANOHAR SAPRE, J.]
    we do not see any justification to pass a contra-note, as      A
    well, on perusal of the evidence on record."

     32. As mentioned above, we have not been able to notice
any major discrepancies in their statements and whatever
discrepancies, which were relied on by the learned counsel,
                                                                   B
were so minor and insignificant that they do not, in any way,
dilute their version.

     33. In our considered view, when several people
participate in commission of an offence with deadly weapons
and attack one or more persons with an intention to kill them      c
then the witnesses who are closely related to the victim(s) are
not expected to describe the incident in graphic detail and with
such precision that which member and in what manner he
participated in the commission of offence. Their evidence is
required to be appreciated in its totality.                        D
     34. In the case on hand, PWs-1 and 3 elaborately narrated
the entire incident by taking the names of every accused whom
they knew to be the residents of the same area. We, therefore,
find no merit in the submission of the learned counsel and
accordingly reject it.                                             E

    35. We are also not impressed by the arguments of the
learned counsel appearing for the appellants when he
contended that one eye-witness, Kariya was not examined and
hence it has weakened the case of the prosecution.                 F
     36. The law does not say that the prosecution must
examine all the eye-witnesses cited by the prosecution. When
the evidence of two eye-witnesses, PWs 1 and 3 was found
worthy of acceptance to prove the case then it was not             G
necessary for the prosecution to examine any more eye-
witnesses. It is for the prosecution to decide as to how many
and who should be examined as their witnesses for proving
their case. Therefore, we find no merit in this submission.
                                                                   H
    1164     SUPREME COURT REPORTS                 [2014] 12 S.C.R.


A        37. In the light of the fomgoing discussion, we find no merit
    in the appeals, which fail and are accordingly dismissed. As a
    result, the conviction and sentence awarded to the appellants
    by the courts below are uphHld.
    Bibhuti Bhushan Bose                            Appeals dismissed.
B