JUDGMENT 1. - This revision petition is directed against the judgment of learned Additional Sessions Judge, Sirohi, dated 26-4-1972, upholding the judgment of Munsiff Magistrate, Bali, dated 31-7-1971, whereby convicted and sentenced all the accused-petitioner as under:- Accused Hansaram Convicted U/Ss. 148 and 326 IPC Sentenced to one year's R. I. under the first count. Two years' R. I. with a fine of Rs. 200/-in default to undergo two months' rigorous imprisonment under the second count. Accused Jawanaram Convicted U/Ss. 148 and 326/149 IPC Sentenced to one year R. I. under each count with a fine of Rs. 50/-in default of the payment of which to one month's like imprisonment under the second count. Accused Chunnilal, Verdaram. Hemaram & Jasaram Convicted U/Ss. 147 and 326/149 IPC Each sentenced to six months' R. I. under each count with a fine of Rs. 50/-, in default of the payment of which to undergo one month's like imprisonment under the second count. 2. Petitioners Hansaram, Jawanaram and Verdarara, arc brothers. Jasaram and Chunnilal are their uncles and Hemaram is brother-in-law of accused-petitioners Jasaram and Chunnilal. Victim PW 3 Kapuraram is the nephew of the other victim PW 1 Magaram. The whereabouts of one Jotaram, nephew of PW 1 Magaram, were not known for the last 8 or 10 years. Accused Verdarara managed to perform Natra marriage with Jotaram's wife, as a result of which relations between the injured persons and the accused became strained. PW 1 Magaram made certain complaints to the State Vigilance Department, which infuriated the accused. 3. The prosecution case, as disclosed at the trial, is that on 12-3-1966, in between 11 to 12 a.m., the accused-petitioners framed an unlawful assembly. The common object of the assembly was to belabour PW 1 Magaram and PW 3 Kapuraram. In prosecution of that common object all the six accused came together near the shop of Narayan betel merchant. At that time Hansaram was armed with a `kunt' Jawanaram with an axe, Verdaram with a `kunt', Jasaram and Hemaram were armed with `lathis' and Chunnilal was empty handed. PW 3 Kapuraram, who happened to pass by that way, noticed the presence of the accused persons standing near Narayan betel merchant's shop. At that time Hansaram was armed with a `kunt' Jawanaram with an axe, Verdaram with a `kunt', Jasaram and Hemaram were armed with `lathis' and Chunnilal was empty handed. PW 3 Kapuraram, who happened to pass by that way, noticed the presence of the accused persons standing near Narayan betel merchant's shop. While going to his uncle PW 1 Magaram's shop, he suspected some foul play on the part of the accused and as such took a short-cut and wanted to go to his shop by going behind the shop of Narayan betel merchant. He was noticed doing so by the accused and ail of them raised a cry `beat, beat' and chased him. In order to save himself from the assault he went inside the shop of Mahashakti Steel Corporation. The accused also followed him and gave beating to him. Kapuraram sustained nine injuries at the hands of the accused-persons. He raised an alarm, which attracted PW I Magaram and PW 4 Madanlal. PW 1 Magaram tried to intervene, but he was also belaboured and he sustained four injuries at the hands of the accused. The hue and cry raised by Kapuraram and Magaram attracted PW 5 Hansaram, PW 6 Venia and PW 7 Rugha, on the scene of occurrence. After the arrival of the above mentioned three witnesses the accused took to their heels. The prosecution case further is that as Magaram's injuries were severe and his condition was serious, both the injured PW 1 Magaram and PW 3 Kapuraram were taken to the hospital at Shivganj. The first aid to the injured was provided by the Compounder at Shivganj. As the doctor was not available, they were later on taken to Sirohi. First information report of this occurrence was lodged at the police station, Sirohi, at about 3.30 p.m. by PW 3 Kapuraram. As the offence was committed within the territorial jurisdiction of police station, Sumerpur, this FIR was seat at the police station, Sumerpur, for investigation the FIR has been marked as Ex. P 3. Kapuraram was clinically examined by PW 2 Dr. Laxmi Narayan Agarwal, who noticed the following injuries on his person:- 1. Abrasion 21/2 " x 1/2" superficial on the dorso-medial aspect of the right forearm 3" above the wrist joint. 2. Abrasion transverse 3" linear on the left side of the back from the left inferior angle of the scapulla. 3. Kapuraram was clinically examined by PW 2 Dr. Laxmi Narayan Agarwal, who noticed the following injuries on his person:- 1. Abrasion 21/2 " x 1/2" superficial on the dorso-medial aspect of the right forearm 3" above the wrist joint. 2. Abrasion transverse 3" linear on the left side of the back from the left inferior angle of the scapulla. 3. Abrasion 13/4 linear on the right side of the back 5" from the right inferior angle of the scuppla. 4. Haemotcma (swelling)11/4" x 1" raised on the medial line of the scalp 7' from the nasione. 5. Incised wound gone underlying the wound (fikula) partially out 11/2 x 1/2 bone deep on the anterior aspect of the right leg 4" above the ankle joint. 6. Incised wound 1/2 x ⅛" skin deep on the dorsal aspect of the first phallynx of the right index finger. 7. Abrasion 1/4" x ⅛' skin peded of on the anterior aspect and first and second phalynxes. 8. Abrasion 11/2 x 1/2 superficial on the anterior medial aspect of the left forearm 21/2 below left elbow joint.. 9. Abrasion 3/4 x 1/2" superficial on the antero-medial aspect of the left forearm 21/4" above the left wrist joint. Out of nine injuries sustained by Kapuraram the injuries nos. 5 and 6 were found to have sustained by sharp edged weapon. PW 1 Magaram was also clinically examined on the same day by the same doctor, who noticed the following injuries on his person:- 1. Curved incised wound cut feadon and fibula bone seen through the lower part of the wound with covexity upward 31/2" x 1" sectioning the bone. 2. Incised wound transverse oblique cut ulna bone is seen - 1" x 1/2" sectioning the bone. 3. Abrasion transverse 3/4" x 1/4" superficial. 4. Abrasion 1" x 1/2" superficial. Out of the four injuries sustained by Magaram injuries Nos. 1 and 2 were found to have been caused by sharp edged weapon, which were also found to be grievous. The police after usual investigation submitted a challan against all the six accused persons in the court of Munsiff Magistrate, Bali. 4. Abrasion 1" x 1/2" superficial. Out of the four injuries sustained by Magaram injuries Nos. 1 and 2 were found to have been caused by sharp edged weapon, which were also found to be grievous. The police after usual investigation submitted a challan against all the six accused persons in the court of Munsiff Magistrate, Bali. The accused pleaded not guilty to the charge and the prosecution examined 15 witnesses in support of their case out of whom PW 3 Kapuraram, and PW I Magaram are injured persons, PW 4 Madanlal, PW 5 Hansaram, PW 6 Venia and PW 7 Rugha are the eye witnesses of the occurrence. The accused Hemaram. Jasaram and Verdaram pleaded alibi in their statements recorded under section 342, Cr. P C. Accused Hansaram and Jawanaram stated in their statements recorded under section 342, Cr. P. C., that the prosecution had put only a truncated version of the occurrence. According to. them they were belaboured by Kapuraram, Magaram and their associates. In support of their plea they produced Ex. D7 a FIR of the counter case and their injury reports Ex. D 9, D10, and D 11. Accused Chunnilal stated that he went to rescue Hansaram and Jawanaram, but he was also not spared by the members of the complainant-party. The accused-petitioners examined three witnesses in support of their case. The learned Magistrate after scanning the evidence placing reliance on the statements of the two injured supported by four eye witnesses, held that all the six accused formed an unlawful assembly with the common object to belabour PW 3 Kapuraram and PW 1 Magaram and in the course of the prosecution of that object PW 1 Magaram and PW 3 Kapuraram sustained simple and grievous hurts by blunt and sharp edged weapons at the hands of the accused. He found the defence evidence to be unreliable and held that the accused were aggressors and the prosecution case judged from whatever stand could not be branded as false one. On the basis of the above findings he convicted and sentenced the accused as mentioned above. 4. The aggrieved accused-petitioners preferred an appeal challenging their convictions and sentences which came up for decision before the learned Additional Sessions Judge, Sirohi. The learned Additional Sessions Judge, after reappraisal of the evidence affirmed the judgment of the trial court. Hence this revision petition. 5. 4. The aggrieved accused-petitioners preferred an appeal challenging their convictions and sentences which came up for decision before the learned Additional Sessions Judge, Sirohi. The learned Additional Sessions Judge, after reappraisal of the evidence affirmed the judgment of the trial court. Hence this revision petition. 5. The learned counsel for the accused-petitioners Mr. M. B. L. Bhargava has challenged the convictions and the sentences of all the accused-petitioners on. a number of grounds, which will be dealt with by me ad seriatim. Firstly it has been urged that the motive showing the cause for the crime as disclosed in the FIR Ex. P 3 was strained relations between the parties on account of the accused Verda performing a Natra marriage with Jotaram's wife, who was a nephew of PW I Magaram. The immediate cause of the incident as disclosed during investigation by the prosecution witnesses was that a day before the date of the occurrence some quarrel took place between Hansaram and accused Jasaram, out all the witnesses in their statements before the court gave a goodbye to it and stated that such a quarrel did not take place between Hansaram and Jasaram. They went to the extent of saying that such a statement was not made by them before the police. Thus the prosecution case regarding the motive for commission of the crime has not been proved. At the best the prosecution evidence shows that the relations between the accused and the injured were strained and unhappy from a pretty long time, but no immediate cause for the incident has been revealed. 6. The motives of men are often subjective submerged and unamenable . to easy proof. The proof of motive in a case satisfies the judicial mind about the likelihood of the authorship of the crime, its absense only demands greater scrutiny of the evidence and cannot undo the effect of the evidence, otherwise sufficient. Keeping the above principles in view I would proceed to evaluate the other evidence in the case. ' 7. The proof of motive in a case satisfies the judicial mind about the likelihood of the authorship of the crime, its absense only demands greater scrutiny of the evidence and cannot undo the effect of the evidence, otherwise sufficient. Keeping the above principles in view I would proceed to evaluate the other evidence in the case. ' 7. The second contention raised by the learned counsel for the accused-petitioners is that though the offence took place at Sumerpur and the police station is situated in the same village yet the FIR of this occurrence was lodged at Sirohi at 5.00 p. m., on 12-3-1966 and this must have been utilised by the prosecution to settle down the prosecution story and the delayed information itself is sufficient to cast a doubt regarding the truthfulness of the prosecution story. In support of his contention he placed reliance on Thulia Kali v. The State of Tamil Nadu, A. I R. 1973 Supreme Court 501 . and Ram Kumar Pande v. The State of Madhya Pradesh, A. I. R. 1975 Supreme Court 1026. . I do not feel persuaded to agree with the learned counsel for the petitioners. The time noted in Ex. P 3 for lodging FIR is 3 30 p. m. and not 5 p.m. In face of documentory evidence it can not be held that it was given at 5 p. m. The occurrence took place at Sumerpur, which is a small village and there is considerable force in the contention of the learned counsel appearing on behalf of the complainant that is PW 1 Magaram had sustained grievous injuries by sharp edged weapon and his condition was precarious, it was thought advisable to provide medical aid first and as such the injured persons were taken first at Shivganj, which has got better medical facilities and thereafter they were taken to Sirohi because the doctor at Shivganj was not available. Whenever a person is seriously injured the primary concern of the injured and his helpers is to provide medical aid first and then to go to the police. In the proved circumstances of the case no oblique motive can be imputed to the complainant for not giving an FIR at Sumerpur. Filing of the FIR at 3-30 p. m., on 12-3-66, that is, within four hours of the occurrence at Sirohi cannot be said to be a delayed one. In the proved circumstances of the case no oblique motive can be imputed to the complainant for not giving an FIR at Sumerpur. Filing of the FIR at 3-30 p. m., on 12-3-66, that is, within four hours of the occurrence at Sirohi cannot be said to be a delayed one. The injured must have taken considerable time in first going to Sumerpur, searching the doctor and then going to Sirohi, which is situated at a distance of 25 miles from the place of occurrence. 8. The third contention raised by the learned counsel for the accused petitioners is that the investigation was unfair, which has greatly prejudiced the case of the accused-petitioners. PW 3 Kapuraram stated on oath that he went to Sirchi police station on 12-3-1966 at 5 p. m., whereas the time noted in Ex. P 3 for giving F.I.R. is 3:30 p. m. He further urged that the police record shows that PW 3 Kapuraram, PW 1 Magaram, PW 4 Madanlal, PW 5 Hansaram, PW 6 Benia and PW 7 Rugha were examined by the police on 13, 14, 15, 16, and 17-3-66, respectively. These witnesses in their statements before the court have shown the date of their examination by the police Later than that entered in the police record. Ordinarily accused persons are entered to challenge the testimony of a witness examined in court with reference to the statements said to have been made by them before the investigating officer, but by preparing.tainted record police has deprived the petitioners of their valuable, right to challenge the veracity of the statements of the witnesses examined in trial court. In support of his contention he placed reliance on Baladin and others v. State of Uttar Predesh, A. I. R. 1956 supreme Court 181 . I do not find much fore in this contention. The prosecution witnesses examined in this case are rustic villagers, who have very vague sense of time. Some of them were examined in the court, after the expiry of one and half year, and some of them were examined after the expiry of two years of the occurrence. Due to their faulty memory and loose 'way of stating the events they might have made a mistake in giving the date of their examination in the police. Some of them were examined in the court, after the expiry of one and half year, and some of them were examined after the expiry of two years of the occurrence. Due to their faulty memory and loose 'way of stating the events they might have made a mistake in giving the date of their examination in the police. On the basis of this infirmity it can not be said that the investigation of this case was unfair to the accused or the record is tainted one. Moreover, the F I.R. of this occurrence was lodged on the date of the occurrence at 330, p. m., at Sirohi police station and the case was registered at the police station, Sumerpur, on 13-3-1966 at 6 a. m. The names of all the witnesses examined in this case as eye witnesses of the occurrence except PW 7 Rugha, have been mentioned in the F.l.R. and their late examination by the police by itself cannot be held to be sufficient to discredit their statements made at the trial. Reference may be made to Ram Prasad and others v. The State of U.P., A.I.R. 1973 Supreme Court 2673 . His Lordship Hon'ble Khanna, J., while considering the effect of late examination of a witness in police, observed as under:- "Chandrika's name as an eye witness of the occurrence had been mentioned in the first information report which was lodged within about three hours of the occurrence. In the circumstances, the delay in recording the police statement of Chandrika by the investigating officer would not justify rejection of chandrika's testimony. 9. The fourth contention of the learned counsel for the petitioner is that PW 4 Madanlal, PW 5 Hansaram, PW 6 Benia and PW 7 Rugha are chance witnesses, and it is proverbially rash to place reliance on the statements of such witnesses. The occurrence of this case took place in the `bajar'. Shop of Mahasbakti Steel Corporation is situated in the main market. The shop of PW 4 Madanlal is situated nearby. PW 5 Hansaram and PW 6 Venia are `hemmals' and as such their sitting on the `chabutari' of the shop of Kanhaiyalal cannot be said to be unnatural. It was day time and these two witnesses PW 5 Hansaram and PW 6 Benia must be sitting there in the course of their usual business. PW 5 Hansaram and PW 6 Venia are `hemmals' and as such their sitting on the `chabutari' of the shop of Kanhaiyalal cannot be said to be unnatural. It was day time and these two witnesses PW 5 Hansaram and PW 6 Benia must be sitting there in the course of their usual business. On the proved facts of the case PW 4 Madanlal, PW 5 Hansaram and PW 6 Benia cannot be said to be chance witnesses. No doubt the name of PW 7 Rugha does not find place in the F.l.R. Examination of this witness by the police, after the expiry of five days of the occurrence, has affected adversely the value of his testimony at the trial. 10. Out of the six eye witnesses examined by the prosecution at the trial the name of PW 7 Rugha has not been mentioned in the F.l.R. If he would have been present on the scene of occurrence at the time of assault one will normally expect his name to be in the F.l.R. which was given by Kapuraram injured himself. In order to show his presence on the scene of occurrence the witness stated in his statement recorded by the police that he had gone near the scene of occurrence to take a `chhakara' on hire, but in his statement before the Court he denied to have given such a statement. Thus the very cause of his presence on the scene of occurrence has been negatived by him and 1 agree with the learned counsel for the petitioner. That the evidence of this witness read as a whole suggests that he was not an eye witness of the occurrence, but was introduced later on to support the prosecution case. 11. The fifth infirmity of the prosecution case pointed out by the learned counsel for the accused-petition is that the prosecution case. As disclosed in the FIR was that accused Verdaram was armed with a stick. The two injured witnesses and the four other eye witnesses of the occurrence stated in their police statements that Verdaram was armed with a stick. The fifth infirmity of the prosecution case pointed out by the learned counsel for the accused-petition is that the prosecution case. As disclosed in the FIR was that accused Verdaram was armed with a stick. The two injured witnesses and the four other eye witnesses of the occurrence stated in their police statements that Verdaram was armed with a stick. Whereas in their statement before the Court all of them stated that Verdaram was armed with a `kunt' and he attempted to give a blow with a `kunt'on the head of Magaram, which Magaram warded off by raising his hand and the `kunt' blow further fell on his left hand, causing a grievous injury. All these witnesses were confronted by their police statements and their attention was drawn towards the fact that they did not assign any `kunt' injury to this accused on the person of Magaram. The witnesses instead of explaining the contradictions had the brazenness to state that such a statement was not made by them in the police and insisted that their statements were not faithfully recorded by the police. On the basis of these contradictions the learned counsel urged that a deliberate lie has been introduced and truth has been mutilated by all the witnesses including the injured Magaram himself and as such their statements cannot be relied upon for convicting all or any of the accused persons. The learned counsel further urged that it is no doubt true that often times the courts have to separate the truth from the falsehood, but where the two are so intermingled that it is impossible to separate them, the evidence has to be rejected in its entirety. In support of his contention he placed reliance on Kanbi Nanji Virji and others v. State of Gujarat, AIR 1970 SC 219 , Lakshmi Singh and others etc- v. State of Bihar, AIR 1976 SC 02263 , Lalla and others v. The State of Rajasthan, 1976 Cr.L.R. (Raj) 4 , Kalua and others v. The State of Rajasthan, 1976 Cr.L.R. (Raj) 339 , Udaram & Devilal v. State of Rajasthan, 1976 Cr. L.R. (Raj) 495 and Ramasray Pande and others v. State of Bihar, AIR 1976 SC 2147 . He further stated that as all the witnesses are unreliable persons. They have unscrupulously spoken untruth on all vital points which has polluted their testimony to the core. L.R. (Raj) 495 and Ramasray Pande and others v. State of Bihar, AIR 1976 SC 2147 . He further stated that as all the witnesses are unreliable persons. They have unscrupulously spoken untruth on all vital points which has polluted their testimony to the core. The statement of one person cannot be used to corroborate the statement of another unreliable person. No doubt the above mentioned infirmities regarding inflicting of injury by accused Verda with a `Kunt' has appeared in the statement of all the prosecution witnesses, but this infirmity by itself cannot be held to be sufficient to discard the entire prosecution case. Even if it is held that the witnesses have exaggerated on one point efforts should be made to harmonise the details. Even if a witness is not reliable on a particular point, he need not be false and even if the police have trumped up one witness or two or has embroidered the stroy to give a credible look to their case that cannot defeat justice if there is ,clear and unimpeachable evidence making out the guilt of a particular accused. Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between `may be' and `must be' is long and divides vague conjunctures from sure conclusion. A part of the statement of the witness may be untrue, but the rest can be relied upon, if it finds sufficient corroboration from other evidence on record. 12. The admitted case of the prosecution is that on hearing the cries of Kapuraram for help PW I Magaram followed by PW 4 Madanlal rushed into the shop of Mahashakti Steel Corporation to rescue Kapuraram and thereafter the other eye witnesses arrived. PW 3 Kapuraram under cross-examination admitted that accused Chunnilal caused injury to him with a weight after the coming of Magaram. Rest of the injuries were inflicted to him prior to the reaching of PW 1 Magaram. In the light of this statement the evidence of all the eye witnesses examined in this case can be considered only to the extent they support the statement of PW 1 Magaram for his injuries and injury on the head sustained by Kapuraram at the hand of Chunnilal. 13. In the light of this statement the evidence of all the eye witnesses examined in this case can be considered only to the extent they support the statement of PW 1 Magaram for his injuries and injury on the head sustained by Kapuraram at the hand of Chunnilal. 13. The main point which remains to be considered is whether all the accused can be held vicariously liable for the act of the other assailants of the injured PW 1 Magaram and PW 3 Kapuraram by application of section 149, of the Penal Code. Answer to this will depend on a further question whether at any time during the occurrence an unlawful assembly constituted by these six accused came into being. It is conceded by the learned Advocate appearing on behalf of the complainant and the learned Public Prosecutor that before arriving near the shop of Narayan betel merchant the accused persons had not formed an unlawful assembly. The learned counsel maintains that such an assembly came into being as soon as the accused raised the cry to beat and chased Kapuraram inside the shop of Mahashakti Steel Corporation. Their contention is that all the six accused joined in the chase of Kapuraram and even if it is held that some of them assaulted the two injured, all of them can be held for forming an unlawful assembly and can also be held vacariously liable under section 149, IPC. A close perusal of Ex, P 3 FIR of this case, shows that there is nothing in the FIR on the basis of which it can be said that any of the accused made an incitement for chasing Kapuraram into the shop of Mashakti Steel Corporation. The evidence regarding incitement to chase Kapuraram seems to have been introduced as an embellishment in the case and cannot be relied upon. 14. Before Section 149 can be called in aid, the court must find with certainty that there were at least five persons sharing the common object. As regards accused Hemaram's participation in the assault on Kapuraram and PW 1 Magaram, there is the solitary statement of Kapuraram who stated that one blow was inflicted to him by Hemaram. This witness is also author of FIR Kapuraram admitted under cross-examination that in his police statement Ex. As regards accused Hemaram's participation in the assault on Kapuraram and PW 1 Magaram, there is the solitary statement of Kapuraram who stated that one blow was inflicted to him by Hemaram. This witness is also author of FIR Kapuraram admitted under cross-examination that in his police statement Ex. D 2 he did not state that Hema and Jassa inflicted `lathi' injuries on his person, while be was entering the gate of the shop of Mahashakti Steel Corporation. Hemaram was not seen by him inside the shop. PW 5 Hansaram stated that Hemaram was not armed with stick. He was only throwing buckets and `tagari' which did not hit any one. The witness goes on to state that accused Hemaram remained standing outside the shop. PW 6 Benia in his examination-in-chief stated that Hema was standing outside the shop and rest of the five accused entered the shop. The story of throwing buckets and`Tagari'by Hemaram, is palpably unreliable. Keeping in view of the contradictions appearing in the statements of the prosecution witnesses and categorical statements of PW 5 Hansaram and PW 6 Benia that Hemaram stood outside the shop, it will be very unsafe to hold that Hemaram chased Kapuraram or entered inside the shop of Mahashakti Steel Corporation. It cannot be said with certainty that accused Hemaram was one of those persons who chased Kapuraram and participated in the assault or. Kapuraram or Magaram. 15. Against accused Jasaram's participation in actual assault there is the solitary statement of Kapuraram PW 1 Magaram stated that at the time of the occurrence he did not see Jasaram inflicting any injury. PW 5 Hansaram stated in examination-in-chief that Jassa was standing. Under cross-examination the witness admitted that Jassa was empty handed. Thus the Only evidence against Jassa regarding infliction of injury by him on the person of Kapuraram is that of Kapuraram. This witness under cross-examination admitted that in his police statement he did not state that Hema and Jassa inflicted injuries on his person. The solitary statement of PW 3 Kapuraram against accused-petitioner Jassa regarding inflicting of injury on his person by Jasaram (petitioner) stands contradicted by his police statement Ex. D 2. Thus the evidence regarding infliction of a `lathi' blow by accused Jassa is not reliable. FIR, though given by the injured, is altogether silent regarding incitement made by any of the accused during the course of occurrence. D 2. Thus the evidence regarding infliction of a `lathi' blow by accused Jassa is not reliable. FIR, though given by the injured, is altogether silent regarding incitement made by any of the accused during the course of occurrence. No doubt an FIR is a previous statement which can. strictly speaking, be only used to contradict the maker of it. But in a case where it has been made by the aggrieved injured himself omissions of important facts, affecting the probabilities of the case, are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case. Reference may be made to Ram Kumar v. The State of Madhya Pradesh, A.I.R. 1975 Supreme Court 1026. Keeping in view the total absence of any averment regarding incitement in the FIR contradictory evidence regarding the participation of the two accused Jassa and Hema in the assault, general infirmities of the prosecution case already discussed above, and the fact that evidence in this case is of the interested witnesses, who have the tendency of impleading some innocent persons along with quality ones. I hold that it has not been proved beyond reasonable doubt that accused-petitioners Hemaram and Jasaram shared the common object of the assembly or participated in the assault on Kapuraram or Magaram on 12-3-66. 16. It has not been proved that five persons or more shared the common object to assault, and the participation of more than four persons in the assault on the persons of Kapuraram and Magaram, has also not been proved beyond reasonable doubt, as such, none of the accused persons can be convicted for forming an unlawful assembly and none of them can be held vicariously liable with the aid of section 149, IPC Each individual accused can be held responsible for the act performed by him. None can be held guilty under section 147 or 148, IPC. 17. As already stated above, the prosecution evidence regarding accused Verda is highly inconsistent. The prosecution case from the time of giving the FIR and during investigation was that Verdaram was armed with a stick and he inflicted injuries with stick, whereas in the court all the witnesses resiled from this portion of their statements they brazenly disowned it and stated that he was armed with a `kunt' and he inflicted a grievous hurt on the hand of Magaram with a `kunt'. This improvement in the statement of the prosecution witnesses appears to be purposeful. Verdaram is alleged to be the person who had performed Natra marriage with the wife of Jotaram, the nephew of PW 1 Magaram and in order to fasten heavier liability on his head this improvement had been introduced. There is no cogent and consistent evidence against Verdaram and he is entitled to the benefit of doubt. 18. As regard accused Hansaram the prosecution case from the very beginning, as disclosed in the FIR, is that he inflicted a `kunt' blow on the person of Kapuraram and Magaram. All the six witnesses consistently in their police statements and in their statements in the court stated that accused Hansaram caused a `kunt' blow on the left leg of Magaram. Their statements find corroboration from the statement of PW 2 Dr. Laxminarayan Agarwal and the injury report Ex. P 1. This injury was found to be grievous. Nothing has appeared in the statement of any of the prosecution witnesses on the basis of which the consistent evidence against accused Hansaram in causing grievous hurt to Magaram can be doubted. PW 5 Hansaram and PW 6 Benia cannot be said to be interested witnesses. The offence took place in shop situtated in the main market. On hearing the cries their rushing out to the scene of occurrence, can not be ruled out as being improbable. As already discussed above, they can not be termed as chance witnesses. In the absence of their hostility towards the assailent, their statements are sufficient to corroborate the evidence of PW 1. Magaram and PW 3 Kapuraram for holding Hansaram liable for causing grievous hurt to Magaram. The two courts below after scanning the evidence in detail have held him liable for causing grievous hurt with a `kunt' to Magaram and I find no reason to hold otherwise. 19. As regards the accused Jawanaram it has been stated in FIR that he was armed with an axe. PW 3 Kapuraram in his statement before the court stated that Jawanaram inflicted one blow from the wrong side of the axe on his back and aimed one blow on his head which he warded off on his hand, causing sharp edged wound on the finger. In his cross-examination he stated that while snatching the axe from the hand of Jawanaram he sustained one injury on his finger. In his cross-examination he stated that while snatching the axe from the hand of Jawanaram he sustained one injury on his finger. The statement of Kapuraram regarding suffering of injury on his back by the wrong side of the axe at the hands of accused Jawanaram stand corroborated by the injury report Ex. P 2 and the statement of PW 2 Dr. Laxminarayan and FIR Ex. P 3. The accused Jawanaram cannot be held guilty for the offence punishable under section 326/149, IPC, but he can certainly be held guilty for causing simple hurt. 20. The prosecution case from the beginning against Chunnilal is that he threw a weight on the head of Kapuraram as a result of which Kapuraram sustained a haematoma on his head. There is no doubt, a slight variation in the statement of the prosecution witnesses in the manner of inflicting this injury with the weight by Chunnilal on the head of Kapuraram. The inconsequential variation is of no importance because the evidence of PW 3 Kapuraram is consistent on the point that Chunnilal inflicted injury with a weight on the head of Kapuraram. The statement of Kapuraram also stands corroborated by the statement of PW 2 Dr. Laxminarayan Agarwal and the injury report Ex P 2. Besides that the prosecution evidence on this point further stands corroborated by the statements of the three accused Hansaram. Jawanaram and Chunnilal, recorded under section 342, Cr. PC. The accused Chunnilal can not be held guilty under section. 326/149, IPC but can be convicted for causing simple hurt by this Court, because the two courts have not separately considered the evidence as against each accused.Chellappan & others v. The State of Kerala, 1975 CAR (SC) 189. 21. Learned counsel urged that even if it is held that the accused inflicted injuries on PW1 Magaram and PW 3 Kapuraram on 12-3-66 then also they can not be convicted, because the accused also receive injuries on the date, time and place PW 1 Magaram and PW3 Kapuraram are alleged to have sustained the injuries. In support of this contention reliance was placed on Ex. D 7 FIR of the counter case given at police station, Sumerpur, at 12 a. m., on 12-3-66 the injury reports of accused Hansaram (Ex. D 9) Jawanaram (Ex. D 10) and Chunnilal (Ex. D 11). In support of this contention reliance was placed on Ex. D 7 FIR of the counter case given at police station, Sumerpur, at 12 a. m., on 12-3-66 the injury reports of accused Hansaram (Ex. D 9) Jawanaram (Ex. D 10) and Chunnilal (Ex. D 11). The learned counsel urged that it was the duty of the prosecution to give a reasonable explanation for the injuries sustained by tire accused. Not only the prosecution has given no explanation, but.some of the witnesses have made a clear statement that they did not .see any injury on the person of the accused. That the genesis and origin of the present occurrence has been suppressed and prosecution has presented a truncated version. The witness who have denied the presence of the injuries on the person of the accused are not telling the truth and, therefore, their evidence is unreliable. It should be inferred that the accused had inflicted the injuries on the members of the complainant party in the exercise of the right of self defence. If not so then also it makes the prosecution version of the occurrence doubtful and the charges against the accused can not be held to have been proved beyond reasonable doubt. 22. As already mentioned above in the resume of the case, from the perusal of site inspection Memo Ex. P 5 Site plan Ex. P 6 and the statements of the witnesses, discussed above, it stands proved beyond any shadow of doubt that PW 1 Magaram and PW 3 Kapuraram sustained injuries at the hands of the accused in the shop of Mahashakti Steel Corporation. No suggestion was made either to PW 1 Magaram or to PW 3 Kapuraram that either of the two or both of them inflicted Injuries to the accused. Not even a faint suggestion was made to them that they were armed with any weapon at the time of occurrence. It was also not challenged that the beating was administered to them inside the shop of Mahashakti Steel Corporation. Presence of blood noticed by PW 15 Surajprakash is the clenching evidence of the fact that occurrence took place at the time and place alleged by the prosecution. In order to find whether the right of private defence is available to the accused of a case the entire incident must be examined with care and viewed in its proper sitting. Presence of blood noticed by PW 15 Surajprakash is the clenching evidence of the fact that occurrence took place at the time and place alleged by the prosecution. In order to find whether the right of private defence is available to the accused of a case the entire incident must be examined with care and viewed in its proper sitting. The presence of superficial and simple injuries on the person of the accused on the facts of this case are far from being even suggestive of the fact that they were caused to Kapuraram and Magaram in repelling an attack on the accused. The assault on Magaram and Kapuraram was made with dangerous weapons. Looking to the nature and number of injuries sustained by PW 1 Magaram and PW 3 Kapuraram on the proved facts of this case, the force used by the accused was improportionate and the courts below are correct in holding that the accused sustained these injuries when the injured tried to ward off danger. Under the circumstances the accused-petitioner were neither entitled to a right of private defence nor the non-explanation of the injuries sustained by the accused create any doubt about the accused persons being the aggressors or an agressor. The trial court which had the advantage of observing the witnesses in the witness box held that the accused persons were agressors and I find no reason to reverse this finding of the courts below. 23. The net result of the above discussion is that accused Hansaram cannot be held guilty of offence punishable under section 148 and none of the other accused can be held guilty of the offence punishable under section 326/149 IPC. The accused Jasaram, Verdaram and Hemaram also cannot be held guilty of any of the offences charged against them. 24. I, therefore, set aside the conviction and sentences recorded against the accused-petitioners Verdaram, Jasaram and Hemaram and acquit them of all the charges framed against them. They are on bail. Their bail bonds are discharged. The need not surrender to their bail bonds. 25. The conviction and sentence of the accused-petitioner Hansaram under section 148, IPC is set aside and he is acquitted under this charge However, his conviction under section 326, IPC is maintained. 26. They are on bail. Their bail bonds are discharged. The need not surrender to their bail bonds. 25. The conviction and sentence of the accused-petitioner Hansaram under section 148, IPC is set aside and he is acquitted under this charge However, his conviction under section 326, IPC is maintained. 26. The conviction and sentence of accused Jawanaram under section 148 and under section 326, read with section 149, IPC is set aside and he is acquitted of the above mentioned charges. However, he is convicted under section 323, IPC. 27. The conviction and sentence of accused Chunnilal under section 147, IPC and under section 326 read with section 149, IPC is also set aside and he is acquitted of both these charges. However, he is convicted under section 323, IPC. 28. Now remains the question of sentence. The occurrence is of the year 1966. A period of more than ten years has elapsed in between the commission of the offence and hearing of this revision petition. The pendency of criminal proceedings for a period of more than ten years is in itself inhibitive of the repetition of such offence. Accused-petitioners Jawanaram and Chunnilal have already remained in detention for a period of nearly 32 days and 15 days respectively and no useful purpose will be served by sending the accused-petitioners Chunnilal and Jawanaram to Jail. Instead of sentencing them to an imprisonment I extend them the benefit of section 4 of the Probation of Offenders Act. They shall be released on their executing a personal bond and a surety bond of Rs. 2,000/- (two thousand) each for a period of one year to keep peace and be of good behaviour and to appear in the court of the trial Magistrate and receive sentence whenever they are called upon to do so. The trial Magistrate is directed to take the necessary bonds from the petitioners and their sureties. Their bail bonds will ensure till the time these directions are carried, after which they will be deemed to be cancelled. Two months' time is allowed to the accused-petitioners. Jawanaram and Chunnilal to furnish their bail bonds and surety bonds in the trial court. 29. The conviction of accused-petitioner Hansaram under section 326, IPC is maintained. Their bail bonds will ensure till the time these directions are carried, after which they will be deemed to be cancelled. Two months' time is allowed to the accused-petitioners. Jawanaram and Chunnilal to furnish their bail bonds and surety bonds in the trial court. 29. The conviction of accused-petitioner Hansaram under section 326, IPC is maintained. The offence under section 326 IPC is punishable with life imprisonment and as such the question of extending him the benefit of the provisions of the Probation of Offenders Act does not arise. 30. However, it would sub-serve the interest of justice to reduce the sentence, because the accused-petitioner Hansaram has faced criminal proceedings for a period of more than ten years. He has also received injuries in the same occurrence at the hands of the members of the complainant party. 31. The sentence awarded to the accused-petitioner Hansaram by the trial court and affirmed by the appellate court, is reduced from two years' rigorous imprisonment and a fine of Rs. 100/- to one years' rigorous imprisonment and in lieu of the reduction of period of imprisonment the sentence o f the fine imposed upon him is enhanced to Rs. 1,0001- (one thousand), out of which Rs. 500/- (five hundred) will be paid to injured PW 1 Magaram, in default of payment of fine, he shall undergo further imprisonment for six months. 32. The accused-petitioner Hansaram is not before me. He is on bail. The learned Chief Judicial Magistrate, Pali, will take appropriate steps to get the accused-petitioner Hansaram arrested and send him to jail for undergoing the remaining term of sentence awarded to him by this Court. However, it is made clear that the accused-petitioner Hansaram shall be entitled to the benefit of section 428, Cr. PC and the period of detention suffered by him during investigation, inquiry or trial, shall be set off against the sentence awarded by this Court. 33. The revision-petition is partly allowed, as indicated above: *******