SHRIMAL, J.—The prosecution case, as disclosed at the trial, is that the appellants, namely, Banwari, Amar Singh, Dharam Pal, Ishwar Singh, Mahi-pal, Matu Ram, Rani Karan, Sri Chand and Roop Chand and the injured PW 5. Shivprasad and PW 6 Mansingh as also the deceased Ratansingh were the inhabitants of village Bas-Sukhram. There was no love lost between Ghadsiram and the injured. Cases and counter cases were instituted between the parties. It is alleged that a few days prior to the occurrence, the police, at the instance of deceased Ratan Singh and PW 2 Gopi Ram, brother of injured Mansingh, seized a cart load of gram, belonging to Amar Singh and his father. On the fatefull day viz., on June 24, 1973 at about 8 or 9 am., Shivprasad and Mansingh left their village for Loharu side to perform the Tika ceremony of Gopirams daughter. They had with them a sum of Rs. 6,000/ . When they reached the held of Nahar Singh in the Kankar of Pilod and Dobda, they saw accused Sri-chand, Ramkaran, Roopchand, Amarsingh, Dharampal Banwari, Ishwarsingh, Maturam and Mahipal suddenly appearing on the scene of the occurrence. Ail of them were armed with deadly weapons. They encircled PW 5 Shivprasad and PW 6 Mansingh and belaboured them, Initially Srichand struck a blow on Shivprasad |and then Dharampal repeated it Both the blows were struck while he was on the camels back, as a result whereof he fell down Srichand and Banwari snatched his bag, containing currency notes. Dharampal and Ishwar Singh took out Rs. 1050/- from the pocket of Shivprasad. Mansingh dismounted from the camels back and rushed to rescue Shivprasad. Dharampal and Ishwar Singh gave two lathi blows on Mansinghs head, while Banwari and Srichand gave blows on his legs All the accused conjointly inflicted blows on him and on Shivprasad. As a result of this violent attack both Shivprasad and Mansingh sustained multiple injuries Thereafter, the accused took to their heels towards the direction where from they had come. It is alleged that the same assailants after some time met in the Kankar of Dobda Ratansingh (since deceased) and PW 1 Jiwansingh, when they were going to lodge a report with the Police Station about the beating administered to PW 5 Shivprasad and PW 6 Mansingh. Seeing them at a distance Ratansingh having suspected foul play asked Jawan-Singh to drive back the camel immediately. Seeing them at a distance Ratansingh having suspected foul play asked Jawan-Singh to drive back the camel immediately. They were, however, surrounded by the accused. Both Jiwansingh and Ratansingh jumped down from the camel and ranaway towards off the impending danger. Ratansingh could not escape and was beaten to death by the accused appellants. It is alleged that Banwari struck a Barchhi blow on the temple of Ratansingh. Matu struck a Barchhi blow on his right hand. The other accused also thrashed him unmercifully Jiwan Singh was seeing the whole occurrence from a little distance. On seeing him Matu and Banwari chased him. One Hari Narain Jat is another eye witness to the crime. 2. First Information Report, Ex. P/l, regarding the beating administered to Mansingh and Shivprasad, was lodged by PW 2 Gopiram with the Police Station, Surajgarh, on June 24, 1973 On receipt of this report case No, 57 was registered under Saction 307, I.P.C. against all the accused-appellants. PW 11 Rameshchandra, S.H.O. accompanied by Gopiram, came to the scene of the incident, where he saw Mansingh and Shivprasad lying injured. He prepared a site plan, Ex. P/24 Ha seized two lathis stained with blood from the place of the occurrence; vide seizure memo Ex, P/8, Soon after he also came to know that Ratansingh was murdered by the very culprits who had assaulted Mansingh and Shivprasad and that his dead body was lying near the well of Tarachand. On receipt of that information he went at the site where the dead body of Ratan Singh was lying. An inquest repot Ex. P/4 was prepared Blood stained earth was seized and sealed. One shirt and a Baniyan stained with blood were also seized from the corpse of Ratansingh. A lathi and a towel found on the scen were also taken into possess on by the police Site Plan, Ex. P/2, was prepared. Autopsy of the dead body of Ratansingh was con ducted by PW 4, Dr. S.C. Gupta The postmortem report is Ex. P/3. Injured Shivprasad and Mansingh were clinically examined by PW 10 Dr. H.K. Gupta. Their injury reports are Ex P/9 and Ex. P/16 respectively. P/2, was prepared. Autopsy of the dead body of Ratansingh was con ducted by PW 4, Dr. S.C. Gupta The postmortem report is Ex. P/3. Injured Shivprasad and Mansingh were clinically examined by PW 10 Dr. H.K. Gupta. Their injury reports are Ex P/9 and Ex. P/16 respectively. The police, after usual investigation, submitted a challan against nine accused appellants to the Court of Munsif Magistrate, Chirawa, under Sections 147, 148, 307, 307/149,302 and 302/149 I.P.C. Learned Magistrate committed all the accused to the Court of Sessions Judge Jhunjhunu for trial. The accused pleaded not guilty to the charges. The prosecution examined 12 witnessess in support of their case. All the accused denied their complicity in the crime and pleaded that they have been falsely implicated on account of enmity. PW 12 Girdhari was in litigation with them. PW 1 Jiwansingh, PW 3 Harnarain and PW 8 Rugnath were indebted to PW 5 Shivprasad Accused Dharampal and Roopchand pleaded that injured Mansingh PW 6, Gopiram PW 2 and Ratansingh (since deceased) were smugglers and were sending illegally gram to Loharu. They had lodged a report with the Police Outpost, Peepli, in that connection. They did not examine any witness in their defence. They, however, got produced report Ex. D/7 in support of their plea of not guilty. Out of the 12 witnesses, examined by the prosecution, PW 5 Shivprased and PW 6 Mansingh were the injured persons and were the victims of violence at the Kankar of Pilod and Bhauthade PW 8 Rugnath and PW 12 Girdhari are eye-wintesses relating the assault made on Mansingh and Shivprasad PW 1 Jiwansingh, son of PW9 Bachansingh, was examined to uncover conspiracy hatched by accused Banwari and Mahipal prior to the incident. He is also an eye-witness of the murder of Ratansingh. PW. 2 Gopiram is the brother of PW6 Mansingh injured and author of the first information report, Ex.P/l.PW 3 Har Narain is another eye-witness of the murder of Ratansingh. PW 4 Dr. S.G. Gupta proves the injuries sustained by Ratansingh deceased. PW 7 Nagarmal is an attesting witness of the site-plan PW 9 Bachansingh is the father of PW 1 Jiwansingh. He states that soon after the slaughter of Ratansingh his son came to him and informed him that sons of Ghadsi, Bujan and Jalu had committed the crime PW 10 Dr. S.G. Gupta proves the injuries sustained by Ratansingh deceased. PW 7 Nagarmal is an attesting witness of the site-plan PW 9 Bachansingh is the father of PW 1 Jiwansingh. He states that soon after the slaughter of Ratansingh his son came to him and informed him that sons of Ghadsi, Bujan and Jalu had committed the crime PW 10 Dr. H.K. Gupta proves the injuries sustained by PW 5 Shivprasad and PW 6 Mansingh. PW 11 Rameshchandra is a formal witness who investigated the case. 3. Learned Sessions Judge, after scanning closely the whole evidence on record in the light of arguments advanced by counsel for both the parties, held that of the two eye-witnesses examined in connection with the murder of Ratan-Singh, Jiwansingh PW 1 was dependable, but no reliance could be placed on the statement of PW 3 Har Narain. As for the injuries sustained by Shivprasad and Mansingh, the court held that both PW 8 Rugnath and PW 12 Girdhari were not worthy of credence and that their statements could not be used to corroborate the depositions of the two injured persons. Placing its trust in the statements of PW 1 Jiwansingh, PW 5 Shivprasad, PW 6 Mansingh, coupled with the medical evidence, learned Judge found all the nine accused guilty under various indictments and sentenced them as under:- **** TABLE **** 1. Banwari 2. Matu u/s 302 I.P.C. u/s 148 I.P.C. u/s 325 149 IPC u/s 148 I.P.C. u/s 324 I.P.C u/s 325/149 IPC Imprisonment for life, 2 years R.I. 2 years R.I. and a fine of Rs. 50/-. 2 years R.I. 2 years R. I. 2 years R.I. and a fine of Rs. 50/-. u/s 147 I.P.C u/s 325/149 IPC 3. Ishar Singh, ) 4. Ramkaran, ) 5. Dharampal, ) 6. Amar Singh ) 7. Mahipal, ) 8 Srichand, ) 9. Roopchand, ) 1 years R.I. each, 2 years R.I. and a fine of Rs. 50/- each. Substantive sentences of imprisonment, awarded to each accused-appellant under different counts, were directed to run concurrently. He, however, held that looking to the nature of the injuries and the parts of the bodies, where they were inflicted, it could not be concluded that the assailants had inflicted the injuries with the intention of committing the murder of Mansingh and Shviprasad. Substantive sentences of imprisonment, awarded to each accused-appellant under different counts, were directed to run concurrently. He, however, held that looking to the nature of the injuries and the parts of the bodies, where they were inflicted, it could not be concluded that the assailants had inflicted the injuries with the intention of committing the murder of Mansingh and Shviprasad. On this finding he acquitted all the accused of the charge punishable under Section 307/149 I.P.C However, as already stated above, he convicted and sentenced all the accused for the rest of the charges. 4. Aggrieved by the above verdict the convicted accused-appellants have challenged their conviction and sentences by filing D.B. Criminal Appeal No. 67 of 1975 and the State Government has come up in appeal against the acquittal of the accused by filing D.B. Criminal Appeal No, 686 of 1975. As both the appeals emerge out of the same judgment, they are being disposed of together. In the course of the arguments Mr. Khan, learned Public Prosecutor appearing on behalf of the State stated that by D.B. Criminal Appeal No. 686 of 1975 the State Government has challenged the acquittal of the accused both under Sections 307/i49 I.P.C. and 302 read with Section 149 I.P.C. 5. Notice was given to learned counsel appearing on behalf of the accused to address the Court as to why the acquittal of the accused appellants under Sections 307/149 and 302/149 I.P.C. be not said aside. 6. Learned counsel appearing on behalf of the accused-appellants, Mr. Frank Anthony, urged that there are certain outstanding features of this case, which, according to him, are sufficient to throw doubt on the entire prosecution case. It has been argued that the prosecution witnesses were examined by the police after considerable delay and no cogent explanation has been given for that. The witnesses are also guilty of suppression of material facts. The entire prosecution case is sought to be proved by partisan and inimical witnesses. PW 1 Jiwansingh is an omnipresent witness, who has been introduced at a later stage of the case. The injuries on the person of PW 6 Mansingh and PW 5 Shivprasad simply suggest that they were present on the scene of the occurrence, but that does not necessarily lead to the conclusion that they have given a truthful version of the event. The injuries on the person of PW 6 Mansingh and PW 5 Shivprasad simply suggest that they were present on the scene of the occurrence, but that does not necessarily lead to the conclusion that they have given a truthful version of the event. Independent witnesses, shown in the calendar of witnesses filed by the police alongwith the challan as eye witnesses, have not been examined. The prosecution has failed to prove its case beyond reasonable doubt. A major part of the prosecution story disclosed by the witnesses is untrue. The prosecution can succeed only by substantially proving the very story as alleged in F.I.R. It cannot take advantage of the weakness of the defence. The trial Court has failed to notice the above circumstances, which throw considerable doubt on the prosecution case against the appellant 7. The learned Public Prosecutor, Mr. M I Khan, appearing on behalf of the State urged that the prosecution has been able to bring home the guilt to the accused by cogent and reliable evidence. Learned Sessions Judge erred In not placing reliance on the statements of PW 8 Rugnath, PW 12 Girdhari and PW 3 Har Narain. He then argued that all the accused were members of the unlawful assembly, its common object being to commit the murder of Shivprasad, Mansingh and Ratansingh and in furtherance of such an object all the three persons had been assaulted. The injuries sustained by PW 5 Shivprasad are of serious nature and, therefore, inference could be drawn that the accused intended to cause his death or while inflicting injuries knew that the injuries which they were intentionally causing were likely to cause death. The acquittal of all the accused under Section 307/149 I.P.C. is based on ignoring the material evidence and as such it deserves to be set aside. He prayed for acceptance of the State appeal, awarding of appropriate sentence to each of the accused-appellants. 8. Now the post mortem report Es.P/3 and the statement of Dr. S.C. Gupta PW 4 clearly show that Ratansingh had sustained ante-mortem injuries, he died as a result of laceration of brain and multiple fractures of skull bones, corresponding to external injury No. 1. It is also not in dispute that Ratansingh (since deceased) sustained injuries on the date, time and place alleged by the prosecution. . 9. S.C. Gupta PW 4 clearly show that Ratansingh had sustained ante-mortem injuries, he died as a result of laceration of brain and multiple fractures of skull bones, corresponding to external injury No. 1. It is also not in dispute that Ratansingh (since deceased) sustained injuries on the date, time and place alleged by the prosecution. . 9. As the distance between the place where Mansingh and Shivprasad had been belaboured and Ratansingh had been murdered is about one mile and a half and there was a time-leg of nearly two hours and a half, we propose to deal with the murder of Ratansingh and assault on Shivprasad and Mansingh separately 10. The conviction of the accused-appellent Banwari for the murder of Ratansingh is mainly based on the statements of two witnesses viz,, PW1 Jiwan Singh and PW3 Harnarain Learned Sessions Judge was correct in holding PW3 Harnarain to be unreliable witness. The witness neither raised any cry nor did he make any attempt to save the deceased Not only this, even after the accused had left the scene of the occurrence, he did not even care to go near injured Ratansingh to find out his condition. He proceeded to graze his herd of sheeps and goats just after the occurrence. He admitted that he did not narrate anything about the incident to any one prior to his examination by the police, nor even to his family members. After the arrival of the police in the village he did not go to the investigating officer to inform his about the occurrence He was confronted with his prior statement made before the police. Instead of explaining the various contradictions, he had the brazenness to say that the relevant earlier statements had not been made by him. Ha had no occasion to be near the scene at the pertinent time. The trial Court had the occasion to observe the demeanour of this witness. Instead of explaining the various contradictions, he had the brazenness to say that the relevant earlier statements had not been made by him. Ha had no occasion to be near the scene at the pertinent time. The trial Court had the occasion to observe the demeanour of this witness. The trial Court has concluded at page 223 of the paper book, "I hold the statement of Han Narain unreliable and, therefore, it cannot be relied for corroboration," It is a settled law that the appellate court should not ordinarily interfere with the trial courts opinion as to the credibility of a witness as the trial judge alone knows the demeanour of the witness, he alone can appreciate the manner in which plausibility the questions are answered whether with honest candour or with doubtful plausibility vide Valarshak Seth Appear vs. Standard Goal Go. (1). That being the position we outright reject the evidence of PW 3 Hari Narain as has been done by the court balow. 11. Now remains the statement of PW1 Jiwansingh. He sates that on the fateful day the witness and Ratansingh (since deceased) were going on a camels back to lodge first information report with the Police Station in the matter of assault, made by the accused on Mansingh PW 6 and Shivprasad PW 5. He saw all the nine accused equipped with deadly weapons rushing towards them Suspecting some foul play, Ratansingh (since deceased) asked him to drive back the camel. But they could not escape and soon found themselves surrounded by the accused At that stage the witness and the deceased jumped dowo from the camels back. Nine persons encircled the witness and the deceased. Though the deceased sustained as many as seven injuries at the hands of the accused and met instantaneous death, the witness did not receive even a scratch It does not stand to reason if the witness was on the back of the same camel on which Ratan singh was, he could totally escape from the clutches of the accused, nine in number and were armed with deadly weapons, determined to inflict injuries. In the inquest report Ex. P/4 though the names of the accused do appear, but it has not been mentioned therein as to who had disclosed their names. No first information report regarding the murder of Ratansingh was lodged with the police. In the inquest report Ex. P/4 though the names of the accused do appear, but it has not been mentioned therein as to who had disclosed their names. No first information report regarding the murder of Ratansingh was lodged with the police. Nondisclosure of Jiwansinghs name as eye-witness of the occurrence in the inquest report is suggestive of the fact that till the time this document was prepared it was not known to the police or to any other person present on the spot that PW 1 Jiwansingh had actually seen the occurrence. Learned counsel appearing on behalf of the accused appellants placing reliance on Gurdeo Singh vs. State (2) rightly urged that the inquest report is a document of vital importance and has to be prepared promptly became it has to be handed over to the doctor along with the dead body to be sent for postmortem examination. If the facts about the occurrence are mentioned in the inquest report, it would go to show that by that time the true version of the occurrence had been given therein If, however, the facts of the incident are not mentioned in the inquest report, the argument that till that time the investigating officer, who had prepared the inquest report was not definite about the factual position. The argument cannot be deemed to be devoid of force. The witness had tried to be an omniscient person. He stated that he saw Mansingh and Shivprasad going from the side of Sukhram ka bas towards their village and that after some time his camel, strayed into the field of Boojan, where accused Banwari had come from the side of village Dobda and started ploughing the land. A few minutes thereafter Mahi-pal also came to the field. Both of them talked to each other. Thereafter Banwari gave away his lathi to Mahipal in exchange of his Barchhi. This fact seems to have been introduced by the with the obvious object of making accused Banwari responsible for the fatal blow, caused to Ratansingh, with a sharp edged weapon. He did not mention anything exchange of weapons by Banwari in his police statement. This significant improvement in his statement in the Court has been made with a define purpose, as indicated above. He did not mention anything exchange of weapons by Banwari in his police statement. This significant improvement in his statement in the Court has been made with a define purpose, as indicated above. The witness further stait-ted that after the assault on the person of Ratan Singh, he was chased by three accused upto the boundary of the village. It does not stand to reason as to why he did not raise hue and cry and collected people to rescue Ratansingh. His conduct in not mobilising villagers or in not asking his father to visit the place, where Ratansingh lay injured does create suspicion about his presence on the scene at the time of the assault. The witness was confronted with various omis-sions appearing in his police statement. Ha failed to give plausible explanation as to why he did not narrated important facts of the case to the police. The witness also stated that some time after the exchange of weapons by Banwari and Mahipal three boys came, from the side of Dobda on a camels back and on his asking he came to know that the sons of Boojan, Jalu and Ghadsi had beaten Mansingh and Shivprasad in the Kankar of Pilod. In the course of cross-examination he admitted that neither he knew the names of those boys nor was he aware of the place of their residence. It is not comorehensible as to what led the witness to ask the boys about the assault on Mansingh and Shivprasad. 12. Admittedly this witness is friendly to Mansingh and Shivprasad injured, but instead of rushing to the place where the two injured were lying or to the house of the injured for giving information to the inmates, he continues grazing his camel. This is indeed an abnormal conduct. In the light of the above discussion and the infirmities appearing in the statement of this witness, we are of the view that it would be risky to convict any of the accused on the solitary statement of this witness, unless it is corroborated in material particulars by other evidence. 13. Besides a perusal of the challan filed by the police against the accused appellants reveals that Amar Singh, Ganoli and Tarachand have been shown as eye-witnesses regarding the assault on the person of Ratan Singh. 13. Besides a perusal of the challan filed by the police against the accused appellants reveals that Amar Singh, Ganoli and Tarachand have been shown as eye-witnesses regarding the assault on the person of Ratan Singh. But the learned Public Prosecutor has failed to assign any reason as to why Amar Singh was not examined by the prosecution. It is the bounden duty of the prosecution to examine a material witness particularly when no allegation has been made that if produced, he would not speak the truth. No doubt it is also well known that where a serious offence like murder is committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses and if prosecution honestly and bonafidly believes that some of the witnesses had been won over, it would be unreasonable to insist that they must be tendered before the Court. But it is also settled law that material witnesses considered necessary by the prosecution for unfolding the prosecution story need be produced such witnesses cannot deliberately be kept back. Learned counsel for the State is correct on the basis of the police statement of Ganoli and Tarachand recorded under Sec. 161 Cr.P.C., that non-examination of these two witnesses has not in any way prejudicially affected the case of the accused, because Ganoli in her police statement stated that she did not identify any of the assailant. Tarachand not being an eye-witness of assault, his non-examination does not cut the ice. On the proved facts of this case regarding the assault on the person of Ratan Singh, non-production of the above mentioned eye-witness. Amar Singh gives rise to an adverse inferencs against the prosecution case under Illustration (g) to Sec. 114, Evidence Act, and it also casts some reflection on the unfairness of the prosecution. No doubt, PW 1 Jiwan Singh has not termed Amar Singh to be the eye-witness, but the perusal of his statement recorded by the police filed along with the challan doet reveal that he was a material eye witness for unfolding the prosecution story. 14. Now we deal with the assault on the person of PW 5 Shivprasad and PW 6 Man Singh. Prosecution has examined four witnesses to prove this part of the prosecution case. 14. Now we deal with the assault on the person of PW 5 Shivprasad and PW 6 Man Singh. Prosecution has examined four witnesses to prove this part of the prosecution case. Besides the two injured persons, the prosecution has also examined PW 8 Rugnath and PW 12 Girdhari as eye witnesses, but their statements have not been found trustworthy by the trial court. Their names were not disclosed by the injured eye-witnesses at the earliest opportunity. They were also not examined timely They did not disclose the facts to any one after the incident. Girdhari PW 12 had litigation with Ishar Singh accused. The trial court has disbelieved them They were confronted with their police statements, but failed to give any reliable explanation for various omissions and contradictions. PW 8 Rugnath stated that Mansingh and Shivprasad both fell down from the camel in a stage of unconsciousness. This part of the statement is totally contradictory to the statements of the two injured persons. PW 12 Girdhari stated that he narrated the entire story to the investigating officer Ramesh Chandra on the next day of the occurrence. The witness goes on to state that those facts were recorded by the police, but the evidence led proves that his statement was recorded 18 days after the occurrence. He further admitted that he was a witness in another case on behalf of Shivprasad and Mansingh. In the light of the above discussion we agree with the trial courts remark (hat the statements of Rugnath and Girdhari should not be relied for corroboration. 15. Now remains the statements of PW 5 Shivprasad and PW 6 Man Singh. Both Shivprasad and Mansingh are injured persons Their presence on the scene of occurrence cannot be denied No doubt both these witnesses were examined by the police on July 11, 1973 A perusal of the injury reports of Shivprasad and Man Singh Ex. P/9 and Ex. P/16 respectively read with the statement of PW 10 Dr. H.K. Gupta reveals that on clinical examination it was noticed that 11 injuries were found on the person of Shivprasad PW 5 causing a number of fractures Two days after the clinical examination Shivprasad complained that he suffered from chest pain. On further examination it was found that 8th and 9th libs of Shivprasad were fractured Mansingh also sustained 11 injuries, of which injuries Nos. On further examination it was found that 8th and 9th libs of Shivprasad were fractured Mansingh also sustained 11 injuries, of which injuries Nos. 4, 7 and 9 were grievous and injuries Nos 1, 2 and 3 mentioned in injury report Ex. P/16 were on parietal region. After sustaining so many injuries on different parts of their bodies both the injured must have been under long lasting pain of strong intensity and must not have been in a fit state of mind to give statements for a number of days. No doubt, it could not be said that they were unconscious and they could have also talked. Nevertheless it could not be postulated that they were in a position to bear the strain of making detailed statements as to how the occurrence happened, who were the assailants and what part each of the assailants played. The investigating officer of this case PW 11 Rameshchandra states that he went to the hospital twice to take down the statements of Mansingh and Shivprasad, but the same could not be recorded. The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of unfair practice by the investigating agency for the purpose of introducing gotup evidence to falsely support the prosecution case. It is, therefore, necessary that the investigating officer should be asked specifically about the delay and the reasons therefor. Evidence of a witness does not become untrustworthy merely because he was examined after deley by the investigating officer. Reference in this connection be made to Ranbir vs. State of Punjab (3), wherein their Lordships of the Supreme Court held, - "Evidence of a witness does not become untrustworthy merely because he was examined after by the investigation officer." The question of delayed examination of the witnesses came up for consideration recently before their Lordships of the Supreme Court in Narpal Singh vs. State of Haryana (4). Though the witness in that case was examined after the lapse of 20 days of the occurrence, their Lordships did not consider it sufficient to reject the testimony of that witness 16. As already mentioned above, apart from the statements of these two witnesses there are the statement of other witnesses on the record which prove that PW 5 Shivprasad and PW 6 Mansingh sustained injuries on the date, time and place alleged by the prosection. As already mentioned above, apart from the statements of these two witnesses there are the statement of other witnesses on the record which prove that PW 5 Shivprasad and PW 6 Mansingh sustained injuries on the date, time and place alleged by the prosection. This fact also stands corroborated by first information report Ex. P/l, which was lodged on the same day within five hours of the incident. In the circumstances of the case the delay in recording the police statements of these witnesses by the investigating officer would not justify rejection of their testimony. Some minor contradictions in the statements of both these witnesses have been pointed out by learned counsel appearing on behalf of the appellants, and after cautious scrutiny of the evidence of these two witnesses it can safely be said that their statements are consistent regarding the salient features of the case PW 5 Shivprasad deposed that on June 24, 1973 he, in the company of Mansingh, started from his house for performing the Tika ceremony of his brother Gopirams daughter. When they reached near the field of Nahar Singh in the Kankar of Pilod and Bhawthali they saw all the nine accused-appellants armed with different weapons. All of them surrounded them Srichand gave a lathi blow to the witness which struck him on his right hand as a result of which bis hand got fractured. Dharampal gave a lathi blow on his foot Both these accused assaulted him while he was on the camels back as a result of which he fell down from the camel and his companion Mansingh dismounted. Amarchand and Roopsingh gave lathi blows on his foot, resulting in fracture therein Accused Ishwarsingh was heard saying that the enemy was within their grasp and grip and he should be exterminated. The rest of the accused persons including the aforementioned assailants started beating him indiscriminately. The witness in the end says that injuries on his person made him unconscious. More or less the same is the statement of PW 6 Mansingh. He states that on the date of the occurrence he, in the company of Shivprasad, reached the Kankar of Pilod and Bhawthali. They saw the above named nine accused armed with different weapons. Initially Srichand struck a blow on Shivprasad and then Dharampal repeated it. More or less the same is the statement of PW 6 Mansingh. He states that on the date of the occurrence he, in the company of Shivprasad, reached the Kankar of Pilod and Bhawthali. They saw the above named nine accused armed with different weapons. Initially Srichand struck a blow on Shivprasad and then Dharampal repeated it. Both the blows were struck on him while he was on the camels back He then fell down. Thereafter Srichand and Banwari snatched and garbled the bag, containing currency notes from the hands of Shivprasad Dharampal and Ishwarsingh also took out money from Shivprasads pocket. Then they belaboured Shivprasad and Mansingh. Dharampal and Ishwar Singh gave two lathi blows on the hand of Mansingh, while Banwari and Srichand gave blows on his feet. All the accused thrashed him and Shivprasad, resulting in multiple injuries to both. These witnesses were cross-examined at considerable length. Nothing substantial has come out pointing to discrepancies in their version. Their statements stand corroborated in material particulars by the medical evidence. The statement of an eyewitness can well be corroborated by the medical evidence as held by their Lordships of the Supreme Court in State of Punjab vs. Ramjidas (5). Much capital has been made out of the portion of the evidence, appearing in the statement of PW 5 Shivprasad, wherein under cross-examination he stated that the accused holding pharsis in their hands also caused injuries to him. But that does not mean that Pharsis were used from their sharp side. Injuries could have been caused from the reverse side of the Pharsis. We do not rind any unnaturally in the statement on this point. No doubt normally when a witness states that a Pharsi or an axe was used, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used, but whereas here the witness clarifies as to whether the sharp side or blunt side of the weapon was used, there is no reason to doubt such a statement. Many a time Pharsis and spears are wielded as lathis Reference may be made to Angoo vs. State of U.P. (6 , wherein their Lordships repelling a similar argument as advanced before us observed as under: — "They gave blows with the spears and lathis rather than thrusting the spear every time. Many a time Pharsis and spears are wielded as lathis Reference may be made to Angoo vs. State of U.P. (6 , wherein their Lordships repelling a similar argument as advanced before us observed as under: — "They gave blows with the spears and lathis rather than thrusting the spear every time. They may have done so even before some witnesses have arrived. The use of a spear in such a manner will not be very unnatural if a large number of persons surround one single man and try to beat him. In such a situation it may be easier to wield the spear as a lathi than to try an thrust it at the person being attacked. There is, therefore, in our opinion, no conflict at all between the medical evidence and the evidence given by the eye witnesses." 17. Where large number of accused persons are involved in the occur-rance, the witness who is also injured in the incident, can naturally get confused and his testimony cannot be rejected on the ground of contradictions, reference may be made to Har Prasad vs. State of Madhya Pradesh (7). Some attempt was made to show that one or two injuries found on the person of Shiv Prasad and Mansingh did not tally with the manner of their infliction as deposed to by these two witnesses. There is no doubt that substantially the injuries, the weapons and the manner of causation run congruous. Photographic picturisa-tion of blows cannot be expected from witnesses who have not been tutored. The two injured eye-witnesses have assigned specific parts played by Srichand, Dharampal, Ishwarsingh, Banwari, Amarsingh and Roopsingh. The injuries alleged to have been caused by them on different parts of the person of the two injured find corroboration from injury reports Ex. P/9 and Ex. P/16 proved by PW 10 Dr. H.K. Gupta. The relations between the members of the family of Gharsi and the injured were highly strained. It has been mentioned in the first information report Ex P/l that a dispute was going on between the injured and Ghadsi, who is the father of accused Ishwar Singh and Mahipal. P/9 and Ex. P/16 proved by PW 10 Dr. H.K. Gupta. The relations between the members of the family of Gharsi and the injured were highly strained. It has been mentioned in the first information report Ex P/l that a dispute was going on between the injured and Ghadsi, who is the father of accused Ishwar Singh and Mahipal. It has also been mentioned in the first information report that a few days prior to the occurrence Gopiram brother of the two injured and Ratansingh (since deceased) got seized gram belonging to accused Amarsingh and his father This is shown to be the immediate cause of assault. Thus out of the above named six persons enmity stands proved between Dharampal, Amarsingh, Banwari and Ishwar Singh on the one side and the injured on the other. 18. From the statements of the two injured witnesses PW 8 Mansingh and PW 5 Shivprasad it is proved beyond reasonable doubt that at least six accused persons namely, Srichand, Dharampal, Ishwarsingh, Banwari, Amarsingh and Roopsingh had assembled together, armed with weapons and were parties to the assault on Shivprasad and Mansing. We would like to give benefit of doubt to three accused namely, Ramkaran, Mahipal and Maturam, who have not been assigned specific part and against whom omnibus statements have been made. None of the six appellants named above who happened to be present at the place of the occurrence and participated in assault could be said to be there for an innocent purpose. The nature of the weapons, which they were holding from the very beginning and the fact that all of them had come together from a pretty long distance at a place, which was neither in front of their house nor in front of their land, as also the fact that all of them emerged at a time and participated in the asault and went away together after causing numerous injuries suggest that all these accused constituted themselves into an unlawful assembly. The common object of the persons comprising that assembly wa3 obviously to commit criminal offences. The common object of the persons comprising that assembly wa3 obviously to commit criminal offences. 19 Learned counsel for the appellants urged that even if it is held that the appellants constituted themselves into an unlawful assembly then also the common object of their unlawful assembly was only to beat Mansingh and Shivprasad and not to kill them PW 5 Shivprasad stated that while beating was being administered to them, Ishwarsingh was crying that,— ^^nqeu cgqr fnuksa esa gkFk yxk gSA ekjus ls ej tk; rks ekjksA** It is clear that all the accused came armed with deadly weapons, surrounded Shivprasad and Mansingh, one of them shouted to exterminate the enemy as mentioned above while beating was being administered to them and a number of blows were inflicted on the person of both of them resulting into a number of fractures which will be dealt with shortly in detail. It is, therefore, clear from the above version which has been believed by the learned Sessions Judge and we have no reason to take contrary view in the matter, that all the accused formed an unlawful assembly. The nature of the injuries inflicted and utterances made at the time of assault leave no doubt that the common object of unlawful assembly was to commit the murder of Shivprasad and Mansingh. Sec 149 I.P.C., declares in substance that every member of an unlawful assembly is responsible for an offence committed by another member, or the other members, in prosecution of the common object of such assembly, or one which he must have known was reasonably likely to be committed in the prosecution of such common object. In other words, this provision takes him out of the region of abetment and makes him responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly. 20. In other words, this provision takes him out of the region of abetment and makes him responsible as a principal for the acts of each and all, merely because he is a member of an unlawful assembly. 20. Even if, therefore, the accused were originally members of unlawful assembly with the common object of only beating Mansingh and Shivprasad and if the death would have been caused, they would have been held guilty under Sec. 302/149 I.P.C. Keeping in view the fact that all of them were aimed with deadly weapons and they made a desperate bid to cause numerous injuries to Shivprasad, the only inference which can legitimately be drawn is that each of them intended to cause such bodily injuries which the offenders must have known to be likely to cause the death of their victims It is clearly established in the evidence that the object of the unlawful assembly was well knit. This is not a case where something foreign or unknown had taken place all of a sudden. It was the execution of the same common intention which assumed the fatal character, implicit in the illegal assault made by the accused. From the commencement of the interception of Shivprasad and Mansingh by the accused, armed with deadly weapons, and accosting by one of the accused viz., Ishwarsingh and assault by all the accused causing a number of fractures, the only inevitable conclusion is that all the accused, who participated in the assault, definitely knew of the consequence of the conjoint attack, which made them vicariously liable under Sec. 149 I PC. 21. In the course of assault Shivprasad sustained the following injuries, as noticed by PW 10 Dr. H. K. Gupta, Medical Officer, B.K.D. Hospital, Jhunjhunu— (1) Deformity and swelling, lower 2/3 of the leg and ankle side opinion reserved. (2) Swelling and tenderness lower 1/3 of the right leg, ankle and right foot, caused by blunt, opinion reserved. (3) Swelling and tenderness on posterior aspect of the upper half of the left forearm, caused by blunt, opinion reserved. (4) Abrasion 1/2" x 1/2" on posterior aspect of right elbow joint simple caused by blunt. (5) Deformity and swelling lower half of the right forearm caused by blunt, opinion reserved. (6) Lacerated wound 1/2" x 1/8" x skin deep on posterior aspect of lower l/3rd of the right forearm, blunt simple.. (4) Abrasion 1/2" x 1/2" on posterior aspect of right elbow joint simple caused by blunt. (5) Deformity and swelling lower half of the right forearm caused by blunt, opinion reserved. (6) Lacerated wound 1/2" x 1/8" x skin deep on posterior aspect of lower l/3rd of the right forearm, blunt simple.. (7) Lacerated wound 1/4" x 1/4"x skin deep half inch below injury No. 6, caused by blunt weapon simple. (8) Swelling on right side of the hand posterior aspect medially, caused by blunt, opinion reserved. (9) Swelling and tenderness in middle of the right ring finger with ungal hematoma, caused by blunt opinion reserved. (10) Bruise radish transverse 6"xl" (two) on the supra scapular area of the bark and other four crossing each in between supra scapular are to the thoracic tenth vertebra. Simple caused by blunt. (11) Bruise 2" x 1/2" on the lower eye lid left, and maxillary area of the left face blunt, simple. On X-Ray examination he found injury No. 1 to be grievous as there was a fracture of the left tibea and left feabula bones at their lower ends. He found another fracture of the left feabula bone at its middle. Injury No. 2 was also found grievous, as there were fracture of the first and second metacarpal bone of the right foot. Injury No. 5 was found grievous as there were multiple pieces of fractures at the lower end of the right ulna bone. Injury No. 8 was grievous as there was evidence of fracture of the distal end of the metacarpal bone of the right hand. Injury No 9 was also found grievous There was a fracture of the middle phylenx of the right ring finger. Dr. Gupta stated that apart from the above noted injuries the patient was complaining of pain in the chest on the left lower side two days after his admission to the hospital. He then noticed fracture of the 8th on the right side and 9th on the left ribs. These injuries were also grievous. 22. In the same assault Mansingh also sustained 11 injuries, of which three were found to be grievous, resulting into fracture of more than one bone under each injury. Learned Sessions Judge, while acquitting the accused of the offence under Sec. 307/149 I.P.C., has failed to give any cogent reason. Shivprasad is an old man of 60 years. 22. In the same assault Mansingh also sustained 11 injuries, of which three were found to be grievous, resulting into fracture of more than one bone under each injury. Learned Sessions Judge, while acquitting the accused of the offence under Sec. 307/149 I.P.C., has failed to give any cogent reason. Shivprasad is an old man of 60 years. At the time of the assault he was without any arms. Formidable weapons used in the course of beating in a savage manner, helplessness of an unarmed victim, the callus conduct of the accused in his persistence in the assault even after the victim had fallen down, viewed against the background of the previous animosity between the parties, lead to no inference other then that the injuries caused by the accused to Shivprasad, were intentionally inflicted and while inflicting such injuries the offenders knew that the injuries were likely to cause the death of the victim on whom they were being caused On this point we stand supported by the recent decision of the Supreme Court in State of Andhra Pradesh vs. Raynvarapu Punnayya (8), where the victim of the assault sustained 19 injuries out of which 9 were found to be grievous. None of the injuries were sustained by the victim on the vital part of the body. Their Lordships of the Supreme Court, after considering a number of decisions of that Court and while accepting the State appeal, altered the conviction of the accused from Sec 304 Part II to Sec. 302 I.P.C. and restored the order of the trial Court. On the parity of reasons it can safely be said that the trial Court committed an error of law in not convicting the accused under Sec. 307/149 I.P.C. We are conscious of the fact that it is an appeal against acquittal and there is a presumption of innocence in favour of the accused and the accused persons are entitled to the benefit of reasonable doubt and that due regard to the views of the trial court has to be made. Shivprasad sustained multiple fractures Keeping in view the number and nature of the injuries sustained by Shivprasad, the helpless condition of the victim and the pre-existing enmity between the parties, we are of the opinion that two views of the evidence are not possible. Shivprasad sustained multiple fractures Keeping in view the number and nature of the injuries sustained by Shivprasad, the helpless condition of the victim and the pre-existing enmity between the parties, we are of the opinion that two views of the evidence are not possible. Shivprasad had fallen down just after sustaining two injuries and even thereafter merciless beating was administered to him. If death would have been caused the act of the accused would have come within clause secondly of Sec 300 I.P.C. 23. The net result of the above discussion is that the conviction and sentence awarded to accused-appellant Banwari under Sec. 302 I.P.C. are set aside. His appeal is partly allowed. The appeal filed on behalf of accused-appellants Ramkaran, Mahipal and Maturam is allowed. They are acquitted of all the charges framed against them and the sentences awarded to them by the trial court are set aside. The conviction and sentence awarded to accused Banwari under Sec. 148 I.P.C., are set aside. He is convicted under Sec. 147 IPC. and sentenced to undergo rigorous imprisonment for one year. The conviction and sentence awarded to the rest of the accused namely, Srichand, Dharampal, Ishwarsingh, Amarsingh and Roopsingh under Sec. 147 I.P.C. are maintained. 24. The State appeal is partly allowed and the conviction of accused Banwari, Ishwarsingh, Dharampal, Srichand, Amarsingh and Roopsingh is converted from Sec 325/149 I.P.C. to Sec. 307/149 I.P.C and each of them is sentenced to undergo rigorous imprisonment for four years under this count. The substantive sentences of imprisonment under different counts are directed to run concurrently. 25. The accused-appellants namely, Ishwarsingh, Dharampal, Amarsingh Srichand and Roopsingh are on bail. The learned Chief Judicial Magistrate, Jhunjhunu is directed to get them arrested and send them to jail for undergoing the remaining term of imprisonment awarded by this Court. Appellant Banwari is in jail. He has already undergone the sentence awarded by this Court under Sec. 307/149 I.P.C. and under other counts. Ha shall be released forthwith, if not required in any other case. 26. It is, however, made clear that the accused-appellants shall be entitled to the benefit of Sec. 428 Cr.P.C. and the period of detention undergone by them during investigation, inquiry or trial shall be set off against the term of imprisonment awarded by this Court.