MAHENDRA BHUSHAN, J.—The following accused-appellants have been convicted and sentenced to various imprisonments by the learned Additional Sessions Judge, Gangapur City, as mentioned below:— Name Offence under which convicted and sentenced. A.1 JagnyaA.2 PanchyaA.3 Kanhiyalal All S/o Bhanwarlal U/s. 302/149, IPC Imprisonment for life. U/s. 147, IPC 1 years R. I. and a fine of Rs. 100/- or in default to 1 months R. I. 326/149, IPC 4 Years R.I. and a fine of Rs. 100/-, or in default to further suffer 1 months R.I. U/s. 452, IPC 1½ years R.I. U/s. 325/149, IPC 2½ years R. I. and a fine of Rs. 100/-, and in default to further- 1 months R.I. U/s. 324/149, IPC One years R. I. U/s. 323/149, IPC Six months R. I. A.4. Latoor s/o GhasiA.5. BajrangaA. 6. Kanhiya s/o Onkar U/s. 302/149, IPC Imprisonment for life U/s. 148, IPC 1½ years R. I. & a fine of Rs. 100/- & in default to one months R.I. U/s.326/149, IPC 4 years R.I. and a fine of Rs. 100/- and in default to 1 months R.I. U/S. 452, IPC 1½ Years R.I. U/S. 325/149 IPC 2½ years R.I. and a fine of Rs. 100/-, and in default to one months R.I. U/S. 323/149 IPC Six months R.I. A. 7. Harphool U/s. 147, IPC 1 years R. I. and a fine of Rs. 100/- or in default to 1 months R. I. U/S. 452, IPC 1½ Years R.I. U/S. 326/149 IPC 4 years R.I. and a fine of Rs. 100/-, and in default to one months R.I. U/S. 325 IPC 2½ years R.I. and a fine of Rs. 100/-, and in default to one months R.I. U/S. 324/149 IPC One years R.I. U/S. 323/149 IPC Six months R.I. A. 8. MotilalA. 9. KishanA. 10. Laddu S/o Kanwarlal U/s. 147, IPC 1 years R. I. and a fine of Rs. 100/- or in default to 1 months R. I. A. 11. ChotyaA. 12. MadhoA. 13. Hajari U/S. 452, IPC 1½ Years R.I. A. 14. GokulA. 15. GopalA. 16. Latoor S/o RampalA. 17. Laddu s/o BhagwantaA. 18. Ghasi U/S. 326/149 IPC 4 years R.I. and a fine of Rs. 100/-, and in default to one months R.I. A. 19. Dhanna U/S. 325/149 IPC 2½ years R.I. and a fine of Rs. 100/-, and in default to one months R.I. A. 20. OnkarA. 21. MadanA. 22. RadhakishanA. 23. JainarainA. 24. JagannathA. 17. Laddu s/o BhagwantaA. 18. Ghasi U/S. 326/149 IPC 4 years R.I. and a fine of Rs. 100/-, and in default to one months R.I. A. 19. Dhanna U/S. 325/149 IPC 2½ years R.I. and a fine of Rs. 100/-, and in default to one months R.I. A. 20. OnkarA. 21. MadanA. 22. RadhakishanA. 23. JainarainA. 24. JagannathA. 25. Prahlad. U/s. 324/149, IPC One years R.I. U/s. 323/149, IPC Six months R.I. 2. All the substative sentences of all the accused-appellants were ordered to run concurrently. 3. State briefly, the prosecution story is that one Bansidhar (deceased) was in possession of Khasra No. 477 measuring about 35 Bighas in village Ferozepura, District Sawai Madhopur. Baira Crop was standing on the said fields and on October 14, 1973 Jagat Prakash (PW 11) and others had gone to Bankhandi-Balaji in a Goth (Picnic Party). The deceased Bansidhar and the other members of his family were removing the harvested Bajra crop from the fields, mentioned above At about 4 P. M. on that day, all the accused persons (hereinafter referred to A. 1 to A. 25.) along with several others armed with lathis, Laundi (lathi having iron wires at the top), Gandasi and Kulharis attacked the family members of Pandit Bansidhar and gave indiscriminate beating to them. When the pilgrims who had assembled at the temple Barkhandi-Balaji for a picnic, as aforesiad intervened it is alleged that they were also beaten by the accused persons. Jagat Prakash (PW 11) a petition writer also received inju-ries at the hands of accused A.7 and others. He went to the police station, Ravajna-Doonger and lodged a report (Ex. P3) there at 7 P.M. on October 14, 1973. A case on the F.I.R. Ex. P. 20 was registered and Lachman Singh S.H.O. (Pw.26) reached the hospital and prepared Inquest Report Ex.P.9 of deceased Bansidhar on October 15, 1973. He also reached the spot and prepared the site plan (Ex .P. 10) and seized sticks, broken pieces of bangles, Chappals etc. Ar. 1 to Ar. 13 from the spot and prepared its sizure memo (Ex.P. 11). The accused persons were arrested by him and were directed to remain Ba Parda as identification proceedings were to take place. Some of the accused - persons got recovered the alleged weapons of offences Art. 22 to Art. 29 under S.27 of the Evidence Act. Ar. 1 to Ar. 13 from the spot and prepared its sizure memo (Ex.P. 11). The accused persons were arrested by him and were directed to remain Ba Parda as identification proceedings were to take place. Some of the accused - persons got recovered the alleged weapons of offences Art. 22 to Art. 29 under S.27 of the Evidence Act. The accused persons were put for identification and were identified by the Dr. V. K. Singhi (PW 27) conducted autopsy on the dead body of Bansidhar on October 15, 1973 at 9.15 A.M. and found that there was incised wound on the fore-head, incised wound on the left parieto occipital area, incised wound on the left parieto occipital area 1" below injury No. 2, lacerated wound on the right frontal area, fracture of nasal bone, incised wound on the mid line in parieto occipital region, abrasion in right third inter-costal space, contusion on the back of chest, contusion over left lower chest and abdomen, contusion on left abdomen, abrasions on the left hypocondryum, compound fracture of right tibia and bifula, fracture of lower hand, right tibia and fibula, fracture of right patella, abrasion over lateral aspect of thigh, fracture of left leg, fracture of right radius and ulna in middle and on the lower 1/4 th, fracture of right 3, 4, 5th meta carpal bone, contusion over left fore-arm, multiple abrasions 7 in number covering left scapular region, right scapular region and over spines, contusion overback on the mid line over both scapula, contusion over left scapula and back of the abdomen, contusion over right infra-scapular region and abrasion over buttock. Thus, out of the multiple injuries, four were caused by sharp weapon and the others by blunt weapon. On opening the skull and other parts of the body, multiple fractures of skull bones were found. In the opinion of Dr. Singhi, the internal fractures of the skull bones and other damage were the result of external injuries 2 to 5, and the other injuries and the haematoma was the result of injuries 1 & 3. All the injuries were sufficient in the ordinary course of nature to cause death, and the death must have taken place instantaneously or within about half an hour of the incident. 4. Dr. Singhi also examined the other injured persons and found as follows:— 1. Shankerlal s/o Hajari. All the injuries were sufficient in the ordinary course of nature to cause death, and the death must have taken place instantaneously or within about half an hour of the incident. 4. Dr. Singhi also examined the other injured persons and found as follows:— 1. Shankerlal s/o Hajari. 6 injuries by blunt weapon (5 simple & one grievous, fracture of lower end of ulna bone right fore-arm) 2. Mst. Shanti w/o Shankerlal. 7 injuries all by blunt weapon (6 simple and one grievous, a fracture of 2nd meta carpal head chip) 3. Prembai w/o Nandlal. 8 injuries all simple and by blunt weapon. 4. Mst. Sushila w/o Babulal. 3 injuries all simple and by blunt weapon. 5. Mst. Dropdi w/o Kishanlal. 5 injuries (4 simple and one grievous, a fracture of right ulna lower part), all by blunt weapon. 6. Mst. Kesar w/o Bansidhar. 7 injuries (all simple and by blunt weapon. X-ray was advised for injuries 2 and 3, but the injured did not turn up for x-ray, and hence they are to be taken as simple.) 7. Mst. Sulekha w/o Jansi. 3 injuries by blunt weapon. 2 simple and one grievous all, 8. Harnarain. 6 injuries all by blunt weapon. (4 simple and two grievous, fractures of 2nd meta carpal bone and of left greater Trochanter) 9. Gulab Chand. 7 injuries all by blunt weapon (6 simple and one grievous, a fracture of mid shaft of ulna bone.) 10. Babulal s/o Jansi 2 injuries simple and by blunt weapon. 11. Jansi s/o Hajarilal. 8 injuries all by blunt weapon (6 simple and two grievous being fracture of lower end of ulna and fracture of tibia and fibula both lower ends) 12. Ramkishore s/o Jankilal. 8 injuries (one incised wound over right parietal region by sharp weapon and others by blunt weapon. Six simple injuries including by sharp weapon, and 2 grievous fractures of the left fore-arm and left 3rd meta carpal.) 13. Badrilal S/o Johrilal 7 injuries (3 incised on left car bisected upto base by sharp weapon and the other by blunt weapon. 4 simple and 3 grievous, fracture of left fore-arm in upper 4th, fracture of right fore-arm in lower 4th, and injury by sharp weapon was also grievous) 14. Jagat Prakash 6 injuries by blunt weapon (5 simple and one grievous being a fracture with swelling left fore-arm). 5. 4 simple and 3 grievous, fracture of left fore-arm in upper 4th, fracture of right fore-arm in lower 4th, and injury by sharp weapon was also grievous) 14. Jagat Prakash 6 injuries by blunt weapon (5 simple and one grievous being a fracture with swelling left fore-arm). 5. After investigation, a charge sheet was filed and the accused persons were committed to the Court of learned Additional Sessions Judge, Gangapur City, who framed various charges, stated above, against the accused persons. On behalf of the prosecution, as many as 28 witnesses including a number of eye witnesses, who were also injured, were examined. Thereafter, each of the accused was examined under S. 313. Cr. P. C. to explain the circumstances appearing against him in the evidence of the prosecution witnesses. Accused A.2 has come out with a case in his statement that the field Khasra No. 477 consists of 27-28, Bighas, which had been allotted to five persons including himself, and there was litigation going on between Bansidhar and others on the one hand,and accused A.2 and others on the other hand relating to that land. He further pleaded that the standing Bajra and Juar crops on the day of the incident belonged to him and others and they had sown the crops and having come to know that Bansidhar and others had gone to their fields to harvest Bajra Crop, he and others had gone to the field to refrain Bansidhar and others from cutting the standing crops. It were Bansidhar and others, who started beating him and Rarasahai gave a blow of his sword at his neck and Shanker gave a lathi blow on his right leg. Jagat Prakash also gave a lathi blow on his back. It was also stated by him that he has also filed a complaint in the Court of Magistrate relating to that occurrence. Accused A.7 in his statement has taken the plea of alibi to the effect that on the day of incident he was in Cement factory, which is situated at Phalodi and had gone to purchase a pair of shoes at weekly fair (Hatwara)on that day. Accused A.6 has also pleaded alibi to the effect that he was on duty on that day. Accused A.3 has also taken a plea that he was in the factory and he too had gone to the weekly fair to purchase some articles. Accused A.6 has also pleaded alibi to the effect that he was on duty on that day. Accused A.3 has also taken a plea that he was in the factory and he too had gone to the weekly fair to purchase some articles. Accused A.5 has stated that he was returning from the jungle and hearing the cries he reached the spot to pacify the persons fighting there, but he too was beaten Accused A.4 had taken a plea that he and others were cultivating Khasra No. 477 for the last about 10-12 years and on half of the field Bajra crop was standing, and on the other half Juar crop was standing. ft was Bansidhar and others, in all numbering about 40-50 persons, who were cutting the Bajra crop when he reached there to request them not to do so. Jagat Prakash incited Bansidhar and others to beat him and he received injuries on his head. Babulal gave an axe blow on his leg and the other pilgrims also beat him on his back. Accused A.17 has stated that on hearing the alarm when he started to that side and before he could reach, some body gave a lathi blow and some body an axe blow to him. He received other injuries also and became unconscious, and it was Nathulal who lifted him after two hours and took him away. Accused A 10 speaks about having reached on the spot to pacify the persons who were fighting but ha too was beaten. The rest of the accused persons have denied their presence at the spot. 6. On behalf of the accused persons, as many as 10 witnesses were examined and reliance was also placed on documentary evidence to show that accused persons A.5, A.4, A.2, A. 16 and A. 17, received injuries in the occurrence and that it was the accused persons A.2 and others, who were in possession of the fields in dispute. 7. The learned Additional Sessions Judge believing the case of the prosecution, and that Bansidhar (deceased) and his brothers were in possession of the fields in dispute Khasra No. 477, convicted and sentenced the accused persons, as aforesaid. 8. We have heard the learned Advocate for the accused-appellant and the learned P.P., and have been taken through the velumenous oral and documentary evidence, which has been brought on record. 9. 8. We have heard the learned Advocate for the accused-appellant and the learned P.P., and have been taken through the velumenous oral and documentary evidence, which has been brought on record. 9. The first contention of the learned Advocate for the accused-appellants is that there was litigation going on in between accused A.2 and others on the one hand and Bansidhar and others on the other hand with regard to Khasra No. 477 measuring 35 Biahas and 16 Biswas and the prosecution has utterly failed to prove that it were Bansidhar and others, who were in possession of the land in dispute on 14.10.73. The prosecution has also failed to prove that the standing Bajra and Juar crop had been sown by Bansidhar and others. According to the learned Advocate, on the evidence on record, it is proved that accused A.2 and others were the allottees of the land in dispute and it were they who were in its possession. 10. The question as to who was in possession on 14. 10. 73 of Khasra No. 477 measuring 35 Bighas and 16 Biswas is very important in this case. Relying on the evidence of the prosecution witness Shanti (Pw 1) Rukmini (PW2). Dropdi (PW 3), Sulkha (PW 4), Sushila (PW 5), Ramsahai (PW 6), Babulal (PW 7), Shanker (PW 8) and Kishanlal (PW 21), and further relying on the documentary evidence produced on behalf of the prosecution, the learned Additional Sessions Judge has concluded that on U.10 73 it were Bansidhar and others who were in possession of the disputed fields. After having gone through their statements, it can be said that all of them have stated that Bansi-dhar and others were in possession of the disputed fields, and their Bajra and Juar crops were standing on 14.10.73 They have denied that accused A 2 and others were in possession or were ever in possession of the fields in dispute. A perusal of Ex.P.79 (at page 1181 of the Paper Book) will show that it is a certified copy of the judgment of the S.D.O in Civil Suit No. 14/67 Bansidhar, Jansi and others, Plaintiffs Vs. the State, Defendant. A perusal of Ex.P.79 (at page 1181 of the Paper Book) will show that it is a certified copy of the judgment of the S.D.O in Civil Suit No. 14/67 Bansidhar, Jansi and others, Plaintiffs Vs. the State, Defendant. The suit declaring Bansi dhar and others as Khatedars was decreed by the S D O. on March 30.1971 The land in dispute was entered as Sevoy Chuk, and though accused A.2 and others were not parties to the suit, but the suit was decreed in favour of Bansidhar and others, and they were also declared as Khatedars. It also appears from the perusal of Ex. P. 79 that the basis of the suit for declaration was a Patta dated Ashadh Badi 2, Samvat 1973, which the Jagirdar of the then Thikana had given to Ramnarain and Hajarilal, Hajarilal being father of Bansidhar, and Bansidhar and others were entered as persons in possession in Khasra Girdawari in Samvat 2024 and 2025. Besides this Ex P. 18/1 (in the original record) is Khasra Girdawari Chatur Varshiya for Samvat years 2027 to 2030, which also shows that the land was Sevoy Chuk and a Pacca well was constructed in it. From Ex.P, 17/1, a certified copy of Khasra Parivartanshee! for Samvat Year 2028, it appears that Bansidhar, Kishanlal, Jansi and Shanker son of Hazarilal were entered as cultivators, in Khasra No 477. It also appears that Juar and Bajra crops were standing in the fields in dispute. It also appears that these entries were made in pursuance of the order of the S.D.O , referred to above. Ex. P. 14/1 Seema Bandi and Ex P. 16 Trace Map are also relevant, which go to show that Khatedari rights had been conferred upon Bansidhar and others, referred to above. It further appears that Bansidhar (deceased) applied for demarcation of his fields (Patther Garhi), vide his application Ex. P. 13 (page 1112 of the Paper Book) dated 5.9.73 to the S.D.O., Sawai Madho-Pur, who forwarded the same on 17.9.73 to the Inspector, Land-Records Circle, for compliance and report. It also appears from Ex P. 14 (page 1113 of the Paper Book) that Bhupendra Kumar (PW 17) Inspector Land Record went to the spot on 1.10. 73 and demarcated Khasra No 477 measuring 5 Bighas and 16 Biswas at site. He was accompanied by kailash Chand Sharma (PW 18) Patwari of the circle. It also appears from Ex P. 14 (page 1113 of the Paper Book) that Bhupendra Kumar (PW 17) Inspector Land Record went to the spot on 1.10. 73 and demarcated Khasra No 477 measuring 5 Bighas and 16 Biswas at site. He was accompanied by kailash Chand Sharma (PW 18) Patwari of the circle. No doubt, it was also noticed by these revenue officials that on a fraction of this disputed land, accused A 2, A.24, A3, A 25 were in possession. Accused A.24 was in possession of 16 Biswas, A.3 also of 16 Biswas, A.2 also of 16 Biswas and A.25 of 5 Biswas and their crops were standing. But. an major portion of Khasra No. 477, it appears from perusal of the above referred to documents that it were Bansidhar and others who were in possession and they had also constructed a well on a portion of that Khasra Bhupendra Kumar and Kailashchand Land Record Inspector and Patwari respectively, have proved the above referred documents. (The fractions of these fields Khasra No 477 which were in possession of the above referred two accused persons have been shown by red dots). It has also been stated by Ramsahai (PW 6) and Jagdish (PW16) that they had sown Bajra and Juar crops in the fileds in dispute and they were standing on the fields on the date of occurvence, i e. 14 10 73. No doubt, in proceedings under S. 145. Cr.P.C. in case No. 19/144 of 1964, the S.D.M,Sawai Madhopur on 30,6.66 had declared the possession of accused A.2 and others, but there is no material on record that after the possession of the accused persons was declared, they were put in possession of the fields in dispute and continued to be so on the date of the present incident, i.e , 14.10.73. It is submitted by the learned Advocate for the appellants that once the possession of a party is declared in proceedings under S. 145, Cr P.C-, there is a presumption of continuity of the possession of that party, unless by due process of law that party is evicted from the immoveable property on which its possession is declared. It is submitted by the learned Advocate for the appellants that once the possession of a party is declared in proceedings under S. 145, Cr P.C-, there is a presumption of continuity of the possession of that party, unless by due process of law that party is evicted from the immoveable property on which its possession is declared. It may be observed that the occurrence took place on 14.10.73, almost after about 7 and a half years of the decision of the criminal case under S 145, Cr.P.C and under Ex P.79, which is of 1971, the S.D.O. declared Bansidhar and others as the Khatedar of the and in dispute, and there were entries to that effect in the revenue records. No doubt, in earlier case, F.I.R No. 22/73 dated 15.7.73, which was lodged by Kishan lal son of Hajarilal, who is the real brother of deceased Bansidhar, a final report(Ex.P18) was lodged on the basis of the decision dated 30 6.76 in proceedings u/s 145, Cr.P.C. referred to above, but, as already observed above, from the revenue record, discussed above and from the evidence of the witnesses, it can be said that on the date of occurrence on major portion of Khasra No. 477 it were Bansidhar and others who were in possession and they had sown Bajra and Juar crops which were standing. Accused A.2 and others were in possession only on the fraction of land on 1.10.73 when Bhupendra Kumar (PW17) Inspector Land Records and Kailash Chand (PW18) Patwari went to the spot and demarcated Khasra No. 477 measuring 35 Bighas and 16 Biswas. The evidence of the defence witnesses, Nanu (DW 9) and Ranideva (DW10) about the possession of the accused persons on the entire land Khasra No. 477 has been rightly disbelieved by the learned Additional Sessions Judge. Nanu (DW9) is unable to say as to when the land Khasra No. 477 was allotted to accused A.l, A 2 and another. He is unable to say, as to what is the total area of Khasra No. 477. He is unable to say as to whether the possession was delivered to the accused parsons by the Patwari or not. Nannu has also stated that about two years ago, Bajra was sown by the accused persons in about 4-5 Bighas, and in the rest Juar crop was sown. He is unable to say as to whether the possession was delivered to the accused parsons by the Patwari or not. Nannu has also stated that about two years ago, Bajra was sown by the accused persons in about 4-5 Bighas, and in the rest Juar crop was sown. But the accused persons have stated that in half of Khasra 477 Juar had been sown and in the other, half Bajra had been sown Similarly, PW 10 Ramdeo is unable to say as to what is the area of Khasra No. 477. He is also unable to say as to how much land was allotted to accused A.l, A.2, A.3 and A.4. 11. It is admitted by Ramsahai (PW6) that the field of accused persons are also nearby Khasra No. 477. He also admits that some corners of the fields of accused A.2, A.24, A.25 and A.3 are projecting in Khasra No. 477. 12. It can therefore, be said on the evidence on record that on a major portion of Khasra No 477 measuring 35 Bighas and 16 Biswas, Bansidhar (deceased) Jansi and others were in possession on 14.10.73, and their Bajra and Juar crops were standing. It can also be said that on some portion of the lands, discussed and detailed above, some of the accused persons were inpossession and their crops were standing and that litigation was going on in between the parties for the last many years relating to that land in dispute. But, we find ourselves unable to reach the conclusion that it were the accused persons A.l, A 2 and A.3 who were in possession of the entire Khasra No. 477 and their crops were standing on the date of the incident. 13. Having held above that on major portion of Khasra No. 477 msasur-ing 35 Bighas and 16 Biswas, deceased Bansidhar and his brothers were in possession on the date of the incident, i.e. 14.10.73, and that some of the accused persons were in possession only on a fraction of this land, it is to be seen as to where the incident took place, whether it took place in that area of the field, which was in possession of Bansidhar and others, or it took place in that portion of the fields, which was in possession of some of the accused parsons. It is also to be seen, as to whether the case of the prosecution about the origin of the fight to the effect that accused Kishana and Hajari first drove their she-goats, damaged their harvested Bajra crop and then all the accused persons came armed and then the incident took place is correct? All the witnesses for the prosecution, namely, Shanti (PW1), Rukmini (PW2). Dropdi (PW3), Sulkha (PW4), Sushila (PW5) Ramsahai (PVV.6). Babulal (PW.7), Shanker (PW8), Pershadi (PW9) and Ramkishore (PW10) have stated that the occurrence took place in the fields where Bajra crop was standing and was being harvested and some of it had been stcaked. A look at the site plan (Ex.P. l0) will show that the dead body of Bansidhar and some of the injured persons were found lying on the fields which have been shown by letter D in the site plan and Juar crops were standing. It is just near that portion of the land Khasra No. 477 where Bajra crops were standing and some of it was lying harvested. There was no damage to the Juar crop and, therefore, the case of the prosecution that when Bansidhar and others were harvesting Bajra Crop. the incident took place in it appears to be correct. It is worth mentioning here even at the rest of repetition that in Ex.P. 14/1 the report of Bhupendra Kumar (PW17) and Kailash Chand (PW18), Inspector Land Records and Patwari respectively, it has been shown that on those portions of Khasra No. 477 where the accused persons, referred to above, were in possession, only Juar crops was standing. Some Juar Crops of Bansidhar and others were also standing. Therefore, the case of the defence that Bansidhar and others were harvesting their Bajra crop and they went there to refrain them does not appear to be correct, because there is no material on record on which it can be said that Bajra crops standing on Khasra No. 477 were sown by the accused persons. Rather, as already concluded earlier, Bansidhar and others were in possession and they had sown Bajra crops. 15. After having gone through the entire evidence the case of the prosecution that Hajari A. 13, and Kishana A.9 first drove their she-goats and then others came armed and the occurrence took place does not appear to be correct. A look at Ex.P.20. 15. After having gone through the entire evidence the case of the prosecution that Hajari A. 13, and Kishana A.9 first drove their she-goats and then others came armed and the occurrence took place does not appear to be correct. A look at Ex.P.20. the F.I R. lodged by Jagat Prakash PW 11) will show that there is no mention in it that the occurrence took place in the manner as alleged by the prosecution, i e , first accused A 9 Kishna and A. 13 Hajari drove their she-goats in the fields and they started damaging the Bajra crops. Even from a perusal of Ex.P.10, site plan, it does not appear that any damage was done to the Bajra crops standing or harvested, by the she-goats P.W. 6 Ramsahai, who is the son of Jansi, real brother of deceased Bansidhar. does not state about the entry of the she-goats in the fields or damage by them to the Bajra crops. Per-shadilal (PW9) also does not state about this fact. Ramkishore (PW10) also does not state a word about it. He has given completely a different story in his police statement (Ex.D.l) with which he was confronted. It has been stated there in by him that on hearing the alarm of Badri, Bansidhar. Jagat Prakash, Madan Lal Pareek Advocate and one Tewari of Kota went towards the fields. Jagat Prakash(PW ll), who is a petition writer and. as already observed above, lodged the F.I.R. (Ex.P.20), also does not state the story of the she-goats having strayed into the fields and damaged the crops. Gulabchand (PW 12). who was a "Yatri" at the temple of Barkhandi Balaji also does not state anything about it and he states that only on hearing the alarm of Badari, Bansidhar and others had gone to the fields. Jansi (PW15), real brother of Bansidhar, one of the Khatedars of Khasra No.477 also does not state to this effect. The statement of Badari lal (PW20) is important. He has stated that when after taking his lunch, he had gone to Phalodi to take a betal, and when he was returning from there. 40-50 persons were sitting in the fields in which Juar crop was standing and they started beating him. The statement of Badari lal (PW20) is important. He has stated that when after taking his lunch, he had gone to Phalodi to take a betal, and when he was returning from there. 40-50 persons were sitting in the fields in which Juar crop was standing and they started beating him. Though, Rajmani (PW22), a police constable, has been declared hostile, but he too states that when he was sitting, with Bansidhar and he had been deputed by the S.D.O., who was to visit the site that day, he heard an alarm coming from a distance of 50-60 Yds, Bachao-Bachao". Bansidhar left for that place along with two persons. P.W.25 Ramnarain states that he was called by the Tehsildar to be a witness, but the Tehsildar did not arrived and an alarm of a man was heard, hearing which Bansidhar left Balajis temple to the side from where the cries were coming. He also followed them and then the persons came out of their fields and started beating indiscriminately. Because of these witnesses, it can also be said that the case of the prosecution that Bansidhar had gone to the fields with a bucket of water for drinking purposes of those who were harvesting Bajra crop is not correct. In Jamuna Choudhary Appellants vs. State of Bihar (1) it has been held by their Lordships of the Supreme Court that where neither the prosecution nor the defence come out with the whole or unvarnished truth to enable the court to judge where the rights and wrongs of the set of incidents lay or how one or more incidents took place in which so many persons including the deceased and one injured person were injured, court can try to guess or conjecture to deipher the truth, if possible. This may be done, within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case. 16. This may be done, within limits to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances of the case. 16. From the scrutiny of the evidence, it appears that the dispute relating to Khasra No. 477 was going on since long and in the year 1966 proceedings in respect of about 28 Bighas of land under S. 145, Cr.P.C. were decided in favour of some of the accused persons and against Bansidhar, but the revenue suit having been decided in favour of Bansidhar and others on 30.3.71 and they having been declared as Khatedar, they were in possession of the major portion of the fields in dispute and on 1.10.73 Bhupendra Kumar Inspector Land Records (PW17) and Kailash Chand Patwari (PW18) at site demarcated Khasra No. 477 vide Ex.P. 14 on the application of Bansidhar (Ex.P.! 3). On 14.10.73, i.e., after about 14 days of demarcation, the Tehsildar was to arrive and had called Ramnarain (PW25) to be a witness (vide statement of Ramnarain PW 25), but did not arrive. Jagat Prakash (PW11) who used to do some job for Bansi dhar in the litigations was also in the village in that connection. The Tehsildar did not arrive. The accused persons or some of them, about which we shall deal later on. armed with weapons, caused injuries to Bansidhar and several others, as a result of which Bansidhar died. Five members on the side of the accused party also received injuries. It is worth mentioning here that when each party is blaming the other side to be the aggressor, the number and nature of injuries received by either of the parties is also one of the criteria which furnishes material to conclude as to which of them was the aggressor. In the instant case, besides deceased Bansidhar as many as 14 persons from his side received multiple injuries. The names of the injured persons and number and nature of injuries have already been mentioned by us in the earlier pages 5 and 6 of our judgment. A look at the injuries of Bansidhar and all the 14 injured persons will show that they received about 100 injuries and many of them are grievous on vital part and also by sharp weapons. A look at the injuries of Bansidhar and all the 14 injured persons will show that they received about 100 injuries and many of them are grievous on vital part and also by sharp weapons. From the side of the accused, only five accused persons received injuries, namely, accused A.5 (Bajranga) four injuries, one incised wound by sharp weapon, three by blunt weapon, and all simple; accused A. 10 (Ladu son of Kanwaria) received 8 injuries, two incised wounds, simple and by sharp weapon, three abrasions, two contusions and one fracture of second meta carpal, a grievous injury, i.e., three by blunt weapon; accused A. 2 received three injuries, 2 incised wounds and one contusion, all simple, accused A.4 (Latoor son of Ghasi) received four simple injuries by blunt weapon, and accused A.17 (Laddu son of Bhagwanta) received 9 injuries, one incised wound by sharp weapon and others contusions and abrasions, by blunt weapon and all simple. Thus, in all. they received 28 injuries, out of which one was grievous by blunt weapon and the simple. Therefore, looking to the nature, number of injuries and the number of injured persons, including the deceased Bansidhar, it will be safe to infer that it were the accused persons who were the aggressors and not Bansidhar whose Bajra were standing. 17. Now, the most important question is. as to whether all the accused persons participated in the beating to Bansidhar and other 14 injured persons or only some of them. We have already observed above that the fields of the accused persons were nearby Khasra No.477 and some corners of their fields were also projecting in Khasra No. 477. The law is settled that mere presence of the person at the place where members of an unlawful assembly have gathered for carrying out their illegal common object does not incriminate him, and the question is one of a fact in each case as to whether a person happens to be innocently present there or was actually member of the unlaful assembly. What is required of the prosecution to prove against a person, who is alleged to be a member of the unlawful assembly is, that he was one of the persons constituting assembly, and he entertained along with the other members of the assembly the common object as defined by S.141, IPC. What is required of the prosecution to prove against a person, who is alleged to be a member of the unlawful assembly is, that he was one of the persons constituting assembly, and he entertained along with the other members of the assembly the common object as defined by S.141, IPC. Once, this is proved, it in not necessary for the prosecution to prove the evert act of each and every member of the unlawful assembly. In the instant case, the evidence is of partisan witnesses majority of when belong to the family of Bansidhar and other who are independent witnesses and assembled at the temple of Barkhandi Balaji for a Goth (Picnic). Many of them, though injured, have not identified any of the accused persons. In cases where the court has to appreciate the evidence given by witness, who are partisan or interested, it is the duty of the court to carefullyj weigh such evidence, but it cannot be said that the evidence given by such witnesses should be discarded only on the ground of being the evidence of partisan and interested witnesses. The question, as to whether the participation of all the accused-appellants has been rightly held proved by the learned Additional Sessions Judge in this case is important and its decision mostly rests on the evidence of identification, as in the F.I.R. (Ex P.20) only the names of three accused-appellants, namely A.7, A.2 and A.8, are mentioned 18. It is contended by the learned Advocate that the identification parade in this case is far from satisfactory, and it cannot be pressed in to service to corroborate the statements of the witnesses recorded in the court, so far as the identification of the accused persons is concerned. Rule 7.31 of the Rajasthan Police Rules, 1965 deals with the identification of suspects. It requires that these proceedings should be held soon after the arrest of the suspects, and it should be vouch-safed that a suspect put to identification proceedings has been put under veil, (Ba Parda) since the time of arrest till the proceedings for his identification were actually arranged. It also provides that the suspect should be placed among other persons similarly dressed and of the same stature in the proportion of 8 to 10 persons to one suspect. It also provides that the suspect should be placed among other persons similarly dressed and of the same stature in the proportion of 8 to 10 persons to one suspect. There should be resemblance in facial outlook of persons so mixed up with that of the suspect It further provides that the officer conducting the parade should question the witnesses as to the circumstances in which they saw the suspect whom they claim to identify and to record the answer in the proper column of the form. While every precaution shall be taken to prevent collusion, the identifying witness must be given a fair chance, and condition must not be imposed which would make it impossible for a person honestly capable of making an identifcation, to do so. It further lays down that in this connection it is of paramount importance that no alteration in any way of personal appearance of unconvicted persons should be made so as to make it difficult to recognise them. We will like to make an important observation here that the tendency of the Magistrate that while conducting identification proceedings of suspects, they conceal specific signs (as the mole and til or mark of injury by paper chits, and similar paper chits or the like are placed on these mixed in the identification parade is not in accordance with rule 7.31 of the Rajasthan Police Rules, 1965, which, as already observed above, lays down that no alteration in any way of personal appearance of unconvicted persons should be made so as to make it difficult to recognise them. We will also like to observe that specific signs (like mole, til etc ) on the face of the suspect can go a long way for the witnesses identifying the suspect in the identification parade, as the witness is likely to observe those specific signs at the time of the incident and keep them in his memory, and concealing those signs will amount to deprive the witness of reasonable opportunity to identify the suspect. Care should be taken by the Magistrate to see that those who are mixed in the parade resemble in facial outlook with that of the suspects. 19. It has been observed by their Lordships of the Supreme Court in Budhson vs. State of U. P., (2) that as a general rule, the substantive evidence of a witness is a statement made in Court. 19. It has been observed by their Lordships of the Supreme Court in Budhson vs. State of U. P., (2) that as a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature iaherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularly. The purpose of a prior test identification therefore seems to be to test and strengthen the trustworthyness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witness in court as to the identify of the accused who are strangers to them in the form of earlier identification proceedings. There may, however, be exceptions to the general rule, when, for example, the court is impressed by a parti-cular witness, on whose testimony it can safely rely without such or other corroboration 20. Though the prosecution has examined many witnesses, and as already observed above, most of them are injured persons, but all the accused persons have not been identified in the court by all the injured persons, and same was the position during the identification parade It will be useful to deal with the evidence against individual accused, so far as his identification by the witnesses is concerned because only then it will be possible to conclude as to participation of which of the accused persons is proved on record. First, we will deal with the case of accused A.1 to A 6, as they have been found by the learned Additional Sessions Judge to have participated in the beating to deceased Bansidhar, and have been convicted under S 302/149, IPC. The first witness Smt. Shanti (PW1) is the wife of Shankerlal In the court, she has identified all the accused A.l to A.6 The question of test identification of the suspects will only arise if the suspecs are not known to the witness prior to the occurrence. The first witness Smt. Shanti (PW1) is the wife of Shankerlal In the court, she has identified all the accused A.l to A.6 The question of test identification of the suspects will only arise if the suspecs are not known to the witness prior to the occurrence. Smt Shanti (PW1), when she appeared before the S. D. M. Shri Jagdish Chand Agarwal (PW23), gave out that she know all the accused persons prior to the occurrence, as he accused persons reside in her village. The accused persons also stated before the S. D. M. that the witness knows them personally. A note to this effect was inserted by the S D M. in column 10 of the form. A look at her statement will also show that many of the persons have been named by her In her statement in the court, Shanti named all the accused A.l to 6 and also named one Ramkumar (absconding) as the seventh assilant of deceased Bansidhar. But. it is of significance that she did not identify accused A 5 (Bajranga) either during the identification or in the committing court. Keeping in background the fact that as per her statement before the Magistrate she was knowing accused A.5 prior to the occurrence, the fact that she could not identify accused A.5 in the identification parade as well as before the committing court goes to show that her statement that it was Bajranga who also gave beating to deceased Bansidhar cannot be relied upon, as she was knowing accused A.5, if accused A 5 would have also taken part in the beating to deceased Bansidhar, she would have identified him in the identification parade and at any rate during the course of her examination in the committing court. But. so far as the other accused persons A.l, A 2, A3, A.4 and A.6 are concerned, P.Wl Smt. Shanti has named them in her statement and also identified them during the identification parade. Even if the identification by her in the test parade held during the investigation is not taken into consideration, because she know the accused persons from before, and this fact is not even disputed by the accused pespons, her identification in the court, which is substantive evidence cannot be disbelieved. Even if the identification by her in the test parade held during the investigation is not taken into consideration, because she know the accused persons from before, and this fact is not even disputed by the accused pespons, her identification in the court, which is substantive evidence cannot be disbelieved. It can, there fore, be said on her statement that accused A.l to A 4 and A.6 caused mult pie injuries to deceased Bansidhar, and accused A 2 and A 4 were armed with Gan-dasis and gave beating to Bansidhar with Gandasis and Bansidhar received four injuries by sharp weapon. The other accused A.l, A.3 and A.6 gave beating with their lathis to deceased Bansidhar. Pw2 Smt. Rukmini in the court did not identify any body and gave out a categorical statement that she is unable to identify any of the accused persons in the court. Therefore, there is no question of her corroboration from the identification parade in which it is alleged that she identified some of the accused persons. PW3 Smt. Dropdi does not state that accused A.4 gave beating to Bansidhar, though she identified him in the Court and gave out that accused A 4 had given an axe blow to her. But, she admitted in cross examination that she could not identify accused A.4 in the identification parade. Though, she identified accused A.3 in the identification parade held by Jagdish Chand, but as she did not identify even in the court, the evidence in the court being substantive evidence, it can be said that she could not identify any of the accused persons A 1 to A 6. Sulkha (PW4) has not identified any of the accused persons in the court Ramsahai (PW6)has identified accused A.l to A 6 in the court. But. he has admitted in cross-examination that he did not identify accused A.5 (Bajranga) in the identification parade The reason for not identifying accused A.5 in the identification parade, as given by Ramsahai, is that he had covered his face, but it does not appear to be correct. Therefore, in the absence of identification of the accused A.5 in the identification parade, the statement of the witness, so fas as the identification of accused A.5 is concerned cannot be relied upon. Therefore, in the absence of identification of the accused A.5 in the identification parade, the statement of the witness, so fas as the identification of accused A.5 is concerned cannot be relied upon. Babulal (PW7) has named accused A.5 and accused A 4 and has also stated that they were armed with axe He has also stated that accused A 1 to 1 5 gave beating to deceased Bansidhar. He is resident of the same village ferozepura, where the accused persons also reside. It has not come in his statement that he was not knowing the accused persons Al to A6 prior to the occurrence. Therefore, the submission of the learned Advocate that the statement of this witness should not be relied upon because he was not made to identify the accused persons during the identification parade has no force. PW.8 Shanker is the real brother of deceased Bansidhar. He has deposed that accused A.l, A.2, A.3, A.4. A:5 and A.6, gave beating to Bansidhar indiscriminately. He was confronted with his police statement (Ex.D 9), wherein he only named accused A.5 In his statement to the Magistrate before identification, Shanker gave out that he know the accused persons by name, and the accused persons also stated that as Shanker belongs to the same village to which they belongs, he knows them. Therefore, the test identificition parade in this case so far as accused A.l to [A 4 and A.6 are concerned, to our mind, has no meaning, and on his identification of accused A 1 to A.4 and A 6 in the court corroborated by test identification before the Magistrate it can not be said that he proves the presence of these accused persons and also that they gave beating to Bansidhar. But he does prove the presence of accused A.5 (Bajranga) and that he gave beating to Bansidhar with an axe. To that extent, he corroborates the statement of Babulal (PW7) Pershadi (PW9) a Yatri has not identified any of the accused persons A.l to A.6 in the court. PW 10 Ramkishore also a Yatri at the temple of Barkhandi Balaji on the date of occurrence has identified accused A.l. But, he had committed 21 mistakes during the course of identification. To that extent, he corroborates the statement of Babulal (PW7) Pershadi (PW9) a Yatri has not identified any of the accused persons A.l to A.6 in the court. PW 10 Ramkishore also a Yatri at the temple of Barkhandi Balaji on the date of occurrence has identified accused A.l. But, he had committed 21 mistakes during the course of identification. Out of 80 persons (13 accessed and 67 others) mixed in the parade, if a witness after committing 21 mistakes only takes out two persons, it will not be safe to rely on his statement, so far as the identification of those two persons is concerned. Jagat Prakash (PW 11) a petition writer has identified in court accused A.l, A.2, A.3, A 4 and A.5. But. he has stated that he also know accused A.5, A.l, A.2 and A.6 prior to the occurrence if he know these persons, he would have named them in the F.I.R.|(Ex p 20) A look at Ex.p.20 will show that out of accused A.l to A.6 only the name of accused A.2 is mentioned. Therefore, the omission of the names of accused A.l, A.5. and A.6, and the fact that Jagat Parkash know them prior to the occurrence leads us to conclude that the identification of accused A.l and A 6 in the court as well as in the identification parade cannot be relied upon. But, so far as accused A.4 is concerned, it is not the case of Jagat Parkash that he know him prior to the occurrence, and he identified him even in the Court and in the identification parade, and there is no reason to disbelieve bis statement. Gulabchand (PW12) Yatri identified accused A.l to A. 6 in the Court. Jansi (PW15) also does not identify any body. HarNarain (PW19) a Yatri also did not identify and body. Badrilal (PW20), the person who was beaten first and on whose alarm Bansidhar was attracted, though identified accused A.l in the Court, but did not identify him in the identification parade. Similar is the statement of Prem Bai (PW24) an injured and a Yatri P.W.25 Ramnarain also did not identify any body. 21. From the above evidence, it can be said that participation of accused A.l to A.6 in the beating to deceased Bansidhar is proved. Similar is the statement of Prem Bai (PW24) an injured and a Yatri P.W.25 Ramnarain also did not identify any body. 21. From the above evidence, it can be said that participation of accused A.l to A.6 in the beating to deceased Bansidhar is proved. So far as accused A 5 (Bajranga) is concerned, he admits in his statement under S 313, Cr.P.C. that he was present, though he states that he went to the place of incident seeing that marpit was going on and he himself was beaten. A look at the injury, report of accused A.5 which is Ex.D. 19, will show that he received four injuries. The presence of injuries also leads assurance to the presence of this accused along with five others at the time of occurrence. Accused A.2 also received three injuries vide Ex.D.21 and accused A.4 received four injuries vide Ex.D.22. The presence of injuries, therefore, shows that these accused persons A.2, A.4 and A 5 were present. We will later on deal with the case of private defence, which has also been argued before us, but the learned Additional Sessions Judge rightly observed that these six accused persons A.l to A.6 participated in the beating to the deceased Bansidher and others. Looking to the facts and circumstances of the case, it can hardly be disputed that these six accused A.l to A.6 along with others, whose cases shall be dealt with presently, formed an unlaw-ful assembly, gave indiscriminate beating to Bansidhar and caused simple and grievous injuries to as many as 14 injured persons, but the learned Additional Sessions Judge has rightly concluded that the beating was administered by accused A.l to A 6 to deceased Bansidhar in prosecution of the common object to cause his death, and this is the only possible inference looking to the manner of indiscriminate beating and the number of injuries found on deceased Bansidhar. 22. Now, we will deal with the case of accused A.7 to A.25. 23. The name of accused A.7 is mentioned in Ex. P 20 F.I.R. lodged by Jagat Prakash (PW 11.) P.W. 1 Smt. Shanti has also identified the accused A.7 in the court as well as in the identification parade. PW 5 Ramsahai identified him in the identification parade and Babulal (PW7) in the court. 23. The name of accused A.7 is mentioned in Ex. P 20 F.I.R. lodged by Jagat Prakash (PW 11.) P.W. 1 Smt. Shanti has also identified the accused A.7 in the court as well as in the identification parade. PW 5 Ramsahai identified him in the identification parade and Babulal (PW7) in the court. Shanker (PW8) and Pershadilal (PW9) also identified him in the court as well as in the identification parade, though Gulab chand (PW12) identified the accused in the court, but could not identify in the identification parade, because as per his statement he know him from before. Therefore, his statement in the court cannot be relied upon in the facts and circumstances of this case. Prem Bai (PW24) has named accused A.7, but did not name him in Ex.D 15, her police statement, and also did not identify him in the test parade. Therefore, from the evidence, discussed above, the participation of accused A.7 is proved. 24. Accused A.8— Motilal has been named in the F.I.R. lodged by Jagat Prakash (PW11). He has also been identified in the court. Babulal (PW7) has stated that accused A.8 gave a lathi blow to Jansi. No doubt, Jansi (PW15) does not state so, but the accused A.8 having been named in the F.I.R. by Jagat Prakash, who himself is an injured, his presnce in the occurrence, to our mind, is proved beyond doubt. Ramsahai (PW6) has also made a similar statement that accused A 8 gave a lathi blow to Jansi, and Shanti (PW1) also states that the accused was among those who were present in the fields armed and gave beating. Therefore, it can be said that he was among those who were present and participated in the beating. 25. Accused A. 9—Kishan- has been identified by PW 1 Smt. Shanti in the court and she has stated that she know him prior to the occurrence. Ram-sahai (PW6) has also identified the accused in the Court as well as in the identification parade, and he has stated that he was among those 20-25 accused persons, who gave beatings to as many as 14 injured persons. Babulal (PW7) has also identified him in the court and has stated that he was knowing him prior to the occurrence and he gave a lathi blow to him. Babulal (PW7) has also identified him in the court and has stated that he was knowing him prior to the occurrence and he gave a lathi blow to him. Therefore, the mere fact that he did not participate in the test parade is not such that his statement in the court can be disbelieved. Shanker (PW8) has identified accused A.9 and Ramu has also identified him in the Court. Therefore, his participation in the occurrence is proved. 26. Accused A. 10—Laddu son of Kanwarlal has been identified by Smt. Shanti (PW1) in the Court. Ramsahai (PW6) has also identified him in the Court and also in the parade, Babulal (PW7) identified him in the Court. The statement of Ramkishore (PW 10) that he identified the accused in the parade, in view of his having committed 21 mistakes, should not be relied upon, though he identified him in the Court. Jansi has stated that it was accused A. 10 who gave a lathi blow. Therefore, his participation is proved. 27. Accused A.11—Chotya was identified by Shanti (PW1) in the Court, but she has only made a general statement and does not say as to what act was done by him. Ramsahai (PW6) has also not assigned any overt act to this Accused. Jagat Prakash (PW 11) has not named him in the F.I.R. and though has identified him in the Court as well as in the parade, but does not ascribe any overt act to him. He has only said above that the house of the accused persons were nearby and unless any overt act is ascribed and is proved, the presence of that accused at the time of occurrence out of curocity cannot be ruled out, more so when the houses were nearby Therefore, on the evidence on record we are unable to hold that this accused also participated in the beating to any of the 14 injured persons. 28. Accused A. 12—Madho— has been identified by Smt. Shanti (PW1), but she has not ascribed any overt act to him. Moreover, Shanti did not identify him in the committing Court. Ramsahai has also not ascribed any overt act and has only made a sweeping statement that this accused was also one of the assailants. 28. Accused A. 12—Madho— has been identified by Smt. Shanti (PW1), but she has not ascribed any overt act to him. Moreover, Shanti did not identify him in the committing Court. Ramsahai has also not ascribed any overt act and has only made a sweeping statement that this accused was also one of the assailants. Shanker (PW ) has stated that he know him prior to the occurrence, but he did not identify him in the test parade (page 305 of the Paper Book). Therefore, on this sort of evidence, the participation of accused A. 12 is not proved and it cannot be said that he was one of the members of the unlawful assembly. 29. Accused A.13-Hajari has been identified by Shanti (PW1) in the Court. We have not believe the genesis of the occurrence and have held that the case of the prosecution that accused A. 13 along with A.9 came along with she-goats and they started damaging the harvested Bajra crops. Babulal (PW7) has made a categorical statement that accused A. 13 was present along with the she-goats, but he does not assign any overt act to him. Shanker (PW6) has stated that accused A.13 was present with goats,but does not say that he gave beating and even does not say that he was armed with a lathi. Therefore it is not possible to hold that accused A. 13 was a member of the unlawful assembly and participated in the beating to any of the injured persons. 30. Accused A.14-Gokul though identified by PW 1 Shanti in the Court, but was not named in the committing court. Ramsahai (PW6) has only made a sweeping statement about the presence of this accused and that he was one of the assailants. He does not say which of the injured persons was beaten by him. Jagat Prakash (PW11) has not named him in the F.I.R. (Ex P 20) and though identified him in the court and in the parade, but has not assigned any specific part to him. Ramnarain (PW25) has stated that he was grazing goats at the time of incident, and therefore, on this evidence, it is not possible to hold that he was one of the members of the unlawful assembly. 31. Ramnarain (PW25) has stated that he was grazing goats at the time of incident, and therefore, on this evidence, it is not possible to hold that he was one of the members of the unlawful assembly. 31. Accused A-15- Gopal though has been identified by Shanti (PW1) in the Court, but was not named in the committing court, and she has only stated that he too was present. Ramsahai (PW6) only names him in a general way without ascribing any overt act. Shanker (PW8) has named him in the trial Court, but did not identify him in the test parade. Therefore, on this evidence, accused A. 15 cannot be held to be a member of the unlawful assembly and it cannot be said that he also participated in the beating or shared the common object of the other members of the unlawful assembly. 32. Accused A. 16 Latoor son of Rampal has been named by Shanti (PW1) in the Court. We have already said above that so far as identification in the parade is concerned, she has clearly given a statement there that she know the accused persons from before, and, therefore, the identification parade has no meaning. Ramsahai (PX6) has stated that accused A. 16 gave beating to his father Jansi. Shanker (! X8) has also identified him in the parade, but did not identify him in the Court. Therefore, identification in the parade has no meaning. Jagat Parkash (PW11) has identified him in the parade, but committed 13 mistakes. Therefore, the only evidence against accused A.16 is of Shanti (PW1) and Ramsahai (PW6). Jansi had only three injuries by blunt weapons, and there is evidence about the beating to Jansi by other accused persons. Ramsahai (PW6) names as many as six persons as the assailants of his father, which cannot be said to be correct in view of the fact there were only three injuries Therefore, only on his statement participation of accused A. 16 cannot be held proved. 33. Accused A. 17- Laddu son of Bhagwanta was not identified by Shanti (PW1) in the parade as well as in the committing court, though she identified him in the trial court and stated that she know him prior to the occurrence. 33. Accused A. 17- Laddu son of Bhagwanta was not identified by Shanti (PW1) in the parade as well as in the committing court, though she identified him in the trial court and stated that she know him prior to the occurrence. Therefore, the identification parade has no meaning, but the fact that she did not identify him in the court of committing magistrate and even in the parade cannot be lost sight off. Ramsahai (PW6) has stated that accused A.17 gave a blow by axe to his father Jansi, but a look at the injury report of Jansi (Ex.P.97) will show that he had three injuries, all by blunt weapon. No other witness has stated that accused A.17 was armed with an axe. But, Babulal (PW7) has identified him in the Court and stated that he gave a lathi blow to his father Jansi. Though, the learned Advocate has submitted that Babulal (PW 7) did not participate in the identification parade, and his statement in the court should not be relied upon, but this contention has no force, because Babulal know accused A. 17 from before. Jansi (PW 15) has also stated that accused A. 17 gave a lathi blow to him. Accused A.17 is an injured and received as many as 9 injuries vide injury report (Ex.D.23), and the injuries on his person during the occurrence lend assurance about his participation in the crime. 34. Accused A.18—Ghasi was named by Shanti (PW1) in the trial court, but she did not identify him in the committing court (page 264 of the Paper Book). She stated that she know all the accused prior to the occurrence, but she omitted to name him in her police statement (Ex.D.l) as admitted by her. Ramsahai (PW6) has identified him in the parade held by Mr. Agarwal (PW 23). Shanker (PW.8) has identified him in the parade, but not in the Court. Therefore, on this evidence the participation of this accused cannot be held proved in the beating to 14 injured persons and it cannot be held proved that he was one of the members of the unlawful assembly. 35. Agarwal (PW 23). Shanker (PW.8) has identified him in the parade, but not in the Court. Therefore, on this evidence the participation of this accused cannot be held proved in the beating to 14 injured persons and it cannot be held proved that he was one of the members of the unlawful assembly. 35. Accused A.19—Dhanna has been identified by Shanti (PW1) in the Court, and in the parade as well but as already observed above, she has given a categorical statement that she know all the accused from before by name and by face, therefore the identification in the parade has no meaning. She has not ascribed any overt act to him in her stated Ex.D.2, nor has named him as one of the assailants. Ramsahai (PW5) identified him in the court, but a look at Ex. Ex.P.l will show that he did not identify him. Therefore, the statement in the court in the absence of corroboration from test identification parade cannot be relied upon. Babulal (PW7) has named accused A. 19 in the Court, but a look at has committing court statement (Ex D 8) will show that he did not name him in it therefore, it will not be safe to rely on his statement so far as this accused is concerned. Shanker (PW 8) identified him in the Court, but not in the Jail, as will be evidence from Ex. P. 1 and the statement of Mr. Agarwal (PW 23). Ramnarain (PW 25) has only stated in a general way about the participation of this accused, but on his statement it will not be safe to convict this accused, more as when no overt act has been ascribed to him. 36. Accused A.20-Onkar was identified by Shanti (PW1) in the Court and she has stated that she know the accused from before, and, therefore, though she also identified him in the parade, but we will ignore it, because if the accused is known to the witness prior to the occurrence by name and by face, there is no need of test identification parade and it can carry no meaning. Ramsahai (PX6) identified him in the court and his statement is corroborated by the test parade which has been proved by Mr. Agarwal (PW23). Ramsahai (PW6) has also stated that he identified him in the parade as well. Ramsahai (PX6) identified him in the court and his statement is corroborated by the test parade which has been proved by Mr. Agarwal (PW23). Ramsahai (PW6) has also stated that he identified him in the parade as well. Babulal (PW7) has stated that accused A.20, gave a lathi blow to his father Jansi. Shanker (PW8) has stated in the court that accused A.20 was also present and armed with lathi. He identified him in the parade. Jagat Prakash (PW 11) also identified him in the parade. Though he committed 13 mistakes, but in view of the other evidence, discussed above, the participation of accused A 20 in beating to Jansi is proved. 37. Accused A.2I-Madan was identified by Shanti (PW 1) in the trial court as well as in the Jail, but she has not ascribed any overt act to him, and has admitted in her statement that she did not name this accused in the committing court. Ramsahai (PW 6) has only named this accused in a general way and he admitted that the know the accused by name and face prior to the occurrence (Page 287 of the Paper Book). When he was confronted with Ex.D.6 his police statement, in which the name of accused A.21 does not find mention, he could not explain the conflict. Shanker (PW.8) has identified him in the parade vide Ex P.l, but he did not identify him in the Court. Therefore, on this evidence it will not be safe to convict accused A.21. 38. Accused A.22-Radha Kishan was identified by Shanti (PW ) in the trial court, but she has not ascribed and overt act and admired that she did not identify him in the committing court. Ramsahai (PW6) identified him in the trial court as one of the participants, but in cross-examination admitted that he know the accused by name and face prior to the occurrence. Therefore, though the test identification, otherwise would not have had any meaning, but the fact that Ramsahai was a witness who was asked to identify accused A.22 in the parade but did not identify him. Shanker (PW8) has admitted in his cross-examination that he did not identify this accused in the parade. Therefore, on this evidence, participation of this accused in the occurrence and as a member of the unlawful assembly cannot be relied upon. 39. Shanker (PW8) has admitted in his cross-examination that he did not identify this accused in the parade. Therefore, on this evidence, participation of this accused in the occurrence and as a member of the unlawful assembly cannot be relied upon. 39. Accused A. 23- Jainarain was identified by Shanti (PW1) but she did not assign any part to him. She did not name him in the comitting court statement (Ex.D. 2). Ramsahai (PW6) has only named him in a general way and has not assigned any overt act, to him. Shanker (PW8) did not identify him in the court, though he identified him in the parade. Therefore, on this evidence, participation of this accused cannot be safely held to be proved. 40. Accused A.24-Jagannath was identified by Shanti (PW1), but she did not name him in the committing court, and this fact has been admitted by her. Ramsahai (PW6) has stated that this accused was also present along with others. He also admits that he know him by name and face but could not assign any reason as to how the name of accused A.24 was missing from his police statement Ex.D.6 with which he was confronted. Therefore, it will not be safe to rely on the statement in the court about the identification of this accused. Shanker (PW8) identified him in the parade, but not in the court, and, therefore, he does not, prove the participation of this accused. Jagat Prakash (PWll) did identify him in the parade as well as in the court, but he made 13 mistakes, and, therefore, it will not be safe to hold on his statement, that accused A.24 was also present during the course of occurrence and participated in it. 41. Accused A.25 Prahlad was identified by Shanti (PW1) in the court and stated that she know the accused prior to the occurrence, but she did not identify him in the parade. If accused A 25 would have been present and if he was known by name and by face to Shanti (PW1) then though it was not necessary to put him for identification before this witness, but when she could not identify a known person in the parade, the participation of this accused in the occurrence cannot be held to be proved in the facts and circumstances of this case. Ramsahai (PW6) does not name this accused in the trial court as one of the asasilants of any of the injured persons. He did not name this accused in his police statement (Ex. D 6) with which he was confronted. Shanker (PW.8) has named only in a general way this accused also in the trial Court and appears to have identified him in the parade as well, but he does not ascribe any overt act. Therefore, on his statement alone, it will not be safe to hold his participation in the crime. 42. The result of the discussion of the cases of individual accused persons A.7 to A.25 will show that participation of accused A. 7 (Harphool), A. 8 (Motilal), A.9 (Kishan), A 10 (Laddu son of Kanwar Lal) A.17 (Laddu son of Bhagwanta) and A.20 (Onkar) is only proved. On the evidence on record, the participation of accused persons A.11 (Chotya), A. 12 (Madho, A. 13 (Hajari), A.14 (Gokul), A.15 (Gopal), A.16 (Latoor son of Rampal), A 18(Ghasi), A.19 (Dhanna), A 21 (Madan), A.22 (Radhakishan), A.23 (Jainarain), A.24 (Jagan-nath) and A.25 (Prahalad) is not proved. 43. It is contended by the learned Advocate for the accused-appellants that it was a case of free fight and as many as 5 accused persons also received injuries. We have held above that deceased Bansidhar and his brothers were in possession of the major portion of Khasra No. 477 and the occurrence took place in that portion of the land on which they were in possesion. We have also held above that looking to the number of injuries, which is about 100, on the deceased and other injured persons, it can be said that the accused persons were aggressors. Therefore, it was not a case of free fight, though the prosecution has not explained the injuries of five accused persons, which have been referred to above by us, but they are not of serious nature and the number is about 28. Therefore, failure of the prosecution witnesses to explain the injuries of accused persons, to our mind, is insequential. We are of the opinion that the accused persons whose participation has been proved above were members of unlawful assembly the common object of which was atleast to cause grievous injuries by sharp weapon to Bansidhar and others. Therefore, failure of the prosecution witnesses to explain the injuries of accused persons, to our mind, is insequential. We are of the opinion that the accused persons whose participation has been proved above were members of unlawful assembly the common object of which was atleast to cause grievous injuries by sharp weapon to Bansidhar and others. We are also of the opinion that the manner in which accused A.l to A.6 gave blows to deceased Bansidhar leaves no manner of doubt that the beating to Bansidhar was given by these accused persons in prosecution of the common object of then and the common object was none other than to cause the death of Bansidhar. Bansidhar died instantaneousely, and therefore, it can be said that the acccused persons intentionally caused the death of Bansidhar. Accused A.l to A.6 have been rightly held guilty under S. 302/179. IPC. But, no offence under S. 452, I.P.C. is made out ether against these accused persons, or other accused persons, whose participation has been held proved, as there is no evidence on record that these accused parsons after having made preparations to cause hurt committed house trespass in the temple of Barkhandi Balaji or in the Dharmshala and caused injuries to the pilgrims Therefore, no offence under S. 452, IPC is made out. 44. In the result, we dismiss the appeal of accused A.l (Jagnya), A.2 (Panchya), A.3 (Kanhiyalal son of Bhanwarlal), A.4 (Latoor son of Ghasi), A.5 (Bajranga), and A.6(Kanhiya son of Onkar), and uphold their conviction under sections 302/149, 326/149, 325/149, 324/149. 323/149, IPC. We also uphold the conviction of accused A 4 (Latoor son of Ghasi), A.5 (Bajranga), A 6 (Kanhiya son of Onkar) under S.148, IPC and A.l (Jagnya), A.2 (Panchya) and A.3 Kanhiyalal son of Bhanwarlal) under S. 147, IPC. We also maintain the sentences awarded to them by the learned Additional Sessions Judge. But we acquit them of the charge under S.452, IPC and set aside the sentence awarded to them under the said offence. 45. The appeal of accused A.7 (Harghool), A.8 (Motilal), A.9 (Kishan), A.10 (Laddu son of Kanwarlal, A.17(Laddu s/o Bhagwanta), and A.20 (Onkar) against their convictions and sentences under Ss. 147. 326/149, of A.7 (Harphool) u/s 355, IPC and others under S. 325/149, IPC, and of all he above accused under S. 324/149 and 323/149, IPC is hereby dismissed. 45. The appeal of accused A.7 (Harghool), A.8 (Motilal), A.9 (Kishan), A.10 (Laddu son of Kanwarlal, A.17(Laddu s/o Bhagwanta), and A.20 (Onkar) against their convictions and sentences under Ss. 147. 326/149, of A.7 (Harphool) u/s 355, IPC and others under S. 325/149, IPC, and of all he above accused under S. 324/149 and 323/149, IPC is hereby dismissed. But, their appeal against conviction and sentence u/s 452, IPC is accepted and they are acquitted of the said charge. 46. Accused persons A 7 (Harphool), A.8 (Motilal), A.9 (Kishan), A. 10 (Laddu son of Kanwarlal), A.17 (Laddu son of Bhagwanta) and A.20 (Onkar) shall be taken into custody for undergoing the sentence awarded to them by the trial court and maintained by us. They and accused A.l to A.6 shall be entitled to set off u/s 428, Cr. P. C. of any imprisonment undergone during the investigation or trial. 47. The appeal of accused A.ll (Chotya), A 12 (Madho), A.l3 (Hajari), A 14 (Gokul), A.15 (Gopal), A.16 (Latoor son of Rampal), A.18 (Ghasi), A.19 (Dhanna), A.21 (Madan), A.22 (Radhakishan), A 23 (Jainarain), A.24 (Jagan-nath) and A.25 (Prahlad) is hereby accepted. The judgment of the learned Additional Sessions Judge convicting and sentencing these accused-appellants of the various offences is set aside. They are acquitted of the charges levelled against them. They are on bail and need not surrender to their bail bonds, which shall stand discharged.