JUDGMENT 1. -The appellant Golu alias Ashok Kumar was convicted for the offences under sections 302 and 148, 1 PC and was sentenced to imprisonment for life and rigorous imprisonment for 2 years respectively. 2. The appellants Khema alias Harbanslal, Puran Chand Sindhi, Rajendra Kumar and Jaggu alias Jagdish were convicted for the offence under sections 302 read with 149 and 148, IPC. They were also sentenced to imprisonment for life on the first count and rigorous imprisonment for two years on the second count. 3. The appellants Mukhtiyarsingh and Balkarsingh were convicted for the offences under sections 302 read with 149 and section 147,IPC. They were sentenced to imprisonment for life on the first count and 1 years rigorous imprisonment on the second count by the learned Sessions Judge, Sri Ganganagar by his judgment dated December 20, 1978. 4. The prosecution case, in brief, is that on 21.10,77 on the festival of Dashera, P.W. 11 Sushilkumar carried his Redi (hand-cart) with some eatables, Cigarette etc., in the Dashera fare for sale. The accused persons-Golu, Khema, Rajendra and Jaggu came at about 6 p.m. to his redi. A cigarette packet was picked up and when price was demanded, they abused him, slapped him and over turned his redi, whereby, his goods and change of about Rs. 20/- were scattered. He lifted the scattered goods and thereafter, sent the redi to his house with his mother. He was in search of a person, to accompany him, so that he may report the matter to the police. He met Premkumar Nagpal (deceased) and Gurcharandass in the chowk of the town of Vijaynagar. He narrated the incident to Premkumar Nagpal and requested him to write out a report as he was studying in Law (Final). Thereupon, Premkumar Nagpal scribed the report at the shop of Gurcharandss P.W. 1 and accompanied Sushilkumar P.W. 11 to the police station, Vijaynagar. Report Ex. P/1 was submitted at the police station, which was is recorded in the Rojnamcha at Serial No. 735, the entry whereof is Ex. 22A. On questioning, he further stated that the miscreants are hoodlums & hooligans, so action may be taken against them. The deceased Premkumar Nagpal was the Dharambhai of Sushiikumars elder brother Satishkumar. Report Ex. P/1 was submitted at the police station, which was is recorded in the Rojnamcha at Serial No. 735, the entry whereof is Ex. 22A. On questioning, he further stated that the miscreants are hoodlums & hooligans, so action may be taken against them. The deceased Premkumar Nagpal was the Dharambhai of Sushiikumars elder brother Satishkumar. P.W 11 Sushilkumar was directed by the police to take proceedings in the competent court as the report disclosed only non-cognisable offences under sections, 594, 323 and 427, IPC. P.W. 1 Gurcharandass and the deceased Prem Nagpal had gone to the town for buying some sweets on that day. P.W. 1 Gurcharandass had come back to his house after buying sweets. After taking the dinner, P.W. 1 proceeded to see Ramleela at about 9 or quarter to 9 p.m. He met Prem Nagpal at the Ramleela. Prem Nagpal told him that the seven accused-persons namely : Golu. Khema, Rajendra, Jaggu, Puran-Chand, Balkarsingh and Mukhtiyarsingh had extended the threat to him that they will see his Vakalat, when he will go to his house. Thereupon, P.W. 1 Gurcharandass went to the seven accused-persons, who were standing bythe side of Prem-Nagpals house, he beseached them not to quarrel. The accused persons told him that he should not intervene.The accused Puran, Jaggu and Khema had lathis with them. P.W. 1 Gurcharandass then returned back and narrated what Prem Nagpal informed him to Premdas Chug P.W. 2 and Inderbhan Nagpal P.W. 3. They had also come to see the Ramleela, which was going on at Gurdwara. P.W.l Gurcharandass told them, that they may accompany Prem Nagpal to leave him at his house. Thereupon his brother Premdass P.W. 2 told them to take Prem Nagpal to his house. Talks of engagement of Premdass with the sister of Prem Nagpal were going on. At about 10 p.m. in the night, P.W. 1 Gurcharandass P.W. 2 Premdass, P.W. 3 Inderbhan and the deceased Prem Nagpal started from (he Ramleela to go to the house of Premdass P.W. 2. When they reached the crossing near the Telephone Exchange, after passing in front of Gopal Restaurant, all the seven accused-persons were seen coming from the side of lane of Dr. Nirmalsingh. It was a moon-lit night and there were also tube-lights on the spot. When they reached the crossing near the Telephone Exchange, after passing in front of Gopal Restaurant, all the seven accused-persons were seen coming from the side of lane of Dr. Nirmalsingh. It was a moon-lit night and there were also tube-lights on the spot. They observed that the accused persons Khema, Puranchand and Jaggu had lathis, Golu and Rajendra had knives, Balkar singh.and, Mukhtyarsingh were empty handed. The accused Khema, Jaggu, Balkar singh and Mukhtiyarsingh were proceeding ahead of the rest three accused. The accused Khema exhorted to catch hold of Prem Nagpal and to avail him. For his safety, the deceased Prem Nagpal then ran towards the house of P.W. 2 Premdass, which was quite close from that place. On exhortation by the accused Khema. Jaggu Mukhtiyarsingh and Balkarsingh rushed and surrounded Prem Nagpal and blocked his way. The accused Khema, thereupon, inflicted a lathi blow on the back of Prem Nagpal, whereby he fell down prostrate. The accused Rajendra inflicted a knife blow on the back of Prem Nagpal. When the victim tried to take turn to become supine then the accused Rajendra inflicted another blow on his right fore- arm with the knife. Then the accused Golu stabbed the knife with great force on the left side of his chest. Golu inflicted another blow with the knife on the right side of his chest. Thereafter, the accused Puranchand Sindhi inflicted lathis blows on the knee joints. The witnesses shouted not to inflict blows. P.W. 2 Premdass caught hold of the lathi of the accused Puranchand. Thereupon, Purahchand Sindhi gave a fist blow on his abdomen. As a result thereof, P.W. 2/Premdass sat down holding his abdomen P. W. 1 Gurcharandass tried to catch hold of the knife of the accused Golu and Inderbhan P.W. 3 also tried to catch the knife of Rajendra but they brandished their knives telling them to keep away. On hearing the noise, Chandiram the father of Gurcharandass, his mother Tharibai and his eider brother Ramkishan P.W. 4 came running at the spot from their nearby house and P.W. 5, Babulal also came from the opposite direction, when, the accused-persons were running from the place of occurrence. They went away from the same lane. As a result of the injuries, the condition of the victim became precarious. He was immediately removed to the Hospital on a cot, where he was declared dead. They went away from the same lane. As a result of the injuries, the condition of the victim became precarious. He was immediately removed to the Hospital on a cot, where he was declared dead. From the hospital, P.W. 1 Gurcharandass accompanied with Gopaldass the brother of accused went to the police station, Vijaynager and lodged a verbal report of the incident Ex. P/2 at 11 p.m. On report, P.W. 12 Ummedsing, S.H.O registered the case under sections 302, 147 148 and 149, IPC. After registration of the case, he interrogated Gurcharandass and sent A S. I. Anoopsingh with the staff to the hospital. He tried to contact the Circle Officer Shri Kundanlal P. W. 14, who was posted at Raisinghnagar. But as the telephone was out of order, so he could not contact him. I hereafter, he visited the scene of crime at about mid-night and inspected the site cursorily and so the blood lying at the spot. He left the constable to guard the spot and then went to the hospital, while searching the accused-persons. He also cursorily examined the dead body, lying on a cot. Then he came back to the police station searching the accused-persons. He informed telephonically to the Superintendent of Police, Sri Ganganagar about the incident and at about 5 a.m. he contacted the Circle Officer at Raisinghnagar. He again went to the hospital at about 7 a.m. on 22.10.77 and prepared the Burd Surat Hal Lash Ex. P/23 and Inquest report Ex. P/24. Photos of the dead body were also taken. He got the autopsy on the Dead-body conducted and seized the bloodstained clothes and other articles from the person of the deceased, thereafter, he went to the spot and prepared the site-plan Ex. P/3 and site-note Ex. P/3A. The three accused-persons namely ; Golu, Khema and Jaggu were arrested at about 4:15 p.m. on 22.10.77 at Jaitsaar. The blood stained Bush-shirt Ex. P/3 of the accused Golu was seized and the blood-stained Bell-bottom of the accused Khema was also seized from their person and in the evening, the witnesses Premdass P.W.2. Inderbhan, P.W.3. Ramkishan P.W.4. Babulal P.W.5. and Gyanchaud P.W. 6 were interrogated. The accused persons Balkarsingh and Mukhtiyarsingh were arrested on 23.10.77 and the remaining two accused-persons Puran Chand and Rajendra Kumar were arrested on 24.10.77. On the information Ex P/33 dated 25.10.7 7. Inderbhan, P.W.3. Ramkishan P.W.4. Babulal P.W.5. and Gyanchaud P.W. 6 were interrogated. The accused persons Balkarsingh and Mukhtiyarsingh were arrested on 23.10.77 and the remaining two accused-persons Puran Chand and Rajendra Kumar were arrested on 24.10.77. On the information Ex P/33 dated 25.10.7 7. the accused Golu got the blood-stained knife Article B recovered on that very day vide recovery memo Ex P/37. On that very day, the accused Khema on his information Ex P/34 got the blood-stained lathi art. 9 recovered vide, memo Ex. P/38. On 26.10.77, the accused Puranchand, on his information Ex P./36 got his blood-stained lathi Article 7 recovered vide memo Ex. P/21. The accused Jaggu on his information got his lathi recovered vide memo Ex. P/32. The blood stained clothes of the accused Jaggu and Khema and the blood-stained knife of Golu and lathis of Khema and Puranchand were sent for Chemical Examination. On examination, they were found positive for blood and on Serological Examination, they were found positive for human blood. It may also be stated that after the arrest of the accused Golu and Khema, both of them were also medically examined on 23.10.77 at 1.45 and 1.35 p.m. respectively and Dr. S. C. Gupta P W. 13 found one contusion on the person of Golu and one Abrasion on the neck of Khema. After completion of the investigation, charge-sheet was presented against the accused-persons. The accused-persons were ultimately tried by the learned Sessions Judge, Sri Ganganagar. 5. Necessary charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried. The prosecution examined as many as 14 witnesses namely,- P. W. 1 Gurcharndas, P. W. 2 Prem Das, P. W. 3 Inderabban (an eye-witnesses of the occurrence), P. W. 4 Ramkishan and P. W. 5 Babulal (as eye witnesses, who appeared at the scene of occurrence, when the accused-persons were running). P. W. 6 Gyanchand (in whose presence, the threat was extended by the accused to the deceased at Ramleela). P. W. 7 Butasingh (Photographer). P. W. 8 Constable Hari Singh (who carried the sealed packets from the police station to the Forensic Science Laboratory, Jaipur.). P. W. 9 Jumailkhan (motbir of the recovery of knife and lathi of Khema). P. W. 10 Laxman Das (motbir of the recovery of lathi of Puranchand Sindhi). P. W. 7 Butasingh (Photographer). P. W. 8 Constable Hari Singh (who carried the sealed packets from the police station to the Forensic Science Laboratory, Jaipur.). P. W. 9 Jumailkhan (motbir of the recovery of knife and lathi of Khema). P. W. 10 Laxman Das (motbir of the recovery of lathi of Puranchand Sindhi). P. W. 31 Sushilkumar Rediwala, P. W. 12 Uinedsingh, S. H. O., P. W. 13 Dr. S. C. Gupta and P. W. 14 Kundania, Dy. S. P. 6. The statements of the accused-persons were recorded under section 313, Cr. P. C. The accused Golu and Khema in their statements stated that they were returning on the night of Dashera from the house of his uncle after delivering sweets. When they reached near the Telephone, Exchange, the deceased along with his one unknown companion met them. The deceased was armed with a lathi and he inflicted a lathi blow on the back of Golu. When Khema told him to release Golu, then he hold him by his neck, whereby he sustained injuries on his neck. The accused Golu, thereupon, in defence of Khema inflicted a Candi blow on the back of the accused. The accused Khema, in his own defence inflicted a blow on the right side of the chest of the deceased. The deceased grappled with the accused Golu, from his back. Thereupon, the accused Khema inflicted a knife blow on the deceased from his back side Knife blows hit the right arm and the left chest of the deceased. Thereupon, the deceased fell down. None else were present at that time. The accused Khema further stated that he killed the deceased in his own defence and in defence of his brother. He had a small knife. The other accused-persons denied the entire prosecution case. The evidence was led in defence The learned Sessions Judge, after hearing the arguments convicted and sentenced the accused-persons as aforesaid. No doubt that the accused Golu, Khema, Rajendra, Jaggu had quarrelled with Sushilkumar and the deceased, at his instance, scribed the Report Ex. P/1 and accompanied him to the police station. All the seven accused-persons threat-end the deceased at Ramleela and then the deceased in the company of P, W. 1 Gurcharan Dass, P.W. 2 Premdass and P. W. 3 Inderbhan started from the Ramleela to be carried to the house of P. W. 2 Premdass. P/1 and accompanied him to the police station. All the seven accused-persons threat-end the deceased at Ramleela and then the deceased in the company of P, W. 1 Gurcharan Dass, P.W. 2 Premdass and P. W. 3 Inderbhan started from the Ramleela to be carried to the house of P. W. 2 Premdass. All the seven accused-persons came near the office of Telephone Exchange and the deceased was assaulted as stated above and the object of unlawful assembly was to kill the deceased. The fatal knife blow was inflicted by the accused Golu. The convictions were entered in view of the aforesaid findings. Feeling aggrieved against their convictions and sentences, this appeal is preferred by the accused-persons. 7. We have heard Mr. M. M. Singhvi, assisted by Mr. K. C. Gour, learned counsel for the accused-appellants and Mr. H. N. Calla, learned Public Prosecutor for the State and Mr. R. K. Mirdha, learned counsel for the complainant. 8. We may first of all notice the injuries, which have been found on the person of the deceased Prem Nagpal as well as on the persons of the accused Golu and Khema. 9. P. W. 13 Dr. S. C. Gupta, conducted the postmortem at 10 a. m. on 27. 10. 77 and found the following injuries on the person of the deceased Prem Kumar Nagpal:- 1 . Stab wound 2.5 cm x 1 cm deep into chest transversely on left side 6th intercostal space .5 cm away from sternum, edges are clean cut, have sharp angles at two extremities. 2. Incised wound 1.5 cm x .5 cm right side of the chest 7th intercostal space anterior, axillary line transversely. 3. Incised wound 1.5 cm x .5 cm posterior aspect of right forearm 5 cm above wrist joint. 4. Incised wound 2.5 cm x .5 cm x .5 cm on back right side 2 cm away from 11th thoracic spine. 5. Abrasion 2 cm x .5 cm posterior aspect right fore-arm 5 cm above wrist joint. 6. Abrasion 1 cm x .5 cm on right patella in the middle. 7. Abrasion 1 cm x 1 cm right knee joint just below patella. 8. Abrasion 1 cm x 1 cm right knee joint just below patella. 9. Abrasion 1 cm x 1 cm in the middle of left patella. 10. Abrasion 1 cm x 1 cm just above patella of left knee joint. 11. 7. Abrasion 1 cm x 1 cm right knee joint just below patella. 8. Abrasion 1 cm x 1 cm right knee joint just below patella. 9. Abrasion 1 cm x 1 cm in the middle of left patella. 10. Abrasion 1 cm x 1 cm just above patella of left knee joint. 11. Contusion 7 cm x 2 cm on the back crossing first lumber spine. INTERNAL INJURIES 1. The pericardium cut at the level of left ventricle & full of clotted blood. 2. Left ventricle punctured with a wound 1.5 cm long. According to him, the cause of death was shock due to puncture of left ventricle and excessive hemorrhage. He found the following injury on the person of Golu at 1 p.m.on 23. 10. 77:- 1. Contusion 4" x 3/4" on back obliquely crossing first lumber spine simply by blunt weapon. On the person of Khema, he found the following injury on 23. 10. 77 at 1.30 p. m.:- 1. Abrasion 2" x ⅛" on neck obliquely just above supra external notch, single by blunt weapon. 10. As the very out set, we may state that the story narrated by the witnesses who had witnessed the occurrence has been consistent and uniform right from the beginning i.e. from the time of lodging of the first information report by Gurcharandass P. W. 1. Gurcharandass P. W. 1, Premdass P. W. 2 and Inderbhan P.W. 3 are the eyewitnesses of the occurrence. They have given the complete sequence of events and vivid and graphic account of the role and the part played by each one of the accused persons. They have also deposed as to what transpired at the Ramleela and how they decided to bring Prem Nagpal to the house of P.W.2 Premdass. Considering the uniformity and consistency in the statement of the witnesses and the manner in which the occurrence has taken place, its origin and genesis, Mr. Singhvi, learned counsel for the accused-appellants with all force at his command urged that there are some circumstances appearing in the case, which are indicative and suggestive of the fact that the first information report, in fact was not lodged at the time which it is said to have been lodged. The Station House Officer Shri Ummedsingh P.W. 12 had shown that the report was lodged at 11 p.m. but according to Mr. The Station House Officer Shri Ummedsingh P.W. 12 had shown that the report was lodged at 11 p.m. but according to Mr. Singhvi it does not appear to be true. He pointed out that the first information report is a prefix and lengthy document, which is an abnormal phenomenon. It embodies the vivid account of what injury or injuries was/were inflicted by each of the accused-persons and on what part of the body of the victim. This only shows that there had been some deliberation as a result thereof a definite shape was given with regard to the role of each of the accused. He pointed out the statement of P.W. 3 Inderbhan, where he stated that the police had told that the case will be prepared on arrival of the Dy.S,P., who is at Raisinghnagar. From the statement of this witness, it would appear that till the arrival of the Dy.S.P.,no case was registered. He further pointed out that none of the eye-witnesses and the other witnesses were interrogated in the night and not till the evening of the next day. This only shows that the police was marking the time with a view to give definite shape to the case and with a view to introduce specific witnesses. When the witnesses were available in the night as well as in the day, it was essential for the investigating officer to have recorded their statements for showing fairness and bonafides in investigation. P.W. 6 Gyanchand remained with the police on 22.10.77 since mid-day, but his statement was not recorded till 7 p.m. Mr. Singhvi submitted that the witnesses are the near relations. P.W. 1 Gurcharandass, P.W. 2 Premdass and P.W. 4 Ramkishan are the real brothers. P.W. 3 Inderbnan was intimate with the deceased and according to P.W. 1 Gurcharandass P.W. 3 Inderbhan was related to the deceased as the deceased was Prem-Nagpals uncles son. P.W. 5 Babulal is also a distant relation of P. W. 1 Gurcharandass. He is his brother distantly related in the family. It was pointed out that a litigation was going on between P. W. 2 Premdass and the accused Mukhtiyarasingh prior to the occurrence and it was only compromised after the occurrence. P.W. 5 Babulal is also a distant relation of P. W. 1 Gurcharandass. He is his brother distantly related in the family. It was pointed out that a litigation was going on between P. W. 2 Premdass and the accused Mukhtiyarasingh prior to the occurrence and it was only compromised after the occurrence. He submitted that admittedly, the accused Jaggu ; although he was said to have been armed with a lathi, and the accused Balkarsingh and Mukhtiyarsingh have not been assigned any such role that they participated in the actual assault of the deceased. It was pointed out that at the time of the earlier incident, according to P.W. II Sushilkumar the accused Puranchand, Balkarsingh and Mukhtiyarsingh were not present and so far as the participation by the accused Puranchand in the assault of the deceased is concerned, it was urged that there was no occasion for the accused Puranchand to have inflicted lathi blow on the knees of the deceased, when the deceased had already been dealt with a fatal blow by by the accused Golu and as per the medical evidence, abrasion of the knees could be the result of friction and fall. As per the prosecution case, as a result of the first blow by the accused Khema on the back of the deceased, the deceased had fallen prostrate and the road was a brick road, so in the light of the medical evidence and in view of the fact that the deceased had fallen on the ground, the participation by the accused Puranchand in the assault of the deceased is rendered highly doubtful. Besides that, there was no occasion for the lathi of the accused Puranchand putting stained with blood. No recovery has been affected from the accused Balkarsingn and Mukhtiyarsingh. They were empty handed so in such a situation the possibility of ever implication can not be ruled out. These circumstances of the case cast a cloud of suspicion in the truth of the case as has been set out in first information report and adhered to by the witness at the trial. Reference was made by Mr. Singhvi, learned counsel for the accused-appellants to the decision of the Supreme Court in Ganesh Bhavan Patel and another v. State of Maharashtra (A.I.R. 1979 S. C. 135) . 11. We have given our most serious and anxious consideration to the above submissions of Mr. Singhvi. Reference was made by Mr. Singhvi, learned counsel for the accused-appellants to the decision of the Supreme Court in Ganesh Bhavan Patel and another v. State of Maharashtra (A.I.R. 1979 S. C. 135) . 11. We have given our most serious and anxious consideration to the above submissions of Mr. Singhvi. To our mind, those submissions do not stand scrutiny. In the circumstances of the case, over emphasis on the delay in the interrogation of witnesses is absolutely misplaced. P.W.l. Gurcharandass and the other witnesses are all literate. Whatever transpired was quite fresh in the mind of P.W.l. Gurcharandas. 4 The occurrence took place in sufficient light, there were tube-lights on and moon-light in the night. How the events rolled on, could have been observed by the witnesses. The witnesses have stated about the presence of seven accused-persons at the Ramleela P.W.l. Gurcharandass stated that when the deceased informed him about the threat given by the accused-persons to him, he approached the accused-persons and implored them to give up resort to violence and thereafter the three witnesses and the deceased left the place of Ramleela. When they had reached near the crossing of the Telephone Exchange, they saw all the seven accused-persons. On exhortation by the accused Khema, the deceased tried to escape but he was surrounded by the accused Jaggu, Balkarsingh and Mukhtiyarsingh as stated by the witnesses followed by a lathi blow by Khema and two knife blows by Rajendra followed by two knife blows by the accused Golu followed by lathi blows by Puran. It is worthy of consideration and significant to note that all the seven accused-persons had reached near the victim in the sequence narrated by the witnesses. When the occurrence has taken place in such a manner, it was quite probable for the witnesses to have observed the part played by each of the accused-persons. It was natural for the literate informant to have depicted the individual role of each of the accused-persons. Nothing would turn on the statement of P. W. 3 Inderbhan referred to by Mr. Singhvi. From that sentence in the cross-examination, it can not be inferred that in fact, no case was registered by the police and the case was registered only on arrival of the Dy. S. P. The witness might have stated so on the basis that in the night, no spot investigation was conducted. Singhvi. From that sentence in the cross-examination, it can not be inferred that in fact, no case was registered by the police and the case was registered only on arrival of the Dy. S. P. The witness might have stated so on the basis that in the night, no spot investigation was conducted. As regards, the delayed interrogation of the witnesses, it may be mentioned that P.W. 1 Gurcharandass was interrogated soon after recording of the first information report. The names of the witnesses has found mention in the first information report, so there was no question of introduction of the witnesses. Besides that, it has been satisfactorily explained by the investigating officer PW. 12 Ummedsingh, as to why the statements of the witnesses were not recorded earlier. The witnesses were interrogated between 7 to 8 p.m. on 22.10.77 and P.W. 11 Sushilkumar was interrogated on 23.10.77. The explanation offered by the Invest-gating Officer is that, on account of murder of Prem Nagpal, the public of the town of Vijaynagar was very much agitated and huge crowd had gathered in the night at the hospital and the public was insistent for the immediate arrest of the accused persons. It appears that the Investigating Officer remained busy in the arrest of the accused-persons in the night and also on the following day, after preparation of the Furd Surat Mal Lash and Panchayatnama (Inquest Report) In fact, the three accused-persons were arrested at 4 p.m. at Jaitsar on 22.10.77. We are convinced by a perusal of the statement of P.W. 12 Ummedsingh and the case diary about the bonafides of the investigating officer, so it cannot be said that the Investigating Officer was marking the time in order to shape the case and to introduce the witnesses. Besides that, certain circumstances appearing in the first information report and in the statement of the witnesses negative the contention or deliberation and padding. In the first information report, the informant has simply stated that P.W. 4 Ramkishan and P.W. 5 Babulal had also arrived at the scene of occurrence. They have not been made the eye-witnesses of the occurrence. When the first information report was such a detailed one, it could have been incorporated in the first information report that these two witnesses appeared at the scene of the occurrence when the accused were running. They have not been made the eye-witnesses of the occurrence. When the first information report was such a detailed one, it could have been incorporated in the first information report that these two witnesses appeared at the scene of the occurrence when the accused were running. These two witnesses have stated that they saw the seven accused-persons running from the crime scene and they have not stated about the weapons, which they were having. This is also material that no injury is attributed to the accused Jaggu, who is said to have chased the deceased along with Balkarsingh and Mukhtiyarsingh, although he was armed with a lathi. It assures me the truthful character of the report and the absence of padding. Thus, we find no force in the submissions of Mr. Singhvi that the prosecution story has been set up in the first information report, is the result of any deliberation and it was lodged not at the time at which, it is said to have been lodged. 12. The most crucial question on which elaborate arguments have been advanced on both the sides, is as to whether there was a formation of unlawful assembly with a common object to kill the deceased or the members of the unlawful assembly knew that murder of Premkumar Nagpal is likely to be committed. So far as the question of formation of unlawful assembly is concerned, if once the evidence of the eyewitnesses and P.W. 4 Ramkishan and P. W. 5. Babulal is believed, than, it will stand prove. that all the seven accused-persons formed an unlawful assembly. The threat was evidenced by the accused persons in the presence of P. W. 6 Gyanahand and the deceased communicated the threat to P. W. 1 Gurcharandass and P. W. 1 Gurcharandass failed in his attempt to bring about harmony. The threat was communicated to P.W. 2 Premdass and P. W. 3 Inderbhan. It appears that when the deceased in the company of P. W. 1 Gurcharandass, P. W. 2 Premdass and P. W. 3 Inderbhan left the place of Ramleela, the accused-persons must have observed them. They followed them after sometime and all the seven accused-persons came in a body and went away in a body after indulging in the assault of the deceased as stated by the prosecution witnesses. They followed them after sometime and all the seven accused-persons came in a body and went away in a body after indulging in the assault of the deceased as stated by the prosecution witnesses. Much arguments have been advanced regarding the false implication and involvement of Balkarsingh, Mukhtiyarsingh, Jaggu and Puranchand based on their non-participation in the assault of the deceased and enmity of P.W. 7 Premdas with Mukhtiyarsingh. When once it has been found that the first information report was recorded at 11 p. m. in which names of all the seven accused-persons appeared. Not only that, the role of Jaggu, Balkarsingh and Mukhtiyarsingh and the role of Pooranchand find mention therein. The role of Jaggu, Baikarsingh and Mukhityarsingh cannot be minimised simply because they did not participate in the actual assault of the deceased. Their presence is not negatived. They did play an important role on the call of Khema that they rushed and surrounded the deceased made it impossible for deceased to escape and made it possible that he may be availed by the assailants. The presence of Jaggu, Balkarsingh and Mukhtiyarsingh is also established from the evidence of P. W. 4 Remkishan a. and P. W. 5 Babulal. Thus, it can not be doubted rather it is amply proved that all the seven accused-persons were the members of unlawful assembly. 13. The serious controversy is about the common object or in respect of the knowledge on the part of the members of unlawful assembly that murder of Premkumar Nagpal is likely to be committed. On behalf of the prosecution, Mr. Calla and Mr. Mirdha submitted that the chain and sequence of leaving room for doubt that the common object of the unlawful assembly consisting of the seven accused-persons, was nothing short of murder. It had come to their knowledge that the deceased had scribed the report against the four accused-persons and had accompanied with Sushil Kumar at the police station and the report has been registered at 8:30 p.m. within half an hour, there after they assembled in a group of seven and extended the threat. P.W. 11 Sushil Kumar had on interrogation narrated that the four accused-persons are hoodlums. Their antecedents appear from their conduct that the four accused-persons over- turned the redi of Sushil Kumar P.W. 11. When he demanded the price of the packet of Cigarette, which was lifted by them. P.W. 11 Sushil Kumar had on interrogation narrated that the four accused-persons are hoodlums. Their antecedents appear from their conduct that the four accused-persons over- turned the redi of Sushil Kumar P.W. 11. When he demanded the price of the packet of Cigarette, which was lifted by them. Out of the seven accused-persons, three were armed with lathis and the two of them were having knives. The knife, which was with the accused Golu, looking to its size and sharp-edges, was like a dagger. The four accused-persons summoned the service of the other three as they were very much agitated and disturbed by lodging of the report against them. When the threat was extended to the deceased at the Ramleela in the presence of Gyan Chand P.W. 6 there was no voice of dissent. The threat which was extended was not only that they will see his vakalat, when he goes to his house but they will finish him. Such a threat was mentioned in the first information report, so the accused-party had proclaimed the common object to kill the deceased and it was in furtherance of the common object, the accused Golu inflicted a blow with a deadly knife, the possession of which was known to the members of the unlawful assembly as the eye-witnesses have stated that when they saw the accused-persons, they saw that the accused Golu and Rajendra were holding the knives. It was urged that there were continuous exhortations pointing out the object of the unlawful assembly and the exhortations were natural as it was an unlawful assembly and not a silent procession of mourners or peace marchers. It was an assembly of rowers and exhortation by Khema was natural as he made the exhortation with a view that the deceased may not flew away and escape. Thus, it was urged on behalf of the prosecution that each member of the unlawful assembly shared the common object of murdering the deceased or in any case, the members of unlawful assembly were well aware that Golu was armed with a deadly knife and in the back-ground, in which the occurrence has taken place, it was likely that the deceased will be done to death, 14. Mr. Mr. Siughvi, learned counsel for the accused appellants, on the other hand submitted that in the circumstances of the case and the manner in which, the occurrence took place only go to suggest and point out that the common object of the unlawful assembly was only chastisement. If the common object would have been to cause death of Premkumar Nagpal, the conduct of the assailants would have been different. Those who, had opportunity to participate in the assault would have participated in the assault. There would not be any necessity of making any exhortation what soever, when the assailants had proceeded sharing a determined common object. He also pointed out the inconsistencies and discrepancies in the prosecution case with regard to the exhortations and he also pointed out with reference to the statement of P.W. 1 Gurcharandass that he accuse d Golu must have taken out the knife at the spot and the other accused-persons must not be having the knowledge that the accused Golu is armed with a deadly knife. The earlier incident, which ultimately culminated in the occurrence, is not suggestive of the fact that the members of unlawful assembly could and would at all share the object of murdering the deceased. Mr. Singhvi submitted that it appears that the accused Golu took out the knife at the spot, which is more probable, and inflicted a fatal blow and no knowledge can be attributed to the other accused-persons even when it is found that they had the knowledge of the knife with Golu, that he will use his knife on the vital part of the body of the deceased with such force so as to take away his life. 15. Before adverting to the rival submissions, it will be useful to refer to the relevant law relating to the applicability of Section 149, IPC. In Dalel Rain Sarup and others v. Emperor (A.I.R. 1946 Lahore 222), it was observed as under:- "The phrase common object" is the central fact on which the liability of persons other than the actual doer of the act depends. The word "object" means the purpose, intention or design and, in order to make it "common it must be possessed by all. The word "object" means the purpose, intention or design and, in order to make it "common it must be possessed by all. There must be a community of an object which may, however, exist up to a certain point only, beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of the common object will vary not only according to the information at their command but also according to the extent to which he shares the community of objects, and as a consequence of this, the affect of S. 149 may be different on different members of the same unlawful assembly. The common object has to be determined with reference to the facts and circumstances of each case. The second alternative of S. 149 is intimately connected with the first. One has to go back to the question "What was the common object". The expression "knew to be likely to be committed imparts at least an expectation founded upon facts known to the members of the assembly that an offence of a particular kind committed would be committed. It means something more than a speculation that such an offence might happen to be committed. Since S. 149 deal with constructive liability, it must be construed very strictly. A person may join an unlawful assembly with an unlawful object, but it does not. necessarily follow that he endorses all that the other members say or do. Nor is he, therefore, responsible for their acts of which he was not clearly cognisant." 16. In Shambhu Nath Singh and others v. State of Bihar (A.I.R. 1960 S.C. 725) , it was observed as under:- "Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly know to be likely to be committed in prosecution of that object. But members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." 17. In that case, Baran Kahar and his two sons were ploughing and levelling the land and were sowing paddy. The crowd of persons including the 14 accused arrived on the scene. The appellant Shambhunath Singh was armed with a gun and the other accused were carrying weapons such as bhallas, garasas and lathis. Apprehending an assault, the son and wife of Baran Kahar implored the accused not to assault him, but to no effect. Shambhunath Singh fired several shots causing injuries in which Baran Kahar and his one son died. The other son and wife had also received injuries. It was found that the common object of the assembly was to cause grievous hurt and death was caused by one of the members of the assembly. Some of the accused-persons were convicted under section 326/149, I.P.C. It was observed as under:- " Where the common object of the assembly was to cause grievous hurt and death was caused by only one of the members of the assembly for which the other members were not responsible, the conviction of the other members under S. 326 read with S. 149 cannot be held illegal merely because no member of the assembly was proved to have caused grievous hurt to the victims. The offence under S. 326 is in its relation to the offence of murder a minor offence and the language used in S. 149 does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed." 18. In Fatte and others v. State of U.P. (A I.R. 1979 S.C. 1504) , the accuse in a body arrived at the scene variously armed with pharas, spear and pistol and one of the accused Ramsewak was armed with a gun, who fired the shot by which Janardan died. In Fatte and others v. State of U.P. (A I.R. 1979 S.C. 1504) , the accuse in a body arrived at the scene variously armed with pharas, spear and pistol and one of the accused Ramsewak was armed with a gun, who fired the shot by which Janardan died. The appellant Ramakant Rai is said to have provided a cartridge to Ram Sewak, so it was observed that the conclusion is inescapable that Ramakant Rai had the common object to cause murder of the deceased. No other person took part in the assault. It was held that evidence does not show that the all the appellants shared the common object of committing the murder. It was further observed that "it is true that the mere fact that no overt act has been attributed to the members of the unlawful assembly, is not sufficient to dis-prove the charge under S. 149, IPC. But this question depends on the facts of each case. In the instant case, we are satisfied that at the most the appellants other than Ramsewak Rai had merely the intention to cause an offence under S. 325, IPC and were, therefore, guilty of an offence under Section 325/149 as also of rioting". 19. From both the sides, catans of decisions have been cited. It is not necessary to refer to all these decisions for ultimately, the finding is required to be based on the facts of each case. 20. In the instant case, we may point that the earlier incident, which ultimately culminated in this horrifying incident of murder of the deceased, does not appear to be commensurate with the commission of such a grave and heinous offence. It is true that on lodging of the report by P. W. 11 Sushilkumar with the help and assistance of the deceased, these accused-persons who were involved in the earlier incident must have been agitated and disturbed, so they must have entertained an idea to teach the deceased a lesson as he came forward to provide a legal aid to P. W 11 Sushil kumar against them and it appears that only this threat was extended, if we look to the statement of P. W. 1 Gurcharandass, P. W. 2 Premdass and P. W. 3 Inderbhan that they will see his vakalat, when he goes to his house. No doubt, in the FIR. No doubt, in the FIR. this has also been made a part of the threat that the victim will be finished. This version is not stated by the witnesses in their depositions. Although, P. W. 6 Gyanchand has stated that such a threat to take away the life was given but in the light of the statements of P. W. 1 Gurcharandass. P, W. 2 Premdass and P.W.3 Inderbhan, it can not be taken that such a threat was given. From the statement of Gyanchand, it can not be taken that any scuffle took place between the seven accused persons and the deceased,so he intervened at that time when the accused-persons extended the threat P.W. 1 Gurcharandass deposed that on account of having been annoyed by scribing cut the report, the deceased told him that the accused-persons had extended the threat to him that they will see his vakalat, when he will go to his house. This witness stated that he told the witnesses P. W. 2 Premdass and P.W. 3 Inderbhan that 'Premkumar Nagpal tells him that the accused-persons are loitering to beast him. In view of the evidence of P.W. 1 Gurcharandass, P.W. 2 Premdass and P.W. 3 Inderbhan, it can not he taken that the threat was given by the accused to kill the deceased. So far as the exhortation during the occurrence is concerned, the first exhortation by Khema was to effect that the deceased may be caught hold of and given beating. At the trial, the prosecution witnesses have further deposed about the two exhortations and utterances one by the accused Khema and the other by Golu. The exhortation on the part of the accused Khema is said to be that he caught hold of the hair of the deceased and uttered to kill the deceased and he should not be spared after the blows by the accused Golu, it is said that he uttered to run away from the place of occurrence as Premkumar Nagpal had died. Both these exhortations appear to be improvements and they do not find place in the first information report. Besides that in the statements of the three witnesses, there are discrepancies. P.W. 2 Premdass does not say about the accused Golu and P.W. 3 Inderbhan does not say about the second exhortation by Khema. Both these exhortations appear to be improvements and they do not find place in the first information report. Besides that in the statements of the three witnesses, there are discrepancies. P.W. 2 Premdass does not say about the accused Golu and P.W. 3 Inderbhan does not say about the second exhortation by Khema. So on the basis of the evidence relating to exhortation, it cannot be found that the common object of the unlawful assembly was to kill the deceased. For determination of common object of the unlawful assembly, the conduct of each of the members of unlawful assembly is also material. It is significant that the accused Jaggu did not use his lathi, accused Jaggu, Balkarsingh and Mukhtiyarsingh did not touch the body of the deceased, when it is they, who were ahead of all. The accused Khema has also used his lathi once and did not report. Rajendra caused only two minor injuries with knife. It is only at that stage that the accused Golu used his deadly knife inflicting it on the vital part of the deceased. In our opinion, if the common object of all, would have been to kill the deceased, the conduct of such of the members of the unlawful assembly would have been different. In any case, Jagdish would have certainly used his lathi. We may, however, make it clear that non-participation in the assault does not necessarily mean non-sharing of the common object, if the common object is otherwise clear and avowed. It is the back ground in which the occurrence had taken place, which is material, which gives an idea as to what could be the common object of the assembly. We may not lose sight of the fact that a trifle had given rise to the occurrence. The deceased was not a deadly enemy of the appellants. Inference or conclusion of sharing a particular object should only be drawn when such a conclusion is irresistible and inescapable also it involves an incalculable danger as the innocents would be punished for the state of mind, which they never had. 21. The deceased was not a deadly enemy of the appellants. Inference or conclusion of sharing a particular object should only be drawn when such a conclusion is irresistible and inescapable also it involves an incalculable danger as the innocents would be punished for the state of mind, which they never had. 21. It is very much stressed on behalf of the prosecution that at least this knowledge on the part of each member of the unlawful assembly can legitimately be attributed that there is every likelihood that the deceased would be killed in the occurrence, as every member of the assembly knew that the accused Golu was armed with a deadly knife. He was holding the knife openly, so at their command, they had the information that Golu is so armed. That may be so, although, arguments have been advanced that they had no such information at their command as the knife was taken out immediately at the spot as stated by P. W. 1 Gurcharandass. In our opinion, such a knowledge can not be inferred on the part of every member of the assembly that Golu will use the deadly weapon in a deadly manner. At the most, only this much knowledge can be attributed to each member of the assembly that the knife would be used to cause grievous hurts. We may mention that we can not agree with the contention of Mr. Singhvi that the knife was taken out by the accused Golu at the spot. P. W. I Gurcharan Dass has stated that after inflicting the first blow, the accused Golu took out the knife and inflicted the second blow. What the witness means is that the knife was taken out from the wound and not from the pocket of the trouser. Thus, considering the evidence and circumstance of the case, we are of the opinion that the common object of the unlawful assembly extended at the most to the causing of grievous hurts or only this much knowledge can be attributed to the members of the unlawful assembly. In our opinion the common object did not extend to the killing of the deceased nor such knowledge can be attributed to the members of the assembly that the death is likely to be caused. In our opinion the common object did not extend to the killing of the deceased nor such knowledge can be attributed to the members of the assembly that the death is likely to be caused. In view of this finding, the conviction of the appellants other then Golu under Sec. 302/149, IPC cannot be sustained, they can only be held to be guilty for the offence under section 326/149, IPC. 22. We may also refer to some more insubstantial arguments, which have been advanced before us. Mr. Singhvi urged that the injuries on the person of the two accessed-persons have not been explained by the prosecution and the occurrence must have taken place in the manner as stated by the accused Golu and Khema and not in the manner alleged by the prosecution. It may stated that the injuries on the two accused-persons are only miner in nature. They might have appeared at the hands of the witnesses and the witnesses may have proceeded to conceal their part. Admittedly, the witnesses tried to intervene and catch hold of the weapons of the assailants individually and in that process, the injuries might have appeared on the person of Golu and Khema. The chain and sequence of events and the background in which the occurrence has taken place, clearly suggest that the appellants were the aggressors and the victim was not the aggressor. No motive has come in the statement of these two accused persons as to why the deceased assaulted them. The accused Golu stated that why Premkumar Nagpal attacked them, is not known. The statement of these accused-persons, to us, appears to be probably false. The accused Golu's own statement giving no motive, is sufficient to discredit their version. 23. The participation of the three accused-persons Golu, Khema and Puran chand is further established by the evidence of recovery of the weapons and clothes as already stated above For which, it has been emphatically urged by Mr. Gour that there is no evidence on record that the sealed packets remained intact at the Malkhana till they were delivered to Hari Singh P. W. 8 for being taken to the Forensic Science Laboratory. The S.H.O. has not stated that the seals were not tempered at the Malkhana. Gour that there is no evidence on record that the sealed packets remained intact at the Malkhana till they were delivered to Hari Singh P. W. 8 for being taken to the Forensic Science Laboratory. The S.H.O. has not stated that the seals were not tempered at the Malkhana. It is true that the prosecution did not lead any evidence that the seals over the sealed packets remained in the malkhana were not tempered with. The only evidence led is that the sealed packets were delivered to Harisingh P. W. 8 and the seals were intact till the sealed packets were delivered at the Laboratory as stated by Harisingh. It was pointed out with reference to the report of the Forensic Science Laboratory Ex. P. 48 that the report was sent with reference to the S.Ps Letter No. 2640 dated 14.11.1977. It shows that the forwarding letter of the S.P. is dated 14.11.1977 and the sealed packets must have been received at the S.P. Office before that date and the statement of Harisingh does not appear to be true when he states that he took the packets from the police station, Vijay Nagar on 16.11.77. In this connection, it may be mentioned that Harisinghs statement remained uncrossed. It may be that the forwarding letter might have been obtained earlier. We may mention that there are no suspicious circumstances on the basis of which, the Chemical and Serologist reports may be excluded from consideration. Had there been any suspicious circumstances, then the question of lack of evidence that the seals remained untempered, would have assumed significance. To us, it appears that the evidence in this regard was not led as there was overwhelming convincing oscular evidence. 24. However, it can not be overemphasised that the law is well settled for more than two decades that the prosecution should lead evidence that the seal packets remained intact and untempered till they reached the concerned hands for expert explanation. It is the duty of the Public Prosecutor to be vigilant while leading the prosecution evidence to examine such evidence. Looking to the nature of the evidence, which is formal in character, they may even submit affidavits of the concerned witnesses. It is the duty of the Public Prosecutor to be vigilant while leading the prosecution evidence to examine such evidence. Looking to the nature of the evidence, which is formal in character, they may even submit affidavits of the concerned witnesses. The trial courts are also required to see that such evidence is led and questions are put to the witnesses or if need be, taken in the form of affidavits and an opportunity of cross-examination be given to the accused. 25. In the present case, even if the corroborative evidence of recovery of blood-stained articles is excluded, still there is credible evidence on record as already considered above, which connect the accused with the commission of the offence. 26. In view of our findings on the applicability of Sec. 149, IPC to the fact of the present case, the appeals of the appellants other than Golu deserve to be allowed and we hold that all the appellants other than Golu are guilty of the offence under sec. 326/149, IPC. We maintain the convictions and sentences of the appellant Golu. We also maintain the convictions and sentences of the appellants namely Khema alias Harbanslal, Puranchand, Rajendra Kumar, Jaggu for the offence under section 148, IPC. Corning to the question of sentence, we may mention that the appellants Khema, Rajendrakumar and Puran Chand have remained behind the bar for more than 5 years and at present, they are serving out the sentence. In our opinion, ends of justice would be served if they are sentenced to the period of their custody for the offence under sec. 326/149, IPC. The appellants Balkarsingh, Mukhtiyarsingh and Jaggu are on bail and they have remained in custody for a total period of about 9 months. In our opinion, no social purpose would be served, in case they are sent back to jail after a lapse of about five and half years of the occurrence. They were bailed out by this Court about 4 months 12 days after the judgement of the trial judge. In the interest of justice, it would be proper that they may be sentenced under sec. 326/149, IPC to the period of their custody and to a fine of Rs. 4,000/- each, in default of payment of fine to undergo 2 years rigorous imprisonment. In the interest of justice, it would be proper that they may be sentenced under sec. 326/149, IPC to the period of their custody and to a fine of Rs. 4,000/- each, in default of payment of fine to undergo 2 years rigorous imprisonment. We are taking a liberal view in their sentence in view of the fact that they did not participate in the actual assault. The sentence of these accused-persons under sec. 148 and 1.47, IPC can be reduced to their custody, which may run concurrently with the sentence under section 326/149, IPC. 27. Accordingly the appeal of the appellant Golu is dismissed. The appeal of the appellants namely Khema, Rajendrakumar, Puranchand, Balkarsingh, Mukhtiyarsingh and Jaggu is partly allowed. Their convictions and sentences under section 302 read with 149, IPC are set aside. They are convicted for the offence under section 326/149, IPC and each one of them is sentenced to the period of their custody and incarceration. The appellants Balkarsingh, Mukhtiyarsingh and Jaggu are further sentenced to a fine of Rs. 4,000/- each under section 326/149, IPC, in default of payment of fine, each one of them shall undergo 2 years rigorous imprisonment. The convictions and sentences of the appellants Khema, Rajendrakumar and Puranchand under sec. 148, IPC are maintained but the sentence awarded under this section shall run concurrently with the substantive sentence under section 326/149, I.P.C. The appellant Khema, Puranchand and Rajendra Kumar shall be released forthwith, if not required in any other case. The sentence of the appellants Balkarsingh, Mukhtiyarsingh and Jaggu for the offences under sections 148 and 147 IPC is reduced to their custody and shall run concurrently. They are already on bail. Six weeks time is allowed to them for depositing the amount of fine. In case fine is not deposited within the aforesaid time, they shall immediately surrender to serve out the sentences awarded to them, in default of payment of fine. Three fourth of amount of fine, if deposited, shall be paid to the successors of the deceased.Appeal of Golu dismissed/Appeals of the appellants partly allowed. *******