Judgment BYAS,J. ( 1 ) THE appellants are eight in number and the appeal is directed against the judgment of the learned Additional Sessions Judge, Sri Ganganagar dated Jan. 24, 1980. By the judgment aforesaid, five of them, viz. accused Hajarasingh, Biharsing, Balasingh, Kartarsingh and Ragusingh were convicted under S. 148, 302, 302/149, 307, 307/149, I. P. C. while the remaining three viz. , Mangisingh alias Mangalsingh, Kuldeepsingh alias Devisingh and Ajayab Singh were convicted under Ss. 148, 302/149 and 307/149, I. P. C. and each was sentenced to varying terms of imprisonment, the highest being of the imprisonment for life under S. 302 or 302/149, I. P. C. ( 2 ) THE incident is alleged to have taken place at about 8. 30 p. m. on Dec. 5, 1978 in a street at Mandi Padampur (district Sri Ganganagar), in which two persons were hacked to death and the third was severely injured. The appellants are residents of Mandi Padampur and are inter se closely related. Accused Bikarsingh, Bagusingh and Azayabsingh are the sons of accused Hajarasingh. Accused Kartarsingh is the son-in-law of accused Hajarasingh while accused Kuldeepsingh alias Devisingh is the son of Kartar Singh. Accused Mangalsingh alias Mangisingh is the son of accused Azayabsingh. The two deceased-victims Bacchan Singh and Mahendrasingh were also residents of Mandi Padampur. The house of the deceased Bacchansingh is situate a few feet away from the house of accused Hajarasingh in the same street. Four/five days before the incident, accused Dalasingh and Bikarsingh and the deceased Bacchansingh had met in some feast and fallen out. The suggestion is that the accused persons thereafter got displeased with the deceased Bacchansingh. ( 3 ) THE deceased Mahendrasingh owned a truck R. S. K. 9567. He had employed the deceased Bacchansingh as the driver of the truck and PW 1 Sarjeetsingh as the Cleaner on it. They had taken the truck to Anoopgarh on that day and returned in the evening at about 8. 30p. m. They came in the truck to the house of Bacchansingh and stopped it outside his house. Deceased Mahendrasingh was driving the truck. When the truck was stopped outside the house of Bacchansingh, he got down. At that very moment, accused Bikarsingh, Hajarasingh and Dalasingh came there with Gandasies in their hands. The other appellants, who were armed with lathies and Barchies, also, came closely behind them. Deceased Mahendrasingh was driving the truck. When the truck was stopped outside the house of Bacchansingh, he got down. At that very moment, accused Bikarsingh, Hajarasingh and Dalasingh came there with Gandasies in their hands. The other appellants, who were armed with lathies and Barchies, also, came closely behind them. Accused Dalasingh, Bikarsingh and Hajarasingh started inflicting blows to Bacchansingh with their Gandasies. Numerous blows were struck to him by them. Bacchansingh fell down. Mahendrasingh got down from the track and implored the accused persons not to beat Bacchan Singh. Thereupon accused Dalasingh, Bikarsingh and Hajara Singh opened an onslaught on Mahendrasingh and struck blows to him with their Gandasies. Mahendrasingh also fell down. Bacchansingh and Mahendrasingh were struck blows even thereafter. PW 1 Sarjeetsingh asked the accused persons not to beat Bacchansingh and Mahendrasingh. He too was not spared and landed with blows by accused Bikarsingh and Hajara Singh. Hearing the noise of violence, PW 2 Gurdeo Kaur wife of Bacchansingh and his daughter Mst. Bindar Kaur (PW 3) came out of the house and requested the accused persons not to kill Mahendrasingh and Bacchansingh. They were threatened of dire consequences and were thus kept away. It is alleged that Bacchansingh and Mahendrasingh passed away instantaneously on the spot and their dead bodies were taken by the accused persons to their house. There was profuse bleeding from the wounds of Mahendrasingh and Bacchansingh. PW 1 Sarjeetsingh managed to escape and ran towards the cinema house. In the way, he met Harbhajansingh and Kantasingh who took him to a private dispensary. The doctor of the private dispensary took him to the Government Hospital, where he was admitted for treatment. PW 4 Dr. B. N. Chaudhary, who was on duty, addressed letter Ex. P 3 to the Police stating therein that Sarjeetsingh was admitted in the hospital. The Station House Officer Sujansingh (PW 9) immediately went to the hospital and recorded the statement Ex. P 1 of Sarjeetsingh at about 9. 30 p. m. In Ex. P 1, Sarjeetsingh (PW 1) narrated in details how the incident had taken place. Ex. P 1 was treated as the first information report and the case was registered thereon. The S. H. O. arrived on the spot in that very night. He found truck R. S. K. 9567 standing outside the house of Bacchansingh in starting condition. P 1, Sarjeetsingh (PW 1) narrated in details how the incident had taken place. Ex. P 1 was treated as the first information report and the case was registered thereon. The S. H. O. arrived on the spot in that very night. He found truck R. S. K. 9567 standing outside the house of Bacchansingh in starting condition. He further found the dead bodies of Mahendrasingh and Bacchansingh in the Bethak of accused Bikarsingh. The Station House Officer posted police Constables at the place of incident and the Bethak of accused Bikarsingh. Since it was night, nothing else could be done by the Station House Officer. In the next morning, the S. H. O. and the Deputy Superintendent of Police Mr. Surja Ram (PW 10) arrived on the spot and inspected the site. The investigation was taken up by the Deputy Superintendent of Police Mr. Surja Ram. He prepared the inquest reports of the victims dead bodies. The autopsy on the victims dead bodies was conducted by Dr. Chaudhary at about 1. 30 p. m. He found the following injuries on the victims dead bodies : -on the dead body of Bacchansingh : - external-1) Incised wound 3" X 1" X 1" root of the left thumb and palm. Left thumb cut. Injury was grievous and by sharp weapon. 2) Incised wound 4" X 1" X 2" nose and upper jaw cut over nose and maxilla. Injury was grievous by sharp weapon. 3) Incised wound 1" X " X " frontal bone cut above eye brows. Grievous sharp. 4) Incised wound 2" X " X bone cut. Right lateral side of the frontal bone. Grievous sharp. 5) Incised wound 5" X 1" X up to brain over occipital region. Injury was grievous by sharp weapon. 6) Incised wound 4" X 1" X bone cut behind left ear. Grievous sharp. 7) Incised wound 4" X 1" X 10" over frontal temporal and mastoid cut left ear cut grievous sharp. 8) Incised wound 3" X " X up to bone cut left lateral side of the frontal grievous sharp. 9) Incised wound 6" X 1" X bone cut frontal and both the parietal middle of the head. Grievous sharp. 10) Incised wound 2" X 1" X bone cut right parietal grievous by sharp weapon. 11) Bruise with abrasion 10" X 4" on the back left side. Simple blunt. 9) Incised wound 6" X 1" X bone cut frontal and both the parietal middle of the head. Grievous sharp. 10) Incised wound 2" X 1" X bone cut right parietal grievous by sharp weapon. 11) Bruise with abrasion 10" X 4" on the back left side. Simple blunt. INTERNAL 1) Brain membrane cut at the sites of the deep injuries. 2) Severe cuts on brain at the site of deep injuries. ( 4 ) IN the opinion of Dr. Chaudhuary, the cause of death of Bacchansingh was multiple injuries on the head causing severe haemorrhage, shock and coma. The injuries were ante-mortem. On the person of Mahendrasingh : - external1) Incised wound 5" X 1" X 2" over right cheek ear to nose maxilla cut grievous sharp. 2) Incised wound 6" X 1" X up to brain over right frontal temporal and parietal region bones cut. Grievous by sharp weapon. 3) Incised wound 5" X 2" X up to brain over right mastoid and occipital bone. Bones cut. It was grievous by sharp weapon. 4) Incised wound 2" X 1" X " below left angle of the mandible. Angles have cut. Injury was grievous by sharp weapon. 5) Incised wound 7" X 2" X up to brain over left side occipital temporal and mastoid cut. Injury was grievous and by sharp weapon. 6) Incised wound 4" X 1" X 1" over left ear temporal and mandible joint cut grievous and caused by sharp weapon. 7) Two bruises 7" X 1" each over both the buttocks simple by blunt weapon. 8) Two bruises 8" X 1" each on the back right arm. Injury was simple weapon. 9) Bruises with abrasion 6 on the back left lateral side. Injury was simple by blunt weapon. 10) Two incised wounds 3" X " X " each over left scapulla. It was simple caused by sharp weapon. INTERNAL 1) Brain membrance cut at the site of deep injuries. 2) Several cuts at the site of deep injuries on the brain. ( 5 ) THE injuries were ante-mortem. The doctor was of the opinion that the cause of death was multiple injuries to the head causing severe haemorrhage, shock and coma. The post-mortem reports issued by him are Ex. P 6 and Ex. P 7. ( 6 ) THE injuries of Sarjeetsingh (PW 1) were examined at 9. 30 p. m. on Dec. The doctor was of the opinion that the cause of death was multiple injuries to the head causing severe haemorrhage, shock and coma. The post-mortem reports issued by him are Ex. P 6 and Ex. P 7. ( 6 ) THE injuries of Sarjeetsingh (PW 1) were examined at 9. 30 p. m. on Dec. 5, 1978 by Dr. Chaudhary. He found the following injuries on his person :-1. Incised wound 1" X " X 1/3" posterior lateral side of the left forearm. 2. Lacerated wound with swelling " X " X " over cheek left lateral side of the nose. 3. Incised wound 6" X 1" X 1" over posterior side and sole of the left heel. ( 7 ) ON X-ray examination, injury No. 3 was found to be grievous in nature. The injuries Nos. 1 and 3 were caused by some sharp edged weapon while injury No. 2 was caused by some blunt weapon. The injury report is Ex. P 4. ( 8 ) THE accused persons were arrested and in consequence of the informations furnished by them, Gandasies and lathies were recovered. The blood-stained clothes of the deceased-victims were also seized and sealed. On the completion of investigation, the police presented a challan against the eight appellants and one Mst. Nihar Kaur wife of accused Hajarasingh in the Court of Judicial Magistrate, Karanpur, who committed the case for trial to the Court of Session. The learned Sessions Judge framed charges under Ss. 147, 148, 302, 302/149, 307 and 307/149, I. P. C. against them, to which they pleaded not guilty and demanded the trial. Three of the accused persons viz. Bikarsingh, Baggu Singh and Mangalsingh alias Mangisingh admitted their presence on the place of occurrence and the remaining six denied their presence and pleaded alibi. According to accused Bikarsingh, Ragusingh and Mangalsingh, the prosecution has put forward only a truncated and lopsided version of the incident, suppressing the real facts of the incident. It was pleaded by them that accused Bikarsingh was returning to his house from his field. When he happened to pass outside the house of deceased Bacchansingh, he found Bacchansingh, Mahendrasingh and PW 1 Sarjeetsingh standing there in drunken state. Bacchansingh and Mahendrasingh had lathies while PW 1 Sarajeetsingh had Gandasi. They started beating him and he raised cries. Hearing his cries, accused Bagusingh and Mangisingh alias Mangalsingh came there. When he happened to pass outside the house of deceased Bacchansingh, he found Bacchansingh, Mahendrasingh and PW 1 Sarjeetsingh standing there in drunken state. Bacchansingh and Mahendrasingh had lathies while PW 1 Sarajeetsingh had Gandasi. They started beating him and he raised cries. Hearing his cries, accused Bagusingh and Mangisingh alias Mangalsingh came there. Bagusingh has a lathi and Mangisingh had a Gandasi. In order to save Bikarsingh, accused Bagusingh and Mangalsingh alias Mangi Singh inflicted blows to Bacchansingh, Mahendrasingh and Sarjeetsingh (PW 1 ). There was a free exchange of blows from both the sides. Mahendrasingh and Bacchansingh fell down and passed away then and there. It was further stated by them that they dragged the dead bodies and took them to their house so that a false case may not be foisted on them that the occurrence had taken place in the house of Bacchansingh. These accused persons have thus put forward a plea of right of private defence. In support of its case, the prosecution examined thirteen witnesses and filed some documents. In defence, one witness Dr. N. K. Sharma (DW 1) was examined. On the conclusion of trial, the learned Sessions Judge found no incriminating evidence against accused Mst. Nihal Kaur. She was, therefore, acquitted of the offences she was charged with. The prosecution case was taken substantially true as against the appellants. Their pleas of alibi and self defence were discarded as untrue. Aggrieved against their conviction, the eight accused have taken this appeal. ( 9 ) BEFORE dealing with the contentions raised on behalf of the appellants, it would be proper to notice the injuries found on the person of the three accused. Their injuries were examined on Dec. 8, 1978 i. e. after their arrest, by Dr. Chaudhary. He found the following injuries : -on the person of accused Mangalsingh alias Mangi: -1. Iacerated wound 1" X " X slight pus formation healing started over right parietal bone. 2. Bruises with abrasion " X " over the 2nd finger near toe. 3. Three linear abrasions 6" X " on the back right lateral side. 4. Bruises with abrasion 1" X " over left scapulla. On the person of accused Bagusingh : -1. Bruise with slight depression swelling around 2" X 1" over left parietal bone. 2. Bruises with abrasion " X " over the 2nd finger near toe. 3. Three linear abrasions 6" X " on the back right lateral side. 4. Bruises with abrasion 1" X " over left scapulla. On the person of accused Bagusingh : -1. Bruise with slight depression swelling around 2" X 1" over left parietal bone. The injury was by blunt weapon and simple in nature and was of the duration of more than 48 hours. On the person of accused Bikarsingh : -1. Incised wound 1" X " X there was pus formation healing process started. Posterior side of the left wrist joint. 2. Bruise with abrasion and swelling 1" X 1" over posterior middle side of the left wrist joint. 3. Bruise with abrasion with swelling 1" X -" over forehead left lateral side. 4. Bruise with abrasion 1" X " on the back left side. ( 10 ) THE injuries found on the person of accused Mangal Singh and Bagusingh were simple caused by some blunt weapon. Injury No. 1 on the person of accused Bikarsingh was caused by some sharp weapon while the remaining were caused by some blunt weapon. The injuries were simple in nature. The duration of the injuries was stated to be more than forty-eight hours. The injury reports issued by Dr. Chaudhary are Ex. D 4, Ex. D 5 and Ex. D6. ( 11 ) WE have heard Mr. Ram Rakh Vyas learned counsel appearing for the appellants and Mr. L. S. Udawat - the learned Public Prosecutor. We have also gone through the case file carefully. ( 12 ) IN assailing the conviction of the appellants, two contentions were raised by Mr. Vyas, viz. (1) the finding of the trial Court that the five accused Hajarasingh, Ajayabsingh, Kartarsingh, Kuldeepsingh and Dalasingh were present on the scene of occurrence and participated in inflicting blows to the two deceased persons and PW 1 Sarjeetsingh is wholly erroneous and unsustainable and (2) even if the presence of all the eight appellants at the scene of occurrence is accepted as established, they committed no offence since what they did was in the exercise of the right of private defence. ( 13 ) SINCE the contentions raised relate to the factual aspect of the occurrence, it would be proper to read the evidence of the ocular witnesses. ( 13 ) SINCE the contentions raised relate to the factual aspect of the occurrence, it would be proper to read the evidence of the ocular witnesses. There are three ocular witnesses speaking about the incident. They are PW 1 Sarjeetsingh, PW 2 Smt. Gurudeo Kaur and PW 3 Mst. Bindar Kaur. PW 2 Mst. Gurudeo Kaur is the wife of the deceased victim Bacchansingh and PW 3 Bindar Kaur is his daughter. PW 1 Sarjeetsingh was with the deceased-victims and sustained injuries in the incident. ( 14 ) PW 1 Sarjeetsingh stated that at about 8. 30 p. m. on the day of the incident, he was in truck R. J. K. 9567 as Cleaner. The deceased Mahendra Singh, who was the owner of it, was driving it. The deceased Bacchansingh was also there in the truck. They went in the truck to the house of deceased Bacchansingh to take meals there. When the truck reached out-side the house of Bacchansingh, Bacchan Singh got down. The truck was in the starting condition. Its lights were on. As soon as Bacchansingh got down from the truck, accused Bikarsingh, Hajarasingh and Dalasingh came there armed with Gandasies. They were closely followed by ten persons who were armed with lathies and Farshies. Accused Bikarsingh. Dalasingh and Hajarasingh started inflicting blows to Bacchansingh with their Gandasies. Mahendrasingh got down from the truck and implored the miscreants not to beat Bacehansingh. Thereupon accused Dalasingh, Bikarsingh and Hajarasingh started landing blows to Mahendrasingh with their Gandasies. The blows were struck on the heads of Bacchansingh and Mahendrasingh. Mahendrasingh and Bacchansingh fell down. The witness further stated that when he tried to intervene, he too was not spared. Accused Hajarasingh struck and wielded Gandasi to strike a blow on his head. He raised his left hand to intercept the blow. The blow fell on his left hand. One of the miscreants struck a blow of lathi on his mouth. He took to heals. While he was trying to run away, accused Bikarsingh struck a blow of Gandasi on his left ankle. Thereafter all the miscreants continued to inflict bows on Bacchansingh and Mahendrasingh. The witness further stated that he managed to escape and ran towards the cinema house. He took to heals. While he was trying to run away, accused Bikarsingh struck a blow of Gandasi on his left ankle. Thereafter all the miscreants continued to inflict bows on Bacchansingh and Mahendrasingh. The witness further stated that he managed to escape and ran towards the cinema house. In the way, he met Harbhajan Singh and Kantasingh (PW 5), who took him first to a private dispensary of one doctor and from there to the Government Hospital, where he was admitted for treatment. The police came there and recorded his statement Ex. P 1. The presence of this witness at the scene of occurrence has been admitted by accused Mangalsingh, Bagusingh and Bikarsingh in their statements under S. 313, Cr. P. C. Moreover, he is an injured person, whose presence on the spot is not open to any suspicion. The witness was cross-examined at length and he remained consistent throughout that accused Dalasingh, Bikarsingh and Hajarasingh struck blows with their Gandasies on the heads of the hapless victims Bacchansingh and Mahendrasingh. He is also consistent that he was inflicted blows by the accused Hajarasingh and Bikarsingh with their Gandasies. The same version has been given by him in the first information report Ex. P 1, which was recorded in the hospital. It may be mentioned that the statement Ex. P 1 was recorded at about 10. 40 p. m. , that is, nearly within two hours of the occurrence. Before the statement Ex. P 1 was recorded, there was none to prompt PW 1 Sarjeetsingh to state and introduce false facts. He bears no grudge or ill-will against the appellants. There is nothing in his statement to put it at a discount or suspect what he testified on oath. From what he stated, it stands established that accused Dalasingh, Bikarsingh and Hajarasingh struck blows on the heads of deceased-victims Mahendrasingh and Bacchan Singh and that he too was inflicted blows by accused Hajara Singh and Bikarsingh. Relating to the remaining five appellants, his testimony is not much helpful because they were not named by him. His evidence against the remaining five appellants is vague and omnibus. ( 15 ) PW 2 Mst. Gurudeo Kaur and PW 3 Mst. Bindar Kaur deposed that when the truck reached their house, they came out. Bacchan Singh got down from the truck. His evidence against the remaining five appellants is vague and omnibus. ( 15 ) PW 2 Mst. Gurudeo Kaur and PW 3 Mst. Bindar Kaur deposed that when the truck reached their house, they came out. Bacchan Singh got down from the truck. As soon as he got down from the truck, accused Kartarsingh, Bagusingh and Dalasingh caught hold of him. Accused Hajarasingh, Bikarsingh and Dalasingh, who were armed with Gandasies, started blows on the head of Bacchansingh with their weapons. Thereafter accused Bagusingh and Kartarsingh struck blows with their lathies to Bacchansingh. Mahendrasingh got down from the truck and asked the miscreants as to why they were beating Bacchansingh. Thereupon accused Hajarasingh, Dala Singh and Bikarsingh started inflicting blows on the head of Mahendrasingh with their Gandasies. Sarjeetsingh (PW 1) also got down from the truck. He was struck blows with Gandasies by accused Hajarasingh and Bikarsingh. Sarjeetsingh (PW 1) managed to escape. The witnesses further stated that they requested the miscreants not to strike blows to Bacchan Singh and Mahendrasingh, but their request fell on the deaf ears. The accused thereupon threatened them with dire consequences if they dared to intervene. They further stated that they got frightened and went back in the house. They remained there in the house throughout the night and nobody came to help them. Next morning, the police came and contacted them. ( 16 ) BOTH these witnesses Mst. Gurudeo Kaur and Mst. Bindar Kaur were cross-examined at length, but nothing could be elicited from them which may make their testimony unworthy of belief or credence. It is true that one of them is the widow and the other is the daughter of deceased-victim Bacchansingh. But their testimony cannot be discarded merely on this ground of their close relationship with the deceased Bacchansingh. Their presence on the spot is also not open to suspicion because the occurrence had taken place on the road just out-side their house. A suggestion was put to them in cross-examination that in the night of the occurrence they were not at their house but were at the house of Karnelsingh Jeetsingh and from there they returned only in the next-morning. Both these witnesses categorically denied the suggestion. ( 17 ) IT was argued by Mr. Vyas that PW 2 Mst. Gurudeo Kaur and PW 3 Mst. Bindar Kaur have been falsely introduced as ocular witnesses of the incident. Both these witnesses categorically denied the suggestion. ( 17 ) IT was argued by Mr. Vyas that PW 2 Mst. Gurudeo Kaur and PW 3 Mst. Bindar Kaur have been falsely introduced as ocular witnesses of the incident. Their names have not been mentioned in the first information report Ex. P 1 and this omission makes their presence heavily doubtful. The contention has no substance. It appears that when blows were landed to the deceased-victims and Sarjeetsingh (PW 1), who was hardly of eighteen/twenty years in age at that time, got bewildered and confused. Since blows were landed to him with Gandasies, he got badly frightened and took to heels. He was in a state of confusion and could not have noticed the presence of these two witnesses. There is nothing to accept the suggestion put to these two lady witnesses in their cross-examination they they were at the house of Karnelsingh Jeetsingh in that night and not at their house. The Station House Officer Sajan Singh (PW 9) visited the site at about 11. 00 p. m. He found the house of Bacchansingh bolted from inside. He knocked at the door but no response came. He denied the suggestion put to him in cross-examination that the house of Bacchansingh was locked from out-side and there was none in his house. There is, thus, nothing on record to make the presence of these two lady witnesses doubtful. Since the occurrence had taken place out-side their house, their presence on the scene of occurrence was quite natural and is not open to any doubt. ( 18 ) WE have carefully gone through the statements of these two lady witnesses. As regards the accused Bikarsingh, Hajarasingh and Dalasingh, they have categorically stated that they were armed with Gandasies and inflicted blows on the heads of Bacchansingh and Mahendra Singh with their weapons. The role assigned to accused Bikarsingh, Hajarasingh and Dalasingh by them is consistent throughout. Accused Mangalsingh and Bagusingh have admitted their presence on the spot and have also admitted their landing blows to the two deceased-victims. ( 19 ) HOWEVER, the evidence of these two lady witnesses in respect of accused Kartarsingh, Ajayabsingh and Kuldeep Singh is omnibus. Both these witnesses did not state that these three accused persons landed blows to any of the deceased-victims or Sarjeetsingh (PW 1 ). ( 19 ) HOWEVER, the evidence of these two lady witnesses in respect of accused Kartarsingh, Ajayabsingh and Kuldeep Singh is omnibus. Both these witnesses did not state that these three accused persons landed blows to any of the deceased-victims or Sarjeetsingh (PW 1 ). They have also not stated that these three accused exhorted, excited or encouraged otherwise the other five accused persons to land blows to the victims. These two witnesses have assigned no role to accused Kartarsingh, Ajayabsingh and Kuldeepsingh except that they had also arrived on the spot. No overt act has been attributed to them. ( 20 ) ON a careful scrutiny of the evidence of the three eye witnesses PW 1 Sarjeetsingh, PW 2 Mst. Gurudeo Kaur and PW 3 Mst. Bindar Kaur, the facts which stand proved are :-1) Accused Bikarsingh, Hajarasingh and Dalasingh were armed with Gandasies. Accused Mangalsingh and Bagusingh had lathies. Accused Bikarsingh, Hajarasingh and Dalasingh inflicted blows on the heads and other parts of the deceased-victims Bacchansingh and Mahendrasingh with their Gandasies;2. Accused Mangalsingh, and Bagusingh struck blows to the deceased-victims with their lathies; and3) Accused Kartarsingh, Ajayabsingh and Kuldeep Singh took no partin the occurrence and landed blows to none. They were merely standing on the spot and did nothing. They took no part - directly or indirectly - in the incident. ( 21 ) IT may be pointed out at this stage that accused Ajayabsingh and Kuldeepsingh have been convicted under Ss. 302 and 307 read with the aid of S. 149, I. P. C. and accused Kartarsingh has been convicted under S. 302 and in alternative under S. 302/149, I. P. C. We have discussed above that the evidence against them, even if taken at the highest, is simply that they were present on the spot and did nothing further. They gave no exhortation, to the other accused persons. The question, therefore, arises whether they can be taken to be the members of the unlawful assembly? It is true that they are closely related to the accused persons, but simply because they are close relatives of the other accused persons, they cannot be taken to be the members of the unlawful assembly. Something more is required than the mere presence to make one a member of the unlawful assembly. It is true that they are closely related to the accused persons, but simply because they are close relatives of the other accused persons, they cannot be taken to be the members of the unlawful assembly. Something more is required than the mere presence to make one a member of the unlawful assembly. It may be remembered that the house of these three accused persons is situate only thirty/forty yards away from the place of occurrence. As such, their presence on the scene of occurrence may be for more than one reason. As such, their presence on the scene of occurrence should be taken to be innocent unless the circumstances show otherwise. Since the place of occurrence is quite near to their house, the possibility of their coming at the spot out of curiosity on hearing the noise cannot be ruled out. ( 22 ) THE mere presence of a person in or near the unlawful assembly is not sufficient to show that he was also a member of the unlawful assembly. It must be proved that he also shared the common object of the unlawful assembly. The burden lies on the prosecution to prove this fact. It is a question of fact in each case whether a person happens to be innocently present at the place of occurrence or was actually a member of the unlawful assembly. One may be present at the place of occurrence innocently and out of curiosity. Simply because one is present in or near the unlawful assembly, it cannot be assumed that he was a member of that unlawful assembly. It is true that an overt, act on the part of that person present is not necessary to render him the member of the unlawful assembly. But the question remains as to whether he shared the common object of the unlawful assembly. It is only when he shares the unlawful common object of the assembly that he becomes a member of it. There must be some evidence of participation by him before holding that he is a member of the unlawful assembly. There is no such evidence in the instant case. As discussed earlier accused Kartarsingh, Ajayabsingh and Kuldeepsingh committed no acts of violence. They did not exhort or incite or otherwise encourage the other accused for violence or to do any unlawful act. There is no such evidence in the instant case. As discussed earlier accused Kartarsingh, Ajayabsingh and Kuldeepsingh committed no acts of violence. They did not exhort or incite or otherwise encourage the other accused for violence or to do any unlawful act. As such, by their mere presence at the place of occurrence it cannot be assumed that they were the members of the unlawful assembly constituted by the remaining five appellants. No overt act has been assigned to them. We are, therefore, unable to maintain their convictions for the various offences they were found guilty by the trial Court. They are entitled to acquittal. ( 23 ) THE next intimately connected question is whether the remaining five appellants Hajarasingh, Dalasingh, Bikar Singh, Bagusingh and Mangalsingh constituted an unlawful assembly. The prosecution case is that they came together armed with lethal weapons like Gandasies and lathies. None remained behind in inflicting blows to the deceased-victims and PW 1 Sarjeetsingh. They took away the dead bodies of the victims to their house. It was urged by the learned Public Prosecutor that these facts and circumstances are more than sufficient to arrive at a conclusion that these five appellants constituted an unlawful assembly with the common object of killing the two deceased-victims. It was, on the other hand, contended by the learned counsel for the appellants that appellants Hajarasingh and Dalasingh were not present on the spot. The remaining three appellants Mangalsingh, Bagusingh and Bikarsingh could not, therefore, form an unlawful assembly because they were only three in number. We have held above that accused Hajarasingh and Dalasingh were present at the site of the occurrence and they were armed with Gandasies. They struck blows with their Gandasies on the heads of the deceased-victims and also to PW 1 Sarjeetsingh. The evidence of the three eye witnesses, as discussed above, shows that these five appellants came together, made a joint and conceited attack on the two deceased-victims and landed blows to them with deadly weapons like Gandasies and lathies. None of them remained behind in wielding their weapons and inflicting injuries to the victims. The formation of the unlawful assembly and what exactly was the common object of the assembly is generally judged from the facts and circumstances arising in a given case. None of them remained behind in wielding their weapons and inflicting injuries to the victims. The formation of the unlawful assembly and what exactly was the common object of the assembly is generally judged from the facts and circumstances arising in a given case. The object of the assembly is generally a matter of inference from the acts, the conduct of the members and the surrounding circumstances of the case. Here in the instant case, it can be safely inferred from the acts committed by these five appellants that they formed an unlawful assembly with the common object of killing the two victims. Violence was also used by them against PW 1 Sarjeetsingh in prosecution of that common object. The formation of the unlawful assembly with the common object mentioned in the charges by these five appellants stands established. ( 24 ) TAKING the next contention raised by the learned counsel for the appellants, it was strenuously contended that what they did was in the exercise of the right of private defence of person. It was argued that accused Bikarsingh was returning from his field to his house and when he happened to pass out-side the house of the deceased Bacchansingh, he was assaulted by the two deceased-victims and PW 1 Sarjeetsingh. He raised cries. Attracted by his cries, accused Bagusingh and Mangalsingh came running to his help. The two deceased-victims and Sarjeetsingh (PW 1) landed blows to them and accused Bikarsingh. In order to protect themselves, they inflicted blows to the two deceased-victims and Sarjeetsingh (PW 1 ). It was argued that on medical examination, injuries were found on the persons of three of them viz. , accused Mangalsingh, Bagu Singh and Bikarsingh. The injuries on the person of these three accused have not been explained by the ocular witnesses. The ocular witnesses have, thus, suppressed the real facts and put forward only a truncated and lopsided version of the incident. It was urged that the presence of the injuries on the persons of the accused Mangalsingh, Bagusingh and Bikarsingh shows that what they did was in the exercise of the right of private defence of person. It was, on the other hand, contended by the learned Public Prosecutor that the occurrence had taken place out-side the house of deceased Bacchansingh. The two deceased-victims and Sarjeetsingh (PW 1) were there in the truck. They had no arms with them. It was, on the other hand, contended by the learned Public Prosecutor that the occurrence had taken place out-side the house of deceased Bacchansingh. The two deceased-victims and Sarjeetsingh (PW 1) were there in the truck. They had no arms with them. The appellants came in a body. Three of them, viz. Hajarasingh, Dalasingh and Bikarsingh had lathies. They opened a joint and concerted attack on the two victims. The injuries found on the persons of these three appellants were trivial, superficial and insignificant. When an attack is made, it is natural for the victims to offer some resistance. In that resistance, the aggressors may receive minor injuries on their person. Since the appellants were the aggressors, no right of private defence was available to them. We have given our thoughtful consideration to the rival submissions. ( 25 ) THE pertinent question before us is who were the aggressors. Were they the appellants or the two deceased-victims. ? ( 26 ) NOW, once it is established that the accused killed the victims, the onus is on them to prove that the killing was justified or excusable. The burden of establishing the plea of self defence is on the accused. This burden can be discharged by them by showing preponderance of probabilities in favour of that plea on that basis of the material on record. The material on record may consist of the admissions made by the prosecution witnesses in their cross-examination. Questions were put to the three eye-witnesses that the deceased-victims and PW 1 Sarjeetsingh were the aggressors and they took the violence first. The three eye-witnesses dismissed these suggestions in their cross-examination and made categoric statement that the two victims and PW 1 Sarjeetsingh were absolutely unarmed. There is nothing in their cross-examination to suggest that the victims were the aggressors and had the resort to violence first. It is true that the injuries were found on the persons of accused Bikarsingh, Bagusingh and Mangalsingh as mentioned earlier. But these injuries are trivial, insignificant and superficial. Accused Bagusingh had only one small bruise, accused Mangalsingh likewise had bruises and abrasions. Accused Bikarsingh had three bruises and one incised wound. The incised wound was on the left wrist-joint. It is a common phenomenon that when the victims are assaulted with lethal weapons like Gandasies and lathies, the resistance by them is there in one form or the other. Accused Bikarsingh had three bruises and one incised wound. The incised wound was on the left wrist-joint. It is a common phenomenon that when the victims are assaulted with lethal weapons like Gandasies and lathies, the resistance by them is there in one form or the other. In these circumstances it is not uncommon that some injuries are sustained by the aggressors. If the victims were the aggressors, the injuries inflicted on accused Mangalsingh, Bagusingh and Bikarsingh should have been numerous and severe in nature. ( 27 ) IT is true that the eye-witnesses have not explained the injuries found on the person of the three appellants, but it has no significant bearing. Their evidence cannot be dismissed straightway simply because they do not explain the injuries on the person of the accused. It has been repeatedly pointed out by their Lordships of the Supreme Court that the entire prosecution case cannot be thrown over-board simply on account of the failure of the prosecution witnesses to explain the injuries on the person of the accused. Reference may be made to Bankey Lal v. State of Uttar Pradesh, AIR 1971 SC 2233 and Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 21 . There is, thus, no universal rule that merely because some injuries are found on the person of the accused, presumption of the exercise of the right of private defence at once springs up. There is no invariable proposition of law of universal application that as soon as it is found that there were some injuries on the person of the accused, the inference should be that the complainant party was the aggressor and the plea of private defence stands established. The presence of injuries on the person of the accused is only a circumstance to be taken into consideration. If the facts and circumstances show that the accused party was the aggressor, the mere presence of injuries on some of the accused does not show that they acted in self-defence. In order to find out whether the right of private defence is available to the accused, the entire incidence must be examined with care and viewed in its proper setting. One has to consider all the surrounding circumstances in which the incident had taken place. A plea of right of private defence cannot be based on surmises and speculations. In order to find out whether the right of private defence is available to the accused, the entire incidence must be examined with care and viewed in its proper setting. One has to consider all the surrounding circumstances in which the incident had taken place. A plea of right of private defence cannot be based on surmises and speculations. There must be material on record to establish the circumstances which necessitated the exercise of such right. The right of private defence should not be assumed simply because some trivial injuries are found on the person of the accused. ( 28 ) HERE in the instant case, as discussed above, the five appellants Hajarasingh, Dala-singh, Bikarsingh, Bagusingh and Mangalsingh came closely following each other, three of them viz. , Hajarasingh, Dalasingh and Bikarsingh were armed with Gandasies and remaining two Mangalsingh and Bagusingh were armed with lathies. They opened an atta ck on the deceased-victims and inflicted blows to them with their weapons. The injuries were inflicted on the heads of the victims and other parts. The violence was used by them mercilessly. The victims may have offered some resistance to protect themselves. In such a situation, the possibility of some of the accused receiving trivial injuries is there, accused receiving Taking advantage of their trivial injuries, the appellants have put forward it as an excuse or pretext or shield to justify their act of aggression. No right of private defence is available to an aggressor. ( 29 ) THERE is one more aspect of the matter. If there is a great disproportion between the number of the injuries inflicted on the victims and sustained by some of the accused, the disproportion indicates that those who had inflicted the graver and the larger number of injuries were the aggressors. The injuries sustained by the two deceased-victims and PW 1, Sarjeetsingh far exceed than those found on the person of the accused. The injuries on the victims dead bodies were on vital parts like head and the injuries to them were caused by deadly weapons like Gandasies and lathies. These acts of the accused bear the stamp of design and well-knit plan. ( 30 ) THE five appellants Hajarasingh, Dalasingh, Bikarsingh, Bagusingh and Mangalsingh made a joint and concerted attack on the deceased-victims. These acts of the accused bear the stamp of design and well-knit plan. ( 30 ) THE five appellants Hajarasingh, Dalasingh, Bikarsingh, Bagusingh and Mangalsingh made a joint and concerted attack on the deceased-victims. The free and indiscriminate use of deadly weapons like Gandasies and the infliction of blows with these weapons on vital parts of the victims like heads strongly suggest that those who wielded these weapons and struck blows had formed the unlawful assembly with the common object of intentionally causing the death of the victims. These five appellants were, therefore, rightly held guilty for the offences under Ss. 302, 302/149, 307, 307/149, 147 and 148 of the Penal Code. They were rightly convicted and sentenced for these offences. ( 31 ) IN the result : -1) the appeal of accused Kartarsingh, Ajayabsingh and Kuldeepsingh is allowed. Their convictions and sentences are set aside and they are acquitted of the offences they were charged with. They are already on bail and need not surrender. Their bail bonds shall stand cancelled.-2) the appeal of accused Hajarasingh, Dalasingh alias Dayalsingh, Bikarsingh, Bagusingh and Mangal Singh alias Mangi is dismissed. Their convictions and sentences for the various offences recorded by the trial court are maintained. Accused Dala Singh and Bikarsingh are already undergoing the sentence. Accused Hajarasingh, Bagusingh and Mangalsingh alias Mangi are on bail. They are allowed one months time to surrender before the learned Additional Sessions Judge. Sri Ganganagar to serve out the sentence, failing which the learned Additional Sessions Judge will get them arrested and commit them to jail for the aforesaid purpose. The appeal shall accordingly stand disposed of. Order accordingly.