Judgment Krishna Ballabh Sinha, J. 1. These three appeals arise out of the same judgment and they have been heard together and hence they are disposed of by this common judgment. Appellant Jamuna Rai is the sole appellant in Cr. Appeal No. 398 of 1983. Appellant Sheodatta Mishra alone has filed Cr. Appeal No. 603 of 1983 and the rest figure as appellants in Cr. Appeal No. 597 of 1983. 2. All the appellants (of the three appeals) have been convicted under Section 302, read with Sec.149 of the Indian Penal Code (hereinafter referred to as the Penal Code) and sentenced to suffer imprisonment for life. They have also been convicted under Sec.307 read with Sec.149 of the Penal Code, for which sentence of five years rigorous imprisonment has been awarded to each one of them. Appellant Omprakash (Cr. Appeal No. 597 of 1983) has further been convicted under Sec.27 of the Arms Act and sentenced to undergo imprisonment for one year. The Sentences have been ordered to run concurrently. 3. The prosecution was launched on the basis of the Fardbeyan (Ext. 6) of the Ram Chandra Prasad (P. W. 13) which was recorded on 19-8-1981 at 5.15 p. m at his residence situated in Ranighat and within Sultanganj Police Station in the town and district of Patna. The prosecution case, as disclosed in the Fardbeyan and the material available on the record, is that in the night between the 18th and 19th of August, 1981, Ranjan Kumar (P. W. 1), son of the informant (P. W. 13) was sleeping on the verandah attached to the house from outside towards east. The informant and his other family members were sleeping in the residential house. He (P. W. 1) woke up at about 4.15 a. m. when P. W. 1 told him that appellant Thakur Singh and about eight other persons were demolishing the wall standing close south of the grill fitted in the eastern verandah. The informant and his other family members were sleeping in the residential house. He (P. W. 1) woke up at about 4.15 a. m. when P. W. 1 told him that appellant Thakur Singh and about eight other persons were demolishing the wall standing close south of the grill fitted in the eastern verandah. The informant, his wife Shashi Devi and his sons, namely, Ranjan Kumar (P. W. 1), Manohar Prasad (P.W. 4), Ranjit Kumar (P. W. 9) and Arbind Kumar came out in the verandah In the light of the bulb, they noticed appellant Thakur Singh armed with lathi, appellant Omprakash with a double barrel gun and appellant Nand Kumar with iron rod standing close to the verandah and five other parsons were engaged in demolishing the said wall with Khanti, chisel and hammer. The informant and his son Arbind Kumar (since deceased) accosted the accused persons. Appellant Thakur Singh and his two sons started throwing brick-bats. Some brickbats came over the verandah through the openings in the grill. The informant and his family members, thereafter, raised alarm and he wanted to open the lock of the grill to seek help from his neighbourers (Muhallawala). Appellant Thakur Singh ordered to shoot down the informant and his family members and asked that none should be allowed to escape from the house. Appellant Omprakash repeatedly fired his gun as a result of which the informant and those present in the verandah sustained injuries. Arbind Kumar, after sustaining the gun-shot, started reeling and was about to fell down but he was helped by his parents who held him and took him in the room attached to the verandah. He was laid on a cot where he died immediately. P. Ws. 1, 4, 9, 13 and Shashi Devi also sustained injuries on different parts of their bodies. The informant started raising hulla of "Chor-chor" but none came to their rescus. The informant aroused his eldest son, Birendra Prasad (P. W. 6) who was sleeping in the rear-room towards west and asked him to inform the police. 4. On the information of P. W. 6 a Police party came at the scene of the occurrence within few minutes and surrounded the appellants and arrested them with the weapons in their hands. After their arrest, they disclosed their names to the Police. 4. On the information of P. W. 6 a Police party came at the scene of the occurrence within few minutes and surrounded the appellants and arrested them with the weapons in their hands. After their arrest, they disclosed their names to the Police. It is mentioned in the Fardbeyan that accused Sheo Pandit, appellants Suresh Mahto and Jamuna Rai were arrested with Khanti. A bag was found in possession of appellant Sheodatta Mishra, from which a chisel and a hammer were recovered. It is also mentioned therein that a gun was recovered from appellant Omprakash and the barrel was emitting fresh smell of gun powder and there were two empty cartridges in it. 5. The root cause of the occurrence, as revealed in the fardbeyan, is that Shambhu Nath Singh, uncle-in-law of the informant, had sold a portion of the said house to appellant Thakur Singh few months prior to the occurrence. The informant had got it by gift from his-mother-in-law and he was in possession of the entire house. He was living in it with his family. Appellant Thakur Singh with help of the other appellants, variously armed, wanted to take forcible possession of the suit house on the day of occurrence which resulted in the death of Arbind Kumar and injuries to his family members. 6. On the basis of the said fardbeyan, a formal F. I. R. was drawn up and after investigation Police submitted charge-sheet. 7. Out of the twenty witnesses examined on behalf of the prosecution P. W. 3 Shidheshwar Prasad Sinha, P. W. 12 Bavildar Baleshwar Jha, P. W. 15 Loleshwar Prasad, P. W. 16 Deo Kumar Tewary, P. W. 17 Sia Saran Paswan and P. W. 18 Gopal Nandan Sinha were tendered by the prosecution for cross-examination. P. W. 20 A. S. I. Devendra Thakur (photographer) had taken photograph of the place of occurrence. P. W. 1 Ranjan Kumar Verma, P. W. 4 Manohar Prasad P. W. 5 Sachida Nand Sinha, P. W 9 Ranjit Kumar, all sons of the informant and P. W. 13 Ham Chandra Prasad, himself, figured as eye-witnesses to the occurrence. P. W. 6 Birendra Prasad, the eldest son of P. W. 13 gave information to the police party by scaling over the near wall of his residential house. P. W. 6 Birendra Prasad, the eldest son of P. W. 13 gave information to the police party by scaling over the near wall of his residential house. P. W. 11 Kapildeo Singh, Havildar, was on patrolling duty in the night of occurrence and he arrived at the place of occurrence with other members of patrolling party and helped in arresting the accused persons, P. W. 19 Chandra Shekhar Pd. Singh, the Sub-Inspector of Police, also arrived at the place of occurrence having heard the sound of gun firing and arrested the accused persons with the help of police force P. W. 2 is a witness to the inquest and seizure list. P. W. 8 Dr. R. B. Choudhary performed autopsy over the dead body of Arbind Kumar P. W. 7 Dr. K. P Yadav P. W. JO Dr. Omprakash Shah and P. W. 14 Dr. Janardan Prasad examined the injuries of other victims. 8. Two witnesses, namely, Sheo Kumar Prasad (D. W. 1) and, Shambhu Nath. Singh (D. W. 2) were examined on behalf of the appellants in support of the defence taken by appellant Thakur Singh and his two sons. Their specific defence is that a portion of the disputed home was purchased by appellant Thakur Singh by a registered sale-deed on 14-4-1981 from D.W. 2 one of the recorded owners and the vendor indicted him and put him in possession of the same. Appellant Thakur Singh went to his village with his family members about a week before the occurrence. When he returned back on 18-8-1981 he found that the entrance to that portion of the house was closed by erecting a wall and a grill was fitted in the outer verandah. They were, however, allowed to enter the house through the verandah. In the following morning, they smelt some trouble and started breaking the wall, erected for the purpose of sealing the exit of that portion of the house. While the said appellants were engaged in removing the wall, the informant and his sons fired gun and exploded bombs causing injuries to themselves. One of the sons of the informant died as a result of the gun shot injury caused by his own man. As regards the other appellants, their defence is that they were arrested by the Police on suspicion while they were passing through the Ranighat land to attend their day-to-day work, 9. Mr. One of the sons of the informant died as a result of the gun shot injury caused by his own man. As regards the other appellants, their defence is that they were arrested by the Police on suspicion while they were passing through the Ranighat land to attend their day-to-day work, 9. Mr. Nagendra Rai, the learned Senior Counsel appearing in Cr. Appeal No. 597 of 1983 advanced two fold argument He referred to the documents filed on behalf of the appellants to show that a portion of the said house was in physical possession of appellant Thakur Singh and his family members. It was also contended that the oral evidence, produced by the prosecution, as falsified by the medical evidence. It was submitted that in view of the fact that the entire house was not in possession of the informant and the oral evidence was contradicted by the manner of occurrence, as presented by the prosecution, was absolutely incorrect and the prosecution case was fit to be rejected. 10. Mr. Jugal Kishore Prasad, the learned Senior Counsel, appearing in other two appeals, contended that the conviction of these appellants under sections 302 and 307 with the aid of Sec.149 of the Code was not maintainable as there was no material to prove that they participated in the commission of the said offences with the common object to commit murder or attempt to commit murder. It was further contended that even according to the prosecution evidence, these appellants were seen demolishing the wall because they were engaged as labourers and had no knowledge of the resultant effect of the action taken by the other appellants. It was also urged that they did not share the common object and so the prosecution failed to prove that these appellants were members unlawful assembly. 11. Appearing on behalf of the State, Mr. K. P. Gupta strenuously argued that the appellants were arrested at the spot with weapons in their hands. There was no satisfactory material on the record in support of the claim of physical possession of appellant Thakur Singh over the house in question and as such the judgment did not call for any interference. 12. P. W. 1 Ranjan Kumar Verma stated that at the time of occurrence he was sleeping in the outer verandah, attached towards east of the house in the front. 12. P. W. 1 Ranjan Kumar Verma stated that at the time of occurrence he was sleeping in the outer verandah, attached towards east of the house in the front. Having heard some sound, he woke up and went near the grill fitted in the said verandah. In the light of the bulb, he noticed the appellants with arms and instruments. Immediately, thereafter, he went in the house and informed his father and other family members. All came at. the verandah and saw the appellants. P. W. 13 the informant supported the prosecution case, as disclosed in the F. I. R. and said that in the night of the occurrence, P.W. 1 was sleeping in the outer verandah and other family members were sleeping inside the residential house. Having got information from P. W. 1 that appellant Thakur Singh and other accused persons were demolishing the wall, he came out with his wife and three sons. They saw appellant Omprakash with a double barrel gun, appellants Thakur Singh and Nand Kumar Singh with lathi and iron rod, respectively. The other accused persons were demolishing the wall with Khanti, Chisel and hammer. All of them except Shashi Devi, who was not examined in the trial Court, said that on protest appellant Thakur Singh and his sons started pelting brikck-bats. When the informant raised alarm, appellant Thakur Singh instigated to shoot down the persons present in the said verandah and spare none. Appellant Omprakash, thereafter, fired his gun repeatedly causing injury to P. Ws. 1, 4, 9, 13 Shashi Devi and Arbind Kumar (deceased). Arbind Kumar received injury on his chest and started staggering. He was held by his parents who took him in the room close 10 the verandah where he succumbed to the injuries. They also stated that the sound of demolition of wall and firing of gun were heard even after they had come in the room, They further stated that P. W. 6 Birendra Prasad, the eldest son of the informant who was sleeping in another room, was asked by his father to inform the police. He went to contact the Police by scaling over the rear wall. After sometime, the Police force reached there and arrested the accused persons with weapons and other instrument in their possession, as stated in the fardbeyan. 13. He went to contact the Police by scaling over the rear wall. After sometime, the Police force reached there and arrested the accused persons with weapons and other instrument in their possession, as stated in the fardbeyan. 13. P. W. 13 further stated that he gave fardbeyan at his residence after arrival of the Police party. He also said that on 19-4-1981 appellants Thakur Singh, Sbeodutta Mishra Shambhu Nath Singh, Ajay Kumar and others came in the said house and took away a watch. A Criminal Case was instituted against the said persons which was pending at the time of occurrence in the Court, when asked in cross-examination P. W. 13 said that the house in question was constructed over plot No. 410, Appellants were demolishing the wall for taking forcible possession of the said house. He denied the defence suggestion that appellant Thakur Singh came in possession of the southern portion of the said house on 19-4-1981. He also denied that in absence of the said appellant, who went with his family to his village home, the informant closed the exit of the said portion of the house and got grill fitted in the verandah. It was suggested to him that on 18-8-1981 at about 9 p. m. appellant Thakur Singh came with labourers in the house and the informant locked them in a room. In the following morning, when they wanted to come out they were attacked with gun, bomb and lathi, in course of which, the informant and others sustained injuries. It was also denied by the informant. 14. P. W. 6 Birendra Prasad said that on 19-8-1981 at about 4 a. m. while sleeping in the western room of the house, the was aroused by his father who told him about the occurrence and asked him to inform the police. Soon after, he went out of the house from the rear side. He saw some constables on the Ashok Raj Path and went there and requested them to come to the place of occurrence. He supported the prosecution case regarding the arrest of the accused persons and recovery of arms and instruments from them. In cross-examination, this witness as well as his brothers were asked about title and possession of Shambhu Nath Singh over a portion of the disputed house, which was sold to appellant Thakur Singh. He supported the prosecution case regarding the arrest of the accused persons and recovery of arms and instruments from them. In cross-examination, this witness as well as his brothers were asked about title and possession of Shambhu Nath Singh over a portion of the disputed house, which was sold to appellant Thakur Singh. They stated that they had no knowledge about the sale transaction prior to the month of April 1981 when an attempt was made to make forceful entry in the house by Shambhu Nath Singh and others. 15. P. W. 11 Kapildeo Singh the police Havildar, stated that in the night between the 18th and the 19th of August, 1981 he was on night patrolling duty with other police force. In course of patrolling, he heard sound of firing and all of them rushed towards that side. On the way they met a man who told them that some persons were demolishing the wall of his house and firing gun. They proceeded towards the said house and at that very time a Police Jeep was seen coming from north in the land on which the Officer-in-charge (P. W. 19) and some constables came at the place of occurrence. The accused persons were surrounded from both sides and they were arrested with weapons and other instruments. When asked, he said that the accused parsons wanted to escape but they could not succeed as they were surrounded from both sides of the land. He denied the defence suggestion that the appellants were arrested from the southern room of the disputed house and the weapons and other articles were also seized from there. 16. P. W. 19 Chandrashekhar Prasad Singh was the officer-in-charge of Sultanganj Police Station at the relevant time. He stated that he was on night patrolling duty with police force on a jeep. When he was near the law College, he heard sound of firing at about 4 a m. and went towards that side in the lane. In the light of jeep he noticed P. W. 11 with other police constables rushing towards the house of the informant. The accused persons were arrested in the lane just in front of the house of the informant with gun, lathi etc. He seized a double barrel gun from the possession of appellant Omprakash. Two empty cartidges were found in the barrel, which was giving fresh smell of gun powder. The accused persons were arrested in the lane just in front of the house of the informant with gun, lathi etc. He seized a double barrel gun from the possession of appellant Omprakash. Two empty cartidges were found in the barrel, which was giving fresh smell of gun powder. He seized a lathi from appellant Thakur Singh and one iron rod from appellant Nand Kumar Singh. Three Iron-Khantia were recovered, each from the possession of appellants Suresh Mahto, Jamuna Rai and accused Sheo Pandit. In the Jhola seized from the possession of appellant Sheodutta Mishra, a hammer and chisel were recovered. Two empty catridges were found lying on the ground. He prepared seizure list (Ext. 8) for the said articles in presence of the witnesses. After their arrest, the appellants disclosed their names to him. 17. According to his evidence the place of occurrence is the outer verandah of the house of the informant and the Ranighat lane, in front of the said house. The house faces east with iron grill fixed in the outer verandah. The lane is ten feet wide and on the other side of the lane in six and half feet high compound wall of the College. The lane emages from Ashok Raj Path and proceeds north to the Ranighat. Sign of brick batting was found on the grill and few small pieces of bricks were noticed living on the verandah. At three places, the plaster of the verandah was found damaged, which according to P. W. 19 was caused due to gun firing. The wall to the south of the verandah was found freshly demolished from the top. The bricks and plaster of the demolished wall were seen lying over the drain and in the lane, Besides some small places of broken bricks, drops of blood were also found on the floor of the verandah. Sign of blood-stain on the floor of the verandah was found disturbed due to movement of human feet. 18. The dead body of Arbind Kumar was found in the room close west of the said verandah. He recorded the statement of Shashi Devi, Ranian Kumar Verma (P. W. 1) Manohar Prasad (P. W. 4), Ranjit Kumar (P.W. 9), Birendra Prasad (P. W. 6), Sachidanand Sinha (P. W. 5), and the informant. He found injuries on the person of all the said witnesses except P. Ws. 5 and 6. He recorded the statement of Shashi Devi, Ranian Kumar Verma (P. W. 1) Manohar Prasad (P. W. 4), Ranjit Kumar (P.W. 9), Birendra Prasad (P. W. 6), Sachidanand Sinha (P. W. 5), and the informant. He found injuries on the person of all the said witnesses except P. Ws. 5 and 6. He seized blood-stained clothes from their persons. The said cloth were produced in the trial Court and were marked as Material Exts. I to 1/6 P. W. 19 further said that he received the postmortem report on 23-8-1981 and fourteen pellets in a sealed bottle After receiving the injury report of the sons of the informant, he made query on 19-10-1981 from the Doctor whether the said injury could be caused by pellet. The reply sent by the Doctor was produced in the Court and was marked as Ext. 7. 19. It is worthwhile to mention that the learned trial Court did not place reliance on P. W. 5. and as such I do not consider it necessary to discuss his evidence. 20. P. W. 8 Dr. R. B. Choudhary conducted the post-mortem examination over the dead body of Arbind Kumar on 19-8-1981 at 11 A. M. and found the following ante mortem injuries : (i) Scattered pellet injuries of 1/8" diameter individually, covering a round area of (sic)D" diameter on the front and lower part of the chest and upper part of abdomen. There was no charring, no singing of heir, no blackening of skin around the area of injury, (ii) On dissection, liver was found punctured at several places with large quantity of blood in the abdominal cavity. 14 pellets were recovered from the tissue and they were preserved, sealed and handed over the accompanying constable. In the opinion of the Doctor, the injuries were caused by gun shot and they were sufficient to cause death in the ordinary course of nature. 21 P. W. 7 Dr. Kailash Pati Yadav examined the informant on 19-8-1981 and found multiple pellet injury over the abdomen on the right illiac region. Sign of charring was present. The injury according to the Doctor, was simple in nature caused by fire arm. 22. P. W. 10 Dr. Om Prakash Shah examined Shashi Devi and found two simple pellet injuries on her right upper fore-arm, and the age was with in 24 hours. Sign of charring was present. The injury according to the Doctor, was simple in nature caused by fire arm. 22. P. W. 10 Dr. Om Prakash Shah examined Shashi Devi and found two simple pellet injuries on her right upper fore-arm, and the age was with in 24 hours. Although Shashi Devi was not produced as witness in the court but according to evidence of her husband and sons, she had also sustained gun shot injury at the time of occurrence. 23. P. W. 14 Dr. Janardan Prasad examined Ranjan Kumar Varma (P. W. 1) on 19-8-1981 and found the following injuries. (i) Multiple small abrasions of 1/4" diameter over right arm, left clivicular region with charring. (ii) Two lacerated wounds 1/2" X 1/4" X 1/4" over the supra-scapular rigion and zapea of the neck. (iii) Abrasion 11/2" x 1/2" over left side of chest between anterior and mid avillery line. P. W. 9 Ranjit Kumar was also examined by same Doctor on the same day at about 6.35 A. M. and the following injuries were found on his person. (i) Lacerated wound 1/4" X 1/4" over the left medical anthuse of eye. (ii) Swelling 1/4" X 1/4" on the lip with abrasion. There was sign of charring on the upper lip. On the same day at 6.30 A. M., P. W. 14 examined P. W. 4 Manohar Prasad and found the following injuries : (i) Multiple blood oozing small area (abrasion) over right face and neck of 1/4" diameter. (ii) Abrasion 1/2" x 1/4" x 1/4" over right pectorial region. Iron particles with charring. All the above injuries, according to the Doctor, were possible by gun, shots. They were simple in nature and the age was within six hours. In reply of the query made by P. W. 19 (I. O. The Doctor P. W. 14) opined that the injuries were possible by gunshot. He denied the defence suggestion that the reply (Ext. 7) to the query was manoeuvered opinion at the instance of the police. 24. From the defence suggestion, it is manifest that the date, the time and the place of occurrence, though not accepted in specific terms, are not in dispute. According to the prosecution case, the appellants appeared near the house of the informant at the time of occurrence. 7) to the query was manoeuvered opinion at the instance of the police. 24. From the defence suggestion, it is manifest that the date, the time and the place of occurrence, though not accepted in specific terms, are not in dispute. According to the prosecution case, the appellants appeared near the house of the informant at the time of occurrence. The evidence of appellant Thakur Singh and his sons is that they had entered the house in the previous evening and were present there from before the occurrence. The prosecution allegation is that appellant Om Prakash caused gun shot injuries on instigation of his father and according to the defence the injuries were caused by one of those, who had come at the time of the occurrence at the instance of the informant. Thus, the difference between the two versions is whether the deceased and other victims sustained injuries at the hands of appellant Om Prakash or whether the same were caused by the persons engaged by the informant in order to kill or assault appellant Thakur Singh. I do not propose to use the defence version in support of the prosecution case, as the prosecution has to stand on its own leg. 25. Referring to the evidence of P. W. 14, Dr. Janardan Prasad, it was stated by Mr. Rai that signs of charring around some of the injuries were found on the persons of P. Ws. 1, 4 and 9 but no such sign was noticed on the dead body of Arbind Kumar. It was contended that the deceased was standing in the same verandah where other injured witnesses were present and the presence of the said signs around some of the injuries of the said witnesses and absence of the same on the other victim created serious doubt regarding the manner of occurrence. The attention of the Court was also drawn to the evidence of P.W.1 who stated that the gun-shots were fired by appellant Om Prakash from a distance of about fifteen feet from the east corner of the grill. It was urged that the signs of charring and blackening were not possible from such a long distance. 26. True it is that signs of blackening and charring were found around the injuries of P. Ws. 1, 4 and 9. It was urged that the signs of charring and blackening were not possible from such a long distance. 26. True it is that signs of blackening and charring were found around the injuries of P. Ws. 1, 4 and 9. According to medical jurisprudence such signs are usually found if the firing is done from a distance of three feet or even less. But the distance of firing as given by P. W. 1 was by rough estimate. There is nothing on the record to indicate that he had measured the distance and then gave precise answer in the court. Apart from this, the witnesses standing in the verandah, having seen the appellants variously armed at an odd hours of night, must have become mentally upset. In that tense moment, they must not be standing like statue in the verandah at one point. Evidence has already come on the record that the informant and the deceased raised alarm and thereafter appellant Thakur Singh and his sons started pelting brick bats and some broken pieces of bricks were noticed on the verandah. In order to save themselves, they must be moving in the verandah raising alarm for help from the neighbourers. Besides this, it is not the prosecution case that each of the victim stood facing the gun at the same point where P. Ws. 1, 4 and 9 were standing at the time they received the injuries. There is consistent evidence that appellant Om Prakash fired several rounds before the victims moved for safety in the room. In such circumstances, it is quite natural that some of the victims had to face the gun shot while they were in close range and others while they were beyond the distance from which charring or blackening marks could be produced. 27. It was also contended that P. W. 14 first opined that the injury found on P. Ws. 1, 4 and 9 were caused by bomb-blast, but subsequently he changed his opinion as mentioned in Ext. 7, according to which the injuries were possible by pellets. 27. It was also contended that P. W. 14 first opined that the injury found on P. Ws. 1, 4 and 9 were caused by bomb-blast, but subsequently he changed his opinion as mentioned in Ext. 7, according to which the injuries were possible by pellets. If we look to the evidence of P. W. 14, he stated in the court that iron particles might be found in gun shot injury as well as in bomb-blast injury and that was the reason why he had earlier expressed his view that the injuries found on the said witnesses might have been caused by bomb-blast. He stated in categorical terms that the said injuries were, possibly, caused by gun-shots. So, there is no substance in this argument and it has to be rejected. 28. Then it was contended that the prosecution case was falsified by the report of the Forensic Science Laboratory (Ext.E) as it was found by the Assistant Director that four fired cartridges, sent for examination, were not fired from the gun seized from the possession of appellant Om Prakash, P. W. 19 stated that he sent the articles first to the Sargeant Major for examination and then, they were sent to the Director, Forensic Science Laboratory Patna. From Ext. E, it would appear that said articles were received in the Forensic Science Laboratory on 29-9-1981, more than a month after the occurrence. Before sending the articles to the Forensic Science Laboratory, they were first sent to the Sargeant Major, who must have handled them. There is no evidence that the articles were packed and sealed in such a scientific manner so as to eliminate the possibility of disappearance of the relevant marks. Generally, the trigger mark found on the percussion cap of catridge is of immense help for finding out the use of gun with reference to the carrtridge. But in the instant case all precautions were not taken to preserve the marks and, perhaps, the articles seized were subjected to test by the Sargent Major before examination in the Forensic Laboratory. I, therefore, find that Ext. E. is not of any use to the court for coming to a definite finding and consequently it cannot be helpful to either side. 29. I, therefore, find that Ext. E. is not of any use to the court for coming to a definite finding and consequently it cannot be helpful to either side. 29. Where the expert evidence, including the medical evidence, is at variance with the ocular evidence, such conflict can be resolved after proper acrutiny, If after close and careful analysis, the oral evidence is found to be convincing, the same has to be preferred. The exaggerated picture of the occurrence and the minor discrepancies, if any, have to be ignored, provided the same are decipherable But where the evidence is not of such nature, as indicated above, the safest course is to rely on the medical evidence. The Court, however, has to keep in mind that the expert evidence has got the corroborative value. One of the methods of appraisal of the oral evidence is to test the same on the basis of the medical evidence to find out whether the injuries could have been caused in the manner as alleged by the prosecution and beyond this it does not carry much weight. The defence make use of medical evidence to prove that the injuries could not have been possibly caused in the manner as alleged by the prosecution and consequently the evidence of the eye witnesses may be rejected. But unless it is above that the medical evidence completely rules out all the possibilities of the injury being caused in the manner, as stated by the prosecution witnesses, the credibility of the eyewitnesses cannot be doubted on the basis of alleged inconsistency between the oral evidence and the medical evidence. In the instant case, as mentioned above, there is no conflict between the two. Even the Doctor said that the injuries were possible by gun shot. 30. Admittedly, the informant and his family members were residing in the disputed house. The objective evidence, as found at the place of occurrence by P. W. 19, fully supports the fact that an occurrence had taken place at and near the said house, which is not denied by appellant Thakur Singh and his sons. The legitimate inference, therefore, would be that P. Ws. 1, 4, 9 and 13 are the most natural and probable witnesses to the occurrence. The legitimate inference, therefore, would be that P. Ws. 1, 4, 9 and 13 are the most natural and probable witnesses to the occurrence. There is a ring of truth in their evidence because of the presence of gun-shot injuries on their persons, The learned trial Court has discussed the evidence of the said witnesses at great length and has come to the conclusion, and rightly, that they sustained gun-shot injury at the time of the occurrence in the verandah of the house in question. 31. Then Mr. Rai tried to draw strength and support from the documentary evidence. Now, coming to the defence version, it may be mentioned that the house in question stands over plot No. 110, Holding No. 62 of Patna Municipal Corporation, it was stated that by a registered sale deed, D. W. 2 Shambhu Nath Singh and Sunaina Kuar, the mother-in-law of the informant each sold one katha from their shares of the said plot much prior to the occurrence as would appear from the sale-deeds (Exts 13 and A/1). Sunaina Kuar and her daughter Shashi Devi instituted Partition Suit No. 18 of 1962 for partition of the remaining area of plot No. 410 against D. W. 2. The parties compromised the suit and in consequences of the compromise the final decree (Ext. c) was prepared. D. W. 2 was allotted his share in the southern side, Sunaina Kuar executed a sale deed in favour of the informant only with respect to the half of the house m question and thereafter the order (Ext. B) was passed in Mutation case No. 7 of 1978-79. It was urged that the said documents conclusively proved that the informant was not in possession of the whole house. P. W. 13 (informant) denied to have knowledge about Exts. A and B, As regards the petition suit, the informant stated in his evidence that D. W. 2 was a pleaders Clerk and he played fraud on Sunaina Kuar and Shashi Devi and thereby obtained the decree (Ext. C). He also stated that an execution case was filed by D. W. 2 for execution of the said compromise decree, which was dismissed. Ext. 12 is the certified copy of the order passed in Misc. C). He also stated that an execution case was filed by D. W. 2 for execution of the said compromise decree, which was dismissed. Ext. 12 is the certified copy of the order passed in Misc. case No. 96 of 1980, from which it is manifest that the petition for execution of the decree for erecting a partition wall between the northern and southern portion of the house was dismissed. The learned trial Court has elaborately discussed the documents riled on behalf of the parties and has held that the legality or otherwise of the decree obtained in the partition suit and the documents (sale deeds) referred to above, could not be finally adjudicated in the criminal proceeding. According to the trial Court, it was mainly concerned with the actual physical possession of the parties over the house in question on the date of occurrence. The finding, in my view, is absolutely correct and there is no reasonable ground to differ with the same. 32. D. W. 2 Shambhu Nath Singh stated in the trial Court that plot No. 410 was jointly recorded in his name and in the name of Firaogi Lal, the father-in-law of the informant. He sold one katha of the said plot in the year 1939 and Sunaina Kuar also sold one katha in 1944. The remaining area of one katha, fourteen dhurs and twelve dhurkies was subject-matter of partition suit tiled by Sunaina Kuar and her daughter in the year 1962. The final decree (Ext. C) was prepared in the year 1965 on the basis of the compromise between the parties. He further stated that the parties came in possession of their respective shares. He, thereafter, executed a sale-deed for eight dhurs and six dhurkis of his share of the land in favour of appellant Thakur Singh by registered sale-deed on 14-4-1981. When asked in cross-examination, he admitted that he was living in Pirmuhani Muhalla from 1973 to 1981 in the house of Shri Ambika Babu, advocate, with whom he was attached as a Clerk, He denied the defence suggestion that he had no share in the house in question, as he had sold his entire share in the year 1939, But on his own admission, he was not residing in the house in question even after the decision of the partition suit in the year 1965. He (D. W. 2) could not any whether his name was mentioned in the voter list of Muhalla Ranighat, Although, he claimed that he had a Ration Card but could not disclose the name of the dealer who was supplying ration to him while residing in that house. He further said that the said Ration Card was misplaced by his son, 33. D. W. 1 Sheo Kumar Prasad is also a clerk of an Advocate. Both D. Ws. 1 and 2 are residents of the same village Gokulpur. He (D. W. 1) tried to support the defence case on all the points regarding the sale of the land, the partition suit, execution case, as also about the physical possession of the parties over the disputed house. He admitted that for the first time he gave statement in the court on the said points. When asked, he stated that maternal uncle of Shambhu Babu (D. W. 2) had been residing in the disputed house from the year 1960, which is contradictory to the evidence of D. W. 2. Being a co-villager of D. W. 2 and of the same profession, apparently, he is a highly interested witness. When the claim regarding possession of D. W. 2 over a portion of the disputed house is so doubtful, it is not possible to hold that appellant Thakur Singh was put in physical possession over any portion of the house in dispute by his vendor (D. W. 2), 34. It has already been held that (P. Ws. 1, 4, 6, 9 and 13 are the most natural witnesses of the occurrence. Their evidence is cogent, consistent and trust worthy, which is amply corroborated by the medical evidence and the objective findings of P. W. 19 (the Police I. O.). The most significant part of this case is that the first information report was lodged only within a few minutes of the incident. The Police appeared at the scene of occurrence having heard the sound of firings of gun. The appellants were apprehended with gun, lathi, iron rod, khanti and other house breaking instruments at the spot. The dead body of Arbind Kumar was seen lying in the house. The informant and his family members, when placed in that situation could not have joined their heads to concoct the story as presented by the prosecution from the very beginning. The appellants were apprehended with gun, lathi, iron rod, khanti and other house breaking instruments at the spot. The dead body of Arbind Kumar was seen lying in the house. The informant and his family members, when placed in that situation could not have joined their heads to concoct the story as presented by the prosecution from the very beginning. A prompt F.I.R. with relevant and broad details, further a very sound foundation to the prosecution story. Promptness, generally, eliminates the possibility of fabrication and concoction. Thus, it is too hard to believe that the informant, his wife and his sons, including the deceased, were injured by their own men and manufactured the prosecution story to falsely implicate the applicants. 35. Lastly it was contended by Mr. Rai that appellant Nand Kumar was a child at the time of occurrence within the meaning of Bihar Children Act and his trial was void ab initio and consequently the conviction and sentence passed against him could not be maintained. This point was neither taken in the trial Court nor there is any mention about it in the memo of appeal. No material is available on the record for drawing any definite conclusion that this appellant was below sixteen years of age at the time of occurrence. The learned trial Court assessed his age as eighteen years on 16-8-1983 when his statement was recorded under Sec.313 of the Code of Criminal Procedure (hereinafter referred to as the Code). It was only by rough estimate that the learned trial Court assessed his age. The occurrence took place on 19-8-1981. So even on the basis of the assessment of the age by the trial Court, this appellant was aged more than sixteen years on the day of occurrence and hence there is no merit in this argument. 36. Mr. Prasad, appearing on behalf of other appellants, strenuously argued that appellants Sheodutta Mishra and Jamuna Rai had nothing to do with the possession of the house. Even according to the prosecution case at the time of occurrence they were neither armed with any weapon nor made any attempt to cause hurt to the informant and his family members. It was submitted that they did not share the common objects of the other appellants, if any and consequently there was no material to hold that they were members of an unlawful assembly. They were mere labourers. It was submitted that they did not share the common objects of the other appellants, if any and consequently there was no material to hold that they were members of an unlawful assembly. They were mere labourers. It was urged that even if the prosecution evidence was accepted as correct on its race value, only an offence punishable under Sec.143 of the Penal Code was made out against these two appellants. In support of this argument, reliance was placed on Ram Charan V/s. Emperor. A.I.R. 1936 Patna 242. In my view, this decision does not help the appellants. In the subsequent decision Udil Narayan Singh and Anr. V/s. Emperor A.I.R. 1947 Patna 27(sic), a Bench of this Court has clearly observed that it was not bound to follow Ram Charans case. 37. It is well-settled that in order to constitute an unlawful assembly, apart from the minimum numerical strength of five persons, the member of such assembly must be actuated to commit one of the offences as specified in Sec.141 of the Code. The question as to what is actual common object of the unlawful assembly is entirely a matter of inference depending upon the facts and circumstances of each case. For the sake of convenience, Sec.149 of the Penal Code may be considered in two parts. The first part envisages that the offence committed in prosecution of the common object must be one which is committed with a view to achieve the common object. As regards the second part, even if the offence committed is not the direct result of the prosecution of the common object of the assembly, still it may fall under this section if it is found that the offence was such as the members knew that it was likely to be committed. 38. In the instant case, the occurrence took place at a time which is not the normal working hour for the labourers. The house breaking instrument such as iron Khanti, hammer and chisel were recovered from the possession of some of the appellants. The fact that some of the members were armed with lathi, iron rod and a lethal weapon like gun clearly indicates that they apprehended stiff resistence and went determined to take forcible possession of the house at any cost. The house breaking instrument such as iron Khanti, hammer and chisel were recovered from the possession of some of the appellants. The fact that some of the members were armed with lathi, iron rod and a lethal weapon like gun clearly indicates that they apprehended stiff resistence and went determined to take forcible possession of the house at any cost. Each member of the assembly, therefore must be presumed to know that in prosecution of the common object, death of the person creating obstruction in achieving it, was likely to be caused P. Ws. 1, 4 and 13 categorically stated that sound of gun firing and breaking of the wall were heard even after they had moved in the room for safety from the verandah. This gives a clear inkling of the attitude of the appellants that they had gone to the place of occurrence with full determination to overcome any resistence even to the extent of committing murder. Thus, it can safely be concluded that the appellants had formed themselves in an unlawful assembly, the common object of which was to take forcible possession of the disputed house and in order to achieve the said object appellant Omprakash committed murder of Arbind Kumar and caused gun-shot injuries to other victims. 39. It is worthwhile to mention that a specific charge under Sec.302 of the Penal Code was framed against appellant Om Prakash by the trial Court for intentionally causing the murder of Arbind Kumar. He was also charged under Sec.307 of the Penal Code for making attempt to cause death of P. Ws. 1, 4, 9, 13 and Shashi Devi, No finding was recorded by the trial Court with regard to the said charges. It appears that the evidence has been adduced on behalf of the prosecution against this appellant in support of the said charges. No argument was adduced by the parties on this point and thus, 1 do not consider it necessary to deal with it. 40. After careful consideration of the evidence and giving anxious thought to the argument placed on behalf of the appellants, I find that the prosecution successfully proved the allegations made against the appellants beyond all reasonable doubts and there is no significant reason to interfere with the judgment. 41. 40. After careful consideration of the evidence and giving anxious thought to the argument placed on behalf of the appellants, I find that the prosecution successfully proved the allegations made against the appellants beyond all reasonable doubts and there is no significant reason to interfere with the judgment. 41. In the result, all the three appeals are dismissed and the conviction of the appellants and the sentences passed against them are maintained. M.P.Varma, J. 42 I agree.