P. M. CHAUHAN, J. ( 1 ) BOTH these appeals arise out of the same judgment and order dated 7-4-1983 by the learned Additional Sessions Judge Rajkot camping at Gondal convicting three accused and acquitting eight out of the eleven accused in Sessions Case No. 43 of 1980 holding that the prosecution has failed to establish that all the accused were the members of the unlawful assembly and holding accused No. 2 Harijan Bechar Badha accused No. 6 Harijan Jetha Samant and accused No. 7 Naja Samant guilty for the offence punishable under sec. 302 of the Indian Penal Code for committing the murder of Harijan Dana Pitha. As three accused ate convicted they have preferred Criminal Appeal No. 423 and as the eight accused are acquitted the State has preferred Criminal Appeal No. 634 of 1983 against seven accused and has not preferred appeal against accused No. 11 Patel Parbat Bechar. . . . . . . . . . . ( 2 ) ON 26-4-1981 in the morning Dana Pitha had gone to the market at Amberdi village and his son Ramji and other two sons had gone to the filed for labour work. Witness Uga Lakha had gone to the house of Dana Pitha as Danas wife Devuben considered him as his brother. On coming to know that Dana had gone to the market he also went to the market. Ramji son of Dana and his two brothers returned from the field at about 8. 30 a. m and when they reached the outskirts of the village Ramji went home to leave the shovel and his two brothers went to the village market. While Ramji was going home he saw his father Dana and Uga Lakha proceeding towards home. After Ramji reached home and left the shovel within a short time he heard the shout of Uga Lakha that Dana was being caused hurt. ( 3 ) FOR going to the house of Dana Pitha situated in Harijan Vas at Amberdi village Dana and Uga were proceeding on the road on side of which cattle poudi is situated. That road is in the south-north direction and houses of accused No. 9 Kala Pitha and accused No. 10 Pala Pitha are situated towards the estern side of that road. On the western side nearby there are other houses. That road is in the south-north direction and houses of accused No. 9 Kala Pitha and accused No. 10 Pala Pitha are situated towards the estern side of that road. On the western side nearby there are other houses. That road meets another lane proceeding in east-west direct on and in that lane house of deceased Dana is situated. Dana and Uga were proceeding to the house of Dana and when they passed by the house of Pala Pithas a stone was pelted by Pala Pitha from the terrace of his house which according to the prosecution hit deceased Dana. Immediately other accused rushed armed with weapons like Dharia axe pick-axe (Trikam) pipes and sticks from the Dela of accused No. 3 Gova Daya. According to the prosecution accused No. 1 Dhana Badha inflicted Dharia blow on Dana accused No. 2 Bechar Badha inflicted a pipe blow on the head of Dana and accused No. 6 Jetha Samant inflicted axe blows on Dana accused No. 7 Naja Samant inflicted pick-axe blow on deceased and the rest of the accused started causing injuries to deceased Dana with pipes slicks etc. ( 4 ) AFTER leaving the shovel at home when Ramji came out he heard the shout of Uga for help and so he rushed to the place. Devuben wife of deceased Dana was sitting in the Osari of her house taking out seeds from the Chola pulse pods and on hearing about of her daughter who was playing in the lane she also rushed to the scene of incident and saw accused No. 1 Dhana Badha giving Dharia blows to her husband Dana accused No. 6 Jetha Samant causing injury with an axe and accused No. 7 Naja Samant causing injury with pick-axe and the rest of the accused causing injuries to deceased D3na with pipes sticks etc. ( 5 ) ON being caused injuries deceased Dhana bad fallen down on the ground. Meanwhile Uga Lakha told Ramji that he would go to Khadvanthali village to phone to Gondal Police from there and he went in a tempo to that village. ( 5 ) ON being caused injuries deceased Dhana bad fallen down on the ground. Meanwhile Uga Lakha told Ramji that he would go to Khadvanthali village to phone to Gondal Police from there and he went in a tempo to that village. Witness Lakhabhai Limbabhai met him in that village and they contacted the Sarpanch of village Khadvanthali and thereafter Lakha phoned from there to Gondal Taluka Police Station and informed that at Harijan Vas in village Amberdi quarrel bad taken place amongst the Harijans and police may be immediately sent Jamadar R. R. Shukla of Vasavad Out-post was on that day at Gondal Taluka Police Station and Police Station Officer C. P. Dave directed him at about 10-00 or 10-15 a. m. to proceed to village Amberdi. Jamadar Shri Shukla then went to village Amberdi in Police Jeep and came to know that Dana Pitha was murdered and he recorded the complaint of Ramji Dana and sent it to Gondal Taluka Police Station for registration. The offence was registered by Isa Musa at the said Police Station and Assistant Superintendent of Police Shri V. S. Gupta was informed who took over the investigation and went to the scene of offence. He prepared the inquest panchnama and the panchnama of the scene of offence and recorded the statements of Devuben Uga Lakha and other witnesses. After due investigation charge-sheet was submitted and on trial the learned trial Judge convicted 3 accused and sentenced them to suffer imprisonment for life and acquitted 8 accused. . . . . . . . . . . . . ( 6 ) FOR asserting their submissions the learned Advocates have taken us through the evidence and for the purpose of appreciation of rival contentions it is necessary to consider the evidence on record. It is also necessary to assess scan and scrutinise the evidence with a view to consider that the evidence is reliable on which conviction can be based or that the learned trial Judge has wrongly appreciated the evidence or has failed to appreciate the evidence on record and the finding by the learned trial Judge is perverse. We have therefore to consider the evidence in extenso. We have also to consider as to whether the learned trial Judge has erred in applying the principle relating to the unlawful assembly and the relevant provisions of secs. We have therefore to consider the evidence in extenso. We have also to consider as to whether the learned trial Judge has erred in applying the principle relating to the unlawful assembly and the relevant provisions of secs. 141 147 148 and 149 of the Indian Penal Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 7 ) FROM the above discussion it is clear that the place of incident and the place where the dead-body was lying are situated on the junction of aforesaid two lanes and from there the view in both the lanes was clear. Houses of Gova Daya and Pala Pitha are situated there. House of deceased Dana is situated nearby at a distance of about 65 feet from the place of incident. The fact that the place of incident and the place where the dead-body was lying are situated at the junction of the two lanes is more important to appreciate the evidence of complainant Ramji and witness Devuben as according to them they rushed to the scene of offence on hearing the shouts. The learned trial Judge while appreciating the evidence has not considered this aspect in its proper perspective. . . . . . . . . . . . . . . . ( 8 ) COMPLAINANT Ramji is the son of deceased Danl Pitha and the incident had occurred nearby his house. The place of incident could be clearly seen from just outside his house. It is only alleged against him that normally he would be in the field as he used to go for doing labour work. He is a young boy aged 20 wears and he clearly stated that himself and his two younger brothers had gone to the Wadi of Patel Mepa Pancha just to put manure in the field and they had kept that work on lump sum basis. On previous days also they had gone to the field of Patel Mepa at about 6. 00 a. m. and returned at about 8. 30 a. m. and on the day of the incident also they hid returned at 8. On previous days also they had gone to the field of Patel Mepa at about 6. 00 a. m. and returned at about 8. 30 a. m. and on the day of the incident also they hid returned at 8. 30 a. m. It cannot therefore be accepted that he must not be present at the time of the incident at the place of incident and must not have seen the incident as he must be at the field at than time. His complaint (Ex. 60) was recorded at the earliest possible opportunity. Head Constable R. R. Shukla (Ex. 58) of Vasavad Out-post was informed by Police Station Officer of Gondal Taluka Police Station to go to village Amberdi as information was received that some incident had occurred at that village and therefore he want there and recorded the complaint of Ramji. It is quite natural that Ramji being a young boy must be perturbed as his father was murdered. It is true that there are some minor contradictions in his evidence and the complaint but those contradictions are not such that his evidence should be discarded or he may be branded as a got-up witness or a liar. The learned Advocates for the accused tested his veracity by cross-examining him at utmost length but he stood the test of cross-examination. If at all he would not have been the eye-witness to the incident he could not have stood such test of cross-examination. The learned trial Judge has therefore rightly accepted his evidence and we see no reason to discard his evidence or doubt his veracity and we consider it safe to rely on his testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 9 ) PLACE of the incident and the time of the incident and the fact that the deceased was caused about 12 injuries are discussed above in extenso. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 9 ) PLACE of the incident and the time of the incident and the fact that the deceased was caused about 12 injuries are discussed above in extenso. Place of incident is just at a distance of about 65 feet from the house of Devuben. When such incident occurred it is quite natural that there would be uproar and on hearing shouts she would rush to the place of incident. She is therefore most natural witness to the incident and in lengthy cross-examination nothing is brought out to disbelieve her. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 10 ) THE learned trial Judge has not relied on the evidence of Devuben considering the minor contradictions in her evidence. In paragraph 14 of judgment the learned trial Judge has observed that Devuben stated that she heard the shouts of her daughter while complainant Ramji and Uga Lakha have not stated that fact and therefore it is difficult to believe Devubens story that her daughter had shouted and on hearing of the shout she went out of the house and saw the incident. Ramji was already on the way and he heard the shout of Uga and therefore either he could not have heard the shout of Dahi or it was not necessary to state that fact and therefore he would not have stated that Dahi had shouted. Similarly Uga was nearby the place of incident and was coming from that place and therefore he would not have heard the shout or it might not be necessary and therefore he might not have stated that fact. Similarly Uga was nearby the place of incident and was coming from that place and therefore he would not have heard the shout or it might not be necessary and therefore he might not have stated that fact. Merely because these two witnesses did not state that they heard the shout of Dahiben it would not lead to an inference or conclusion that Devuben is not telling the truth. . . . . . . . . . . . . The learned trial Judge doubted and discarded the evidence of Devuben on unconvincing reasons. She is the most natural witness to the incident and we have no hesitation to say that that observation of the learned trial Judge is not based on reasonable inferences and is nothing but perverse. It is true that Valiben being interested witness her evidence should be scrutinised with due care and caution. But that is entirely a different aspect. As such evidence of Devuben is cogent convincing and reliable to the extent which we will consider when we consider evidence against each of the accused. ( 11 ) THE learned trial Judge has discussed the evidence relating to the throwing of the stone and while considering whether unlawful assembly was formed by the accused observed that accused Kala and Pala had not shouted and the rest of the accused had not come out in pursuance of their shout and therefore no unlawful assembly was formed. In the view of the learned trial Judge there was no pre-meditation or preconcert and therefore it could not be said that the accused were the members of the unlawful assembly In paragraph 19 of the judgment the learned trial Judge observed that after stone was thrown from the terrace of accused No. 10 Kala it hit the head of deceased Dana and thereafter the remaining incident occurred. He has observed:. . SO from this evidence we cannot cull out that the accused bad formed an unlawful assembly with the sole object or intention to cause the death of Dana Pitha and that they carried out their intention by putting Dana Pitha to death. He has observed:. . SO from this evidence we cannot cull out that the accused bad formed an unlawful assembly with the sole object or intention to cause the death of Dana Pitha and that they carried out their intention by putting Dana Pitha to death. What is required to be established for unlawful assembly is that there must be a pre-concert or pre-meditation on the part of the accused and in furtherance of that pre-concert or pre-meditation they ought to have gathered armed with their weapons in order to carry out their common intention and thereafter to accomplish their object. Here none of these ingredients is established in our case merely because if we go by the prosecution case then simply by having the number of accused gathering cannot be said to be termed into an unlawful assembly. It is pertinent to note going by the prosecution case that neither the accused No. 9 has Pitha nor the accused No. 10 Pala Pitha shouted or made any sound or noise after throwing the stone on the held of deceased Dana Pitha and as a result of that shout noise or sound the rest of the accused gathered and then assaulted the deceased Dana Pitha to death. Therefore in view of the circumstances I am of the opinion that the prosecution has failed to establish the unlawful assembly on the part of the accused within the meaning of secs. 147 148 149 IPC and that therefore we will have to consider the individual act on the part of each of the accused and whether those individual acts constitute any offence so far as each of the accused is concernedit is obvious that the learned trial Judge has confused himself on the point of the unlawful assembly under sec. 141 and common intention under sec. 34 of the Indian Penal Code. So far as unlawful assembly the common object of which is to commit the offence as specified in sec. 141 Indian Penal Code is concerned no pre-concert or prior meeting of minds is necessary. Common intention is the result of prior concert and can develop as people get together. 34 of the Indian Penal Code. So far as unlawful assembly the common object of which is to commit the offence as specified in sec. 141 Indian Penal Code is concerned no pre-concert or prior meeting of minds is necessary. Common intention is the result of prior concert and can develop as people get together. ( 12 ) IN Sukha v. State of Rajasthan AIR 1956 Supreme Court 513 finding was that eleven accused who were charged for the murder were involved in beating an injured person and that satisfied one of the ingredients of rioting viz presence of 5 or more persons. Distinction between a common object and a common intention is explained in paragraph 29 and it is observed:but a common object is different from a common intention in that it does not require prior concert and a common meeting of minds before the attack and an unlawful object can develop after the people get there. It is not for us to re-assess the evidence in special leave. All we can say is that there are circumstances from which Courts of fact could deduce that an unlawful object developed with more than five to share it once the marpit had started and as two Courts of fact are satisfied that it did there is no reason for us to interfere. It is therefore clear that for establishing unlawful assembly common object of which was to do illegal act or crime it is not necessary that there should be prior concert or common meeting of minds before the offence is committed or the attack is made. Same view is expressed by the Assam High Court in Mubeswar Ali Barbhuya v. State of Assam 1983 Criminal Law Journal (N. O. C.) 7. ( 13 ) AS provided in sec. 141 of the Indian Penal Code an assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to commit an offence. Being a member of the unlawful assembly is punishable under sec. 143 of the Indian Penal Code. The essence of the offence is the common object of the persons forming the assembly. Whether the object is in their minds when they come together or whether it occurs to them afterwards is not material. Being a member of the unlawful assembly is punishable under sec. 143 of the Indian Penal Code. The essence of the offence is the common object of the persons forming the assembly. Whether the object is in their minds when they come together or whether it occurs to them afterwards is not material. What is necessary is that the object should be common to the persons who compose the unlawful assembly that is that they should all be aware of it and concur in it. If force is used by the unlawful assembly or by any member of the unlawful assembly in prosecution of the common object of it then every member of the assembly is guilty of the offence of rioting as provided in sec. 146 of the Indian Penal Code and is punishable under sec. 147 of the Indian Penal Code. If the members of the unlawful assembly guilty of rioting are armed with deadly weapons that offence is punishable under sec. 148 of the Indian-Penal Code. As provided in sec. 149 Indian Penal Code of the offence is committed by any member of the unlawful assembly in protection of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object every person who at the time of the committed of that offence is a member of the same assembly is guilty of that offence. ( 14 ) IT is therefore evident that the learned trial Judge confused himself about the common intention and the unlawful assembly the common object of which was to commit the offence. If the evidence is clear that five or more accused assembled or were present at the time of committing of the offence of causing death or injuries to deceased Dana they all should be held guilty of the offence committed in furtherance of the common object of the unlawful assembly. For that preconcert or prior meeting of minds was not necessary. As the learned trial Judge has proceeded on wrong premises wrong interpretation and understanding of law his judgment is perverse to that extent. For that preconcert or prior meeting of minds was not necessary. As the learned trial Judge has proceeded on wrong premises wrong interpretation and understanding of law his judgment is perverse to that extent. ( 15 ) BEFORE considering as to whether five persons were present law on the point of unlawful assembly and common object and liability of the members of the unlawful assembly be considered as it is now well-settled by several judgments of the Supreme Court. In Masalti v. State of Uttar Pradesh AIR 1965 Supreme Court 202 law on the point of unlawful assembly and liability of the person is clearly laid down and it is observed:that the mere presence in an assembly does not make a person who is present a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly or unless the case falls under sec 142 I. P. C. cannot be read ai laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly it cannot be and that he is a member of such an unlawful assembly What has to be proved agaist a person who is alleged to be a member of an unlawful assembly is that he was one of the person constituting the assembly and he entertained along with the other members of the assembly the common object as defined by sec 141 I. P. C An assembly of five or more persons actuated by and entertaining one or more of the common objects specified by the five clauses of sec. 141 is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by sec. 141. While determining this question it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact sec. 141. While determining this question it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact sec. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of than assembly know to be liked to be committed in prosecution of that object every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by sec. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. The observations in AIR 1956 SC 181 are also explained. ( 16 ) IN Bishambar Bhagat v. The State of Bihar AIR 1971 Supreme Court 2381 it is laid down that it is a question of fact in each case as to whether a person happens to be innocently present at the place of the occurrence or was actually a member of the unlawful assembly. In Muthu Naicker v. State of Tamil Nadu AIR 1978 Supreme Court 1647 the observations are:. . . IN a faction ridden society where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut ones eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted Simultaneously it is to be borne in mind that in a situation as it unfolds in the case before us the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the mere is a tendency which is more often discernible and is to be aschewed and therefore the evidence has to be examined with utmost care and caution. It is in such a situation that this Court in Masalti s. State of U. P. (1964) 8 S. C. R. 133: ( AIR 1965 SC 202 ) adopted the course of adopting a workable test for being assured about the role attributed to every accused. To some extent it is inevitable that we should adopt that course. The formation of the unlawful assembly and the common object of the unlawful assembly can be judged and decided from the facts and circumstances of the case. The object of the unlawful assembly can be inferred from the acts the conduct of the members and the surrounding circumstances of the case. Where five or more accused persons armed with lethal weapons attack the deceased person it can be inferred from the acts committed by them that they formed an unlawful assembly with the common object of committing murders In the instant case the learned trial Judge has proceeded to consider the individual acts and held accused Nos. 2 6 and 7 individually liable for the murder of Dana punishable under sec. 302 of the Indian Penal Code. As the learned trial Judge mis-interpreted the provisions of sec. 141 etc. of the Indian Penal Code and held that pre-concert or pre-meditation is necessary for committing the offence of unlawful assembly the common object of which was to commit the offence the approach of the learned trial Judge to that extent is unreasonable unjudicious perverse and vitiated by manifest illegality. ( 17 ) BEFORE proceeding on to consider as to whether all or any of the accused were the members of the unlawful assembly the common object of which was to commit murder of Dana we would like to make it clear that we are conscious of the limitation of the jurisdiction of the High Court in acquittal appeal. It is now well-settled that the jurisdiction of the High Court while considering the acquittal of the accused is circumscribed and when two views are possible and if the High Court on appreciation of evidence comes to another conclusion than the one expressed by the lower Court that by itself is not sufficient to set aside the acquittal and convict the accused. Judgment of the lower Court can be interfered with if it is vitiated by manifest illegality or the conclusion recorded by that Court is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and therefore liable to be characterised as perverse. ( 18 ) IN Muthu Naicker v. State of Tamil Nadu AIR 1978 Supreme Court 1647 reiterating the law on the point it is observed:the High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of PW 2 and PW 6 were either unreasonable or perverse. What the High Court has done is to make an independent re-appraisal of the evidence on its own and to set side the acquittal merely on the ground that as a result of such re-appreciation the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge. This Court has repeatedly pointed out that the mere fact that the appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence to the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is therefore liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one the appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroneous. We should therefore consider as to whether the judgment of the trial Court is vitiated because of the manifest illegality or appreciation of evidence is perverse and the Court acting reasonably and judiciously could not have possibly arrived at the conclusion arrived at by the learned trial Judge. ( 19 ) IT is evident from the evidence of complainant Ramji and witnesses Uga and Devuben that accused Nos. 1 to 8 and 11 carne from the Deli of Gova Daya and they were armed with weapons. Their evidence is discussed above in detail and it is clear that all said accused had come well armed from the Deli of Gova Daya and caused injuries by sharp cutting weapons like Dharia and axe pointed weapon like pick-axe and blunt weapons like sticks and pipes to deceased Dana. From the very act of coming out of the Deli of Gova armed with deadly weapons and causing injuries to deceased Dana common object is manifestly clear that it was to commit the murder of Dana. It is not necessary to repeat the evidence discussed above however to recapitulate it may be narrated in brief. . . . . . . . . . . . . . . . . . . . . . ( 20 ) FROM their evidence it is clear that accused Nos. 1 to 8 and 11 all came from the Deli of Gova armed with different weapons and caused severe injuries i. e. in all 12 injuries to deceased Dana. Merely because some of the accused came first and others followed them by itself is not sufficient to hold that they were not the members of the unlawful assembly. First of all three accused started causing injuries and other five accused followed and they all started causing injuries. Two fatal injuries one on the head and another on the neck were individually sufficient in the ordinary course of nature to cause death. It should therefore be held that accused Nos. 1 to 8 were the members of the unlawful assembly the common object of which was to commit murder of deceased Dana. . ( 21 ) IT is now well-settled law that is not necessary that each member of the unlawful assembly should cause injury to share the common object of the unlawful assembly. 1 to 8 were the members of the unlawful assembly the common object of which was to commit murder of deceased Dana. . ( 21 ) IT is now well-settled law that is not necessary that each member of the unlawful assembly should cause injury to share the common object of the unlawful assembly. If from the fact that the accused were armed with deadly weapons and from their conduct it is established that the common object of the assembly was to commit the murder of deceased Dana then each of the members of the unlawful assembly should be held liable for committing the murder punishable under sec. 302 read with sec. 149 of the Indian Penal Code. As the witnesses have stated that each of the accused caused injuries it should also be considered as to which injury was caused individually by particular accused. ( 22 ) THE learned trial Judge held that the unlawful assembly and the common object of that assembly to commit the offence is not established and therefore he proceeded on to consider the evidence against each individual accused and convicted accused Nos. 2 6 and 7 for the offence of murder punishable under sec. 302 of the Indian Penal Code and acquitted the rest of the accused. While considering the evidence against accused No. 1 Dhana Badha the learned trial Judge in para 23 of his judgment observed that complainant Ramji stated in his complaint that accused No. 1 gave a Dharia blow on the face of his father while in his evidence he stated that the Dharia blow was inflicted on the head of his father and at the later stage he corrected himself and stated that the Dharia blow was given on the left side of the face of his father. In cross-examination some minor contradictions are brought out that the accused who inflicted a blow on the face also caused injury on the head of his father and he had not seen any other person causing injury to his father. The learned trial Judge also observed that in cross-examination complainant Ramji stated that he had not seen Dhana Badha giving a blow on the head of his father and he reiterated that Dhana Badha given blow on the face of his father and that was the first blow. The learned trial Judge also observed that in cross-examination complainant Ramji stated that he had not seen Dhana Badha giving a blow on the head of his father and he reiterated that Dhana Badha given blow on the face of his father and that was the first blow. The learned trial Judge has observed:so looking to this part of his evidence we and that if we go by his evidence then Dhana Badha bad given two Dharia blows both on the head and face of deceased Dana Pitha when the complainant Ramji Dana says that the first blow which he saw was on the face of his father and that same person also gave the blow on the head of his father But Ramji Dana sticks to his case that the accused Dhana Badha gave a Dharia blow on the face of his father only and not on the head of his father So looking to this material contradiction in this evidence of the complainant Ramji Dana it appears that the complainant Ramji Dana is confused as to who gave the Dharia blow on the face of his father and he is not able to know as to the person who actually gave the Dharia blow on his father because if we go by his case then surely the accused No. 1 has not given the Dharia blow on the head of his father whereas the complainant has said that two Dharia blows were given on his father one on the head and one on the face and later on he resiled from his statement by saying that only one Dharia blow was given Thus from this it is difficult to believe that the Dharia blow was given by the accused No. 1 Dhana Badhathis appreciation of the evidence of complainant Ramji relating to the injuries caused by Dhana Badha is mis-reading of evidence and is nothing but perverse. Ramji has clearly stated that Dharia blow was inflicted by accused No. 1 Dhana Badha on the face of his father. Merely because at one stage be stated that injury was caused on the head and immediately corrected himself is not by itself sufficient to discard his evidence. Medical evidence on the point is very clear. Dr. Vasavada (Ex. Ramji has clearly stated that Dharia blow was inflicted by accused No. 1 Dhana Badha on the face of his father. Merely because at one stage be stated that injury was caused on the head and immediately corrected himself is not by itself sufficient to discard his evidence. Medical evidence on the point is very clear. Dr. Vasavada (Ex. 32) has stated that incised wound was on the left side of the forehead and a punctured wound was in between the eye-brows. Another punctured wound was on the left side mandible region and incised wound could have been caused by Dharia and punctured wound could have been caused by the pointed edge of Dharia. It is also possible that incised wound and punctured wound could have been caused by one blow of a Dharia. Witnesses are also clear that only accused No. 1 was armed with a Dharia and no other accused was armed with such a weapon. Conclusion therefore is inevitable that those injuries referred to above must have been caused by a Dharia by accused No. 1 Dhana Badha. Witnesses Uga Lakha and Devuben have stated that accused No. 1 caused Dharia injuries to deceased Dana. We fail to understand the reasoning adopted by the learned trial Judge to holding that the prosecution has not established the injuries caused by accused No. 1. The finding by the learned trial Judge is unreasonable and no Court after accepting the evidence of complainant Ramji and witness Uga could have come to such a conclusion. It is an unreasonable and perverse conclusion we hold that accused No. 1 Dhana Badha was present and was the member of the unlawful assembly and he caused the above referred injuries with a Dharia to deceased Dana. . . . . . . . . . ( 23 ) SO far as the reasons adopted by the learned trial Judge for acquitting accused Nos. 1 3 4 5 8 9 10 and 11 are concerned it is necessary to consider them and ascertain whether the finding and conclusion arrived at by the learned trial Judge are perverse unreasonable or manifestly illegal. The learned trial judge commented on the evidence and advanced the reasons for acquitting the said accused in paragraph 29 of the judgment. 1 3 4 5 8 9 10 and 11 are concerned it is necessary to consider them and ascertain whether the finding and conclusion arrived at by the learned trial Judge are perverse unreasonable or manifestly illegal. The learned trial judge commented on the evidence and advanced the reasons for acquitting the said accused in paragraph 29 of the judgment. After considering the evidence of complainant Ramji regarding the chronological order in which the accused came and his statement in the complaint the learned trial Judge observed:looking to his evidence the complainant Ramji Daya is confused and he is not sure as to whether at what point of time or in what manner the accused Nos. 1 3 4 5 8 and 11 came out from the Deli of Gova Daya and in what chronological order they came out from there. He also considered the evidence of Uga Lakha and observed that there is some contradiction about the sequence of the accused coming out from the Deli of Gova. About causing the injuries the learned trial Judge observed:. . . . . NOW if really all the aforesaid accused had swelled upon the deceased Dana Pitha stick pipe blows then surely there would have been equal number of injuries on the deceased. But Uga Lakha in his evidence has said that he has only seen three to five stick blows whereas the complainant has said that six to seven blows in all were given to his father in the incident. . . The learned trial Judge thereafter proceeded to observe:. . . . . IF the accused who are eleven in number had given the blows then there would be only 11 injuries and not 12 injuries. If the accused had given three to four blows in all as per the testimony of Uga Lakha and six to seven blows as per the testimony of Ramji Dara then the injuries on the deceased Dana Pitha have not been explained as to how he got more injuries than six to seven injuries which would have been if he would have been given six to seven blows. This therefore would go to show that the presence of the accused Nos. 1 3 4 5 8 and 11 at the time of the incident is highly doubtfulthe learned trial Judge then observed:. . . . . This therefore would go to show that the presence of the accused Nos. 1 3 4 5 8 and 11 at the time of the incident is highly doubtfulthe learned trial Judge then observed:. . . . . THUS as discussed above the prosecution has failed to prove beyond reason able doubt that the accused Nos. 1 3 4 5 8 and 11 assaulted the deceased with pipe and stick blows and that therefore they had committed offence under sec. 502 I. P. C. and so I find them not guilty of she same offence. The reasons advanced by the learned trial Judge are not only curious but also such that no reasonable person would come to such a conclusion on the basis of such unconvincing and irrelevant reasons. It is clear from the medical evidence that out of the 12 injuries five were incised wounds and they are attributed to accused Nos. 1 and 6 who were armed with a Dharia and an axe respectively. Three injuries were punctured wounds out of which two could have been caused by the pointed portion of the Dharia and that injury is attributed to accused No. 1 and injury No. 9 could have been caused by a pick-axe which injury is attributed to accused No. 7 Naja. Out of the four contused lacerated wounds injury No. 5 was caused by accused No. 2 on the head of the deceased. Three contused lacerated wounds which were on the forehead right leg and thigh are not specifically stated to have been caused by either of accused Nos. 3 4 5 8 and It. But the evidence is clear that they had started inflicting stick and pipe blows and causing injuries to the deceased. As the accused had started inflicting the blows it could not have been stated with certainty as to which of the said five accused caused such injuries but the fact remains that they had started causing injuries. If at all those accused would not have been present such injuries would not have been found as they were caused by the hard and blunt substance and accused No. 2 who was armed with a pipe was attributed only one injury on the head. It is quite possible that when they aimed blows some blows might not have fallen on the body of the deceased. It is quite possible that when they aimed blows some blows might not have fallen on the body of the deceased. Merely because the number of injuries did not tally with the number of blows said to have been given by the five accused it does not necessarily mean that only four blows with sticks and pipes were inflicted. When a person is attacked by nine persons no eye-witness can count either the number of blows or can give exact sequence of blows. It therefore cannot be said that they were not present at the time of the incident or their presence is doubtful and they did not cause any injury or commit the assault. . . . . . . . ( 24 ) THE prosecution has therefore clearly established beyond reasonable doubt that accused Nos. 1 3 4 5 and 8 were also the members of the unlawful assembly armed with deadly weapons and had actually participated in causing the injuries. . . . . . . . . . . . . . . ( 25 ) IT is true that witness Devuben and complainant Ramji are related to the deceased and are partisan and interested witnesses and to certain extent witness Uga Lakha is also a partisan witness however merely because of the relation their evidence cannot be discarded and what is necessary is to scrutinise their evidence with caution. ( 26 ) IN the case of Masalti (supra) it is observed: There is no doubt that when a Criminal Court has to appreciate evidence given by Witnesses who are partisan or interested it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence: whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough where factions prevail in villagers and murders are committed as a result of comity between such factions Criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. Often enough where factions prevail in villagers and murders are committed as a result of comity between such factions Criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. Similar view is also expressed in Muthu Naickers case (supra ). We have appreciated the evidence of all the three witnesses with due care and caution and we are convinced that conviction of the accused can safely be based on their evidence. . . . . . . . . . . . . . . . ( 27 ) CRIMINAL Appeal No. 423 of 1983 is partly allowed. Conviction of accused No. 2 Bechar Badha and that of accused No. 6 Jetha Samat for the offence punishable under sec 302 of the Indian Penal Code and sentence are confirmed and their appeal is dismissed. Conviction of accused No. 7 Naja Samat is modified and instead of conviction under sec. 302 of the Indian Penal Code he is convicted for the offence punishable under sec. 302 read with sec. 149 of the Indian Penal Code and is sentenced to undergo imprisonment for life. ( 28 ) CRIMINAL Appeal No. 634 of 1983 is partly allowed and accused No. 1 Dhana Badha accused No. 3 Gova Daya accused No. 4 Vashram Daya accused No. 5 Harji Vashram and accused No. 8 Anand Samat are convicted for the offences punishable under sec. 148 and sec. 302 read with sec. 149 of the Indian Penal Code and each of them is sentenced to suffer imprisonment for life for the offence punishable under sec. 302 read with sec. 149 of the Indian Penal Code. No separate sentence for the offence punishable under sec. 148 of the Indian Penal Code is passed against them. They are granted time to surrender upto 21-8-1987. Appeal against accused No. 9 Kala Pitha and accused No. 10 Pala Pitha is dismissed cri. Appeals No. 423 and 634 partly allowed. .