JUDGMENT (ORAL) G.F. Couto, J. - This Appeal by the original accused is directed against the Judgment dated 28th June, 1989 continued on the next day, where by the learned Additional Sessions Judge, Margao, convicted all of them for offences punishable under Section 302 I.P.C. r/w. Section 149 I.P.C., Sections 143, 148 and 323, I.P.C. r/w Section 149 I.P.C., as well as the accused No.1 for an offence punishable under Section 504 I.P.C. also and sentenced them to Life Imprisonment and to other terms, the sentences having been ordered to run concurrently. 2. The incident which led to the conviction and the consequent sentences on the appellants took place on 26th November, 1987, at about 8.30 P.M. at Cuelim, Cansaulim and resulted in the death of one Joaquim Falcao and in injuries to his widow Marianinha and to his children Fatima and Benny. It appears that on information received, police proceeded to the site and found there the deceased Joaquim Falcao seriously injured. The investigation revealed that the families of the deceased and of the accused had for some time strained relations, which ultimately, led the deceased to make a complaint to the Village Panchayat Sarpanch, about ten days prior to the incident. Then, on 26th November, 1987, the first appellant Francisco who apparently was angry with the aforesaid complaint, came near the house of the deceased, abused and challenged him to come out. The deceased came out of his house, and at that moment, an assault followed in which not only the first appellant took part, but also the other four appellants who happen to be his sons. It is further the case of the prosecution that the deceased was assaulted by all the five appellants with sticks, sickles, coitas and other sharp instruments and that Marianinha as well as Fatima and Benny, i.e. the widow of the deceased and his children, were also assaulted by them and sustained injuries. As a result of this assault, Joaquim Falcao sustained serious injuries on the head and other parts of the body. He was given almost immediately medical aid by one Dr. Marconi, and thereafter, removed to the Hospicio Hospital where though operated and treated, came to die on 28th November, 1987. 3. As a result of this assault, Joaquim Falcao sustained serious injuries on the head and other parts of the body. He was given almost immediately medical aid by one Dr. Marconi, and thereafter, removed to the Hospicio Hospital where though operated and treated, came to die on 28th November, 1987. 3. A charge-sheet was on basis of these facts filed by the police against the appellants for offences punishable under Section 143, 148, 302, 326 and 504, all of I.P.C. r/w Section 149 of the same Code. The accused pleaded not guilty, and ultimately, by the impugned Judgment, they were convicted and sentenced as aforesaid. 4. Mr. S.D. Lotlikar, the learned counsel appearing for the appel1ants, challenges the impugned Judgment, mainly on three grounds. He indeed first submitted that the complaint filed by P.W. 1 Fatima Falcao though treated as First Information Report is not, in truth, such information and could not, therefore., be admitted in the evidence in that capacity. The real F.I.R. according to him, is the complaint made by Salvador Falcao, where the version of the incident is quite different from that given by Fatima. Therefore, this factor affects adversely the prosecution case. Secondly, he urged that the prosecution case is that the appellants formed an unlawful assembly with the common object and common intention to murder Joaquim Falcao. Now, the common object is not proved, and therefore, the prosecution failed to bring home the guilt to the appellants with the result that an acquittal ought to have been recorded. Thirdly, he contended that the case brought by the prosecution in the course of the trial constitutes a clear improvement, which otherwise, is improbable and was meant to establish and. prove the case of the prosecution. This embellishment in the facts and circumstances of the case is, according to the learned counsel, fatal to the prosecution case. 5. Elaborating the first ground, the learned counsel began to invite our attention to the evidence on record which, according to him, discloses that the case of the prosecution itself is that a telephonic message was received in the Vasco Police Station from P.W. 12 Lazarus Rodrigues and that on receiving such communication, the police acted upon it by deputing some policemen to the site. In addition, the evidence of lazarus Rodrigues further shows that after the said telephonic message to the Vasco police, he went to the Vema Police Out-Post along with one Salvador Falcao, brother of the deceased Joaquim, who filed his complaint. This complaint was duly registered in the said Police Out-Post at 11.00 p.m. of the very day of the incident and it was recorded that the complainant Salvador has stated that on 26th November, 1987, at about 21.30 hours, one Francisco Paulo Saldanha, a resident of Cansaulim had, assaulted his brother Joaquim, his nephew Benny and his niece Fatima, causing them injuries. It was recorded that, according to the complainant Salvador, the neighbours had, taken Joaquim to the Cansaulim Health Centre as he was unconscious, and further, that the Head-Constable No. 373 and the Police Constable No. 3378 had left Cansaulim to the scene of the offence. Mr. Lotlikar urged that it is clear from this recorded complaint in the Veema Out-Post that the first information of the incident was given by Salvador and the police has actually acted upon such information. Therefore, by no stretch of imagination, it can be said that the complaint of Fatima which was recorded at a later point of time, is the First Information Report. He urged that the reasons given by the learned Judge to consider and accept as First Information Report .the complaint made by Fatima, are not at all satisfactory and cannot be accepted, being a fact that the authorities relied upon by him are not either applicable or support to some extent the opposite proposition. Indeed. what the said authorities actually held is that if the information in respect of an offence is cryptic and without sufficient details, the police is not bound to act upon such complaint and may wait for more details in order to register the offence and to, act upon it. Now, according to the learned counsel, the complaint made by Salvador Falcao is far from cryptic, and on the contrary, sufficient details were given. Not only that, the police using its discretion, has acted upon such complaint by deputing some policemen to the site. Now, according to the learned counsel, the complaint made by Salvador Falcao is far from cryptic, and on the contrary, sufficient details were given. Not only that, the police using its discretion, has acted upon such complaint by deputing some policemen to the site. This being the case, obviously, the complaint made by Salvador is the First Information Report and this circumstance is most relevant in this case, because Salvador informed the police that the assailant was only the first appellant, no reference at all having been made by him to the ether appellants, whereas in the complaint made by Fatima, all the appellants are roped together. This discrepancy between the two complaints taken together with me other evidence brought by the prosecution in the course of the trial indicates that there were improvements and embellishment, of the case in order to penalise all the accused. These improvements and embellishments, according to the learned counsel, fatally affect the case of the prosecution. There is, undoubtedly, some force in the submission of Mr. Lotlikar that the complaint made by Fatima Falcao is not the real F.I.R. The prosecution evidence indeed clearly indicates that prior to the said complaint, police had not only already got information about the incident, but has also acted upon it by deputing some policemen to the spot and by initiating the investigation of the Case. In this respect, the evidence of P.W. 12 Lazarus Rodrigues is relevant, for he stated that on 26th November, 1987, at about 9.00 P.M., on hearing some noise or commotion going on, he went along with his wife and mother, towards the source of the noise, i.e. in the direction of the houses of the deceased Joaquim Falcao and the appellants. When he reached the place, he saw the deceased Joaquim lying on the ground in front of his house and at a distance of about 5 to 6 metres therefrom. Blood was oozing from the mouth and ears of Joaquim Falcao and one Dr. Marconi was administering glucose drips to him. He added he also saw the wife of Joaquim bleeding from her forehead. He further deposed that he went to the house of Dr. Blood was oozing from the mouth and ears of Joaquim Falcao and one Dr. Marconi was administering glucose drips to him. He added he also saw the wife of Joaquim bleeding from her forehead. He further deposed that he went to the house of Dr. Marconi which is situated nearby and placed a telephone call to the Vasco Police Station to inform that Joaquim was lying unconscious and bleeding heavily, adding that people were saying that there had been a fight between the said Joaquim and the appellants. He also stated that he did not disclose at that time to the police the names of the appellants nor the police asked him who was giving the information. He also stated that after returning to the scene of the offence, he took Salvador, the brother of the deceased Joaquim, to the Verna Police Out-Post for the purpose of lodging the complaint. There, Salvador lodged his complaint, which was recorded by the police and signed by the same Salvador. Soon after, the complaint was recorded, police proceeded to the spot and removed Joaquim Falcao to the Hospital. It is thus clear from this evidence that after the incident was reported to the Police Out-Post of Verna, the contents of the information were duly recorded arid after the complaint was signed, the police acted upon such complaint by proceeding to the spot, removing the deceased Joaquim to the Hospital and taking other necessary action. The evidence of Fatima Falcao corroborates that the police acted upon the information given by Salvador, since her statement was recorded in her own house and it was through this statement that the nan1es of the other appellants were disclosed and that the statements of Marianinha and Benny were recorded and they had been taken to the Hospital and brought back to their residence. The cumulative effect of this evidence, therefore, un-mistakenly indicates that the police machinery had been put in motion by the complaint made by Salvador to the Verna Police Out Post, and as such, it would appear that this complaint is, in truth and in reality, the First Information Report. The cumulative effect of this evidence, therefore, un-mistakenly indicates that the police machinery had been put in motion by the complaint made by Salvador to the Verna Police Out Post, and as such, it would appear that this complaint is, in truth and in reality, the First Information Report. The learned trial Judge, however, discarded this complaint as being the First Information Report, mainly for the reason that according to him, it was cryptic and because the Verna Police Out-Post was n0t empowered to record a F.I.R. He placed reliance to support his view in Sakharam v. The State of Maharashtra1, Tapinder Singh v. Stale of Punjab2, Soma Bhai v. Slate of Gujarat3, State of U.P. v. P.A. Madhu4 and in particular in Duraipandi Thevar and others v. State of Tamil Nadus5 where it was observed that when information to the police is based on talk of the village and the informant himself was not an eye-witness, the authorities can wait for more authentic and reliable information for taking appropriate action. The learned Judge heavily relying in these observations, held the view that the Courts should specially consider two aspects, namely whether the person who has filed the First Information Report is an eye-witness or not and whether the information has details or is cryptic. He held that, on one hand, Lazarus Rodrigues and Salvador were not eye-witnesses, and on the other, the information given by Salvador was cryptic. He, therefore, held the view that the information given by Salvador could not be held to be the F.I.R. This reasoning of the learned trial Judge is not, however, correct and it appeal's to be based on a misreading of the authorities relied upon by him. In fact, what was laid down in the aforesaid authorities is that if the information given to the police is cryptic or is given by a person who had not been an eye-witness, then, it is open to the police to wait for a more reliable and detailed information in order to act. Nowhere it has been held that the police could not and should not act on basis of such information. Nowhere it has been held that the police could not and should not act on basis of such information. It is a question that lies entirely within the discretion of the police officer who receives the said information, and hence, if such officer actually acts upon the said information and starts the investigation, the necessary conclusion is that it becomes the First Information Report. In the present case; as already seen, the police acted upon the, complaint made by Salvador to the Verna Police Out-Post. Thus, the said information constitutes even on basis of the aforesaid authorities, the First Information Report. The second ground for discarding the complaint of Salvador as First Information Report was that the Verna Police Out-Post could not receive and record a F.I.R. This was held on basis of the provision of Section 154 Cr. P.C. No doubt, Section 154 Cr. P.C. provides that every information relating to commission of a cognizable offence if given orally to an officer in-charge of a police station, shall be reduced to writing by him. Reference is made only to a police station but one has to read the said expression not in a narrow meaning but in a liberal fashion. In fact, a police station has for convenience of the discharge of the police duties and of the public in general, many branches which are dependent on it. A police out -post is one of such branches and it is a sort of an extension of the police station. Definitely, a police out-post is not an independent unit created, as it was mentioned, for the better discharge of the police duties and service to the people. This being the case, it is only natural that if an offence is committed within the area of a police out-post, the people will approach the police out-post for the purpose of informing the police about the occurrence. Thus, the stand taken by the learned Judge that the complaint made in the Verna Police Out-Post cannot be considered as a F.I.R. because Section 154 Cr.P.C. speaks of police station has no substance and force. Thus, the stand taken by the learned Judge that the complaint made in the Verna Police Out-Post cannot be considered as a F.I.R. because Section 154 Cr.P.C. speaks of police station has no substance and force. It may be mentioned also that although Section 154 speaks of an officer-in-charge of a police station, nothing turns on it because the meaning of the expression 'officer-in-charge of a police station' as assigned in Section 2 (O) of the Criminal Procedure Code is that the said expression includes, when the police officer in charge of the Police Station is absent from the station house or unable on account of illness or, other cause to perform his duties, the police officer present at the police station who is next in rank and is above the rank of constable, or when the State Government so directs, any Police Officer sq present. Thus, the fact that the complaint of Salvador was registered by head-constable makes no difference, since he was coming well within the definition of a police officer-in-charge of Police Station given in Section 2 (O) Cr. P.C. Therefore, we hold that the learned Trial Judge was entirely wrong in holding that the complaint made by Salvador was not the F.I.R. in the case and to hold therefore that the complaint of Fatima was the real and true F.I.R. 6. But if this is true and though undoubtedly the complaint made by Salvador Falcao is to be held the true F.I.R. in our view, the situation does not change, since it has not fatally damaged the prosecution case. No doubt in the complaint made by Salvador, reference to only the first appellant is made as assailant and the ether appellants are not at all mentioned unlike what happens in the complaint made by Falcao. Manifestly, this circumstances not fatal, because admittedly, neither Lazarus Rodrigues nor Salvador Falcao had witnessed the incident, for they reached the spot after the assault was already over. The information given by Salvador is, therefore, to be read in this background and has to be understood as bringing to the notice of the police that some people had been injured in an assault in which the first appellant was involved. Fatima, on the contrary, was an eye-witness and she herself was injured in the assault. The information given by Salvador is, therefore, to be read in this background and has to be understood as bringing to the notice of the police that some people had been injured in an assault in which the first appellant was involved. Fatima, on the contrary, was an eye-witness and she herself was injured in the assault. She was, in, the circumstances, in much better position to give the names of the persons involved in the assault. The discrepancy between the information given by Salvador and that given by Fatima as regards the identity of the assailants is also conclusively erased by the evidence of the other witnesses who unquestionably came to the spot. Therefore, the discrepancy existing between the information given, by Salvador and the complaint made by Fatima as regards the assailants is far from fatal. It will merely make necessary and advisable a more careful analysis of the evidence given by- the prosecution witnesses. 7. We now turn to the second challenge made by the learned counsel for the appel1ants against the impugned Judgment. It was seen that the prosecution case as reflected in the charge framed by the learned Trial Judge is that the appellants formed an unlawful assembly with the common object and intention to kill the deceased Joaquim Falcao. The learned Judge accepted the existence of the said common object, and therefore, convicted all the appellants far an offence punishable under Section 302 r/w Section 149 both of I.P.C. Now, according to Mr. Lotlikar, the learned Trial Judge has erred in recording a finding that a common abject to kill Joaquim Falcao has been proved, without discussing in detail the evidence and without recording a finding that each and every appellant has acted with the common abject and intention to kill the same Joaquim. Indeed, the only discussion as regards the earn man intention, he urged, is found in paragraph 77 of the impugned Judgment where the learned Judge merely stated that the common intention and common object were amply proved by the evidence an record. He did not however discuss the said evidence in detail, and therefore, according to Mr. Lotlikar this finding of the learned Judge is without foundation or meaning. The learned counsel further contended placing reliance in Baladin v. State of U.P.6, Bhudeo Mandal v. State of Bihar7 and Ram Bilas Singh Ors. He did not however discuss the said evidence in detail, and therefore, according to Mr. Lotlikar this finding of the learned Judge is without foundation or meaning. The learned counsel further contended placing reliance in Baladin v. State of U.P.6, Bhudeo Mandal v. State of Bihar7 and Ram Bilas Singh Ors. v. The Stale of Bihar8 that no such finding could have been recorded unless the evidence had been discussed in detail. He further urged that contrary to that the learned Judge held, the evidence on record leads to the conclusion that there was no such common abject to kill the deceased Joaquim Falcao, and at the most, there might have been same common abject to assault him. In fact, it is pertinent to note that in true F.I.R., i.e. the complaint made by Salvador Falcao in the Verma Police Out-Post, reference is made to only the first appellant as assailant and no reference at all is made to any other person, leave alone, the other appellants. Then, in the complaint made by Fatima which was treated by the learned Trial Judge as F.I.R. no rate on the incident is attributed to the appellant Alfredo. This shows that, in any event, there was no. unlawful assembly at all, and as such, it was not possible an basis of this evidence to hold that the appellants had committed an offence punishable under Section 302 r/ w Section 149 I.P.C. Therefore, the argument proceeded, an improved and embellished version was brought by the prosecution in the course of the trial in an attempt to involve Alfredo in the incident by saying that he had helped the other appellants to pull the deceased from the verandah to the place where he was fatally assaulted. Equally relevant is, according to Mr. Lotlikar, that there are substantial improvements in the statements of the prosecution witnesses in respect of the conduct of the appellant Sebastiao, since it has been brought in the course of the trial that the said appellant gave a blow on the person of Benny, making him unconscious. This improvement is found by comparing his evidence in Court with the statement given by him to the police. In fact, in the statement given before the police, he had stated that he did not know who had hit him. This improvement is found by comparing his evidence in Court with the statement given by him to the police. In fact, in the statement given before the police, he had stated that he did not know who had hit him. In addition to all these circumstances, it is relevant to note that injuries were found an the persons of appellants Nos. 1, 2 and 4 and most symptomatically, no injuries at all were detected on the bodies of the accused Sebastiao and Alfredo. The absence of injuries in the persons of these two. appellants taken together with the absence of reference in the statements given before the police, indicate that the improvements were meant to bring home the charge of the unlawful assembly with the abject to kill the deceased. Finally, the learned counsel brought to our notice the evidence of Eddie who merely talked about the assault committed by the accused Francisco and Isidoro an the person of the deceased Joaquim. The cumulative effect of to is evidence is that the prosecution failed to establish that all the five accused took part in the assault, and further, that there was a common abject to kill the deceased. Reliance was placed in this connection, in Muthu Naicker v. State of T.N.9. 8. There is no doubt that the learned Trial Judge did not make a detailed reference to the evidence while recording in paragraph 77 of the Impugned Judgment his finding that common object and common intention to kill Joaquim was proved. He indeed merely stated that in the light of the evidence on record, such conclusion was to be drawn. He observed as under: "In the light of evidence on record, I hold all the accused guilty for the murder of Joaquim Falcao under Section 302 I.P.C., read with Section 149 I.P.C. The common intention and common object is amply proved from the evidence on record. Accused Francisco Saldanha started the incident and soon thereafter accused Nos. 2 to 5 joined him. All of them had come prepared with the weapons." The above extracted portion of the impugned Judgment indicates that the finding arrived at by the learned Judge is based on the discussion of the evidence he did in the earlier part of his Judgment, in order to determine whether or not the prosecution has proved its case. All of them had come prepared with the weapons." The above extracted portion of the impugned Judgment indicates that the finding arrived at by the learned Judge is based on the discussion of the evidence he did in the earlier part of his Judgment, in order to determine whether or not the prosecution has proved its case. It was on the basis of the said discussion that he held all the accused guilty of the offence of murder punishable under Section 302 r/w Section 149 I.P.C. As regards the recording of the finding that the appellants had acted with common object and common intention, the learned Judge, however, specifically gave two reasons, namely (i) that the first appellants Francisco had started the incident and soon after the appellants Nos. 2 to 5 had joined him and (ii) that all the accused had come prepared with weapons. These two reasons were advanced after he recorded positive findings as regards the manner in which the incident, took place. 2 to 5 had joined him and (ii) that all the accused had come prepared with weapons. These two reasons were advanced after he recorded positive findings as regards the manner in which the incident, took place. He indeed after discussing in detail the evidence of the eye-witnesses, namely Marianinha, Fatima, Ushani, Benny and Eddie, accepted the version given by them that the deceased and his family members were at about 8.30 P.M. inside their house listening to the radio when the appellant Francisco came in front of their house, started abusing the deceased with filthy words and also challenged him to come out; that the deceased after some time, came out of the house with the intention to pacify the appellant Francisco by requesting him to discuss the matter on the next day; that when he came out to the verandah of his house, appellant Francisco who was in the same verandah, immediately stopped down to the first step of the flight, or 2 or 3 steps leading from the outside to the gallery; that while in that position, appellant Francisco caught hold of the lungi worn by the deceased, who in turn, caught hold of his lungi that the appellant Francisco then started pulling the deceased outside the verandah, and at the same time, whistled putting two fingers in his mouth, that the remaining appellants came rushing to the place, in groups of two each; that Marianinha put her hands around the waist of the deceased and started pulling him inside the house with help of her son Benny; that at that moment, appellant Trinidade hit Marianinha with a curved metallic object like a sickle on her head and caused her a bleeding injury; that at the same time, appellant Francisco hit Benny with a blow on his head making him to fall unconscious ; that the appellant Francisco hit the deceased with a stick blow given with the left hand on the head; that thereafter, all the accused lifted the deceased and took him near a coconut tree where he was assaulted by all of them; that the deceased started bleeding heavily from the head and Marianinha and Fatima tried, to help him and pleaded with the appellants not to continue to assault the deceased; that they were treated with scorn by the appellants and Fatima was also hit with the stick blow on one of her legs; and that in the meanwhile, Eddie came rushing to the place and stopped the appellant Francisco and another from hitting the deceased. It was on the basis of this evidence as well as of the medical evidence which disclosed that the injuries sustained by the deceased as well as by Marianinha, Fatima and Benny were caused by blunt and sharp instruments and could have been caused by sticks, sickles, coitas and knives, that the learned Trial Judge recorded the finding that the common object and the unlawful assembly were duly proved. Therefore, it is not possible to accede to the submission made by Mr. Lotlikar that the said finding was given by the learned Judge without sufficient evidence. It is true that the learned Judge did not disscuss in minute details the conduct of each of the appellants, but this does not mean that his findings tire vitiated on that count. We already mentioned that Mr. Lotlikar placed reliance in some authorities in support of his submission that a proper assessment of the evidence was necessary and that thereafter, a finding ought to have been recorded in respect of the conduct of each of the appellants in order to establish the common object. We will now proceed to advert to the said authorities. 9. The first authority relied upon by the learned counsel is the case of Baladin v. State of U.P. (Supra). That was a case where the prosecution has alleged that one party of the members of an unlawful assembly had entered the first floor of the house of one Parichhat Lodhia through the roof of the house of one Mangal Singh, which was adjacent to the south-east of Parichhat Lodhia’s house and attacked three persons who were there. The other party of the miscreants collected at the front door of Mangal Singh's house facing west. In front and on the other three sides of Mangal Singh's house, there existed the houses of the appellants in the case. Considering these circumstances, the Supreme Court observed tI1at the place of occurrence was surrounded on all the sides by the houses oftl1e appellants in that case and if the members of the families of the said appellants and the other residents of the village assembled, all such persons could not be condemned ipso facto as being members of that unlawful assembly. In such circumstances, the Court observed, it was necessary for the prosecution to lead evidence pointing to the conclusion that all the appellants before the Court had done or had committed some overt acts in prosecution of the common object of the unlawful assembly. In other words, what their Lordships of the Supreme Court laid down is that in cases where many persons are presentable the place of an offence and some of them are involved in tI1e incident, it is not possible to say that all the persons gathered are forming part of an unlawful assembly, and as such, the common object to commit the offence has to be established by proving the overt acts done by each of the persons present. The next authority is the case of Bhudeo Mandal v, State of Bihar (supra). In this case, it was observed that when a Court convicts a person with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful It was added that Section 149 creates a specific offence and deals with the punishment of that offence. Therefore, before recording a conviction under Section 149, the essential ingredients of Section 141 must be established, the emphasis being on common object. The third authority is that of Ram Bilas Singh Drs. v. The State of Bihar (supra). In that case, the prosecution has alleged that one of the appellants before the Supreme Court had brought with him in a truck a mob of 40 to 60 people to the scene of offence, including two other appellants and four persons who had been acquitted by the Trial Court. A shot was fired from the gun carried by the said appellant and one Laldeo Singh was hit on the chest, as a result of which he fell down. Thereupon, one of the persons who had been acquitted, fired from his gun and hit again Laldeo Singh. Then, another of the acquitted persons shot Laldeo Singh and killed him instantaneously. At this stage, the first appellant in the case fired two shots on one Deva Singh who was hit on the thigh, and the other appellants assaulted the same Deva Singh with lathis. Then, another of the acquitted persons shot Laldeo Singh and killed him instantaneously. At this stage, the first appellant in the case fired two shots on one Deva Singh who was hit on the thigh, and the other appellants assaulted the same Deva Singh with lathis. Some persons were charge-sheeted on basis of these facts by the police, and ultimately, four of them were acquitted. The remaining three were convicted under Section 304 Part II r/w Section 149 I.P.C. by the Trial Court. On appeal, the High Court altered their conviction into one under Section 326 r/w. Section 149 I.P.C., but maintained the conviction under Sections 147 and 426 I.P.C. When the matter came before the Supreme Court, it was contended that as there was no appeal before the High Court against the acquittal of the our acquitted persons who were alleged to have constituted the unlawful assembly along with the appellants, there could be no finding that there was an unlawful assembly of which the appellants were the members, and therefore, were liable for the acts of the other members thereof and that an accused persons cannot be held liable, vicariously for the act of an acquitted person. The Supreme Court held that even assuming that the fatal injuries were caused to Laldeo Singh by one of the four acquitted persons, it was not open to the High Court to hold any of the appellants liable for that act by resort to Section 149 I.P.C., as the legal position is that it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, and actually convict less than that number for the offence if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and the evidence led to prove this is accepted by the court ; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so ; (c) or that though the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided that in cases (b) and (c) no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence. While holding as above, the court further observed that it was the duty of the High Court to have ascertained the particular acts committed by any member or members of the assembly in furtherance of common object as also the question whether any of the appellants in that case had participated in the incident. The last authority relied upon by Mr. Lotlikar is that of Muthu Naicker v. Slate of Tamil Nadu (supra). In that case, the Supreme Court made some observations as to how parties and evidence is to be appreciated in cases of an unlawful assembly. It was observed that where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan, the distinct possibility of innocent people being falsely included with guilty cannot be easily ruled out. It was observed that where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan, the distinct possibility of innocent people being falsely included with guilty cannot be easily ruled out. Further, that in a faction ridden society where an occurrence takes place in a village involving real 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 one’s 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 such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. Bearing in mind the law laid down in the above authorities, we may turn to the evidence adduced by the prosecution in the present case. The said evidence has established; in our view, beyond any reasonable doubt that an incident took place in front of the house of the deceased Joaquim Falcao on 26th November, 1987, at about 8.30 p.m. and that the first appellant Francisco was involved in it. In his complaint made to the Verna Police Out-Post, Salvador Falcao named only the appellant Francisco as the assailant. However, in her complaint, which was recorded in the evening of the incident or in the small hours of the same night, Fatima stated that all the five appellants had taken part in the assault. Equally, while giving their evidence in Court, witnesses Marianinha, Fatima, Ushani and Benny brought a version which is to some extent at variance with and constitutes an improvement of what they stated in the police. This contradiction had been brought on record and exhibited. Equally, while giving their evidence in Court, witnesses Marianinha, Fatima, Ushani and Benny brought a version which is to some extent at variance with and constitutes an improvement of what they stated in the police. This contradiction had been brought on record and exhibited. In act, none of them had made a reference while deposing in the police to the fact that the deceased came out of the house on hearing the abuses uttered by the appellant Francisco and was then caught by the latter by his lungi. Also they did not mention anything about the whistling and the subsequent coming of the remaining four appellants to the spot as well as to the lifting of the accused and his taking near a coconut tree by all the appellants. This version was however brought by all the witnesses with remarkable consistency and uniformity while deposing in Court. Of course, Benny merely made a reference to what had happened in the balcony, since he stated that he was assaulted in the balcony itself and lost consciousness as a' result of the said assault. There was no satisfactory explanation given by the witnesses to explain why this important and material part of the incident was not mentioned by them while deposing before the police. Therefore, in the background that before the police no reference has been made to the appellant Alfredo, the only reference that can be drawn from it is that the story of the prosecution was improved and embellished in order to establish that the appellants had formed an unlawful assembly with the common object to kill the deceased Joaquim Falcao. In this background, that part of the evidence of the persecution witnesses cannot be accepted. However, this does not mean that the evidence of the said eye-witnesses is to be discarded in toto. We say so because there is some other independent evidence, which gives support and corroborates the other part of the evidence of Marianinha, Fatima, Ushani and Benny. We are referring to the evidence of Eddie who happens to be the only independent witness as well as to the medical evidence. The evidence of Eddie clearly establishes that at least appellants Francisco and Isidoro had been assaulting the deceased Joaquim with stick blows while he was lying on the ground and bleeding from the head. His evidence also establishes that Marianinha. The evidence of Eddie clearly establishes that at least appellants Francisco and Isidoro had been assaulting the deceased Joaquim with stick blows while he was lying on the ground and bleeding from the head. His evidence also establishes that Marianinha. Fatima and Benny got injured in the course of the same incident. The medical evidence also corroborates -that an assault with sharp and blunt objects; had taken place on the persons of the deceased Joaquim and the aforesaid Marianinha, Fatima and Benny. This being the position, Mr. Lotlikar is no doubt right in submitting that it was the duty of the learned Judge to assess the evidence in order to record a finding in respect of the overt acts done by each of the appellants, especially when all the eye-witnesses with the exception of Eddie, were interested and partisan. In fact, Marianinha is, the widow of Joaquim and Benny and Fatima are his children. All of them were assaulted and got injuries in the incident. So far, as Ushani is concerned, it may be mentioned that it has come on record that though she is not related to the deceased Joaquim, she used to go to sleep every night in his house and that sometimes she used to spend the day in the same house. These being the relations of Ushani with the family of Joaquim, she cannot be said to be an independent witness. 10. It was already seen that no reference to the incident in the balcony of the house, to the whistling, to the coming of the four accused to the spot, to the lifting of the deceased by all the accused and to the assault by all of them was not made by ail these eye-witnesses when they deposed before the police. It was equally seen that the witnesses themselves had not given any explanation for the omission of that relevant part of the incident nor the prosecution was able to explain it. We are, therefore, bound to discard the said part of the evidence as an improvement made in order to further the case of the prosecution that the appellants had formed an unlawful assembly with the intention to kill Joaquim. We are, therefore, bound to discard the said part of the evidence as an improvement made in order to further the case of the prosecution that the appellants had formed an unlawful assembly with the intention to kill Joaquim. However, on the strength of the rulings of the Supreme Court in Macsoodan v. State of U.P.10 and Bhimrao v. State of Maharashtra11, the evidence of the said witnesses cannot be brushed aside in totality. What it requires is to be analysed with due care and in detail. We are proceeding, therefore, to analyse the said evidence. Fatima Falcao (P.W. 1) stated that on 26th November, 1987, between 8.00 P.M. to 8.30 P.M., the first appellant came near her house, started abusing her father and saying that he had filed a false complaint with the Sarpanch of the village she was listening to the radio along with her family members and having her food. Her father, the deceased Joaquim, tried to record what the appellant Francisco was saying but he could not do it as the tape-recorder was out of order; that after some time, her father decided to go out to pacify Francisco requesting him to talk with him the next day, and according! y, he went out to the verandah of his house, followed by the witness, her mother Marianinha, her brother Benny and Ushani ; appellant Francisco was standing, at that time, in the gallery and on seeing her father, he stepped down to the last step of the staircase; he was alone and had a stick in his hand; her father Joaquim was in the first step of the gallery and Francisco suddenly pulled the fungi of the deceased who started, in turn, to tighten it ; at this stage, appellant Francisco gave two blows on the shoulder of Marianinha and whistled; immediately, appellants Isidoro and Alfredo came running from one side and the appellants Trinidade and Sebastiao from the road side; Isidoro and Alfredo immediately began pulling the deceased towards the road, and at the same time, Benny started pulling the deceased towards the house; then, the appellant Trinidade gave a sickle blow on the head of Marianinha and, the appel1ant Sebastiao hit the head of Benny with a blow. She further stated that the appellant Francisco also gave a sickle blow on the head of the deceased Joaquim, and thereafter, the latter was lifted by all the appellants and thrown near a coconut tree which is about 3 metres away from the entrance of the house; thereafter, all the accused started assaulting the deceased with sticks, sickles and knives ; she went to help her father and was, at that time, hit on her ankle by one accused with a stick blow. He shouted and Marianinha came and both of them started pleading with the first appellant to stop the assault, but the appellant Francisco sarcastically asked the witness whether she wanted her father in good condition; that with the shouts for help, Eddie came to the place and caught hold of the sticks held by the appellants Francisco and Isidoro; and that immediately after, Isidoro kicked on the mouth of the deceased Joaquim who was lying on the ground. In cross-examination, she stated that the version given by her in the complaint was different, but explained the omission as regards the incident in the verandah by saying that she was in a state of shock and nervous at the time of giving the complaint. She admitted that she had not made any reference to the whistling and to the coming of the other four accused immediately after the said whistling and to the individual assault she mentioned while giving evidence in Court, while she deposed before the police. She also admitted that she made no reference to the lifting of the deceased by all the appellants and the throwing near the coconut tree while she deposed before the police. The version of the incident given by Ushani (P.W. 5) while deposing in Court is also at variance with what she stated to the police, inasmuch as she omitted the incident of whistling, individual assault and the lifting of the deceased from the verandah to near the coconut tree. She stated that on 26th November, 1987, at about 7.00 P.M. to 7.30 P.M., she went to the house of the deceased who was at that time talking to his wife and was in the verandah of his house. After some time, all went inside and Benny went to take his bath. While inside, appellant Francisco came near the house and started abusing. After some time, all went inside and Benny went to take his bath. While inside, appellant Francisco came near the house and started abusing. He also asked whether the deceased wanted to get the appellant's children arrested by making false complaint to the Sarpanch, adding that he and his children would kill him, and thereafter, would get released within 24 hours. He further deposed that after some time, Joaquim decided to go out in order to convince the appellant to settle the matter on the next day. He opened the door and went out, being followed by his wife, children and by the witness. The appellant Francisco was on the last step of the verandah and when the deceased approached, Francisco caught hold of his lungi. Marianinha, in turn, caught hold of Joaquim and was not allowing him to go out. The first appellant had a stick in his left hand and he gave two blows with the side stick on the right shoulder of Marianinha and immediately after, whished. Appellants Trinidade and Sebastiao came rushing from the road side and appellants Isidoro and Alfredo from the side of the compound wall. Sebastiao had, at that time, a stick in his hand and Trinidade, Isidoro and Alfredo, some curved metallic things. Alfredo and Isidoro started dragging Joaquim towards the road and Benny intervened to pull his father towards the house. At that time, Trinidade gave a blow with the weapon he had in his hand on Marianinha's head, and in turn, Sebastiao gave a stick blow on Benny's head. Appellant Francisco gave a stick blow on the head of the deceased Joaquim Falcao. Both the deceased and his wife Marianinha reeled with the impact of the blows and Benny fell down. Thereafter, all the appellants lifted Joaquim and took him near a coconut tree, threw him down and started assaulting him. Marianinha followed and pleaded with the appellants not to assault her husband, but Francisco scorned her asking whether she wanted her husband. Equally, Fatima pleaded with the appellants not to assault the deceased but she herself was assaulted with strick blows. She further stated that all the accused continued to assault the deceased Joaquim and that the blows were given on Fatima by the appellant Trinidade on her legs. Equally, Fatima pleaded with the appellants not to assault the deceased but she herself was assaulted with strick blows. She further stated that all the accused continued to assault the deceased Joaquim and that the blows were given on Fatima by the appellant Trinidade on her legs. In cross-examination, she admitted that she had not made at all a reference to the incident mentioned by her as had occurred in the balcony of the house. Marianinha (P.W. 15) also made a reference to the alleged incident that took place in the balcony of the deceased's house, although she had not referred at all to it when deposing before the police. Her version of the facts is tallying with the version given by Fatima and Ushani, since she stated that on 26th November, 1987, the appellant Francisco came near her house at about 8.30 P.M. and started abusing her husband on account of a complaint the latter had made to the village Panchayat Sarpanch. She stated that the appellant Francisco also threatened that he would not allow the deceased to go to the ship next time, adding that he had seven sons and that the deceased had only one son; they were all having their food and the deceased ultimately decided to go out in order to pacify the appellant Francisco by saying that he will talk with him the next day ; he went out being followed by the witness, Ushani, Fatima and Benny. Francisco was on the first step of the verandah and when Joaquim approached, he was caught by the lungi by the appellant Francisco who had a stick in his left hand. She caught her husband, but at that time, appellant Francisco assaulted her with stick blows on the right shoulder and immediately after, appellants Alfredo and Isidoro came from one side and Trinidade and Sebastiao from the road side. They started pulling her husband towards the road and Benny tried to pull his father towards the house. At this stage, appellant Trinidade hit her with a blow given with a curved iron weapon on her forehead. She fell dizzy and when she recovered, saw Benny lying on the ground. She also say all the accused taking the deceased near a coconut tree. She rushed and pleaded with them not to assault her husband but they scorner her and continued to assault. She fell dizzy and when she recovered, saw Benny lying on the ground. She also say all the accused taking the deceased near a coconut tree. She rushed and pleaded with them not to assault her husband but they scorner her and continued to assault. She was hit with stick blow on her right hand as a result of which one of her bangles broke. At that time, Eddie came to the place and stopped Francisco from giving the blows on her husband Joaquim who was lying on the ground. Benny (P.W. 8) is the son of the deceased Joaquim. He was about 13 years old at the time of the incident and he stated that on 26th November, 1987, the appellants came near his house at about 8.30 p.m. and started abusing his father on account of a complaint he had made to the village Panchayat Sarpanch. The deceased decided to go out in order to pacify the appellant Francisco, as he felt that otherwise, he and his family would not be allowed to sleep. Accordingly, he opened the door of his house and at that time, the appellant Francisco was standing in the balcony. On seeing the deceased Joaquim. Francisco stepped down to the first step of the staircase and when Joaquim carne near him, he was caught by the lungi by the appellant Francisco. Marianinha caught hold of the deceased and told him not to go out, but she was hit with two stick blows on her shoulder by the appellant Francisco who immediately after whistled. Then, appellants Isidoro and Alfredo came rushing to the place from the side of the compound wall while the appellants Trinidade and Sebastiao came from the road side. Isidoro and Alfredo started pulling the deceased, and therefore, Benny caught hold of his father's hand and with the help of his mother began to pull him in the direction of the house. At this stage, Trinidade hit Marianinha on the forehead with an instrument similar to a sickle. Marianinha started bleeding from her forehead and reeled. At the same moment, appellant Francisco hit the deceased with a stick blow on the head and Sebastiao gave a blow on the head of the witness who fell down unconscious as a result of the said blow. 11. Marianinha started bleeding from her forehead and reeled. At the same moment, appellant Francisco hit the deceased with a stick blow on the head and Sebastiao gave a blow on the head of the witness who fell down unconscious as a result of the said blow. 11. While being cross-examined, an important omission was brought out on record by defence, namely that while the witnesses deposed before the police, none of tl1em had made any reference to the incident which, according to the statements given by them in Court, took place in the verandah, to the whistling, to the subsequent coming to the place of the appellants Nos. 2 to 5 and to the lifting of Joaquim by them and the throwing near the coconut tree. The explanation given by the witnesses to justify this omission in making a reference to such an important and material aspect of the case was that they were in a state of shock or without sleep when their statements were recorded by the police. Undoubtedly, some confusion and a state of shock was understandable and this emotional state of mind could have caused the aforesaid witnesses to miss some details of the Incident, especially when admittedly, the statements were recorded within a short period of time after the assault. However, one fails to understand how all the witnesses, without any exception, failed to mention that very material and important part of the incident, if at all such thing took place. The state of shock and confusion of spirit could have justified the omission of some details by the witnesses, but it is rather difficult to believe that all of them would miss only that important part of the incident. Equally, if at all that incident in the verandah took place in the manner the witnesses deposed in the Court, it is rather strange that all the witnesses, most consistently, had not made a reference to it while deposing in the police and also unanimously and most consistently brought it for the first time while giving evidence in Court. It is also rather symptomatic and curious that the version of the incident in the verandah was the same, even in the minute details. It is also rather symptomatic and curious that the version of the incident in the verandah was the same, even in the minute details. There being the circumstances, this improvement in the evidence of the witnesses becomes rather suspicious, especially when if that part of the evidence is accepted, the forming of the unlawful assembly with the common object to kill the deceased Joaquim would be established, and if that part of the evidence had not been brought, the prosecution would have failed to prove the unlawful assembly with the object to kill Joaquim. In the circumstances, as we already said, that part of the evidence of the witnesses cannot be accepted. But at the same time, we have to bear in mind that there exists independent and reliable evidence which is unimpeachable and which conclusively establishes that a serious assault took place in that night, an assault which could not have been committed by a single person. We are referring to the medical evidence, which clearly establishes a severe and extensive assault on the person of Joaquim with the use of different kind of weapons and which led to his death, as well as to an assault in the persons of Marianinha, Fatima and Benny. We are also beating in mind the evidence of the only independent witness, namely Eddie da Cunha (P.W. 6). 12. It has come in the evidence that almost immediately after the assault, the deceased Joaquim was given some medical aid by Dr. Marconi who happened to be nearby. He was, inter alia given glucose drips by the said Doctor, and thereafter, taken to the Hospicio Hospital at Margao. He was examined in the said Hospital by Dr. Jaiswal who found on his external examination, some injuries on the head, in the right parietal region, as well as other injuries on his body. Joaquim was operated in the said Hospital, but unfortunately, he came to die on 28th November, 1987. Dr. Audi (P.W. 18) performed the post-mortem on the dead body of Joaquim. He found on external examination, in all, 21 injuries, out of which injuries Nos. 1 and 13 were surgical. The remaining injuries were caused by blunt and sharp instruments and most of them were located on the head. He opined that the death was due to the cranio cerebral damage as a result of impact of blunt force. He found on external examination, in all, 21 injuries, out of which injuries Nos. 1 and 13 were surgical. The remaining injuries were caused by blunt and sharp instruments and most of them were located on the head. He opined that the death was due to the cranio cerebral damage as a result of impact of blunt force. He added that the external injury No.4, i.e. a bruise brown in colour, measuring 8 x 6 cms. on the right temporal region which was caused by the impact of a blunt object, had caused a depressed fracture with multiple bits of skull bone and damage to the brain. This, according to him, might have been the fatal injury. In addition, Dr. Audi stated that the sticks, sickles, coitas, knives and other weapons which were attached by the police could have caused the injuries found by him on the dead body of Joaquim Falcao. February 22, 1990 13. The other medical evidence discloses that Marianinha, Fatima and Benny sustained injuries which were caused by blunt and sharp objects. In fact, Dr. Dias who examined Benny and Fatima on the very evening of the incident, at about 11.45 P.M., in the Primary Health Centre at Cansaulim, stated that he found on the body of Fatima a contusion 2 x 2.5 cms. over the left leg and above the lateral mallpolus. This injury, according to him, was simple in nature and caused by a blunt object. He further stated that he examined Benny and he found him vomiting and suffering from drowsiness. He was in semi-conscious state. There was an equimosis on the left shoulder region on the posterior side as well as one haematoma on the left parietal region which has been caused by a blunt object. In turn, Marianinha was examined at about 11.30 P.M. by Dr. Jaiswal in the Hospicio Hospital where she had been taken along with her husband Joaquim Falcao. The said Doctor stated that on her examination, he found a contused lacerated wound on the frontal region of the skull measuring 2 x 2.5 inches. This injury was, according to the said Doctor, caused by a blunt object which had a sharp edge. He also found a haematoma on the right scapular region which was caused by the impact of a blunt object as well as swelling on the right hand of the metacarp phalangial joint. 14. This injury was, according to the said Doctor, caused by a blunt object which had a sharp edge. He also found a haematoma on the right scapular region which was caused by the impact of a blunt object as well as swelling on the right hand of the metacarp phalangial joint. 14. The injuries found by Dr. Audi on the dead body of Joaquim Falcao and those found in the bodies of Marianinha, Fatima and Benny by Doctors Jaiswal and Dias correspond to the description of the blows given on them by the afore said witnesses. To begin with, it is the case of all the prosecution eye-witnesses that Marianinha was hit with two stick blows on her right shoulder by the first appellant and that a blow was given on her head by Trinidade with a metallic curved object like a sickle. It has been also brought on record that when she went to help her husband near the coconut tree, she was hit with the stick blow on her arm with the result that one of her bangles broke. Now, the injuries found on her body by Dr. Jaiswal tally entirely with this kind of description of the assault, since he found a contused lacerated wound on the frontal region which was caused according to him by a blunt instrument with sharp edge. The hitting on the head by the appellant Trinidade with a metallic object like a sickle, thus explains the injury found on the frontal region of Marianinha by Dr. Jaiswal. Similarly, the haematoma on the right scapular region tallies with the two stick blows, which according to the eye-witnesses, were given on her right shoulder by the first appellant. Finally, the swelling on the right hand of the metacarp could have been caused by the hitting of her arm with a stick. Therefore, the medical evidence strongly corroborates the version given by the eye-witnesses as regards the assault done on the person of Marianinha. 15. Coming now to Fatima, she herself stated that when she went to help her father, one of the accused hit her on one of the legs with stick blows. Ushani stated that this blow was given by the accused Trinidade. Now, the injuries found on her body by Dr. 15. Coming now to Fatima, she herself stated that when she went to help her father, one of the accused hit her on one of the legs with stick blows. Ushani stated that this blow was given by the accused Trinidade. Now, the injuries found on her body by Dr. Dias could have been caused by such blow, and therefore, here again, the medical evidence corroborates the version given by the witnesses. 16. Equally, the eye-witnesses stated that the appellant Sebastiao hit Benny with a stick blow on the head causing him to fall unconscious. Dr. Dias who examined Benny on the very evening of the incident in the Primary Health Centre in Cansaulim found him in semi-conscious state and vomiting. In addition, he found an injury on the parietal region, which in the opinion of the said Doctor, was caused by a blunt object. Therefore, once again, the medical evidence corroborates the version of the incident given by the witnesses. 17. In addition to this medical evidence, there is the evidence of an independent witness, namely Eddie da Cunha. This witness is not related to the families of the deceased or the appellants. He is an outsider from the village, as he hails from Paroda and had come to reside in the neighbourhood about two to three months prior to the incident, on account of his employment in the Zuari Agro Chemicals. He stated that the first appellant used to utter abuses and make big noise every night under the influence of liquor ; that on 26th November, 1987, at about 8.30 P.M. to 9.00 P.M., he was watching a programme on the T.V. when he heard a big noise of voices coming from the side of the appellants house. He did not find anything unusual, and therefore, con tinned to watch the T.V. However, after some time, he heard a big noise of barking of dogs as well as screams, and therefore, he went out of his house which is situated about 20 metres away from the deceased's house. He saw that an assault was going on near a coconut tree, which is situated in front of the deceased's house. He went to the place and saw that all the accused were assaulting the deceased Joaquim who was lying on the ground. He saw that an assault was going on near a coconut tree, which is situated in front of the deceased's house. He went to the place and saw that all the accused were assaulting the deceased Joaquim who was lying on the ground. He further deposed that he intervened and stopped the appellants Francisco and Isidoro from hitting the deceased Joaquim with stick blows. He asked them why they were continuing the assault on the deceased who was lying on the ground and almost dead. He added that he caught hold of the sticks, and at that time, the accused Isidoro gave one or two sticks on the mouth of Joaquim who continued on the ground. He explained that when he reached the spot, he saw that blood was oozing from the nose, mouth and ears of Joaquim. In cross, Eddie was confronted with the statement he bad given before the police and where no reference at all had been made by him to the assault by all the accused. He replied that he had actually stated that much to the police but he was unable to explain how that reference to the assault by all the accused had not been recorded. We are of the view that this omission is most important, and as no explanation has come forth to explain it, that part of the evidence of Eddie cannot be accepted and has to be discarded. However, the remaining part of his evidence stands, not only because there was no reason whatsoever for him to give evidence against the appellants, but also because what he stated fully tallies witl1 tl1e evidence given not only by the other eye-witnesses but also with the unimpeachable medical evidence. Eddie is an independent witness and his presence on the spot could not and was not denied. 18. In addition to this oral evidence, there is also the evidence of the witnesses Jovino and Teresinha Diniz. These witnesses reached the spot after the assault was over, but still they saw the deceased Joaquim lying on the ground as well as the appellants leaving the place hurriedly. 19. 18. In addition to this oral evidence, there is also the evidence of the witnesses Jovino and Teresinha Diniz. These witnesses reached the spot after the assault was over, but still they saw the deceased Joaquim lying on the ground as well as the appellants leaving the place hurriedly. 19. The overall impact of this evidence is that, undoubtedly, the prosecution has established beyond reasonable doubt that all the appellants had come to the spot at the relevant time of the incident However, the question that arises is whether that evidence establishes that they had formed an unlawful assembly with the common object to kill Joaquim Falcao. In our view, in that, the prosecution has failed. In fact, it was seen that Benny was assaulted by Sebastiao, Marianinha by Trinidade and Francisco, Fatima possibly by Trinidade, and the deceased Joaquim by Francisco and Isidoro. Not a single witness has stated that the appellant Alfredo has given at least a blow in any of such persons. However, he was roped together with the other appellants by the police and to prove his involvement-in the assault, a story was brought at the time of the trial that the appellant Srancisco came alone to the place and after the initial incident in the verandah, he whistled and his four sons, i.e. the remaining four appellants came rushing to the place, lifted the deceased Joaquim and threw him near the coconut tree. We have seen that this part of the evidence of the prosecution witnesses cannot be believed and is an improvement made, in all probabilities, with the sole aim of establishing the charge of unlawful assembly with the common object to kill Joaquim. This part of the evidence has, in our view, to be discarded, and therefore, once that part of the evidence of the prosecution goes, we have to dispose of the matter on basis of the other evidence. Thus, since there is nothing in the other part if the evidence implicating Alfredo, the necessary sequitur is that Alfredo was not involved at all in the incident, and consequently, the offence of unlawful assembly had not been proved by the prosecution. 20. But this does not mean that the appellants had not committed any offence. It was already seen that the appellants Francisco, Isidoro Sebastiao and Trinidade took part in the assault in the manner already mentioned. 20. But this does not mean that the appellants had not committed any offence. It was already seen that the appellants Francisco, Isidoro Sebastiao and Trinidade took part in the assault in the manner already mentioned. The individual acts committed by each of them were mentioned, and therefore, we have to see what was the offence actually committed by them. 21. It is an admitted position that the relations between the families of the deceased and of the appellants were strained for the last about 3 to 5 years prior to the incident on account of a trivial incident involving a hen. That incident gave cause to enimity between the two families and the appellant Francisco used to abuse the family of the deceased almost every night on account of that enimity. The situation went on aggravating and gave cause to incidents of throwing stones against the house of the deceased and to the breaking of window panes. This, in turn, caused the deceased Joaquim to file a complaint before the Sarpanch of the Village Panchayat, who acting upon it, called the appellants and tried to settle the matter. This took place about 10 days prior to the incident, and such complaint appears to have been the immediate cause of the fatal assault, since Marianinha, Fatima, Ushani and Benny unanimously stated that when the first appellant came near their house on the day of the incident and started abusing the deceased, he also challenged him to come out by asking whether he wanted to make false complaints to the Sarpanch. The said witnesses also stated that the appellant Francisco has, inter alia, stated that he had seven sons while the deceased had only one and he would kill him and his son. We also saw that the evidence brought by the prosecution establishes beyond any reasonable doubt that the deceased Joaquim was assaulted in a very brutal and cruel manner with sticks and with some sharp objects, near the coconut tree. Even after having fallen and lying on the ground bleeding from the ears, nose and mouth, the appellants Francisco and Isidoro continued to hit him with the weapons they had in their hands. Even after having fallen and lying on the ground bleeding from the ears, nose and mouth, the appellants Francisco and Isidoro continued to hit him with the weapons they had in their hands. The manner they assaulted the deceased, the consistency with which they did it, the part of the body which was chosen to be hit and the weapons which were used are all clear indications, in the context of the facts of the case, that both Francisco and Isidoro were intending to kill the deceased, or at least, to inflict to him such serious bodily injuries that they should have known would be likely to cause death in the normal course of nature. However, there is no evidence as to show that the appellants Sebastiao and Trinidade took part in the assault on the person of Joaquim, although it is also clear that they had come to the scene of the offence at the time of the incident and they also took an active part by assaulting the witnesses Marianinha and Benny. This being the evidence of the eye-witnesses and considering that the medical evidence disclosed that the injuries sustained by Marianinha and Bonny were simple in nature, we are of the view that the appellants Sebastiao and Trinidade cannot be held guilty of the offence of murder. The offence of unlawful assembly was disproved at least because the alleged assembly was not of five or more persons and because the overt acts of Sebastiao and Trinidade are only in respect of assaults in the persons of Marianinha and Benny. The conduct of the appellants Sebastiao and Trinidade, however, squarely falls under Section 323 I.P.C. i.e. an offence of simple hurt. So far as the accused Francisco and Isidoro are concerned, the situation is different, since it is clear from the facts of the case that they acted with common intention to kill Joaguim. This common intention can be gathered from the circumstance that they came to the spot armed with sticks and other dangerous weapons and consistently and continuously hit the deceased, although he was lying on the ground defenceless and bleeding heavily. Dr. Audi gave as cause of death, the injury described under No.4 by him and an external injury, which in turn, caused the depression of the parietal bone and the consequent death. Dr. Audi gave as cause of death, the injury described under No.4 by him and an external injury, which in turn, caused the depression of the parietal bone and the consequent death. No doubt, it is not clear who gave the blow that caused that injury as the evidence of Dr. Audi also indicates that there were four other injuries on the head of the deceased. Manifestly, in the circumstances, Section 34 I.P.C. comes into operation, and as such, it is to be held that the appellants Francisco and Isidoro are guilty of the offence of murder punishable under Section 302 r/w. Section 34, both of I.P.C. 22. The above discussion answers also the last submission of Mr. Lotlikar that the version of the case given by the prosecution witnesses in the course of the trial is improbable, and therefore, should lead to the acquittal of the appellants. We already mentioned that a part of that evidence is to be discarded but that the other part, which stands, fully justifies the conviction of the appellants as held above. 23. In the result, this Appeal is partly allowed, and consequently, the conviction of all the appellants for an offence of an unlawful assembly is set aside. Appellants Francisco and Isidoro are held guilty of the offences punishable under Section 302 I.P.C. r/w Section 34 I.P.C. The sentence of Life Imprisonment passed against them is therefore maintained on this count. Appellants Sebastiao and Trinidade are convicted each of them for an offence punishable under Section 323 I.P.C. and sentenced to 3 months of Imprisonment each. All the appellants are acquitted of the remaining offences. Appellant Alfredo against whom the prosecution failed to prove any offence, is acquitted. The bail bonds stand cancelled. The learned Public Prosecutor states that the appellants Trinidade and Sebastiao had been in custody for more than 3 months. Therefore, the sentence passed against them is to be set off. Appellant No.4 Isidoro to surrender forthwith to this Court. Appeal partly allowed. 1. 1969 (3) S.C.C. 730 . 2. A.I.R. 1970 S.C. 1566. 3. A.I.R. 1975 S.C. 1453. 4. A.I.R. 1984 S.C. 1523. 5. 1973 (3) S.C.C. 680 . 6. A.I.R. 1956 S.C. 181. 7. A.I.R. 1981 S.C. 1290. 8. 1964 (1) S.C. Reports 775. 9. A.I.R. 1978 S.C. 1647. 10. A.I.R. 1983 S.C. 127. 11. A.I.R. 1980 S.C. 1322.