V. D. GYANI, J. ( 1 ) THIS appeal is directed against judgment dtd. 30. 7. 1987, whereby the Second Additional Sessions Judge, Shajapur, has convicted the appellants U/s 148, 307/149 and 302/149 and sentenced them to undergo rigorous imprisonment for two years u/s 148 I. P. C. Ten years U/s 307/149 I. P. C. with fine of Rs. 1000. 00 each or four months R. I. in lieu of payment of fine, and life imprisonment u/s 302/149 I. P. C. with fine of Rs. 1000. 00 each or to undergo four months R. I. in default of payment of fine. ( 2 ) PROSECUTION case, stated in brief was that on night intervening 24th and 25th March, J 986, the complainant Kachrushingh alongwith Devising had been to attend a fair of Badimata held at village Pancheti where they happened to meet Manguji (Mangusing) of village Pacheti, who complained about pelting of stones at his house and desired to resolve the problem he had with his uncle umaraosingh P. W. 3. Around midnight they came to village Kolia (also described as Kripalpur by some witnesses) and went to the house of Umaraosingh (P. W. 3) the uncle of Kangusingh and had a Bidi smoke with him and also enquired as to what the problem was? Why this stone throwing? Chandarsingh also joined them. In the meanwhile the accused armed with sticks and farsis came there questioned the complainants as to who they were to hold a panchayat in their village and started assaulting them. Kacharu sustained number of injuries on his body, Devisingh also sustained an injury on his head as a result of which he fell unconscious to the ground. As some other residents of the village came there, the accused took to their heels. Kacharu lodged a report of this incident at Police Station, Kanada, where initially a case U/s 307 I. P. C. was registered. Devisingh who was Bhanja of umraosingh P. W. 3, was rushed to hospital, in a precarious condition where he Ultimately succumbed to his injuries a day after. ( 3 ) ON complation of investigation the accused were charged and tried for the above offence. ( 4 ) THE defence of the accused was one of denial and false implication. The trial court, however, found them guilty and convicted and sentenced them as noted above. Hence this appeal. ( 3 ) ON complation of investigation the accused were charged and tried for the above offence. ( 4 ) THE defence of the accused was one of denial and false implication. The trial court, however, found them guilty and convicted and sentenced them as noted above. Hence this appeal. ( 5 ) SHRI Jaisingh learned counsel appearing for the appellants has raised the following points (i ). that trial court has mis-appreciated the whole evidence and has overlooked the fact that the accused had also sustained injuries far more in number than the deceased who had merely five injuries while number of injuries of accused is eleven. (ii ). that no independent witness though available had been examined. (iii ). the prosecution witnesses examined were not only interested but they have also considerably upon their earlier version. (iv ). that the F. I. R. names only seven accused and the rest were later roped in. (v ). Injuries sustained by the accused have not been explained; the trial court has failed to consider this aspect in its proper perspective. ( 6 ) SHRI Nigam, learned G. A. on the other hand submitted that notwithstanding the discrepancies as pointed out by the appellant's counsel, the conviction as recorded by the trial court does not call for any interference as the evidence in its substance is fully reliable and does not suffer from any such infirmity as to quash appellantst conviction. ( 7 ) THE points as raised by the appellants counsel essentially relate to appreciation of evidence. ( 8 ) SO far as the interestedness of the prosecution witnesses is concerned, no doubt that they are relations. P. W. 2 Prembai, is the daughter of P. W. 3 Umraosingh and Gilasbai P. W. 5 is his sister but they can not be termed as interested witnesses. The incident had taken place just near their house. It has come in the evidence of Umraosingh that both his daughter and sister had fell themselves on Devisingh with a view to save him. They had come out of their house on hearing the hue and cry. They can not, therefore, be denounced as interested witness although they are relations but relationship by itself is no ground to reject their testimony. Gilabi had come to her parental home to calebrate Holi. They had come out of their house on hearing the hue and cry. They can not, therefore, be denounced as interested witness although they are relations but relationship by itself is no ground to reject their testimony. Gilabi had come to her parental home to calebrate Holi. At best, it can be said, that their evidence needs to be examined with a great degree of caution and circumspection but it can not be rejected either on the ground of relationship or interest ( 9 ) LET us first examine the case against those appellants whose names do not figure in the F. I. R. They are (1) Devisingh Sb Bherusingh (2) Ramesh S/c Bulaji (3) Shivnarayan S/c Bhagirath and (4) Lachhiram S/c Khumaji. ( 10 ) REASON assigned by the trial court for the omission is that the complainant Kacharu was a resident of another village, he could not, therefore, be expected to know the names or identity of each one of the accused either by name or face. So far so good But the learned Judge has missed considering the fact that Kacharu has not even hinted in his F. I. R. that there were some other accused persons other than those named by him in the F. I. R. Lachchiram it is the prosecution case that had come armed with a gun. The complainant could have at least described him as one who had come with the gun and who was exhorting others to attack him and the deceased. Ramsingh the son of Lachchiram has been named by him in the F. I. R. Ex. P-i, He could as well name his father, or describe him as such in the F. I. R. The other reason assigned by the trial court for proving the complicity of the above named accused that Umraosingh P. W. 3 whose statement u/s. 161 was recorded the same day on 25. 3. 1986, simultaneously with that of Kacharu, soon after lodging of the F. I. R. has named all these accused persons. It may be noted here that Umraosingh as is evident from FJ. R. Ex. 3. 1986, simultaneously with that of Kacharu, soon after lodging of the F. I. R. has named all these accused persons. It may be noted here that Umraosingh as is evident from FJ. R. Ex. P-i had accompanied Kacharu to the Police Station, where he was present at the time of lodging the report It is highly unnatural that Kacharu would not have come to know the names of these found accused, at least with reference to their relationships at any rate describing their role in commission of offence as unknown persons but even that is missing from the F. I. R. ii. It is also significant to note that when witness Kacharu was asked to identify accused Devisingh (not named by him in the F. I. R.), in the court he identified Sheetu as Devisingh. In this state of evidence reasons assigned by the trial court for a very material omission in the F. I. R. can not be accepted. Sc prominent a fact as presence of Lachhiram being armed with a gun and exhorting owner accused could not have gone unnoticed by the complainant Kacharu. There is no reference to the fact that there was some one with a gun who was exhorting others. 12. Sc far as the evidence of Umraosingh P. W. 3 is concerned the learned Judge has failed to notice that there is an apparrent improvement made by him. In his previous statement recorded u/s. 161 Cr. P. C. he did not state that Lachchiram had come armed with a gun and that he was exhorting other accused. Now improvement on a vital point can not be overlooked. 13. No overt act attributed to these accused who have not been named in the F. LR. Kacharu P. W. 1 has testified that accused Madan and Bhawant singh had dealt him axe and farsi blows, while the rest are alleged to have wielded lathies. His injury report Ex. P. 3, refers to only four incised wounds. No injury caused by lathi or stick had, been noticed. It may also be noted that on external examination as per P. M. examination report Ex. P. 36, no external injury was seen on the body of the deceased except a stitched vertical wound on the head in the mid-line. 14. However, on internal examination the following injuries (corresponding to the above noted external injury) were found (i ). It may also be noted that on external examination as per P. M. examination report Ex. P. 36, no external injury was seen on the body of the deceased except a stitched vertical wound on the head in the mid-line. 14. However, on internal examination the following injuries (corresponding to the above noted external injury) were found (i ). Vertical midline fracture of parietal bone corresponding to Ext. Injury dividing the parietal bone/dura matter into two with prutrusion of brain material. (ii ). Vertical midline fracture of frontal bone in contention and corresp. to external injury with laceration of brain material. (iii ). cerebral hemisphare complete divided into two piece from the midline by cutting of the ligament. 15. Once again adverting to the occular evidence, P. W. 1 Kacharu, P. W. 2 Prembai and P. W. 5 Gilasbai do not name any particular person or persons who caused the above injury to deceased Devisingh. Umraosingh P. W. 3 has however attributed this injury to accused Madan and Bhagwantsingh who according to the witness were armed with axe and farsi respectively (see para 1 of the statement ). Deceased had only one external injury. No other injury was seen on his body. Had there been any truth in the omnibus statement of the eye witnesses that all the accused beat deceased Devisingh (with whatever weapons such as axe, farsi lathis they had) the number of injuries would definitely be more in number and not just one as found by the doctor performing autopsy. No bruise no contusion has been fond in face of the allegation that eleven accused ware attacking with lathis farsi and axe. The learned judge has totally over looked this incompatability of medical evidence with eye-witness account. It is not a case of minor discrepancy. The F. I. R. itself does not contain the names of as many as four of the appellants. Reasons assigned by the trial court for such non-inclusion of names as already discussed above, are flimsy. Those not named in the F. I. R. could not even be identified even in the court by the complainant. The F. I. R. itself does not contain the names of as many as four of the appellants. Reasons assigned by the trial court for such non-inclusion of names as already discussed above, are flimsy. Those not named in the F. I. R. could not even be identified even in the court by the complainant. No test identification parade held during the course of investigation, it is the cumulative effect of all these infirm ties, and not mere incompatibility of medical evidence with eye witness account, which renders the prosecution case extremely unreliable so far as the appellants whose names are not mentioned in the F. I. R. It may be noted that they presently, I am concerned with and confusing myself with their case alone a point raised and noted above. 16. Shri Nigam learned Govt. Advocate, however, pressing Sec. 149 I. P. C. into service urged that their conviction as recorded by the trial court is proper. Sec. 149 I. P. C. It is general principle of law that a person is liable for what he himself does and is not accountable for what others do this section engrafts an exception to the general rule and lays down the principle of vacarious liability under which a member of an unlawful assembly becomes liable for and an offence committed by another member of the said assembly under circumstances mentioned in the section. 17. As explained by the Supreme Court in C. Gowda v. State,1 this section describes the offence which may be attributed under two alternative forms: (i) It must be either an offence committed by a member of the unlawful assembly in prosecution after common object of that assembly of (ii) an offence such as the members of that assembly know if to be likely so be committed in prosecution of that object. The same principle has been reiterated in a later decision of the Supreme Court see-A. I. R. 1978 S. C. 191. 18. In Maslati v. State of U. P. 2, the Supreme Court has held that mere presence would be sufficient to make a person member of an unlawful assembly. In the instant case, even presence of the above named appellants has not been duly established by the prosecution. 19. 18. In Maslati v. State of U. P. 2, the Supreme Court has held that mere presence would be sufficient to make a person member of an unlawful assembly. In the instant case, even presence of the above named appellants has not been duly established by the prosecution. 19. Is a result of foregoing discussion the conviction of appellants (I) Devisingh sb Bherusingh (i) Ramesh Sb Bhulaji (iii) Shivnarayan S/c Bhagirath (iv) Lachchiram Sb Khumaji as recorded by the trial court, can not be sustained. Their conviction stands on quick sand and must, therefore, be quashed. 20. The next point which needs consideration is the in compitability of the medical evidence with that of eye witness account. P. W. 1 Kachru had four incised wounds which rules out lathis and sticks having been used for inflicting the injury. Deceased Devisingh had only one injury as found on external examination by P. W. 8 Dr. Rajiv Saxena, who performed autopsy. This injury according to Umraosingh was caused by means ofan axe and farsi wielded by accused Madan and Bhagwansingh. Apart from total absence of such injuries, which could have been caused either by lathi or stick allegedly used by other accused, there is yet another infirmity in the prosecution evidence. Prembai in her evidence has not named Sitaram. Similarly, P. W. 5 Gilasbai has also not named him (see paragraphs 2 and 3 respectively of their evidence ). The trial court, however, referring to the evidence of Umraosingh, and Kachru, has held that Sitaram was also one of the members of unlawful assembly. It, therefore, becomes necessary to examine their evidence as well. 21. No doubt Kachru and Umraosingh P. W. 1 and P. W. 3 respectively have named Sitaram as one of those who had come to the spot. All that Umraosingh has stated about Sitaram and others is that they started shouting loudly questioning the authority of the complaints to hold a Panchyat in the village. Both of them do not attribute any overt act to Sitaram. An omnibus statement has been made by Kachru and Devisingh but this omnibus statement made by the witnesses stand belied by medical evidence inasmuch as not a single injury is found either on the body of deceased Devisingh or Kachru so as to suggest that a lathi or stick was used for causing injuries to them. An omnibus statement has been made by Kachru and Devisingh but this omnibus statement made by the witnesses stand belied by medical evidence inasmuch as not a single injury is found either on the body of deceased Devisingh or Kachru so as to suggest that a lathi or stick was used for causing injuries to them. As pointed out by the Supreme Court in Maslathis case (supra) mere presence on the spot by itself at the time would not make a person a member of unlawful assembly unless the requisite conditions are fulfilled. Even if the evidence of Kachru and Umraosingh is taken on its face value it does not go further than merely suggesting presence of Sitaram on the spot and nothing beyond that is established against him. The learned Judge of the trial court has over looked the principle as laid down by the Supreme Court in Maslatis case (supra ). The conviction u/ s. 149 I. P. C. requires a clear finding that there was an assembly of five or more persons having a common object and doing all acts by members of such assembly in prosecution of that common object. (see Bhaudeo's case - A. I. R. 1981 S. C. 1219 ). The evidence falls short of proof of common object and where there is no proof of common object and commission of offence in prosecution of the common object or that the accused shared with the common object, sec. 149 is not attracted. So far as Sitaram is concerned, it is difficult, on the basis of evidence available on record, that firstly that he was present on the spot; secondly even if his presence for a while presumption for the sake of arguments, yet it can not be said that the prosecution has established the essential ingredients of Sc. 149 I. P. C. that he know it to be likely that the offence was to be committed in prosecution of the common object of that assembly or that he shared the common object. In such a situation he can not be held guilty. In this connection A. I. R. 1978 S. C. 1759 may be referred to with advantage. The learned Judge has not analysised the evidence of Kachru and Umraosingh with care and caution. Kachru in his evidence has stated that Sitaram was one of those who were beating with sticks. In such a situation he can not be held guilty. In this connection A. I. R. 1978 S. C. 1759 may be referred to with advantage. The learned Judge has not analysised the evidence of Kachru and Umraosingh with care and caution. Kachru in his evidence has stated that Sitaram was one of those who were beating with sticks. But surprisingly enough not a single injury as could have been caused by sticks found either on Kachru or body of the deceased Devisingh. It is here that the learned Judge has failed in properly appreciating evidence. Umraosingh P. W. 3 is equally vague on this point. It is thus clear from the evidence that appellant Sitaram's conviction by the trial court rests on quick sand and It can not be allowed to stand and is liable to be quashed. What holds good in case of Sitaram also holds good in case of appellant Shivnarayan. Kachru P. W. 1 in his evidence has not referred to appellants Ramesh, Shivnarayan and Ramsingh Similarly, Umraosingh - P. W. 3 has not named Shivnarayan as one of the accused. The trial court however, seeking support from the evidence of Prembai and Gilasbai has held them to be members of unlawful assembly. Both these witnesses have been disbelieved by the trial court on a very crucial aspect of the matter namely presence of Lachhiram with a gun and his exhorting other accused to assault the complainant (see pragraph 18 of the impugned judgment ). The Identity of the appellant Zitu, has not been established beyond doubt. Kachru P. W. 1 when called upon to identify Devisingh, identified Zitu as Devisingh. This infirmity in his evidence has also been discussed in the foregoing paragraphs. Other witnesses, who named him, have not attributed any overt act to him. I am fully conscious of the fact that in order to attract Sec. 149 I. P. C. , an overtact on the part of a member of unlawful assembly is not necessarily required, at the same time it is also true that mere presence at the place of occurrence would not render a person member of unlawful assembly. I am fully conscious of the fact that in order to attract Sec. 149 I. P. C. , an overtact on the part of a member of unlawful assembly is not necessarily required, at the same time it is also true that mere presence at the place of occurrence would not render a person member of unlawful assembly. The trial Judge has failed toconsider the fact that the prosecution has not adduced any evidence to establish the essential ingredients of Sec. 149 I. P. C. So far as the appellant Sivnarayan, and Zitu are concerned, presence of these appellants have not been established coupled with doubtful identity of appellant Zitu. Trial courts finding that they were members of an unlawful assembly, whose object was to assault the deceased, can not be supported. 22. It was argued by the learned counsel that the trial court had totally mis-appreciated the defence stand, right of self - defence, as claimed by the accused - appellants coupled with non- explanation of injuries sustained by them. It is an admitted position that a Criminal Case No. 576/ 86 registered on the basis of a report lodged by appellant - Prabhulal was registered. The trial court had rejected this defence on two grounds; firstly it was not put to witnesses Kachru P. W. 1 and Umraosingh P. W. 3 (see paragraph 64 of the impugned judgment) and secondly the injuries were not proved by the accused to have been caused in the course of the same incident The trial courts approach in this behalf was severely criticised by the appellants counsel; while learned Govt. Advocate submitted that if the injuries were insignificant in nature it was not incumbent on prosecution to have explained the same. Seven persons were being prosecuted in the counter case as is evident from report Ex. D. 3. The place of occurrence and time are the same as in the F. I. R. Ex. P. 1. It is not in dispute that Prabhulal, Ramsingh and Bhawansingh Sb Lachhiram, had sustained injuries. In fact they were examined on requisition issued by same Police Station, Kenad. Each one of them had number of injuries such as contusions or lacerations or lacerated wounds. Ramsingh and Bhawansingh had as many as five and seven such injuries; while Prabhulal had two. Their injury reports are available. 23. In fact they were examined on requisition issued by same Police Station, Kenad. Each one of them had number of injuries such as contusions or lacerations or lacerated wounds. Ramsingh and Bhawansingh had as many as five and seven such injuries; while Prabhulal had two. Their injury reports are available. 23. But the trial court appears to be of the view that it was for the accused to have established that these injuries were caused during the course of the same incident. Reading Ex. D. 3 as it is, the finding arrived at by the trial court that it was not proved that the injuries were caused to the accused in the course of the same incident, can not be supported Place of occurrence and time are identical; as given in the F. I. R. Ex. P. 1. Except possibly for the injuries sustained by the accused Prabhulal, it cannot be said that the other two namely Ramsingh and Bhagwansingh, had superficial injured. As a matter of fact it was the duty of the prosecution to prove as to how accused sustained these injuries. More so in face of the fact that a counter case had been registered and pending against the complainant party. The trial court has totally mis-intercepted the dictum led down by the Supreme Court in Laxmi Singhs case, to which a passing reference has been made by the learned Judge in paragraph 66 of his judgment. 24. The findings as recorded by the trial court, seem to be the result of total mis-reading of the above judgment. The learned trial Judge is not right. When he says that Kachru and Umraosingh had not been put the defence case. Not only that it was suggested to Kachru that the complainant party had attacked the accused, it was also put to him that Prabhulal, Bhagwansingh and Ramsingh had gone to the Police Station, in his presence in order to lodge a report. Although he has denied the same but going by the timings as contained in. the F. I. R. Ex. P. 1 and report lodged by Prabhulal Ex. D. 3 this denial on his part, does not help him. Similarly, the trial Judge is equally wrong in saying that the defence case was not put to witness Umraosingh. Paragraph 6 of his deposition clearly contradicts the learned Judge. the F. I. R. Ex. P. 1 and report lodged by Prabhulal Ex. D. 3 this denial on his part, does not help him. Similarly, the trial Judge is equally wrong in saying that the defence case was not put to witness Umraosingh. Paragraph 6 of his deposition clearly contradicts the learned Judge. Thus apart from being factually incorrect and wrong, the reasons assigned by the trial court for rejecting the defence case, do not stand the barest scrutiny of law. 25. The Supreme Court in Laxmisinghs case (supra) had deduced the following inferences from non-explanation of injuries sustained by the accused at or about the time of the occurrence or in the course of occurrence; (i) that the prosecution has suppressed the genisis and the origin Of the occurrence and has thus not presented the true version. (ii) that the witnesses who have denied the presence of the injuries on the person of theaccused are lying on a most material point and therefore their evidence is unreliable, (iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case, and (iv) the omission on the part of the prosecution to explain the injuries on the person of the accused assumes such greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of prosecution one. T 26. The trial court unfortunately has failed to grasp the true meaning of the aforesaid judgment. Reading the relevant paragraphs 62, 63, 65, 66 and 68 of the impugned judgment, the trial court appears to be of the view that burden lies on the defence to prove its case beyond doubt, which is totally incorrect. It was the primary duty of the prosecution to have explained the injuries which it has omitted to do. As already noted above the reasons assigned by the trial court for rejecting defence came are wholly untenable, apart from being factually incorrect. In view of the foregoing discussion this appeal deserves to be allowed; it is accordingly allowed. The conviction and sentence as recorded by the trial court against the appellants, stands set aside. They are acquitted of the charges framed against them. They be released forthwith. In view of the foregoing discussion this appeal deserves to be allowed; it is accordingly allowed. The conviction and sentence as recorded by the trial court against the appellants, stands set aside. They are acquitted of the charges framed against them. They be released forthwith. Those who are on bail, their bail bonds stand discharged. Appeal allowed. .