V. H. BHAIRAVIA, J. ( 1 ) ). The appellants-original accused Nos. 1 to 13 have brought in challenge in this appeal, the impugned judgment and order dated 31. 3. 1986 passed by the learned addl. Sessions Judge, Bharuch in sessions Case No. 71/85 in so far as convicting the appellants-accused Nos. 1 to 13 for the offences punishable under section 302 R/w Sec. 149 of the I. P. Code, sec. 324 R/w 149 of I. P. Code and Secs. 147, 148 R/w Sec. 149 of the I. P. Code and sentenced them as stated in the said judgment. ( 2 ) ). The facts of the prosecution case, in brief are that the complainant mangalbhai Sursangbhai resides at village zamdi. Complainant got five sons including deceased Bhikha Mangal who was residing separate from his father in the adjoining house. The son of the uncle of the complainant Mangal named Chatur fula also resides in the said village with his family including his deceased son kanu Chaiur and injured Zanakben. The present accused are also residing in village zamdi. It is the prosecution case that there are two frictions in the village; one that of complainant side and another of accused side; and both have kept separate rakhas for keeping watch over their agricultural lands. Deceased Kanu Chatur was doing work of keeping watch over the lands of the persons of complainants side and that accused No. 1 Chhita Mathur makwana and accused No. 2 Amarsing ratansing Chauhan were doing work of keeping watch over the lands of the persons of another friction, i. e. accused side. It is the prosecution case that on the day of incident, i. e. 7. 3. 1985, it was a day of "dhuleti" and the accused No. 1 chhita Mathur Makwana and accused no. 2 took away the goats of one Kasam kachhi and they demanded Rs. 25. 00 towards fine and deceased Kanu Chatur objected to it telling that those goats were on their lands and accused Nos. 1 and 2 had wrongly brought the goats and had wrongly demanded the fine. It is the prosecution case that thereupon there was some exchange of words between deceased Kanu Chatur and accused Nos. 1 and 2 and that one Amarsing Bhimsing had taken the responsibility of paying the amount of fine of Rs. 25. 00 to the accused nos. 1 and 2. It is the prosecution case that thereupon there was some exchange of words between deceased Kanu Chatur and accused Nos. 1 and 2 and that one Amarsing Bhimsing had taken the responsibility of paying the amount of fine of Rs. 25. 00 to the accused nos. 1 and 2. It is further the prosecution case that at about 4. 00 p. m. on the same day, i. e. 7. 3. 1985, the complainant Mangal sursang, his son Bhikha Mangal and other members of their family were sitting in their house and were talking and at that time deceased Kanu Chatur, his father chatur Fula and his sister Zanakben were also present at the house of the complainant. It is the prosecution case that Kanu Chatur and his father Chatur fula were standing in the Angana of the house. It is further the prosecution case that the house of deceased Kanu Chatur is opposite to the village Panchayat Office of village Zamadi and after leaving the road, house of the complainant Mangal sursang and house of deceased Bhikha mangal are situated on the back side of the house of deceased Kanu Chatur. It is the prosecution case that there is a temple of Lalji Maharaj on the southern side of the house of deceased Bhikha mangal and there is a wall of 4 feet in height between the house of Bhikha mangal and the temple of Lalji Maharaj and that wall lead to the house of deceased kanu Chatur. It is further the prosecution case that at that time one Himat Raysing was sleeping on the Otla of the office of village Panchayat and one Baijiben who is a relative of deceased Bhikha Mangal had gone to the house of the complainant-Mangal Sursang with her mother-in-law. It is further the prosecution case that at that time, all the accused came there from Maholla and that accused Nos. 1, 10 and 14 (acquitted) were armed with sticks, accused Nos. 2, 5 and 11 were armed with Gun, accused nos. 3, 4, 7, 9, 12 and 13 were armed with spear, accused No. 8 was armed with axe and accused No. 6 was armed with dharia. 1, 10 and 14 (acquitted) were armed with sticks, accused Nos. 2, 5 and 11 were armed with Gun, accused nos. 3, 4, 7, 9, 12 and 13 were armed with spear, accused No. 8 was armed with axe and accused No. 6 was armed with dharia. It is further the prosecution case that appellant accused No. 5 Mangal Soma chauhan fired a gun shot from the gun near the Panchayat Office at Himmat raysing who was sleeping on the Otla of the Panchayat Office started to run and that gun shot struck on the chest of Himat Raysing. It is further the prosecution case that when Himat raysing was running away, the appellant accused No. 10 Mathur Tribhovan makwana gave a blow with stick on his left leg. However, Himat Raysing ran away. It is further the prosecution case that the accused persons, thereafter, went to the house of Kanu Chatur and at that time, Ramsing Soma who resides in the house just opposite to the house of deceased Kanu Chatur was standing nearby his house and the accused chased him telling that they wanted to kill him and thereupon he went inside his house and closed the door from inside. It is the prosecution case that the accused thereafter gave blows with their weapons on the door and roof of the house of said Ramsing Soma and thereafter went to the house of Kanu Chatur and appellant-accused No. 3-Kanji Ratansing chauhan started inflicting a blow with spear on Kanu Chatur and at that time his sister Zanakben tried to intervene and thereupon spear blow inflicted by appellant-accused No. 3-Kanji Ratansing chauhan was landed on the abdomen of said Janakben and her intestines came out. It is further the prosecution case that deceased Kanubhai took out a spear from his house and moved that spear to save himself and blow of that spear struck to appellant-accused No. 12-Punam mathur Makwana. It is further the prosecution case that the appellant-accused No. 7 Manilal gave a blow with the spear on the chest of the deceased Kanu who sustained severe injuries on his chest and fell down. It is further the prosecution case that the father of deceased Kanu, i. e. Chatur Fula and wife of deceased Kanu, i. e. Galuben, took both injured inside the house and closed the doors of the house from inside. It is further the prosecution case that the father of deceased Kanu, i. e. Chatur Fula and wife of deceased Kanu, i. e. Galuben, took both injured inside the house and closed the doors of the house from inside. It is further the prosecution case that thereafter, the accused persons gave blows with their respective weapons on the door and on the roof of the house of Kanu Chatur. It is further the prosecution case that injured Kanu chatur died in his house. It is further the prosecution case that the accused No. 2, meanwhile, ran towards the house of deceased Bhikha Mangal from the side of the temple of Lalji Maharaj with his gun. It is a further prosecution case that the complainant Mangal Sursang and deceased Bhikha Mangal and other members of his family had come out to see as to what had happened on hearing the gun shot which was fired near the panchayat Office. It is the prosecution case that the accused No. 2-Amarsang ratansang Chauhan fired a shot from his gun at deceased Bhikha Mangal from nearby wall of the temple of Lalji Maharaj and deceased Bhikha Mangal sustained injuries on his chest, etc. due to gun shot. It is further the prosecution case that injured Baijiben raised cries and the accused No. 5-Mangal Soma Chauhan gave a spear blow on the right elbow and on the right side of abdomen of Bai baiji who sustained injuries. It is further the prosecution case that Shubhanben who resides nearby the house of the complainant Mangal Sursang, was also came out of her house along with her two sons and daughter, and the accused no. 10 Mathur Tribhovan Makwana had beaten her son Iqubal with stone on his head and gave stick blow on her leg and stick blow on her another son Yakub and that accused No. 10 had also beaten her daughter. It is further the prosecution case that accused No. 1 Chhita Mathur makwana gave a stick blow on the waist of Shubhanben. It is further the prosecution case that in the mean time, the complainant Mangal Sursang took injured Bhikha Mangal inside and that injured Bhikha died in his house because of injuries sustained by him, and other relatives of family of both the deceased remained in their respective houses after the incident because of the fear of the accused persons. It is further the prosecution case that in the mean time, the complainant Mangal Sursang took injured Bhikha Mangal inside and that injured Bhikha died in his house because of injuries sustained by him, and other relatives of family of both the deceased remained in their respective houses after the incident because of the fear of the accused persons. It is further the prosecution case that accused No. 12 Puna mathur, accused No. 9 son Mohan and one Ambalal Mohan were taken to the kavi Police Station and the injured accused No. 12 Puna Mathur lodged his complaint before the Kavi Police Station against deceased Kanu Chatur, his father chatur Fula and complainant Mangal sursang and they were sent for medical treatment with police yadi. It is further the prosecution case that PSI of Kavi police Station had gone to village Zamdi at about 10. 00 p. m. for the investigation of one theft case and he went to Panchayat office and that on hearing the noise of police vehicle, complainant Mangal sursang, father of deceased Kanu Chatur i. e. Chatur Fula and other persons came out from their respective houses and thereafter complainant Mangal Sursang went to the Panchayat Office and lodged his complaint Exh. 33 against accused persons before PSI Shri Par mar. PSI parmar recorded said complaint Exh. 33 and sent it to Kavi Police Station for registration. On the strength of the complaint, police started investigation, recorded statements of the witnesses, searched houses of the accused persons and recovered guns and other weapons used by them, made inquest panchanamas of the dead bodies of deceased persons, sent said bodies for post-mortem. Investigating Officer also sent injured witnesses for medical treatment with police yadi. After completion of the investigation, all the 14 accused were charge-sheeted for the offences punishable under Sections 143, 147, 148, 302, 307, 247, 426, 506 (2), 504, 337, 336 read with Section 149 of the I. P. Code and under Section 135 of Bombay Police act and under Section 25 (l) (a) of the arms Act and came to be tried by the learned Addl. Sessions Judge, Bharuch in Sessions Case No. 71/85 who, after appreciating evidence led by the prosecution and more particularly, the evidence of injured and eye-witnesses, impugned judgment and order dated 31. 3. 86, convicted the appellants accused nos. Sessions Judge, Bharuch in Sessions Case No. 71/85 who, after appreciating evidence led by the prosecution and more particularly, the evidence of injured and eye-witnesses, impugned judgment and order dated 31. 3. 86, convicted the appellants accused nos. 1 to 13 for the offence punishable under Sections 302, 324, 147, 148 read with Section 149 of the I. P. Code and sentenced each of the appellants accused to undergo rigorous imprisonment for life and a fine of Rs. 200. 00 each, in default of payment of fine, to undergo rigorous imprisonment for 10 days for the offence punishable under Section 302 R/w section 149 of the I. P. Code; sentenced each of the appellants accused to undergo rigorous imprisonment for six months and to pay a fine of Rs. 300. 00, in default of payment of fine, to further undergo rigorous imprisonment for 15 days for the offence punishable under Section 324 r/w Section 149 of the I. P. Code; sentenced the appellants accused to undergo rigorous imprisonment for 15 days and to pay a fine of Rs. 100. 00 each, in default of payment of fine, to further undergo rigorous imprisonment for 7 days for the offences punishable under sections 147, 148 R/w Section 149 of the i. P. Code. The learned Judge ordered substantive sentences to run concurrently. By the impugned judgment, the learned Judge also acquitted original accused No. 14 of the offences with which he was charged. Being aggrieved by the judgment and order of conviction and sentence, the appellants original accused nos. 1 to 13 have preferred present appeal in this court. ( 3 ) ). Mr. K. J. Shethna, learned Counsel appearing on behalf of the appellants- accused vehemently submitted that the judgment and order of the learned Judge is illegal, erroneous and contrary to law and evidence on record. He has submitted that there was no intention on the part of the appellants-accused to commit murder of deceased Kanu Chatur and deceased Bhikha Mangal. He has further submitted that common object of committing murder of aforesaid deceased cannot be attributed to all the appellants accused and in the facts circumstances of the case, Section 149 of I. P. Code is not attracted or applicable at all and, therefore, all the accused-appellants should be held responsible for their individual act. He has further submitted that common object of committing murder of aforesaid deceased cannot be attributed to all the appellants accused and in the facts circumstances of the case, Section 149 of I. P. Code is not attracted or applicable at all and, therefore, all the accused-appellants should be held responsible for their individual act. He has, therefore, submitted that the learned Judge has wrongly convicted all the appellants- accused under Section 149 of the I. P. Code. Mr. Shethna, learned Counsel, further submitted that the injured witnesses and eye-witnesses are highly interested witnesses and their evidence could not be believed and therefore, the learned Judge has committed an error in convicting the appellants-accused accepting the evidence of such highly interested witnesses. Mr. Shethna further submitted that the evidence of such highly interested witnesses could not have been believed by the learned Judge in view of the fact that there is enmity between the rival groups. Mr. Shethna further submitted that even evidence of injured and eye-witnesses is full of infirmities, contradictions and is not supported by medical evidence. He, therefore, submitted that such a evidence could not have been believed by the learned Judge. Mr. Shethna further submitted and tried to convince the Court that the appellants accused must have exercised right of private defence and, therefore, appellants- accused be acquitted. Mr. Shethna further submitted that when common object is attributed to the members of unlawful assembly, act done must be shown to have been committed to accomplish common object and in absence thereof, no conviction can be recorded. Mr. Shethna further submitted that where there is occurrence of incident in a village involving rival factions, appreciation of evidence of prosecution witnesses require utmost care and caution which care and caution has not been exercised in the instant case. In support of his submission mr. Shethna, learned Counsel for the appellants-accused relied on the following authorities: (I) Muthu Nicker and Others etc. v. Stale of Tamil Nadu, reported in AIR 1978 SCC 1647, wherein the Supreme court observed as under:"appreciation of Evidence - Criminal case - Partisan evidence - Unlawful assembly - Occurrence in village involving rival factions - Need for utmost care and caution in appreciating such evidence stressed. v. Stale of Tamil Nadu, reported in AIR 1978 SCC 1647, wherein the Supreme court observed as under:"appreciation of Evidence - Criminal case - Partisan evidence - Unlawful assembly - Occurrence in village involving rival factions - Need for utmost care and caution in appreciating such evidence stressed. " (Paras 6 and 7) (II) Budwa @ Ramchandran and Others v. State of Madhya Pradesh, recorded in AIR 1991 SC 5 wherein Supreme Court observed as under:"held, that the conviction of the appellants accuse was principally based on the evidence of the deceaseds mother and sister. Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participate in the assault. The courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in the Court would be obliged to give the benefit of doubt to them. (Para 4)THE nature of the injury sustained in spite of the assertion of the concerted attack with lathis and tabbals by several assailants numbering over 15 renders the evidence doubtful about the participation of such a large number of persons. When the several blows with lathis and tabbals could produce, the necessary inference is that not more than seven persons might have participated in delivering the blows. Therefore, the presence of more than seven persons is doubtful. The persons who were not proved to have participated in the assault were entitled to the benefit of doubt. When the several blows with lathis and tabbals could produce, the necessary inference is that not more than seven persons might have participated in delivering the blows. Therefore, the presence of more than seven persons is doubtful. The persons who were not proved to have participated in the assault were entitled to the benefit of doubt. " (Para 5) (III) Allauddin Mian and Others v. State of Bihar recorded in AIR 1989 SC 1456 , wherein, the Supreme Court observed as under:"where the common object of the unlawful assembly was to kill the father of the deceased girls and on frustration of that object in consequence of the father who had gone inside the house to fetch a spear, having been prevented from coming out of the house, two of the accused killed the deceased, other accused could not be punished for the acts of killing for accomplishing the common object it was not necessary to kill the two girls who were not hinderence (sic.) to accused in question from accomplishing their common object. " (Para 8) (IV) Thakor Dolji Vanvirji and Others v. State of Gujarat, reported in AIR 1993 sc 209 wherein the Supreme Court observed as under:"unlawful assembly - Common object - Injury caused by accused No. 1 only proving to be fatal - Injuries by other accused persons found to be simple - held, common object of assembly was only to cause grievous hurt - Only accused no. 1 should be convicted under S. 300 and others under S. 326/149 in view of special circumstances of the case. " (Para 2) (V) Nallamsetty Yanadaiah and others v. Slate of Andhra Pradesh, reported in AIR 1993 SC 1175 wherein supreme Court observed as under:"para 5:. . . . . . For the purpose of application of S. 149 IPC, the prosecution has to prove the presence and participation in an unlawful assembly. The presence of these accused was mentioned consistently by all the witnesses. In a case of this nature, particularly, when the occurrence has taken place in a village, several villagers might have gathered and therefore, the further test is whether the participation has been proved so that their being members of an unlawful assembly can be accepted safely. The presence of these accused was mentioned consistently by all the witnesses. In a case of this nature, particularly, when the occurrence has taken place in a village, several villagers might have gathered and therefore, the further test is whether the participation has been proved so that their being members of an unlawful assembly can be accepted safely. In that view of the matter, the Courts below accepted the evidence of the injured witnesses who consistently deposed that these accused who were convicted under S. 302/149, ipc, were present and also participated in the occurrence by inflicting injuries on PWs. 11, 16 and 20. This view of the courts below is quite consistent with the settled principles in respect of application of 149 IPC. " ( 4 ) THERE is no dispute with regard to the principles enunciated in the aforesaid decisions of the Appex Court. In view of aforsaid observations, it is crystal clear that when occurrence of the incident is in village involving rival factions, the evidence of witnesses should be appreciated with utmost care and caution and that when there is allegation of group rivalries and enmities, when presence of accused doubtful or if actual participation of the accused in the incident is not shown, accused should be given benefit of doubt and Section 149 IPC would not be attracted in that event. It is well-settled legal position, for application of Section 149 of IPC, actual participation of the accused in the said incident must be shown and mere presence would not be sufficient for convicting him under section 149 of IPC. In light of above settled legal position, we find much substance in the arguments advanced by mr. Shethna, learned Counsel for the appellants except the submission that since the prosecution witnesses are highly interested witnesses, their evidence should be discarded and that the appellants accused might have exercised right of private defence for the reasons to follow. ( 5 ) SO far as the contention of Mr. Shethna, learned Counsel for the appellants-accused that since the prosecution witnesses are highly interested witnesses, their evidence should be discarded, is concerned, we see no force in said submission. The Supreme court in the case of Nallammsetty yanadaiah (supra) has observed that "evidence of eye-witnesses who were also injured, cannot be rejected merely on the ground that they were interested witnesses. The Supreme court in the case of Nallammsetty yanadaiah (supra) has observed that "evidence of eye-witnesses who were also injured, cannot be rejected merely on the ground that they were interested witnesses. At the most, their evidence is subjected to close scrutiny". In view of the aforesaid observations, the evidence of injured witnesses and eye-witnesses who are close relations and interested witnesses requires to be subjected to close scrutiny. ( 6 ) IN the instant case, for recording the conviction, the learned Judge has relied on the evidence of injured as well as eye-witnesses. Mr. Shethna took us through entire evidence on record. For recording conviction, the learned Judge has mainly relied on the evidence of injured and eye-witnesses, viz. P. W. 3 mangal Sursang (Exh. 32), P. W. 5 janakben, d/o Chaturbhai (Exh. 37), P. W. 6 Baijuben Mahijibhai (Exh. 38), P. W. 7 Ramsing Somebhai (Exh. 39), P. W. 8 subhan Umarbhai (Exh. 40), P. W. 9 himmat Raising (Exh. 41), P. W. 10 Raiji becharbhai (Exh. 42) and P. W. 12 Chatur fula (Exh. 54) over and above the evidence of Medical Officer who have examined injured witnesses and also performed post-mortem on the deadbodies of deceased Kanu Chatur and bhikha Mangal. ( 7 ) IN the present case there are eye- witnesses as well as injured witnesses. So far as evidence of P. W. 5-Janakben (Exh. 37) is concerned, she is sister of deceased Kanu Chatur. She is an injured eye-witness. In her evidence, she has categorically stated that the appellant- accused No. 3 Kanji Ratansinh Chauhan had attempted to inflict spear blow on her brother deceased Kanu Chatur, but as she tried to intervene with a view to save her brother, the said spear blow lended on the abdomen of this witness and she received serious injuries and said injuries, are also proved by the medical evidence of P. W. 2. Dr. Kantilal (Exh. 22 ). She has further stated that deceased kanu Chatur, with a view to save his life, took out spear from the house and tried to molded it and caused injuries to appellant accused No. 12 Punam mathur. She has further deposed that the appellant accused No. 7 Manilal Ratansinh had a spear in his hand and he inflicted spear blow on the chest of Kanu Chatur. She has further deposed that the appellant accused No. 7 Manilal Ratansinh had a spear in his hand and he inflicted spear blow on the chest of Kanu Chatur. This injury on the person of deceased kanu Chatur is proved by the medical evidence of P. W. 2 Dr. Kantilal. We do not see any reason for discarding her evidence merely on the ground that she is close relative of the deceased. Her evidence is natural and her presence at the place of incident is also proved as she had sustained injuries at the hands of appellant - accused No. 12. From her evidence, it is very clear that the prosecution has successfully proved the presence of appellant - accused No. 3 kanji Ratansinh, appellant accused No. 7 Manibhai Ratansinh and appeallant accused No. 12 Punam Mathur and the role played by them in the alleged incident. This witness has also explained as to under what circumstances the appellant accused No. 12 Punam Mathur sustained injuries at the hands of deceased Kanu chatur. Therefore also, the right of private defence is not available to the accused party. Further the evidence of P. W. 6 baijuben (Exh. 38) who is also an eye- witness and injured witness who had seen the incident, categorically reveals that she had seen appellant accused No. 2 amarsinh Ratansinh firing a gun shot from the wall of Lalji Maharaj Temple at deceased Bhikha Mangal who was standing in front of his house. The injuries found on the body of Bhikha Mangal are also proved by the medical evidence of p. W. 2 Dr. Kantilal. She has further deposed that appellant accused No. 7 manibhai came to the house of Bhikha mangal with a spear in his hand and had given spear blow on her right hand palm and on the right side of her stomach. These injuries are also proved by the medical evidence of P. W. 2 Dr. Kantilal. We cannot discard her evidence also merely on the ground that she was also close relative of deceased Bhikha Mangal. She is injured witness. Her evidence is also corroborated by the evidence of complainant P. W. 3 Mangal Sursang (Exh. 32) and eye-witness P. W. 7 ramsing Soma (Exh. 39 ). Further, there is one more eye-witness, i. e. P. W. 9 himmat Raising (Exh. 41) who is also injured eye-witness. She is injured witness. Her evidence is also corroborated by the evidence of complainant P. W. 3 Mangal Sursang (Exh. 32) and eye-witness P. W. 7 ramsing Soma (Exh. 39 ). Further, there is one more eye-witness, i. e. P. W. 9 himmat Raising (Exh. 41) who is also injured eye-witness. According to his evidence, the appellant accused No. 4 mangal fired gun shot at him which hit on his chest. This injury by gun shot is also proved by the medical evidence of P. W. 2 Dr. Kantilal. His evidence could not be discarded on the ground that she had run away from the place immediately and did not return for a long time and he being close relative of the victims of the incident. His evidence is natural evidence and the learned Judge has rightly accepted and relied on the same. Evidence of P. W. 3 Mangal Sursang is also very categoric. He filed complaint and narrated entire incident before the police. He is the eye-witness and there is no infirmity sufficient to throw away his evidence. On the contrary, his evidence is corroborated by the evidence of other prosecution witnesses. From the above evidence, in my view, the presence of the appellants accused No. 2 Amarsinh ratansinh, No. 3 Kanji Ratansinh and no. 5 Mangal Soma, No. 7 Manibhai ratansinh and 12 Punam Mathur is undoubtedly proved at the scene of offence and their respective participation in the commission of the offence. ( 8 ) NOW, it would be just and necessary to examine medical evidence. P. W. 2 Dr. Kantilal Gopalji Patel (Exh. 22) examined injured prosecution witnesses as also performed post-mortem examination on both the deceased. According to him, injuries on the deadbody of Kanu Chatur as per post-mortem examination (Exh. 23) were possible by spear. Injuries on the deadbody of deceased Bhikha Mangal as per post-mortem notes (Exh. 24) were possible by gun shot. Thus, injuries to deceased Bhikha Mangal are attributed to accused No. 2. However, none of the prosecution witnesses have attributed any role played by accused No. 11-Thakore dhanji, though he was having gun. 23) were possible by spear. Injuries on the deadbody of deceased Bhikha Mangal as per post-mortem notes (Exh. 24) were possible by gun shot. Thus, injuries to deceased Bhikha Mangal are attributed to accused No. 2. However, none of the prosecution witnesses have attributed any role played by accused No. 11-Thakore dhanji, though he was having gun. Therefore, injuries on the deceased bhikha Mangal by gun shot are proved to be caused, as per medical evidence as also by the oral evidence of P. W. Mangal Sursang who deposed that gun shot was fired by accused No. 2-Amarsinh at deceased Bhikha Mangal and supported by P. W. 6 Baijuben (Exh. 38), while P. W. 9 Himmat Raising (Exh. 41) has deposed that accused No. 5-Mangal Soma fired gon shot at deceased Kanu Chatur and as he came in between, he received gun shot on chest. Thus, by the medical evidence as well as evidence of P. W. 3 mangal Sursang, P. W. 6 Baijuben and p. W. 9 Himmat Raising, it is proved that both the accused No. 2 Amarsinh and no. 5 Mangal Soma are the authors of the injuries caused to P. W. 9 Himmat and Bhikha Mangal resulting into death of Bhikha Mangal and injuries to P. W. 9 Himmat. However, no overt act is attributed to accused No. 11 Thakore dhanji and, therefore, in view of the settled legal positiqn as aforesaid, his mere presence would not be sufficient for application of Section 149 of I. P. Code and, therefore, he requires to be acquitted. ( 9 ) P. W. 2 Dr. Kantilal Patel also examined injured P. W. 6 Baijuben (Exh. 38) and issued medical certificate (Exh. 26 ). According to the Medical Officer, injuries sustained by said witness are possible by spear. Said witness attributes spear injury to accused No. 7 Manibhai ratansinh and her version is also supported by P. W. 3 Mangal (Exh. 32 ). Thus, the injury caused to P. W. 6 baijuben is proved to have been caused by accused No. 7 Manibhai. The medical certificate of P. W. 12 Chatur Fula (Exh. 54) reveals that the injuries sustained by him were possible by hard and blunt substance and even possible by dashing with hard and blunt substance. Thus, injury sustained by him, cannot conclusively be attributed to any of the accused since none other prosecution witness has deposed so. The medical certificate of P. W. 12 Chatur Fula (Exh. 54) reveals that the injuries sustained by him were possible by hard and blunt substance and even possible by dashing with hard and blunt substance. Thus, injury sustained by him, cannot conclusively be attributed to any of the accused since none other prosecution witness has deposed so. The medical certificate (Exh. 28) issued by P. W. 2 dr. Kantilal reveals that the injuries sustained by P. W. 5 Janakben (Exh. 37) were possible by spear. P. W. 2 Jankben deposed that she received injuries by spear blow at the hands of accused No. 3 Kanji Ratansinh and her evidence is supported by P. W. Mangal (Exh. 32), p. W. 7 Ramsing (Exh. 39) and PW 12 chatur Fula (Exh. 54 ). Therefore, it is conclusively proved that P. W. 5 Janakben received injuries at the hands of accused no. 3 Kanji Ratansinh. Further as accused no. 5 Mangal Soma fired gun shot at deceased Kanu Chatur and as he came in between, he received gun shot on chest. Thus, by the medical evidence as well as evidence of P. W. 3 Mangal Sursang, p. W. 6 Baijuben and P. W. 9 Himmat raising that both accused No. 2 Amarsinh and No. 5 Mangal Soma are the authors of the injuries caused to P. W. 9 Himmat and Bhikha Mangal resulting into death of Bhikha Mangal and injuries to P. W. 9 Himmat Raising. However, no overt act is attributed to accused No. 11 thakore Dhanji and, therefore, in view of the settled legal position as aforesaid, his mere presence would not be sufficient for application of Section 149 of I. P. Code and, therefore, he requires to be acquitted. ( 10 ) P. W. 2 Dr. Kantilal Patel also examined injured P. W. 6 Baijuben (Exh. 38) and issued medical certificate (Exh. 26 ). According to the Medical Officer, injuries sustained by said witness are possible by spear. Said witness attributes spear injury to accused No. 7 Manibhai ratansinh and her version is also supported by P. W. 3 Mangal (Exh. 32 ). Thus, the injury caused to P. W. 6 Baijiben is proved to have been caused by accused no. 7 Manibhai. The medical certificate of P. W. 12 Chatur Fula (Exh. Said witness attributes spear injury to accused No. 7 Manibhai ratansinh and her version is also supported by P. W. 3 Mangal (Exh. 32 ). Thus, the injury caused to P. W. 6 Baijiben is proved to have been caused by accused no. 7 Manibhai. The medical certificate of P. W. 12 Chatur Fula (Exh. 54) reveals that the injuries sustained by him were possible by hard and blunt substance and even possible by dashing with hard and blunt substance. Thus, injury sustained by him cannot conclusively be attributed to any of the accused since none-other prosecution witnesses have deposed so. The medical certificate (Exh. 28) issued by P. W. 2 Dr. Kantilal reveals that the injuries sustained by P. W. 5 Janakben (Exh. 37) were possible by spear. P. W. 2 Janakben deposed that she received injuries by spear blow at the hands of accused No. 3 Kanji Ratansinh and her evidence is supported by P. W. 3 Mangal (Exh. 32), P. W. 7 Ramsing (Exh. 39) and P. W. 12 Chatur Fula (Exh. 54 ). Therefore, it is conclusively proved that p. W. 5 Janakben received injuries at the hands of accused No. 3 Kanji Ratansinh. Further as revealed by the medical certificate (Exh. 29) issued by P. W. 2 dr. Kantilal that P. W. 9 Himmat Raising suffered gun short injuries and some injuries possible by hard and blunt subtance like stick. As observed above, this witnees attributes his gun shot injuries on the chest to appellant accused no. 5 Mangal Soma. Therefore, the prosecution has proved that appellant accused No. 5 Mangal Soma caused gun shot injury to P. W. 9 Himmat Raising. However, the learned Judge has rightly disbelieved the say of said witness himmatbhai that appellant accused No. 10 Mathur Tribhovan has caused him injuries by stick (hard and blunt substance ). Further, evidence of medical officer P. W. 2 Dr. Kanlilal also reveals that one Ambalal Mohan suffered spear injuries, Soma Mohan suffered injuries with sharp cutting instrument like dharia and accused No. 12 Puna Mathur also suffered injuries by spear. Further, evidence of medical officer P. W. 2 Dr. Kanlilal also reveals that one Ambalal Mohan suffered spear injuries, Soma Mohan suffered injuries with sharp cutting instrument like dharia and accused No. 12 Puna Mathur also suffered injuries by spear. It has been established from the medical evidence as well as from the evidence of prosecution witnesses that appellant accused No. 12 puna Mathur received spear injuries at the hands of deceased Kanu Chatur, who in exercise of his right of self-defence, went inside his house and brought spear when all accused party came at his house and assaulted him. Thus, the submission of Mr. Shethna that the accused have exercised their right of private or self- defence falls flat. On the contrary, the appellants-accused are the aggressors and they went there armed with dangerous weapons and assaulted them. ( 11 ) FROM the discussion of medical evidence and evidence of prosecution witnesses as aforesaid, in our view, the prosecution has conclusively proved the presence as well as overt act of appellants-accused No. 2 Amarsinh ratansinh, No. 3 Kanji Ratansinh, No. 5 Mangal Soma, No. 7 Manibhai Ratansinh and No. 12 Punam Mathur in committing murder of both the deceased as well as in causing hurt to the witnesses as deposed by them. So far as complicity of other appellants-accused are concerned, it clearly appears that they have been roped in for the best reasons known to the prosecution evidence. It is to be noted here that on close scrutiny of medical evidence as well as oral testimony of prosecution witnesses, as also complaint, the complicity of the rest of the appellants-accused and overt act attributed to each of them, is either not supported by other prosecution witnesses or by the medical evidence. It is to be noted here that the incident took place because of group rivalry and enmity and the witnesses have also admitted that there are two groups in the village and incident occurred on account of payment of fine for grazing goats on the lands which both the groups claimed to be falling within the purview of their domine. It is to be noted here that the incident took place because of group rivalry and enmity and the witnesses have also admitted that there are two groups in the village and incident occurred on account of payment of fine for grazing goats on the lands which both the groups claimed to be falling within the purview of their domine. It is also an admitted fact that the incident occurred between these two rival groups and, therefore, the possibility or tendency of prosecution witnesses in involving as many persons of rival group as possible, cannot be ruled out and more particularly in light of set of prosecution evidence, it creates serious doubt about the complicity of other appellants accused. In our view, therefore, in light of the aforesaid well-setteled legal position, application of Section 149 IPC to rest of the appellants-accused would be not legal and proper. On the contrary, they are entitled to be acquitted by giving benefit of doubt. It is further to be noted that though P. W. 3 Mangal Soma (Exh. 32) is claims (sic.) to be an eye-witness, he has deposed that he had not gone near the doors of deceased Kanu Chatur and had not seen as to who beats whom. P. W. 5 Janak Natvarlal (Exh. 37) also could not specifically state as to how many number of accused came to beat her brother. There are certain minor omissions and contradictions in the prosecution evidence which can be ignored so far as appellants-accused Nos. 2, 3, 5, 7 and 12 are concerned since the prosecution, by leading cogent and convincing oral as well as medical evidence, proved the part played by aforesaid accused. However, as discussed above, the complicity and overt act of remaining appellants-accused are doubtful and, therefore, they are entitled to the benefit of doubt and requires to be acquitted. In light of well-settled legal position as aforesaid, application of section 149 IPC can be extended with respect of appellants-accused Nos. 2, 3, 5, 7 and 12 while remaining accused requires to be acquitted by giving benefit of doubt since their mere presence cannot establish that they were sharing common intention or object with the aforesaid accused persons. ( 12 ) ). For the reaons stated above, this appeal requires to be allowed partly. Hence, following order is passed :- ( 13 ) ). Appeal is partly allowed. ( 12 ) ). For the reaons stated above, this appeal requires to be allowed partly. Hence, following order is passed :- ( 13 ) ). Appeal is partly allowed. The impugned judgment and order of conviction and sentence recorded against appellants-accused No. 1 Chhita Mathur makwana, No. 4 Ranjit Ratansinh chauhan, No. 6 Jitsinh Ratansinh chauhan, No. 8 Narsinh Bhaiji Chauhan, no. 9 Soma Mohan Makwana, No. 10 mathur Tribhovan Makwana, No. 11 thakore Dhanji Makwana and No. 13 govindbhai Gordhanbhai Pramar, for the offences punishable under Sections 302, 324, 147, 148 R/w. Section 149 of the i. P. Code is hereby quashed and set aside and the appellants-accused Nos. 1, 4, 6, 8, 9, 10, 11 and 13 as aforesaid are hereby acquitted by giving benefit of doubt of the offences for which they have been convicted and are hereby ordered to set at liberty forthwith if not required to be detained in any other case. Fine, if paid, be refunded back to them. Appellants- accused Nos. 4, 6, 8, 9, 10, 11 and 13 are on bail, their bail-bonds stand cancelled. ( 14 ) ). The impugned judgment and order of conviction and sentence recorded against rest of the appellants-accused, i. e. appellants-accused No. 2 Amarsinh ratansinh Chauhan, No. 3 Kanji ratansinh Chauhan, No. 5 Mangal Soma chauhan, No. 7 Manibhai Ratansinh chauhan and No. 12 Punam Mathur makwana for the offences punishable under Sections 302, 324, 147, 148 R/w. Section 149 of the I. P. Code, is hereby confirmed. Appellant-accused No. 12 punam Mathur Makwana is on bail, his bail bonds stand cancelled and he is directed to surrender to the authorities concerned on or before 8-1-1994. Rest of the judgment and order is confirmed. .