JUDGMENT 1. - This appeal is directed against the Judgment of the learned Additional Sessions Judge No 1, Sri Ganganagar dated 29-8-1989 whereby the learned Additional Sessions Judge has held the accused-appellants Bantasingh, Preetamsingh and Bakhshish Singh guilty of the offences. under sections 148,302,307/149,326/149,324/149 and 323/149 Indian Penal Code whereas the accused-appellant Jawandsingh has been held guilty of the offence under sections 148, 302/149, 307/149,324, 326/149 and 323/149 Indian Penal Code the accused.appellants Trilochansingh and Ramsingh have been held guilty of the offences under sections 148 302/149,307/149, 324/149, 326/149 and 323 Indian Penal Code the accused-appellants Gulabsingh and Hardeosingh have been held guilty of the offences under sections 148, 302/149, 307/149,326/149,324/149 and 323 Indian Penal Code, the accused-appellant Awtarsingh has been held guilty of the offence under sections 148,302/149,307/149,326/149 and 323 Indian Penal Code and accused-appellant Nihalsingh has been held guilty of the offences under sections 148,302/149,326,124/149,307 and 323/149 Indian Penal Code and they have been sentenced to different terms of imprisonment. 2. The facts, necessary to be noticed, for the disposal of this appeal briefly stated are: that on 13-1-1988 at about 12:05 AM, PW 2 Harbanssingh injured lodged a FIR in Police Station, Kesrisinghpur to the effect that they have constructed a tube well in their own field, which is situated in Village 3X. The field of accused Nihalsingh is just adjacent to their field. It is alleged that accused Nihalsingh has also constructed a tube well in his own field and on account of the construction of this tube well so near the tube-well of the complainant party, the flow of water in both these tube-wells was reduced and, therefore, hot words were exchanged off and on and that is the actual cause of this occurrence. It was because of this that the accused-persons started fighting with Harbanssingh and his brother Jeetsingh. It is further alleged that accused Bantasingh, who, is mother's sister's husband of accused Nihalsingh lives just near the house of complainants. 3. In the night intervening between 12-1-1988 and 13-1-1988, at about 9 PM, the Complainant Harbanssingh and his brother Jeetsingh and their relations Pyarasingh, Satpalsingh, Amreeksingh and Gurdeosingh were sitting in the drawing room of the house of Complainants. 3. In the night intervening between 12-1-1988 and 13-1-1988, at about 9 PM, the Complainant Harbanssingh and his brother Jeetsingh and their relations Pyarasingh, Satpalsingh, Amreeksingh and Gurdeosingh were sitting in the drawing room of the house of Complainants. At that time, it is 3-4 other persons armed with Kripans, lathies and Gandasies came in front of their house and started abusing and giving Lalkara 'BAHAR N1KLO, AAJ TUMHE TUBEWELL KA PANI PURA KARWA DETE HAIN'. On this. complainant Harbanssingh and his brother Jeetsingh came out of their drawing room and when accused-persons started fighting with them, Pyarasingh and Satpalsingh came to rescue them. On this, accused Bantasingh and Bakhshish Singh who were armed with naked swords (Kripans), accused Preetamsingh who was armed with Gandasi availed Pyarasingh and inflicted injuries on his head, by which, he fell down. Thereafter, they inflicted injuries on his waist and legs etc. Satpal,singh was availed by Nihalsingh, Hardeosingh, Trilochan Singh, Jawandsingh and Awatarsingh with lathies and Gandasies. Jeetsingh was also injured by Awtarsingh and Gulabsingh by 'at-hies and Gandasies on his arms and heads and Harbanssingh was inflicted a Gandasi blow by accused Ramsingh on his arm. On account of the injuries received by Pyarasingh, Pyarasingh died then and there. However, Amreeksingh, Gurdeosingh and Davendrasingh challenged the accused-persons whereupon they dragged Pyarasingh inside the house of Bantasingh. On this, the complainant party returned inside their house and after sometime, they straight away went to the Govt. Hospital, Kesarisinghpur alongwith Satpalsingh and Jeetsingh. Leaving Satpalsingh and Jeetsingh in the Hospital for examination of their injuries, complainant Harbanssingh came to the Police Station to lodge the FIR and he lodged the FIR Ex.P.1 in the Police Station, Kesarisinghpur at 12 05 AM, on 13.1-1988. 4. A case under section 302 Indian Penal Code was registered. PW 10 Ramphal Sharma, SHO, P S. Kesarisinghpur immediately informed Shri Indrajeetsingh, Deputy Superintendent of Police. PW 11 Indrajeetsingh reached the place of occurrence at about 6.00 A.M. on 13.1-1988 and he immediately started investigation of the case. During investigation, all blood stained clothes of injured Satpalsingh were seized The site was inspected and the dead body of deceased Pyarasingh was recovered from the Kotha of Bantasingh's house. A broken Gandasi and its pieces were recovered from places E and F in the site plan Ex.P 2 Blood-stained soil was also recovered. During investigation, all blood stained clothes of injured Satpalsingh were seized The site was inspected and the dead body of deceased Pyarasingh was recovered from the Kotha of Bantasingh's house. A broken Gandasi and its pieces were recovered from places E and F in the site plan Ex.P 2 Blood-stained soil was also recovered. The medical examination of the injuries of the injured persons were also got conducted. The postmortem examination of the dead body of deceased Pyarasingh was also got done. The Inquest memos were prepared and the accused-persons were arrested and on their information and at their instances, weapons of offences were recovered. The blood stained clothes of the deceased Pyara Singh were also taken into possession. Blood was found inside the house of Bantasingh and on the chabutari and in the drawing room of the complainants and that was also taken into possession alongwith controlled soil. All these weapons which were recovered from the possession of the accused persons, the clothes of the deceased and the injured persons, the weapons that were recovered from the place of the occurrence i.e. from the house of Bantasingh ai.d the bloodstained soil and controlled soil were sent for chemical examination and the report of the State Forensic Science Laboratory (Ex. P 63) has been received. 5. At about 4.00 A.M. on 13-1-1988, a report of the incident was also lodged from the side of the accused-party and that has been marked as Ex.P 48. This report was lodged by accused Preetamsingh. However, after usual investigation, a case against the accused-persons was challaned and a challan was also filed against the complainant-party Both these cases were committed for trial and after trial, the learned Additional Sessions Judge has held the accused persons guilty of the offences as aforesaid and has sentenced them to different terms of imprisonments In the cross-case, which has been lodged by the accused-persons, all persons of the complainant party have been acquitted by giving them the benefit of doubt. Hence, this appeal by the accused-appellants as aforesaid. 6. We have heard M/s S.R. Bajwa and H.S. Sandhu for the appellants, Mr. Deo Raj Bohra. Public Prosecutor for the State and Mr. M.L, Garg for the Complainants. 7. It was contended by Mr. Bajwa, the learned counsel appearing for the accused-appellants that the genesis of the occurrence has been suppressed by the prosecution witnesses. 6. We have heard M/s S.R. Bajwa and H.S. Sandhu for the appellants, Mr. Deo Raj Bohra. Public Prosecutor for the State and Mr. M.L, Garg for the Complainants. 7. It was contended by Mr. Bajwa, the learned counsel appearing for the accused-appellants that the genesis of the occurrence has been suppressed by the prosecution witnesses. The common object of the assembly has been wrongly spelled out and the benefit of the right of private defence has wrongly been denied to the accused-persons. He has, therefore, submitted that the judgment of the learned Additional Sessions Judge convicting the accused-appellants of various/different offences deserves to be set aside and the accused-appellants deserve acquittal. 8. This submission was strongly opposed by Mr. Deo Raj Bohra, the learned Public Prosecutor for the State as also by Mr. M.L, Garg, the learned counsel appearing for the Complainants. They have contended that the prosecution has been able to prove the substratum of their case. Charges have been rightly framed and the evidence on record fully proves the case of the prosecution. Thus, they have supported the judgment of the learned Additional Sessions Judge. 9. We have given our most earnest consideration to the rival submissions made at the bar and have critically gone through the record of the case. 10. In this case, it is not in dispute that the occurrence has taken place in the night intervening 12-1-1988 and 13-1-1988. It is further not in dispute that in this incidence, Pyarasingh has lost his life and from the side of the complainant party, Satpalsingh, Harbansingh and Jeetsingh have been injured and from the side of the accused-persons, Bantasingh, Bakhshishsingh and Preetam Singh have been injured. 11. Deceased Pyarasingh has received as many as 6 incised wounds. Three of them are on his head. One is on his right knee and injury No. 5 is on his right forearm and the injury No. 6 is on the posterior aspect of left elbow joint. Injury No. 7 is a contusion of 3" x 1" size situated on the right maxillary process. Injured Satpal has received two incised wounds and one abrasion. His Injury No. 1 is an incised wound of the size of 41/2 x 11/2" x cutting of bone through and through of right thumb, which reaches the junction of right index and middle fingers posteriorly. Injured Satpal has received two incised wounds and one abrasion. His Injury No. 1 is an incised wound of the size of 41/2 x 11/2" x cutting of bone through and through of right thumb, which reaches the junction of right index and middle fingers posteriorly. Injury No. 2 is also an incised wound of the size of 2" x ⅛" on the back of chest, left side just near the medial border of left scapula Injury No. 3 is an abrasion of 3" x 1/4" size on the back of chest, left side J" from injury No. 2 situated on border of left scapula. Jeetsingh has received one incised wound of the size of 1/2" x 1/4" x 1/4" on the posterior aspect of his left forearm, 11/2" from left elbow joint. Injury No. 2 is a swelling of 3" x 11/2" on the left side of forehead, 2" from left eye brow. Complainant Harbanssingh has received two injuries. which are blunt weapon injuries. One is a lacerated wound of the size of 1" x 1/4" x 1/4" on the right knee joint and the other is an abrasion of 1/2" x 1/2" on the posterior aspect of right middle proximal finger. 12. So far as accused-persons are concerned, accused Bantasingh has received three incised wounds, which are as follows 1. Incised wound of 3" x 1" x 11/2"with cutting right shoulder joint, on the back of right shoulder joint; 2. Incised wound of 4" x 1/4"on the front of right thigh; 3 Incised wound of 3" x 1/2"x 1" on the left parietal region 5" from left pinna. Accused Bakhshishsingh has received three injuries which are as follows : 1. Lacerated wound of 1" x1/4" x1/2" on the left side of occipital region; 2. Abrasion of 2" x 1" on the upper border of right scapula; 3. Contusion of 3" x 1" on the medial border of left scapula. Accused Preetamsing h has also received four injuries, which are as follows 1. Incised wound of 2" x 1/4" x ⅛" on the left parietal region, 4" from left pinna; 2. Swelling of 3" x 2" on the left wrist joint; 3. Upper lateral inciser absent slight bleeding from the socket; 4. Rt. lower central incisor absent, slight bleeding from the socket. 13. The injuries of all these persons were examined on 13-1-1988 by the Medical Officer, Govt. Swelling of 3" x 2" on the left wrist joint; 3. Upper lateral inciser absent slight bleeding from the socket; 4. Rt. lower central incisor absent, slight bleeding from the socket. 13. The injuries of all these persons were examined on 13-1-1988 by the Medical Officer, Govt. Hospital, Kesarisinghpur. The X-ray report of accused Bantasingh has been marked as Ex. D. 6, which shows that he received a fracture of the acrimonian process of scapula. The X-ray report (Ex. D. 7) of accused Preetamsingh also shows that he received a fracture on his left ulna at the lower 1/4". Thus, there is no doubt as regards the happening of the events that took place on the night intervening between 12-1-1988 and 13-1-1988. In which the aforementioned persons were injured from both the sides This is also clear from the FIR Ex. P. 1 and the FIR Ex. P. 48A The motive of the occurrence is a dispute about reduction in flow of water from both the tube-wells. 14. PW 1 Satpalsingh has stated that the accused-persons had no enmity with his father Pyarasingh PW 2 Complainant Harbanssingh has also admitted in the first sentence of his cross-examination that there was no enmity except the enmity about the dispute of tube-wells. It has been stated by all the eye witnesses that when the accused persons came in front of the house of the Complainant, they were giving Lalkara that today, we shall re-coupe the loss of water from the tube-well. Thus, it can safely be assumed that the motive of the occurrence was a dispute about the tube-wells. Initially, a tube-well was got constructed- by the complainant-party and later on, a tube-well was also got constructed by the accused Nihalsingh in his own field which is just adjacent to the field of Complainant party. It appears that both the tube-wells have been dug in the fields of both the parties but on account of digging of both these tube-wells in the same direction very near to each other, the flow of water has been reduced and whichever tube-well was operated first, that dismissed the water supply of the other rube-well and, therefore, that was the cause of brewing of sentiments between the parties and it was because of that this occurrence has taken place. The motive of the incidence being the reduction of flow of water in both these tube wells, the accused-persons could not have any motive to kill Pyarasingh and his son Satpalsingh, with whom they had no enmity whatsoever They had an enmity as regards tube-well with Complainant Harbanssingh and his brothers Jeetsingh and Preetamsingh. They had no enmity as such with Pyarasingh and Satpalsingh and. therefore, the contention of the prosecution that common object of the assembly was to kill Pyarasingh and Satpalsingh and cause bodily injuries to others cannot be sustained. The case which has been set up by the prosecution in the FIR Ex. P. 1 as also in the testimony of the eye-witnesses i.e. PW 1 Satpalsingh, PW 2 Harbans singh and PW 6 Jeetsingh is that these 10 accused-persons initially assembled in the house of accused Bantasingh, which is just adjacent to the house of the complainants. As per site-plan Ex P. 2, the main gain of the house of Harbanssingh is facing north whereas the house of Bantasingh is situated on the south of their house and its main gate faces east. Thus, Bantasingh's house is situated just behind the house of Harbanssingh and vice versa. It has been claimed by the prosecution witnesses that at about 8 or 8.30 PM. when they were sitting in the house of Harbanssingh. alongwith Gurdeosingh, Amreek singh and Preetamsingh, these accused-persons alongwith 3-4 others armed with naked swords. Gandasies and lathies came in front of their house All the three eye witnesses have stated that they started abusing Harbanssingh and Jeetsingh and gave lalkara that they should come out and they will re-coupe the water loss to them. Initially, Harbanssingh and Jeetsingh came out of their house, The accused-persons started fighting with them but it has been categorically admitted by these eye witnesses that no injury was inflicted to them till Pyarasingh and Satpalsingh appeared on the scene of the occurrence. When Pyarasingh and Satpalsingh came out of the drawing room of Harbanssingh, they asked accused-persons not to fight whereupon it is stated that accused Bantasingh and Bakhshishsingh who were armed with naked swords (Kripans) and accused Preetamsingh who was armed with Gandasi availed Pyarasingh on the Chabutari of the house of Complainant Harbanssingh. When Pyarasingh and Satpalsingh came out of the drawing room of Harbanssingh, they asked accused-persons not to fight whereupon it is stated that accused Bantasingh and Bakhshishsingh who were armed with naked swords (Kripans) and accused Preetamsingh who was armed with Gandasi availed Pyarasingh on the Chabutari of the house of Complainant Harbanssingh. Each one of them inflicted one blow each on the head of Pyarasingh with their weapons, by which, he fell down Thereafter, they inflicted some more injuries on his body. The postmortem report (Ex. P. 8) and the Injury report (Ex. P. 9) of deceased Pyarasingh have been proved by PW 3 Dr. Jaswantsingh. PW 3 Dr. Jaswantsingh has disclosed that Pyarasingh has received in all six incised wounds which are as follows: "Incised wound of 7" x 21/2" x bone cutting membrances cutting and injury to the brain matter, Ion the right side of skull, reaching up-to right mastoid process. On post-mortem examination, there were multiple fractures of right parietal bone with fracture of right frontal bone and cutting of the right mastoid process. The membranes were cut and there was injury to brain matter. Under neath, the cutting of membrances and Haemotoma were present. 2. Incised wound of 4" x 3/4" x bone deep cutting of the middle of skull, situated 2" away from injury No. 1. On postmortem examination, there was fracture of left parietal bone with fracture of right parietal bone. The membranes were cut underneath haemotoma present and there was injury to brain matter 3. Incised wound of 2"x I" on the left parietal region, 3" from left Pinna. 4. Incised wound of 4" x 1/2" x 1/2" on on the right leg 2" from right knee joint. 5. Incised wound of 3" x 1/2" x 1/2"on the left forearm 2" from left wrist joint, posterially. 6. Incised wound of 5"x1/2"x3/4" on the posterial aspect of left elbow joint. 7. Contusion of 3"xl" on the right maxillary process." All these injuries were inflicted by accused Banta Singh, Bakhshishsingh and Preetamsingh. It is alleged that thereafter, these three accused-persons assisted by accused Ramsingh caught hold of the body of Pyarasingh and wanted to take him inside the house of Bantasingh. Seeing this. it is alleged that Jeetsingh and Satpalsingh went inside the house of Harbanssingh. It is alleged that thereafter, these three accused-persons assisted by accused Ramsingh caught hold of the body of Pyarasingh and wanted to take him inside the house of Bantasingh. Seeing this. it is alleged that Jeetsingh and Satpalsingh went inside the house of Harbanssingh. Jeetsingh came armed with a Gandasi and Satpalsingh came armed with a lathi and they started inflicting injuries to these three accused-persons i.e Bantasingh, Bakhshishsingh and Preetamsingh because they were taking the body of Pyarasingh inside the house of Bantasingh. They started inflicting injuries to them when they have taken the body of Pyarasingh 25 paces away from the house of Harbanssingh and Jeetsingh. It is alleged that in order to save the body of Pyarasingh from the hands of the accused-party, when Satpalsingh and Jeetsingh were inflicting injuries to Bantasingh, Bakhshishsingh and Preetamsingh, the other accused-persons also inflicted injuries to them. Accused Nihalsingh tried to inflict a blow on the head of Satpalsingh. Satpalsingh raised his right hand and, therefore, in that process. the thumb of his right hand was cut. It is alleged that when accused Awatarsingh tried to inflict a Gandasi blow on the head of Satpalsingh, it was again saved by him by raising his right hand and that has cut his two fingers. Accused Jawand Singh gave Kassia blows on his back: one blow was inflicted from the sharp side of the Kassia and the other was inflicted from the blunt side of the Kassia. Accused Trilochansingh inflicted a lathi blow on his back and accused Hardeosingh inflicted a lathi blow on his legs. This is what has been stated by all the three eye witnesses of the occurrence about the injuries received by Satpalsingh. 15. The injury report of Satpalsingh Ex.P 10 has been proved by PW 3 Dr. Jaswantsingh According to him the injury No. I of Satpalsingh is an incised wound of 41/2" x 11/2" cutting of bone through and through of right thumb, reaching the junction of right index and middle fingers posteriorly. It is not a case of infliction of two injuries. Although, in his re-examination, PW 3 Dr. Jaswant Singh has tried to dwindle and has stated that one injury can be the result of two blows but this injury was cutting the bone through and through and therefore, it is not possible to give a definite opinion In his cross examination. Although, in his re-examination, PW 3 Dr. Jaswant Singh has tried to dwindle and has stated that one injury can be the result of two blows but this injury was cutting the bone through and through and therefore, it is not possible to give a definite opinion In his cross examination. he has categorically stated that this injury was the result of only one blow and it was a grevious injury. This injury was inflicted by accused Nihalsingh Thus, it appears to be an attempt for excessive implication when PW I Satpalsingh says that the other blow was inflicted by accused Awatarsingh and he tried to save it by the same hand, which was already injured by accused Nihalsingh. The other two injuries which have been received by Satpalsingh are incised wounds on the back of the chest left side just near the medial border of left scapula and an abrasion on the back of the chest left side 1/2" away from Injury no 22. Thus, all these injuries are situated on the back of the chest and the author of these two injuries, as per all the three eye witnesses, is Jawandsingh. who has inflicted one sharp and one blunt weapon injury on his back by Kassia. It is alleged that accused Trilochansingh has inflicted a lathi blow on his waist but there is no injury on his waist. It is further alleged that accused Hardeosingh has given a lathi blow on his legs but there is no injury on his legs and, therefore, so far as injuries of Satpalsingh are concerned, it is a case of excessive implication of accused Awatarsingh, Trilochansingh and Hardeosingh and so, they cannot be held guilty for causing injuries to Satpalsingh. 16. All the three eye witnesses have further stated that accused Awatarsingh then availed Jeetsingh and inflicted a Gandasi blow from its sharp side on his arm. Jeetsingh has received one incised wound of the size of 1/2" x 1/4 x 1/4" on the posterior aspect of left forearm. l-/2" from left elbow joint. These eye witnesses have further stated that accused Gulabsingh inflicted a lath, blow on the head of Jeetsingh. There is a swelling on the left side of the forehead of Jeetsingh and, therefore, that injury can be assigned to Gulabsingh. 17. l-/2" from left elbow joint. These eye witnesses have further stated that accused Gulabsingh inflicted a lath, blow on the head of Jeetsingh. There is a swelling on the left side of the forehead of Jeetsingh and, therefore, that injury can be assigned to Gulabsingh. 17. It has been further stated by all the three eye witnesses that accused Ramsingh inflicted a Gandasi blow on the left arm of Harbanssingh. The injury report of Harbanssingh is Ex.P.l2. He has received only one lacerated wound on his right knee joint and an abrasion on his right middle proximal finger PW 2 Harbanssingh himself has stated that accused Ramsingh inflicted a Gandasi blow from its sharp side on his left hand near the fingers whereas there is no incised injury on his left hand. Actually, one injury has been caused on his right knee and an abrasion has been received by him on his right middle proximal finger and. therefore, accused Ramsingh cannot be held responsible for the injuries of Harbanssingh, 18. It is alleged that thereafter, all the accused-persons except Bantasingh, Preetamsingh and Bakhsishsingh dragged the body of Pyarasingh inside the house of Bantasingh. The dead body of Pyarasingh was recovered from the Kotha of Bantasingh by the Police. The autopsy report of the dead body was also prepared in that very room by PW 11 Shri lndrajeetsingh, Dy. S.P. 19. Now, the case of the accused-persons as disclosed in the FIR Ex.P.48-A, which has been proved by PW 10 Ramphal and which has been put in the statements recorded under section 313 Criminal Procedure Code to each of the accused-persons is that accused Preetamsingh's mother's sister son accused Nihalsingh dug a tube-well in his field in village 3-X. Prior to him, complainant Harbanssingh and Jeetsingh also dug a well in their own field. As both the tube-wells were in the same direction and near other, the flow of their water diminished and on account of that, relations between them became sore so much so that there was exchange of hot words and abusing number of times and enmity between them increased. It is alleged that at about 8.30 PM on 12-1-1988, . As both the tube-wells were in the same direction and near other, the flow of their water diminished and on account of that, relations between them became sore so much so that there was exchange of hot words and abusing number of times and enmity between them increased. It is alleged that at about 8.30 PM on 12-1-1988, . when Preetamsingh alongwith Bantasingh and Bakhshishsingh were standing outside their house, complainant Harbanssingh, Jeetsingh and their brother Preetamsingh alongwith Pyarasingh Amreeksingh and Satpalsingh came there and started abusing them and when they told them not to do so, Pyarasingh inflicted a sword blow on the head of Preetamsingh Preetamsingh alleges that he too was armed with a Kripan (sword) Bantasingh was also armed with a sword and Bakhshishsingh was armed with a Gandasi Preetamsingh tried to defend himself with that sword and in that process, he and Pyarasingh scuffled with each other. Harbanssingh struck a blow on his left scapular region with a lathi. When Bantasingh and Bakhshishsingh tried to save them, complainants Jeetsingh and Preetamsingh attacked Bantasingh with their Gandasies. Amreeksingh and Satpalsingh also attacked Bakhshshsingh with Gandasi and lathi respectively. There was a mutual fight from both the sides and both the sides were injured. They caught hold of Pyarasingh and took him inside the house of Bantasingh, who died on account of the injuries received by him. When accused Ramsingh and Jawandsingh etc. intervened, the complainants Harbanssingh and party ran away. Thus, in this FIR, the accused side has admitted that accused Bantasingh. Bakhshishsingh and Preetamsingh were standing outside there house armed with deadly weapons. According to. them, from the side of the complainant party, Harbanssingh, Jeetsingh, Pyarasingh, Preetamsingh and Amreeksingh took part in the occurrence. According to this FIR (Ex.P. 48A), which has been lodged on behalf of the accused-Party, Pyarasingh was armed with a sword. Jeetsingh, Preetamsingh and Amreeksingi were armed with Gandasies and Harbanssingh and Satpalsingh were armed with lathies and initially, the blow was struck by Pyarasingh to accused Preetamsingh and thereafter, the entire fight ensued. 20. The story that has been given out by the accused-appellants Bantasingh, Bakhshishsingh and Preetamsingh in their statements under section 313 Criminal Procedure Code is slightly different from the story narrated in the FIR Ex. 20. The story that has been given out by the accused-appellants Bantasingh, Bakhshishsingh and Preetamsingh in their statements under section 313 Criminal Procedure Code is slightly different from the story narrated in the FIR Ex. P.48A In his statement under s. 313 Criminal Procedure Code, accused Bantasingh has stated that the occurrence took place on account of the enmity of tube well. According to him, on account of digging of both the tube-wells in the same direction near each other, complainant Jeetsingh got enraged and started fighting with them. When accused Nihalsingh requested them, he (Bantasingh) and Bakhshishsingh tried to pacify him but this further enraged him. On the day of the occurrence also, Jeetsingh started giving abuses and wanted to fight whereupon Bantasingh and Preetamsingh tried to pacify him and in that process, hot words were exchanged between them and Jeetsingh threatened them that he will see to them and it was because of this threat that he sent his tractor to village 2X and called his relations Pyarasingh and his son Satpalsingh and one Amreeksingh. Bantasingh therefore, felt that Jeetsingh may not be out to fight with them and there,fore. he asked Preetamsingh who was armed with Kripan and Bakhshishsingh was armed with sword to stay at their house. It is alleged that all the three accused-persons i.e. Bantasingh, Preetamsingh and Bakhshishsingh were already sitting inside the house of Bantasingh, although in the FIR they have taken the plea that they were standing outside the house of Bantasingh in the way. Be that as it may, now the case developed by them is that Pyarasingh was armed with Kripan and Satpalsingh and Harbanssingh were armed with lathies and Jeetsingh, Preetamsingh and Amreeksingh were armed with Gandasies and all of them came to their house. They exhorted them and gave them abuses On this, they came out of their house and asked them not to abuse them. On this. Pyarasingh struck a sword blow on the head of Preetamsingh and thereafter, the same story has been repeated that Preetamsingh scuffled with Pyarasingh and thereafter, Pyarasingh wanted to injure them and then both the sides started fighting with each other and in that process, they have also caused injuries to the injured persons viz , Pyarasingh. Satpalsingh, Jeetsingh and Harbanssingh. Pyarasingh fell down in front of the house of Bantasingh. Satapalsingh and Harbanssingh etc. Satpalsingh, Jeetsingh and Harbanssingh. Pyarasingh fell down in front of the house of Bantasingh. Satapalsingh and Harbanssingh etc. ran away with their arms and they (accused-Persons) took Pyarasingh inside their house so that the complainant party may not take the dead body in their house in order to make out a false complaint against them. It was also admitted by Bantasingh that the sword which was carried by Pyarasingh was taken away by him inside his house. Preetamsingh has stated that his report was wrongly recorded by the SHO. About this, a question has been asked to Shri Indrajeetsingh (PW 11), Dy.S.P. that Preetamsingh made a complaint that his FIR has not been correctly record,ed by PW 10 Shri Ramphal Sharma, to which, he replied that FIR was correctly recorded by PW 10 Shri Ramphal Sharma. It has not been disclosed what wrong facts were recorded in the FIR Ex.P.48A by PW 10 Shri Ramphal Sharma When a question about FIR Ex.P.48A was asked to Preetamsingh and other accused-persons. none of them has stated this FIR Ex.P 48A is wrong. It was only accused Preetamsingh who has stated that wrong thing has been recorded in the FIR Ex.P.48A. It is, therefore, clear from this testimony of the accused-persons that their cross-case initially was that accused Preetamsingh. Bantasingh and Bakhshishsingh armed with Gandasies and Swords were standing outside their house and the complainant party came to their house and availed them whereas the prosecution story is that the accused-appellants came armed with deadly weapons to their house and gave abuses and Lalkars and when they came out, initially they availed Pyarasingh on the Chabutari of the house of Harbanssingh and thereafter, when Pyarasingh fell down, they tried to take away his body with the help of Ramsingh and then the fight ensued with them and in that fight, all other accused persons took part. Initially when Pyarasingh was availed, only three persons viz , Bantasingh, Bakhshishsingh and Preetamsingh took part in the occurrence It has been stated by PW 2 Harbanssingh and PW 6 Jeetsingh that lot of blood was collected in front of the house of Bantasingh i.e. 5-6 paces away from the door of his house. The blood has been collected from that place and it was that place, where Pyarasingh fell down and from there, he was dragged inside the house of Bantasingh. The blood has been collected from that place and it was that place, where Pyarasingh fell down and from there, he was dragged inside the house of Bantasingh. The site plan Ex.P.2 discloses that the fight started from Place-A and it was carried up-to place-B shown in Ex-P.2. Now, this has to be seen which version is true and how far, the version given by the accused persons accords with the case of the prosecution and how much of it has to be rejected and how much of it has to be accepted. 21. It was contended by Mr. Bajwa that the prosecution has to stand on its own legs. It cannot take any advantage of the weaknesses of the defence version and if the defence version has to be accepted then it has to be accepted as a whole. It is not permissible to reject the exculpatory part and to take advantage of the inculpatory part It was argued by Mr, Bajwa that when it is a case of suppression of the origin of the occurrence then Court cannot construct the story of its own, In this respect, he has placed reliance on a decision of their lordships of the Supreme Court in Bhagirath v. State of M.P., 1975 SCC (Cr.) 742 , wherein it has been held that the prosecution can succeed by substantially proving the very story it alleges. It must stand on its own legs. it cannot take advantage of the weakness of the defence. Nor can the Court, on its own make out a new case for the prosecution and convict the accused on that basis. It was further observed that when the substratum of the evidence given by the eye witnesses examined by the prosecution was found to he false, the only prudent course, in the circumstances, left to the court was to throw out the prosecution case in its entirety against all the accused. 22. It was further observed that when the substratum of the evidence given by the eye witnesses examined by the prosecution was found to he false, the only prudent course, in the circumstances, left to the court was to throw out the prosecution case in its entirety against all the accused. 22. Reliance was also placed on a decision of their lordships of the Supreme Court in State of Karnataka v. Siddappa Basanagouda Patil, AIR 1990 SC 1047 , wherein it has been observed that when there is no clear evidence as to how the occurrence originated, the presence of blood on floor inside house of accused and on threshold indicating that deceased received injuries in house and then came out on road and fell down and suppression of genesis and origin of occurrence by prosecution calls for the conversion of the sentences of the accused persons from s. 302 Indian Penal Code to s, 304 Part II, Indian Penal Code. Thus, the complete case of the prosecution was not thrown out in this case but it was felt that if the origin of the occurrence has been suppressed then definitely, the accused persons have to be given some advantage of it. 23. Reliance was further placed on a decision of their lordships of the Supreme Court in State of Bihar v. Mohd. Khursheed, AIR 1971 SC 2268 . That was a case in which their lordships have observed that the prosecution was unable to explain the original and the manner of the fight. The Supreme Court refused to interfere in appeal by special leave. 24. Mr. Bajwa next placed reliance on a decision of their lordships. of the Supreme Court in Devilal v. State of Rajasthan, 1971 SCC (Cr.) 719 . That was a case in which the prosecution came foreward with the case that Brijlal and Nathu carried pins and were present at the bus-stand and that Nathu shouted that the enemies should be attacked and that Nathu fired the gun. This story of the prosecution was disbelieved by the trial court If the pivot of the prosecution case is not accepted, a new prosecution case cannot be made to imperil defence. Thus, in that case the very basis of the prosecution case was disbelieved and, therefore. This story of the prosecution was disbelieved by the trial court If the pivot of the prosecution case is not accepted, a new prosecution case cannot be made to imperil defence. Thus, in that case the very basis of the prosecution case was disbelieved and, therefore. their lordships of the Supreme Court felt that when those two persons are found both by the Sessions Court and the High Court not to have been present, the whole prosecution case changed colour and became unworthy of belief. Now, we will have to see whether this is a case of that type? 25. In this case, it has not been disbelieved that these persons from the complainant side were injured. It has also not been denied that some of these accused-persons took part in the occurrence It is also not in dispute that the occurrence took place in village 3X. What is disputed is that according to the prosecution, accused persons were the aggressors and according to accused-persons, complainant party was the aggressor. Now, we will have to find out which version is true or which version is more credible. Of course, it is true that if both the sides do not come with true facts, the Court has no other choice but to find out the truth i e. the Court must make an attempt to separate grain from the Chaff, the truth from the falsehood. In this respect, reliance was also placed on a decision of their lordships of the Supreme Court in Balaka Singh v. State of Punjab, AIR 1975 SC 1962 , wherein it has been held that it is true that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this can only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by prosecution completely from the context and background against which they are made, then this principle will not apply. 26. In this respect, we may further place reliance on a decision of their lordships of the Supreme Court in Bhimrao, Anna Ingawale and Ors. 26. In this respect, we may further place reliance on a decision of their lordships of the Supreme Court in Bhimrao, Anna Ingawale and Ors. v. State of Maharashtra, 1980 SCC (Cr.) 888 , wherein it has been observed that simply because there are certain improvements in the testimony of the eye witnesses at the trial, that would not render their whole evidence untrustworthy. Aspects otherwise fully corroborated can be relied upon. In Jamuna Chaudhary v. State of Bihar, 1974 SCC (Cr.) 250 , their lordships of the Supreme Court have observed that as neither the prosecution nor the defence have, in the case before us. came out with the whole and unvarnished truth, so as to enable the Court to judge where the rights and wrongs of the whole incident or set of incidents lay or how one or more incidents took place in which so many persons were injured, Courts can only try to guess or conjecture to decipher the truth if possible. This may be done, within limits, to determine whether any reasonable doubt emerges on any point under consideration from proved facts and circumstances .of the case. 27. Reliance, in this respect, is also placed on a decision of their lordships of the Supreme Court in Bhagwan Tana Patil v. The State of Maharashtra, 1974 SCC (Cr.) 11 . wherein it has been held that the mere fact that the evidence of the prosecution witnesses was not firm and safe enough to be relied upon with regard to the part assigned to the acquitted accused in the occurrence. was no ground to reject it mechanically against the appellant also The maxim falsus in uno falsus in omnibus is not to be blindly invoked in appraising evidence adduced in our Courts where witnesses seldom tell the whole truth but often resort to exaggerations, embellishments and padding up to support a story however true in the main. It is the function of the Court to disengage the truth from falsehood and to accept what it finds to he true, and reject the rest. It is only where truth and falsehood are inextricably mixed up, polluting beyond refinement down to the core. the entire fabric of the narration given by a witness, that the Court might be justified in rejecting his evidence in toto. It is only where truth and falsehood are inextricably mixed up, polluting beyond refinement down to the core. the entire fabric of the narration given by a witness, that the Court might be justified in rejecting his evidence in toto. It has been further held that there is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused. their entire evidence should be discarded. This answers the submission of Mr Bajwa that as all the injuries received by the accused persons have not been explained in the FIR Ex. P 1 the prosecution story should be disbelieved. 28. In Molu v. State of Haryana, 1976 SCC (Cr.) 636 , their lordships of the Supreme Court have held that the Court should make every effort to disengage the truth from the falsehood and to sift the grain from the chaff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishments. 29. In the light of the ratio of the aforesaid decisions, now we would like to examine the case of the prosecution as also the defence put forth by the accused persons and we would like to make every effort to disengage the truth from the falsehood and to sift the grain from the chaff. 30. As stated above. in this case the motive of the occurrence is the reduction of flow of water in the tube-wells and on account of that. the relations between the parties were strained. The enmity between them brewed up so much so that on the date of the occurrence. as alleged by the accused person s, some hot exchange of words took place in the day and it was because of that that this number of persons were assembled at the house of accused Bantasingh and even at the house of complainant Harbanssingh, deceased Pyarasingh, Satpalsingh and Amreeksingh were called from village 2X They are the relations of complainant Jeetsingh. Thus, feelings were tenting high. 31. In his FIR Ex.P 48-A. accused Preetamsingh has categorically stated that he, Bantasingh and Bakhshishsingh were armed with swords and Gandasi and they were standing outside their house in the way. From the evidence discussed by us above, it is clear that accused-appellants Nihal Singh, Jawandsingh and some others have taken part in the occurrence. 31. In his FIR Ex.P 48-A. accused Preetamsingh has categorically stated that he, Bantasingh and Bakhshishsingh were armed with swords and Gandasi and they were standing outside their house in the way. From the evidence discussed by us above, it is clear that accused-appellants Nihal Singh, Jawandsingh and some others have taken part in the occurrence. Thus, a group of about 6 or more persons assembled at the house of accused Bantasingh. Thus, it cannot be believed that the complainant side was aggressive and came to the house of the accused-persons. If that was so, they would have availed the accused-persons and would have caused them more injuries They would not have allowed them to kill Pyarasingh when they were armed with Swords, Gandasies and lathies. In this respect, we may gainfully refer to certain observations made by their lordships of the Supreme Court in Bhimrao, Anna Inga wale's case (supra). which read as under "If the party of the deceased were the aggressors and had made a concerted attack on the appellants who were taken unawares there is no reason why the former should have come out second best in the combat. The fact that practically all the injuries received by the deceased were located in the head region and were inflicted with great force makes it highly probable that it was they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse. It is, therefore, clear that keeping in view, the injuries that have been received by the complainant party, the complainant party was not at all aggressive. It appears more credible and truth that initially, because of the threat given by complainant Jeetsingh, these accused persons assembled at the house of accused Bantasingh and went armed with deadly weapons to the house of complainant Harbanssingh and gave Lalkaras, on which, Harbanssingh, Jeetsingh, Pyarasingh and Satpalsingh came out from the house of the complainant party. The story of the prosecution that Pyarasingh was availed on the Chabutari of the house of the complainant party cannot be believed because keeping in view the injuries that have been inflicted on his head and further taking the evidence of PW 11 Shri Indrajeetsingh, Dv. S.P. and PW 10 Shri Rarnphal. The story of the prosecution that Pyarasingh was availed on the Chabutari of the house of the complainant party cannot be believed because keeping in view the injuries that have been inflicted on his head and further taking the evidence of PW 11 Shri Indrajeetsingh, Dv. S.P. and PW 10 Shri Rarnphal. S H O in to consideration, who have stated that only 5.6 drops of blood were found on the Chabutari, it is unsafe to believe this story that Pyarasingh was availed on the Chabutari of Harbanssingh. This was not the story, which was given out by them even in the FIR Ex. P. 1. In the FIR Ex P. 1, it was stated that accused-appellants Bantasingh, Bakhshishsingh and Preetamsingh were standing in the land and were giving Lalkaras and abuses. It appears that when these four persons viz , Harbanssingh, Jeet Singh, Pyarasingh and Satpalsingh came out of the house and when they saw 6-7 persons armed with latbies, Gandasies and Swords, the fight ensued between them and from place-A, they started fighting with each other and went up-to place-B and it was in that process that all persons were injured However, the case of the prosecution is categorical that only 3 persons availed Pyarasingh and they were accused-appellant Bantasingh, Bakhshishsingh and Preetamsingh who were armed with Swords and Gandasi. It was only these three persons who initially availed Pyarasingh. The case of the defence is that Pyarasingh was availed because he struck a sword blow on the head of Preetamsingh. That story cannot be believed because it is alleged that Pyarasingh was armed with a Kripan and that kripan was carried away by the accused-persons inside their house and was placed in the same room, where the dead body of Pyarasingh was put and that Kripan has not been produced anywhere. If Pyarasingh was armed with a Kripan he could not have received this number of injuries, which had resulted in his death. It appears that he was probably unarmed. The piece of Gandasi which was found at place F and an iron ring and part of Gandasi which were found at place E in the site plan Ex P 2 is the Gandasi of Nihalsingh because from the possession of accused Nihalsingh. only wooden handle of the Gandasi was recovered. His information which was recorded on 24-1-1988 in this respect is Ex. P. 44. only wooden handle of the Gandasi was recovered. His information which was recorded on 24-1-1988 in this respect is Ex. P. 44. The recovery memo of that blood stained handle of the Gandasi is Ex P. 17. The place of the recovery has been disclosed in site-plan Ex. P. 24, which has been proved by the evidence of PW 10 Ramphal and other Motbirans of the recovery. Although, accused-appellant Bakhshishsingh has tried to say that his Gandasi was broken out but he was armed with a Kripan and not with a Gandasi and a Kripan has been recovered on his information marked as Ex. P. 38 vide recovery memo Ex. P. 32 and that Kripan was blood stained Thus, it appears that initially when the complainant party came out and started fighting with the accused-persons, the accused appellants Bantasing, Preetamsingh and Bakhshisingh made a concentrated attack on Pyara Singh who was probably unarmed because the arm with which he was armed as alleged by the accused.persons and about ,which, it has been stated by them that he inflicted a sword blow on the head of accused Preetamsingh, has not been produced to the Police by the accused-persons. It is not alleged by anybody that he was armed with other weapon and consequently, it appears that it was because of this that he has received major blows. Initially, only Pyarasingh was availed and that too by these three accused-appellants viz., Bantasingh, Preetamsingh and Bakhshishsingh and till then, no other injury was caused to any other person. It is true that common object of the assembly was not to cause murder of Pyarasingh because that could not have been the common object of the assembly because the enmity between the parties was about the tube-well, which was not dug by Pyarasingh and his son Satpalsingh. The accused-persons had enmity with Harbanssingh and Jeetsingh and not with Pyarasingh and Satpalsingh and, therefore, the common object of the assembly could not have been to kill Pyarasingh and Satpalsingh or inflict such deadly blows to Satpalsingh. Such a common object has to be formed prior to the occurrence as held by their lordships of the Supreme court in Bhudeo Mandal v. State of Bihar, AIR 1981 SC 1219 . Ia that case, their lordships have held that s. 149 creates a specific offence and deals with the punishment of that offence. Such a common object has to be formed prior to the occurrence as held by their lordships of the Supreme court in Bhudeo Mandal v. State of Bihar, AIR 1981 SC 1219 . Ia that case, their lordships have held that s. 149 creates a specific offence and deals with the punishment of that offence. Before recording a conviction under s 149, the essential ingredient of s. 141 must be established. The emphasis is on common object. As stated above, there is no evidence to show that the common object of the assembly was to commit the murder of Pyarasingh and Satpalsingh. In this respect, we may also place reliance on Puran v. State of Rajasthan, AIR 1976 SC 912 , wherein it has been observed that in a case of sudden mutual fight between the parties, there can be no question of invoking the aid of s. 149 for the purpose of imposing constructive criminal liability on an accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts In Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 , it has been held that it must be shown that the act was done in furtherance of the common object of the assembly. 32. In this view of the matter. we are firmly of the view that in this case, the common object of the assembly could not have been to Kill Pyarasingh and Satpalsingh. However. it is clear that both the parties appear to have been determined to fight with each other but initially, the accused-persons were the aggressors They went armed to the house of the complainant Harbanssingh, gave abuses and Lalkaras whereupon, when the persons of the complainant party came out, some of whom were definitely armed, some of the accused-persons who were armed availed Pyarasingh. This story which has now been developed that after Pyara Singh was availed and was taken to some distance, Jeetsingh and Satpal Singh went inside and came armed with a Gandasl and lathi, is an afterthought story developed at the trial. Is was not their case in FIR Ex, P 1. Thus. This story which has now been developed that after Pyara Singh was availed and was taken to some distance, Jeetsingh and Satpal Singh went inside and came armed with a Gandasl and lathi, is an afterthought story developed at the trial. Is was not their case in FIR Ex, P 1. Thus. it appears that these three accused-persons i e. Bantasingh, Bakhshish Singh and Preetamsingh have formed a common intention then and there and started inflicting blows to Pyarasingh Initially, his head was availed and all the three accused-appellants viz., Bantasingh, Bakhshishsingh and Preetamsingh inflicted severe blows on his head and thereafter, when he fell down, they again inflicted injuries to him, which clearly shows that the accused-appellants Bantasingh, Bakhshishsingh and Preetamsingh formed a common intention to kill Pyarasingh. It is not the case of the prosecution that anybody else availed, Pyarasingh and caused him Injuries and, therefore, the rest of the accused-persons except Bantasingh, Preetam Singh and Bakhshishsingh cannot be held guilty of causing injuries to Pyara Singh. 33. It is really a case of cross-fighting which has ensued between both the parties after the occurrence was initiated by the accused persons and the fight started from Place-A in P 2. Both parties were armed. How ever, it appears that the accused-persons were armed with deadly weapons from the very beginning as admitted by them and as claimed by accused Preetamsingh in FIR Ex. P 48A. They gave abuses and Lalkaras, on which the persons of the complainant party came out. Pyarasingh was availed initially. When he was being done to death these three accused-appellants i.e. Bantasingh, Preetamsingh and Bakhshishsingh were attacked by the complainant party to save him from being killed. When these three accused-persons were attacked by the complainant-party, their companions attacked them and caused injuries to Satpalsingh, Jeetsingh and Harbanssingh. 34. Both the parties, if appears, assembled there in the house of Complainant Harbanssingh and accused-appellant Bantasingh fearing assault from the other side and they were prepared to fight with each other. It may be stated here that complainant Harbanssingh's brother Preetam Singh as also their relation Amreeksingh have not received any injuries and therefore, it cannot he believed that they have taken part in the occurrence. If they would have taken part in the occurrence they would have received injuries Similar is the case of Gurdeosingh and Devendrasingh. It may be stated here that complainant Harbanssingh's brother Preetam Singh as also their relation Amreeksingh have not received any injuries and therefore, it cannot he believed that they have taken part in the occurrence. If they would have taken part in the occurrence they would have received injuries Similar is the case of Gurdeosingh and Devendrasingh. who were said to be present at the place of the occurrence and participated in the rescue operation of the complainant party by giving Lalkaras. The accused appellants Bantasingh, Bakhshishsingh and Preetamsingh did not cause any injuries to anybody else except Pyarasingh but probably they were attacked and inflicted injuries because they were inflicting injuries to unarmed Pyarasingh and it was because of this that they were availed by the complainant party in exercise of their right of private defence. It has been held by their lordships of the Supreme Court in Madhoram v. Stab, of U.P., 1981 SCC (Cr) 374 that the aggressors cannot counter-claim private defence by reason of victims attempting to defend themselves. Thus, as stated above. accused-appellants Bantasingh, Bakhsishsingh and Preetamsingh are responsible for the injuries caused to Pyarasingh. 35. However, so far as other accused persons except Bantasingh, Bakhsishsingh and Preetamsingh are concerned they can only be held responsible for their own acts In this respect, we may place reliance on a decision of their lordships of the Supreme Court in Puran v. State of Rajasthan, AIR 1976 SC 912 , wherein it has been held that in case of mutual fight between the two parties, there can be no question of invoking the aid of section 149 for the purpose of imposing constructive criminal liability on an accused. The accused in such a case can be convicted only for the injuries caused by him by his individual acts 36. It is no doubt true that in this case, Gurdeosingh, Amreeksingh and Preetamsingh, the brother of complainant Harbanssingh have not been examined, although it is alleged that they have seen the occurrence but failure to examine them does not weaken the prosecution case because all the injured eye witnesses of the occurrence have been examined and their evidence is sufficient for unfolding the prosecution story against accused-persons. When all the injured witnesses have been examined, it was not essential to examine any other witnesses. When all the injured witnesses have been examined, it was not essential to examine any other witnesses. In such matters, inculpatory part of the prosecution story can be believed, if it is supported by other evidence. All the three accused-persons viz , Bantasingh, Preetamsingh and Bakhshishsingh have admitted that they have inflicted injuries to Pyarasingh and he died of those injuries. However. the case of these three accused-persons is that initially, Pyarasingh inflicted a sword blow on the head of accused Preetamsingh but that story has been disbelieved by us because neither the sword was found lying in the way nor it has been produced by the accused persons from their custody although Bakhshishsingh has stated that the sword of Pyarasingh was taken away by him inside his house Thus, when that exculpatory part of their testimony is unbelievable. the inculpatory part of their testimony can be accepted. In this respect. we may place reliance on a decision of their lordships of the Supreme Court in Nishikant v. State of Bihar, AIR 1969 SC 422 , wherein it has been held that inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable. The ratio of this decision was again reiterated by their lordships of the Supreme Court in Mohanlal v. Ajitsingh, AIR 1978 SC 1183 . wherein it has been held that if the evidence on record disproves the exculpatory part of the statement of accused in the trial court, it is clearly permissible to accept of the statement which accords with the evidence on the record. 37. It is quite probable that some of the persons whose names are taken, may be present at the place of the occurrence as spectators or they tried to pacify both the parties and might have tried to dissuade them from fighting. Such spectators or by stander cannot be held guilty of any offence by taking recourse to s. 149 Indian Penal Code In this respect. we place reliace on Musakhan v. State of Maharashtra, AIR 1976 SC 2565 , wherein it has been held that a mere innocent presence in an assembly of persons, as for example a bystander does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. 38. 38. Of course, number of witnesses have been examined about the recoveries which were made at the instance of the accused-persons and from their possession and the recovered articles were stained with human blood but that evidence is only a supporting piece of evidence and we need not discuss it in detail. The evidence led in the case clearly proves that for the murder of Pyarasingh, accused-appellants Bantasingh, Bakhshish Singh and Preetamsingh were responsible. They formed common intention to kill him and therefore, they are held guilty of the offence under s 302/34 Indian Penal Code Common intention can be formed even at the time of the occurrence or at the spur of the moment. It need not precede the occurrence. It can be inferred from their conduct of a concerted attack. In this respect, we place reliance on a decision of their lordships of the Supreme Court rendered in Dharampal and Ors. v. State of Haryana, reported in AIR 1978 SC 1492 . Similar view has been expressed by their lordships of the Supreme Court in Ram Prasad v. State of U.P., AIR 1976 SC l99 (Para 7) ; Ramaswamy Ayyangar v. State of Tamil Nadu, AIR 1976 SC 2027 ; and Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 (Para 6) . 39. It is alleged that some drops of blood were found on the Chabutari. of Complainant Harbanssingh as also in his drawing room. Some blood was found inside the house of Bantasingh. Complainants Harbans Singh, Jeetsingh and Satpalsingh were Injured and it may be possible that after the fight was over, they have gone inside their house from the Chabutari and in that manner, some drops of blood can be found on the Chabutari and the drawing room of Harbanssingh. After Pyarasingh was availed by accused-appellants Bantasingh, Bakhshish Singh and Preetamsingh, it is alleged that the accused-appellants dragged his body inside the house of Bantasingh and therefore, some blood was found in the house of accused Bantasingh. It is certain that the occurrence has taken place in the land which is situated on the eastern side of the house of Harbanssingh and Bantasingh, between places A and B and not inside anybody's house. 40. It is certain that the occurrence has taken place in the land which is situated on the eastern side of the house of Harbanssingh and Bantasingh, between places A and B and not inside anybody's house. 40. Section 34 is not an independent offence and, therefore, one can be held guilty of an offence with the aid of s. 34 Indian Penal Code without there being a change about it. Its application can be inferred from the facts and circumstances of each case. Accused-appellants Bantasingh, Bakhshisingh and Preetam Singh have inflicted deadly blows on the person of Pyarasingh which have resulted in his death. As per PW Dr. Jaswantingh, these injuries and the blood loss and shock caused by them alongwith multiple fractures of the skull bone were responsible for his death and hence, they are held guilty of the offence under s 302 Indian Penal Code as also 302/34 Indian Penal Code. So far as accused Nihal Singh is concerned, he is held guilty of the offence under s. 326 Indian Penal Code, It is nobody's case that this injury could have caused death of Satpalsingh and, therefore, the injuries caused by Nihalsingh to Satpalsingh does not travel beyond s. 326 Indian Penal Code. Accused.appellant Jawand Singh is guilty of the Offence under sections 323 and 324, Indian Penal Code for causing injuries to Satpalsingh. Accused-appellant Awtarsingh is held guilty of the offence under section 324, Indian Penal Code whereas accused-appellant Gulabsingh is held guilty of the offence under section 323 Indian Penal Code. It is alleged that accused Ramsingh has inflicted injuries to Harbanssingh on his left hand and fingers whereas the injuries received by him are on his right knee and right hand and they too are not caused by any sharp weapon. Under these circumstances, Ramsingh cannot be held guilty of any offence. Simply because he dragged the dead body inside the house of Bantasingh in order to save the accused-persons from being implicated for any other offence, it does not mean that he is guilty of any offence. 41. In the result, this appeal partly succeeds. The accused-appellants Ramsingh, Trilochansingh and Hardeosingh are acquitted of all the offences of which they have been held guilty by the learned trial Judge. However, accused appellant Preetanasingh, Bantasingh and Bakhshishsingh are held guilty of the offences under sections 302 read with 302/34 Indian Penal Code. 41. In the result, this appeal partly succeeds. The accused-appellants Ramsingh, Trilochansingh and Hardeosingh are acquitted of all the offences of which they have been held guilty by the learned trial Judge. However, accused appellant Preetanasingh, Bantasingh and Bakhshishsingh are held guilty of the offences under sections 302 read with 302/34 Indian Penal Code. The accused-appellant Nihalsingh is held guilty of the offence under section 326 Indian Penal Code The accused appellant Jawandsingh is held guilty of the offences under sections 323 and 324 Indian Penal Code and accused-appellant Gulabsingh is held guilty of the offence under section 323 Indian Penal Code and accused-appellant Awatarsingh is held guilty of the offence under section 324 Indian Penal Code. All these seven accused-appellants are acquitted of all other offences of which they have been held guilty of the learned Additional Sessions Judge. The accused-appellants Bantasingh, Preetam Singh and Bakhshishsingh are sentenced to life imprisonment together with fine of Rs 1,000/- each and in default to undergo one month's rigorous imprisonment for offences under sections 3O2A read with 302/34 Indian Penal Code. Sofaras accused-appellant Nihalsingh is concerned, he has remained in custody only from 20-1-1988 to 20-4-1988 and 29-8-1989 to 8-9-1989. He is sentenced to undergo three years' rigorous imprisonment together with a fine of Rs 100/- in default, to undergo one month's rigorous imprisonment. The period already undergone by him will be set off against the period of sentence. So far as accused-appellants Jawandsingh, Awatarsingh and Gulabsingh are concerned, they are sentenced to the period of their custody for the offences of which they have been guilty i.e Jawansingh for the offence under sections 324 and 323 Indian Penal Code; Awatarsingh for the offence under s 324 Indian Penal Code and Gulabsingh for the offence under section 323 Indian Penal Code. They need not surrender to their bail-bonds. 42. Let the record of this case be sent forthwith to the learned lower court.Appeal partly allowed. *******