JUDGMENT 1. - Both these appeals arise out of the judgment dated December 18,1992 passed by Special Judge, Dacoity Affected Area, Bharatpur in Sessions Case No.46/92, whereby the appellants were convicted as under: (I) Is-av & Ismail u/S. 302 or in alternate 302/149; under section 148, 324, 325 or in alternate 324/149, and 325/149, I.P.C. (ii) Budd-a Chuttu u/S. 302/149; 148; 324,325 or in alternate 324/149, I.P.C. (iii) Sirdar Jasmal u/S. 302/149,148, 324/149,325/149 and 323/149, IPC. (iv) Other appellants u/S. 302/149; 147; 333, 324, 325 or in alternate 323/149; 324/149 and 325/149, IPC. They were sentenced as under: u/S. 302 or 302/149 IPC Life imprisonment & fine of Rs. 2,000/- in default one year R.I. u/S. 147 IPC 1 year R.I., fine of Rs. 500/- in default 3 months R.I. u/S. 148 IPC 2 years R.I. & fine of Rs. 10 in default of payment of fine 6 months R.I. U/S. 323 or 323/149 IPC 1 year R.I. & fine of Rs. 500 in default of fine 3 months R.I. u/S. 324 or 324/149 IPC 2 years R.I. & fine of Rs. 1000/- in default of payment of fine 6 months R.I. u/S. 325 or 325/149, IPC 5 years R.I. & fine of Rs. 2000/- in default of payment of fine 1 year R.I. 2. In brief, the facts of the case are that for the incident which had taken place in the night intervening September 27-28, 1985, a written report Ex.P. 9, was made at Police Station Pahadi, District Bharatpur at 8.30 a.m. by PW 9 Dalmod, and Crime No. 117/85 was registered under Sections 147, 148, 149, 323, 324 and 302 IPC against all the appellants. As per the report, the informant-Dalmod, deceased Asina and the eye-witness Fudda were sleeping in the field of Asina while Samaychand and Nasru were sleeping in their field adjoining to the field of Asina. At midnight all the accused came to the field of Asina with arms. Appellants Is-av and Ismail were having 'Farsa' and each one of them inflicted a Farsa blow on the head of the deceased Asina. Chauttu was having a spear and he, too, inflicted spear blows to the deceased. Nuruddin inflicted 'Farsa' blow to the deceased. Appellants Sirdar and Assu were having guns and they made gun fires. Appellants Is-av and Ismail were having 'Farsa' and each one of them inflicted a Farsa blow on the head of the deceased Asina. Chauttu was having a spear and he, too, inflicted spear blows to the deceased. Nuruddin inflicted 'Farsa' blow to the deceased. Appellants Sirdar and Assu were having guns and they made gun fires. Appellants Chuja, Saman, Shamsher and Ishaq assaulted Samaychand; while Siro, Jummal and Jassu assaulted Nasru and Reda assaulted-Fddda with lathis. It was further stated in the report that the informant made a cry which attracted witnesses Bashira, Ashru and other villagers, who came on the spot and the accused-persons ran away seeing them coming there. 3. After registration of the case, inquest report Exh.P.5 was prepared. Site-plan Exh. P-6 of the place of occurrence was also prepared. Blood smeared soil and control soil were seized from the place of occurrence vide Memo Ex.P 7. One empty-cartridge was recovered from the field of Dalmod vide Ex.P.8. The autopsy of the dead-body was conducted by Dr. Ramesh Kumar Makkar (PW 13) vide post mortem report Ex.P.13. The 'doctor found the following external injuries on the body, of the deceased: (i) Incised wound 4"x 1/2"x 1/2" x bone deep left fronto-parietal area of scalp. (ii) Lacerated wound. semi-linear shape 21/2"x 1/4"x bone deep left occipital-parietal area of scalp. (iii) Lacerated wound 1"x 1/4"x bone deep right parietal area of scalp. (iv) TWo lacerated wounds l/2"x ⅕"x ⅕", 1" x ⅕" x ⅕" left parietal area of scalp. (v) Two abrasions l"x 1/2", 11/2"x 1/2" left back of mid arm. (vi) Contusion red-colour 6" x 4 1/2" left back of arm of lower left. (vii) Lacerated wound 11/2" x 1/2" x tender deep back of left middle finger at proximal phalanx. (viii) Bony irregularity with swelling 6" x 4" right arm with fracture of right humerous. (ix) Right arm ant. aspect-abrasion 11/2" x 1/2" red-colour contusion 6" x 4" abrasion 1" x 1/2". (x) Contusion red-colour 6" x 5" right arm at its middle and post aspect at its lower l/3rd. (xi) Abrasion 11/4" x 1" left front of chest 2" below clavicle. (xii) Two red-colour contusions parallel to each with difference at 1/2" oblique each size is 5" x 1/2" and ant. aspect of right thigh. (xiii) Abrasion 3" x 1/2" left back of scapular area. 4. (xi) Abrasion 11/4" x 1" left front of chest 2" below clavicle. (xii) Two red-colour contusions parallel to each with difference at 1/2" oblique each size is 5" x 1/2" and ant. aspect of right thigh. (xiii) Abrasion 3" x 1/2" left back of scapular area. 4. The injuries of Samaychand, Nasru and Fudda were also examined by Dr. Rakesh Kumar vide injury reports Exh. P-14. Exh. P-15 and Exh.P-16. The following injuries were found on their person: Injuries of Samaychand: (1) Incised wound 21/2" x 1/2" x muscle deep spindle shape on left Tibia - simple-sharp. (2) Incised wound with swelling 11/2" x 1/2" x muscle deep spindle shape on left Tibia 1/2" below Injury No.l. (3) Incised wound with swelling 11/4" x muscle deep right Tibia - simple-sharp. (4) Abrasion 1/2" x 1/4" Right knee lateral aspect - simple-blunt. (5) Bluish-Red-Colour contusion and swelling 11/2" x 1/2" x 7" x 5" complaint of pain on Right knee. (6) Diffuse swelling 4" x 5" with abrasion 1/2" x 1/2" Right Ankle movements are painful - simple-blunt. (7) Abrasion linear 5" x 3/4" Right ant. chest wall. - Simple-blunt. (8) Abrasion 1" x i/4" mid forehead - Sirtiple-blunt. (9) Abrasion-3,2." x 1/4", 11/2" x 1/4", 1/2" x 1/4" of Right back wrist - simple-blunt. (10) Abrasion 1/2" x 1/4" Back of right elbow - Simple-blunt. (11) Diffuse swelling 3" x 2" left lateral middle of ankle but all movements are free - Simple-blunt. Injuries of Nasru: (1) Abrasion 11/4" x 1" Right upper thigh post aspect - simple-blunt. (2) Contusion bluish-red 1/2" x 1/2" Right knee - simple-blunt. (3) Blister 1/2" x 1/2" Right lateral middle of leg - Simple-blunt. (4) Diffuse swelling 3 1/2" x 21/2" lateral aspect of ankle. Injuries of Fudda: (1) Abrasion 1" x 1/4" Left lumbar area of back - Simple-blunt. (2) Abrasion 1" x 1/4" Supra Scapular area of left back - simple-blunt. (3) Abrasion 1/2" x 1/2" Infra scapular area of left back - simple-blunt 5. After completion of investigation, charge-sheet was filed before the concerned Magistrate against the appellants and they were committed to the Court of Sessions Judge, Bharatpur. The appellant-Mallah was arrested lateron and an additional charge sheet was filed against him, but he was tried jointly. (3) Abrasion 1/2" x 1/2" Infra scapular area of left back - simple-blunt 5. After completion of investigation, charge-sheet was filed before the concerned Magistrate against the appellants and they were committed to the Court of Sessions Judge, Bharatpur. The appellant-Mallah was arrested lateron and an additional charge sheet was filed against him, but he was tried jointly. The learned Sessions Judge made over the case to the learned Special Judge, Dacoity Affected Area, Bharatpur, who after completion of trial convicted and sentenced the appellants as aforesaid. 6. During trial prosecution examined 17 witnesses, which included eye-witnesses PW 3 Bashir, P 4 Ashru, PW 5 Nasru, PW 6 Kamal Chand, PW 9 Dalmod, PW 10 Fudda, PW 12 Amar Singh and PW 15 Teyab. PW 13 is Dr. Ramesh Kumar and PW 17 is the Investigating Officer Ali Ahmed. The appellants in their statements under Section 313, Cr.P.C, denied prosecution evidence and their involvement in the crime. Two witnesses, namely, DW 1 Sampat and DW 2 Ismail were examined in defence. 7. The learned counsel, appearing for the appellants vehemently contended that report Ex.P.9 made by Dalmod was not the first version of the incident and it was prepared later on after the police came on the spot. Learned counsel contended that prosecution version about involvement of all the appellants and the manner in which the incident took place was highly exaggerated and it was difficult to sift truth from false-hood. Counsel further contended that the appellants had no enmity with the deceased and the immediate cause of incident as pleaded by the prosecution, was not believable and it was difficult to believe that for a small earlier incident all the appellants would have assembled with weapons. According to the learned counsel the witness Dalmod was not present at the spot and he falsely claimed himself to be an eye- witness of the incident. For injured witnesses Samaychand, Nasru and Fudda, it was contended that they were unable to see the assault to the deceased and they have made an exaggerated version implicating as many persons as they could do. The remaining eye-witnesses, learn counsel contended, were not present at the time of occurrence and they were falsely made as eye-witnesses. For injured witnesses Samaychand, Nasru and Fudda, it was contended that they were unable to see the assault to the deceased and they have made an exaggerated version implicating as many persons as they could do. The remaining eye-witnesses, learn counsel contended, were not present at the time of occurrence and they were falsely made as eye-witnesses. Lastly, it was contended that offence under Section 302 or 302/149 IPC was not made out against any of the appellants and looking to the nature of the injuries it could safely be held that common object of the assembly was not to commit murder of the deceased Asina. 8. On the other hand, the learned P.P. supported the judgment of the trial Court and contended that on the basis of evidence of the eye-witnesses, the appellants were rightly convicted and sentenced. 9. We have given out consideration to the above submissions. The prosecution case rests on the evidence of the so- called eye-witnesses examined during trial. The eyewitnesses may be classified as under for the sake of convenience to appreciate their testimony: (i) Dalmod-informant-PW 9 (ii) PW 5 Nasru, PW 8 Samaychand and PW 10 Fundda, the injured eye-witnesses. (iii) PW 3 Bashir, PW 4 Ashru, PW 6 Kamal Chand, PW 7 Mammal, PW2 Amar Singh and PW 15 Teyab witnesses, who reached at the spot after hearing noise. 10. Before adverting to various contentions raised by the learned counsel for the appellants, we would like to consider and examine the evidence of eye-witnesses. The trial Court has relied on the testimony of eye-witnesses, but, we are of the opinion that their evidence requires close scrutiny in the light of some important aspects canvassed before us during argument. We also find that the trial Court has not made critical analysis and scrutiny of oral evidence, as such, it becomes more imperative for us to make close scrutiny of the same. 11. We first take the evidence of eye-witnesses of the last category i.e., the witnesses who reached on the spot on hearing noise. PW 3 Bashir has stated that he was sleeping at his house in the village when be heard sound of a gun- fire. Thereupon, he rushed to the place of occurrence and found the appellants there. He saw accused-appellants Sirdar and Jassu making gun-fires. PW 3 Bashir has stated that he was sleeping at his house in the village when be heard sound of a gun- fire. Thereupon, he rushed to the place of occurrence and found the appellants there. He saw accused-appellants Sirdar and Jassu making gun-fires. Is-av and Ismail were having farsa and Ismail gave a farsa blow on right leg of Samaychand. Ishaq and Reda also gave lathi blows to him; while witnesses Mammal, Amar Singh, Putar, Teyab, Chandmal and Dallu were present on the spot when he reached there. He found Asina with several injuries on his body and blood was oozing from his head. He was lying near the cot with a broken hand. According to him, the assailants went away towards jungle on seeing them. For immediate cause of incident, the witness staled that one or two days prior the cattle of appellants Ishav and Ismail had entered in the field of Dalmod and caused damage there and this resulted in an oral altercation between them. In cross examination he admitted field of Dalmod and Asina are separate and that the appellant Ismail had instituted (sic) against the appellants by one Kamal Chand. The distance between his house and the field of Asina, where incident took place was given by the witness as 1/4 Kos, i.e. about 1 Km. He, then stated that he had gone to police station to make a report alongwith 10-20 villagers and the had reached there in night itself and Dalmod gave an oral report. PW 4 Asru has made more or less similar statement. He was also sleeping at his house in the night and came to the spot on hearing noise and found the accused-assaulting the members of complainant-party. According to the witness, Jassu and Sirdar were making gun fires and Is-av and Ismail were standing with 'Farsa' when he reached there. His father Asina was lying injured near his cot and in his presence all the accused assaulted Samaychand. He, then, stated that his father Asina was brought at home in the village where he succumbed to the injuries. In cross-examination he has stated to have gone to police station alongwith Dalmod, Mohar Khan, Dhannu, Haji and Chhaju and 8-10 villagers to lodge a report. That they reached at Police Station at 8.00 a.m., but he was not aware whether the report was made orally or in writing. In cross-examination he has stated to have gone to police station alongwith Dalmod, Mohar Khan, Dhannu, Haji and Chhaju and 8-10 villagers to lodge a report. That they reached at Police Station at 8.00 a.m., but he was not aware whether the report was made orally or in writing. The witness was also confronted on certain important points from his police statement Ex.D.2. According to him, Jassu and Sirdar appellants had made 6-7 gun-fires in his presence and that other witnesses had reached on the spot before him. He, then, stated that all the appellants ran away when they reached on the spot. He also stated that in his presence 2 or 3 farsa blows and 2 to 4 lathi blows were given to Samaychand. He admitted pendency of a criminal case with the appellants. PW 5 Nasru, on the other hand, has stated that when witnesses Ashu and Bashir came on the spot five minutes later the accused had left the place of incident. PW 6 Kamal Chand has stated that he and his son Teyab were sleeping in their 'Jhonpa' at their field when they heard noise towards the field of Asina. He saw 15-20 persons going towards the field of Chuttu. Out of them, accused Mallah, Sirdar and Jassu were having guns; Ismail, Is-av and Budda were having 'Farsa', Kamru and Noora were having lathis and Suttu was having a spear. That Asina was lying un-conscious in his field and these persons had gone from there after assaulting him. In cross examination he admitted to be real brother of Asina-deceased. He, then, stated that the police came at his house at 6 a.m. in the morning and 25-30 persons had gone to the place of occurrence with the police. He admitted pendency of a criminal case between him and the appellants. The witness was, then, confronted from his police statement Ex.D-4 in relation to certain material omissions. He admitted that he had seen the accused- persons from a distance of 50 steps when they were going towards the field of Chuttu from the field of Asina and he had identified them from their back-side. PW 7 Mammal has also given similar statement to have heard the noise at his field and seen more than 20 persons running from the field of Asina. PW 7 Mammal has also given similar statement to have heard the noise at his field and seen more than 20 persons running from the field of Asina. He could identify Dalmod, Chhuta, Lallu only and rest of the persons could not be identified by him. In cross examination he stated to have seen the accused from a distance of 500 meters. PW 12 Amar Singh has stated that he was sleeping in his 'Baithak' alongwith Budda. The distance from his 'Baithak' to the field of Asina was given by witness as one furlong. That he heard the noise and saw from these that Asina was lying beneath his cot and he identified Ismail, Is-av, Nuruddin, Budda, Sirdar, Reda, Matol, Jassu and Ishaq- accused but could .not identify other 10-15 persons who were standing at a distance. He, then, stated that both Is-av and Ismail gave one farsa blow on the head of Asina. Accused-Shamsher gave a farsa blow to Samaychand, injured; while Sahab, Usman and Kapoora gave him lathi blows and Sirdar and Jummal were making gun fires in the air. He came on the spot and thereafter, Asru, Bashir, Hukumuddin, Dinu and several other persons came there. In cross examination he has stated that the witness Asru came from his house which was at a distance of 3-4 bighas. He admitted to have awake on hearing the sound of a gun-fire and he was frightened that he had seen Is-av and Ismail accused giving farsa blows when he looked at his field. He also admitted to be the brother of the deceased-Asina and that he did not raise any noise for help nor tried to rescue the deceased. PW 15 Teyab is the last witness in the category. According to him, he was sleeping in his 'Jhonpa' with his father. He woke-up on hearing the noise and sent to the field of Asina where he found him lying beneath a cot and his head was cut by a farsa. That the accused-persons had run away after assaulting Asina. In cross examination he gave the distance of his 'Jhonpa' from the place of incident as one bigha and to have reached on the spot with Kamalchand witness. He was also confronted from his police statement in relation to material omissions and the witness could not give any explanation for the omissions. In cross examination he gave the distance of his 'Jhonpa' from the place of incident as one bigha and to have reached on the spot with Kamalchand witness. He was also confronted from his police statement in relation to material omissions and the witness could not give any explanation for the omissions. He admitted the pendency of a criminal case between him and the accused-persons. 12. On our careful scrutiny and anxious consideration to the above evidence, we have no hesitation in rejecting the same. PW 3 Bashir and PW 4 Asru were in the village at the time of occurrence. They have claimed to have reached at the place of occurrence after hearing noise. In our considered view these witnesses could not have seen the incident after coming from the village, which was not less than one Km. from the place of incident. PW 5 Nasru also falsifies the evidence of the above witnesses that they reached on the spot and saw the incident. This witness has categorically stated that the witnesses came on the spot after the accused had run away from the place of occurrence. Similar is the fate of the evidence of PW 6 Kamalchand and PW 15 Tey-ab. They were also sleeping in their 'Jhonpa' in their field which was at a distance of one bigha from the place of occurrence. These witnesses too, in our considered view, could not have seen the incident after reaching there. Then, their evidence is in conflict to each other. Further, according to Tey-ab, when he reached on the spot he found' Asina lying under his cot and the accused had gone away after assaulting him and other persons. The evidence of PW 7 Mammal also does not inspire confidence that he had been the incident from a distance of 500 meters when he was sleeping in his 'Baithak'. Similar is the case of Amar Singh. 13. Then, all the witnesses are interested witnesses being in close relation to the deceased. They were also having enmity with the accused and it was not difficult for them to become witnesses and depose against the appellants as per the prosecution story. Their evidence is also not firm and straightforward. There is also material inconsistency in their evidence about reaching at the place of occurrence and the manner in which the incident took place. They were also having enmity with the accused and it was not difficult for them to become witnesses and depose against the appellants as per the prosecution story. Their evidence is also not firm and straightforward. There is also material inconsistency in their evidence about reaching at the place of occurrence and the manner in which the incident took place. In our view PW 5 Nasru is right in his statement that the witnesses reached at the spot after the accused had gone away. PW 10 Fudda has also admitted in cross examination that the witnesses Bashir and Asru has reached on the spot after the incident of 'Marpeet' was over and the assailants had left the field. After close scrutiny of the evidence of the witnesses we are unable to place any reliance on them and, as such, their evidence is discarded from consideration. 14. Now we take the evidence of PW 9 Dalmod. He has stated that the cattles of Ismail and Is-av appellants had damaged his Bajra crop three days prior to the incident and when they were scolded for this act, they replied that their cattle would graze in his field. That the deceased Asina was also there and he also scolded them a day prior to the occurrence. He, then stated that the appellants had assembled at the field of Ismail and Is-av at 10.00 p.m. in the night while he, Asina and Fudda were at their field and they did not apprehend anything wrong at that time and were under the impression that they might have assembled for talks for a compromise. That at about 1.00 a.m. he woke up hearing noise and found the appellants there. He, then, stated that appellant Is-av gave a farsa blow on the head of Asina and a second blow was given by Ismail on his head, while third farsa blow was given by the appellant- Budda on his shoulder. That Chuttu gave a spear blow on his stomach and one spear blow was given on his back. Then, Nuruddin gave a lathi blow on his right hand and the remaining appellants have him lathi blows. After Asina had fallen on the ground he, Samaychand, Nasru and Fudda made a noise and the witnesses Asru and Bashir came to the spot. Then, Nuruddin gave a lathi blow on his right hand and the remaining appellants have him lathi blows. After Asina had fallen on the ground he, Samaychand, Nasru and Fudda made a noise and the witnesses Asru and Bashir came to the spot. Thereafter, witnesses Amar Singh, Kamalchand, Mammal and several other persons reached at the spot and the accused persons ran away to the field of Is-av seeing them. He also stated that appellant Reda gave a lathi blow on the back of Fudda and a second blow on his leg; while Shamsher gave lathi blow to Nasru. In cross examination he has stated that they were having no enmity with the accused. He also stated that the name of the appellant Mallah was mentioned in the report, and he was unable to explain as to why his name did not find place in' it. That he reached at the police station at 8.00 a.m. and the report was written by the Sarpanch of village Sonka at the police Station. That he did not tell anything orally to the SHO prior to making a report. That the Sarpanch of village Sonka had gone to the Police Station to lodge the report along with them. He, then stated that the report was not read-over by the SHO. He admitted that no beating was given to him but denied to be at his house in the village at the time of occurrence. He also admitted that in the report Ex.P.9 it was not mentioned that he, Fudda, Samaychand and Nasru, were present in the field and this fact was also not mentioned in the report that the accused-appellants had assembled in the field of Is-av. 15. After careful and critical examination of the evidence of Dalmod we find that he is not a reliable witness. The Sarpanch who had written the report was not examined by the prosecution. PW 3 Bashir has given a different version about the report and according to him a large-number of persons had gone to the police station where Dalmod gave an oral report and that they had reached at the police station in the night itself. We find material inconsistency in the prosecution evidence as to when Dalmod and other persons reached at the police station, who wrote the report and at whose instance? We find material inconsistency in the prosecution evidence as to when Dalmod and other persons reached at the police station, who wrote the report and at whose instance? We are also of the opinion that in case Dalmod had been present at the spot at the time of occurrence, he would have been the first target for the assault by the appellants as the incident was an off-shoot of a quarrel between him and the appellants Is-av and Ismail. In site plan we find that the field of Dalmod has been shown separately from where gun-fires are alleged to have been made by the appellants Jassu and Sirdar. PW 3 Bashir has also stated that the field of Dalmod was separate from the field of Asina. The statement of the witness about the manner in which the incident has taken place does not find corroboration from the medical evidence. We, thus, find that the evidence of Dalmod is not firm and convincing and we have no hesitation to reject the same. 16. Now we proceed to consider the evidence of injured eye- witnesses, namely, PW 5 Nasru, PW 8 Samaychand and PW 10 Fudda. 17. PW 5 Nasru has stated that he and his father Samaychand were sleeping in their field which is adjacent to the field of Asina deceased. They were sleeping on one cot and on hearing noise they woke-up and saw the incident from their field. In examination-in-chief, he claims to have seen the assault to the deceased-Asina and states that he saw Is-av and Ismail appellants giving one farsa blow on his head and that Budda also gave a farsa blow to him but he was unable, to tell where it was struck. That Suttu gave a spear blow on the back of Asina and he did not see any person inflicting lathi blows to him. In cross examination he has admitted that he was awakened when Asina was being assaulted and he had fallen from his cot at that time. According to the witness appellants Is-av and Ismail gave four blows each from the 'Farsa' which landed on his head and hands. At that time Asina was sleeping on the cot. We find that the statement of this witness is in-consistent and in-firm so far the assault to deceased-Asina is concerned. It also stands falsified by medical evidence. According to the witness appellants Is-av and Ismail gave four blows each from the 'Farsa' which landed on his head and hands. At that time Asina was sleeping on the cot. We find that the statement of this witness is in-consistent and in-firm so far the assault to deceased-Asina is concerned. It also stands falsified by medical evidence. In case his statement has been correct the deceased should have sustained 8 sharp injuries on his head and hands and also a punctured wound but as per post mortem report the deceased has sustained only one incised wound on his head. Then, according to his statement, be did not see any person causing any injury to the deceased by a lathi, but, the post-mortem report shows otherwise as most of the injuries sustained by the deceased are by blunt object. Taking totality of circumstances, it is difficult for us to place reliance on the testimony of this witness for the assault to the deceased Asina. However, the matter does not end here. This witness has also sustained one abrasion, one contusion, one swelling and a blister on his person and he has named Jummal, Reda and Usman appellants to have caused these injuries. So far Usman appellant is concerned, he was not named as an assailant by this witness in his statement under Section 161, Cr.P.C. This is a material omission and this part of his evidence cannot be acted upon. We are of the opinion that this witness was in a position to identify those appellants who actually assaulted him as they came to his close proximity and it was possible to identify them. We, therefore, hold that Jummal and Reda caused simple injuries to PW 5 Nasru and this fact is established from the evidence of Nasru. 18. PW 8 Samaychand has given more or less similar statement like his son Nasru. 19. He has stated that he was sleeping on his field alongwith his son on a cot. He also claimed to have seen the incident in the field of Asina from his cot. In examination-in-chief, for the deceased Asina he has stated that Ismail gave a farsa blow on his head and Isav gave another farsa blow, but he was unable to tell the place where it was struck to him. He also claimed to have seen the incident in the field of Asina from his cot. In examination-in-chief, for the deceased Asina he has stated that Ismail gave a farsa blow on his head and Isav gave another farsa blow, but he was unable to tell the place where it was struck to him. He also named the appellant Reda, Chuttu, Ishaq and Jasmal to have inflicted blows to Asina with their respective weapons. However, in cross examination he admits that he was sleeping at a distance of 30 steps (about 75 ft.) from Asina at the time of occurrence and he was unable to tell the parts of his body where he sustained injuries except the injury caused by Ismail as he had seen the incident from a distance. The evidence of this witness, thus, becomes doubtful that he had seen the assault to Asina and identified his assailants. We, therefore, reject the testimony of this witness so far it relates to assault to the deceased Asina. 20. For his. own beating he has named, Ismail, Is-av, Reda, Shamsher, Ishaq and Jasmal appellants. As per his injury report Ex.P.14 he has sustained 11 injuries which includes three incised wounds. The witness was in a position to identify his own assailants and we find no reason to dis- believe this part of his evidence. We, therefore, believe the testimony of this witness that Ismail, Is-av, Reda, Shamsher, Ishaq and Jasmal gave him beating with their respective weapons. 21. PW 10 Fudda is another injured witness, who was sleeping in the field of Asina. In examination-in-chief he has named all the appellants to have come on the spot with weapons. However, he has named Ismail, Is-av, Budda, Chota appellants to have inflicted injuries to the deceased but the part assigned to Chota and Budda does not get corroboration from medical evidence. For his own assault he has named appellant Reda only to have given a lathi blow in his back. From his evidence, actual participation of Ismail, Isav and Reda in the incident is proved and it also gets corroboration from the evidence of other injured- eye-witnesses. We are not prepared to accept a general statement of the witness that he has seen till the accused- persons in the field at the time of the incident. He being the son of the deceased is highly interested in the prosecution. We are not prepared to accept a general statement of the witness that he has seen till the accused- persons in the field at the time of the incident. He being the son of the deceased is highly interested in the prosecution. His testimony is accepted to the extent it is corroborated by other evidence. 22. Thus, from evidence of the injured-eye-witness, participation in the incident of the accused Ismail, Isav, Jummal, Reda, Shamsher, Ishaq and Jasmal is proved beyond reasonable doubt.' They were members of the unlawful assembly right from the inception of the incident. There are two Ishaq, namely, Ishaq S/o Kapoora and Ishaq S/o Bhammel, but, from the evidence of injured-eye-witness it is not established whether it was Ishaq S/o Kapoora or Ishaq S/o Bhammel who participated in the incident, as such, both of them are given benefit of doubt. 23. The last question for consideration is as to what offence or offences are committed by the accused and what was the common object of the unlawful assembly ? 24. As per post-mortem report, Exh. P-13, deceased-Asina had sustained all injuries, except one, by blunt object, The only injury by a sharp edged weapon was a cut-wound on fronto parietal of skull which, according to the Doctor, proved to be fatal and caused laceration of brain and death of Asina. However, Doctor has not opined that Injury No.l of deceased-Asina was sufficient in ordinary course of nature to cause his death. After scrutiny of prosecution evidence, it is difficult to hold as to which of the accused was responsible for the head injury of the deceased and we are firmly of the view that common object of the unlawful assembly was not to cause death of Asina. As per the prosecution case, the assailants were having gun, spear and farsa and the solitary injury by a sharp edged weapon on head of the deceased goes to show that spear and gun were not used and there was no repetition of a farsa blow also. The immediate cause of the incident was also not very grave. It is difficult to accept that for a small earlier incident, an unlawful assembly was formed to commit murder of Asina. The immediate cause of the incident was also not very grave. It is difficult to accept that for a small earlier incident, an unlawful assembly was formed to commit murder of Asina. Taking into consideration the totality of the circumstances, we hold that common object of the unlawful assembly was to cause simple and grievous hurt to the deceased-Asina and other persons who were sleeping at the filed. 25. The net result of the above discussion is that the participation of the accused-appellants Ismail S/o Bhammel, Isav S/o Bhammel, Jummal S/o Chuttu, Reda S/o Bhammel, Shamsher S/o Budda and Jasmal S/o ObuttU in the incident is proved beyond reasonable doubt. Ismail and Isav have remained in custody for about 32 months and other appellants have also remained in custody for few months. The prosecution has failed to prove the guilt against the remaining accused-appellants and they are given the benefit of doubt. Therefore, the appellants, Sahab Khan S/o Budda, Ishaq S/o Kapoora, Nuruddin S/o Kapoora, Kapoora S/o Kallu, Usman S/o Kapoora, Chajju S/o Chota, Budda S/o Chota, Metol S/o Chuttu, Sirdar S/o Bhammel, Chuttu S/o Manala, Ishaq S/o Bhammel and Mallah S/o Vilayat are acquitted of all the charges. Their conviction and sentence are set-aside and their bail bonds are cancelled. 26. Appellants, Ismail and Isav are convicted under section 148, I.P.C., for holding deadly weapon and sentenced to the period of imprisonment already undergone and to pay a fine of Rs. 500/-. In default of payment of fine to undergo 3 months R.I. The appellants, Jummal, Reda, Shamsher and Jasmal are convicted under section 147 IPC and they are sentenced to the period of imprisonment already undergone by each one of them and to pay a fine of Rs. 300/- each. In default of payment of fine to undergo Rigorous Imprisonment for 2 months. 27. For injuries of deceased-Asina all the aforesaid appellants are convicted under Section 326/149 and 325/149 IPC and sentenced to the period of imprisonment already undergone under each count and to pay a fine of Rs. 1500/-/ and Rs. 1000/-, respectively. In default of payment of fine to undergo 6 months and 5 months Rigorous Imprisonment, respectively. 28. For injuries of Samaychand, the appellants Ismail and Isav are convicted under section 324 and 323/149 IPC. The remaining appellants, namely, Jummal, Reda, Shamsher and Jasmal are convicted under section 324/149, 323 or 323/149, IPC. 1500/-/ and Rs. 1000/-, respectively. In default of payment of fine to undergo 6 months and 5 months Rigorous Imprisonment, respectively. 28. For injuries of Samaychand, the appellants Ismail and Isav are convicted under section 324 and 323/149 IPC. The remaining appellants, namely, Jummal, Reda, Shamsher and Jasmal are convicted under section 324/149, 323 or 323/149, IPC. They are sentenced to the period of imprisonment already undergone by each one of them and to pay a fine of Rs. 500/- under Section 324 or 324/149 IPC. In default of payment of fine to undergo 3 months R.I. They are further sentenced to pay a fine of Rs. 300/- each for the offence under Sections 323 or 323/149 IPC and in default of payment of fine to undergo 2 months R.I. 29. For simple injuries of Nasru and Fudda, all the aforesaid appellants are convicted under Section 323 or 323/149 IPC and sentenced to pay a fine of Rs. 300/-each. In default of payment of fine to undergo 2 months R.I. 30. The appellants are given 3 months time to deposit the amount of fine in the trial Court. On realisation of fine Rs. 6,000/- (Rs. Six Thousand only) shall be paid to Fudda S/o Asina-deceased. Injured-Samaychand and Nasru shall be paid Rs. 3,000/-(Rs. Three Thousand only) and Rs. 1,000/- (Rs. One Thousand Only), respectively. The appellants are on bail and they need not to surrender. In case they fail to deposit the amount of fine, the concerned trial Court shall take steps for their arrest to serve out the sentence of imprisonment in default of payment of fine.The appeal is partly allowed as indicated above. *******