Judgment Loknath Prasad, J. 1. All these seven criminal appeals were taken up together as all these appeals were preferred from the common judgment of conviction passed by the 4th additional Sessions Judge, Gaya, vide judgment dated 21.8.1990 in S. T. No.15/85 and this common order and judgment will dispose of all these criminal appeals in question. 2. As many as eight appellants preferred all these seven criminal appeals meaning thereby all the appellants preferred an appeal singly against their order of conviction save and except in Cr. Appeal No.352 of 1990 one Mahendra Singh is also the appellant along with Surendra Singh. 3. The facts in short giving rise to these appeals are that P. W.9 Shyam chandra Sharma of village Chotki babanpura within the Ghosi Police station of district Jehanabad gave fardbeyan before the A. S. I. Ghosi police Station in his own village on 18.3.1984 at about 9.00 P. M. alleging therein that on that day being the noli festival day, they were celebrating Holi as usual and singing Holi festival song in the Dalan of Nawal Singh situated in village Chotki Babbanpura itself along with other P. Ws. and some other villagers. In the evening at about 6.30 p. M. or so they decided to proceed to brahmajee pind situated near the dwelling-house of Nawal Singh for doing customary rites and also singing holi Festival Song there. The informant and other witnesses came out of the Dalan and when they were proceeding towards Brahmajee pind, i. e. Holi place of the village on the western side of Dalan there is Gair mazarua land used as thoroughfare and when they reached there they found as many as nine persons and they were armed with Bhala, Garasa, lathi and some of them were armed with fire-arm. When the informant and other P. Ws. and the villagers began to proceed through the Gair Mazarua land then appellant Baleshwar Singh protested and asked them not to go by that land and when they tried to proceed further by the side of that land, Baleshwar Singh ordered for killing and as such the appellant Raj kishore Singh gave a Garasa blow on the head of Nawal Singh due to that he was seriously injured and fallen on the ground. It has also been alleged by the informant in the Fardbeyan that immediately after other appellants and one Kaushalendra Singh began to assault other P. Ws. and out of fear he entered in the Dalan to save himself and from there he heard that Baleshwar Singh ordered his men to set fire two palanis (Straw hutments ). After the occurrence the informant and other witnesses came out and had seen nawal Singh, Bachu Singh, Brijnandan singh and Ramsinghasan Singh injured and they were lying on the ground and it has been alleged that they were taken to Jehanabad Hospital for treatment and the other injured will give detailed description as to how they sustained injuries. 4. The motive behind this occurrence has also been described in the fardbeyan as the informant stated that the P. O. land was a Gair Mazarua land and the accused persons were claiming that land and so there was 144 and 107 cr. PC, proceeding between the parties and for that reason the appellants formed an unlawful assembly and committed this offence. 5. The A. S. I. recorded Fardbeyan and sent the same to Jehanabad Police station for instituting a formal F. I. R. and also took up investigation. On the. way while the injured Nawal Singh was being removed to Jahanabad Hospital for treatment, he succumbed to his injury and this case was converted into under Sec.302 of the Indian Penal code besides other sections of the Indian Penal Code. On the next day of the occurrence the I. O. came to the place of occurrence and made inspection of the P. O. land and examined some of the witnesses and submitted charge-sheet as against all these appellants and one Kaushalendra Singh was not sent up for trial. Subsequently, kaushalendra Singh was also summoned by the Trial Court but the High court quashed the proceeding as against this accused and thus only these appellants faced the trial in court below. 6. The Trial Court found the appellant Raj Kishore Singh guilty under section 302 of the Indian Penal Code whereas all the other appellants were found guilty under Sec.302/149 of the Indian Penal Code and similarly baleshwar Singh was also found guilty under Sec.302/109 of the Indian penal Code And all of them were sentenced to undergo imprisonment for life. 6. The Trial Court found the appellant Raj Kishore Singh guilty under section 302 of the Indian Penal Code whereas all the other appellants were found guilty under Sec.302/149 of the Indian Penal Code and similarly baleshwar Singh was also found guilty under Sec.302/109 of the Indian penal Code And all of them were sentenced to undergo imprisonment for life. Some of the appellants were also found guilty under Sec.307 of the indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment, for ten years. 7. All the appellants claimed themselves innocent and their only defence is that they had not participated in the occurrence and they had been falsely implicated only out of enmity. 8. Admittedly, in this occurrence nawal Singh died and P. W.1 Brijnandan singh, P. W.2 Jugal Kishore Singh, p. W.4 Ram Singhasan Singh and P. W.7 bachchu Singh were injured. The factum of homicidal death of the deceased Nawal Singh and sustaining of injuries by the aforesaid P. Ws. had not been specifically denied by the defence. The defence has simply denied the manner of occurrence as alleged by the prosecution and participation of the appellants and their whole defence is based on the assertion that they had been falsely implicated only out of enmity. 9. Now the question for consideration is if at ail these appellants formed an unlawful assembly and in fact their common object was to commit the murder of Nawal Singh and in that proceed some of the P. Ws. were also subjected to injury or grievous injury in the manner alleged. It is the prosecution case that this occurrence took place on 18.3.1984 at about 6.00 p. M. or so. To prove the prosecution case, on behalf of the prosecution P. W.1 Brijnandan Singh P. W.2, Jugal kishore Singh, P. W.3 Janardan Singh, p. W.4 Ram Singhasan Singh, P. W.6 basudeo Sharma, P. W.7 Bachchu singh and P. W.9 Shyam Chandra Sharma, who is the informant were examined besides that as many as three doctors and I. O. were also examined. Some of the witnesses on the point of occurrence were tendered by the prosecution. 10. Some of the witnesses on the point of occurrence were tendered by the prosecution. 10. P. W.1 Brijnandan Singh has claimed that on the date of occurrence which was Holi Festival Day, they were singing Holi Festival song (Customary holi Folk Song) initially in the Dalan of the deceased Nawal Singh in which all these P. Ws. and some outsiders including some carpenters and barbers were present and all of them were singing songs. It is also in evidence that they then decided to proceed to brahma Jee pind, which appears to be the Deity place mainly for family Deity or village Deity, to sing Holi Festival song there. Further there is evidence that when they reached near Gair mazarua land, they had seen all these appellants variously armed with Bhala, garasa, Lathi and one armed with firearms and the appellant Baleshwar singh first of all asked them not to proceed from that Gair Mazarua land but when they tried to go through that land used as village road, then Baleshwar Singh ordered for assault and as such the appellant Raj Kishore Singh gave Garasa blow on the head of nawal Singh and so Nawal Singh was seriously injured and had fallen on the ground. It is also in evidence that immediately after that Indradeo Singh gave Bhala blow which hit Ram Singhasan Singh. Appellant Mahendra singh gave Garasa blow on the head of Bachchu Singh. Similarly Surendra singh gave Bhala blow on the head of p. W 1 Brijnandan Singh, appellant shambhu Singh gave lathi blow to him and lastly appellant Ajay Singh gave a garasa blow on P. W.2 Jugal Kishore singh. Appellant Shambhu Singh also gave lathi blow to Jugal Kishore Singh. This witness has further stated that all the injured were taken to Jehanabad hospital and they were treated there and they remained there in the hospital for some days but Nawal Singh sucumbed to his injuries on the way to jehanabad Hospital. Similarly the other witnesses on the point of occurrence i. e. P. W.2 Jugal Kishore Singh, p. W.6 Basudeo Sharama and P. W.9 shyam Chandra Sharma (informant)had given similar version about the occurrence. The only difference is that p. W.9 the informant stated that the moment Nawal Singh had fallen on the ground after sustaining the injury and the other accused persons began to assault some of the P. Ws. The only difference is that p. W.9 the informant stated that the moment Nawal Singh had fallen on the ground after sustaining the injury and the other accused persons began to assault some of the P. Ws. he escaped in the house to save himself and had heard Baleshwar Singh, one of the appellants ordering his men to set fire to two palanis, which were on the Gair mazarua land. The other witnesses on the point of occurrence, i. e. P. W.3 janardan Singh and P. W.7 Bachhu singh also supported about the occurrence and the assault with this much exception that when they sustained injuries they had fallen on the ground, then they became unconscious and were not in a position to describe as to who assaulted other P. Ws. 11. Learned Counsel for the Appellants at the very outset submitted that the whole case appears to be improbable in view of the evidence of the witnesses for the reasons that no doubt the deceased died and some of the witnesses sustained injuries but the whole genesis of the trouble has not been proved with cogent evidence rather the whole prosecution that the occurrence took place in that Gair Mazarua land bearing plot No.287 appears to be doubtful and it was further submitted that admittedly the I. O. has not found any blood at the place of occurrence though it has come in evidence that not only the deceased but other several p. Ws. also sustained injuries that too by sharp-cutting weapons and even from the evidence of the doctor, who conducted post- mortem over the dead body of the deceased, it is clear that there was profuse bleeding. In such a situation when admittedly there was profuse bleeding, no sign of blood was found in the so-called Gair Mazarua land and further even the dry colour used during holi Festival and the musical instruments were not found at the place of occurrence and on this score it may be said that the manner of occurrence as alleged by the prosecution has not been proved. It was also contended by the learned counsel for the appellants that admittedly some of the independent witnesses, who were carpenters by caste and some barbers, who were co-villagers, were also present at the time of occurrence and were singing Holi Festival Song and in that view of the matter, non-examination of these independent witnesses can be safely said that the fair trial was denied to the appellants and the prosecution deliberately withheld independent witnesses. Moreover, there was also burning of some palanis and it appears from the suggestions held out by the witnesses that there was also counter-case instituted by the appellant Baleshwar Singh and the entire materials were not brought on the record. In that view of the matter, it can be said that the prosecution and the defence equally were negligent and had not brought on record the entire materials to give the trial court an opportunity to adjudicate the matter on the basis of cogent and reliable evidence. In support of this contention, learned counsel for the appellants relied upon two authorities of the honble Supreme Court reported in 1974 Cr. Law Journal 890 (Yamuna chaudhary V/s. The State of Bihar) and 1978 Cr. Law Journal 177. 12. On the other hand, learned counsel for the State submitted that the motive of the entire case has been well proved by the cogent evidence because admittedly it is the consistent evidence of all the witnesses that the occurrence took place in the Gair mazarua land which is western side of the Dalan of the deceased. The investigating officer had visited the P. O. village immediately after the occurrence and from his evidence it can be said that he deputed the village chaukidar in the very Gair Mazarua land. The investigating officer had also found sign of burning of two palanis in that very gair Mazarua land and the investigating officer himself described the Gair mazarua land as the P. O. land. In that view of the matter, in view of the occular version of the entire P. Ws. The investigating officer had also found sign of burning of two palanis in that very gair Mazarua land and the investigating officer himself described the Gair mazarua land as the P. O. land. In that view of the matter, in view of the occular version of the entire P. Ws. the non-seizure or non-finding of the blood or any other instrument by the i. O. will not be in any way prejudicial to the prosecution case ana even though the prosecution has been able to prove the entire genesis and motive but if the prosecution somehow or the other could not prove the genesis, then still no adverse inference can be drawn and the case will not fail. In support of this contention learned counsel for the state relied upon the authorities of the honble Supreme Court reported in a. I. R.1985 S. C.880 and 1976 Cr. Law journal 800. Moreover, learned counsel for the State also submitted that the investigating officer in fact has not acted deligently for the reason that the informant has stated that one of the nephew of the appellant Baleshwar singh was posted as A. S. . I. at jehanabad and he exercised influence upon the present investigating officer and at the same time the informant has filed two protest petitions against the investigation officer (Ext.-2 series)and further D. S. P. Jehanabad and Superintendent of Police also observed as is evident from Ext.10 Series that the investigating officer has deliberately not mentioned about the existence of blood at the place of occurrence. 13. No doubt the submission of the learned counsel for the appellant that the non-examination of men S. P and D. S. P. who are authors of Ext-10 series is fatal for the reason that they had not figured as witnesses to testify that they made certain enquiry as against the investigating officer. It is true that they had not been examined, in that view of the matter. Ext.10 series is not of any help to the prosecution but this much can be said without any doubt that the informant filed protest making allegation about the conduct of the investigating officer and that has been enquired by the higher authorities. It is true that they had not been examined, in that view of the matter. Ext.10 series is not of any help to the prosecution but this much can be said without any doubt that the informant filed protest making allegation about the conduct of the investigating officer and that has been enquired by the higher authorities. Moreover, it is the consistent evidence of all the witnesses including the finding of the investigating officer, who has figured as P. W12 that the place of occurrence is actually this Gair Mazarua land. Burning of palanis was also found there. In that view of the matter, even though the investigating officer has not found any blood mark or any other incriminating materials, there is nothing on the record to show or even the defence has not suggested in any way that the occurrence took place somehow or the other in any place, so this fact is well proved that actually the occurrence took place in this very Gair Mazarua land. So far genesis is concerned, definitely it is admitted position that there was dispute between both the parties. The prosecution side was claiming Gair Mazarua land to be a passage and in use of the villagers and the appellants were resisting and claiming the land having their hutments there. In that view of the matter, it appears that the appellants tried to prevent the P. Ws. from going through this disputed land so that they cannot claim right of easement in future. So the prosecution has also been able to prove the genesis of the case to a greater extent. Even if the genesis is not proved, then in view of the authorities of the Honble Supreme court reported in A. I. R.1985 S. C.880 and that of our own High Court reported in 1976 Cr. Law Journal 820, it cm be said that if there is a direct and cogent evidence on the point of occurrence then the motive or genesis of the case is more or less academic and it does not go to the root of the case. In that view of the matter, it can be said that the prosecution has been able to prove that the occurrence has taken place in that very P. O. land for that there was dispute between the parties from before. 14. In that view of the matter, it can be said that the prosecution has been able to prove that the occurrence has taken place in that very P. O. land for that there was dispute between the parties from before. 14. Now from the oral evidence it can be said that when the witnesses of the prosecution were going to brahmjee pind through this disputed gair mazarua land then there was protest from the appellant Baleshwar singh and when the accused persons insisted then this very occurrence took place and in this occurrence it has come in evidence as stated by all the p. Ws. that the appellnat Raj Kishore singh gave Garasa blow to Nawal singh on the head and he as seriously injured and then he was removed to jehanabad Hospital but on the way he died. This version of the prosecution finds support from the evidence of the doctor, who has figured as P. W.10. the doctor found one injury on the head to the extent of 71/2x2" brain cavity deep and temporal muscle and bone were found duly cut and it is the opinion of the doctor that this injury caused the death of the deceased and this injury was sufficient to cause death in ordinary course of nature. In that view of the matter, it can be said that the appellant Raj Kishore Singh with intention to commit murder of the deceased gave blow by lethal weapon Garasa with force, that too on vital part of the body which resulted in the death of the deceased, so that prosecution has been able to bring home guilt under Section 302 of the Indian Penal Code as against appellant Raj Kishore Singh. 15. The prosecution case that all the appellants were members of the unlawful assembly and their common object was to commit murder of the deceased and all of them were armed with lethal weapons. For bringing home guilt under section 302/149 of the Indian Penal Code, the prosecution has to discharge the onus by bringing on the record that there was premeditation of the accused persons sharing the common object to commit the murder of the deceased. Mere assemblance of several persons and armed with some weapons will not certainly lead to a conclusion that they were sharing common object. Mere assemblance of several persons and armed with some weapons will not certainly lead to a conclusion that they were sharing common object. The evidence on the record clearly indicate that the deceased was given only one blow by only one accused, i. e. Raj kishore Singh and the other accused person, though armed with weapon, had not repeated the blow. Moreover, from the evidence on the record, it can be said that some of the witnesses also admitted before the I. O. that immediately before the occurrence the accused persons were also singing Holi Festival songs in the Palani at the P. O. land and Baleshwar Singh simply first of all protested and asked the P. Ws. not to pass through the disputed land and the witnesses also admitted that when they began to pass through the land in spite of protest, then this occurrence took place and there was free fight and any particular appellant had not taken any aid as against any particular P. W. and whosoever was near the accused was being assaulted. This clearly gives an impression that there was no common object and the accused persons assembled there only to prevent the p. Ws. from passing through the disputed land so that they cannot claim right of easement and in that process this occurrence took place in which one of them lost his life and some of them were injured. In that view of the matter, it can be said that the appellants were not sharing common objects and each appellant is responsible for his own individual action which may be proved as against them. In that view of the matter, conviction of all the appellants except Raj Kishore Singh, who were found guilty under Section 302/149 of the Indian Penal Code is definitely not maintainable and liable to be set aside. 16. However, it appears from the evidence on the record that the Trial court also found guilty the appellants indradeo Singh, Mahendra Singh, surendra Singh and Ajay Singh under section 307 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years. So far the assault made by these appellants to the respective P. Ws. However, it appears from the evidence on the record that the Trial court also found guilty the appellants indradeo Singh, Mahendra Singh, surendra Singh and Ajay Singh under section 307 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for ten years. So far the assault made by these appellants to the respective P. Ws. there are positive evidence of the injured and no doubt the prosecution has not been able to examine some of the independent witnesses present there but nevertheless all these witnesses were injured and certainly from the cogent evidence this fact is well proved that they were present at the time of occurrnce and sustained injuries in this very occurrence and it was submitted on behalf of the prosecution that nowadays it is difficult for the prosecution to secure the evidence of the independent witnesses for many reasons in the village and the evidence of the injured witnesses are to be accepted by the court if it is proved that they sustained injuries in this very occurrence nevertheless they are connected with the informant or in any way interested. In support of this contention, learned counsel for the prosecution relied upon the authority of the Honble supreme Court reported in 1985 Cr. Law Journal page 902. From this authority it can be safely said that the injured witnesses are definitely competent witnesses and their testimonies are to be accepted if it is found that they are truthful and were present at the time of occurrence and mere non-examination of some of the independent witnesses will not be fatal or no adverse inference can be drawn on this score. 17. So from this authorities and materials on the record the occurrence as alleged is definitely well proved and it can be said that Indradeo Singh gave bhala blow on the chest of P. W.4 Ram singhasan Singh causing grievous injury to him. Similarly, appellant mahendra Singh gave a garasa blow on the head of P. W.7 Bachchu Singh and caused hurt to P. W.1 Brijnandan Singh and this injury was simple in nature. This fact is also well proved that the appellant Ajay Singh gave bhala blow to P. W.2 Jugal Kishore Singh causing simple injury and the appellant shambhu Singh also gave blow by lathi to P. W.2 Jugal Kishore Singh causing simple injury. This fact is also well proved that the appellant Ajay Singh gave bhala blow to P. W.2 Jugal Kishore Singh causing simple injury and the appellant shambhu Singh also gave blow by lathi to P. W.2 Jugal Kishore Singh causing simple injury. The evidence of the doctor P. W.11 who examined all the injured except P. W.2 Jugal Kishore singh and that of another doctor P. W.13 (Ram Padarath Singh), who examined Jugal Kishore Singh immediately after the occurrence corroborates and supports the prosecution case. 18. No doubt, the Court below found the appellant Indradeo Singh, mahendra Singh, Surendra Singh, Ajay singh and Shambhu Singh guilty under section 307 of the Indian Penal Code but it appears from the evidence on the record that the authors of this injuries, who are appellants here, simply gave one blow, mat too, when free fight was going on and they had not repeated their blows. Moreover, it is also on the record that most of the injured had fallen on the ground after sustaining on injury still these appellants had not repeated the blow and there was no intervening circumstances which prevented these appellants from committing murder of these injured persons. In such a situation, it can be safely said as argued by the learned counsel for the appellants that the conviction of these appellants under section 307 of the Indian Penal Code is bad in law. I fully share the view of the learned counsel for the convictions of these appellants under appellants on this point and as such the Section 307 of the Indian Penal Code is definitely unwarranted and not justified but certainly the appellant surendra Singh, who gave simple injury by bhala to P. W.1 Brijnandan singh, is guilty under Sec.324 of the Indian Penal Code. Similarly, Ajay singh is also guilty under Sec.324 of the Indian Penal Code for causing simple injury by garasa to P. W.2 Jugal kishore Singh and Shambhu Singh is also guilty under Sec.323 of the Indian Penal Code for causing simple injury on the neck of Jugal Kishore singh. Appellant Indradeo Singh and mahendra Singh caused grievous injury to P. W.4, Ram Singhasan Singh and bachchu Singh by bhala and garasa respectively. In that view of the matter, they are guilty under Sec.326 of the Indian Penal Code. Appellant Indradeo Singh and mahendra Singh caused grievous injury to P. W.4, Ram Singhasan Singh and bachchu Singh by bhala and garasa respectively. In that view of the matter, they are guilty under Sec.326 of the Indian Penal Code. Accordingly the conviction and sentence of the appellants Indradeo Singh and Mahendra singh so far under Sec.307 I. P. C. is concerned, is modified and altered to that of under Sec.326 of the Indian penal Code and as they are facing trial for more than ten years or so, they are to be sentenced to rigorous imprisonment for 2 1/2 years and in addition to that they are sentenced to pay a fine of rs.3,000/- each and in default, to undergo rigorous imprisonment for another nine months each and if the amount of fine is realised, then half of the amount of fine shall be paid to the injured P. W.4 Ram Singhasan Singh and P. W.7 Bachchu Singh, respectively. Similarly, conviction and sentence of the appellant Surendra Singh and Ajay singh under Sec.307 of the Indian penal Code is hereby modified and altered to that of under Sec.324 of the Indian Penal Code and they are sentenced to undergo rigorous imprisonment for one year each. Appellant Shambhu Singh is found guilty under Sec.323 of the Indian Penal code and as such his conviction and sentence under Sec.307 of the indian Penal Code is hereby modified and altered to that of under Section 323 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for two months. 19. So far appellant Baleshwar singh is concerned, it is consistent evidence if all the witnesses that he played a leading role in this occurrence and first of all he ordered for killing and then appellant Raj Kishore Singh gave garasa mow to the deceased. In that view of the matter, the Trial Court was perfectly justified in convicting and sentencing the appellant Baleshwar singh under Sec.302/109 of the Indian Penal code and this does not require any interference and the conviction and sentence is maintained so far this appellant is concerned. But his conviction u/s 302/149 of the I. P. C. is hereby set aside. 20. But his conviction u/s 302/149 of the I. P. C. is hereby set aside. 20. Regarding the appellant suresh Singh, he was simply convicted under Sec.302/149 of the Indian penal Code and he was simply present at the place of occurrence and had not committed any overt act and his sentence and conviction under Section 302/149 of the Indian Penal Code has already been set aside as mentioned above for the reasons given there as such he is acquitted of the charges levelled against him and he is to be discharged from the liability of his bail bonds. 21. Accordingly, Cr. Appeal No.420 of 1990 is hereby allowed whereas conviction of appellant Raj Kishore singh under Sec.302 of the Indian penal Code is confirmed and maintained and as such Cr. Appeal No.446 of 1990 is dismissed. Similarly Cr. Appeal nos.341 of 1990, 352 of 1990, 384 of 1990 and 399 of 1990 are also dismissed with modifications in sentence as mentioned above. The bail bonds of the appellants Indradeq Singh, mahendra Singh, Surendra Singh, Ajay singh, Shambhu Singh and Baleshwar singh are cancelled and the Trial court is directed to take steps for apprehension of the aforesaid appellants, who are on bail for undergoing the remaining period of imprisonment and the period of detention during trial will be set off towards the period of imprisonment. Appellant Suresh Singh is discharged from the liability of his bail bonds. Order Accordingly.