JUDGMENT 1. - The above mentioned five appeals have been preferred against the judgment and order dated 4th of Feb. 1977 passed by the learned Additional Sessions Judge, Sirohi whereby the accused were convicted and sentenced as follows : Shivdarshan Singh : (Now dead) U/s. 148 IPC One year R.I. U/s. 302 IPC Imprisonment for life U/s. 306/149 IPC 7 years R.I. U/s. 27 Indian Arms Act 3 years R.I. Yogendra Singh : (Now dead) U/s. 148 IPC One year R.I. U/s../149 IPC Imprisonment for life U/s. 307 IPC 10 years R.I. U/s. 27 of Indian Arms Act 3 years R.I. Chanderpal Singh : U/s. 148 IPC One year R.I. U/s. 326/149 IPC 5 years R.I. U/s. 27 of Indian Arms Act 3 years R.I. Heera : U/s. 148 IPC One year R.I U/s. 326/149 IPC 5 years R.I Jethu Singh, Rama, Pukhiya & Chhagan : U/s. 147 IPC Six months R.l. U/s. 326/149 IPC 5 years R.l. All the sentences were ordered to run concurrently. 2. The state has filed appeal no. 365/77 challenging the acquittal of accused Chanderpal Singh, Heera, Rama, Chhagan, Jethu and Pukhiya under Section 302/149 IPC. The other four appeals have been filed by the accused persons questioning their conviction. 3. As all these five appeals arise out of one and the same judgment, so they have been heard together and are being disposed of by this common judgment. 4. On 31.12.1973 at 11.45 a.m. Tulsi Ram, PW. 3 lodged a report at Police out post Sanderao in which it was stated that at 10 a.m. his father Gamji, father s elder brother Somaji, brother Bhenrulal, Narayan, Mohan, Kantilal and Chunnilal etc. were sitting at ' Bera Podrava". At that time Jeep RJL 1103 came from the side of Sanderao crossing which was being driven by accused Pukhiya. Yogendra Singh, Shivdarshan Singh, Chanderpal Singh, Rama, Jetha. Chhagan and Heera alighted from the Jeep. Shivdarshan Singh, Yogendra Singh and Chanderpal Singh had guns, Heera had "Farsi", and Rama, Chhagan and Jetha had lathis in their hands. Shivdarshan Singh fired his gun which hit his father Gamji and Yogendra Singh fired his gun hitting his brother Bhenru. One bullet fired by the accused was lodged in the shutter of the gate. On this report Laxman Singh, H.C. rushed to the spot and took steps to shift the injured to the hospital. Shivdarshan Singh fired his gun which hit his father Gamji and Yogendra Singh fired his gun hitting his brother Bhenru. One bullet fired by the accused was lodged in the shutter of the gate. On this report Laxman Singh, H.C. rushed to the spot and took steps to shift the injured to the hospital. He sent the report to the S.H.O., RS. Takhatgarh through Kanaram Kalal. where a case under Sections 148. 149 and 307 IPC was registered. The investigation was started by Circle Officer Bali. Both the injured Gamji and Bhenru were shifted to Bangar Hospital, Pali. Dying declaration of Gamji was recorded by Kan Singh, Sub-Inspector, Pali. Dr. Hargovind (P.W. 17) examined the injuries of Bhenru and Gamji on the same day. He prepared the injury reports Ex. P/19 and P/23. The injuries were X-rayed and the reports were prepared. Gamji died in the hospital at 6.55 p.m. on 3.1.74. Dr. Hargovind held the autopsy on his body on 4.1.74 and prepared the post-mortem report Ex. P/28. On the death of Gamji the case was converted into Section 302 IPC. The police inspected the site, collected' blood stained soil, interrogated the witnesses and arrested the accused. Weapons were recovered at the instance of the accused. After the completion of the investigation a challan was filed against all the persons named in the F.I.R. 5. The learned Sessions Judge framed charges under Sections 148, 307/149 and 302 IPC and Section 27 of the Indian Arms Act against accused Shivdarshan Singh. Accused Chanderpal Singh was charged with the offence under Section 148, 302/149, 307/149 IPC and 27 of the Indian Arms Act. Yogendra Singh was charged with the offences under Sections 307, 148, 302/149 IPC and S. 27 of the Indian Arms Act. Accused Heera was charged with the offences under Sections 148, 302/149 and 307/149 IPC. The remaining accused were charged with the offences under Sections 147, 302/149 & 307/149 IPC. All the accused pleaded not guilty and claimed to be tried. The prosecution examined 21 witnesses. Accused in their statements under Section 313 Cr. PC. denied accusations. Five of them filed written statements at the time of their statements. It was stated therein that Pukhiya was driven jeep of Yogendra Singh in which Shivdarshan Singh. All the accused pleaded not guilty and claimed to be tried. The prosecution examined 21 witnesses. Accused in their statements under Section 313 Cr. PC. denied accusations. Five of them filed written statements at the time of their statements. It was stated therein that Pukhiya was driven jeep of Yogendra Singh in which Shivdarshan Singh. Chhagan and Rama were also sitting and as they reached near the house of Bhenrulal, Mohan, Tulsa, Dunga and others came in front of the jeep, therefore, the jeep was turned and at that very moment Bhenru, Soma, Gamji and others started firing on them with a pistol and apprehending the trouble Chhagan had to fire his gun. According to them after Chhagan fired the gun the prosecution witnesses ran away and while they were running a revolver and a bullet fell down which were lifted by accused Shivdarshan Singh who deposited the same in the police station. Takhatgarh. Accused Heera in his written statement stated that he was at Pali on the day of occurrence. Accused examined 8 witnesses in defence. 6. The learned Sessions Judge heard the arguments of the learned counsel for the parties and after considering the evidence produced on record he held that Gamji and Bhenrulal had suffered gun shot injuries in the occurrence and that Gamji had died because of those injuries. He further held that all the eight accused had formed unlawful assembly. He. therefore, convicted ail the accused under Section 148/147 IPC. He however did not accept the prosecution version that the object of the unlawful assembly was to cause the death of Gamji and Bhenrulal. He, therefore, convicted accused Shivdarshan Singh only under Section 302 IPC and under Section 27 of the Indian Arms Act for his individual act. At the same time the learned Sessions Judge convicted accused Yogendra Singh under Section 302/149 IPC. He was also found guilty under Section 307 IPC for causing injuries to Bhenru and under Section 27 of the Indian Arms Act. Accused Chanderpal Singh was convicted under Section 148, 326/149 IPC and under section 27 the Indian Arms Act. The remaining accused Rama, Chhagan, Jethu, Pukhiya and Heera were convicted under Sections 147/148 and 326/149 IPC only. 7. We have heard the arguments of the learned Public Prosecution and the learned counsel for the accused and have perused the record of the case. 8. The remaining accused Rama, Chhagan, Jethu, Pukhiya and Heera were convicted under Sections 147/148 and 326/149 IPC only. 7. We have heard the arguments of the learned Public Prosecution and the learned counsel for the accused and have perused the record of the case. 8. The learned Public Prosecutor strenuously contended that the trial court has committed grave error in not convicting the other accused under Section 302 and 307 IPC with the aid of Section 149 IPC after having held that the eight accused had formed unlawful assembly. He urged that the facts of the Supreme court case on which reliance has been placed by the learned Sessions Judge for holding that the remaining six accused are guilty for the offence under Section 326 IPC only, were entirely different. He referred to some decisions of the Supreme Court in support of his plea that once it was found that the accused had formed unlawful assembly all the members were liable for the act of each accused. 9. Mr. Doongar Singh, Mr. Choudhary and Mr. Mathur, learned counsel for the appellants, on the other hand, tried to support the judgment of the trial court on the point that the common object of the unlawful assembly was not to commit murder of any person. They however, assailed the conviction of the accused on the grounds that there is inconsistency in the direct evidence and medical evidence, there are contradictions in the statements of the witnesses, the witnesses have made improvements during trial, and that the independent persons present at the time of occurrence have not been examined 10. We have given the matter our thoughtful consideration. The first question to be determined is whether Gamji and Bhenru had sustained fire arm injuries in the occurrence and Gamji had died because of those injuries. 11. Dr. Hargovind (PW. 17) has deposed that he had examined the injuries of Bhenrulal on 31st December, 1973 and found the following injuries : i. Gun shot wound 4 cm. x 2 cm. (in communication with the following wound) pelvic cavity deep lying 2 cm. away from the root of penis on right side-margin inverted. ii. A gun shot wound 1.5 cm. x 1.5 cm. x pelvic cavity deep in communication with injury No. 1 on left buttock lower part lying 7 cm. away from anal opening-margin averted. x 2 cm. (in communication with the following wound) pelvic cavity deep lying 2 cm. away from the root of penis on right side-margin inverted. ii. A gun shot wound 1.5 cm. x 1.5 cm. x pelvic cavity deep in communication with injury No. 1 on left buttock lower part lying 7 cm. away from anal opening-margin averted. He has further deposed that these injuries were grievous in nature and were dangerous to life and were caused by some firearm. He has proved the injury report Ex. P/9 and X-ray report Ex. P/21. According to him the injury to the urethra was sufficient in the ordinary course of nature to cause death but the patient survived because of immediate medical aid and removal of obstruction to urethra.Dr. Hargovind has then deposed that he had examined the injuries of Gamji on the same day at 2.35 p.m. and there were following injuries on his person : i. A gun shot wound 1 cm. x 1 cm. x abdominal cavity deep right side anterior abdominal wall 2.5 cm. away from right anterior superior iliac spine. ii. A gun shot wound 1.5 cm. x 1.5 cm. x bone deep on right leg laterally below the fibular head area. Fibula fractured. Both the injuries were X-rayed and no foreign matter was found in the abdomen. However, two radio opaque shadows were noticed in the right knee. He has said that there was no exit wound corresponding to injury no. 1. According to him injuries no. 1. and 2 were cumulatively sufficient to cause death. He has deposed that Gamji died in the hospital on 3.1.74 and he had help autopsy on his body. Narrating the same injuries which were recorded by him in the injury report, he has said that the death had occurred due to shock as a result of gun short injuries. 12. In this case the accused also examined one medical expert. He is D.W. 7 Dr. P Dayal. He has deposed that on seeing injury report Ex. P-23 of Gamji and the post- mortem report Ex.p-28 he was of opinion that injury no.1 was not caused by a fire-arm and this injury was not sufficient in the ordinary course of nature to cause death. For injury no.2 he has said that it was caused from a distance not less than 20 ft. P-23 of Gamji and the post- mortem report Ex.p-28 he was of opinion that injury no.1 was not caused by a fire-arm and this injury was not sufficient in the ordinary course of nature to cause death. For injury no.2 he has said that it was caused from a distance not less than 20 ft. Regarding the injuries of Bhenrulal he has deposed that injuries no.1 and 2 of Ex.p/19 could not be caused by a fire-arm which discharged multiple shots but they could be caused by bullet. According to him. the causing of injuries by bullet was ruled out as there was no corresponding fracture found on the hip bone. 13. The learned Sessions Judge has believed the statement of Dr. Hargovind in preference to the statement of Dr. R Dayal ( P.W. 7). In our opinion, the trial Judge was perfectly justified in accepting the statement of Dr. Hargovind who had seen the injuries of Gamji and Bhenru and had conducted post-mortem examination of Gamji. The statement of Dr. Hargovind could not be disbelieved on the mere ground that the injury report Ex.p-19 of Bhenru indicates that the entry wound was bigger in dimension than the exit wound. Dr. Hargovind had explained that by mistake he wrote word 'inverted' at the end of description of injury no.1 and word "averted" at the end of the description of injury no.2. He has clarified that the injury no.2 was the exit wound and injury no.1 was entry wound. The slip in writing on the report of the medical Jurist in the injury report cannot be taken advantage of by the accused. Similarly the statement of Medical Jurist cannot be rejected on the ground that Dr. P Dayal has opined that injury no.1 and 2 of Bhenru could not be caused by firm-arm. Dr. P Dayal had not seen the injuries. The injuries were seen by Dr. Hargovind. The opinion of Dr. P Dayal has rightly been not accepted.Regarding the injuries of Gamji Dr. P Dayal has stated that injury no.1 could not be caused by firm-arm as the injury was not through and through and no bullet was found in the abdomen of Gamji. Dr. P Dayal, however, has agreed with the opinion of Modi, author of Medical Jurisprudence, that some times the bullet is coughed out by the injured or it goes with night soil. Dr. P Dayal, however, has agreed with the opinion of Modi, author of Medical Jurisprudence, that some times the bullet is coughed out by the injured or it goes with night soil. He has also not disputed the opinion of the author that sometimes the bullet after entering the body and flitting some part goes back. Dr. Hargovind had seen the injuries just within some hours of the occurrence. Therefore, he was the best person to know whether the injuries were caused by fire-arm. In our opinion the learned Sessions Judge has rightly discarded the testimony of the defence doctor and accepted the expert opinion of Dr. Hargovind. 14. Consequently, it is futile to urge that there is inconsistency in the ocular account and medical evidence. There is no hitch in endorsing the view of the trial court that Bhenru and Gamji had sustained gun shot injuries and Gamji had died because of these injuries. Obviously, the death of Gamji was homicidal. The injuries suffered by Bhenru were also found to be dangerous to life, and were sufficient in the ordinary course of nature to cause death. 15. The next point for determination is whether the eye- witness account given by Bhenrulal (RW.6). Tulsi Ram (PW.5), Soma (PW.4), Kantilal (PW.12) and Mohanlal (PW.5) inspires confidence. 16. P.W.6 Bhenrulal has deposed that he is the resident of Sanderao but he was running his business in Bombay and that while in Bombay Mohanlal told him to get his dispute with Kantilal (his brother) settled and for that purpose he came to Sanderao on 28th December, 1973. On the same day at about 7-8 in the evening Mohanlal and Kantilal came to him and he got the matter compromised and on the next day i.e. on 29th they went to Bali where composition deed was written and he returned from Bali at about 1.30 p.m. At about 5 or 5.30 p.m. he was sitting in his farm alongwith Bhopa, Dunga, Mohanlal, and Mangilal etc. When the six accused Shivdarshan Singh. Yogendra Singh. Chanderpal Singh. Rama. Jethu Singh and Pukhiya came there. They entered his room and at that time shivdarshan Singh had a pistol, Yogendra Singh and Chanderpal Singh had guns with them and other persons were also having weapons. Shivdarshan Singh caught him by his collar and showed him the pistol and demanded Rs. 1500 failing which he threatened to kill him. Rama. Jethu Singh and Pukhiya came there. They entered his room and at that time shivdarshan Singh had a pistol, Yogendra Singh and Chanderpal Singh had guns with them and other persons were also having weapons. Shivdarshan Singh caught him by his collar and showed him the pistol and demanded Rs. 1500 failing which he threatened to kill him. The persons sitting in his room intervened. Mohanlal and Mangilal had also reached there. Accused left the scene of occurrence challenging that if Rs. 1500/- were not paid they would kill him. He thereupon lodged a report in police station, Takhatgarh and police made inquiries on 30th December, 1973. On 31st December, 1973 he and other persons were preparing to go for Shiv Temple which was some 2-3 miles away from Sanderao. His father Gamji and elder father Somaji went out of his house and he, Tulsiram and Mohanlai also came out. Tulsiram was asked to take out the vehicle. At that time his father told them that a Jeep came and they' (accused) were asking as to where were the Baniya' (Mohanlal) and that person' (Bhenru). At that very moment Jeep No. 1103 came in the reverse direction in which Shivdarshan Singh. Chanderpal Singh, Heera, Yogendra Singh, Rama, Jethu Singh and Chhagan Singh were sitting and it was being driven by Pukhiya. Shivdarshan, Yogendra Singh, and Chanderpal Singh alighted from the jeep having guns in their hands; Rama, Jetha, Chhagan and Pukhiya had lathies in their hands and Heera had a 'Farsi'. Shivdarshan Singh fired twice hitting his father; on his leg and abdomen. His father alerted him and others and told to run away and, therefore, they ran towards his house. When he was entering his house he noticed that Yogendra Singh was aiming at him. The shot hit him below belt and the accused were shouting kill'-'kill' and at the same time Chanderpal Singh also fired his gun which hit the shutter. Shivdarshan Singh also fired his pistol hitting the door. 17. Mohanlal(PW.S) has stated that he had requested Bhenrulal at Bombay to accompany him to Sanderao for getting the matter settled and therefore they came to Sanderao on 28th of December, 1973 and on the next day with the intervention of Bhenrulal there was compromise between him and his brother Kantilal and compromise deed was written. 17. Mohanlal(PW.S) has stated that he had requested Bhenrulal at Bombay to accompany him to Sanderao for getting the matter settled and therefore they came to Sanderao on 28th of December, 1973 and on the next day with the intervention of Bhenrulal there was compromise between him and his brother Kantilal and compromise deed was written. When he returned from Bali after getting the compromise deed executed he went to the Bera' of Bhenrulal in the evening where he saw Jeep RJL-1103 standing, and there was quarrel. When they entered the house he saw that Bhenrulal was being pulled by six accused and Shivdarshan Singh who had a pistol was threatening that if the amount was not paid he would kill Bhenrulal. On the next day in the morning he was there on the Bera' of Bhenrulal along with Soma, Gamji, Tulsi, Kantilal and Sardar Singh and they decided to go to Shiv Temple. Tulsiram was taking out his vehicle. At that time Jeep came from Sanderao side and stopped for a while. Shivdarshan Singh asked where they' on which Gamji replied that they' were there. The jeep proceeded about 200 pavandas' but came back for 100 pavandas' and all the eight accused alighted from the jeep. Shivdarshan Singh fired the gun twice hitting Gamji on which Gamji told them to run away otherwise they would also be killed. He and other persons rushed towards the house of Bhenrulal but at the same time Yogendra Singh aimed his gun at Bhenru hitting him at his private parts. Chanderpal Singh and Shivdarshan Singh also fired their weapons and one bullet was lodged in the shutter. 18. P.W.11 Kantilal. PW.3 Tulsiram and PW.4 Soma have narrated the incident of 31 st December only and they have given almost identical details of the occurrence. 19. On a careful consideration of the statement of all the eye-witnesses we find that there are no cogent reasons to doubt their testimony. It is relevant to point out that even accused have admitted the presence of all the eye- witnesses at the spot. 20. One of the contradictions pointed out was that some witnesses have given the distance of firing by Shivdarshan Singh 100 steps while according to others the distance was 100 pavandas' which was more than 200 steps. No importance can be given to such a discrepancy. 20. One of the contradictions pointed out was that some witnesses have given the distance of firing by Shivdarshan Singh 100 steps while according to others the distance was 100 pavandas' which was more than 200 steps. No importance can be given to such a discrepancy. The witnesses state the distance as per their understanding. Some people even do not understand difference between steps and 'pavandas'.The next contradiction pointed out was that the witnesses differ in what was asked by Shivdarshan to Gamji. According to Tulsi, P.W.3 and Bhenrulal, RW.6 his father told that Shivdarshan was asking as to where were the Baniya' and his son. Whereas, PW.4 and PW.5 Mohanlal stated that Gamji had told them that Shivdarshan Singh had asked as to where were they'. The discrepancy is not of much significance. Gamji understood as to what was being asked to him. When he disclosed the talk to the witnesses, it is obvious that they interpreted it in one manner only i.e. Shivdarshan Singh wanted to know about Mohanlal (Baniya) and Bhenrulal (Son of Gamji)On the basis of aforesaid discrepancies the evidence of eye witnesses cannot be discarded. 21. The occular testimony of the witnesses have made be rejected on the ground that the witnesses have made some improvements. The improvements are not with regard to the broad facts of the occurrence that the eight accused Shivdarshan Singh and Yogendra Singh had fired their fire arms. The discrepancies on the details of the occurrence of previous day do not affect the veracity of the witnesses. This fact also cannot be lost sight of that Kishore Singh. RW.21 I.O. had adopted partisan attitude and he had tried to help the accused. It is proved on record that Kishore Singh, I.O. was related to the accused Shivdarshan Singh. The learned Session Judge has rightly observed that the investigation was not fair. The accused in such circumstances, cannot be allowed to take benefit of omission in the police statement. If the contention that the witnesses have made improvements is accepted in this case it will cause great injustice. The learned Session Judge has rightly observed that the investigation was not fair. The accused in such circumstances, cannot be allowed to take benefit of omission in the police statement. If the contention that the witnesses have made improvements is accepted in this case it will cause great injustice. The fate of the case cannot be allowed to rest in the hands of the erring I.O. In the case of Baladin v. State of U.P., ( AIR 1956 SC 181 ) , their Lordships noticing that Sub-Inspector who recorded statement was not honest and faithful observed as follows::- "If the police record becomes suspect or unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the court in judging the case of a particular accused has to weigh the evidence given against him in court keeping in view the fact that the earlier statement of witnesses as recorded by the police is tainted records and has not as great a value as it otherwise would have in weighing all the material on the records as against each individual accused. 22. Again in the case of Karnal Singh v. State of M.P., (1995) 6 JT S.C.-437) their Lordships of the Supreme Court has observed that in case of defective investigation it would not be proper to acquit the accused, if the case is otherwise established conclusively because in that event it would tantamount to the falling of justice in the hands of an erring Investigation Officer 23. The trial court, in the circumstances of the case, has rightly not given importance to the omission in the police statements of the witnesses cannot be discarded on the ground of some improvements made during trial. 24. Besides the evidence of the eye-witnesses, there is the dying declaration Ex.P/3 Gamji in which he had named all the accused except Chhagan. It may be noted that accused Chhagan has admitted his presence in his statement under Section 313 Cr. PC. Rather it has been the case of the accused persons that Chhagan had fired the gun. Obviously Gamji forgot to name him in his dying declaration. All the eye-witnesses have clearly deposed his presence. It may be noted that accused Chhagan has admitted his presence in his statement under Section 313 Cr. PC. Rather it has been the case of the accused persons that Chhagan had fired the gun. Obviously Gamji forgot to name him in his dying declaration. All the eye-witnesses have clearly deposed his presence. In the dying declaration Gamji had clearly stated that Shivdarshan Singh had fired at him and that Bhenru Lal had sustained firearm injury at the hands of Yogendra Singh. Thus all material facts were stated by Gamji in his dying declaration. The dying declaration cannot be seen with suspicion on the ground that the police official had recorded it. Kansingh, P.W.13 was not the I.O. The injured was admitted in Pali Hospital. Kansingh who was posted Pali did well when he recorded the statement of Gamji. There is nothing in the cross-examination of Kansingh to disbelieve him. Dr. Hargovind had certified that Gamji was in fit state of mind to give statement. In our opinion, the dying declaration has been rightly believed by the trial court. 25. This dying declaration strengthens our finding that all the eight accused had gone in a jeep and Shivdarshan Singh had caused firearm injuries to Gamji and Yogendra Singh had caused firearm injury to Bhenrulal and as a result of the injuries sustained in the occurrence Gamji died after 3 days. 26. It has come in the statement of Bhenrulal, PW.6 that when they left the Bera' three persons named Bhopa, Sagri, Narain and Chunilal were sitting near the well. However, there is nothing on record to believe that when the occurrence took place, they were sitting and from that place the occurrence could be seen by them. Bhenrulal has clearly admitted that after the accused left the scene of occurrence he did not see any of these three persons had already left the Bera and they had no occasion to witness the occurrence. That being so, on the ground that three persons have not been examined, no adverse inference can be drawn against the prosecution. 27-A. In this case the prosecution has also produced evidence to provide motive. According to the prosecution the accused were annoyed with Bhenrulal for two reasons. First, he had helped Mohanlal in resolving his dispute with his brother Kantilal who was in the hands of the accused. 27-A. In this case the prosecution has also produced evidence to provide motive. According to the prosecution the accused were annoyed with Bhenrulal for two reasons. First, he had helped Mohanlal in resolving his dispute with his brother Kantilal who was in the hands of the accused. Second Bhenrulal had hired Jeep belonging to accused Shivdarshan Singh and though he had paid its charges but Shivdarshan Singh wanted Rs. 1500/- more and he had challenged him on the previous day that if payment was not made he would kill him. 27. To prove the first motive, the prosecution has examined P.W. 12 Kantilal. PW. 5 Mohanlal and PW. 6 Bhenrulal. Mohanlal. PW. 5 has deposed that Kantilal was in the company of the accused persons and at their instance he took possession of his house and there was dispute between him and Kantilal. He has further deposed that he requested Bhenrulal to resolve the dispute and on his request Bhenrulal came from Bombay and on his intervention there was compromise between him and Kantilal and compromise deed was written also. It is obvious that the accused were not happy with the compromise arrived at between Mohanlal and Kantilal because in that case, they were to be deprived of the advantages which they were having because of the dispute between two brothers. There is absolutely no reason to disbelieve the evidence produced in this regard. The learned trial court has rightly held that there was motive for the accused to cause the death of Bhenrulal who had created problem for them by settling the dispute of two brothers. 28. It is also fully established on record that on the previous day the accused had gone to the house of Bhenrulal and had raised a demand of Rs. 1500/- for the Jeep Bhenrulal had taken on hire from them and Bhenrulal was challenged that if amount was not paid he would be killed. Besides the direct evidence produced in this regard, there is a copy of the F.I.R. Ex. P8 lodged by Bhenrulal on the same day at the Police Station Takhatgarh in which the incident was reported. Thus, the second motive for commission of the crime is also established on record 29. Besides the direct evidence produced in this regard, there is a copy of the F.I.R. Ex. P8 lodged by Bhenrulal on the same day at the Police Station Takhatgarh in which the incident was reported. Thus, the second motive for commission of the crime is also established on record 29. Consequently there is hardly any scope in interfering with these findings of the trial court that the eight accused armed with weapons had gone in a jeep near Bera Podrava' and there accused Shivdarshan Singh had caused fire-arm injuries to Gamji and Yogendra had caused fire arm injuries to Bhenrulal. 30. There is no clear evidence that accused Chanderpal Singh had fired his gun though some of the prosecution witnesses have deposed that he had fired and the bullet was lodged in the shutters of the door. However, Bhenrulal, PW. 6 has clearly deposed that Chanderpal Singh had not fired his gun. According to him he was seeing towards backside while running in the house. Thus, there is clear evidence of star witness that Chanderpal Singh had not fired his gun. Apart from this, even in the dying declaration of Gamji it was not stated that Chanderpal Singh had fired his gun. In the F.I.R. also the act of Chanderpal Singh was not disclosed. Thus, the learned Sessions Judge was justified in holding that Chanderpal Singh had not fired his gun. 31. Now, the point that arises for determination is whether the trial court has erred in convicting the accused appellants under Section 147/148 IPC. Offence of 147 or 148 IPC is made out when force or violence is used by the unlawful assembly or by any member thereof, in prosecution of the common object of such assembly. 32. Unlawful assembly has been defined in Section 141 IPC which reads as follows: 141. Unlawful assembly- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First- xxx Second- xxx Third- To commit any mischief or criminal trespass or other offence; or Fourth- xxx Fifth- xxx Explanation- An assembly which was not unlawful when it assembled, may subsequently becomes an unlawful assembly. Thus, whenever an assembly of five or more persons if formed the common object of which is to commit an offence the assembly is unlawful and an assembly may not be unlawful from the beginning it may become unlawful at a subsequent state. 33. In the instant case it is established by the evidence that all the eight accused had gone near Bera Podrava' on the Jeep. It is also proved that all the eight accused had alighted from the Jeep and all of them were having weapons in their hands. It is further established that Shivdarshan Singh had fired his gun hitting Gamji and Yogendra Singh had also fired his gun hitting Bhenrulal. It is thus obvious that at least two members of the assembly had definitely used force. Because of the membership of the unlawful assembly all the accused are liable for the offence of rioting. 34. It has come in the evidence that at the time of occurrence accused Shivdarshan Singh, Yogendra Singh and Chanderpal Singh had guns and accused Heera had Farsi in their hands. Gun and Farsi' are certainly deadly weapons. The act of the four accused thus is punishable under Section 148 IPC and they have rightly been convicted by the trial court under this Section. 35. The remaining four accused were having lathis' in their hands. Their conviction under Section 147 IPC is, therefore, proper and needs no interference. 36. It was contended by learned counsel for the accused that Shivdarshan Singh had not aimed at vital parts of Gamji and, therefore, it should be presumed that he had not intended to cause his death. There is no substance in this contention. There is clear evidence on record that Shivdarshan Singh had fired his gun hitting Gamji and Gamji succumbed to the injuries after three days in the hospital. When the accused uses firearm and aims at a particular person it is obvious that he intends to cause his death. It is because Gamji was immediately shifted to the hospital and first aid was given he could survive for three days but the medical evidence clearly indicates that the gun shot injuries suffered by Gamji were sufficient in the ordinary course of nature to cause death and Gamji had died of those injuries. The trial court has thus rightly found established the charge under Section 302 IPC against accused Shivdarshan Singh. 37. The trial court has thus rightly found established the charge under Section 302 IPC against accused Shivdarshan Singh. 37. There is clear evidence on record that Yogendra Singh had made murderous assault on Bhenrulal when he fired his gun which had hit Bhenrulal at his private parts. As already stated, the medical evidence is that the injury suffered by Bhenrulal was sufficient in the ordinary course of nature to cause death. The act of Yogendra Singh in causing firearm injury to Bhenrulal clearly comes under Section 307 IPC and he was rightly convicted under Section 307 IPC. 38. The question for our consideration is whether the other accused are responsible for the acts of Shivdarshan Singh and Yogendra Singh as they were members of the unlawful assembly. The learned Session Judge has held that only Yogendra Singh is liable for the act of Shivdarshan Singh but the other accused are not. We have not been able to understand as to how the case of Yogendra Singh was distinguishable from the other accused. If the common object of the assembly was to kill Gamji all the remaining accused were liable for the offence under section 302 IPC with the aid of Section 149 IPC. However, having given a finding that the common object of the assembly was not to cause the death of Gamji,. there could not be any justification for the trial court to convict Yogendra Singh under section 302/149 IPC. 39. We may now consider the liability of other accused for the act of accused Shivdarshan Singh. 40. The learned trial court has observed that there are circumstances on record to hold that the common object of the assembly was not to cause the death of Gamji. We agree with the reasonings given by the trial Court. The first circumstance is that Gamji was not hit by the accused when they were very near to him while making a query as to where Mohanlal and Bhenrulal were. Had the common object of the assembly been to kill Gamji, Shivdarshan Singh or any of his companion would have fired at him with close range at that very time or they would have caused injuries by other weapons. Had the common object of the assembly been to kill Gamji, Shivdarshan Singh or any of his companion would have fired at him with close range at that very time or they would have caused injuries by other weapons. The very fact that after the talk with Gamji, Jeep proceeded further for about 200 Powandas' goes to show that it was not the common object of assembly to cause the death of Gamji. Secondly, though the remaining seven accused had alighted from the Jeep, none of them tried to cause injury to Gamji. It has come in evidence that Yogendra Singh and Chanderpal who were having gjns did not even aim towards Gamji. They were just keeping the guns in their hands. This clearly shows that the object of the unlawful assembly was not to cause the death of Gamji. In the presence of the above circumstances, the learned Sessions Judge was perfectly justified in holding that it was the individual act of Shivdarshan Singh to cause firearm injury to Gamji, whereby Gamji died and the remaining accused are not liable for his act as it was not done in prosecution of the common object of the assembly. 41. Thus, the learned Sessions Judge has not committed any error when it did not convict the six accused under section 302 with the aid of Section 149 IPC. However, as already observed. Yogendra Singh also could not be convicted under section 302 with the aid of Section 149 IPC. Be that as it may. Yogendra Singh has died and his appeal against convictions stands abated. 42. It was argued by the learned Public Prosecutor that the trial Court has not considered the liability of the other accused under Section 307 IPC for the act of Yogendra Singh though there is evidence on record that when Yogendra Singh fired at Bhenrulal all the accused had also chased him. We also find that the trial court did not address itself to this part of the matter. 43. It has already been found that the accused had a clear motive to cause murderous assault on Bhenrulal. The evidence is that after stopping the Jeep, Shivdarshan asked Gamji as to where were they' (Bhenrulal & Mohanlal) to which Gamji replied that they' were there. 43. It has already been found that the accused had a clear motive to cause murderous assault on Bhenrulal. The evidence is that after stopping the Jeep, Shivdarshan asked Gamji as to where were they' (Bhenrulal & Mohanlal) to which Gamji replied that they' were there. The Jeep proceeded at some distance and then came back and all the accused alighted from the Jeep having weapons in their hand. It is thus obvious that on knowing that Bhenrulal was there at 'Bera Podrava', the accused immediately decided to assault him and for that purpose the Jeep was moved in reverse gear. As all the accused had common object of assaulting Bhenrulal they alighted from the Jeep having weapons in their hand. The moment Bhenrulal was seen by the accused they all ran towards him and Yogendra Singh fired at him when he was entering the house. The fact that on seeing Bhenrulal all the accused had run towards him having weapons in their hands clearly goes to show that they had common object of assaulting him and in prosecution of their object accused Yogendra Singh opened fired at Bhenrulal. In the circumstances, the other accused are clearly liable for the act of accused Yogendra Singh. It cannot be accepted that it was the act of Yogendra Singh unconnected with the common object of the assembly. 44. The trial court has convicted the remaining six accused only under section 326 IPC holding that the common object of the assembly was to cause grievous hurt only. The court has relied on the case of Shamboonath v. State of Bihar, ( AIR 1960 SC 725 ) . In that case, it was held by the trial court that the accused had formed unlawful assembly and had committed rioting and that the members of the unlawful assembly were armed with weapons, but the common object &f the assembly was to cause grievous hurt. The main accused was convicted under section 302 IPC and the other accused were convicted under section 326 read with Section 149 IPC. The matter went up to the Supreme Court. The main accused was convicted under section 302 IPC and the other accused were convicted under section 326 read with Section 149 IPC. The matter went up to the Supreme Court. It was argued before their Lordships that no charges were framed against the accused under section 326 read with Section 149 IPC and there was no evidence that grievous hurt was caused by one of the accused in prosecution of the common object and therefore, the trial court was not justified in recording conviction for the offence under section 306 read with section 149 IPC. Their Lordships held that the offence under section 326 IPC was minor offence of the offence of the murder and, therefore, even though there was no charge of section 326 IPC the accused could be convicted under section 326 with the aid of section 149 IPC while convicting the main accused under section 302 IPC. A reading of the judgment does not indicate that the State had challenged the acquittal of the accused under Section 302 read with section 149 IPC. Obviously, this question did not come up for consideration as to whether the accused could be convicted for the very offence which was committed by the main accused. In our opinion, on the basis of this authority the trial court was not justified in not convicting the six appellants under Section 307 IPC with the aid of Section 149 IPC. 45. It was contended by the learned counsel for the accused that the six accused had not used their weapons and no overt act has been attributed to them and, therefore, they could not be held liable with the aid of Section 149 IPC. Reliance was placed on the case of Ashiq v. State of Raj., (1992 Cr.L.R.(Raj.) 472) In that case, this court has of course observed that no overt act was attributed to 'P' and K' and the mere fact that these two accused are armed with lathi would make them liable with the aid of Section 149 IPC but these observations were made in the background that the court had found that the presence of accused P' and K' was not proved on record. It has been observed that had these two persons were there they would have inflicted injuries on any witness. 46. It has been observed that had these two persons were there they would have inflicted injuries on any witness. 46. So also the case of Muthu Naicker v. State of T.N., ( AIR 1978 S.C. 1647 ) relied on by Mr. Doongar Singh does not help the accused. The curious feature of that case was that there was a crowd of about 50-60 persons when deceased and the injured were assaulted. In the circumstances of the case it was held that in a case where a large crowd collected and it is not shown that they shared the common object of the unlawful assembly, a stray assault by any one accused on any particular witness could not be an assault in prosecution of the common object of the unlawful assembly. In the instant case, we have found that all the accused had gone in a jeep and they had alighted from the jeep having weapons in their hands. It has also been seen that the accused on previous day had challenged Bhenrulal that he would be killed. We have further seen that the accused did not like the compromise of Mohanlal with his brother. In such circumstances, it cannot be said that the assault on Bhenrulal by Yogendra Singh was all of a sudden and it was not in prosecution of the common object of the unlawful assembly. 47. In the case of Sheonarain v. State of U.P., (AIR 1992 SC 2555) relied on by accused, it has been held that the remaining accused cannot be convicted with the aid of Section 149 IPC, if the common object of the assembly was not to commit that particular act, which had developed during the occurrence, conviction of the other accused for the act actually committed was not proper. There cannot be any quarrel with this legal position. On this principle, we have held that the six accused and Yogendra Singh (dead) were not liable for the offence under Section 302 IPC committed by Shivdarshan Singh as the death of Gamji was not caused in prosecution of the common object of the assembly. But the liability of the other accused for the act of Yogendra Singh arises because the common object of the assembly was to cause the death of Bhenrulal. 48. But the liability of the other accused for the act of Yogendra Singh arises because the common object of the assembly was to cause the death of Bhenrulal. 48. The Hon'ble Apex Court has time and again observed that the members of the unlawful assembly shall be liable for the act of their companions even if specific overt act of some of the accused is not proved. In the case of Lalji v. State of U.P., ( AIR 1989 S.C. 754 ) it was observed as follows : "Section 149 makes any member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or in such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathies, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all. merely because he is a member of an unlawful assembly. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all. merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under s. 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." 49. Thus, even though the specific overt act of the remaining six accused is not proved they are liable for the act of the co-accused with the aid of Section 149 IPC provided that the act committed by those some members of the assembly was done in prosecution of the common object of the assembly. 50. In the case of Harijan Dhana Badha and ors. v. State of Gujarat, (J.T. 1996(6) SC 124) , Their Lordships of the Supreme Court reiterated the principle enunciated in the case of Masalti v. State of U.P. ( AIR 1965 SC 202 ) wherein it was held that the punishment prescribed by Section 149 IPC is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of an unlawful assembly. 51. However, we regret we are unable to convict the accused in this appeal under section 307/149 IPC. The reasons are not far to seek. The State appeal has been filed only to challenge the acquittal of the accused under section 302 read with Section 149 IPC. The acquittal of the accused under section 307/149 IPC has not been challenged in the memo of appeal. The leave to appeal was also granted for the offence under section 302/149 IPC. That being so, though we find that the trial court ought to have convicted accused under section 307 with the aid of Section 149 IPC we find ourselves unable to convict them in this appeal. 52. The defence case that the complainant party had attacked the accused party cannot be accepted. That being so, though we find that the trial court ought to have convicted accused under section 307 with the aid of Section 149 IPC we find ourselves unable to convict them in this appeal. 52. The defence case that the complainant party had attacked the accused party cannot be accepted. The learned Session Judge has discussed the evidence in detail and has rightly observed that as not a single injury is said to have been suffered by any of the accused, so the defence version cannot be accepted that the complaint party was the aggressor and they had used their firearms at the time of occurrence. 53. It is also to be noticed that the defence of the accused had not been consistent. In the cross-examination of Tulsiram it was suggested that Mohanlal, PW.5 had fired at Gamji. It was also suggested that Tulsiram had administered poison to his father Gamji. It was then suggested that Tulsiram had fired his gun which had hit the clothes of Shivdarshan Singh. In the cross-examination of PW.4 Soma it was suggested that Gamji had suffered injury at the hands of Chhagan accused. Thus, varying stands were taken by the accused at different stages of the case. We do not consider it necessary to discuss the evidence of defence witnesses in detail as the trial court has made critical examination of the evidence and has disbelieved it. 54. The prosecution has not been able to prove that accused Chanderpal Singh has used the fire-arm in the incident. As such his conviction under Section 27 of the Indian Arms Act is not sustainable. 55. Consequently, the appeal of Shivdarshan Singh and Yogendra Singh abates because of their death. 56. There is no merit in the State appeal which is hereby dismissed. 57. The conviction and sentence of accused Chanderpal Singh, Heera, Chhagan, Pukhiya, Jethu and Rama under Section 326/149 IPC are maintained. We also maintain the conviction and sentence of Heera and Chanderpal Singh under Section 148 IPC. 58. We further maintain the conviction and sentence of accused Jethu, Rama, Pukhiya and Chhagan under section 147 IPC passed by the trial court. 59. The conviction and sentence of accused Chanderpal Singh under Section 27 of the Indian Arms Act are set aside. 60. Accused Chanderpal Singh, Heera, Chhagan. Pukhiya, Jethu and Rama are on bail. 58. We further maintain the conviction and sentence of accused Jethu, Rama, Pukhiya and Chhagan under section 147 IPC passed by the trial court. 59. The conviction and sentence of accused Chanderpal Singh under Section 27 of the Indian Arms Act are set aside. 60. Accused Chanderpal Singh, Heera, Chhagan. Pukhiya, Jethu and Rama are on bail. They are directed to surrender themselves before the learned Sessions Judge within four weeks, failing which the learned Sessions Judge. Sirohi shall take steps to arrest and send them to imprisonment for undergoing unexpired period of imprisonment.> Appeal decided accordingly. *******