JUDGMENT 1. -These two appeals arise out of the judgment and order 6.7.1995 passed by the Addl. Sessions Judge, Sikar in sessions Case No. 26/1993 and Sessions case No. 11/1993, which were tried together since these matters arose of a single incident, in which the appellants herein were charge-sheeted for and which a common trial was conducted. 2. The prosecution case emerges out of a parcha-bayan which was recorded by the SHO, Police Station Sadar Fatehpur at Dhanuka Referral Hospital on 19.2.1993 at 3.40 p.m.. It was stated by the informant PW/1 Shishupal Singh, that at 12 noon he and his brother Mangej Singh (since deceased) were proceeding on a camel cart towards their field and when they reached near the house of Jagdish Singh (appellant in Cr. Appeal No. 609/1995) then, all the appellants herein namely Jagdish Singh, Mahaveer Singh. Bhagwan Singh (absconding and hence, has not been tried), Mahendra Singh and Balbir Singh stopped the camel cart and severely beat him and his brother. Jagdish Singh also beat them up with knife blows as a result of which Mangej Singh died and he was also injured with the knife which was inflicted by Mahaveer Singh at the right elbow under the arm. While Jagdish Singh and Vijendra Singh caught hold of him, his brother Mangej Singh was caught hold of by Mahendra Singh and Balveer Singh and Bhagwan Singh and Jagdish Singh dealt knife blows at them. Thereafter when he raised hue and cry, Rajendra Singh (PW/8), Hari Singh (PW/6) and some other neighbouring persons rushed to the place of occurrence and rescued them. He and his brother were then carried on a camel cart by Takhat Singh (PW/7) to Fatehpur Hospital and on the way, his brother Mangej Singh succumbed to the injuries while he was admitted into the hospital. The parcha-bayan further states that the case of the incident was enmity on account of differences between the accused persons and the informant party due to the expenses incurred in the rituals after the death of their aunt (father's sister). 3. On the basis of this parcha-bayan a first information report was registered under Sections 302, 307, 147, 148; 149, 341 and 323, IPC, after which the investigation started. The inquest report of the dead body was prepared and the post- mortem also was thereafter conducted on the body of the deceased Mangej Singh. 3. On the basis of this parcha-bayan a first information report was registered under Sections 302, 307, 147, 148; 149, 341 and 323, IPC, after which the investigation started. The inquest report of the dead body was prepared and the post- mortem also was thereafter conducted on the body of the deceased Mangej Singh. The site-plan and the injury report of the injured informant Shishupal Singh (PW/1) were also prepared and the statements of the witnesses under Section 161, Cr.PC., were recorded. Initially, the charge-sheet was submitted only against the accused Mahaveer Singh, Balveer Singh, Vijendra Singh and Mahendra Singh since Jagdish Singh and Bhagwan Singh were absconding, but subsequently, Jagdish Singh surrendered in the court and charge-sheet was submitted against him also. However, Bhagwan Singh is still absconding and has not been tried as yet. The statements of the accused persons were also recorded under Section 313, Cr.PC. where they denied the prosecution version, pleaded not guilty and claimed to be tried. 4. The prosecution in all examined 13 witnesses in support of its case, out of which PW/1 Shishupal Singh is the injured-informant and hence, an eye-witness too. PW/6, Hari Singh and PW/8 Rajendra Singh are the witnesses named in the FIR and also claimed to have witnessed the occurrence. PW/2 Chhatu Singh and PW/7 Takhat Singh are the other two witnesses who had carried the deceased Mangej Singh and the injured informant Shishupal Singh to the hospital on a camel cart. PW/11 Dr. G.R. Tanwar is the Medical Jurist, Sikar, who examined the injuries of Shishupal Singh the informant. PW/12 Dr. Yudhveer Singh conducted the autopsy on the deceased Mangej Singh and PW/13 Dr. O P Khandelwal is the Medical Jurist, who took X-ray of the abdomen and chest of the injured Shishupal Singh. These are the principal witnesses in support of the prosecution. However, PW/4 Mastisingh and PW/5 Laxman Singh are also the other two witnesses who have been examined who had an occasion to witness the occurrence and PW/3 Girdhari Singh is the witness before whom the site-plan was prepared. The prosecution also exhibited some important exhibits viz. inquest report Ex.P/2. site-plan Ex.P/6, post-mortem report Ex.P/10, and injury report of Shishupal Singh Ex. P/9. 5. PW/11 Dr. G.R. Tanwar, who examined Shishupal Singh found the following injuries on the body of the informant- 1. Incised transverse wound 3x1 cm penetrating deep on right chest. 2. The prosecution also exhibited some important exhibits viz. inquest report Ex.P/2. site-plan Ex.P/6, post-mortem report Ex.P/10, and injury report of Shishupal Singh Ex. P/9. 5. PW/11 Dr. G.R. Tanwar, who examined Shishupal Singh found the following injuries on the body of the informant- 1. Incised transverse wound 3x1 cm penetrating deep on right chest. 2. Complaint of pain in abdomen. In the opinion of the Doctor, the injury caused on the informant was by a sharp weapon, which revealed that there was fracture of lower ribs with hydropterideae on the left side of injury No. 1 was opined as grievous in nature. 6. PW/12 Dr. Yudhveer Singh, who conducted the post-mortem on the deceased Mangej Singh also found the following injuries on the body of the deceased Mangej Singh - 1. Lacerated wound 4x2 cm. x skin deep, on right parietal region posteriorly. 2. Lacerated wound 3x1 x skin deep just ahead of injury No. 1. 3. Incised wound 4x2 cm x 12 cm (big hole) going horizently at 10th inter coastal space just laterally to posteriorly auxiliary line. The learned Addl. Sessions Judge, Sikar, who conducted the trial, on consideration of the material available on the record and on scrutiny of the evidence of all the witnesses was, pleased to record a finding that the prosecution has been able to prove that all the five accused persons formed an unlawful assembly with a common object to kill Mangej Singh for which knife blows were inflicted as a result of which he died and the informant Shishupal Singh was also grievously injured. The trial Court was, therefore, pleased to convict all the five appellants under Section 302 read with Section 149, IPC and sentenced all the appellants to rigorous imprisonment for life along with a fine of Rs. 1,000/- and in default of payment of fine to further undergo sentence of six months. Appellant Mahaveer Singh was further convicted under Section 326, IPC and was ordered to undergo sentence for a period of three years along with a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months simple imprisonment and the remaining four accused persons were convicted under Section 326 read with Section 149, IPC and were sentenced to a period of three years on this count along with a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months simple imprisonment and the remaining four accused persons were convicted under Section 326 read with Section 149, IPC and were sentenced to a period of three years on this count along with a fine of Rs. 1.000/- and in default of payment of fine to undergo six months simple imprisonment. The appellants have been convicted and sentenced under Sections 147 and 148, IPC imposing a sentence of one year on Mahaveer Singh along with a fine of Rs. 250/- and in default to undergo three months simple imprisonment and under Section 148, IPC for a period of two years rigorous imprisonment along with a fine of Rs. 500/- and in default to undergo six months simple imprisonment. The rest of the accused persons have also been sentenced separately under Section 147 and 148, IPC along with a fine of Rs. 250/- and in default to undergo three months rigorous imprisonment. All the sentences, however, have been ordered to run concurrently. 7. The two appeals herein have been preferred against the aforesaid judgment and order of the Addl. Sessions Judge, out of which D.B. Criminal Appeal No. 327/1995 has been preferred by three accused namely Mahaveer Singh, Balveer singh and Mahendra Singh, whereas Cr. Appeal No. 609/1995 has been preferred separately by co-accused Vijendra Singh and Jagdish Singh. 8. Assailing the judgment and order of conviction it has first of all been contended by Shri Bajwa on behalf of Mahaveer Singh, Balveer Singh and Mahendra Singh that the prosecution has miserably failed to establish in what manner the unlawful assembly was constituted by the accused persons and in this context the charges framed against the appellants were read out in order to establish that the common object even according to the charge was to assault the deceased and the injured and the object of such assembly was not to kill them, for. if the common object had been to kill, nothing would have prevented them to leave the other persons unhurt. if the common object had been to kill, nothing would have prevented them to leave the other persons unhurt. It has further been submitted in this context that neither the time nor the manner of the occurrence corroborates the common object which is alleged that it was to kill the persons involved in the incident, for it is not established what prompted the other four accused persons other than Bhagwan Singh and Jagdish Singh to assault and this vital point has not been spelt out from the prosecution version. 9. Shri Bajwa has further elaborately submitted that material improvements have thus been made in the prosecution version regarding exhortation attributed to Jagdish Singh, which had been developed subsequently at the time of trial, in order to convince the trial Court that the genesis of the whole occurrence has not come out clearly and the real story has been suppressed. According to the learned counsel, exhortation part was introduced only during the trial. 10. Shri Bajwa has still further challenged the place of occurrence where the incident is alleged to have taken place, which is in front of the house of accused Jagdish Singh. In this context, he has further seriously challenged non-examination of the investigating officer in this case, due to which he could not be cross-examined on the point as to whether the place of occurrence is exactly the same where it has been alleged to have taken place. The Investigating Officer could have been cross-examined as to why the blood stained earth was not collected and the defence also could not cross-examine about the recovery of knife alleged to have been made from the accused Mahaveer Singh nor he could be cross-examined regarding non- examination of the witnesses living in the houses surrounding the place of occurrence. This, according to the appellant's counsel is a serious infirmity in the prosecution case, as the defence has been seriously prejudiced due to non- examination of the Investigating Officer affecting the plausibility of the prosecution, which casts serious doubt on the genesis and manner of occurrence as also the place where the incident is alleged to have taken place. The defence, according to the counsel, has been prejudiced on all the aforesaid counts and hence, the prosecution case is fit to be thrown over-board for this reason alone. The defence, according to the counsel, has been prejudiced on all the aforesaid counts and hence, the prosecution case is fit to be thrown over-board for this reason alone. In order to reinforce his submission, he has relied on some authorities viz : (1) AIR 1982 SC 1224 Surat Lal & Ors. v. State of Madhya Pradesh. (2) AIR 1989 SC 1593 Ram Vilas Singh & ors. v. State of Bihar 11. It has further been urged on behalf of the appellants that the motive attributed to the accused persons for commission of this crime is also too far-fetched as they would not go to the extent of killing some one in their own family merely to realise the money from the prosecution party which had been spent on the last rites of their father's sister. The purpose of this contention clearly appears to be to impress this Court that the real version of the genesis and manner of occurrence has not been brought forth and the truth and falsehood are so inextricably linked with each other that it is difficult to separate the grain from the chaff and, it has therefore been submitted that if truth and falsehood are so inextricably linked with each other so as to suppress the real story and highlight the material falsehood so as to bring in a new story, the prosecution version should be disbelieved and discarded outright as it is a salutary principle that falsus in uno, falsus in omnibus". He has again supported his submission on this question by relying on a judgment reported in AIR 1971 SC 2268 State of Bihar v. Mohd. Kursheed. 12. It has finally been added in support of the appellants' case that at worst the case would not transverse beyond the scope and ambit of Section 326, IPC and since, the appellants have already served the sentence for three years by 27.8.1996 under this count, they are fit to be released by imposing the sentence to the period which they have already undergone. 13. Shri Chatterji appearing in Cr. 13. Shri Chatterji appearing in Cr. Appeal No. 492/1996 on behalf of Vijendra Singh and Jagdish Singh, has stated that he prefers to adopt all the arguments advanced by Shri Bajwa challenging the prosecution case, but would further like to add that all the members of the family have been roped in the incident so as to affect their livelihood and, unfortunately Jagdish Singh has no son, otherwise he too would have been implicated. He has also submitted that Jagdish Singh is the younger brother, and it is most improbable that he would have called his elder brothers to assault the deceased and his brother He has further added that no mud-stains were found on the clothes of the deceased which means that the deceased, in fact, was not found at the place of occurrence and submitted that the witnesses have made improvements in their version in Court and that they had no common object to kill any member of the prosecution party, otherwise, all the accused persons would have come armed. 14. Learned Public Prosecutor on his part has refuted the submissions urged on behalf of the appellants and according to him the prosecution has clearly been able to establish its case beyond all reasonable doubt. Hence, in his view, the judgment and order of the trial court is fit to be sustained. He further submitted that the FIR was recorded at the instance of the injured witness and there is no reason why his version should be disbelieved according to whom all the accused persons participated in the occurrence. For this purpose, he has relied on the parcha-bayan and, it has been submitted in the parcha- bayan itself recorded at the hospital, the names of the accused persons have been disclosed, from which it will have to be inferred that it was not recorded after due deliberation. He has also submitted that all the ingredients of Section 147, IPC are present in the case, which is evident from the evidence of the prosecution witnesses namely PWs 2, 4, 5 and 6 who have fully corroborated the participation of the accused persons. He has further urged that why the accused Jagdish Singh exhorted the other co-accused persons is of no consequence affecting the prosecution case and the Advocate for the defence is unnecessarily making an issue out of it. 15. He has further urged that why the accused Jagdish Singh exhorted the other co-accused persons is of no consequence affecting the prosecution case and the Advocate for the defence is unnecessarily making an issue out of it. 15. In so far as the contention regarding non-examination of the Investigating Officer and non-collection of blood- stained earth is concerned, he has submitted that the prosecution version cannot be thrown out for these two reasons, as even if the Investigating Officer has not been examined, the prosecution case will not always be treated as doubtful so as to be suffering from any grave infirmity. In support of this submission, he has also drawn the attention of this Court to 1996 Cr.L.J. 1653, Bihari Prasad v. State of Bihar: 1993 Cr. Law Reports 625, Vishnu v. State of Rajasthan in order to prove his point that the prosecution story has not failed due to non-examination of the Investigating Officer and on the question of non-collection of blood-stained earth, he has relied on 1994(2) SCC 563 Shivnath Singh v. State of U.P. to lay stress on his submission that non-collection of blood-stained earth is not an infirmity by itself and further that all the witnesses even though they may be related their version is not fit to be discarded if their presence at the time and place of incident is proved. On this question also he has cited 1993 SCC (Criminal) 869, 1981 WLN 84, State v. Takhat Singh & Ors., 1978 Cr.L.R. (SC) 79, Anna Kurian v. State of Maharashtra. He has finally summarised his arguments by stating that if direct evidence is available, the motive need not be proved by the prosecution. 16. In order to test the strength of rival contentions urged on behalf of the appellants and the prosecution by the learned Public Prosecutor, we have carefully scrutinised the depositions of the prosecution witness as also the Injury report of the informant and the post mortem report of the deceased and while doing so, it first of all catches our attention that there is no discrepancy between the oral evidence and the medical evidence adduced. Having gone through the same, we have further noticed that in so far as Jagdish Singh, Bhagwan Singh and Mahaveer Singh are concerned, the witnesses without any contradiction deposed what is wholly consistent with the Parcha-bayan, that it was Jagdish Singh and Bhagwan Singh who inflicted knife blows on the deceased Mangej Singh and the oral evidence is also consistent with the case of prosecution to the effect that Mahaveer Singh inflicted knife blows on Shishupal Singh-the informant. This part of the evidence of the prosecution witnesses completely tallies with the injury report and the post-mortem report of the injured informant and the deceased respectively and we find no inconsistency between the two. 17. In so far as the remaining accused persons namely Mahendra Singh and Balveer Singh and Vijendra Singh are concerned, the allegations against them are to the effect that they had grappled with the deceased and the informant Shishupal Singh in various manner after which they were dealt with knife blows by Jadish Singh, Bhagwan Singh and Mahaveer Singh and while examining the evidence in so far as their role is concerned, we do find certain discrepancies regarding the part as to who caught hold of whom, which casts serious doubt about the presence of Mahaveer Singh, Balveer Singh and Vijendra Singh regarding their presence at the scene of occurrence. To exemplify, it may be stated that according to the Parcha-bayan and deposition of PW/1, it was Mahendra Singh and Balveer Singh who caught hold of the deceased after which Bhagwan Singh and Jagdish Singh inflicted knife blows and, on hearing their cries, Rajendra Singh, Hari Singh and persons from the nearby area came to their rescue, but according to PW/2 it was Chhattu Singh, who had arrived on hearing the cries and had carried the injured and the deceased on the camel cart. It was Balveer Singh and Mahendra Singh, who caught hold of Mangej Singh and Jagdish Singh and Bhagwan Singh inflicted knife blows. Although, this part of the story is consistent, the discrepancy occurred when he deposed that it was Balveer Singh and Mahendra Singh who caught hold of Mangej Singh, whereas this has not been specifically stated by PW/1. It was Balveer Singh and Mahendra Singh, who caught hold of Mangej Singh and Jagdish Singh and Bhagwan Singh inflicted knife blows. Although, this part of the story is consistent, the discrepancy occurred when he deposed that it was Balveer Singh and Mahendra Singh who caught hold of Mangej Singh, whereas this has not been specifically stated by PW/1. According to the version of PW/4 Masti Singh, when he reached there he saw Jagdish Singh, Mahendra Singh, Bhagwan Singh, and Vijendra Singh, Mahendra Singh and Balveer Singh were all jointly beating Shishupal Singh and then Karan Singh, Hari Singh Rajendra Singh and Chhattu Singh were separating them when he reached there. Jagdish Singh, Mahaveer Singh and Balveer Singh were having knives in their hands and the remaining were empty handed. Jagdish Singh inflicted knife blows on the head of Mangej Singh, Mahaveer Singh attacked on the right arm pit of Shishupal Singh and Bhagwan Singh also inflicted knife blows to Mangej Singh and Rajendra Singh was separating them. None others assaulted in any manner. PW/5 Laxman Singh who is son of the informant Jagdish Singh deposed that all the accused persons came running after which jagdish Singh and Mahaveer Singh inflicted knife blows to his father and uncle Mangej Singh. However, he spoke nothing regarding specific role played by all the accused persons except deposing that it was Jagdish Singh and Mahendra who were inflicting knife blows to his father Shishupal Singh and uncle Mangej Singh. He has, however, stated that on seeing him, Jagdish Singh, Mahendra Singh and Bhagwan Singh, who were having knives in their, hands, ran away from the place of occurrence. PW/6 Hari Singh, who is an FIR- witness and also a witness regarding recovery of knife from Mahendra Singh, has deposed that all the accused persons came running and on reaching there Shishupal Singh was caught by Jagdish Singh and Vijendra Singh, as a result of which Shishupal Singh fell down and after Mangej Singh was caught by Balveer Singh and Mahendra Singh, Jagdish Singh inflicted knife blows on the head and Balveer Singh hit on the arm pit of the deceased. He is also silent in so far as the role of other accused persons is concerned except Jagdish Singh, Vijendra Singh, Balveer Singh, Mahendra Singh and Bhagwan Singh and, when his evidence is compared with the other eye-witnesses' version it is found to be at variance in so far as Jagdish Singh, Balveer Singh and Mahendra Singh are concerned because according to him, he had caught hold of Mangej Singh, the deposition of PW/6-an FIR - witness is on similar lines. PW/7 Takhat Singh is the witness, who carried the injured informant and the deceased Mangej Singh on a camel cart and he is also commonly related to the accused and the prosecution witnesses. But he had no occasion to witness the actual occurrence since the knife blows had been inflicted before he had reached. But he has surely deposed that a quarrel had taken place in front of the of house of Jagdish and on hearing commotion, he had reached to the place of occurrence. It is important to bear in mind that this witness being commonly related to the deceased and the injured as also the accused-appellant he can definitely be treated as non-partisan witness and had no reason to take side of either the prosecution party or the accused person and he has also deposed that the incident had taken place in front of the house of Jagdish Singh, and Shishupal and Mangej Singh were also hit with knife blows. He has also deposed that serious difference arose between the accused persons, the informant and the deceased on account of money spent on the death of their father's sister. PW/8 Rajendra Singh is the FIR witness, who has deposed that when informant and the deceased reached near the house of Sayar Singh, then the accused Jagdish Singh shouted enemies are arriving and they should be killed and, on hearing this, Bhagwan Singh, Vijendra Singh and Mahaveer Singh came there. Jagdish Singh, Bhagwan Singh and Mahaveer Singh were having knives in their hands and immediately after reaching there, Mahaveer Singh inflicted knife blows on Shishupal Singh's right arm-pit and Jagdish Singh and Bhagwan Singh inflicted knife blows on head and posterior parieto-region of Mangej Singh. Later on Takhat Singh, Mahaveer Singh and Laxman Singh arrived there and on seeing them the accused persons ran away. Later on Takhat Singh, Mahaveer Singh and Laxman Singh arrived there and on seeing them the accused persons ran away. These persons then put Mangej Singh and Shishupal Singh on a camel cart and started for Fatehpur. 18. It is important to notice on going through his evidence, that he has spoken nothing in so far as the role played by other accused persons other than Jagdish Singh, Bhagwan Singh and Mahaveer Singh are concerned. He has not even stated anything regarding grappling with the informant or the deceased nor any role had been attributed to Mahaveer Singh, Balveer Singh and Vijendra Singh. 19. In his cross-examination he has merely stated that Bhagwan Singh, Mahaveer Singh, Vijendra Singh, Mahendra Singh and Balveer Singh arrived but no role has been attributed to all the accused persons except Mahaveer Singh, Jagdish Singh and Bhagwan Singh who are said to be armed with knives and also inflicted knife blows to Shishupal Singh and Mangej Singh. While Jagdish Singh assaulted Mangej Singh on his head, Bhagwan Singh had assaulted the deceased on the arm. 20. Thus, on scrutiny of the oral evidence of all the witnesses, we cannot lose sight of the fact that except Jagdish Singh, Bhagwan Singh and Mahaveer Singh, the evidence of the prosecution witnesses regarding the role played by the other three accused persons namely Mahendra Singh, Balveer Singh and Vijendra Singh is not consistent at all so much so that even the son of the informant Laxman Singh and the two FIR witnesses namely Hari Singh and Rajendra Singh as also PW/7 Takhat Singh who is commonly related to the accused and the prosecution party have not spoken about any role being played by the three accused persons. We have, thus, noticed that although Jagdish Singh, Bhagwan Singh and Mahaveer Singh have consistently been alleged to have played specific role in the killing of Mangej Singh and Mahaveer Singh also is clearly said to have inflicted knife blows on the head of the informant Shishupal Singh, we do not feel convinced about the participation of the other three accused persons because their participation and the role attributed to them have not been clearly established by the evidence of the prosecution witnesses themselves. 21. 21. We, therefore, examined the matter as to whether the other three accused persons namely Mahendra Singh, Balveer Singh and Vijendra Singh can be believed to be present on the place of occurrence so as to maintain the conviction under Section 302, IPC with the aid of Section 149, IPC. If even their presence had been although the role attributed to them may not have been consistently established, we would not have felt any hesitation in maintaining their conviction under Section 302/149, IPC but on scrutiny of the evidence neither their participation in the occurrence nor their presence is clearly established. We therefore, feel that case under Section 147, 148 and 149, IPC is not established beyond all reasonable doubt and in view of this inference we do not feel the necessity to deal with the submission advanced challenging the charge regarding formation of unlawful assembly. But although we feel that a case of unlawful assembly has not been sufficiently proved, we are unable to record a finding that the prosecution case is fit to be rejected outright, for even if it be a case of over implication, the part played by Jagdish Singh, Bhagwan Singh and Mahaveer Singh cannot be held to be tainted as the oral evidence in regard to their role finds clear corroboration from the medical evidence, which is free from blemish. 22. The other submissions advanced on behalf of the accused-appellants also do not inspire confidence and, we feel convinced with the fact that the accused persons have not suffered any prejudice on account of non- examination of the investigating officer and it has rightly been pointed out by the learned Public Prosecutor relying on 1996 Cr.L.J. 1653 (supra) and 1993 Cr.L.R. 625 (supra), wherein it has been held the prosecution will not fail due to non- examination of the Investigating Officer if the participation of the accused in the murder is proved by the evidence of the eye-witness, which is in conformity with the case stated in the FIR and also the medical evidence. 23. 23. It has no doubt been further submitted on behalf of the appellants that the witnesses are all related to the deceased and the injured, but time and again it has been laid down by the judgments of the Apex Court that mere relationship of witnesses is not enough to discard their testimony if their presence at the time of place of the incident is proved. We do not propose to enter into an ideal exercise by discussing the case law on this point on which the legal position is sufficiently clear. Suffice it to say that the related witness is not equivalent to interested witnesses and natural witnesses cannot be treated as interested witnesses. 24. However, we do feel convinced that the appellants Mahendra Singh, and Balveer Singh in Criminal Appeal No. 327/1995 and Vijendra Singh in Criminal Appeal No. 609/1995 cannot be held to be constructively liable for the death of deceased Mangej Singh and injured Shishupal Singh for. although, it is not necessary to prove in-a case under Section 149, IPC that each and every person should be alleged to have participated actively, but there must be material to show that the overt-act or acts of one or more was done, in furtherance of the common intention of all the accused in prosecution of the common object of the members of the unlawful assembly as was held by their lordships in AIR 1989 SC 1593 Ramvilash v. State of Bihar. However, when the presence of all the accused persons, as in this case, itself appears to be doubtful and no overt-act of stabbing is attributed to them even according to the prosecution in so far as the grappling part is concerned, there are material contradictions in the depositions of the prosecution witnesses. We therefore, feel that it would be highly unsafe to maintain their conviction with the aid of Section 149 on the ground that they are vicariously liable. It is also equally true that they would have been vicariously liable, if at least their presence sharing the common object also was clearly established, but we find that the two FIR witnesses as also the son of the informant are silent in so far as the role played by Mahendra Singh. Balveer Singh and Vijendra Singh is concerned, and it is only Jagdish Singh. Balveer Singh and Vijendra Singh is concerned, and it is only Jagdish Singh. Bhagwan Singh and Mahaveer Singh, who are said to have been present and participated actively in the killing of the deceased and the injured Shishupal Singh. 25. We also wish to record that merely because the presence of some of the appellants in the commission of the crime is not proved, the whole prosecution case cannot be rejected as unworthy of credence, especially when the evidence is consistent in so far as the role of Jagdish Singh, Mahaveer Singh (along with Bhagwan Singh since absconding) is found consistent and we are fully conscious of the fact that many a time especially in the country side when a murder is committed by one member of the family, the ire erupts on the prosecution side to implicate the whole family on account of the psychological effect which prevails on the family of the deceased; but it is for the Court to separate the grain of truth from the chaff of falsehood. In this case, the deposition of the witnesses itself creates such a situation for had the prosecution witness been consistent at least regarding the presence of Mahendra Singh, Vijendra Singh and Balveer Singh their conviction under Section 302/149, IPC could have been unhesitatingly upheld but as admittedly no role has been attributed to them regarding the stabbing and their role regarding their presence in the grappling with the deceased and the injured also suffers from contradictions the same cannot be brushed aside as immaterial. 26. Under these circumstances, we do feel that it would be highly unsafe to maintain their conviction. We are, therefore, lead to infer that the charge under Section 302, IPC with the aid of Section 149, IPC is not clearly established and. hence the conviction of the accused Mahendra Singh, Balveer Singh and Vijendra Singh is set aside. But in so far as Jagdish Singh and Mahaveer Singh are concerned, (Bhagwan Singh is absconding), we feel convinced that they shared common intention of killing deceased Mangej Singh and also inflicted severe knife blows on the vital part of the head of the informant Shishupal Singh. But in so far as Jagdish Singh and Mahaveer Singh are concerned, (Bhagwan Singh is absconding), we feel convinced that they shared common intention of killing deceased Mangej Singh and also inflicted severe knife blows on the vital part of the head of the informant Shishupal Singh. We also do not feel convinced with the argument that the case, at the most, will not travel beyond Section 326, IPC because three persons were armed with knives, including Mahaveer Singh, and inflicted grievous knife blows on the right chest of Shishupal Singh and Mangej Singh on his head and arm, who were innocently proceeding by the side of the house of Jagdish Singh. We also do not feel persuaded to infer that the genesis and manner of occurrence is different from what has been stated by the prosecution, because it cannot be forgotten that the deceased Mangej Singh and injured Shishupal Singh were lifted from the place of occurrence, which is alleged to be in front of the house of Jagdish Singh and were carried on the bullock cart to the Fatehpur hospital where a parcha-bayan was recorded of the injured Shishupal Singh. It is not possible to believe that in the hospital itself the informant entered into any kind of deliberations so as to falsely implicate the accused persons, although, we do feel that it may be a case of over implication. We. therefore, feel justified to alter the conviction of Jagdish Singh and Mahaveer Singh from Section 302/149, IPC to Section 302/34, IPC as the act of stabbing and killing by Jagdish Singh and Mahaveer Singh is clearly established on the basis of the medical evidence as also the oral evidence of the witnesses. This alteration is clearly permissible under the law as was held in the case of Govindappa v. State of Karnataka, reported in 1994 Suppl. (23) SCC 357 where the conviction of four accused persons was altered from Section 302/149. IPC to Section 302/34. IPC as overt-act could be established on evidence against the four persons only, although a large number of persons had been convicted by the court below with the aid of Section 149. IPC. 27. In the result, both the appeals are partly allowed to the extent that Mahendra Singh and Balveer Singh (in D.B. Cr. Appeal No. 327/1995) and Vijendra Singh (in D.B. Cr. IPC. 27. In the result, both the appeals are partly allowed to the extent that Mahendra Singh and Balveer Singh (in D.B. Cr. Appeal No. 327/1995) and Vijendra Singh (in D.B. Cr. Appeal No. 609/1995) are acquitted of the charges levelled against them and conviction under Section 302/149 and all other sections. They would be released forthwith and, if on bail, their bail bonds shall stand discharged. In so far as the appellants Mahaveer Singh and Jagdish Singh (in Cr Appeal No. 327/95, 609/95), their conviction is altered from Section 302/149. IPC to one under Section 302/34, IPC. They shall undergo rigorous imprisonment for life as already awarded to them by the judgment and order of the learned Addl Sessions Judge, Sikar. Their conviction under Section 326 and 326/149. IPC is also altered to Section 326/34, IPC. But in view of the sentence of life imprisonment, it is not necessary to pass separate sentence against them. The two appeals referred to hereinabove are thus, partly allowed.Appeal partly allowed accordingly. *******