N. L. GANGULY, J. ( 1 ) THIS appeal by Sheo Singh and 12 others is directed against the judgment and order dated 11-9-1979 passed by the IV Addl. District and Sessions Judge, Kanpur convicting the appellants in Sessions Trial No. 146 of 1977. Appellant Chhunnu Singh was convicted under Section 147 I. P. C. and sentenced to six months R. I. and life imprisonment under Section 302 read with Section 149 I. P. C. and five years R. I. under Section 307 read with Section 149 I. P. C. and all the other appellants were convicted under Section 148 I. P. C. and sentenced to one year R. I. and life imprisonment under Section 302 read with Section 149 I. P. C. and five years R. I. under Section 307 read with Section 149 I. P. C. ( 2 ) APPELLANTS Chhunnu Singh and Pratap Singh died during the pendency of this appeal and the appeal on their behalf stood abated. ( 3 ) THE prosecution case, as disclosed in the F. I. R. which was lodged by P. W. 4 Banwari Lal, was that appellant Ram Asrey on 8-6-1976 at about 8 A. M. was forcibly constructing his Barotha after encroaching about two cubits of land of the informant. The informant Banwari, and his uncle Maiku protested against the said illegal construction of Barotha by Ram Asrey, Deshraj and Thakur Prasad appellants. Ram Asrey, Deshraj and Thakur Prasad told the informant that they would construct the Barotha and the informant and his uncle could do whatever they liked. Exchange of abuses was done. At the same moment appellant Sheo Singh s/o Sukhu arrived with his gun and exhorted Ram Asrey and others to kill the informant party. Appellants Ram Asrey and Thakur Prasad started assaulting with Pharsa and Ballam. Banwari Lal ran away raising alarm. ( 4 ) KALLU Singh, Bishambhar Singh sons of Pahalwan Singh, Sheo Balak Singh s/o Mahipal Singh and Mangal Singh son of Sheo Balak Singh were digging earth in the Talab who, on hearing the alarm and seeing the assault, rushed to intervene. In the meantime appellants Sheo Singh and Subedar Singh exhorted their partymen and said that by chance they had come across the enemies, there was no need to delay, no such occasion would arise to kill them. In the meantime appellants Sheo Singh and Subedar Singh exhorted their partymen and said that by chance they had come across the enemies, there was no need to delay, no such occasion would arise to kill them. Pratap Singh and Deshraj, who were armed with guns from before hand and Nain Singh, Badlu Singh Raja Singh, who were armed with Pharsa, Chhanga Singh, Mahavir Singh, Hakim Singh, who were armed with Ballams and Chhannu Singh who was armed with lathi with other accused-appellants assaulted Sheo Balak Singh, Kallu Singh, Vishambhar Singh, Mangal Singh and Maiku by Pharsa and gun. Sheo Singh, Deshraj and Pratap Singh appellants fired their guns at Sheo Balak Singh and Kallu Singh, who fell down on the ground with injuries. The other appellants also assaulted them with their weapons. ( 5 ) WITNESSES Nathu Singh, Babadin Singh, Lallan of village Raha and Darshan Singh of village Chhataua and many others arrived at the spot, intervened and saved the first informant Banwari. ( 6 ) IN the F. I. R. itself earlier enmity is also disclosed. About nine months before the date of occurrence Sheo Singh and others had attacked Sheo Balak and others in which firing was also done. Sheo Balak had sustained injuries. A criminal case was registered at the police station against Sheo Singh and others. Since then Sheo Singh and others were bearing enmity towards Sheo Balak and others. Sheo Balak and Kallu had sustained firearm, Pharsa, Ballam and lathi injuries. ( 7 ) THE F. I. R. in the present appeal was lodged at 9. 05 A. M. on 8-6-1976 at P. S. Ghatampur district Kanpur for the said occurrence which took place in village Raha. The distance of the police station from the place of occurrence is three miles west. ( 8 ) AFTER lodging of the report Sri Ranglal Pandey started investigation who interrogated some witnesses and went to the spot, made local inspection, prepared site plan, took blood stained clothes of Bishambhar Singh and Maiku and also searched the houses of the accused-appellants to arrest them. After the case was registered the injured persons namely, Maiku, Mangal Singh, Bishambhar Singh, Sheo Balak and Kallu Singh were sent for medical examination to the primary Health Center Jalalabad where Dr. R. C. Tripathi P. W. 2 examined the injuries of Maiku, Kallu Singh, Sheo Balak, Mangal Singh and Bishambhar Singh. After the case was registered the injured persons namely, Maiku, Mangal Singh, Bishambhar Singh, Sheo Balak and Kallu Singh were sent for medical examination to the primary Health Center Jalalabad where Dr. R. C. Tripathi P. W. 2 examined the injuries of Maiku, Kallu Singh, Sheo Balak, Mangal Singh and Bishambhar Singh. Since Kallu Singh had received serious injuries and was unconscious, as such Dr. Tripathi did not examine him and referred his case for medical examination and treatment to Ursala Hospital Kanpur. Sheo Balak had also received serious injuries and he was also referred to Ursala Hospital Kanpur. ( 9 ) KALLU Singh on way to Ursala Hospital Kanpur died. Sheo Balak Singh was admitted at Ursala Hospital Kanpur, whose injuries were examined by P. W. 6 Dr. Nafisul Husain. The Panchayatnama of the dead body of Kallu Singh was prepared in presence of the witnesses by P. W. 3 S. I. Kirpal Singh. The dead body of Kallu Singh was sent to the mortuary in sealed cover through constable Dev Babadur Singh and the post mortem was conducted by P. W. 7 Dr. Satish Chandra. On completion of the investigation charge-sheet was submitted against the appellants. ( 10 ) THE case was committed to the Court of Session and transferred to Sri K. K. Chaubey, IV Addl. District and Sessions Judge, who framed charges on 16-10-1978. Satish Chandra. On completion of the investigation charge-sheet was submitted against the appellants. ( 10 ) THE case was committed to the Court of Session and transferred to Sri K. K. Chaubey, IV Addl. District and Sessions Judge, who framed charges on 16-10-1978. The accused persons were charged that they were members of an unlawful assembly and in prosecution of the common object of such unlawful assembly i. e. in committing the murder of Kallu and attempting to commit the murder of Sheo Balak and others, committed the offence of rioting at 8 A. M. on 8-6-1978 in village Raha P. S. Ghatampur district Kanpur and at that time all the appellants except Chhannu Singh were armed with deadly weapons i. e. guns, Tharsa, Ballam, committed the offence of rioting under Section 148 I. P. C. Chhannu Singh was charged under Section 147 I. P. C. The accused persons at the time and place as stated above were members of unlawful assembly, did commit the murder by intentionally causing the death of Kallu Singh and thereby each of the appellants committed the offence punishable under Section 302 read with Section 149 I. P. C. The appellants were further charged that with the common object of the said unlawful assembly they caused injuries to Sheo Balak, Bishambhar, Mangal Singh and Maiku with such intention and under such circumstances that if by that act they had caused their death, they would have been guilty of their murder and thereby they committed and offence punishable under Section 307 read with Section 149 I. P. C. The appellants pleaded not guilty and claimed to be tried. ( 11 ) THE prosecution in support of its case examined Bishambhar P. W. 1, Sheo Balak P. W. 5, both injured witnesses, besides Banwari P. W. 4, as eye witnesses. Dr. R. C. Tripathi P. W. 2 had examined the injured victims and had proved their injury reports. Dr. Nafisul Hussain P. W. 6, M. O. Ursala Hospital had examined Sheo Balak injured and Kallu Singh deceased and had also appeared as a witness and proved the injury reports. Dr. Satish Chandra P. W. 7 had conducted the post mortem examination of the dead body of Kallu Singh and proved the post mortem report. Dr. Nafisul Hussain P. W. 6, M. O. Ursala Hospital had examined Sheo Balak injured and Kallu Singh deceased and had also appeared as a witness and proved the injury reports. Dr. Satish Chandra P. W. 7 had conducted the post mortem examination of the dead body of Kallu Singh and proved the post mortem report. ( 12 ) BESIDES the aforesaid witnesses the prosecution examined S. I. Kirpal Singh P. W. 3, who proved the Panchayatnama, Constable Dev Bahadur Singh, P. W. 8, who took the dead body of Kallu Singh to the mortuary for post mortem examination and Sri Rang Lal Pandey P. W. 9 who investigated the case. ( 13 ) THE defence examined one Jograj Singh D. W. 1 who stated that at about 3-4 A. M. on the date of occurrence he was lying at his door, heard the noise from the house of Jakhai that Badmashes had arrived. He rushed to the place. The Badmashes came out of the house of Jakhai. They had fired. Kallu Singh and Sheo Balak received gunshot injuries. Bishambhar, Maiku and Mangal had also reached the place and there was Marpit between them and Badmashes with lathis. ( 14 ) BISHAMBHAR P. W. 1, Banwari P. W. 4 and Sheo Balak P. W. 5 were examined as eye witnesses of the occurrence. Bishambhar P. W. 1 and Sheo Balak P. W. 5 are injured witnesses. ( 15 ) THE dead body of Kallu, who died on way to Ursala Hospital, was sent for post mortem examination and Dr. Satish Chandra P. W. 7 conducted the post mortem report on 9-6-1976 at about 3. 30 P. M. He stated that Kallu Singh was an average built, his probable age was about 55 years and the probable time since death was 24 to 30 hours. Rigor mortis passed off from upper limbs but it was present in the lower limb. Abdomen was distended. Blisters were present. Skin was peeling off. Blood was coming from the nostrils. Penis and scrotum were swollen. Greenish discolouration was present on the abdomen. The doctor found the following ante mortem injuries. 1. Lacerated wound 8 cm x 1/2 cm x scalp deep 2 cm left mid line, 13 1/2 cm above left eye brow. Margins were contused. 2. Lacerated wound 5 cm x 1 cm x scalp deep 15 cm above right eye brow. Greenish discolouration was present on the abdomen. The doctor found the following ante mortem injuries. 1. Lacerated wound 8 cm x 1/2 cm x scalp deep 2 cm left mid line, 13 1/2 cm above left eye brow. Margins were contused. 2. Lacerated wound 5 cm x 1 cm x scalp deep 15 cm above right eye brow. Margins were contused. 3. Lacerated wound 3 1/2 cm x 1/2 x scalp deep on head 2 cm behind injury No. 2. Margins were contused. 4. Lacerated wound 4 cm x 1 cm x scalp deep on the left side of head 6 cm from injury No. 1. Margins were contused. 5. Lacerated wound 2 1/2 cm x 1 cm x muscle deep on the left side face, 1 1/2 cm left and l 1/2 cm below left eye. Margins were contused. 6. Lacerated wound 1 1/2 cm x 1/2 cm x bone deep on the partly of left forearm 3 1/2 cm below left elbow. Where was fracture underneath. 7. Abraded contusion 5 cm x 1 cm on the left forearm, 2 cm below injury No. 5. 8. Abraded contusions 11/2 cm x 1/2 cm on the back part lower forearm lower l/3rd portion. 9. Circular gun shot wound of l cm diameter x bone deep on the knuckle of left index finger second metacorpal bone was fractured. One pellet was recovered from small muscle of left hand. Margins were inverted. 10. Circular gunshot wound 1 cm diameter x abdomenal cavity deep on the left iliac fossa 8 cm above interior superior illiac spine. Margins were inverted. 11. Circular gun shot wound 1 cm in diameter x soft parts deep through and through of thickness on the outer side of left thigh upper part. Margins were inverted. 12. Circular gunshot wound of 1 cm diameter x soft parts deep through and through of thickness on the outer part of left thigh 4 cm below injury No. 11. Margins were inverted. 13. Gunshot wound 2 cm x 11/2 cm x abdominal cavity deep on the left side of abdomen 5 cm above illiac crest. Tissues were coming out. Margins were inverted. It was exit wound of injury No. 10. 14. Gunshot wound of 2 cm x 1 1/2 cm whole thickness deep on the outer part of the left thigh near scrotum. Tissues were coming out. Margins were everted. Tissues were coming out. Margins were inverted. It was exit wound of injury No. 10. 14. Gunshot wound of 2 cm x 1 1/2 cm whole thickness deep on the outer part of the left thigh near scrotum. Tissues were coming out. Margins were everted. It was exit wound of injury No. 11. 15. Gunshot wound 2 cm x 1 1/2 cm whole thigh thickness deep on the inner aspect of the left upper part 3 cm from injury No. 14. Tissues were coming out of it. Margins were everted. It was exit wound of injury No. 12. ( 16 ) ABRADED contusion 2 cm x 2 cm on the right elbow. ( 17 ) LACERATED wound 3 1/2 cm x 1 1/2 cm on front inner of left leg 12 cm below knee. Tibia and fabula were fractured. ( 18 ) CONTUSION 2 cm x 1 1/2 cm x 2 cm back of left ear. 16. On internal examination the doctor found membranes brain and lungs pale, right chamber of heart was half full and left chamber was empty. Peritoneum was punctured under injuries No. 10 and 13. Stomach contained 5 ozs of semi digested food material. Small intestine was empty. There were multiple perforations in small intestine. Gall bladder, spleen and kidneys were pale. In the opinion of the doctor the death had been caused due to shock and haemorrhage as a result of injuries noted above. Ext. Ka. 10 is the post mortem report. 17. Dr. Nafisul Hussain had examined the injuries of Sheo Balak at 2. 20 P. M. His injury report has been proved and marked as Ext. ka. 5. The injuries of Sheo Balak are quoted as under : 1. Lacerated wound 2. 5 cm x 2 cm x scalp deep on the middle of head 14 cm from eye brow U. O. Adv. X-Ray. 2. Lacerated wound (Yshaped) 6 cm x 3 cm x scalp deep 9 cm posterior to injury No. 1, Under observation. Adv. X-ray. 3. Lacerated wound 6 cm x 1/2" cm x scalp deep left partial region. 4. 5 cm above left ear. U. O. Adv. X-ray 4. Lacerated wound 1/2 cm x 1/2 cm left lat, to right of eye brow. 5. Lacerated wound 4 cm x 3/4 cm x skin deep 1 cm above left lat. 6. Multiple lacerated and punctured wound in an area 4. 4. 5 cm above left ear. U. O. Adv. X-ray 4. Lacerated wound 1/2 cm x 1/2 cm left lat, to right of eye brow. 5. Lacerated wound 4 cm x 3/4 cm x skin deep 1 cm above left lat. 6. Multiple lacerated and punctured wound in an area 4. 5 cm x 4 cm, 22 cm below tip of left shoulder (pst. axillary line) U. O. Adv. X-ray. 7. Abraded contusion 26 cm x 4 cm left shoulder and scapular region, U. O. Adv. X-ray. 18. Duration half day. Inj. Nos. 1, 2, 3, 6 and 7 U. O. for X-ray rest (sic) (test) simple. Object blunt except for O. 6 U. O. ( 19 ) KALLU Singh was sent to the Ursala Hospital for examination and Dr. Nafisul Hussain had declared him dead. ( 20 ) P. W. 2 Dr. R. C. Tripathi had examined Maiku, Mangal Singh and Bishambhar on 8-6-1976 between 9. 15 A. M. to 9. 30 A. M. The injury reports have been proved and marked as Exts. ka. 1, 2 and 3 respectively. ( 21 ) THE injuries on the person of Maiku are quoted as under : 1. Contused abrasion 2" x 1/2" of diameter placed near the frontal part of skull 6" upwards to tragus of right ear. 2. Penetrating wound 1" x 1/2" x 3/4" of diameter placed near the posterior aspect of left arm 11/2 upwards to lateral epicondyle of left humerous bone and 3" upwards to decranon process of left elbow fresh blood seen from wound. 3. Lacerated wound 1/2 x 1" x 1/10" of diameter placed over the outer aspect of left tibia bone 3 1/2" downward, so partly left knee joint. 4. Abraded contusion 1/2" x 1/2" of diameter 4" below injury No. 3. 5. Linear lacerated wound 1" x 1/10" of diameter placed over the outer aspect of left ankle joint. ( 22 ) THE doctor opined that all injuries were simples caused by blunt weapon and fresh except No. 2 which was caused by sharp pointed edged weapon. Duration about 2 hours old. ( 23 ) THE injuries of Mangal Singh are quoted as under:1. Lacerated wound 1" x 1/2" x 1/8" of diameter placed over the mastoid region of right side skull 1" posterior to lateral of right ear. 2. Duration about 2 hours old. ( 23 ) THE injuries of Mangal Singh are quoted as under:1. Lacerated wound 1" x 1/2" x 1/8" of diameter placed over the mastoid region of right side skull 1" posterior to lateral of right ear. 2. Contusion 1" x 1/2" diameter placed over the maxillary process of right side face. 3. Contusion 2" x 1/2" of diameter placed over the right deltoid region of shoulder. ( 24 ) THE doctor opined that all injuries were simple caused by blunt weapon and duration was about 2 hours. ( 25 ) THE injuries of Bishambar Singh are quoted as under : 1. Lacerated wound 2" x 1/8" x scalp deep placed over the parito frontal region of right side skull 6" upwards to the tragus of right ear. 2. Contusion 3" x 1" of diameter placed over the anterio posterio aspect of right shoulder region tenderness present. 3. Contusion 1" x 1/2" of diameter over the proximal and dorsal aspect of left thumb of hand. ( 26 ) THE doctor opined that all injuries were simple caused by blunt weapon and duration was about two hours. ( 27 ) THE case of the prosecution is based on the eye witness account and also the prosecution pleaded the motive for the offence and adduced evidence for the same. In the F. I. R. Ext. ka. 26 it was stated that about nine months before the occurrence appellant Sheo Singh and others had attacked Sheo Balak and others in which Sheo Balak and others had received injuries. A case against Sheo Singh and others had started. On account of the said case Sheo Singh and others were bearing enmity. In the evidence of P. W. 1 Bishambar Singh it has come that nine months before the present incident Sheo Singh had attacked Sheo Balak and fired at him in which Nathu Singh, Sheo Balak, Ghanshiam, Balwan, Hari Shanker, Karan and Urmila Devi sustained injuries. On the report of Sheo Balak a case under Section 307 I. P. C. was registered against Sheo Singh and others. In the said case u/s. 307 I. P. C. along with Sheo Singh, this witness Bishambar Singh, Babu Singh s/o Kallu Singh deceased, Chhannu Singh, Badlu Singh, Nain Singh, Subedar Singh, Hakim Singh, Jhanga Singh and Raja Singh were also made accused. In the said case u/s. 307 I. P. C. along with Sheo Singh, this witness Bishambar Singh, Babu Singh s/o Kallu Singh deceased, Chhannu Singh, Badlu Singh, Nain Singh, Subedar Singh, Hakim Singh, Jhanga Singh and Raja Singh were also made accused. P. W. 4 Banwari stated that nine months before the present occurrence appellant Sheo Singh and others had attacked Sheo Balak and fired at causing injuries to Sheo Balak, Ghanshiam, Balwan, Nathu, Hari Shanker, Urmila Devi and Karain. This statement was corroborated by P. W. 5 Sheo Balak. ( 28 ) KALLU deceased was also co-accused in the case under Section 307 I. P. C. so there could be no motive for committing the murder of Kallu Singh. Bishambar Singh P. W. 1, who is the real brother of Kallu Singh deceased, stated that Sheo Balak is his cousin. He stated that since Kallu Singhs relations got the matter compromised between him and Sheo Balak, the appellants became annoyed against deceased Kallu Singh. We do not consider that there is anything unnatural if an accused in another case compromised the dispute, which appears to be a reason for animosity against Kallu. The learned counsel for the appellants Sri G. S. Chaturvedi submitted that the deceased Kallu Singh was co-accused in a case under Section 307 I. P. C. which had taken place earlier and there was no just ground to believe that the present appellants had formed unlawful assembly and committed the murder of Kallu Singh and caused murderous assault on the person of the informant side. He do not consider that if once there was some bad relation with a person, that could never be compromised. The definite statements of prosecution witnesses that on account of intervention of common relations Kallu Singh had come to terms with informants side and it may be a reason for bearing enmity against Kallu Singh. It is correct that the motive alone is not sufficient to record conviction against any person. We consider it necessary to examine and scrutinise the prosecution evidence for arriving at a conclusion as to whether the appellants formed an unlawful assembly with the object of committing murder of Kallu Singh and assaulting the witnesses, as the prosecution states in the present case. We consider it necessary to examine and scrutinise the prosecution evidence for arriving at a conclusion as to whether the appellants formed an unlawful assembly with the object of committing murder of Kallu Singh and assaulting the witnesses, as the prosecution states in the present case. ( 29 ) BEFORE discussing and arriving at a conclusion whether the offence against the appellants and the sentences awarded are proved and they are liable to be sentenced for the various Sections, it would be necessary to examine the evidence of the eye witnesses and the informant of the F. I. R. in the case. ( 30 ) THE perusal of the F. I. R. shows that on the date of occurrence appellant, Ram Asray shortly before the actual assault on the victims was constructing his Barotha forcibly after encroaching upon 2 cubits of land of the informant. The informant Banwari P. W. 4 protested about the construction of Barotha by Ram Asray. Maiku, uncle of the informant, also joined in protesting the construction. Deshraj and Thakur Prasad alone with Ram Asrey appellant were also making construction of Barotha. Deshraj and Thakur Prasad are nephews of Ram Asrey appellant. The informant Banwari had asked appellant Ram Asrey and two others as to why they were constructing the Barotha on his (Banwaris) land. Ram Asray, Thakur Prasad and Deshraj said that they would make the Barotha and the informant may do whatever he likes. There was an altercation and exchange of hot words and abuses. In the meantime Sheo Singh, armed with gun, came out and other appellants accosted saying beat (Maro Salon Ko) whatever may happen would be seen. Ram Asrey with Pharsa and Thakur Prasad with Ballam started assaulting Maiku. The informant Banwari ran raising alarm. Kallu Singh, Bishambar Singh, Sheo Balak, and Mangal Singh, who were digging earth from the pond, ran towards the spot for intervening, challenging the accused-appellants. In the meantime Sheo Singh, Subedar Singh along with their associates reached and said why making delay the enemies are found by chance no such occasion would again come, kill them. In the meantime Pratap Singh and Deshraj appellants, who were ready from before armed with guns, Nain Singh, Badlu Singh, Raja Singh armed with Pharsa, Jhanga Singh, Mahavir Singh, Hakim Singh armed with Ballam and Chhannu Singh armed with lathi, reached the place of assault. In the meantime Pratap Singh and Deshraj appellants, who were ready from before armed with guns, Nain Singh, Badlu Singh, Raja Singh armed with Pharsa, Jhanga Singh, Mahavir Singh, Hakim Singh armed with Ballam and Chhannu Singh armed with lathi, reached the place of assault. All the aforementioned accused-appellants started assaulting Sheo Balak, Kallu Singh, Bishambhar, Mangal Singh and Maiku, uncle of the informant, with lathi, Pharsa and Ballam and also fired with gun. Sheo Singh, Deshraj and Pratap Singh appellants had fired their guns at Kallu Singh and Sheo Balak. Both Kallu Singh and Sheo Balak fell down after receiving injuries. Sheo Singh and Pratap Singh accosted and said to kill them (Aaj Jan se Mar Dalo, Bachkar Jane na Paye Purana Badla Aaj Nikal Lo ). The above mentioned accused-appellants thereafter, also continued assaulting the aforesaid injured Kallu Singh and Sheo Balak severely. Nathu Singh, Babadin Singh, Lallan of the village of occurrence and Darshan Singh resident of Chhataua and many person of the village arrived the place of occurrence, challenged them, intervened and saved the life of the informant and others. Banwari P. W. 1 before the trial Court stated that appellant Ram Asrey is his uncle by relation. In the upper story of the house in which Banwari lives, his uncle Maiku lives. Banwaris cousin Jakhai lives towards west. On the south of the house of Banwari there is the house of appellant Ram Asrey. The Court-yard of the house is common. Towards south of the house of Banwari there was Antia and Ghanauchi (place of storing water ). At the time of occurrence this land was vacant. At the time of the incident Ram Asrey, Deshraj and Thakur Prasad appellants were constructing the wall for the Barotha by encroaching upon the informants land. Banwari in his statement stated that at the time of occurrence Ram Asrey was armed with Pharsa and Thakur Prasad was armed with Ballam and they started assaulting Maiku. Banwari in his statement before the Court reiterated the facts stated in the F. I. R. that seeing the assault on Maiku, he ran raising alarm. Sheo Balak, Kallu Singh, Mangal Singh and Bishambar, who were digging the earth in the pond had reached the place of occurrence on hearing the alarm raised by Banwari and intervened. Banwari in his statement before the Court reiterated the facts stated in the F. I. R. that seeing the assault on Maiku, he ran raising alarm. Sheo Balak, Kallu Singh, Mangal Singh and Bishambar, who were digging the earth in the pond had reached the place of occurrence on hearing the alarm raised by Banwari and intervened. The statement of Banwari before the Court is that after the intervention of the aforesaid witnesses, who had arrived there, Subedar Singh armed with Pharsa came with his gun and said that it is by chance that enemies were found they may not be spared. Sheo Singh accosted and on his accosting Deshraj rushed and brought his gun, Nain Singh, Badlu Singh armed with Pharsa, Chhannu Singh armed with lathi, Pratap Singh armed with gun, Mahavir Singh and Jhang Singh armed with spear, Darshan Singh armed with spear and Raja Singh armed with Pharsa arrived there and they started assaulting Maiku, Sheo Balak, Bishambar Singh, Mangal Singh and Kallu with Kanta, Mathi and Ballam by reversing the weapon as lathi. Ballu, Sheo Balak and the informant ran towards the pond. Deshraj. Sheo Singh and Pratap Singh with their guns fired at Kallu and Sheo Balak, who fell down after receiving injuries and the rest of the accused appellants started beating with lathi, Ballam, Pharsa by reversing the weapon as lathi. The witnesses had arrived at the scene of occurrence and intervened. ( 31 ) THE other eye-witness of the occurrence Bishambhar Singh P. W. l deposed before the trial Court that on the date, time and place of occurrence he was digging earth from the pond. His elder brother Kallu Singh deceased, Sheo Balak and his son Mangal were also there. He stated that he saw Ram Asrey, Thakur Prasad and Deshraj making wall on the land of Banwari and Maiku. Banwari and Maiku had protested. The accused-appellants Ram Asrey. Thakur Prasad and Deshraj said that they would make the wall and challenged whatever the informant may desire may do. There was exchange of hot words and abuses. Sheo Singh appellant came out of his house with gun and accosted to beat, upon which Ram Asrey, Thakur Prasad started assaulting with Kanta and Ballam. Deshraj also ran towards his house and brought his gun. The witness Bishambhar Singh stated that these four persons intervened and reached near the assailants. There was exchange of hot words and abuses. Sheo Singh appellant came out of his house with gun and accosted to beat, upon which Ram Asrey, Thakur Prasad started assaulting with Kanta and Ballam. Deshraj also ran towards his house and brought his gun. The witness Bishambhar Singh stated that these four persons intervened and reached near the assailants. Subedar Singh appellant with Pharsa accosted saying that by chance they have got the victims. Subedar Singh and Sheo Singh had come from their house. On the accosting of Subedar Singh. Pratap Singh and Mahavir Singh had come with gun and Ballam. Hakim Singh armed with Ballam. Raja Singh armed with Pharsa, Nain Singh armed with Pharsa and Badlu Singh armed with Pharsa and Chhanu Singh armed with lathi also arrived there. These 13 accused persons were there. An omnibus statement was made that all the accused persons had started assaulting Bishambar Singh and three others. Bishambar Singh and three others had run towards the pond. Deshraj Singh, Pratap Singh and Sheo Singh had fired causing injuries to Kallu Singh and Sheo Balak, who fell down there. Bishambar Singh stated that he and the other persons were also beaten. The accused appellants Deshraj and Pratap Singh and Sheo Singh had beaten Kallu and Sheo Balak even after they had fallen down with Kanta, Ballam and lathi. Kanta and Ballam were being used as lathi and in a straight way as well. Witnesses Babadin, Kallu Singh, Lallan etc. had come there and intervened. ( 32 ) THE injured eye witness Sheo Balak P. W. 5 stated that he with his son Mangal Singh, Kallu Singh deceased were digging earth from the pond. The accused appellants Ram Asrey, Thakur Prasad and Deshraj were making construction of a well on the land of Maiku and Banwari, Maiku and Banwari protested and appellant Ram Asrey saidthat he would make the construction. The informant may do whatever he likes. There was exchange of abuses. In the meantime Sheo Singh armed with gun arrived there and accosted to beat and to see whatever may be the consequences. Maiku was assaulted by Ram Asrey and Thakur Prasad by Kanta and Ballam respectively. Deshraj had run to fetch his gun from his house. Witness Sheo Balak stated to have intervened. In the meantime Subedar Singh armed with Kanta came and accosted to kill them. Maiku was assaulted by Ram Asrey and Thakur Prasad by Kanta and Ballam respectively. Deshraj had run to fetch his gun from his house. Witness Sheo Balak stated to have intervened. In the meantime Subedar Singh armed with Kanta came and accosted to kill them. It is by chance that they have been found. Chhannu Singh, Nain Singh, Badlu, Jhanga Singh, Hikim Singh, Raja Singh, Mahavir Singh and Pratap Singh also arrived there. They were armed with weapons. Chhanu Singh was armed with lathi. Jhanga Singh, Hakim Singh, Thakur Prasad and Mahavir Singh were armed with Ballam. Pratap Singh was armed with gun. Nain Singh, Badlu Singh, Raja Singh and Ram Asrey and Subedar Singh had Kanta. They started assaulting Maiku, Banwari, Kallu Singh deceased and the witnesses. The witness Sheo Balak and others started running towards the pond. Sheo Balak challenged not to beat them. Then Sheo Singh, Deshraj and Pratap Singh fired at him and Sheo Balak received gunshot injuries. The witness Sheo Balak and Kallu Singh after receiving gunshot injuries had fallen down. The assailants even after the witness and Kallu Singh had fallen down continued assaulting with Kanta, Ballam and Lathi. Kanta and Ballam were being used by reversing them as well. On arrival of the witnesses the assailants ran away. ( 33 ) WE have already referred to the injuries of the injured witnesses P. W. 5 Sheo Balak and P. W. 1 Bishambar Singh. The injury reports are proved and are on the record. The presence of Sheo Balak and Bishamber, since they are injured witnesses with sufficient number of injuries on their person cannot be doubted. It has not been stated or argued that the injuries on the person of Bishambar and Sheo Balak are fake or manufactured. Maiku had received five injuries in the occurrence which shows that there was a penetrating wound 1" x 1/2" x 3/4" of diameter placed near the posterior aspect of left arm 11/2" upwards, to lateral epicondyle of left humorous bone and 3" upwards to decranon process of left elbow. Contused abrasions, lacerated and linear lacerated wounds were also found on the person of Maiku. Maiku injured was not examined in Court as a witness by the prosecution. Contused abrasions, lacerated and linear lacerated wounds were also found on the person of Maiku. Maiku injured was not examined in Court as a witness by the prosecution. Banwari P. W. 4 stated that Maiku was a person of weak mind and the relations pressurised him not to appear in Court, on account of which he did not come to depose before the Court. ( 34 ) SRI G. S. Chaturvedi, learned counsel for the appellants, placed the entire evidence on record and submitted that in the F. I. R. there is allegation of constructing Barotha but in the evidence before the Court the witnesses stated that the wall was being constructed. He referred to the statement of Bishambar Singh P. W. 4, who stated that in the said vacant land the accused appellants Ram Asray, Deshraj and Thakur Prasad were making wall of Barotha by encroaching upon the land. Sheo Balak P. W. 5 in his statement before the trial Court stated that accused Ram Asrey, Thakur Prasad and Deshraj were raising the wall on the land of Maiku and Banwari. On careful consideration of the evidence on record on this aspect, we do not find any force in it. There is no much difference in saying that the wall was being constructed or Barotha was being constructed. Barotha could only be constructed on the wall. Unless the wall was constructed the Barotha could not be constructed. The statement of Banwari P. W. 4 clearly shows that accused-appellants Ram Asrey, Thakur Prasad and Deshraj were constructing the wall of the Barotha. The submission of Sri Chaturvedi cannot be accepted that there is a contradiction about the wall and Barotha. ( 35 ) SRI Chaturvedi also referred to the minor contradictions in the statement of PW. 5 Sheo Balak about the measurement of the wall which was being constructed. The minor contradiction about the actual size of the wall, which was being constructed, is of no consequence as the witnesses are not supposed to give the exact size of the wall by measurement. The learned counsel for the appellants submitted that I. O. Sri Rang Lal Pandey P. W. 9 stated not to have found any newly constructed wall at the spot. The I. O. Sri Rang Lal Pandey prepared the site plan Ext. 11 wherein he has shown the place where the wall was being constructed. The learned counsel for the appellants submitted that I. O. Sri Rang Lal Pandey P. W. 9 stated not to have found any newly constructed wall at the spot. The I. O. Sri Rang Lal Pandey prepared the site plan Ext. 11 wherein he has shown the place where the wall was being constructed. He stated to have found mud in the door of Ram Asrey. He stated that he does not remember the size of the wall when he was asked about it in Court. He stated that the eastern wall of Ram Asrey, which is north-south, was smeared with mud. Towards east of the said door is the exit of Ram Asrey. He stated that he does not remember whether mud was dug there or wall was constructed. The Investigating Officer stated that he did not make any reference about the wall in his case diary. It is to be noted that Sri Ranglal Pandey, I. O. , had reached the place of occurrence and inspected the site between 12 and 1 O Clock in the day. The occurrence had taken place in the early hours at about 8 A. M. In the statement before the Court the witnesses stated that the accused, appellants Ram Asrey, Thakur Prasad and Deshraj were making the wall. It cannot be said that making of wall meant that the wall had actually been raised to sufficient height. The testimony of the injured eye witnesses and the informant cannot be disbelieved merely on the ground that the I. O. had not found wet mud, spade and basket at the place of occurrence. The I. O. had reached after about four hours of the occurrence and it is quite possible that the spade and basket may have been removed from the place. The wet mud lying on the spot in small quantity may have dried up, as the occurrence is of the month of June, in four hours time and the I. O. might not have taken note of it. We are thus satisfied and are of the view that the occurrence did take place, as stated by the informant and other injured eye witness and the wall was being constructed for making Barotha by encroaching upon the land of the informant and Maiku. We are thus satisfied and are of the view that the occurrence did take place, as stated by the informant and other injured eye witness and the wall was being constructed for making Barotha by encroaching upon the land of the informant and Maiku. ( 36 ) THE learned counsel for the appellants submitted that the F. I. R. in the case shows that the occurrence took place at 8 a. m. on 8-6-1976 and the F. I. R. was lodged on the same day at 9. 05 a. m. The police station from the place of occurrence is three miles. The learned counsel for the appellants submitted that the occurrence, as stated by the prosecution, had not taken place at 8 a. m. involving the accused-appellants. He submitted that in such a short time it was not possible to carry the seriously injured victims to the police station. He submitted that the defence of the accused-appellants is that certain Badmashes had come in the early hours at the house of Jakhai and on raising of the alarm people of the village had reached there. The Badmashes were weilding lathis and causing injuries by spear and had also tired guns in which incident the victims of the present case had received injuries and the present appellants have been implicated falsely on account of enmity with the informant and the injured witnesses. D. W. 1 Jagraj Singh in his statement stated that at about 3-4 a. m. in the night of 7/8-6-1976 from the house of Jakhai there was an alarm that Badmashes had come Jagraj Singh and several other persons of the village had reached the house of Jakhai. The Badmashes came out of the house of Jakhai and had fired which hit Kallu Singh and Sheo Balak. He stated that Bishambar Singh, Maiku and Mangal had also reached near the Badmashes and there was Marpit between them. Lathi blows were given. It is at the place of Jakhai the Badmashes had assaulted the victims and escaped after the assault. The defence of appellants Pratap Singh, Subedar Singh. Raja Singh, Hakim Singh, Ram Asrey, Nain Singh, Mahavir Singh and Sheo Singh is of complete denial and ignorance about the occurrence and they stated to have been falsely implicated in the case on account of enmity between them with the injured and the informant. The defence of appellants Pratap Singh, Subedar Singh. Raja Singh, Hakim Singh, Ram Asrey, Nain Singh, Mahavir Singh and Sheo Singh is of complete denial and ignorance about the occurrence and they stated to have been falsely implicated in the case on account of enmity between them with the injured and the informant. The injured eye-witnesses were medically examined at the Primary Health Center between 9. 15 a. m. to 9. 30 a. m. by Dr. R. C. Tripathi P. W. 2, who stated that the injuries were about one and a half hours old when he examined the injured. However, it was stated in cross-examination that there may be a difference of 2 or 3 hours on both sides in the duration of the injuries. He denied that there could be a difference of 4-6 hours in the duration of the injuries. He specifically denied that injuries could not have been caused at 2. 30 or 3 a. m. in the night of 7/8-6-1976. ( 37 ) DR. Nafisul Husain P. W. 6 stated that he had examined the injuries of Sheo Balak. Sheo Balak was examined at 2:20 p. m. on 8-6-1976 and stated that the injuries could be of 8 a. m. and there could be a difference of 4-6 hours in the duration of injuries noted by him. In any manner the injuries of Sheo Balak also could not have been caused at about 2:30 or 3 a. m. in the night of 7/8-6-1976. The argument that Kallu Singh had also received injuries in the night of 7/8-6-1976 cannot be accepted. ( 38 ) SRI Chaturvedi also submitted that there was variation in the prosecution case and the place of occurrence is also not fixed. He submitted that Maiku was assaulted first at the place where the wall was being constructed by Ram Asrey and Thakur Prasad and when the accused assembled Bishambar Singh. Kallu Singh deceased, Sheo Balak and Mangal Singh came to intervene, the accused started beating these four persons. They ran towards the pond when they were fired at. Kallu Singh and Sheo Balak fell down and Bishambar Singh and Nangal Singh also sustained injuries. The learned counsel for the appellants submitted that this shows that Maiku, who was assaulted first and other injured were beaten at the place where the wall was constructed and thereafter, all were beaten inside the Talab. Kallu Singh and Sheo Balak fell down and Bishambar Singh and Nangal Singh also sustained injuries. The learned counsel for the appellants submitted that this shows that Maiku, who was assaulted first and other injured were beaten at the place where the wall was constructed and thereafter, all were beaten inside the Talab. On this point there is the direct evidence. P. W. 1 Bishamber Singh stated that the appellants had earlier assaulted Maiku and four others at the place where the wall was being constructed and then Bishambar Singh ran away with others towards the Talab. They were fired at and assaulted there from which they sustained injuries at a distance of 5-6 paces from the western end of the Talab. Banwari P. W. 4 gave a categorical version that Ram Asrey and two others were constructing the wall, Maiku and Banwari had protested on which an altercation started and Maiku was beaten. On an alarm raised by the victims, Sheo Balak, Kallu Singh, Bishambar Singh and Mangal Singh reached there from the Talab and tried to intervene but they were also beaten and when they ran towards the Talab they were fired at and beaten from which they fell down in the Talab. The appellants had fired with fire arm at Kallu Singh and others, they were at one or two paces inside the Talab. Mangal Singh, Dishambar Singh and Mailan were at the southern and of the Talab. Kallu Singh and Sheo Black were assaulted at a distance of 10-15 paces from the Talab at a place where Bishambar Singh, Maiku and Mangal Singh were assaulted. P. W. 5 Sheo Balak also corroborated the statement of P. W. 4 Banwari and Bishambar Singh P. W. 1, Sheo Balak P. W. 5 stated that he and Kallu Singh had fallen down at a distance of 15 paces front the door of Ram Asrey. They had been assaulted even after they had fallen down by Kanta, Ballam and Lathi by the accused. He stated that after they had fallen down in the Talab the accused gave 1-2 blows each. The I. O. Rang Lal Pandey P. W. 9 had taken bloodstained earth from the place where Kallu Singh and Sheo Balak were assaulted. These places have been shown by letters a and b in the site plan proved by the I. O. The report of the Chemical Examiner Ext. The I. O. Rang Lal Pandey P. W. 9 had taken bloodstained earth from the place where Kallu Singh and Sheo Balak were assaulted. These places have been shown by letters a and b in the site plan proved by the I. O. The report of the Chemical Examiner Ext. Ka-29 shows that human blood was found on the bloodstained earth sent for examination. The statements of the injured witnesses and the informant are consistent. There is no contradiction in their statements. P. W. 9 Ranglal Pandey stated that the western end of the Talab lies at a distance of 15-20 paces from the house of Ram Asrey. It appears that the I. O. had not carefully measured the distance and his approximate distance is not sufficient to discard the evidence of the eye-witnesses and the bloodstained earth recovered from the place of occurrence. We do not understand that on the basis of reducing the distance from 70 to 15-20 paces the prosecution in any manner was to get any advantage. It is an act of incorrect measurement of the distance by the I. O. , which is no ground to discard the prosecution case. It may be a case of defective investigation. The Honble Supreme Court in the case reported in (1995) 6 JT (SC) 437 : ( AIR 1995 SC 1972 ), Karnail Singh v. State of Punjab, has been pleased to observe that in case of defective investigation, it would not be proper to acquit the accused if the case is otherwise established. The Apex Court was pleased to observe that in that case it would otherwise tantamount to be falling in the hands of erring I. O. Similar view relying on the said decision is found in the case reported in 1996 All LJ 433 : ( AIR 1996 SC 733 ), Krishna Pal v. State of U. P. ( 39 ) AFTER considering the argument of Sri Chaturvedi and scrutiny of the evidence on record we endorse the finding of the learned Sessions Judge that the occurrence did take place at about 8 a. m. on 5-6-1976 and the persons said to have received injuries in the said occurrence actually had received injuries on the said date, time and place, as stated by the prosecution. The defence theory about the dacoity at the house of Jakhai is not established. The defence theory about the dacoity at the house of Jakhai is not established. If a dacoity had taken place at the house of Jakhai and the dacoits had entered the house of Jakhai and came out from his house on the arrival of the witnesses and injured victims of the present case there at 2:30 or 3 a. m. in the night of 7/8-6-1976, we are unable to accept that none from the house of Jakhai or Jakhai himself received any injuries or anything was stolen or robbed from his house. No report about any such dacoity was ever lodged by Jakhai. ( 40 ) THE learned counsel for the appellants Sri Chaturvedi submitted that there is conflict in medical evidence and oral evidence, as such the oral evidence in the case is not reliable. It is contended that Kallu Singh and others ran towards the Talab and then the three gunmen fired at them and they should have sustained injuries on their back but the injury report of Sheo Balak and post-mortem report of Kallu Singh show that the injuries were sustained mostly on the front side. The statement of Sheo Balak P. W. 5 shows that while the injured were running towards the Talab, he stopped and told the accused appellants not to fire when the appellants Sheo Singh, Deshraj and Pratap Singh fired. He also sustained one firearm injury on his shoulder. The statement of Dr. Nafisul Hussain P. W. 6 who had examined the injuries, stated that if Sheo Balak raised both of his hands facing towards the men, who fired, injury No. 6 could be caused by a firearm. He in cross-examination stated that the injury was kept under observation. As such he had not specifically mentioned in the injury report that the said injury was caused by firearm. The specific evidence of prosecution witnesses that Sheo Balak had also sustained firearm injury. It is not to be lightly brushed aside. D. W. 1 Jagraj Singh also stated in his statement that Sheo Balak and Kallu Singh had sustained firearm injuries. The argument of Sri Chaturvedi that Sheo Balak did not sustain firearm injury is not correct. Injury No. 6 of Sheo Balak was caused by firearm. It is not to be lightly brushed aside. D. W. 1 Jagraj Singh also stated in his statement that Sheo Balak and Kallu Singh had sustained firearm injuries. The argument of Sri Chaturvedi that Sheo Balak did not sustain firearm injury is not correct. Injury No. 6 of Sheo Balak was caused by firearm. ( 41 ) SO far as the injuries of Kallu Singh deceased are concerned, most of the injuries were sustained by him on front but this is not sufficient to discard the said evidence. It is quite possible that when Sheo Balak had looked towards the appellants challenging them to stop firing, Kallu Singh, who was with Sheo Balak might have also looked towards them, there is nothing unnatural in Kallu Singhs looking towards the appellants while running towards the Talab. Simply because most of the injuries of Kallu Singh are on the front it is not possible to hold that there is any conflict in the medical and oral evidence. the learned counsel for the appellants Sri Chaturvedi also pointed out that Kallu Singh, Mangal Singh and Bishambar Singh are said to have been given Kanta and Ballam blows but except Maiku no one sustained any Ballam injury. It is correct that out of five injured persons including Kallu Singh only Maiku had sustained a punctured wound. It has come in evidence that Ballam and Pharsa were also used from the reverse portion and so the absence of Ballam Injuries on the body of the other injured persons cannot create any doubt in the prosecution story. The learned counsel further submitted that only one of the appellants was armed with lathi but almost all the injured sustained blunt weapon injuries. No doubt, Channu Singh appellant, who was assigned lathi and other eight appellants were assigned Pharsa and Ballam. As stated above, it has been stated by the injured eye-witnesses that Pharsa and Ballam were used from their reverse portion. The learned counsel for the appellants submitted that in the F. I. R. it has not been stated that Ballam and Pharsa were used by their reverse end. This argument has no merit. The F. I. R. is not supposed to contain the minutest details about the occurrence. The learned counsel for the appellants submitted that in the F. I. R. it has not been stated that Ballam and Pharsa were used by their reverse end. This argument has no merit. The F. I. R. is not supposed to contain the minutest details about the occurrence. It is always not possible to give the minute details in the F. I. R. A question in this regard was put to the informant Banwari P. W. 4, who explained the situation for the aforesaid omission. He stated that in the state of Marpit he was highly perturbed and could not specifically mention it in the F. I. R. The explanation given by P. W. 4 Banwari appears to be just and reliable. ( 42 ) WE have ourselves examined the injury reports of Sheo Balak, Kallu Singh, Maiku Singh, Mangal Singh and Bishambar Singh. Injuries Nos. 1, 2, 3, 5 and 7 of Sheo Balak could have been caused by Pharsa if the same was used by the other end. The post-mortem report of Kallu Singh shows that injuries Nos. 1, 2, 3, 4 and 7 also could have been caused by Pharsa if it was used by the other end and not by the cutting portion. Injuries Nos. 10, 11 and 12 of Kallu Singh are gunshot wounds of entry and injuries Nos. 13, 14 and 15 are exit wounds. The prosecution evidence on this aspect is clear that the three appellants armed with firearm had fired shots. We have also seen the injury report of Maiku. Injury No. 2 is penetrating wound and injury No. 3 on the tibia bone is incised wound, which appears to have been caused by spear. Since it is a bony portion it may look as an incised wound. The injuries of Mangal Singh and Bishambar Singh also show that they had received contusions and abraded contusions. There are in all 34 injuries on the victims and the deceased, some of which are multiple injuries. It is thus not possible to say that these injuries were very little in view of number of accused-appellants. The injuries of Mangal Singh and Bishambar Singh also show that they had received contusions and abraded contusions. There are in all 34 injuries on the victims and the deceased, some of which are multiple injuries. It is thus not possible to say that these injuries were very little in view of number of accused-appellants. ( 43 ) LEARNED counsel for the appellants Sri Chaturvedi submitted that all the appellants are not liable to be convicted with the aid of Section 149, I. P. C. He submitted that perusal of the F. I. R. and the evidence of the informant Banwari P. W. 4 and the injured witnesses shows that the incident did take place in two parts. It is submitted that unlawful assembly had not been formed for murdering Kallu Singh by Ram Asrey, Deshraj and Thakur Prasad. He submitted that the occurrence, which took place at 8 a. m. when Ram Asrey, Deshraj and Thakur Prasad were making the Barotha by encroaching 2 cubits (land) of the informant and Maiku. The learned counsel submitted that the informant and Maiku had protested challenging not to construct the wall fur the Barotha. Ram Asrey, Deshraj and Thakur Prasad refused to stop and had stated that they would make the construction and Maiku and the informant may do whatever they liked. On exchange of hot words and abuses the Marpit ensued and Ram Asrey Thakur Prasad on the accosting of Sheo Singh started assaulting Maiku with Pharsa and spear. Sri Chaturvedi submitted that the three persons aforementioned had been only raising the wall for the Barotha on the land of the Informant Banwari and Maiku forcibly by encroaching upon the said land and it cannot be assumed that they had formed an unlawful assembly for committing the murder and murderous assault on Kallu Singh and the injured witnesses of the present case. Sri Chaturvedi cited 1973 Cri LJ 1203 (All) (DB), Maiyadin v. State. He placed paras 24, 25, 27 and 29 of the said judgment. Sri Chaturvedi pointed out that in Queen v. Sabed Ali, (1873) 20 Suth WR (Cri) 5, the case was that an unlawful assembly was formed by a number of persons to take forcible possession over a piece of land. He placed paras 24, 25, 27 and 29 of the said judgment. Sri Chaturvedi pointed out that in Queen v. Sabed Ali, (1873) 20 Suth WR (Cri) 5, the case was that an unlawful assembly was formed by a number of persons to take forcible possession over a piece of land. When the members of the unlawful assembly went there, Samad Ali, one of the persons who resisted the possession plied his lathi and thereupon Tureeboollah, who was armed with a gun, fired a shot and killed Samad Ali. The question arose in that case as to whether all the members of the unlawful assembly were guilty of committing the murder of Samad Ali. It should be noted here that Samad Ali in resisting the forcible possession of the land had plied his lathi and then one of the members of the unlawful assembly Tureeboollah fired his gun and killed Samad Ali. It was held that killing of Samad Ali was the individual act of Tureeboollah and the other members of the unlawful assembly were not liable for it. ( 44 ) IN AIR 1959 All 255 , Charan v. State, it was observed that (Para 42) :"even if the act is an individual act of one member and it is not actually done in prosecution of the common object, all the other members will be liable for it provided they knew and it must be noted here that positive knowledge is necessary, it is not sufficient to show that they ought to have or might have known or that they had reason to believe that it might happen that the act was liable to be committed in prosecution of the common object. " ( 45 ) IN Hanif v. State, AIR 1962 All 272 , it was observed (Para 20) :"the plain meaning of the first part of Section 149, I. P. C. in my opinion, is that all the members of an unlawful assembly render themselves liable to punishment for any and every offence committed by any member or more members of that assembly in prosecution of the common object of the unlawful assembly which as I understand it means that its commission was in the contemplation of the unlawful assembly directly or impliedly. In the present case, in view of the finding of Mulla, J. with which I have respectfully agreed, that the killing of Darshan was not in the contemplation of or intended by any other member of the unlawful assembly except Hanif, it cannot be said that his murder was committed in furtherance of the common object of the assembly and so the eleven appellants whose case is before me, are not liable to punishment under the first part of Section 149, I. P. C. " ( 46 ) FURTHER it was held as below (Para 23 of AIR) :"in the circumstances it cannot be held that the eleven accused, who were armed with lathis and who by their conduct gave a positive indication of their mind not to kill Darshan but only to beat him realised or knew that the murder of Darshan was likely to be committed in prosecution of their common object. Therefore, they cannot be held guilty under Section 302, I. P. C. even with the application of the second part of Section 149. I. P. C. " ( 47 ) THE learned counsel for the appellants submitted that in the present case also those appellants against whom there is clear evidence that they caused injuries to the deceased would be guilty with the aid of Section 34, I. P. C. and all others cannot be convicted with the aid of Section 149, I. P. C. Sri Chaturvedi referred to the decision reported in AIR 1972 SC 1221 , Kshudiram Majhi v. State of West Bengal, which was considered in the case reported in 1973 Cri LJ 1203 (All) and referred to para 29 of the said judgment. The learned counsel also referred to the case reported in 1992 UP Cri R 192 : ( AIR 1993 SC 400 ), Sarman v. State of M. P. and submitted that the Honble Supreme Court in the said appeal held that where several persons had inflicted lathi blows causing simple injuries on non vital parts of the body and also caused depressed fracture of parietal bone, the prosecution could not point out the fact which of the accused caused fatal injury in such circumstances all the accused persons cannot be said to have the common object of committing murder of the deceased though they may have knowledge about the blows given to the injured which were likely to cause death. ( 48 ) THE other decisions reported in 1994 UP Cri R 325, Babao v. State of U. P. and 1993 UP Cri R 545, Haridwar Singh v. State of U. P. , referred by the learned counsel for the appellants are not applicable to the facts of the present appeal. In Babaos case the very manner of the incident was found to be doubtful and the report was found to have been lodged sometime later. The presence of the witnesses was also found doubtful and in Haridwar Singhs appeal the prosecution version i. e. F. I. R. was not sent along with the body of the deceased to the doctor and the Court was of the view that the F. I. R. was not lodged at the time mentioned in it and doubt was created on the entire prosecution case. In the present case the evidence on record does not show that the manner in which the incident took place is doubtful rather is established by the facts stated by the injured eye-witnesses and the informant. The question whether the F. I. R. was sent or not to the doctor along with the dead body for conducting the post-mortem examination was neither asked from the doctor when he appeared before the Court during trial. As such this question cannot be raised now in appeal before this Court. The question whether the F. I. R. was sent or not to the doctor along with the dead body for conducting the post-mortem examination was neither asked from the doctor when he appeared before the Court during trial. As such this question cannot be raised now in appeal before this Court. ( 49 ) SRI Chaturvedi also cited 1992 UP Cri R 567 : (1992 All LJ 950) Hasrat v. State of U. P. and submitted that the name of the reporter was not mentioned in the inquest report and there was usual explanation for non-mentioning the name of the reporter in the inquest report by the I. O. The observation of the Division Bench in that appeal was that the F. I. R. had not been transcribed and the story had been carved out after consultation and deliberations. We have perused the Panchayatnama Ext. Ka-6. P. W. 3 Kirpal Singh S. I. , who had conducted the inquest, was not asked any question in this aspect. We have already held that the F. I. R. in the present case was promptly lodged after the occurrence and the fact that the injured persons were soon after examined also corroborated the fact that the incident did take place at 8 a. m. as stated by the prosecution. We have already held relying on the decision reported in 1996 All LJ 433 (SC) and (1995) 6 JT (SC) 437 : ( AIR 1995 SC 1972 ) (supra) that it may be a case of defective investigation and the Apex Court was pleased to observe that in that case it would otherwise tantamount to be falling in the hands of erring I. O. We do not consider that the omission to mention the name of the reporter in the inquest report in any manner weakens the prosecution case. ( 50 ) THE learned A. G. A. Sri K. C. Saxena argued the appeal on behalf of the State and placed the relevant evidence on record, which had already been placed by Sri Chaturvedi. ( 50 ) THE learned A. G. A. Sri K. C. Saxena argued the appeal on behalf of the State and placed the relevant evidence on record, which had already been placed by Sri Chaturvedi. Sri Saxena cited three cases, namely, 1994 Supp (2) SCC 269 : (1994 AIR SCW 2823), S. K. Ayyub v. State of Maharashtra, 1994 Supp (2) SCC 153, Raja Ram v. State of M. P. and two other connected appeals and a certified copy of the unreported judgment in Criminal Appeal No. 2036 of 1979 Raj Bahadur v. State connected with Criminal Appeal No. 2037 of 1979 decided by a Division Bench on 19-1-1995. . ( 51 ) WE have examined the judgments cited by Sri Saxena. The judgment in the case of S. K. Ayyub is not very relevant in the present appeal. The case of Raja Ram (1994 Supp (2) SCC 153) (supra) cited by Sri Saxena also is not in any manner helpful to the prosecution case. In the said case of rioting omnibus allegations against 19 persons, who had inflicted injuries on the deceased and had been awarded life imprisonment by the trial Court but the High Court was pleased to alter the conviction and sentence from 302 to 326, I. P. C. read with Section 149, I. P. C. and sentenced them to seven years R. I. The said judgment was confirmed by the Honble Supreme Court. ( 52 ) BEFORE considering the case laws and applicability of Section 149, I. P. C. in the case we consider it necessary to mention certain facts. The present appeal was listed on 1-4-1996 before this Division Bench. The names of Sri G. S. Chaturvedi and Sri R. S. Tewari were shown in the cause list. Sri R. S. Tewari Advocate requested to pass over the appeal on the said date and it was passed over for the day. Again the appeal was listed on 26-4-1996 on which date the appeal was directed to be put up on Tuesday next in computer list on the mention made by Sri Chaturvedi. On 30-4-1996 the appeal was partly heard and it was directed to be put up the next day. Similar order was passed on 1-5-1996 for putting up the appeal on 2-5-1996 and 3-5-1996. The appeal was finally heard and arguments of Sri Chaturvedi concluded on 6-5-1996 and judgment was reserved. On 30-4-1996 the appeal was partly heard and it was directed to be put up the next day. Similar order was passed on 1-5-1996 for putting up the appeal on 2-5-1996 and 3-5-1996. The appeal was finally heard and arguments of Sri Chaturvedi concluded on 6-5-1996 and judgment was reserved. Sri R. S. Tewari, Advocate moved an application in the Registry on 14-5-1996 praying that the appellants be permitted to produce certain case laws about the place of occurrence and other matters in the case and about the medical evidence before the Court and then delivery of judgment be made. It was also requested that delivery of judgment in the appeal be postponed. He mentioned 11 incomplete citations of cases on a sheet of paper with the application. In the application Sri Tewari mentioned that he had sought permission from the counsel Sri G. S. Chaturvedi, who argued the appeal on 6-5-1996. The appeal was argued at length on number of dates by Sri Chaturvedi who is very senior counsel of this Court practising on the Criminal side mainly. Sri R. S. Tewari except making mention on one date never appeared and moved the application after the judgment was reserved. We do not consider it necessary or proper to permit innings after innings to argue one and the same appeal by different advocates for the same appellants, Sri R. S. Tewari had not cared to attend the Court on the dates fixed when the appeal was heard and perhaps this was an attempt to explain to his clients that he had also taken pains in hearing of the appeal. The Court does not consider it necessary to further hear Sri R. S. Tewari in the same appeal which was heard at length, and judgment was reserved. If Sri Tewari had not taken interest and not appeared before the Court when the appeal was heard, he himself is to blame and the Court is not to give opportunity again and again to each and every counsel appearing in the appeal. Since few cases have been cited in the list of cases, we have ourselves examined the case laws as far as the correct citations were available. ( 53 ) 1983 All Cri C 64 (G5) (DB), Manohar v. State in which the Court found that omission to mention the name of witnesses, in statement u/s. 161, Cr. Since few cases have been cited in the list of cases, we have ourselves examined the case laws as far as the correct citations were available. ( 53 ) 1983 All Cri C 64 (G5) (DB), Manohar v. State in which the Court found that omission to mention the name of witnesses, in statement u/s. 161, Cr. P. C. and the explanation advanced by the witnesses was not accepted; hence the presence of the said witnesses at the time of occurrence was held to be doubtful. The material discrepancy in the statement and the existence of the F. I. R. when the inquest report and challan nash were prepared by the I. O. was doubted and the explanation given by the I. O. was found to be unsatisfactory. We have already considered this argument in the earlier part of the judgment. We have not accepted the argument of the learned counsel for the appellants about the doubt in the time of occurrence and lodging of the F. I. R. This authority thus does not help the defence. (1992) 1 Crimes 100 : (1992 AIR SCW 191) without giving the names of the parties was mentioned in the list, noting who inflicted fatal blow - Not known - Acquittal. It appears that the citation of the Law Digest has been quoted without looking to the case law itself, In the present case the evidence is clear and specific, as stated by the injured eye-witnesses and the informant. ( 54 ) 1991 All Cr C 194 (DB) - The note mentions improvement from F. I. R. during trial - Benefit to accused. In the present case we do not find that there is material improvement in evidence before the trial Court from the F. I. R. 92 ACC 8 is without giving the name of parties. The correct citation is (1992) 29 All Cri C 8, State of U. P. v. Hari Shanker. This was an appeal against acquittal and the High Court affirmed the findings of the trial Court where the place of occurrence itself was found doubtful by the trial Court and it was also found by the trial Court that the prosecution agency had tried to improve upon the facts mentioned in the F. I. R. Sri Tewari had not cared to look to the case law mentioned at serial No. 5 of the list. ( 55 ) AIR 1993 SC 400 and 63 - it has been noted that which injury was caused by which accused the accused cannot be convicted under Section 302/149, I. P. C. and it is also noted that who caused fatal blow; No evidence; No conviction. We have examined the judgment given by the Honble Supreme Court in sarman v. State of M. P. , AIR 1993 SC 400 (1992) 29 All Cri C 8, earlier in the judgment, which was cited by Sri Chaturvedi. Thus it is not to be repeated. In AIR 1993 SC 63 as mentioned in the list, there is no Criminal case reported. The citation is wholly incorrect. ( 56 ) 1993 Cri LJ 408 : ( AIR 1993 SC 1175 ), Nallam Setty Yanadaiah v. State of Andhra Pradesh; it has been noted in the note inquest should mention name of accused and weapon assigned to them otherwise prosecution story is not reliable. After examining the said judgment we do not find any such observation by the Honble Supreme Court in the case cited as law. ( 57 ) 1992 (2) Crimes 286 (SC ). The note is injury on non-vital part of the body of the appellant; appellant has got no intention to cause death; sentence undergone. In the present case none of the appellants is shown to have received injuries and the intention of the appellants from the evidence on record was not to cause such injury, which may cause death. ( 58 ) 1991 (2) JT (SC) 264 : ( AIR 1991 SC 1388 ). The note mentions no reference of accused in column No. 9 of inquest, fatal for prosecution. The learned counsel has not cared to read the case law cited. It was a case of circumstantial evidence and the dead body was recovered at the instance of the accused. The crucial circumstance of recovery of dead body under Section 27 of the Evidence Act was not mentioned in the panchayatnama nor there was any evidence and there was discrepancy in the evidence of the prosecution witnesses. This ruling is of no help and the learned counsel Sri Tewari by filing such application without caring to look to the case law himself and then for no good to the appellants has not assisted the Court in any manner in deciding the appeal. This ruling is of no help and the learned counsel Sri Tewari by filing such application without caring to look to the case law himself and then for no good to the appellants has not assisted the Court in any manner in deciding the appeal. ( 59 ) THE last case is 1993 All Cri C 187 (DB ). In the note it has been mentioned name of the reporter should be in inquest report. There is no such observation in the judgment referred to. ( 60 ) WE now propose to discuss the arguments of Sri Chaturvedi that the occurrence which initially started at the place where Ram Asrey, Deshraj and Thakur Prasad were constructing the wall and the initial Marpit started there and the intention of these three persons was to make construction of the wall for Barotha and there was no Common object of committing murder of Kallu Singh. The other appellants who joined later and the appellants, who later came armed with guns and joined the Marpit, which resulted in the death of Kallu Singh, whether that was on account of common object of the unlawful assembly or not. It would be necessary to refer to the earliest version given by the informant in the F. I. R. and also to appreciate the evidence on record keeping in view the houses of the other appellants, who joined the Marpit armed with guns and deadly weapons, which was a subsequent act and cannot be said to be the common object of the unlawful assembly to commit the murder of Kallu Singh and cause murderous assault on Maiku. It is not disputed that the house of all the appellants are near the vicinity of the place of occurrence where the wall was being constructed and also the Talab, which is also very near to the first place of the incident. In the F. I. R. it is clear that Ram Asrey, Deshraj and Thakur Prasad were making the wall for the Barotha and altercation and abuses were exchanged. In the F. I. R. it is clear that Ram Asrey, Deshraj and Thakur Prasad were making the wall for the Barotha and altercation and abuses were exchanged. In the meantime appellant Sheo Singh on the side of Ram Asrey reached there and accosted maro Sale Ko, Dekha Jaiga and Ram Asrey armed with pharsa, Thakur Prasad armed with Ballam started assaulting Maiku and the witnesses Bishambar Singh, Sheo Balak, Mangal Singh, who were digging earth from the Talab and Kallu Singh deceased had reached the place near the place of construction of the wall who tried to intervene and Sheo Singh, Subedar Singh accosted their own men saying why making delay, enemies have been found, there would be no such occasion; kill them and in the meantime Pratap Singh, Deshraj, who were ready from before hand armed with gun had reached, there, Nain Singh, Badlu Singh, Raja Singh armed with Pharsa, Jhauga Singh, Mahavir Singh, Makim Singh armed with Ballam and Chhannu Singh armed with lathi started assaulting Sheo Balak, Kallu Singh, Bishambar Singh. Chhaanu Singh had assaulted Maiku with Ballam and lathi and fired with guns. Sheo Singh, Deshraj and Pratap Singh had fired their guns at Sheo Balak and Kallu Singh. From the evidence before the Court also it is clear that the appellants ready from before started assaulting with deadly weapons and had fired causing firearm injuries to Sheo Balak and Kallu Singh. In the course of assault the injured victim had tried to escape and had reached near the Talab and had fallen down in the Talab. Even after Sheo Balak and Kallu Singh had fallen down they were assaulted by the appellants. Deshraj whose house is very close to the place where the wall of Barotha was being constructed had fetched his gun during the course of the incident which also shows that the common object of the appellants was to encroach and build the wall for the Barotha and in doing so, the appellants had common object to give effect to their plan and design in any manner even if murder is to be committed. The evidence of P. W. 5 Sheo Balak is clear and unambiguous, who stated that alter altercation had started, Sheo Singh came with gun and exhorted at which accused Ram Asrey, and Thakur Prasad assaulted Maiku with Kanta and Ballam. The evidence of P. W. 5 Sheo Balak is clear and unambiguous, who stated that alter altercation had started, Sheo Singh came with gun and exhorted at which accused Ram Asrey, and Thakur Prasad assaulted Maiku with Kanta and Ballam. Deshraj brought his gun from his house in no time. The witness, his companions and deceased Kallu, had tried to intervene. The accused appellants started assaulting Sheo Balak and others, who ran towards the Talab. From further examination of the evidence of the injured eye witnesses and the informant, we are of the view that the prosecution case about the common object for such murderous assault was preconceived plan of the appellants and they had strong motive for commission of the offence. We have already referred to the evidence in respect of the criminal case under Section 307 IPC in which the accused appellants were accused facing trial. The argument of the learned counsel that since Kallu Singh was co-accused in that 307 IPC case, there was no motive to commit the murder of Kallu Singh is misconceived. It has come in evidence that Kallu Singh and Sheo Balak being close relations and on account of intervention of common relations had settled their matter and compromised, which appears to be a ground seriously taken by the accused-appellants and the prosecution case that it was the motive for the accused-appellants to assault the victim and injured witnesses is fully established. Minor omissions and contradictions in the evidence of P. W. 5 Sheo Balak about the size of the wall which was being constructed and whether the basket and spade were recovered from the place of occurrence can be no ground for discarding the cogent evidence of the injured eye witnesses. We are of the view that all the accused persons had motive and had common object to assault and in course of assault they even were adamant to kill as stated and accosted by Sheo Singh and other appellants to kill the enemies whom they have found. We are of the view that all the accused persons had motive and had common object to assault and in course of assault they even were adamant to kill as stated and accosted by Sheo Singh and other appellants to kill the enemies whom they have found. ( 61 ) AFTER appreciating the evidence on record and considering the arguments of Sri Chaturvedi we are satisfied that the prosecution evidence as to the construction of the wall for the Barotha by Ram Asrey, Deshraj and Thakur Prasad by encroaching upon the land of Maiku and the informant Banwari was designed so that the accused-appellants may take serious action against the deceased and the injured witnesses, who had come as members of one party and a criminal case u/s 307 IPC was going on against the appellants. The case is thus fully made out for application of Section 149 IPC against all the appellants. ( 62 ) IT is to be noted that the I. O. after reaching the place of occurrence on 8-6-1976 for investigation had tried to find out and arrest the accused-appellants. Sri Ranglal Pandey P. W. 9, I. O. , recovered the Tikli from the place of occurrence and prepared the recovery memo. He tried to find out the appellants Deshraj, Thakur Prasad, Hakim Singh and others and searched their houses. None of the accused-appellants was present in his house. Warrants for arrest were issued on 13-6-1976 but they were not found. Proceedings U/s 82/83 Cr. P. C. were also taken against Ram Asrey, Deshraj, Thakur Prasad, Sheo Singh, Nain Singh, Chhannu Singh, Badlu Singh and their properties were attached. Later on 14-6-1976 these accused-appellants had surrendered before the Court. On 18-6-1976 Sheo Singh and others had surrendered before the Court. These facts are also to be noted about the subsequent conduct of the accused appellants after the incident. ( 63 ) IT is established that Sheo Singh, Pratap Singh and Deshraj appellants had used guns and fired causing injuries to Kallu Singh and Sheo Balak. Kallu Singh had three gunshot wounds of entry and three gunshot wounds of exit. Injuries Nos. 1, 2, 3, 4 and 7 on the person of Kallu Singh, as indicated in the post mortem report, also show that these injuries were caused by weapons like pharsa and Ballam used by the other end than the metalic part. Kallu Singh had three gunshot wounds of entry and three gunshot wounds of exit. Injuries Nos. 1, 2, 3, 4 and 7 on the person of Kallu Singh, as indicated in the post mortem report, also show that these injuries were caused by weapons like pharsa and Ballam used by the other end than the metalic part. ( 64 ) FROM the evidence on record it is fully established that the appellants had formed an unlawful assembly with common object to commit murder of Maiku and other members of the party of the informant and Maiku whom they considered to be their enemies as on the report of the informant a case under Section 307 IPC was going on against all the appellants before the Court. All the accused-appellants lived in close vicinity near the house of Maiku and informant. They had already formed an unlawful assembly armed with weapons and were ready to commence the assault. The construction of the wall for Barotha by Ram Asrey, Thakur Prasad and Deshraj by encroaching two cubits of informants and Maikus land was a pretext to give a start for the occasion to assault. The ante mortem injuries on deceased Kallu Singh clearly show that the accused-appellants armed with guns and weapons like spear and spade had fully known that the injuries caused were sufficient in ordinary course to cause death of the person. The injuries caused to Sheo Balak, Maiku, as already stated in the earlier part of this judgment, show that these injuries were sufficient to cause death in ordinary course to make out a case under Section 307 read with Section 149 IPC against the appellants. The learned counsel for the appellants has not seriously argued that the case under Section 307/149 IPC was not made out. ( 65 ) THE appeal is dismissed. The judgment and order of the trial court is affirmed. Appellants Chhannu Singh and Pratap Singh are dead, whose appeal stands abated. The conviction and sentence of Sheo Singh, Nain Singh, Badlu Singh, Deshraj, Thakur Prasad, Ram Asrey, Subedar Singh, Raja Singh, Jhanga Singh, Mahavir Singh and Hakim Singh, who are sentenced to one year R. I. U/s 148 IPC, life imprisonment u/s 302 IPC read with Section 149 IPC and five years R. I. u/s 307 read with Section 149 IPC are affirmed. All the sentences of the aforesaid accused-appellants to run concurrently. All the sentences of the aforesaid accused-appellants to run concurrently. ( 66 ) THE above mentioned accused-appellants are on bail, Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out the sentences awarded. ( 67 ) R. N. RAY, J. :- I agree. Appeal dismissed.