JUDGMENT : - S.K.Phaujdar, B.K.Sharma 1. THE present appeal is directed against the judgment and order dated 1.12.1982 recorded by the VIth Additional Sessions Judge, Bareilly in Sessions Trial No. 563 of 1981. THE learned trial Judge convicted all the 5 appellants under Sections 302/149 and 307/149, I.P.C. and sentenced them to life imprisonment under the first count and to R. I. for 4 years under the second. 2. BRIJ Lal, Babu Ram and Gokil were further convicted under Section 148, I.P.C. and sentenced to R.I. for 2 years each while Molu and Bhopal were also further convicted under Section 147, I.P.C. and sentenced to R. I. for one year each. The sentences were directed to run concurrently. On presentation of the appeal, the appellants were not released on bail and the matter was heard by this High Court and a judgment of confirmation was recorded on 4th February, 1997 by a Division Bench of this High Court. 3. THE appellants, thereafter, preferred Criminal Appeal No. 1233 of 1997 before the Supreme Court and by its order dated 15.12.1997, the Supreme Court disposed of the appeal with an observation that the High Court was required to discuss the entire material evidence afresh as it was a court of appeal. THE Supreme Court had observed that the High Court failed to do so and thereby a grave injustice had been caused. THE judgment of confirmation recorded by the High Court was set aside by the Supreme Court and the matter was remanded to the High Court for re-hearing of the appeal in accordance with law in the light of the observations made therein. THE appellants were still in custody and as such the Supreme Court required that the matter should be heard expeditiously preferably within a period of 3 months from the date of communication of the order. 4. IT appears from the records that the matter was placed before Hon'ble single Judge on 13.1.1998 and again on 16.3.1998 wherein orders were recorded to place the matter before the Division Bench as the appeal was cognizable by a Division Bench. IT was placed before the Division Bench on 20.8.1998 but on that date, learned counsel was not ready to argue. IT was placed before the Division Bench on 20.8.1998 but on that date, learned counsel was not ready to argue. The Division Bench also held that when one of the judges who recorded the earlier judgment was still available, it should be placed before a Division Bench in which that Hon'ble Judge was a member. Accordingly, the matter was placed before the Hon'ble Chief Justice and it was directed that the matter will be heard before the bench of Hon. Giridhar Malviya and Hon. R. N. Ray, JJ. (both of them have now retired), on 29.4.1998, the matter came up before the nominated Bench. Hon. Ray, J. was on the verge of retirement. There had been a prayer for adjournment made on behalf of the appellants and as such the matter was directed to be put up before the appropriate bench. Finally, the matter came up before the Hon'ble Chief Justice on the question of fresh nomination, if necessary, and by an order dated 15.3.1999, it was directed to be placed before the Bench dealing with criminal appeals. The matter came up before a Division Bench on 6.5.1999 and Hon'ble Kamal Kishore, J. had been a member of that Bench. His lordship was the trial Judge in the instant case and as such a fresh nomination was made by the Hon'ble Chief Justice on 25.5.1999 and thereafter the matter came up for hearing again, but in the absence of lawyers representing the appellants, the Court appointed an amicus curiae. But before he could take up, a fresh appearance was made by learned counsel appointed by the appellants and the matter was heard finally on 18th and 19th August, 1999. It is the prosecution case that while Sohan Lal and Jokhi Ram (both deceased) and Nand Lal were ploughing their land, these 5 appellants case armed with tabal, lathi, ballam and started assaulting them with an intention to kill them. The hue and cry attracted Jokhi Ram and others named in the F.I.R. and on their intervention, the accused persons left the injured persons and fled away towards north. The F.I.R. indicated as to who had carried what weapon. 5. THE deceased Sohan Lal and Pothi Ram were two brothers, injured Nand Lal is the son of deceased Sohan Lal while the complainant Jokhi Ram is the son of deceased Pothi Ram. The F.I.R. indicated as to who had carried what weapon. 5. THE deceased Sohan Lal and Pothi Ram were two brothers, injured Nand Lal is the son of deceased Sohan Lal while the complainant Jokhi Ram is the son of deceased Pothi Ram. Jokhi Ram lodged the report at Meerganj Police Station at about 8.30 a.m. while the incident had taken place at 7.00 a.m. on 8.10.1981. F.I.R. was registered in Case Crime No. 136 of 1999 under Sections 147, 148, 323, 324 and 307, I.P.C. which was subsequently converted to one under Section 302, I.P.C. as Pothi Ram and Sohan Lal died subsequently. Death of Sohan Lal occurred at the Police Station after the report, while Pothi Ram and Nand Lal were shifted to the hospital where Pothi Ram succumbed to his injuries. 6. POST-mortem examination on the dead body of Sohan Lal was conducted on 9.10.1981 at 12.05 p.m. at Bareilly by Dr. K. S. Tiwari. Pothi Ram and Nand Lal were initially examined by a doctor in the District Hospital at Bareilly on 8.10.1981 itself at 11.45 a.m. and 12.00 hours. They were taken to the hospital by Constable 1224, Ram Chandra Lal of Meerganj Police Station. After the death of Pothi Ram, post-mortem examination was conducted on his dead body on 10th October, 1981 at about 3.00 p.m. by Dr. P. K. Bass. The initial examination of injured Pothi Ram and Nand Lal was taken up by Dr. J. N. Bhargawa. Sri Virendra Singh, S. O., took up investigation and at that point of time, the injured were alive, although Soahn Lal was in a critical condition and he could not speak and died at about 9.45 a.m., Pothi Ram, however, could make a statement and his statement was recorded under Section 161, Cr. P.C. The statement of Nand Lal was also taken. The spot was visited. Necessary seizures were made and search was made for the accused persons. The dead bodies were sent for post-mortem examination. On a subsequent date, all the accused persons had surrendered in Court and their statements were recorded by the Investigating Officer. Later on, a charge-sheet was submitted on the basis of materials collected. The charge that was framed in the Court below spoke of formation of unlawful assembly with the common object of committing murder of Sohan Lal, Pothi Ram and Nand Lal. Later on, a charge-sheet was submitted on the basis of materials collected. The charge that was framed in the Court below spoke of formation of unlawful assembly with the common object of committing murder of Sohan Lal, Pothi Ram and Nand Lal. Three of the persons were armed with deadly weapons and as such they were charged under Section 148, I.P.C. and two persons had only lathis with them and they were charged under Section 147, I.P.C. All were charged for having attempted murder of Nand Lal in prosecution of their common object, under Section 307/149, I.P.C. All were again charged for having committed murder of Sohan Lal and Pothi Ram in prosecution of their common object under Section 302/149, I.P.C. They pleaded not guilty when the charge was read out and explained to them. 7. THE prosecution had examined 11 witnesses to prove its case. Three of them, namely, Dr. P. K. Bass (P.W. 5), Dr. K. S. Tiwari (P.W. 6) and Dr. J. N. Bhargawa (P.W. 9) were the doctors who had treated the injured and conducted the post-mortem examinations. Two more witnesses Jokhi Ram (P.W. 1) and Nand Lal (P.W. 2) were witnesses to the occurrence. P.W. 11, Virendra Singh was the Investigating Officer. THE evidence of the other witnesses were of formal nature. P.W. 3, Lal Singh is on the point of recording the information of death of Pothi Ram and sending his dead body for post-mortem examination. P.W. 4, Amar Singh is on the point of death of Sohan Lal after the lodging of the F.I.R. and on the point of taking his dead body for post-mortem examination. P.W. 7, Narsingh Pal was again a Constable at Meerganj Police Station at the relevant time and he had drawn up the chick report on the report of Jokhi Ram and he proved the F.I.R. and the chick report. He was cross-examined to elaborate the defence point of ante-timing the F.I.R. P.W. 8, S. I. R. P. Tiwari is on the point of inquest of the dead body of Sohan Lal, P.W. 10, Ram Chandra Lal is again a formal witness as he had taken the injured person to the P. H. C. for their medical treatment and only there Sohan Lal was declared dead while Pothi Ram and Nand Lal were given medical aid. There was no cross-examination of these witnesses. 8. There was no cross-examination of these witnesses. 8. WE shall, thus, be concerned with the medical evidence as given by the three doctors, with the ocular account as given by P.Ws. 1 and 2 and with the statement of the Investigating Officer on oath as to what he had found and as to what were stated or not stated before him which should be relevant for finding contradictions and omissions, if any. It is relevant to indicate in this paragraph itself that the counsel for the appellant based his argument on several points. It was contended that there was no reason to put reliance on P.Ws. 1 and 2 who were admittedly interested witnesses being the sons of Pothi Ram and Sohan Lal. It was contended further that admittedly independent witnesses were there but none had been examined, out of the independent witnesses named in the F.I.R. (namely Pati Ram, son of Kanhai, Nazir and Nand). Another leg of his argument was that the Section 161, Cr. P.C. statement made by Pothi Ram before the Investigating Officer could not have been read as dying declaration as the Investigating Officer did not follow the requirements of Rule 115 of the U. P. Police Regulations. Moreover, the evidence was not convincing if Pothi Ram could have made a statement even after receiving the injuries in question. In another angle of his argument it was stated that the injuries rule out the use of sharp weapons for causing even any grievous injury far less of causing death and death was due to head injuries caused by lathis alone and as such it could not be presumed that the 3 persons allegedly holding sharp weapons had shared the common object of killing the two deceased. They could not, therefore, be liable to be punished under Section 307 or 302, I.P.C. with the help of Section 149, I.P.C. It was argued that the persons who may be proved to have caused death/injury might be liable for the substantive offence but not all with the help of Section 149, I.P.C. We may take up the medical evidence first along with other statement of the witnesses on the question as to when Sohan Lal and Pothi Ram had died. The F.I.R. makes it clear that after the incident, Pothi Ram, Sohan Lal and Nand Lal lay injured and they were taken to the Police Station and they must have been alive when this F.I.R. was lodged. P.W. 10, Ram Chandra Lal, had taken Pothi Ram, Sohan Lal and Nand Lal to the P. H. C., Meerganj for medical treatment, immediately after the registration of the F.I.R. This witness was not at all cross-examined and there is no reason to disbelieve this witness on the limited question if all the 3 injured were alive at the time of lodging the report. The compounder had declared Sohan Lal dead at the time he was produced at P. H. C. This witness Ram Chandra Lal went back to the Police Station and got the death of Sohan Lal recorded in the police records. P.Ws. 1 and 2 also speak of Sohan Lal and Pothi Ram being alive at the time of lodging the report. The learned counsel, in view of this material evidence and in view of further fact that the doctor had examined Pothi Ram on his first production at the P. H. C. could not be allowed to rely on a bare opinion of the doctor noted in this post-mortem report that death of Pothi Ram took place only half a day prior to the post-mortem examination. In fact, Pothi Ram died in the hospital on the next day of incident and, thus, the time of death may not be equated with the time of assault. For Sohan Lal post-mortem examination was done on 9.10.1981 at 12.05 p.m. and death according to the doctor, had been caused about a day prior to such examination fitting in with the time 9.45 a.m. when Sohan Lal breathed his last while being taken to the hospital. When the F.I.R. was lodged taking the 3 injured along with the informant and still then it was made within one and half hours of the incident, it may not be stated that the F.I.R. was ante-timed. Dr. J. N. Bhargawa (P.W. 9) was the medical officer in the District Hospital, Bareilly, on 8.10.1981. His evidence discloses that he had examined Pothi Ram, son of Net Ram (now deceased) at 11.45 a.m. on being produced and identified by Constable Ram Chandra Lal of Meerganj Police Station. Dr. J. N. Bhargawa (P.W. 9) was the medical officer in the District Hospital, Bareilly, on 8.10.1981. His evidence discloses that he had examined Pothi Ram, son of Net Ram (now deceased) at 11.45 a.m. on being produced and identified by Constable Ram Chandra Lal of Meerganj Police Station. He had also examined on that very day at 12.00 noon one Nand Lal and he had identified this Nand Lal in Court. The injuries on Pothi Ram were five in number as follows : 1. Lacerated wounds on the Mastoid region. 2. Lacerated wounds on the head just above the left ear. 3. Lacerated wounds on the right side of the head just above right ear. Both these head injuries were scalp deep. 4. Four injuries were there on the back of the right upper arm and X-ray was advised. 5. The only other injury found on Pothi Ram was lacerated wound again on outer aspect of the right upper arm with a fracture of the bone. 9. THE injuries were described as fresh and it is common knowledge that "fresh" would mean "caused within 6 hours". This tallies with the alleged time of occurrence and again rules out possibility of ante-timing the F.I.R. THE injuries were caused by blunt object. 10. THE injuries on Nand Lal, also examined by this doctor, were a lacerated wound on the left side of head 12 cms. above the right ear and another lacerated wound on the outer aspect of right middle finger. Both the injuries were fresh and were simple in nature caused by blunt object. THE evidence of the doctor further indicates that Pothi Ram was admitted in the hospital after examination of his injuries and his bed head tickets were also brought by the doctor. In addition to the notes made in the bed head ticket by Dr. Bhargawa, two more doctors made entries therein, they were Dr. Sharma and Dr. Gangwar. THE witness proved their writings showing that Pothi Ram died on 10.10.1981 at 5.35 a.m. THE only cross-examination that was made to this witness relate to availability of Dr. Sharma and Dr. Gangwar. THE doctor told in clear terms that the injuries to these persons were not likely to have been caused at 5.00 a.m. but was not impossible. Gangwar. THE witness proved their writings showing that Pothi Ram died on 10.10.1981 at 5.35 a.m. THE only cross-examination that was made to this witness relate to availability of Dr. Sharma and Dr. Gangwar. THE doctor told in clear terms that the injuries to these persons were not likely to have been caused at 5.00 a.m. but was not impossible. THE learned counsel tried to bank upon this statement to say that in fact the injuries were caused by unknown persons while it was still dark and he wanted to rely on the post-mortem report of Sohan Lal to say that faeces was present in the small intestine to suggest that ordinary evacuation was not made and so the story of incident at 7.00 a.m. was doubtful. THE presence of faeces in the intestine depends on personal habits and there may not be any general rule that a man must have evacuated himself before going to the fields for cultivation. P.W. 5 Dr. P. K. Bass had conducted post-mortem examination on the dead body of Pothi Ram on 10.10.1981 and his evidence indicates that the patient had died in the hospital on that very day at 5.30 a.m. He proved his post-mortem report and indicated that the death was caused due to the head injuries. According to him also the injuries on Pothi Ram might have been caused by lathi and the head injuries were sufficient in the ordinary course to cause death. The injuries in the post-mortem report tally with those found by P.W. 9 Dr. Bhargawa. On examination the doctor had found depressed fracture of the left temporal bone and congested haematoma was there on the membrane of the brain. P.W. 5 was not cross-examined at all and not only for this reason but also for the consistency of the findings of the two doctors regarding the injuries of Pothi Ram, we are prompted to accept the statement of the two doctors. 11. P.W. 6 Dr. K. S. Tiwari had conducted post-mortem examination on the dead body of Sohan Lal at 12.05 p.m. The dead body was brought to him by constable Amar Singh and Hari Shankar of Meerganj Police Station and they had identified it before him. It was the dead body of a male aged 40 years and death had occurred a day prior to the examination. He proved his post-mortem report. It was the dead body of a male aged 40 years and death had occurred a day prior to the examination. He proved his post-mortem report. There were in all 13 injuries on his body. Three of these were incised wounds and one was an incised wound 3 cm. x 1.5 cm. x bone deep in the right side scalp 7 cms. behind right ear transverse. Another incised wound 2 cm. x 0.5 cm. x muscle deep was there on the back of right forearm 1 cm. below the elbow and a chisa 1 cm. x 0.5 cm. on the muscle of the forearm in the lateral aspect of the right forearm 2 cm. above wrist. The other injuries were lacerations and abrasions and contusions. One of them of 1 cm. was behind the first mentioned incised wound on the head. Another laceration was there on the right side of the scalp 9 cm. above the right ear. The abrasions were on the right eye brow, on the back of ankle and shoulder while the contusions were on the leg, shoulder and scapula, sacrum. Internal examination indicated that the right parietal bone had been fractured at 2 places, occipital bone was also fractured. The brain membrane was torn at 3 places and there was extradural and extensive subdural haematoma present on right parietal region. The brain was lacerated in the right occipital region. Death was due to shock and haemorrhage due to ante-mortem injuries. The doctor opined in his statement before the trial Judge that the injuries might have been caused in the morning of 8.10.1981 at about 9.00 a.m. The sharp injuries were possible from sharp cutting weapons while the other injuries could have been caused by blunt objects or due to rubbing against blunt substances. The injuries were sufficient in the ordinary course to cause death. Lathi, ballam and tabal could have been the weapons of assault. Very categorically this witness had stated that the injury No. 6, i.e., the incised would muscle deep on the forearm, was possible to have been caused by a ballam. His cross-examination indicates that the papers were placed before him at 10.00 a.m. The time of death according to the doctor could have been 6 hours on either side from the time he had indicated. His cross-examination indicates that the papers were placed before him at 10.00 a.m. The time of death according to the doctor could have been 6 hours on either side from the time he had indicated. The post-mortem examination was done at 12.05 p.m. on 9.10.1981 and he had opined that death might have taken place a day prior to the examination. Even if we go by his admission that there could be a difference of 6 hours, we could stretch back to 6.00 a.m. of 8.10.1981 and never beyond it. He had admitted that death might have been caused at 4 or 5 a.m. and the assaults were made at the same time and two persons were examined around 12.00 noon on 8.10.1981 and the doctor found the injuries freshly caused. The bare possibility that the injuries could have been caused at 4.00 or 5.00 a.m. may not definitely lead us to an inference that it must have been caused at the hour. Moreover, even, 5.00 a.m. in an October day cannot be described as any part of the night. His cross-examination further indicated that he did not see a Takula earlier to his deposition in court. According to him, it was not necessary that a heavy cutting object must cut the bone of the affected portion. There is no cross-examination on his definite claim that injury No. 6 might have been caused by ballam. 12. AS to what is a Tawal, every body has a fair idea that it is a sharp cutting weapon. ballam is also known as a sharp pointed weapon. AS to what is takula, we have got some evidence from P.W. 1 in paragraph 7 of this deposition. This witness had stated that Babu Ram held a ballam, Gokil had a takula while Brij Lal had tawal and Mulu and Bhopal had lathis with them. This witness explained that takula is a sharp weapon resembling a small axe. The medical evidence as discussed above clearly suggests use of lathi, ballam, tawal and takula which have been the weapons allegedly held by the accused persons. There is, thus, no inconsistency between the ocular evidence and medical evidence on the point of use of these weapons. We are, however, to see if the ocular evidence is reliable or is to be discarded wholly on the ground of interestedness and on further ground of absence of independent witnesses. There is, thus, no inconsistency between the ocular evidence and medical evidence on the point of use of these weapons. We are, however, to see if the ocular evidence is reliable or is to be discarded wholly on the ground of interestedness and on further ground of absence of independent witnesses. For this we shall take up the testimony of P.Ws. 1 and 2 namely Jokhi Ram and Nand Lal. It may be mentioned here itself that Jokhi Ram is the complainant of the F.I.R. which was lodged almost immediately at a police station 3 miles off the village. We may further indicate that Nand Lal is one of the persons injured and he had been taken to the police station when the F.I.R. was lodged and thereafter he was examined at 12.00 noon on that very day and the injuries were found to be fresh. 13. P.W. 1 is the son of deceased Pothi Ram and nephew of deceased Sohan Lal. He narrated on oath the background of enmity between his family and family of the accused persons who are brothers amongst themselves. Their houses are separated by a common wall. His evidence discloses that Pati Ram and Nand Ram (both named in the F.I.R. as witnesses) have taken the side of the accused persons and declined to depose in the case. This witness stated in paragraph 7 of his deposition about a long time enmity between the families. According to him, the incident took place at about 7.00 a.m. when Pothi Ram, Sohan Lal and Nand Lal had gone to their field to plough the land. They were engaged in ploughing when the 5 accused persons came to the spot. He had described who was holding which weapons. He had described that all the 5 accused persons attacked Pothi Ram, Sohan Lal and Nand Lal and assaulted them. When other people assembled including the complainant and accosted them, the accused persons fled away. The injured were taken care of by these persons and they were taken to the police station on horse-carts. A report was made orally which was reduced into writings. The complainant signed his report. The report was proved by him. Thereafter the injured persons were sent to the hospital for medical examination. Only Pothi Ram and Nand Lal could be given medical help but Sohan Lal had died as a result of his injuries. A report was made orally which was reduced into writings. The complainant signed his report. The report was proved by him. Thereafter the injured persons were sent to the hospital for medical examination. Only Pothi Ram and Nand Lal could be given medical help but Sohan Lal had died as a result of his injuries. Nand Lal and Pothi Ram were referred to a Bareilly Hospital where Pothi Ram died on the third day of the incident. The witness identified the wearing apparels of Sohan Lal which were produced before him. 14. THE cross-examination of P.W. 1 indicated, how this witness was disbelieved in a case against one Bihari. Questions were put to him regarding enmity of Sohan Lal with other persons. There was denial on the part of this witness that there had been any proceeding for keeping peace under Section 107 between the two parties. His evidence disclosed that accused Brij Lal had a litigation with his own brother Pati Ram for which Pothi Ram and Sohan Lal had taken the side of Pati Ram. Nand Ram named in the F.I.R. was also accused in that case but Nand Ram had declined to be a witness in Court in this case. He was cross-examined and had stated that he did not indicate in his report about the assault by lathi but the very report clearly suggests that the accused had come with tabal, lathi, etc. and had assaulted Sohan Lal, Nand Lal and Pothi Ram. THE F.I.R. may not be expected to give every detail of the incident and the fact that lathi was used in the assault is clearly suggested in the F.I.R. On the point of incident, the cross-examination of this witness is in paragraph 17 of his deposition. He has stated that the incident had taken place in the cultivable fields when the uncle, father and cousin of the witness had been ploughing their land. It was one and half hours after sun-rise, these persons have gone to the field without taking any meal and this cross-examination finds support from the post-mortem examination of Sohan Lal that the stomach was empty. He saw the incident for the first time from a place north of the concerned field at a distance of 35 yards. At that point of time, his father, uncle and cousin had fallen down and all the 5 accused persons were assaulting them. He saw the incident for the first time from a place north of the concerned field at a distance of 35 yards. At that point of time, his father, uncle and cousin had fallen down and all the 5 accused persons were assaulting them. He had seen the accused persons coming from the side of the village and he followed them and by that time he heard hue and cry. He had seen weapons in the hands of the accused persons but had not doubted that these would be used on his father and others. At the time of incident, the injured were lying in the field itself near each other. THE first three persons were assaulting Sohan Lal and other two were assaulting Pothi Ram and Nand Lal. Subsequently, these two also joined in assaulting Sohan Lal but the first three persons did not assault Nand Lal and Pothi Ram. Pothi Ram and Nand Lal were assaulted by Bhopal and Mool Chand alias Mulu initially. THE witness had stopped at a distance of 20 Kms. from the place of assault. Only a part of the field had been ploughed up by that time. He was there at the spot for half hour. Nand Ram who declined to depose as a witness had gone with him to the Police Station. They had left the plough on the field while going to the police station. This witness had led the police to the spot and on his identification the sketch map was prepared and necessary seizures were made. P.W. 2 Nand Lal is one of the persons engaged in ploughing along with the deceased where the incident took place. According to him, he was with his father Sohan Lal and uncle Pothi Ram on their land in ploughing. The accused persons reached there with arms. He described the arms in the hands of each of them. They started assaulting these 3 persons. They raised a hue and cry. Mulu and Bhopal assaulted him with lathi. Pothi Ram was also assaulted by Mulu and Bhopal. Sohan Lal was also assaulted by Braj Lal, Babu, Ramanand, Gokil and also by Mulu and Bhopal. The incident was witnessed by Jokhi Ram, Najira, Pati Ram etc. who came on hearing the hue and cry, the accused persons fled away. Mulu and Bhopal assaulted him with lathi. Pothi Ram was also assaulted by Mulu and Bhopal. Sohan Lal was also assaulted by Braj Lal, Babu, Ramanand, Gokil and also by Mulu and Bhopal. The incident was witnessed by Jokhi Ram, Najira, Pati Ram etc. who came on hearing the hue and cry, the accused persons fled away. All the 3 persons were injured due to the assault, blood had fallen on the ground and had stained their clothes as well. This witness and others were taken to police station by Jokhi Ram and a report was lodged by him in Meerganj police station wherefrom the injured were taken to the hospital. His cross-examination indicates that he had sown paddy in another field 2 months ago. He claimed that IR 24 type of paddy was sown. The ploughs were moved 10 to 12 rounds when the accused persons had come. The plough was held by Sohan Lal while Pothi Ram and Nand Lal were weeding the grass. He had seen the accused persons before the assault had taken place. They were 4 steps away in another field. They did not ask any question and assaulted abruptly. The victims were 2 to 4 steps away from each when assault took place. This witness fell down on receipt of the first two lathi blows. His father and uncle were also assaulted. He shouted while lying on the ground and he could not see which accused assaulted how many times. A hue and cry was raised which attracted Jokhi Ram, Nazeer and Pati Ram Nai and others and then the accused persons ran away. He did not say before the police that Mulu and Bhopal assaulted him with lathi and these two persons assaulted Pothi Ram and others or that Babu Ram, Gokil and Brij Lal had first assaulted Sohan and then Mulu and Bhopal assaulted him. He gave an explanation that the Investigating Officer did not ask any individual account and as such he did not narrate this story. It is very much there that 5 persons had different weapons and the injuries were received by this witness and Pothi Ram by lathis while those of Sohan Lal were possible by lathi, ballam and takula. A question was asked to him as to why he did not get a report written when he was assaulted and when he seen the whole incident. A question was asked to him as to why he did not get a report written when he was assaulted and when he seen the whole incident. He had answered that he had suffered injuries and his brother (cousin) had made the report and so he did not lodge any further report. 15. WHEN we turn to the statement of P.W. 11, Virendra Singh, we find that he had reached the spot with Jokhi Ram and made a spot inspection and had made a sketch map. He had seized blood from the spot and thus fixed the place of occurrence. 16. IT is true that both Jokhi Ram and Nand Lal are inter-se related as also related to the two deceased but that alone may not be a ground to reject their testimony as there is no inherent inconsistency in their statements. Witness Jokhi Ram was the maker of the F.I.R. Witness Nand Lal is none but an injured victim and his presence at the spot is not to be easily brushed aside. On the question of non-examination of independent witnesses, it can only be stated that both Pothi Ram Nai or Nand Ram had declined to depose and the level of groupism in our villages may suggest that people would rarely come forward to speak in a matter in which they are not personally involved or interested. These witnesses could have spoken about the running away of the accused persons or even a part of the incident but when an injured had himself come and when a prompt report and prompt medical examination were there, we have no reason to disbelieve the version of the two eye-witnesses merely on the ground of their earlier enmity. They were very much present at the spot and implicit faith must, therefore, be given on the version of these two eye-witnesses P.Ws. 1 and 2. There is yet another type of evidence brought on record and that was the alleged dying declaration of Pothi Ram. This statement was recorded under Section 161, Cr. P.C. but the necessary procedure indicated in the Police Regulation was not followed. No independent witness has signed the statement of Pothi Ram as a token of attestation. Had it been the sole testimony, there could have been a question if that could be relied upon for conviction, but here we have definite testimony of P.Ws. P.C. but the necessary procedure indicated in the Police Regulation was not followed. No independent witness has signed the statement of Pothi Ram as a token of attestation. Had it been the sole testimony, there could have been a question if that could be relied upon for conviction, but here we have definite testimony of P.Ws. 1 and 2 about the participation of the accused persons which is corroborated by medical evidence and a prompt F.I.R. as also by presence of blood on the spot as found by the Investigating Officer. The so-called dying declaration may at least be used to support the otherwise credible prosecution evidence about the incident. 17. AN attempt was made by the learned counsel to explain that Section 149, Cr. P.C. required sharing of the common object by every one of the unlawful assembly. The evidence discloses that they had come together with various arms. Evidence is there that all of them had used their arms and even the ballam was used. The lathis blows were given at least on Pothi Ram to such a degree that he had suffered head injury causing his death. When participation of every accused has been proved with a case of using their respective arms and when the result was death of two persons, it may not be stated that they had not shared the common object in prosecution whereof they had caused the death of Pothi Ram and Sohan Lal. The conviction under Section 302/149, therefore, must be sustained. The conviction under Sections 148 and 147 of the concerned accused persons must also be sustained as they had been in the unlawful assembly with the weapons held by them as detailed in evidence. So far as the conviction under Section 307/149, I.P.C. is concerned, we have to examine the injuries of Nand Lal again. The charge on this score alleges that there was a common object to kill Nand Lal and in prosecution thereof the injuries were caused to Nand Lal. Injuries are lacerated as indicated earlier and also a head injury caused by lathi and an injury on the right middle finger also caused by lathi. The charge on this score alleges that there was a common object to kill Nand Lal and in prosecution thereof the injuries were caused to Nand Lal. Injuries are lacerated as indicated earlier and also a head injury caused by lathi and an injury on the right middle finger also caused by lathi. The intention of the accused person was clear as the assault was attempted and when all have taken part in assaulting the 3 persons present in the field and the common object is apparent, the conviction under Section 307/149, I.P.C. must also be sustained. The sentences upon these convictions are according to law and may not be interfered with. 18. IN the result, the appeal fails and is dismissed. The accused persons ought to serve out their sentences according to law.