Judgment R.N.Prasad and M.L.Visa JJ. 1. All the three appeals arise out of the judgment and order of conviction and sentences dated 7.1.1986 passed by 2nd Addl. Sessions Judge, Arrah in ST. No. 82/79. They have been heard together and are being disposed of by this judgment. 2. Appellants in Cr.A. No. 26/86 have been convicted for the offence under Section 302/149 of the Indian Penal Code and they have been sentenced to undergo imprisonment for life. Appellants Parsuram Yadav, Satya Narain Yadav, Jawahar Yadav and Sheo Kumar Yadav have further been convicted for the offence under Section 147 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for six months. The rest of the appellants have further been convicted for the offence under Section 148 of Indian Penal Code and have been sentenced to undergo rigorous imprisonment for one year. Appellants in Cr.A. No. 32/86 have been convicted for the offence under Section 302/149 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. Appellant Dhana Yadav has further been convicted for the offence under Section 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year and also under Section 324 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for two years. Appellant Kapil Yadav has further been convicted for the offence under Section 147 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months Appellant in Cr.A. No. 95/86 has been convicted for the offence under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year. 3. He has further been convicted for the offence under Section 148 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case, as has been stated in the First Information Report, is that one Kailash Yadav with 11 others along with dead body of his two brothers, namely, Achhay Lal Yadav and Ram Bilas Yadav went to the Police Station on 17.6.1978 and gave his statement before the Police at about 10.45 p.m. that the appellant Kanhaiya Yadav armed with licensed gun, appellant Dhana Yadav with country-made pistol, appellants Parsuram Yadav, Jawahar Yadav, Sheo Kumar Yadav and Kapil Yadav with lathi and the rest with Bhala came north of the temple of his village. Appellant Kanhaiya Yadav fired two rounds from his licensed gun causing death of Ram Bilas Yadav and Achhay Lal Yadav. Appellant Dhana Yadav @ Dhanraj Yadav fired his pistol causing injury to Jay Ahir, Daimanti Devi who will say about the detail of the incident. In. the same occurrence, Sheo Dayal and Srikant Ahir were also injured who will say about it. The motive of the occurrence was demand of loan money from Jana Ahir. Dhanraj Ahir @ Dhana Ahir was asking Jana Ahir not to return money on which there was altercation between tnem. Dhanraj also sustained injury in the scuffle. 4. From the aforesaid statement of Kailash Yadav, First Information Report, Ext. 4, was registered. Injured Jang Ahir and Daymanti Devi were sent to Shahpur hospital. Inquest report of deceased Ram Bilas Yadav, Ext. 5 and Achhay Lal Yadav, Ext. 5/4 was prepared. Thereafter, the Investigating Officer proceeded to the place of occurrence and inspected, the place of occurrence. He prepared sketch map of the place of occurrence, Ext. 7, and also seized blood from the place of occurrence and prepared seizure list, Ext. 8, recorded the statement of witnesses and after completion of investigation submitted charge-sheet. On receipt of charge-sheet in the Court, the case was committed to the Court of Session for trial. 5. The Trial Court recorded the statement of prosecution witnesses and also one defence witness. The Trial Court after recording the statement of accused persons under Section 313 of the Code of Criminal Procedure convicted the appellants and sentenced them as stated above. 6. 5. The Trial Court recorded the statement of prosecution witnesses and also one defence witness. The Trial Court after recording the statement of accused persons under Section 313 of the Code of Criminal Procedure convicted the appellants and sentenced them as stated above. 6. The defence of the appellants was that they were innocent and had falsely been implicated in the case. Their specific defence was that no occurrence took place in the manner as alleged by the prosecution. Kanhaiya Yadav, one of the appellants, lodged a case at 9.30 p.m. on 17.6.1978 bearing Shahpur P.S. Case No. 4 dated 17.6.1978 against the prosecution party giving details of the manner of occurrence. 7. The prosecution in support of its case examined 17 witnesses, out of whom PWs 1, 3, 7 are injured and eyewitnesses to the occurrence. PW 2 is the informant and eye-witness to the occurrence. PWs 6, 8, 9 & 12 are also eye-witnesses to the occurrence. PW 4 is hearsay witness. PW 5 is witness to the First Information Report and the inquest report. PW 10 is Doctor who held post-mortem over the dead bodies of Achhay Lal Yadav and Ram Bilas Yadav and prepared post-mortem reports, Ext, 2 & 2/A, respectively. PW 11 is also a Doctor who examined the injured PWs 1, 3 & 7. PW 14 is the Investigating Officer. PWs 15 S: 16 have been tendered. PW 17 is incharge of the Malkhana who proved the material Exts. I to VII. 8. The place of occurrence, time of occurrence, death of two persons, namely, Achhay Lal Yadav and Ram Bilas Yadav and also injuries to the injured persons are not in dispute. The dispute is with regard to manner of occurrence. According to the defence, no occurrence took place in the manner as alleged by the prosecution. Definite case of the appellants was that Kanhaiya Yadav lodged a case bearing Shahpur P.S. Case No. 4 dated 17.6.1978 at about 9.30 p.m. where in 17 persons of the prosecution party including the witnesses had been made accused for the offence under Sections 147, 148, 323, 379 and 511 of the Indian Penal Code. Appellant Kanhaiya Yadav, Gul-jar Yadav and Kashi Nath Yadav were in Army Service. They had come on leave. They had gone for hunting. Appellant Kanhaiya Yadav, Gul-jar Yadav and Kashi Nath Yadav were in Army Service. They had come on leave. They had gone for hunting. While the informant was returning at about 6.30 p.m., he saw the persons named in the First Information Report with Bhala and lathi who were assaulting his father Dhanraj @ Dhana Yadav. They were also taking away their cattle and as such he fired two rounds which might have caused injuries to some persons. 9. Now, the question for determination is whether the occurrence took place in the manner as alleged by the prosecution. The prosecution in support of its case examined 8 eye- witnesses out of whom three are injured persons. Therefore, presence of injured witnesses at the place of occurrence cannot be doubted. The injured witnesses, namely, PW 1, 3 & 7 have categorically stated about the manner of occurrence. PW 1 stated that he was at the door of Jana Ahir. PW 3 stated that he was near a Neem trees. Deceased Ram Bilas Yadav was demanding loan money from Jana Ahir. Appellant Dhana Yadav Kapil Yadav and Kanhaiya Yadav came there. Appellant Dhana Yadav asked not to return the money on which Ram Bilas Yadav said Dhana Yadav a dishonest person. Thereafter, there was altercation between them. Kapil Yadav asked to bring gun and kill him. Appellant Kanhaiya Yadav and Dhana Yadav went to their house and Kanhaiya came with licensed single barrel gun and Dhana Yadav with country-made pistol. Kanhaiya Yadav fired which his Ram Bilas Yadav and he fell down and died. Jang Ahir, PW 3, Kamli Devi, PW 7, Daymanti Devi and Domni Devi tried to save on which Dhana Yadav fired causing injury to them. Kanhaiya Yadav, thereafter, again fixed causing death of Achhay LalYadav The other appellants were armed with lathi and Bhala. PW 1 in cross-examination stated that he could not say whether the remaining accused came on their own or on call. The accused persons did not come together. After firing, there was a commotion and the people started running away. Injured Daymanti Devi while running away fell down in the courtyard of Alga. Injured Jang Bahadur also fell down on the courtyard. His statement was recorded on the next day in the morning. The accused persons did not come together. After firing, there was a commotion and the people started running away. Injured Daymanti Devi while running away fell down in the courtyard of Alga. Injured Jang Bahadur also fell down on the courtyard. His statement was recorded on the next day in the morning. He denied the suggestion that he and others assaulted Dhana Yadav and were taking away his cattle and also false implication of the accused persons. PW 3 in cross-examination stated about the relationship of the accused persons and also testified that Kanhaiya fired causing death of Achhay Lal Yadav and Ram Bilas Yadav and while they were trying to save deceased Ram Bilas Yadav injury was caused to the injured persons. He admitted that accused Kanhaiya had also lodged a case against the prosecution party. He denied the suggestion that no occurrence took place in the manner as alleged. PW 7 is also injured witness. She stated in her evidence that she was at her house. She came on hearing hulla at the place of occurrence and saw Kanhaiya Yadav with gun and Dhana Yadav with pistol and remaining with lathi and bhala. Kanhaiya fired which hit Ram Bilas Yadav who fell down. She caught Ram Bilas Yadav on which Dhana Yadav fired causing injury to her, Daymanti, Domni and Jang Bahadur. Kanhaiya, thereafter, fired causing death of Achhay Lal. In cross-examination, she stated that she was knowing that Ram Bilas Yadav had gone to Jana Ahir for demanding loan money. Her husband and Shiv Dayal had also gone there. On hulla when she went, she saw that Kanhaiya fired at Ram Bilas Yadav. She stated that she had gone to the police Station next day in the morning and her statement was recorded there. It appears that she stood the test of cross-examination. 10. PW 2 is the informant. He was near the Neem tree which is near the door of Jana Ahir. Deceased Ram Bilas Yadav was demanding loan money from Jana Ahir. Accused Kanhaiya, Kapil and Dhana came there. Dhana asked Jana not to return money on which there was altercation. Kapil asked to bring gun on which Kanhaiya brought gun and Dhana country-made pistol. Other accused persons also came with lathi and bhala. Kanhaiya soon after coming fired at Ram Bilas Yadav who fell down. Accused Kanhaiya, Kapil and Dhana came there. Dhana asked Jana not to return money on which there was altercation. Kapil asked to bring gun on which Kanhaiya brought gun and Dhana country-made pistol. Other accused persons also came with lathi and bhala. Kanhaiya soon after coming fired at Ram Bilas Yadav who fell down. Jang Ahir, Daymanti, Domni and Kamla tried to save him on which Dhana fired from the pistol which caused injury to them. Achhay Lal was coming on which Kanhaiya fired causing his death. Sheo Dayal and Srikant had also received injury in the occurrence. He and others took the deceased and the injured Jang Behadur and Daymanti Devi to Karnami out post but the officer was not there. Thereafter, he along with injured and the deceased came to Shahpur Police Station where his fardbeyan was recorded which was read over to him and he put his signature. In croos-examination, he admitted the relationship of prosecution witnesses. He stated in his evidence that Kanhaiya, Dhana came first and remaining accused came 4-5 minutes thereafter. He stated that temple is near the house of Jana Ahir. Kanhaiya fired from a distance of 10-12 steps. Many persons came at the place of occurrence. The motive of the occurrance was demand of money from Jana and saying Dhana dishonest. He admitted in his evidence that Dhana also sustained injury in the occurrence. The land of Fuliya Devi, D.W. 1, is there. The wire-fencing of her land was not demolished nor there was any Nad, etc. on her land for tying cattle. He admitted the case instituted by accused Dhana Yadav against the prosecution party. The statement of the witness was also drawn to the statement made before the police. He denied the suggestion that they were demolishing wire-fencing, taking away cattle forcibly and false implication of the accused persons. 11. PW 6 was near the Neem tree. Ram Bilas Yadav and Sheo Dayal were demanding money from Jana Ahir at his house. Kapil, Kanhaiya and Dhana came and Dhana asked him to return the money. Ram Bilas said that Dhana is dishonest person on which Kapil asked to bring gun and kill him. Kanhaiya and Dhana went to their house and Kanhaiya came with gun and Dhana with pistol. Other accused persons also came with lathi and Bhala. Kapil, Kanhaiya and Dhana came and Dhana asked him to return the money. Ram Bilas said that Dhana is dishonest person on which Kapil asked to bring gun and kill him. Kanhaiya and Dhana went to their house and Kanhaiya came with gun and Dhana with pistol. Other accused persons also came with lathi and Bhala. Kanhaiya fired causing injury to Ram Bilas on his chest and he fell down. Daymanti, Kamli, Jang Bahadur and Domni caught Ram Bilas Yadav and then Dhana fired causing injury to them. Achhay Lal was coming from west on which Kanhaiya Yadav fired causing his death. He helped in taking away the deceased and the injured to the Police Station. He stated in crossexamination that he had gone at the place of occurrence on hearing alarm. He, however, stated that he did not see injury on the person of Dhana Yadav. He had seen Dhana injured in the Hospital. His attention was drawn to the statement made before the police. However, it appears that he stood the test of cross-examination. 12. PW 8 was also near the Neem tree. He stated that Ram Bilas Yadav and Sheo Dayal were demanding loan money from Jana Ahir. Kapil, Dhana and Kanhaiya came there. Dhana asked him not to return money on which Ram Bilas Yadav said that Dhana is dishonest on which Kapil asked to bring gun and kill. Kanhaiya and Dhana went to their house. Kanhaiya came with gun and Dhana with country-made pistol. Kanhaiya came and fired at Ram Bilas due to which he fell down. Jang Bahadur, Kamli, Dayamanti and Domni came on which Dhana fired from Pistol causing injuries to them. Other accused persons were also with lathi and Bhala. He helped in taking away the injured and the dead bodies to the Police Station. In cross-examination, the witness stated that he is illiterate. Neem tree is. at a distance of 20 yards from the house of Jana. He had gone there on hearing alarm. The occurrence took place for demand of money. He admitted that Kanhaiya had lodged case against him and others to save himself. He did not see injury on the person of Dhana. His attention was drawn to the sta ement made before the Police but he stated that he did not remember that such statement had been made before the police or not. 13. He admitted that Kanhaiya had lodged case against him and others to save himself. He did not see injury on the person of Dhana. His attention was drawn to the sta ement made before the Police but he stated that he did not remember that such statement had been made before the police or not. 13. PW 9 stated that he was at his house and he went to the place of occurrence on hearing alarm. Shoe Dayal and Ram Bilas were at the house of Jana. Kanhaiya was armed with gun and Dhana with pistol. Kanhaiya aimed and tired at Ram Bilas Yadav due to which he fell down and died. Dhana fired pistol causing injury to Jang Bahadur, Kamli, Daymanti and Domni. Achhay Lal Yadav was coming running on which Kanhaiya fired aiming at him due to which he fell down and died. Witnesses Daymanti, Bhola, Nandni, Lalan and Matar have been gained over by the accused persons. In cross-examination, the witness stated that Dhana fired pistol from a distance of 10-15 steps. Kanhaiya dired on the deceased from 6-7 steps. He stated that Kanhaiya had lodged a case against the witnesses to save himself and denied the suggestion that the witnesses have not been gained over. 14. PW 12 is also an eye-witness to the occurrence. He stated that he was at his house. He heard hulla near the temple. He went there and saw Dhana, Kapil and Kanhaiya at the house of Jana. Sheo Dayal and Kailash were also there. Ram Bilas Yadav was demanding money from Jana. There was altercation on which Kapil asked to bring gun. Kanhaiya came with gun and Dhana with country-made pistol. Kanhaiya fired from his gun causing injuries to Acchay Lal and Ram Bilas Yadav who fell down and died. Dhana fired pistol causing injury to Jang Bahadur and (sic). He cannot say who assaulted whom. Other accused persons were with lathi and Bhala. In cross-examination, the witness admitted relationship of the prosecution party. When he reached at the place of occurrence there were several persons. He did not see injury on the person of Dhana. He had seen Dhana injured at the Police Station. His attention was drawn to the statement made before the police but it appears that he stood the test of cross-examination. 15. When he reached at the place of occurrence there were several persons. He did not see injury on the person of Dhana. He had seen Dhana injured at the Police Station. His attention was drawn to the statement made before the police but it appears that he stood the test of cross-examination. 15. From the discussion of evidence of the prosecution witness, it is evident that the evidence of eye-witnesses is consistent on the point of manner of occurrence. The witnesses who were present there have stated that the occurrence took place due to the reason that Ram Bilas Yadav was demanding loan money from Jana. The accused persons, namely, Kanhaiya, Kapil and Dhana came. Dhana asked not to return money on which Ram Bilas said that he was dishonest on which Kapil asked to bring gun. Thereafter, Kanhaiya came with gun and Dhana with country-made pistol. Dhana fired causing death of two persons, namely, Achhay Lal Yadav and Ram Bilas Yadav. Dhana fired causing injury to the witnesses. The witnesses who came on hearing hulla also supported the manner of occurrence. The defence has examined one witness, namely, Fulia to say that she had given her land for tying cattle to the accused persons but she did not say with regard to the manner of occurrence. No witness has been examined on behalf of the accused persons to say the manner of occurrence. In the first information report lodged by Kanhaiya, it has been stated that prosecution party was taking away cattle. The Investigating Officer, PW 14 did not say any thing that there was sign of tying cattle, etc. or sign of removing cattle. Suggestion was given to the prosecution witnesses that they removed wire fencing of the land of Fulia which they denied. The Investigating Officer also did not say that he found wire-fencing of land was damaged or removed. Thus, it can safely be said that prosecution has succeeded in establishing the manner of occurrence. 16. Learned Counsel for the appellants, however, contended that witnesses examined in this case are relations of the informant. PW 2 has stated about the relationship between the witnesses but there is no rule of law that evidence of such witnesses should be discarded outright, rather it is well established rule of law that evidence of such witnesses should be scrutinised with care and caution. PW 2 has stated about the relationship between the witnesses but there is no rule of law that evidence of such witnesses should be discarded outright, rather it is well established rule of law that evidence of such witnesses should be scrutinised with care and caution. We have examined the evidence of witnesses as discussed above with care and caution but we could not find an inconsistency on the material point not the learned Counsel for the appellants pointed out any such defect in the evidence of prosecution witnesses to discard their evidence, rather the witnesses have stood the test of cross-examination and as such the evidence of witnesses is worthy of reliance though they are relation of the informant. 17. The oral evidence is also corroborated by the evidence of Doctor. PW 10 in doctor who held postmortem over the dead bodies He held hold post mortem on 18.6.1978 at 8.45 a.m. over the dead body of Achhay Lal Yadav and at 9 a.m. over the dead body of Ram Bilas Yadav. The Doctor found injury caused by fire-arm on the persons of the deceased and also found pellets embeded in the injuries. The witness has stated that rigour mortis was present and the injuries found on the persons of the deceased were sufficient to cause death in ordinary course of nature. The pellets were sealed and sent to the Police Station. He found tattooing marks around the injuries. In cross- examination the witness stated that rigour mortis was present and time elapsed since death was 36 hours. 18. Learned Counsel for the appellants pointed out that the tottooing mark is found only when firing is made from close range but there is no such evidence. It is true that prosecution witnesses have stated that firing was made from 6 to 10 steps but at the same time it has to be considered that witnesses are rustic and there is nothing on the record that they have stated the distance after measuring the distance and, as such, such discrepancies, considering the witnesses to be rustic, in our view, are not very material to doubt the prosecution case. However, the other Doctor i.e., PW 11 who examined the injured witnesses has stated in his evidence that he examined the injured witnesses on 17.6.1978 at 10 p.m. i.e. date of occurrence. However, the other Doctor i.e., PW 11 who examined the injured witnesses has stated in his evidence that he examined the injured witnesses on 17.6.1978 at 10 p.m. i.e. date of occurrence. He found injuries caused by the fire-arm on the person of the injured persons and opined that injuries were caused within six hours, which fits in with the case of the prosecution. However, the witness, PW 11, has stated that on the same night i.e. 17.6.1978 at 11.45 p.m. he examined Dhanraj Yadav, one of the appellants and found injuries on his person which are as follows: (i) Oblique lacerated wound over head in the left parietal bone region, size of the wound 3" x 1/4" x scalp deep. (ii) Simple lacerated oblique over back of the chest size 1" x 2/4" x skin deep. (iii) Bruise with swelling over right shoulder 3" x 1". (iv) Abrasion over front of the left knee. Size 1" x 3/4". The Doctor opined that all the injuries were simple in nature caused by hard blunt substance. Age within six hours. Therefore, evidence of the Doctor also supports the prosecution cases. 19. The Investigating Officer, PW 14 stated that he referred the injured who were brought to the Police Station, to Shahpur Sadar Hospital for treatment as they ware not in a position to give statement. He prepared inquest report of Ram Bilas Yadav, Ext. 5 and Achhay Lal Yadav, Ext. 5/A. In the inquest report, he stated that he found the shirt damaged corresponding to the wound. He sent the dead bodies for post-mortem and inspected the place of occurrence. The place of occurrence was near the house of Jana where there were a temple of Lord Shiva and a Neem tree. He found blood at the place of occurrence and seized the same and prepared seizure list. He did not mention that he found no Lign of tying cattle or the wire-fencing of DW 1 damaged. He recorded the statement of witnesses including the injured witnesses. Therefore, evidence of the Investigating Officer and finding by him at the place of occurrence support the prosecution case. 20. Learned Counsel for the appellants, however, pointed out that it has come on the record that Dhananjay @ Dhana received injury who was examined by the doctor but the prosecution has failed to explain as to ow Dhana received injuries on his person. 20. Learned Counsel for the appellants, however, pointed out that it has come on the record that Dhananjay @ Dhana received injury who was examined by the doctor but the prosecution has failed to explain as to ow Dhana received injuries on his person. Learned Counsel accordingly says that on this ground alone the appellants are entitled to acquittal. In support of his submission, he also relied upon a decision in the case of Laxmi Singh and others V/s. State of Bihar, AIR 1976 SC 2263 , wherein it has been held that in a murder case the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences : (i) the prosecution has suppressed the ganesia and the origin of the occurrence and has thus not presented the true version. (ii) the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable. (iii) in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. But at the same time, the Apex Court has held that non-examination of injuries by the prosecution may not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so dependent and disinterested, so probable, consistent and credit-worthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. In the instant case, the injury found on the person of the accused Dhana has been quoted above and the Doctor opined that is simple in nature. Learned Counsel for the appellants, however, tried to say that opinion of the Doctor is not correct. The injuries as mentioned are serious in nature. But from the perusal of the injury report, it is evident that injuries appear to be superficial. Apex Court itself has held that in such a case non-explanation of injuries on the person of the accused is not material. Moreover, in the First Information Report itself, it has been stated that during incident Dhana had also sustained injuries. But from the perusal of the injury report, it is evident that injuries appear to be superficial. Apex Court itself has held that in such a case non-explanation of injuries on the person of the accused is not material. Moreover, in the First Information Report itself, it has been stated that during incident Dhana had also sustained injuries. PW 2 has also stated in his evidence that he received injuries in the same occurrence. In such a situation, even it is taken that there is no explanation with regard to injuries on the person of the accused namely Dhana, in our opinion, it would not affect the case of the prosecution. The Apex Court in the decision as referred above itself has stated that non-examination in such a situation would not affect the prosecution case. Further more, we have examined the evidence of witnesses. No doubt, they are relation of the informant but on close scrutiny, we find that their evidence is trustworthy and as such in any view of the matter in our opinion the question raised by the learned counsel for the appellants has no substance at all. 21. Learned Counsel for the appellants pointed out the evidence of PW 14, the Investigating Officer, to show that witnesses in the Court tried to improve the case. Those contradictions or omission are not very material. The prosecution witnesses, however, stood the test of cross-examination on the material point and thus in our view those defects pointed out by the learned Counsel for the appellants would not affect the prosecution case. 22. Learned Counsel for the appellants next pointed out test there are specific allegations of commission of overt act against only three persons i.e. appellants Kanhaiya. Dhanraj @ Dhana and Kapil and against rest of the appellants there is no allegation of overt act. Accordingly, he pointed out that other accused person had no common object to kill two persons, namely, Ram Bilas Yadav and Achhay Lal Yadav. It is manifest from the evidence of prosecution witnesses itself that Kapil, Kanhaiya and Dhana came first at the place of occurrence when Ram Bilas Yadav was demanding loan money from Jana, Dhana asked not to return the loan money on which Ram Bilas said him to be dishonest. Thereafter, Kapil asked to bring gun and kill him. Kanhaiya came with gun and Dhana with country-made pistol. Thereafter, Kapil asked to bring gun and kill him. Kanhaiya came with gun and Dhana with country-made pistol. Kanhaiya fired causing death of Ram Bilas and, thereafter, when the witnesses tried to save him Dhana fired from his pistol causing injuries to them. Again Kanhaiya fired causing death of Achhay Lal. The witnesses stated that remaining accused were with lathi and bhala. However, PW 1 stated in his evidence that on the order of Kapil, Kanhaiya came with gun and Dhana with country-made pistol. Kanhaiya fired causing death of two persons and Dhana fixed causing injury to. the witnesses. However, in cross-examination, he stated that he could and say that other accused persons came on call or they came suo motu. The witness also stated that they did not come together with other accused persons. Similarly, PW 2 stated in his evidence that Kanhaiya and Dhana came with fire arm first. The other accused persons came after interval of 4 or 5 minutes. The other witnesses (sic) in their evidence that other accused persons were also there but in view of the specific evidence of PWs 1 and 2, it is evident that Kapil was there at the place of occurrence and Kanhaiya and Dhana came with arms and the other accused persons did not come with them rather they come after some interval. Therefore, it is difficult to say with certainty that they had shared the common object to kill two persons. There was nothing on the record to show that they knew the common object to kill. Thus, in our view, they may be guilty of causing grievous hurt under Section 326/149, IPC and not for the offence under Section 302/149, IPC. In this connection, reference may be made to a decision in the case of Shambhu Nath Singh and others V/s. State of Bihar, AIR 1960 SC 725 , wherein the Apex Court has held that Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. But, members of an unlawful assembly may have a community of object up to a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly and conviction for an offence under Section 326/149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by one member of that assembly. Section 326, IPC is in its relation to the offence of murder a minor offence and the language used in Section 149, IPC does not prevent the Court from convicting for that minor offence merely because an aggravated offence is committed. 23. Thus, the conviction of the appellants, namely, Gauri Yadav, Baban Yadav, Prasuram Yadav, Satya Narain Yadav, Jawahir Yadav, Lallan yadav, Ganga Sagar Yadav, Sheo Kumar Yadav, Ramadhar Yadav, Guljar Yadav, Kashi Nath Yadav and Jamuna Ahir under Sections 302/149,148 and 147 of the Indian Penal Code is hereby set aside. They are convicted for the offence under Section 326/149 of Indian Penal Code and they are sentenced to the period already undergone and to pay a fine of Rs. 5,000/- each which shall be deposited by them within a period of three months. In default of payment of fine, to undergo further rigorous imprisonment for five years. The entire amount will go to the informant. In case, the informant is not alive then to the nearest heirs of the informant. 24. In the result, the appeal of appellants Kanhaiya Yadav, Kapil Yadav and Dhana @ Dhanraj Yadav is dismissed. The appeal of rest of the appellants is also dismissed with modification an indicated above. They are discharged from the liability of the bail bonds subject to deposite of the fine within the time an indicated above. Appellants Kanhaiya Yadav, Kapil Yadav and Dhana @ Dhanraj Yadav were also on bail. The appeal of rest of the appellants is also dismissed with modification an indicated above. They are discharged from the liability of the bail bonds subject to deposite of the fine within the time an indicated above. Appellants Kanhaiya Yadav, Kapil Yadav and Dhana @ Dhanraj Yadav were also on bail. Their bail bonds are cancelled and they are directed to surrender before the Trial Court to serve the remaining period of sentence.