Judgment N.N.SINGH, J. 1. Both these appeals, arising out of judgment of conviction and sentence, dated 30th of September, 1986, passed in Sessions Trial No. 215 of 1982, by 1st Additional Sessions Judge, Deoghar, are being disposed of together by this common order. Appellant Babu Mani Raut @ Bhaiya Nunu Raut of Criminal Appeal No. 511 of 1986 was convicted under Section 302 of the Indian Penal Code and Section 148 of the Indian Penal Code and was sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code, with no separate sentence under Section 148 of the Indian Penal Code. The remaining appellants of Criminal Appeal No. 518 of 1986 were convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo imprisonment for life and while appellant Sukhan Raut was further convicted under Section 148 of the Indian Penal Code and the remaining appellants were further convicted under Section 147 of the Indian Penal Code, no separate sentence was passed against them. Appellants Binod Raut, Suchit Raut, Bhuneshwar Raut and Sattar Raut were further separately convicted under Section 323 of the Indian Penal Code, but no separate sentences were passed against them. 2. The prosecution case, as disclosed in first information report (Exhibit 2) recorded on 21st July, 1981, at 9.15 a.m. on the basis of statement of informant, Hare Krishna Raut (PW 9), was that on 21st July, 1981 at about 8.00 a.m. when Sardari Raut (deceased) and Hakim Raut (PW 8) were ploughing the land of plot No. 369 and informant, Hare Krishna Raut (PW 9), Bal Krishna Raut (PW 1) and Tarni Raut (PW 3) were uprooting paddy seedling in the same plot for transplantation, all the appellants variously armed came there with two pair of bullocks and started ploughing the field, which was protested by the informant, Hare Krishna Raut, but he was abused and threatened. Further case of prosecution is that Tarni Raut sent Sat Narayan (PW 5) for calling the Sarpanch and the informant (PW 9) was asked to inform the police, but under orders of Sukhan Raut, who was armed with spade and lathi, appellant Bhaiya Mani Raut @ Babu Muni Raut gave a tangi blow on the head of Sardari Raut who started fleeing towards south, but fell down in nearby field and, thereafter, appellant Dewan Raut is said to have thrown a stone weighing about four kilograms on the chest of Sardari Raut, resulting in his instantaneous death. Further case of prosecution was that Bal Krishna Raut, Hakum Raut and Tarni Raut were assaulted by the appellants Jotin Raut, Binod Raut, Suchit Raut, Bhuneshwar Raut and Sattar Raut. It was further claimed that, after death of Sardari Raut, the appellants fled away towards the village. The first information report was lodged by PW 9, Hare Krishna Raut, who rushed to Sarawan Police Station, which was registered as Sarawan P.S. Case No. 54 of 1981 and the police, after due investigation, submitted charge-sheet against these appellants, who, after cognizance and commitment, were put on trial and were convicted, as aforesaid. 3. The defence of the appellants, as gathered from suggestions put to PWs, evidence of DWs and their statements under Section 313 of the Criminal Procedure Code, was that the appellants were falsely implicated in this case and that the occurrence did not take place in the manner as alleged by the prosecution and that the place of occurrence land was in possession of the appellants and that the informant and his family members, along with the deceased, Sardari, were aggressors and that the accused persons also sustained injury in the course of occurrence. 4. Twelve witnesses were examined by the prosecution in support of its case and eight defence witnesses were also examined on behalf of the defence. PW 7, Surendra Raut, was tendered for cross-examination and PW 6, Phanibhushan Raut, is the witnesses on inquest report (Exhibit 5), but he was declared hostile also by prosecution. PW 5, Satya Narain Raut, is son of PW 8, Hakim Raut, and he is only a witness on the point that when the appellants came there and started ploughing, he went to call the Sarpanch. PW 10 is Dr. PW 5, Satya Narain Raut, is son of PW 8, Hakim Raut, and he is only a witness on the point that when the appellants came there and started ploughing, he went to call the Sarpanch. PW 10 is Dr. A.K. Chatterji, who held post-mortem examination on the dead body of Sardari Raut and he proved the post-mortem report (Exhibit 3). PW 11, Dr. Sone Lal Akela, is said to have examined other injured, PWs 2, 3 and 8, and proved the injury reports (Exhibits 4 to 4/2). PW 12 is the investigating officer, Sub-Inspector of Police, Shamim Ahmad. PW 1, Naresh Raut and PW 4, Sita Ram Raut, who claimed to have heard hulla and came at the place of occurrence and saw Sardari Raut, dead and Tarni (PW 3), Bai Krishna (PW 2) and Hakim (PW 8) injured. PW 2, Bal Krishna Raut, PW 3, Tarni Raut and PW 8, Hakim Raut, are injured witnesses, who claimed to be eye-witnesses. PWs 3 and 8 were brothers and PW 2 is son of PW 8. The informant PW 9, Hare Krishna Raut, is also a witnesses on the point of occurrence and he is son of PW 3, Tarni Raut. 5. Out of eight witnesses examined by the defence DWs 3, 4, 6 and 8 were formal witnesses. DW 1, Baleshwar Rai and DW 2, Baleshwar Raut, stated about possession of accused on the place of occurrence land and they are witnesses supporting the defence version. DW 5, Dr. A.K. Chatterji and DW 7, Dr. Sone Lal Akela, were again examined by the defence to prove the injury reports (Exhibits a, c, c/a and c/b). 6. The trial Court discussed the evidence of the investigating officer. PW 12, Sub-Inspector of Police, Shamim Ahmad, in paragraph 4 of its judgment. PW 12 claimed to have visited the place of occurrence at 10.00 a.m. on the same day and to have made inquest report, regarding the dead body of Sardari Raut, and he proved the inquest report (Exhibit 5) over which the witnesses put their signatures (Exhibits 1 series) and, thereafter, the dead body of Sardari Raut was sent to Deoghar Hospital, for post-mortem examination. He also found three injured persons on the place of occurrence. He also found three injured persons on the place of occurrence. According to PW 12, the place of occurrence land was measuring 2.11 acres and Daq No. 369, in which he found paddy seedlings uprooted from about two kathas of land in the south-east corner of the place of occurrence and also found some seedlings scattered. He found water in the field for transplantation of paddy seedlings. He found the dead body of Sardari Raut in adjacent plot No. 381 and also found a stone weighing about four kilograms in plot No. 381, which he seized and prepared the seizure list (Exhibit 6). He further stated that S.P No. 381 was full of water and, as such, no blood-stains were found there. In the inquest report (Exhibit 5), PW 12 mentioned to have found bleeding injuries on the head, and injuries on the chest and left leg of the deceased. PW 10, Dr. Ashok Kumar Chatterji, stated to have held post-mortem examination on the dead body of the Sardari Raut at 8.00 a.m. on 22.07.1981 and stated to have found ante-mortem injury on his dead body. "(i) One incised wound on frontal area of scalp 2" x 3/4" bone deep with crack fracture of the frontal bone. (ii) One abrasion on left leg near ankle 1/2"x 1/4"." PW 10 opined that injury no (i) was caused by sharp-cutting weapon, such as tangi whereas injury no. (ii) were caused by hard and blunt substance, may be by fall. According to him, the time elapsed since death was about twenty-four hours and he opined that the death was caused due to shock and haemorrhage, as a result of injury no. (i), which was sufficient to cause death ordinary course of nature. He proved the post-mortem report (Exhibit 3). Thus, this much is established that Sardari Raut died a homicidal death. 7 The evidence of PW 11, Dr. Sone Lal Akela, who stated to have examined injured Bal Krishna Raut (PW 2) and to have found two incised wounds, one abrasion and a swelling on his person, all simple, was discussed in paragraph 6 of the lower Court judgment. Thus, this much is established that Sardari Raut died a homicidal death. 7 The evidence of PW 11, Dr. Sone Lal Akela, who stated to have examined injured Bal Krishna Raut (PW 2) and to have found two incised wounds, one abrasion and a swelling on his person, all simple, was discussed in paragraph 6 of the lower Court judgment. It was also mentioned that the same doctor examined Hakim Raut (PW 8) also and found three incised wounds, one abrasion and one swelling, all simple, on his person and he also stated to have examined PW 3, Tarni Raut and to have found puncture wound and one incised wound, one abrasion and two swellings, all simple, on his person. PW 11 proved the injury reports (Exhibits 4 to 4/2). According to the prosecution case, these injured were also assaulted by the appellants on the place of occurrence land on their protest when the appellants went to plough the land of S.P. No. 369. The trial Court discussed the evidence of PW 2, Bal Krishna Raut, PW 3, Tarni Raut, PW 8, Hakim Raut and PW 9, the informant, Hare Krishna Raut. The trial Court held that the evidence of these witnesses. PWs 2, 3, 8 and 9, were quite consistent supporting the prosecution case. On behalf of the appellants, it was submitted that they were all interested witnesses and as such, no reliance can be placed on their testimony. True, it is that they belonged to one family but that justified their presence at the place of occurrence. Simply because a witness is related or interested witness, his evidence cannot be thrown out or discarded that rather cautious scrutiny is required to be done by the Court examining the evidence of such witness. Moreover, PWs 2, 3 and 8 were injured witnesses whose presence at the place of occurrence cannot be denied and as such, they are quite competent witnesses. Their evidence and the evidence of the investigating officer, who visited the place of occurrence, go to support the prosecution case fully. Their evidence was also support by PW 1, Naresh Raut and PW 4, Sita Ram Raut, who came there on hulla and saw Sardari Raut dead and PW 2, Bal Krishna Raut, PW 3, Tarni Raut and PW 8, Hakim Raut, injured in the place of occurrence field. Their evidence was also support by PW 1, Naresh Raut and PW 4, Sita Ram Raut, who came there on hulla and saw Sardari Raut dead and PW 2, Bal Krishna Raut, PW 3, Tarni Raut and PW 8, Hakim Raut, injured in the place of occurrence field. On behalf of the appellants, the plea of right of private defence was half-heartedly taken, which also go to support that some occurrence, involving the appellants, deceased and the injured, took place at the place of occurrence land. 8. In course of argument, much was stated regarding the possession of S.P. No. 369 and it was claimed, on behalf of the defence, that there were three sub-plots in S.P. No. 369 out of which the appellants possessed the western portion whereas the prosecution party, descendants of Ishri, possessed the eastern portion and that the occurrence did take place in the western portion. To appreciate the point a short genealogy, given below, would help as stated by PW 2 : 9. It was claimed on behalf of the appellants that S.P. No. 369 is ancestral land and since the raiyat, Shankar Raut, had three sons, the plot was divided in three parts. The trial Court discussed this point in paragraph 16 of its judgment and held that the prosecution version of possession over the land, which is said to be the place of occurrence, was established by unimpeachable documentary evidence and in paragraph 17 of its judgment, the trial Court rightly held that the defence failed to bring on record the counter version and that there was no evidence to show that there was any defence version taken in the counter- case. 10. I find that certified copy of khatiyan (Exhibit 7) shows that S.P. No. 369 stood recorded in Jamabandi No. 31 of Shankar Raut and in the remarks column possession of Ishri Raut, father of PWs 3 and 8, was recorded as beta of raiyat (Shankar Raut). It appears from Exhibit 8/1, the extract of final Chakbadar, that as per report of Amin, Ishri Raut took settlement of S.P. No. 369 from the Court and on that Amins report, it was ordered that in remarks column possession of Ishri Raut, son of the raiyat, be recorded. It appears from Exhibit 8/1, the extract of final Chakbadar, that as per report of Amin, Ishri Raut took settlement of S.P. No. 369 from the Court and on that Amins report, it was ordered that in remarks column possession of Ishri Raut, son of the raiyat, be recorded. This goes to establish beyond any doubt that S.P. No. 369 was not ancestral land, in which the brothers and son of brothers of Ishri Raut could have any interest. 11. Shri Braj Kishore Prasad, learned Counsel for the appellants, assailed the lower Court judgment on three counts : (1) for non-explanation of injury on accused persons; (2) right of private defencewhether prob-abilised; and (3) that prosecution failed to prove its case of injury on chest of deceased, Sardari, which was not found in post-mortem report (Exhibit 3) also. The other point was also raised that there could not be any unlawful assembly and that conviction with the help of Section 149 of the Indian Penal Code was not sustainable. 12. On the ground that injuries were sustained by the appellants, the defence examined DW 5, Shri Ashok Kumar Chatterji and DW 7, Sone Lal Akela, who were earlier examined as PWs 10 and 11. The same witnesses should not have been examined as PW and DW both and the injury reports of appellants could have been got proved in cross-examination of PWs 10 and 11. However, DW 5 claimed to have examined appellant Bhuneshwar Raut on 22nd July, 1981 at 7.30 a.m., that is, on the next day of occurrence and stated to have found one swelling, three bruises and one abrasion, all simple, caused by hard and blunt substance on his person. He also claimed to have examined appellant Suchit Raut on the same day at 7.40 a.m. and stated to have found one lacerated injury on scalp, one swelling one haematome and one bruise, all simple, caused by hard and blunt substance on his person. He also claimed to have examined appellant Suchit Raut on the same day at 7.40 a.m. and stated to have found one lacerated injury on scalp, one swelling one haematome and one bruise, all simple, caused by hard and blunt substance on his person. DW 5 further stated to have examined appellant Babu Mani Raut at 7.50 a.m. and stated to have found : (1) one penetrating wound on the back of scalp 1 /2" x 1/3"; (2) one bruise on the left side of chest 1" x 1/2"; (3) one abrasion on the left foot, near the big toe 1/2" x 1/4"; and (4) one bruise on the right shoulder 1" x 1/2", all simple in nature. In cross-examination, DW 5 admitted that he had not issued the injury reports on requisition of the police. He proved injury reports (Exhibits c, c/a and c/b). DW 7, Dr. Sone Lal Akela stated to have examined Sukhan Raut at 6.30 p.m. on 21.07.1981 and further stated to have found : "(i) Incised wound 2-1/2" x 1/2" x bone deep over occipital area of scalp. (ii) Incised wound 6" x 1/4" into superficial skin over right scapular region. (iii) Incised wound 5-1/2" x 1/4" x skin superficial below right scapular region." The doctor proved injury report (Exhibit c/c) and opined that injury no. (i) was grievous. I fail to understand as to on what basis injury no. (i) could be stated to be grievous, as it did not come in any of the eight categories mentioned in Section 320 of the Indian Penal Code. Perhaps, the doctor opined that injury to be grievous only because it was on head. In cross-examination of DW 7, he admitted that firstly he had mentioned "skin" in place of "bone" in injury no. (i), but he changed it subsequently and he admitted that injuries nos. (ii) and (iii) could be caused by blade and may be self-manufactured. From perusal of injury reports (Exhibit c series), it appears that all the injuries mentioned in this reports were either superficial in nature or were very minor injuries and as per opinion of DW 7, all the injuries could be self manufactured. 13. In the light of discussion, made above, now we can proceed to examine the objection of non-explanation of injury found on the person of the appellants by the prosecution. 13. In the light of discussion, made above, now we can proceed to examine the objection of non-explanation of injury found on the person of the appellants by the prosecution. This point has been examined by the Supreme Court in various decisions and reliance was placed onthe decision of Lakshmi Singhs case, reported at AIR 1976 SC 2263 . In the case of Bhabanand Sarma V/s. State of Assam, reported at (1977) 4 SCC 396 , a three-Judge Bench of the Supreme Court, held that the prosecution was not obliged to explain the injuries on the person of accused in all cases and in all circumstances. In the case of Vijayee Singh V/s. State of U.P., reported at (1990) 3 SCC 396 , another three-Judges Bench, held that "where evidence in clear, cogent and credible and where Court can distinguish truth from falsehood, the mere fact that the injuries were not explained by the prosecution cannot by itself be the sole basis to. reject such evidence and consequently whole case." Here in this case also, as discussed above, the injuries found on the person of the appellants were superficial or minor and the evidence adduced by prosecution was clear, cogent and credible and, as such, the non-explanation of such injuries would not be a basis to reject the prosecution case specially when the counter-version has not even been brought on the record. 14. Second point raised on behalf of the appellants was regarding right of private defence. This plea was taken half-heartedly. I have discussed above that the place of occurrence, land S.P. No. 369 was not ancestral land and, as such no question of right of private defence of an agnate arose. Even if it is assumed for a moment that such right was available to the appellants that also cannot be held justifiable in causing murder of Sardari Raut, only for obstructing in ploughing of the field. Though the defence version, contained in counter-case, has not been brought on the record, at best the appellants could argue that the prosecution party obstructed in their possession but such allegation could not justify killing of a person. Though the defence version, contained in counter-case, has not been brought on the record, at best the appellants could argue that the prosecution party obstructed in their possession but such allegation could not justify killing of a person. It has been held in the case of Mahavir Choudhary V/s. State of Bihar, reported at AIR 1996 SC 1998 ; 1996 (2) East Cr C 263 (SC), that "the merging position is that you have first degree of right of private defence even if the wrong committed or attempted to be committed against you is theft or mischief or criminal trespass simpliciter. This right of private defence cannot be used to kill the wrong-doer, unless you have reasonable cause to fear that otherwise death or grievous hurt might ensue, in which case you have the full measure of right of private defence". Since in the present case, the appellants even did not apprehend death or grievous hurt. I find and hold that the appellants had no right of private defence available and killing of Sardari Raut would not be justified raising the plea of right of private defence. Moreover, burden of establishing that plea was on the accused and that cannot be discharged by showing preponderance or probability only. 15. The third point raised on behalf of the appellants was that there was variance between the medical evidence and the prosecution story. It was contended that story of throwing stone by appellant Dewan on the chest of deceased, Sardari, did not found support from the medical report, that is, the post-mortem report (Exhibit 3). Shri Braj Kishore Prasad placed reliance on decision of a Division Bench of this Court, reported at 1999 BBCJ V-62, Anand Lal V/s. State of Bihar, asserting that the prosecution case, not supported by medical evidence be disbelieved. It has been submitted by the Additional Public Prosecutor that besides ocular evidence of the witnesses, that is, of PWs 2, 3, 8 and 9, injury on chest was also found by the investigating officer, PW 12 and mentioned in the inquest report (Exhibit 5). Simply, because the doctor, PW 10 did not mention it in his post-mortem report (Exhibit 3), the evidence of the witnesses could not be rejected. Simply, because the doctor, PW 10 did not mention it in his post-mortem report (Exhibit 3), the evidence of the witnesses could not be rejected. It was further contended on behalf of the State that PW 10 is not very reliable witness, inasmuch as, he stated in his examination-in-chief that injury found on the deceased was sufficient in ordinary course of nature to cause death, but in his cross-examination PW 10 under stress and pressure, cross-examination gave a contradictory reply by stating that injury no. (i) might have or might not have caused the death, if proper and immediate treatment were given. Reliance was also placed by Additional Public Prosecutor on decision reported at AIR 1988 SC 2154 : 1989 East Cr C 216 (SC); State of U.P. V/s. Krishna Gopal and another : "It is trite that where the eye-witnesses account is found credible and trustworthy, medical opinion or pointing to alternative possibilities is not accepted as conclusive. Witnesses are the eyes and ears and of justice. Hence, the importance and primacy, of the quality of the trial process. Eye-witnesses account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence including medical evidence, as the sole touch-stone for the test of such credibility." Similar view was taken in case of Punjab Singh V/s. State of Haryana, reported at AIR 1984 SC 1235 : 1984 East Cr C 261 (SC), where, it was held that "opinion of doctor is not conclusive and direct ocular evidence will prevail". On the same point, recently the Supreme Court held in the case of Mohan Singh V/s. State of M.P., reported at 1999 (1) PLJR 69 : 1999 (1) East Cr C 1034 (SC), where it was held as such : "Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Effort should be made to find the truth, this is the very object for which the courts have been created. So, it is solemn duty of the courts, not to merely conclude and leave the case, the moment suspicions are created so that no innocent man should be punished and on the other hand, no offender should go scot free. Effort should be made to find the truth, this is the very object for which the courts have been created. So, it is solemn duty of the courts, not to merely conclude and leave the case, the moment suspicions are created so that no innocent man should be punished and on the other hand, no offender should go scot free. It is only where in spite of such effort, suspicion is not dissolved, it remains writ at large benefit of doubt is to be given to the accused." 16. It is pertinent to note that, as per evidence of PW 10, incised injury on frontal area of scalp and not the alleged stone throwing was not the cause of death of Sardari Raut. PW 12, the investigating officer, found one stone weighing about four kilograms in S.P. No. 381 near the dead body, which also go to support the ocular evidence of PWs 2, 3, 8 and 9. Thus, I find no merit in this objection raised on behalf of the appellants, which is inconsequential. 17. Shri Braj Kishore Prasad, further argued that assembly could not be called unlawful as it cannot be stated that the appellant might have foreseen the circumstance that Sardari would protest and would be killed on the spot. The object may change subse-quently and whoever may be member of the unlawful assembly, who had knowledge of the object, would be held guilty. On this point, the learned Additional Public Prosecutor placed reliance on decision report AIR 1989 SC 745 : 1995 East Cr C 858 (SC); Lalji Singhs case, where, it was held that: "Section 149 makes every member of unlawful assembly, at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful act committed pursuant to the common object by any other member of that assembly. Once the Court holds that certain accused persons formed an unlawful assembly in prosecution of common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding, it would not be open to the Court to see as to who actually did the offensive act." It was also submitted by the Additional Public Prosecutor that such common object may change subsequently and evidence and proof of illegal overt act by every member was not. necessary for holding them guilty of Section 149 of the Indian Penal Code. 18. Summing up the entire discussion, made above, I find that there was very prompt reporting in this case and the first information report was lodged within 1-1/2 hours of the occurrence and the same was also received in the Court on very next day, that is, 22.07.1981, presence of accused is admitted, in view of injury claimed by defence to have been caused to the appellants. Presence of injured PWs 2, 3 and 8 cannot be denied. Defence has not filed any paper to show their possession. The dead body was found in S.P. No. 381 and as per evidence he was chased by appellant Dewan and a big stone was thrown on his chest, which indicated the common object of the assembly though subsequently developed. As discussed above, none of the pleas raised on behalf of the appellant were found tenable and prosecution case has been supported by consistent evidence of PWs. I find and hold that in my considered opinion, the trial Court rightly relied upon the evidence of eye-witnesses to base the conviction of the appellants. I agree with the conclusion arrived at and hold that the prosecution case has been proved beyond reasonable doubt. I, therefore, do not find any merit in both these appeals. 19. In the result, both these appeals are dismissed. The bail bonds of the appellants are hereby cancelled and they are directed to surrender in the Court below forthwith and the trial Court is also directed to take steps for their arrest to serve out their remaining portion of sentence. D.P.S.CHOUDHARY, J. 20 I agree.