M. S. PARIKH, J. ( 1 ) THIS appeal arises from the impugned judgment and order dated 3/12/1990 rendered by the Ld. Addl. Sessions Judge, Ahmedabad (Rural) in Sessions Case No. 26/1990. The appellants who have been referred to as the accused in this judgment came to be convicted and sentenced for the offences punishable u/ss. 302 read with section 149, 307 read with section 149, 325 read with section 149, 324 read with section 149, 323 read with section 149 and sections 147 and 148 of the Indian Penal Code (for short ipc ). They have been sentenced to life imprisonment by way of substantive sentence for the main offence. They have also been sentenced to pay fine for the respective offences. The prosecution presented the incident in respect of which the accused persons have been charged before theld. Addl. Sessions Judge as per the following particulars :- the incident occurred at around 5 Oclock in the evening on 1/10/1989 in village Shertha. The victims as also the deceased on one side and the accused persons on the other side happened to be the relatives. They were, however, not on talking terms and relations were strained long before. It so happened that on the penultimate day of the day of incident accused no. 6 Punjaji Lakhaji Thakor was hurling abuses while in drunken condition. On that occasion Becharji Ravaji (since deceased) scolded him resulting into accused no. 6 getting enraged. Accordingly on the day of incident the accused persons armed with deadly weapons formed common object of killing Becharji Ravaji and they accordingly formed unlawful assembly and reached the place of incident while giving abuses. They accordingly assaulted Becharji Ravaji. Accused no. 1 gave a Dhariya blow (blow of scythe) resulting in Becharji Ravaji falling on to the ground and the accused persons then started beating him. During the course of the incident witnesses Sendhaji Becharji, Jivanji Becharji, Maniben Becharji, Shardaben Jivanji and Chanchiben Kanaji intervened. The accused persons also assaulted them with their respective weapons and caused injuries on different parts of the person of the respective witnesses. They accordingly caused grievous hurt to the witnesses so assaulted. The accused persons then left the place of incident. It has been alleged that accused no. 1 Kantiji Chanduji, accused no. 2 Maganji Lilaji, accused no. 7 Jivanji Lalji and accused no. They accordingly caused grievous hurt to the witnesses so assaulted. The accused persons then left the place of incident. It has been alleged that accused no. 1 Kantiji Chanduji, accused no. 2 Maganji Lilaji, accused no. 7 Jivanji Lalji and accused no. 8 Chaturji Chhotaji Thakor were armed with Dhariyas, accused no. 3 Babuji Lalji was armed with iron rod, accused no. 4 Amratji Maganji was armed with stick, accused no. 5 Khodaji Dhulaji was armed with Dhoka (bat like stick) and accused no. 6 Punjaji Lakhaji Thakor was armed with Danti (weapon like scythe with teeth ). F. I. R. in respect of the incident in question was lodged at about 7 Oclock in the evening on the same day at Adalaj Police Station and the injured witnesses were sent for treatment under police Yadi. Deceased Becharji Ravaji was taken to Civil Hospital, where, in the evening he was declared dead. After the investigation was carried out, the case was committed to the Sessions Court, Ahmedabad (Rural) and the accused persons were charged with the aforesaid offence as per charge exh. 4. At the conclusion of trial it was submitted on behalf of the defence that it was not established beyound reasonable doubt as to who gave Dhariya blow to the deceased, that 6 accused persons were implicated in the F. I. R. ; whereas different accused persons surfaced in the evidence of different witnesses. It was also submitted that there was some variation/contradiction in the evidence of witnesses, who happened to be interested witnesses. Relying upon the medical evidence it was submitted that there was difference with regard to the injuries sustained as compared to the ocular account of the incident. It was also submitted that the prosecution did not explain the appearance of blood stain at the place nearby the house of the accused. Hence, the prosecution should be treated as having not been able to establish beyond reasonable doubt formation of unlawful assembly as well as common object. The defence has not adduced any evidence. Upon appreciation of the evidence adduced before the Ld. Addl. Sessions Judge, the Ld. Addl. Sessions Judge has accepted the evidence of the eye witnesses including the injured eye witnesses while observing that the witnesses are not the intelligent witnesses and even then they have been able to narrate the incident with reasonable certainty and uniformity. Upon appreciation of the evidence adduced before the Ld. Addl. Sessions Judge, the Ld. Addl. Sessions Judge has accepted the evidence of the eye witnesses including the injured eye witnesses while observing that the witnesses are not the intelligent witnesses and even then they have been able to narrate the incident with reasonable certainty and uniformity. Some errors/omissions or variations have been found to be not material and instead they have been found to lead to the evidence becoming natural and inspiring confidence for being accepted. Dealing with the charge regarding unlawful assembly and common object attributed to the accused persons Ld. Addl. Sessions Judge has observed that there was enmity between accused persons on one side and the complainant party on the other side. In this background, it has been observed that there cannot be any fixed or ascertained formula for attributing common object which has to be gathered from the circumstances of the case and the conduct of the accused persons at the time of the incident. It has been noted that all the 8 accused persons reached the place of incident with deadly weapons which could be used for commission of the offence in question. They immediately assaulted Becharji Ravaji (since deceased ). The first accused gave a Dhariya blow on the head of said deceased. The circumstances would indicate that there was preparation for counteracting any opposition at the time of incident. This fact could be noticed from the conduct of the accused persons at the time of the incident. If the injured witnesses were not present at the time of the incident, none of them could have been injured. Besides, the accused persons were conversant about the fact that the relatives were residing in the vicinity of the house of deceased Becharji Ravaji. Under such circumstances, the Ld. Addl. Sessions Judge has concluded that there was apparently common object on the part of the accused persons to kill Becharji Ravaji and also to injure all those who would come in the way. Accordingly the concerned witnesses came to be injured during the course of the incident as they intercepted the assailants. Thus, there were more than five persons being the accused persons who formed common object of assaulting and killing Becharji Ravaji and they acted accordingly while themselves armed with deadly weapons going to the place of the incident and assaulting the deceased. The Ld. Thus, there were more than five persons being the accused persons who formed common object of assaulting and killing Becharji Ravaji and they acted accordingly while themselves armed with deadly weapons going to the place of the incident and assaulting the deceased. The Ld. Addl. Sessions Judge has, therefore, concluded that the ingredients of section 141 of the IPC have been complied with. The offences punishable with the aid of section 149 were thus held to have been committed by the accused persons. Conviction accordingly has also been rendered u/ss. 147 and 148 of the IPC. The accused persons have subjected the said conviction and their consequence sentence to challenge in this appeal before this Court. ( 2 ) THIS appeal, having been placed for final hearing, has been extensively heard. The evidence which has been adduced before the Ld. Addl. Sessions Judge has already been read and commented upon. It would first be appropriate to make a synopsis of the evidence and then to deal with the submissions made. The prosecution examined following witnesses at the trial :-I. P. W. 1 - Dr. Patel Punjabhai Chhaganbhai, exh. 26ii. P. W. 2 - Prabhudas Hirabhai Patel, exh. 37iii. P. W. 3 - Harjibhai Bababhai Chavda, exh. 42iv. P. W. 4 - Sendhaji Becharji, exh. 46v. P. W. 5 - Dineshbhai Chunilal Patel, exh. 48vi. P. W. 6 - Vithalbhai Somaji, exh. 53vii. P. W. 7 - Chanchalben (Chanchiben) Kanaji,exh. 54viii. P. W. 8 - Dr. Ravindra Shrikrishna Bhise, exh. 55ix. P. W. 9 - Dr. Rajeshbhai Ishvarbhai, exh. 57x. P. W. 10- Vadilal Jesangbhai, exh. 66xi. P. W. 11- Jivanji Becharji, exh. 68xii. P. W. 12- Maniben Juhaji, exh. 72xiii. P. W. 13- Shardaben Jivanji, exh. 73xiv. P. W. 14- Shankarji Ramaji, exh. 74xv. P. W. 15- Bhikhaji Nathaji Thakor, exh. 75xvi. P. W. 16- Imammiya Pirmiya Malek, exh. 77xvii. P. W. 17- Naginbhai Kalidas Barot, P. S. I. Mehsanacity Police Station, exh. 80. The documents which have been referred to during the course of submissions made on behalf of the accused as well as prosecution will be dealt with at the appropriate point of time. They, however, mainly consist of post mortem report, report from Forensic Science Laboratory, relevant Panchnamas and the relevant sketches. Besides, Muddamal articles have also been presented by the prosecution in the trial Court. ( 3 ) IT has first been submitted by Mr. They, however, mainly consist of post mortem report, report from Forensic Science Laboratory, relevant Panchnamas and the relevant sketches. Besides, Muddamal articles have also been presented by the prosecution in the trial Court. ( 3 ) IT has first been submitted by Mr. Shethna, the Ld. Counsel appearing for the accused persons that the prosecution story proceeds on the line of all the accused persons having assaulted with deadly weapons deceased Becharji; whereas the medical evidence in the form of post mortem report would indicate that Becharji, since deceased, had only one injury on the head. It would, therefore, be apppropriate to deal with the medical evidence qua deceased Becharji, in order to appreciate the submissions of Mr. Shethna. For that purpose reference has first been made to the evidence of Dr. Ravindra Bhise, P. W. 8 exh. 55 and post mortem notes exh. 56. Speaking to the post mortem report Dr. Ravindra S. Bhise has testified that following external injuries appeared on the dead body of Becharji Ravaji Thakor :i. Chop wound on the right side of skull extending from 4 c. m. above the middle part of right eyebrow going upwards in the sagital plain, then curving upwards and backwards in sagital plain extending on right parital region and of the length of about 9 c. m. then curving downwards on the right occipito parieto region going backwards and downwards for a length of about 4 c. m. The anterior curved end is about 3. 5 c. m. on the right frontal region forming a curve wound with conveity upwards about 16. 5 c. m. long x 2 c. m. gap by bone deep. The injury has been further described by the medical witness in his oral evidence saying that the wound exposes the cranium which displays cut margins at the middle 9 c. m. part of the wound and cavity deep. The lateral flap of the wound is of size 8 c. m. x 4 c. m. This injury has been opined to be antemotem and sufficient in the ordinary course of nature to cause death. II. The following internal injuries have also been noted by the witness :- Chop wound as described with a chin pericranial haemotoma all around the skull. Internal fractures have also been noticed. II. The following internal injuries have also been noted by the witness :- Chop wound as described with a chin pericranial haemotoma all around the skull. Internal fractures have also been noticed. The medical witness has deposed that internal injury was corresponding to external injury as aforesaid and the cause of death was shock as a result of head injury sustained by the deceased. He has deposed that the injury could be caused with the aid of Muddamal article no. 16, which was shown to him. He has finally deposed that chop wound is modified incise wound caused by the sharp cutting instrument used with force and in clinical examination it would apparently look like an incised wound. The witness, in his cross-examination has admitted that the external injury was single injury and much reliance has been placed on this circumstance in the submissions made on behalf of the accused in this appeal. The witness has also asserted in his cross-examination that chop wound is different from incised wound, but chop wound on external examination may resemble as incised wound. Reliance has also been placed upon a suggestion that weapon of offence for causing such an injury would be an axe, but the witness has in terms denied that suggestion. Making reference also to the post mortem report exh. 56 it has been submitted that there is no other injury except one external injury which has been spoken to by the medical witness. Reference in this connection has also been made to the medical certificate exh. 20, which says that the post mortem examination has been performed on the dead body of Becharji (male - 65 years) at Civil Hospital by Dr. K. A. Shah and Dr. R. S. Bhise and cause of death has been found to be head injury. ( 4 ) REVERTING to the prosecution evidence of the eye witnesses including the injured eye witnesses, it has been submitted that if there was an assault launched simultaneously not only by accused no. 1 but also by other accused persons as per the prosecution story, it would be improbable that deceased Becharji would sustain only one external injury. Two fold submissions have been made from this circumstance. 1 but also by other accused persons as per the prosecution story, it would be improbable that deceased Becharji would sustain only one external injury. Two fold submissions have been made from this circumstance. It has firstly been submitted that genesis of the prosecution case should be held to have not been established beyond reasonable doubt so as to make available to the accused persons benefit of doubt about the guilt charged against them. In the second place, ofcourse in the alternative, it has been submitted that the prosecution case with regard to common object of killing Becharji having been formed by all the members of the assaulting party could not be said to have been established beyond reasonable doubt and the accused persons should be dealt with in accordance with their individual overt acts. In order to appreciate the submissions it would be important to visualise in its real shape the slow motion account of the incident in question. It would appear that the accused persons were armed with one or the other weapons as aforesaid. It would also appear that they had been together when the assault was launched. It was at around 5 Oclock early in the evening when the incident occurred. It is even the defence case that the relatives of deceased Becharji were also residing in the vicinity. As can be seen from the prosecution evidence of the other witnesses they were also present/ they appeared at the place of the incident. Most important of the circumstances is that none of the persons of the complainant party was armed with any weapon worth the name. This would clearly indicate that the assault was launched by the accused party and no sooner a blow was given on the head of deceased Becharji, who fell down, then there was the appearance of first, second, third and so on of the injured witnesses. It could not be said that some one or the other waited for more than one blow being given by one of the accused persons to deceased Becharji. In the natural course of events the related persons though not armed would have rushed to the place of incident and intervened and intercepted. This is precisely what clearly appears to have happened at the time of the incident, if one bears in mind the injuries sustained by other witnesses during the course of the incident. In the natural course of events the related persons though not armed would have rushed to the place of incident and intervened and intercepted. This is precisely what clearly appears to have happened at the time of the incident, if one bears in mind the injuries sustained by other witnesses during the course of the incident. Thus, though the medical evidence has been commented upon and canvassed, it cannot be separated from the actual chain of action which must have taken place during the course of the incident as aforesaid. ( 5 ) THEN there is a reference to the medical evidence of Dr. Patel Punjabhai Chhaganbhai, P. W. 1, exh. 26. He has been examined by the prosecution in respect of Becharji Ravaji Thakor and five other injured persons having been medically examined by him. He found Becharji Ravaji Thakor unconscious with the external injury appearing as aforesaid. He has opined about the injury likely to have been caused by sharp weapon like a Dhariya (scythe ). He had also an occasion to examine Shardaben Jivanji Thakor, one of the prosecution witnesses, who was reported to have been injured during the course of incident. She had cut wound 1" x 1. 3" on the rear side of the right shoulder. There was swelling and tenderness on base of left hand index finger. He has opined that these injuries could be caused respectively by sharp weapon like Dhariya and hard and blunt weapon. He gave certificate exh. 28 in respect of such injuries appearing on the person of witness Shardaben Jivanji Thakor. He also had an occasion to examine Sendhaji Becharji who had swelling in the area around 2" x 1" on the rear side of the left forearm and that could be caused by weapon like a stick. He accordingly gave certificate exh. 29. He had an occasion to examine injured witness Maniben Becharji Thakor who sustained (i) crossed and abrased wound on the left parital region, the wound appearing to be 1. 1/2" x 1/2" scalp deep and (ii)cut wound admeasuring 4" x 1/3" x 1/4" on the right rear side of chest and it displayed swelling. The witness opined that first injury could be caused by hard and blunt weapon; whereas the second injury could be caused by sharp weapon. 1/2" x 1/2" scalp deep and (ii)cut wound admeasuring 4" x 1/3" x 1/4" on the right rear side of chest and it displayed swelling. The witness opined that first injury could be caused by hard and blunt weapon; whereas the second injury could be caused by sharp weapon. He has also opined that the first injury could be caused by iron rod and the second injury could be caused by a Dhariya. He gave his certificate exh. 30 in respect of such injuries. The injured person was referred to the Civil Hospital, Ahmedabad. He had an occasion to examine Jivanji Becharji finding that he had injuries (i) on his head, left parital and occipital region in the form of bone deep, (ii) cut wound admeasuring 1" x 1/2" x 2" on the front portion of left shoulder, (iii) 2" x 1" incised flap cut on front of right leg and (iv) 1. 1/2" x 1/2" crossed and bruised wound on the front portion of right leg and (v) abrasion admeasuring 1/2" x 1/2" on the upper portion of shoulder. The witness has opined that first two injuries could be caused by sharp weapon; whereas injuries nos. 3 and 4 could be caused by hard and blunt substance. He has also opined that injury no. 5 could be caused by the blunt edge of Dhariya. He gave certificate exh. 31 in respect of these injuries. This patient was also referred to the Civil Hospital, Ahmedabad for further treatment. The witness then had the occasion to examine Chanchiben Kanaji Thakor, who had following injuries : (I) scalp deep cut wound admeasuring 5" x 1/2" on the occipital region of the head (II) C. L. W. 1" x 1/2" on the front portion of the head. (III) Swelling and pain on the left wrist with possible fracture of lower end of radius. (IV) 5" x 1" bruise like wound on the left side of the trunk of the patient. The witness has opined that first injury could be caused by sharp cutting weapon like Muddamal article no. 22 and the rest of the three injuries could be caused by hard and blunt substance like Muddamal Articles nos. 17, 18/21. He has opined that third injury on the left wrist with possible fracture at the end of the radius would amount to grievous hurt. He gave certificate exh. 22 and the rest of the three injuries could be caused by hard and blunt substance like Muddamal Articles nos. 17, 18/21. He has opined that third injury on the left wrist with possible fracture at the end of the radius would amount to grievous hurt. He gave certificate exh. 32 in respect of the injuries. According to him if bleeding from injury no. 1 was not stopped, it would endanger life. Reference has been made to the cross-examination concerning the opinion of the witness in respect of injuries sustained by Becharji. In para. 16 of his evidence he has admitted that he could notice one injury on the body of Becharji Ravaji. There is no difficulty in accepting submission made on behalf of the accused persons with regard to there being one external injury on the head of Becharji Ravaji. However, the comments made in this respect would have to be assessed in the light of all the circumstances appearing from the evidence of eye witnesses. As said above, the incident as a whole has to be visualised and it cannot be isolated by dissecting the same in the manner in which submissions have been made from the medical evidence qua deceased Becharji Ravaji. It is not the prosecution case that in fact number of blows were given to deceased Becharji Ravaji in succession without there being any interception or intervention by the other witnesses. The first appearance of the ocular account might lead to such an anomaly but if the incident as a whole is visualised, it would give a clear picture regarding the other witness immediately one after the other or in succession intervening or intercepting so as to result into landing of blows, one or the other, on the person of the other witnesses. The evidence has, thus to be seen as a whole. Therefore, merely because deceased Becharji Ravaji was found to have one injury on his head it cannot be said that there was no assault on the part of the accused persons together. At this stage, submission that no radiologist was examined for receiving in evidence the X-ray plates of Chanchiben, injured eye witness, P. W. 7, exh. 54 might be considered. The X-ray plates exh. 58 and exh. 59 to 59/3 should not have been received in evidence, submitted the learned counsel. Oral evidence of Dr. At this stage, submission that no radiologist was examined for receiving in evidence the X-ray plates of Chanchiben, injured eye witness, P. W. 7, exh. 54 might be considered. The X-ray plates exh. 58 and exh. 59 to 59/3 should not have been received in evidence, submitted the learned counsel. Oral evidence of Dr. Rajendrabhai Ishvarbhai Patel, P. W. 9 exh. 57 was read. He has deposed that he had an occasion to examine Chanchiben Kanaji at 7. 15 p. m. on 1/10/1989. He found one incise wound about 8 c. m. long skull deep on the occipital area of the head of the person. He also found C. L. W. on frontal region 0. 5 cm x 0. 5 cm. Then he noticed tenderness over the back. The witness brought the X-ray plates in respect of which he has given evidence to the effect that the same would disclose fracture of left radius lower end and fracture in right parietal bone. He has then proved his certificate exh. 60. While referring to the Yadi exh. 61 he has opined that the injury on the scalp area of the head of Chanchiben could be caused by sharp cutting instrument like Dhariya and second injury could be caused by hard and blunt substance like stick as also the blunt portion of the blade of Dhariya. It would appear from the examination-in-chief that there was no objection raised with regard to receipt of the X-ray plates in evidence and reading thereof by the medical witness. Even during the course of the arguments, nothing material could be pointed out so as to show that the X-ray plates were not those of injured witness Chanchiben. The fact that Chanchiben sustained fracture has also been brought to light by this medical witness and that has to be borne in mind. ( 6 ) IT has next been submitted on behalf of the accused persons that there is non appearance of names of accused no. 7 Jivanji Lilaji and accused no. 8 Chaturji Chhotaji in FIR Exh. 47. Sendhaji Becharji, P. W. 4 exh. 46 who was also injured during the course of the incident has lodged the FIR at the earliest point of time on the same day. 7 Jivanji Lilaji and accused no. 8 Chaturji Chhotaji in FIR Exh. 47. Sendhaji Becharji, P. W. 4 exh. 46 who was also injured during the course of the incident has lodged the FIR at the earliest point of time on the same day. He has described the incident as per the prosecution story saying that accused Punjaji Lakhaji Thakor had Danti in his hand, accused Kantiji Chanduji had Dhariya in his hand, accused Maganji Lilaji and Dahriya in his hand, accused Babuji Lilaji had iron rod in his hand and accused Khodaji Dhulaji had bat like stick in his hand; wereas accused Amratji Maganji Thakor had the stick in his hand while launching the assault on the complainant party. Kantiji Chanduji gave a Dhariya blow on the head of the deceased Becharji, father of the complainant. This resulted in the victim falling on to the ground while loudly screaming. Since all the accused persons launched the assault and started beating, the complainant also shouted for help resulting in his elder brother Jivanji and mother Maniben as well as one Chanchiben Karmaji, the aunt, and his brothers wife Shardaben rushing to the place of incident and intervening for escorting Becharji. In that process Thakor Babuji Lilaji gave a blow on his left wrist and on his shoulder. Maganji Lilaji gave blows on the leg and head of Jivanji. Punjaji Lakhaji gave Danti blow on the head and shoulder of his mother Maniben and Khodaji Dhulaji gave blows on to the body of his aunt Chanchiben Kanaji. He has also asserted that accused Amrat Maganji gave stick blow on the head of Chanchiben and Thakor Maganji Lilaji gave Dhariya blow on the shoulder of his brothers wife. It has, therefore, been submitted that in the F. I. R. names of accused no. 7 Jivanji Lilaji and accused no. 8 Chaturji Chhotaji Thakor have not appeared. In order to appreciate this argument and the connected argument that there is non-appearance of the one or other accused else where, it would be appropriate to deal with the evidence of the injured witnesses. ( 7 ) P. W. 4 Sendhaji Becharji, exh. 46 has testified to the facts of the prosecution case. He has given the facts with regard to the earlier incident about accused no. 6 Punjaji Lakhaji who was hurling abuses after drinking liquor to his father Becharji Ravaji. ( 7 ) P. W. 4 Sendhaji Becharji, exh. 46 has testified to the facts of the prosecution case. He has given the facts with regard to the earlier incident about accused no. 6 Punjaji Lakhaji who was hurling abuses after drinking liquor to his father Becharji Ravaji. Broad brief facts with regard to this incident also appear in the F. I. R. exh. 47. He has also spoken to the facts with regard to how the assault was launched by the accused persons. He has concluded the incident while attributing the weapons to the respective accused persons. In his evidence he has referred to accused no. 8 Chaturji Chhotaji having been armed with Dhariya although he does not surface in the F. I. R. He has spoken to who gave blows with which weapon while testifying that accused Babuji gave iron rod blow on his left hand as well as back and has also deposed that he was hurt with stick. He has deposed in his cross-examination that accused nos. 7 and 8 were serving in O. N. G. C. at the relevant point of time, that he had stated in his additional statement that accused nos. 7 and 8 had also assaulted with Dhariya, that he stated in his further statement that the reason for the quarrel was severance of relations between the parties and non-attendance on the occasions in the family of the other party and therefore, there was enmity which resulted into the quarrel between the two parties. He denied the suggestion that he sustained injuries which were self inflicted. What is important to be noticed in the context of the submissions made is that he did give the names of the othher two accused who were armed with Dhariya in his further statement. Bearing in mind the injuries sustained by number of witnesses as also death of one of the victims, it would be probable for the complainant to have hurriedly narrated the incident while going for, and taking the other relatives, for medical treatment. It would, therefore, clearly appear from the evidence of the complainant that at the earliest point of time he had not only described the incident but had with reasonable certainty disclosed who were present with what weapons and committed what acts of assault. The minor variations which have been pointed out would make the ocular account more natural. It would, therefore, clearly appear from the evidence of the complainant that at the earliest point of time he had not only described the incident but had with reasonable certainty disclosed who were present with what weapons and committed what acts of assault. The minor variations which have been pointed out would make the ocular account more natural. In respect of his injuries he is supported by medical certificate ex. 29, which shows that he had swelling 2" x 1" on dorsom of middle third of left forearm and this injury could be caused by hard and blunt weapon. ( 8 ) THEN there is evidence of P. W. 7 Chanchalben Chanchiben Kanaji apppearing at exh. 54. She has also deposed to the main facts of the prosecution story noted hereinabove. She has stated that since Punjaji Lakhaji was hurling abuses while drinking liquor there was an occasion of separation of the families. She has testified that on the day of incident when she was attending to the cattle (buffaloes) at home, she saw accused nos. 1 and 2 armed with Dhariyas, accused no. 3 armed with iron rod, accused no. 4 armed with stick, accused no. 5 armed with bat like sticks, accused no. 6 armed with Danti, acused nos. 7 and 8 armed with Dhariyas. She also deposed that accused no. 1 Kantiji Chanduji gave a Dhariya blow on the head of Becharji and when Becharjis son Sendhaji and Maniben shouted for help all rushed there. They included the witnesses Jivanji and Shardaben. Accused no. 1 gave two Dhariya blows to his nephew Jivanji, accused no. 2 gave two Dhariya blows on the leg of his nephew Jivanji. Accused no. 2 gave Dhariya blow on the head of his nephew Jivan, accused no. 7 Jivaji Lilaji gave blow of blunt portion of (edge) Dhariya to his nephew Jivanji and when she was also running back to her home accused Punjaji Lakhaji gave reverse blow of Danti on the left hand of the witness and accused no. 4 Amratji gave stick blow on the back of the witness. Accused no. 5 Khodaji also gave the blows of bat like stick on the knee of the witness. Accused no. 7 Jivanji Lilaji gave Dhariya blow on the head of the witness. 4 Amratji gave stick blow on the back of the witness. Accused no. 5 Khodaji also gave the blows of bat like stick on the knee of the witness. Accused no. 7 Jivanji Lilaji gave Dhariya blow on the head of the witness. She fell down on the ground nearby the wall of her house and was admitted to the Civil Hospital as an indoor patient where she was kept for around 25 days. Reference has been made to her cross-examination with regard to the location/site of the place of incident. There she has admitted that the house of Becharji (deceased) and the house of accused Punjaji Lakhaji are adjoining houses. She admitted that police did not interrogate her, but the doctor interrogated her. She was unconscious when she was first taken to Adalaj, but when she was examined at Adalaj by the doctor, she regained some consciousness. She admitted that she did not narrate that she was hurt with Danti and bat like stick. She has also stated in her cross-examination that all the accused persons had launched the assault on Becharji when she reached at the place of incident and when she reached there four of the accused persons started beating her and three of the accused persons started beating her nephew Jivan. She has admitted that she could not recollect who gave blow/s to Sharda. She admitted that she was for the first time stating that she was hurt when she reached nearby her house and that she fell down there. She denied the suggestion that the quarrel ensued nearby the hosue of Punjaji (house adjoining the house of Becharji ). She also denied the suggestion that persons of the complainant party first went to the place near the house of accused Punjaji and there the incident occurred while asserting that the incident occurred in the open space nearby the house of Becharji Ravaji (since deceased ). This is in short the evidence of this female injured eye witness. It would clearly appear from this evidence that the incident occurred nearby the house of deceased Becharji Ravaji. The broad observations of the evidence of this witness would remain the same as those set out while dealing with the evidence of the other eye witnesses. She has been corroborated by injury certificate exh. 32. It would clearly appear from this evidence that the incident occurred nearby the house of deceased Becharji Ravaji. The broad observations of the evidence of this witness would remain the same as those set out while dealing with the evidence of the other eye witnesses. She has been corroborated by injury certificate exh. 32. ( 9 ) REFERENCE then has been made to the oral evidence of P. W. 11 Jivanji Becharji, ex. 68. He has also revealed the facts broadly appearing in the prosecution story noted hereinabove. However, reference has been made to different cause with regard to Jagaji Juhaji alleged to have cut a joke at the daughter of accused Babuji Lilaji resulting into quarrel between the two parties. It has been submitted that this cause is a cause different from the cause which has been set out by the complainant and appearing also in the F. I. R. However, in his cross-examination the omissions with regard to this case have been brougt on record. Another cause which this witness has given is with regard to separation of the families and one field known as Thikariyu Vadiyu field going to the share of complainant party, resulting into the enmity in the minds of the accused party. This witness has also given the cause with regard to activity of preparing liquor attributed to accused no. 1 Kantiji Chanduji and activity of attending to the business of liquor of Kantiji Chanduji attributed to accused Punjaji Lakhaji. The witness has deposed that Punjaji was hurling abuses after consuming liquor and, therefore, his father Becharji had an occasion to warn the concerned accused person. That is how the incident has been introduced by the prosecution in the evidence of this witness. It is no-doubt true that omissions with regard to all the aforesaid causes have been brought on record in para. 8 of his cross-examination. However, what is important to be noticed is that the accused persons had initiated the assault at around 5 Oclock in the evening of 1/10/1989 as per the facts of the incident appearing in the prosecution story. The witness has also referred to the injuries caused to him. He has deposed that accused no. 1 Kantiji Chanduji had given him two Dhariya blows on his leg and accused no. 2 Maganji gave a Dhariya blow on his head. While accused no. The witness has also referred to the injuries caused to him. He has deposed that accused no. 1 Kantiji Chanduji had given him two Dhariya blows on his leg and accused no. 2 Maganji gave a Dhariya blow on his head. While accused no. 7 Jivanji Lilaji was giving Dhariya blows to this witness, the blunt portion of Dhariya had struck on his left shoulder. He has also deposed that accused nos. 1, 2 and 7 caused him blunt injuries. In his cross-examination he has admitted that he informed the medical officer at Adalaj that he was injured with Dhariya blows and had also sustained blunt injuries when he had an occasion to give his statement before the police. Then there is cross-examination with regard to the place of incident similar in nature to the previous witnesses. The witness has denied all these suggestions. He has finally denied the suggestion that persons of the complainant party had assembled near the house of accused Punjaji Lakhaji and that they started launching assault on the accused party. Same would be the observations in this respect while dealing with the submissions made on behalf of the accused persons. ( 10 ) MANIBEN, daughter of Juhaji, P. W. 12, exh. 72 has also been examined as the injured eye witness. Her husband Becharji died as a result of the head injury sustained during the course of this incident. She has also introduced the story while setting out the reasons why the two families had the occasion to get separated and the activities attributed to accused no. 6 and accused no. 1. She has deposed that when the assault was launched on her husband, he had an occasion to shout for help, with the result that her son Sendhaji had also the occasion to shout for help. Her son Jivanji, her eldest daugter in law Shardaben, her younger brothers wife Chanchiben rushed to the place of incident, but before any help could be rendered accused no. 1 Kantiji Chanduji had already given Dhariya blow with force on the head of her husband. She has also described the incident with regard to who gave blows to whom at the time of incident. She has deposed that accused no. 3 Babuji Lilaji gave blow of iron rod on her head and when she was about to turn back, accused no. She has also described the incident with regard to who gave blows to whom at the time of incident. She has deposed that accused no. 3 Babuji Lilaji gave blow of iron rod on her head and when she was about to turn back, accused no. 8 Chaturji Chhotaji gave Dhariya blow on her back. When she sat down accused no. 8 gave reverse blow of Dhariya on her back. Her son went to the village and called two rickshaws. First they went to Adalaj police station from where they were sent to Adalaj hospital. She was first treated in Adalaj hospital and then in Civil Hospital at Ahmedabad. It might be noted at this stage that this witness had the occasion to give her dying declaration before the Executive Magistrate in the Civil Hospital at Amedabad, but since she survived, she was examined as the witness. In her cross-examination her statements/omissions from the dying declaration have been confronted to her. Accordingly she admitted that she stated before the Executive Magistrate that there was enmity between the two parties as the persons of the complainant party did not go to attend the marriage occasion at the place of accused party and keeping such enmity in mind accused Babuji Lilaji gave blow of iron rod on her head and she was also given blow of Danti on her back. She has explained that whatever she could recollect amidst her injured state of health, she stated before the Executive Magistrate. Reference in this connection might be made to a decision of the Honble Supreme Court in the case of Maqsoodan v. State of U. P. reported in AIR 1983 S. C. 126, where it has been observed that broad account of the incident in a previous dying declaration in expectation of death might corroborate the ocular accountof the concerned witness who has survived. In the present case it has surfaced in the cross-examination of this witness itself that the incident in the particular manner had occurred and that she was injured during the course of the incident. She has set out broad facts with regard thereto. Thus, although there are some minute omissions vis-a-vis her earlier dying declaration exh. 45, the broad narration of the incident by her before the Executive Magistrate lends reasonable corroboration to her oral testimony. She has set out broad facts with regard thereto. Thus, although there are some minute omissions vis-a-vis her earlier dying declaration exh. 45, the broad narration of the incident by her before the Executive Magistrate lends reasonable corroboration to her oral testimony. Even in Maqsoodans case (supra) it has been held that improvements and variations in earlier and latter statements by themselves cannot be said to be sufficient to hold the testimony to be infirm. There is also an effort made with regard to point out some different scene of offence from the one set up by the prosecution. However, the witness has categorically denied the suggestions with regard to initiation of the assault by the complainant party as suggested in her cross-examination. ( 11 ) SHARDABEN Jivanji, P. W. 13, exh. 73 has also been examined as one of the injured eye witnesses. It has been submitted that she could not be witness to the incident and in the alternative it has been submitted that in her evidence there is a reference to exchange of words between the two parties. It might be noted from her evidence that the house where she has been residing is at a distance of around 50 ft. from the house of his father-in-law, deceased Becharji. She has also asserted that when she was at a distance of 4 to 5 steps accused no. 1 gave a Dhariya blow on the head of his father-in-law. Even in her cross-examination she has stated that accused no. 1 gave Dhariya blow on the head of her father-in-law. Having gone through the entire evidence of this witness it would be difficult to accept that she cannot be an eye witness to the incident. In fact she is one of the injured eye witnesses. She has testified that accused Maganji Lilaji gave a Dhariya blow on her back and that there was bleeding and the injury required suturing She has also testified that accused no. 6 Punjaji Lakhaji gave reverse Danti blow on the wrist portion of the witness and accused no. 5 Khodaji Dhulaji had given bat like stick blow on her hand. The injury certificate in respect of the injuries sustained by this witness appears at exh. 28. 6 Punjaji Lakhaji gave reverse Danti blow on the wrist portion of the witness and accused no. 5 Khodaji Dhulaji had given bat like stick blow on her hand. The injury certificate in respect of the injuries sustained by this witness appears at exh. 28. It says that the witness had incised wound 1" x 1/3" x 1/4" on the back of right shoulder and swelling and tenderness on the base of left and index finger. There is no suggestion that the injuries were self inflicted and even if such a suggestion was made, it would be difficult to believe that this female witness would have ever inflicted injuries on her own self. Location of the first injury absolutely rules out such an idea. It would, therefore, clearly appear that ocular account of this witness gets support from medical certificate exh. 28. The submission counter to this conclusion could hardly be accepted. It is no-doubt true that some exchange of words having taken place at the time of incident between the two parties has surfaced in the evidence of this witness. However, when an assault has been launched by so many persons, it would be natural for the persons of the complainant party to speak out something when they were attacked. Therefore, admission with regard to exchange of words at the time of such an incident would not take out the matter from the initiation of the assault by the accused party. ( 12 ) HAVING gone through the evidence of aforesaid injured eye witnesses it has clearly appeared to us that the ocular account of the incident in question is quite consistent excluding the minor variations, mostly in the form of omissions. In fact such minor omissions would make the ocular account more natural. It has to be borne in mind that the witnesses are rustic villagers mainly semiliterate or illiterate and they were in the hands of the expert cross-examiners. Even then consistency on the broad facts of the incident as appearing in their evidence would speak volume about bringing to light the facts regarding the incident and the manner in which the incident occurred. In our considered opinion, the Ld. Addl. Sessions Judge who had the occasion to observe the witnesses giving evidence has rightly accepted their evidence for rendering the conviction to the accused persons. In our considered opinion, the Ld. Addl. Sessions Judge who had the occasion to observe the witnesses giving evidence has rightly accepted their evidence for rendering the conviction to the accused persons. It has been submitted that the prosecution witnesses have come out with one or the other motive on the part of the accused persons which would not be in consonance with the prosecution story speaking about one motive flowing from the incident which occurred on the penultimate day. It is not necessary for formation of common object that there should be one single motive or that there should be one single occasion to precede. There might be more than one incidents which might have resulted in or agravated the enmity between the two parties. There might be one or more motives which might provide killing of a person belonging to the complainant party. None the less the facts of the incident in question as spoken to by the aforesaid witnesses clearly prove beyond reasonable doubt initiation and launching of the assault with deadly weapons by the accused persons. ( 13 ) IT has been submitted on behalf of the accused persons that there was a find of blood from nearby the house of accused no. 1 and the prosecution has not explained this find of blood. The sketches exhs. 38 and 81 have been referred to. The detailed evidence in respect of the place of incident has also been referred to from the oral testimony of the aforesaid witnesses and the Panch witnesses. It would appear that on one side of the narrow way (Neliya) there are the houses of Babuji, Becharji (since deceased), Punjajji, Ranchhodji, Mangaji and others; whereas on the other side of the said narrow passage there are the houses of the accused no. 1 Kantiji Chanduji, Shankarji and others. Beyond the place where house of accused no. 1 Kantiji Chanduji is situated there is a dead end. It is no-doubt true that blood samples were taken from the earthern portion opposite the house of deceased Becharji and accused Punjaji as also from nearby the house of accused no. 1. The prosecution witnesses have tried to explain how blood might have fallen on to the ground nearby said place. It is not the case of the defence that there was any incident having taken place nearby the house of accused no. 1. 1. The prosecution witnesses have tried to explain how blood might have fallen on to the ground nearby said place. It is not the case of the defence that there was any incident having taken place nearby the house of accused no. 1. We had an occasion to ascertain from the report of the Forensic Science Laboratory as also the Muddamal articles that find of blood from nearby the house of accused no. 1 cannot be connected with the blood group of deceased Becharji. In fact it can be connected with the blood group of one of the two female injured witnesses who had a blood group. The find of blood from nearby the house of deceased Becharji is tallying with the blood group of deceased Becharji (blood group o ). That would apparently fix the place of incident (scene of offence) nearby the house of deceased Becharji. To this, it has been submitted that some brick bats were also found lying nearby the house of accused no. 6 Punjaji Lakhaji. It might be recollected that houses of deceased Becharji and accused Punjaji are adjoining. The place from where the blood stained earth was noticed is not exactly opposite the house of accused Punjaji Lakhaji. It is opposite one side of house of Becharji. It would, therefore, clearly appear that existence of brick bats nearby the house of Punjaji Lakhaji (accused no. 6) might have cleverly been shown for taking advantage of probable defence that there was an assault with brick bats on the house of Punjaji Lakhaji. However, this defence has not probablised if the facts of the incident are noticed not only from the ocular account of the witnesses but also from the other witnesses as also documents referred to hereinabove. Very important circumstance which would merit consideration at this stage is that no person out of the complainant party is alleged to have been armed with any weapon, whereas all the accused persons were armed with deadly weapons. It is not the defence that all the accused persons had assembled in the house of accused no. 6 Punjaji Lakhaji so that they had come out of the house to retaliate throwing of brick bats on the house of accused no. 6. It is not the defence that all the accused persons had assembled in the house of accused no. 6 Punjaji Lakhaji so that they had come out of the house to retaliate throwing of brick bats on the house of accused no. 6. Thus, the submission that possibility of complainant party having initiated the assault by throwing brick-bats cannot be accepted as the same by no stretch of imagination gets probablised from any portion of the prosecution evidence. Thus, mere appearance of brick bats near the house of accused no. 6 Punjaji Lakhaji will take the defence neither here nor there. In respect of the place from where the samples of blood stained earth were taken as well as the place of incident the Ld. counsel appearing for the accused has taken us through the evidence of Panch witnesses and other witnesses. The Ld. Addl. Sessions Judge has at length dealt with the evidence and nothing substantial could be suggested so as to shake the conclusions drawn by the Ld. Addl. Sessions Judge from this evidence. Evidence of the Investigating Officer Naginbhai Kalidas Barot, P. W. 17, exh. 80 has been read before this Court. Evidence of Shankarji Ramaji, P. W. 14, exh. 74 has also been read before us. We are unable to endorse the submission that reading the evidence as a whole, prosecution has failed to establish genesis of the incident and that possibility of implicating more than one members of the families of accused party is not ruled out. It has alternatively been submitted that joint/constructive liability arising u/s. 149 of the IPC has also not been established and, therefore, at best the concerned accused persons might be held guilty of the offences attributable to their respective overt acts. It might be reiterated that there might be more than one incidents which might have resulted in the enmity between the two parties. There might be more than one reason which might have led formation of common object at the time of incident. Simply because one or the other witness had an occasion to canvass one or the other cause, the proximate cause about the incident which occurred on the penultimate day as aforesaid would merit consideration as the same has been spoken to by the witnesses as also the same has appeared broadly in the F. I. R. exh. 47. Simply because one or the other witness had an occasion to canvass one or the other cause, the proximate cause about the incident which occurred on the penultimate day as aforesaid would merit consideration as the same has been spoken to by the witnesses as also the same has appeared broadly in the F. I. R. exh. 47. ] ( 14 ) ON behalf of the accused persons reference has been made to a number of decisions in support of the submissions that this is a case where prosecution evidence will fall short of bringing home constructive liability as envisaged by section 141 punishable u/ss. 147 to 149 of the IPC. It has, therefore, been submitted that principle of minimum liability should be invoked for the respective accused. Reference in this connection has been made firstly to the case of Surinder Kumar v. Union Territory, Chandigarh reported in AIR 1989 S. C. 1094. That was a case of quarrel that ensued between the two parties, as a result of which number of wounds were caused during the occurrence resulting into death. In the background of such facts it has been observed that they are on a sudden quarrel and when a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of exception 4 to section 300 of the IPC and that appearance of more than one injuries to the deceased could not be said to have decisive consequence for holding that the accused acted in a cruel manner. In the present case, it has not appeared that the accused persons had an occasion to lift up the weapons which were handy or that they acted during the course of any such quarrel. This decision can hardly have any application to the facts of the present case. ( 15 ) THEN there is a reference to a decision in the case of State of Karnataka v. Siddappa Basanagouda Patil reported in AIR 1990 S. C. 1047. This decision can hardly have any application to the facts of the present case. ( 15 ) THEN there is a reference to a decision in the case of State of Karnataka v. Siddappa Basanagouda Patil reported in AIR 1990 S. C. 1047. In the background of the finding that there was no clear evidence as to how occurrence originated and as to presence of blood on floor inside the house of the accused and on threshold indicating that the deceased received injuries in the house and then came out on road and fell down, it has been observed that there was likelihood of suppression of genesis and origin of occurrence by the prosecution. Under such circumstances the accused was held to be liable u/s. 304 part II and not u/s. 302. We have gone through the facts of the case before the Apex Court and we find that there is an ocean of difference with regard to the origin and genesis of the incident in so far as the present case is concerned. ( 16 ) IN Hem Raj v. State (Delhi Administration) reported in AIR 1990 S. C. 2252 charge was u/s. 302 read with section 34 of the IPC. On appreciation of the facts qua the evidence it was found that one of the accused persons alone inflicted injuries on the deceased and participation of the remaining accused was disbelieved. In that background it has been held that accused inflicting injuries on deceased could alone be convicted. However, there are marked distinguishing features between the case in hand and this decision as can be seen from the facts in both the cases. ( 17 ) ON behalf of the prosecution Ld. A. P. P. referred to State of A. P. etc. v. Thakkidiram Reddy and ors. reported in 1998 S. A. R. (Criminal) 640. Paras. 18, 19 and 20 of the citation dealt with charge of section 149 of the IPC. We would like to reproduce what the Apex Court has said in paras. 19 and 20 as under :-"19. THE next question that requires an answer is what was the common object of the unlawful assembly. Both the learned counsel appearing for the accused submitted that considering the nature of the injuries inflicted by the miscreants upon the deceased, it could not be said that their common object was to commit the murder. 19 and 20 as under :-"19. THE next question that requires an answer is what was the common object of the unlawful assembly. Both the learned counsel appearing for the accused submitted that considering the nature of the injuries inflicted by the miscreants upon the deceased, it could not be said that their common object was to commit the murder. According to the learned counsel, even if the entire prosecution case was believed the only inference that could be drawn was that the accused persons were guilty only of the offence under Section 325 for causing grievous hurt with blunt weapons, read with Section 149 IPC. To appreciate this contention raised on behalf of the appellants it will be necessary to refer to the injuries sustained by the deceased. PW 12, who held the post mortem examination upon the deceased stated that he found the following external injuries on his person : 1. Laceration left cheek 3" x 1"x1/2". 2. Abrasion left shoulder 2"x1"3. Laceration right leg 1"x1"x1/2"4. Three abrasions on the left leg each 1"x1"5. Laceration right frontal area 5"x 1/2" x 1/2"6. Laceration parietal area 6" x 1" x 1"7. Laceration occipital area 4" x 1/2" x 1/2"8. Abrasion left lower chest 1" x 1"so far as internal injuries are concerned he stated that on examination of the skull, he found fracture on the right temporal bone, parietal bone and occipital bone and the total length of the fracture was 7". He further stated that subarachnoid haemorrhage was present. He opined that the head injury alone was sufficient to cause the death of the deceased. 20. He further stated that subarachnoid haemorrhage was present. He opined that the head injury alone was sufficient to cause the death of the deceased. 20. IF the injuries were to be considered in isolation we might have persuaded ourselves to give a second thought to the above submission of the learned counsel but when the injuries are considered in the context of the facts, that there was bitter enmity between the parties, that at an unearthly hour the miscreants armed with various weapons like crow-bars and sticks trespassed into the house of the deceased after breaking upon the door, dragged him out of the bed room to the front yard and beat him to death, and that whoever came to his rescue was beaten up, the only conclusion that can be drawn was that they formed the unlawful assembly with the common object of committing murder of the deceased and as soon as their objective was achieved they left the place. "that is exactly what we have to observe in the present case that the injuries cannot be viewed in isolation. The launching of assault with deadly weapons by more than five persons resulting into deat of te assaulted person, as in the present case, would clearly provide a common object of causing death of the person with whom the persons of the accused party had grievance or enmity. State of Orissa v. Arjun Das Agarwal and ors reported in 1999 S. A. R. (Criminal) 530 has been canvassed also for application of section 149 or section 34 alongwith section 302 of the IPC in a given case. The observation that when an accused is charged u/s. 302/149 IPC might be convicted u/s. 302 read with section 34 of the IPC will be out of context in the facts of the present case. This decision, therefore, needs no elaboration. Last decision which has been referred to by the Ld. A. P. P. is in the case of Mahesh Balmiki @ Munna v. State of Madhya Pradesh reported in 1999 S. A. R. (Criminal) 578. Reference has been made to this decision in the context of the argument that there was a single blow which resulted into the death of Becharji Ravaji. A. P. P. is in the case of Mahesh Balmiki @ Munna v. State of Madhya Pradesh reported in 1999 S. A. R. (Criminal) 578. Reference has been made to this decision in the context of the argument that there was a single blow which resulted into the death of Becharji Ravaji. Repelling that submission this decision has been canvassed for the proposition that there cannot be a general proposition that in all cases where there is single blow section 302 would not be attracted and section 304 might be attracted. In our opinion this is also out of context inasmuch as Dhariya blow given on the head of deceased Bechharji has resulted into the death and in the facts of the case there is no question of applying any exception to section 300 of the IPC so as to bring the case within the ambit of section 304 of the IPC. ( 18 ) IN the above view of the present case and bearing in mind the overwhelming evidence led by the prosecution, there is no other alternative except to uphold the findings of the Ld. Addl. Sessions Judge and ultimate conviction and sentence under the aforesaid provisions of the IPC. In the result, this appeal is dismissed. .