Judgment R.N.Prasad, J. 1. The appellants have preferred this appeal against the judgment and order dated 18.9.1987 passed by Sessions Judge, Siwan in S.T. No. 63/84 whereby appellants Dhupa Chamar and Tokha Chamar have been convicted for the offence under section 302 I.P.C. and sentenced to undergo imprisonment for life. They have also been convicted for the offence under section 148 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Appellants Doma Chamar and Adalat Chamar have been convicted for the offence under section 302/149 I.P.C. and sentenced to undergo imprisonment for life. They have further been convicted for the offence under sections 148 & 323 I.P.C. and sentenced to undergo rigorous imprisonment for one year and six months respectively. Appellants Ram Hoshiyar Chamar, Swaminath Chamar and Rajbali Chamar have been convicted for the offence under section 147 I.P.C. and sentenced to undergo rigorous imprisonment for six months. Appellant Ram Hoshiyar Chamar has further been convicted for the offence under section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months. 2. The prosecution case as has been stated in the fardbeyan is that one Sankeshiya Devi gave her fardbeyan on 14.6.1983 at about 11.30 A.M. that in preceding night at about 8 P.M. there was incident of assault by fist and slaps between her son Ramu Chamar and Tokha Chamar. Due to the aforesaid reason at 8 A.M. on 14.6.1983 Dhupa Chamar, Tokha Chamar, Doma Chamar and Adalat Chamar armed with bhala and Swaminath Chamar with brickbats came near her house and started abusing. On hearing abuse Khedru Chamar, Jhagru Chamar, her son Dharam Chamar, Karam Chamar and her daughter-in-law Rampatia Devi and Sarda Devi came. Her daughter-in-law Ram Patia Devi protested on which Dhupa Chamar gave bhala blow on the left side of her neck. She tried to run way but fell down near the house of Hira and died. Adalat Chamar gave bhala blow to her daughter-in-law Sarda Devi. Tokha Chamar gave bhala blow to her son namely, Dharam Chamar causing injury on his person. Swaminath Chamar assaulted her son with brick- bats. She raised alarm on which Doma Chamar gave bhala blow on the right side of her chest. She fell down. People of the village came and took her son Dharam Chamar and daughter-in-law Sarda Devi to Siwan Sadar Hospital. 3. On the aforesaid fardbeyan, Ext. 2, a formal First Information Report, Ext. Swaminath Chamar assaulted her son with brick- bats. She raised alarm on which Doma Chamar gave bhala blow on the right side of her chest. She fell down. People of the village came and took her son Dharam Chamar and daughter-in-law Sarda Devi to Siwan Sadar Hospital. 3. On the aforesaid fardbeyan, Ext. 2, a formal First Information Report, Ext. 3 was drawn. Investigation was taken up and on completion of the investigation charge-sheet was submitted against seven persons. The court took cognizance and committed the case to the court of sessions for trial. The trial court convicted the appellants as indicated above. 4. The defence of the appellants was that Ramu Chamar the son of the informant had taken torch and lota of appellant Doma Chamar while he was going to ease. Doma Chamar demanded torch and lota which he refused. Thereafter, incident of assault took place between them for which a police case had been lodged. In the incident appellants Dhupa Chamar and Doma Chamar had also received injuries. They were treated in the hospital. In support of their case appellants examined three witnesses. D.W. 1 Sheo Lochan Nonia was examined to say different manner of occurrence. D.W. 2 Bhulan Yadav was examined to say that there was land dispute. D.W. 3 proved writing of Mukhia of Khanauri Gram Panchayat. 5. The prosecution in support of its case examined 12 witnesses, out of whom P.Ws. 1, 2, 3, 4, 5, 6 and 7 have claimed to have seen the occurrence. P.W. 11 is the informant and eye witness to the occurrence. P.W. 8 is witness to seizure of blood stained earth and three Bhalas. P.W. 10 proved inquest report. P.W. 9 has been tendered. P.W. 12 has proved postmortem reports of deceased Rampatia Devi and Dharam Chamar, Exts. 7 & 7/1. One court witness, namely, Digamber Prasad Verma was also examined as C.W. 1. He is investigating officer of the case. 6. In the occurrence two persons, namely, Rampatiya Devi, daughter-in-law of the informant and Dharam Chamar, son of the informant, were killed. Dharam Chamar died just after the occurrence. The occurrence took place in broad day light on 14.6.1983 at about 8 A.M. The fardbeyan of the informant was recorded at 11.30 A.M. i.e. after three and half hours of the occurrence. Therefore, virtually the question of concoction of the case and false implication is ruled out. Dharam Chamar died just after the occurrence. The occurrence took place in broad day light on 14.6.1983 at about 8 A.M. The fardbeyan of the informant was recorded at 11.30 A.M. i.e. after three and half hours of the occurrence. Therefore, virtually the question of concoction of the case and false implication is ruled out. The houses of the eye witnesses were near the place of occurrence. The witnesses are mostly related to the informant but their evidence cannot be thrown out only on the ground that they are related to the informant/deceased. In such a situation the requiremnet of law is that their evidence should be scrutinised with care and caution. 7. P.W. 11 is the informant and is mother of the deceased Dharam Chamar and mother-in-law of deceased Ram Patia Devi. The informant P.W. 11 is an eye witness to the occurrence. In the First Information Report she named only five persons but after investigation chargesheet was submitted against seven persons. The witness in her evidence also named Ram Hoshiyar Chamar and Rajbali Chamar and stated that they also participated in the occurrence and assaulted. The witness supported the prosecution case and stated that appellants Dhupa Chamar, Tokha Chamar, Doma Chamar, Adalat Chamar armed with bhala, appellant Ram Hoshiyar Chamar with lathi and appellant Swaminath Chamar and Rajbali Chamar with brick-bats came near the house at about 8 A.M. on the date of occurrene. They started abusing which was protested by her daughter-in-law Ram Patia Devi. Dhupa Chamar gave bhala blow on her neck due to which she fell down near the house of Hira and died. Appellant Adalat Chamar assaulted her daughter-in-law Sarda Devi with bhala. Appellant Tokha gave bhala blow to his son Dharam Chamar. Appellant Rajbali Chamar and Swaminath Chamar assaulted her son Karam Chamar with brick-bats. Appellant Ram Hoshiyar Chamar assaulted her son Ramu with lathi. When she raised alarm appellant Doma Chamar assaulted her with bhala. The witnesses namely, P.Ws. 1, 2, 3, 4, 5, 6, and 7 came there and saw the occurrence. The injured Sarda Devi and Dharam Chamar were sent to the hospital prior to coming of the police. In the preceding night her son Ramu Chamar had gone to demand money for irrigation of land from Tokha on which there was incident of assault with fist and slaps. Due to the said reason the occurrence was committed. The injured Sarda Devi and Dharam Chamar were sent to the hospital prior to coming of the police. In the preceding night her son Ramu Chamar had gone to demand money for irrigation of land from Tokha on which there was incident of assault with fist and slaps. Due to the said reason the occurrence was committed. In cross-examination the witness stated that there was no enmity with the appellants from before. She denied knowledge of any countercase. The witness was cross- examined at length but nothing cogent could be elicited to discredit the evidence of the witness. 8. The other eye witnesses, namely, P.Ws. 1, 2, 3, 4, 6 & 7 have also supported the prosecution case on the material points. They stated that they were at the place of occurrence and had seen the actual occurrence. On the day of occurrence Dhupa Chamar, Tokha Chamar, Doma Chamar and Adalat Chamar with bhala, appellant Ram Hoshiyar Chamar with lathi, Swaminath Chamar and Rajbali Chamar with brickbats came at the place of occurrence. They started abusing. Rampatia Devi, daughter-in-law of the informant, protested. Appellant Dhupa Chamar gave bhala blow on her neck. She fell down and died at the spot. Appellant Tokha Chamar gave bhala blow to Dharam Chamar causing injury on his person. Appellant Rajbali Chamar and Swaminath Chamar assaulted Ramu Chamar, P.W. 7. Appellant Ram Hoshiyar Chamar gave lathi blow to Ramu P.W. 7. Appellant Doma Chamar assaulted the informant, P.W. 11. The witnesses also stated that blood had fallen on the ground. In preceding night there was an incident of assault by fist and slaps between son of the informant namely Ramu and Tokha Chamar, when Ramu had gone to demand money for irrigation. The witnesses were cross-examined at length but nothing cogent could be elicited to doubt their evidence. 9. P.W. 5 is also an eye witness to the occurrence. She stated that Dhupa Chamar gave bhala blow to Ram Patia Devi on her neck. She fell down due to injury at the place of occurrence and died. She stated only with regard to assault on Rampatia, the daughter- in-law of the informant. She did not say with regard to assault on deceased Dharam Chamar and other witnesses. However, except the aforesaid witness the evidence of other witnesses is consistant on material points and they have supported the prosecution case. 10. She stated only with regard to assault on Rampatia, the daughter- in-law of the informant. She did not say with regard to assault on deceased Dharam Chamar and other witnesses. However, except the aforesaid witness the evidence of other witnesses is consistant on material points and they have supported the prosecution case. 10. The Doctor who held postmortem examination over the dead bodies of Ram Patia Devi and Dharam Chamar, has not been examined in this case. However, postmortem reports have been brought on record and have been proved as Exts. 7 & 7/1. Ext. 7 is postmortem report of Ram Patia Devi. The doctor has found penetrating wound near the apex of the chest and has opined that it was caused by sharp cutting pointed weapon. Cause of death was shock and haemorrhage due to the aforesaid injury. Ext. 7/1 is post-mortem report of Dharam Chamar. The doctor found injury on the person of the deceased. However, nature of the injury was described as simple. The doctor opined that death was due to toximia and shock resulting in respiratory and cardiac failure due to the bursting of the appendix and intestinal obstruction resulting in extreme dehydration. He also opined that injury found on the person of the deceased was not sufficient to cause death. However, from the post-mortem reports it is manifest that ante mortem injuries were found on the persons of the deceased, namely, Ram Patia and Dharam Chamar. 11. The investigating officer has been examined as Court witness, C.W. 1. The investigating officer stated that he recorded the fard beyan of Sankesia, P.W. 11 in presence of the witnesses. He found the dead body of Ram Patia Devi near the house of Hira. He also found blood at three places at the place of occurrence and also trampling marks. He also found bhala with blood stains concealed in the grass. He seized bhalas and prepared seizure list. He also recorded the statement of the witnesses at the place of occurrence. The witness stated that he recorded the fardbeyan of appellant Doma Chamar. However, he stated that he did not receive any injury report of appellant Dhupa Chamar and Doma Chamar. 12. Thus on consideration of oral evidence of witnesses as well as evidence of the Investigating Officer it is evident that the prosecution has succeeded in proving its case beyond all reasonable doubt. However, he stated that he did not receive any injury report of appellant Dhupa Chamar and Doma Chamar. 12. Thus on consideration of oral evidence of witnesses as well as evidence of the Investigating Officer it is evident that the prosecution has succeeded in proving its case beyond all reasonable doubt. The Doctor, no doubt, has not been examined but the postmortem reports have been brought on the record. The postmortem reports which have been discussed above, support the allegation of assault as the doctor has found injuries caused by sharp pointed weapon on the person of the deceased. The doctor who examined the injured has also not been examined but the injury reports have been brought on the record as Exts. 6 to 6/2. 13. Learned counsel for the appellants, however, contended that appellant Tokha Chamar cannot be held guilty for the offence under section 302 I.P.C. or under section 302/149 I.P.C. as the postmortem report, Ext. 7/1 says that injury found on the person of deceased Dharam Chamar was not found sufficient to cause death rather the Doctor opined that he died due to toximia. In this regard it would be pertinent to mention herein that in the occurrence two persons, namely, Ram Patia Devi and Dharam Chamar were killed. Dharam Chamar died after six days of the occurrence in the Hospital. Tokha Chamar had given bhala blow on the person of Dharam Chamar. Specific case of the prosecution is that appellants came variously armed and assaulted the deceased and the P.Ws. It is true that the doctor has opined that injury found on the person of Dharam Chamar was not sufficient to cause death but at the same time the author of the injury namely Tokha Chamar was member of an unlawful assembly which committed murder of two persons. Therefore, even if it is accepted that injuries found on the person of Dharam Chamar were not sufficient to cause death he will be vicariously liable for committing murder of Ram Patia Devi as he was one of the members of the said unlawful assembly. Therefore, we find that there is no substance in the submission of learned counsel for the appellants. 14. Learned counsel for the appellants next pointed out that for the said occurrence a counter-case was lodged by appellant Doma Chamar. The First Information report of the said case has been marked as Ext. A/1. Therefore, we find that there is no substance in the submission of learned counsel for the appellants. 14. Learned counsel for the appellants next pointed out that for the said occurrence a counter-case was lodged by appellant Doma Chamar. The First Information report of the said case has been marked as Ext. A/1. In the said incident appellants Doma Chamar and Dhupa Chamar had sustained injuries but the prosecution has in fact suppressed the actual manner of occurrence and as such appellants deserve acquittal. In this connection it is pertinent to mention herein that not even suggestion was given to the prosecution with regard to manner of occurrence as has been alleged in the counter case. However, defence has examined D.W. 1 to say that the manner of occurrence was different. D.W. 1 in fact has given different story. The witness stated that Karam assaulted his wife and chased Doma. However, after assault three brothers namely, Karam, Dharam and Ramu fought amongst themselves and then he ran away. The witness did not say that Doma was also assaulted by Karam, Dharam and Ramu which is the case in the counter case lodged by Doma Chamar, Ext. A/1. Therefore, evidence of D.W. 1 is not consistant to the counter case Ext. A/1. The Investigating Officer, C.W. 1, stated that he did not receive injury report in counter case. Further more, in the First Information Report, Ext. A/1, there is nothing about the murder of Ram Patia Devi and Dharam Chamar or assault on the prosecution witnesses. Therefore, in such circumstances it is difficult to accept the contention of the learned counsel for the appellants, rather the prosecution has succeeded in establishing its case beyond all reasonable doubts. Thus we are of the view that there is no substance in the submission of learned counsel for the appellants. 15. Learned counsel for the appellants next contended that there is no evidence on the record that all appellants assaulted the deceased. Therefore, case of each individual should be considered separately. In this regard it is pertinent to mention herein that it is specific case of the prosecution that the appellants came together variously armed and committed the crime. There was no suggestion by the appellants to the prosecution witnesses that there was free fight between the parties. Counter case lodged by the appellants, Ext. In this regard it is pertinent to mention herein that it is specific case of the prosecution that the appellants came together variously armed and committed the crime. There was no suggestion by the appellants to the prosecution witnesses that there was free fight between the parties. Counter case lodged by the appellants, Ext. A/1, also does not indicate that there was free fight. In case of free fight the case of individual may be seen but where there is no such case then it is difficult to consider the case of individual, as if any member of unlawful assembly commits offence all the members of the said assembly shall be vicariously liable for the commission of the offence. In the case of Pundalik Mahadu Bhane & ors vs. State of Maharashtra, 1998 S.C.C. (Criminal) 202 it has been held by the Apex Court that in case of sudden and free fight between two groups each of the persons involved therein would be liable for his individual act and not vicariously. Nothing has been brought on the record to show that there was free fight between the prosecution and the defence Ext. A/1 brought on the record by the appellants also does not indicate that there was free fight between the parties rather evidence of the prosecution is that all accused persons came variously armed participated in the said occurrence either in assaulting the deceased or the witnesses. Therefore, they can safely be termed as member of the unlawful assembly which committed murder and such person can be vicariously liable for commission of murder. Thus on consideration as discussed above we find no merit in the contention of the learned counsel for the appellants. 16. Thus on consideration as discussed above, it is manifest that conviction of appellant Tokha Chamar under section 302 I.P.C. is not fit to be sustained as the postmortem report shows that injury found on the person of Dharam Chamar was not sufficient to cause death but he was one of the members of unlawful assembly in which two persons were killed. Thus he is liable for conviction under section 302/149 I.P.C. Accordingly, his conviction under section 302 I.P.C. is converted under section 302/149 I.P.C. However, except as aforesaid we find no merit in this appeal. 17. Accordingly, the appeal is dismissed. The appellants are on bail. Thus he is liable for conviction under section 302/149 I.P.C. Accordingly, his conviction under section 302 I.P.C. is converted under section 302/149 I.P.C. However, except as aforesaid we find no merit in this appeal. 17. Accordingly, the appeal is dismissed. The appellants are on bail. Thus their bail bonds are cancelled and they are directed to surrender before the trial court to serve the remaining period of sentence.