Judgment B.N.P.Singh, J. 1. Gravamen of accusations against 16 number of accused persons are that in the early morning, at about 6.30 a.m. on 26th October, 1985, while Jagdish Yadav (P.W.10) had gone to the house of Kurha Yadav to see his ailing aunt, they holding fire arms, opened fire, gained their access in the inner apartment of house, shot shower of bullets, and three female members and a minor child as such, sustained injuries on their persons. The accusation against five accused persons was that they from the tiled roof of the house, took recourse to firing when Anugrah Yadav, son of Jagdish Yadav, sustained fatal injuries at the hands of Chandeshwar Yadav. Accusation against rest five number of accused persons was that they standing outside the house, with arms, allegedly assaulted Vijay Yadav and Subhash Yadav. Motive assigned behing the incident was an attempt, made by Ghura Mistry to get possession of three decimals of land in Barahi Bazaar, which had been purchased by father of Jagdish Yadav from Chandradip Sao. The fardbeyan of Jagdish Yadav with these accusations, was recorded at 14.45 hours on 26th October, 1985 by Shri Ashok Kumar Singh, Officer Incharge, Rafiganj Police Station, on strength of which first information report was drawn up, and investigation commenced. 2. After Police had been set in motion, investigating Officer (P.W.13) visited place of occurrence, recorded statement of witnesses, got injured examined by doctor, autopsy held over the dead body of Anugrah Yadav, prepared inquest report, seized blood stained earth, and on receipt of autopsy report, eventually laid charge sheet before the Court. In the eventual trial, that commenced, the State examined altogether 14 witnesses, who were family members of the deceased, some of those, who demonstrated their familiarity with the incident, two doctors, Police Officer and also formal witnesses. 3. Defence of the appellants both before the court below and this Court had been plain denial of entire allegations and they ascribed their false implication, due to land dispute persisting with Ghura Mistry, in aid of whom, appellants had resorted to violence. 3. Defence of the appellants both before the court below and this Court had been plain denial of entire allegations and they ascribed their false implication, due to land dispute persisting with Ghura Mistry, in aid of whom, appellants had resorted to violence. The defence too had chosen to examine five number of witnesses ostensibly to counter allegations attributed to the appellants, and Chandeshwar Yadav, who was suggested to be assailant of Anugrah Yadav (deceased), also took plea of alibi to persuade court to believe his physical Impossibility of presence at the place of occurrence at the material time of incident. The trial court, however, negativing plea of innocence of the accused persons, while acquitted those who had been saddled with the allegation of assault, theft and committing offence of rioting under section 147 of the Indian Penal Code (IPC) recorded conviction against Chandeshwar Yadav under section 302/149 IPC and sentenced him to suffer rigorous imprisonment for life. Though Chandeshwar Yadav also stood charged under section 302 IPC simpliciter no finding appears to have been explicitly recorded by the trial court on this score. Though rest appellants too were charged under section 302/149 IPC, no explicit finding was recorded on this count too. As for appellant Ramadhyan Yadav, and rest 24 accused persons (excluding Chandeshwar Yadav), the trial court recorded finding of guilt under section 307/149 IPC and they too were sentenced to suffer rigorous imprisonment for life. Ramadhyan Yadav and 19 others were also convicted under section 27 of the Arms Act for which they were sentenced to suffer rigorous imprisonment for three years. All the sentences were, however, directed to run concurrently. 4. Though all the 26 number of accused persons who on some count, suffered conviction and were sentenced to suffer imprisonment for different terms, it seems that Ram Briksh Mistry, who was one of the appellants, died during pendency of the appeal and as such, appeal as against him, stood abated. 5. Though manifold contentions were raised at Bar on behalf of the appellants to assail the findings recorded by court below, before we give them our due consideration for appreciation of them, we consider it apt and desirable to narrate with brevity the narrations made by the witnesses which have been broadly spelt out by the court below in its judgment. Though manifold contentions were raised at Bar on behalf of the appellants to assail the findings recorded by court below, before we give them our due consideration for appreciation of them, we consider it apt and desirable to narrate with brevity the narrations made by the witnesses which have been broadly spelt out by the court below in its judgment. We may begin our exercise with narration made by Jagdish Yadav (P.W.10), who was none else but the maker of fardbeyan. While reiterating his earliest version, rendered before the Police, the witness states that while he had been to the house of Kurha to see his ailing aunt, appellants, came holding arms, gained their access in the inner apartment of house, and took recourse to firing. Explicit accusations were attributed to Ramdhyan Yadav for causing gun shot injuries to Shanti Devi. Accusation attributed to Rajdeo Bhagat was about causing gun shot injury to Sangita Kumari, and likewise accusation attributed to Baijnath Mahto, was about causing injury to Rupkalia Devi and Santosh Kumar, a minor child. Narrative made by Jagdish Vadav would further show that Chandeshwa Yadav, Suresh Mistry, Chamari Mistri, Chandradeo Mistry and Mahendra Mistri fired shots from the tiled roof of the house, by which Anugrah Yadav sustained fatal injury and dropped dead in the courtyard. The witness states to have witnessed incident from a window of the room of the house. About injuries sustained by Subhash Yadav and Bijay Yadav, the witness stated that Subhash Yadav stated about Ghura Mistri, Chanarik Mistry, Vijay Yadav and Jagdeo Yadav, being armed with rifle, and he having suffered injuries with hard and blunt substance at the hands of Shyam Sundar Yadav, and Vijay Nadav sustaining injury at the hands of Suresh Yadav, with hard and blunt substance. 6. Raghunandan Nadav (P.W.2) was admittedly not an eye witness either to the fatal injury sustained by Anugrah Yadav, or injuries sustained by other family members and a minor child, as the witness would state that shortly on hearing alarm raised from the house of Chandradeo, when he rushed there, he noticed Anugrah Yadav dead in the courtyard and it was from son and daughter-in-law, that he could know about Chandeshwar Yadav having shot dead Anugrah, and also Shanti Devi, Rupkalia Devi, Sangita and Santosh having suffered gun shot injury on their persons. Though the witness stated to have known the names of the assailants from the daughter-in-law and the son, he would not name them. Rajnandan Yadav (P.W.3) states that as his aunt was ailing, family members of Jagdish Yadav had come to attend her. The witness stated that the assailants holding arms, stepped in courtyard of the house and in similar terms and vein stated also about Anugrah Yadav having suffered injuries at the hands of Chandeshwar Yadav from the roof of the house and Shanti Devi, Sangita Devi, Rupkalja and Santosh too having suffered gun shot injuries at the hands of Ramdhyan Yadav, Rajdeo Bhagat, and Baijnath Mahto. As for Suresh Mistry, Chamari Mistri, Chandradeo Mistry and Mahendra Mistri, the witness states that they too took recourse to firing from the tiled roof of the house. Other witness examined by the State who too claimed to be eye witness was Chandradeo Yadav (P.W.4). The witness states that the appellants came in the house and searched for Jagdish Yadav (P.W.10) and it was on exhortation of Bhola Yadav, that Chandeshwar Yadav opened fire from the tiled roof of the house causing gun shot injury to Anugrah Yadav who dropped dead in the courtyard. This witness too states about Shanti, Sangita, Rupkalia and Santosh having suffered gun shot injuries at the hands of Ramdhyan Yadav, Rajdeo Bhagat, and Baijnath Mahto. Though he states also about Subhash Yadav and Vijay Yadav having suffered injury with hard and blunt substance, the witness did not name the assailants. 7. Subhash Yadav (P.W.5) and Vijay Yadav (P.W.6) were not the witnesses either to the killing of Anugrah Yadav or family members and minor child sustaining gun shot injury on their persons. These two witnesses, however, stated to have noticed Ghura Mistry, Ram Briksh Mistry, Chanarik Mistry, Vijay Nadav and Jagdeo Nadav standing outside door of the house, when they suffered injuries on their person at the hands of Shyam Sunder Yadav. 8. Now we may switch over to the testimony of Sangita Kumari (P.W.7). The evidence of this witness was confined to Anugrah Nadav sustaining gun shot injuries at the hands of Chandeshwar Yadav. She states also about she too having suffered gun shot injuries on her eye lids and other part of the person. 8. Now we may switch over to the testimony of Sangita Kumari (P.W.7). The evidence of this witness was confined to Anugrah Nadav sustaining gun shot injuries at the hands of Chandeshwar Yadav. She states also about she too having suffered gun shot injuries on her eye lids and other part of the person. Rupkalia Devi (P.W.8) was not considered to be competent to take oath in view of her minority and hence there is nothing material in her evidence to merit consideration. Deokalia Devi (P.W.9) wife of Indradeo Yadav, states, that as her mother-in-law was ailing, Jagdish Nadav had come along with his family members to see her, and this witness confined herself only to the killing of Anugrah Yadav at the hands of Chandeshwar Yadav. 9. Dr. Chandrashekhar Prasad (P.W.11) stated to have held autopsy over the dead body of Anugrah Yadav on 27th October, 1985. The doctor states to have noticed multiple black spots, about 11 in numbers, measuring 1/8" over chest and right side of abdomen and epigastic area besides 9 black spots on other part of person. All these black spots in estimation of the doctor, were caused by fire arms, and cause of death in his estimation was due to injury on vital organs, such as lung, lever and heart. On dissection of head, the doctor stated to have noticed blood clot under skin of frontal bone from where two small pellets were recovered, and on dissection of chest, he found right lung punctured and lacerated at two places from where pellets were recovered. On dissection of heart, it was found ruptured, from where one pellet was recovered. Liver too was found punctured. The doctor stated to have recovered number of pellets from body of the deceased. The doctor admits to have not mentioned the word injury or wound in the post mortem report. 10. Dr. Shukhendra Kumar Jain (P.W.12) states to have examined injured who suffered gun shot injuries on their persons. As has been stated by the doctor, Santosh Kumar suffered four number of pellet injuries on different parts of person caused by gun. Dineshwar Yadav too is shown to have been examined by the doctor on 30th October, 1985 and on his person too, the doctor noticed one pellet injury on right lower eye lid. As has been stated by the doctor, Santosh Kumar suffered four number of pellet injuries on different parts of person caused by gun. Dineshwar Yadav too is shown to have been examined by the doctor on 30th October, 1985 and on his person too, the doctor noticed one pellet injury on right lower eye lid. On 26th October, 1985, Sangita Kumari was examined by the doctor and the doctor noticed pellet injury on right eye with echymosis of conjunctiva/hazy/cornea/rupture of cornea. This injury was considered to be grievous but the doctor opined that it may be due to firearm. There was also pellet injury on the back of right hand, above the right forefinger and right thigh of the injured. The other injured examined by the doctor on 30th October, 1985 was Sita Devi on whose person too, the doctor stated to have noticed pellet injuries three in numbers on inner part of left thigh and in all seven pellet injuries on different parts of person, caused by fire arms. Subhash Yadav and Vijay Yadav too were shown to have been examined by the doctor on 30th October, 1985 on whose persons too, there were bruises caused by hard and blunt substance. Shanti Devi was shown to have been examined by the doctor on 26th October, 1985, on whose person the doctor noticed nine pellet injuries caused by fire arms, and on the same day, Rupkalia Devi too was examined, on whose person, the doctor noticed four pellet injuries caused by fire arms. 11. Ashok Kumar Singh (P.W. 13) happens to be Investigating Officer of the case who stated to have recorded fardbeyan of Jagdish Yadav (P.W.10) on 26.10.1985, pursuant to which investigation commenced on drawal of first information report. The witness states to have visited place of occurrence, prepared inquest report, seized blood stained earth, got injuries of the injured, examined by the doctor and also got autopsy held over the dead body of Anugrah Yadav. The last witness Bashishtha Narain Singh was an Advocate Clerk, who happens to be P.W.14 and he did nothing but placed on record, the first information report. This is all the evidence that has been adduced on behalf of the State; 12. Now we may notice some of the arguments which have been advanced on behalf of the appellants for our consideration. This is all the evidence that has been adduced on behalf of the State; 12. Now we may notice some of the arguments which have been advanced on behalf of the appellants for our consideration. Contentions were raised that though death of Anugrah Yadav was in estimation of the doctor, caused by fire arms, for which number of multiple black spots were noticed on the dead body of the deceased, the doctor nowhere in his evidence stated about these injuries, to be lacerated, as is expected from the fire arms, and on these premises it is also sought to be urged that since positive finding recorded by the doctor was not in conformity with the oral evidence of the eye witnesses, the glaring infirmity that has crept in the prosecution case, persuades one to reject the prosecution case in entirety. In this context, we may use the report of the opinion of H.W.V. Cox, a celebrated author on medical jurisprudence. The author says that along with flame from the barrel, black powder produces a jet of carbon containing gas which at contact and close ranges, may be deposited upon clothing or skin. Similar views have been expressed by Modi also, another reputed author on medical jurisprudence who is of the view that though the injuries produced by the projectiles discharged from firearms, present the characteristic of lacerated wounds but their appearance vary according to nature of the projectile, the velocity at which it was travelling at the moment of impact, distance of the firearm from the body at the moment of discharge and the angle at which it struck the part of the body. Regard being had to the positive finding recorded by the doctor, who was emphatic that these injuries were caused by fire arms, notwithstanding the fact that no length and depth of the injury were mentioned in the post mortem report, in view of explicit ocular evidence of the eye witnesses, findings recorded by the doctor cannot be considered to be counter to narrations made by them. We may usefully quote the observations made by the Apex Court reported in (2001) 7 SCC 318 (Anil Rai V/s. State of Bihar) in which observations were by the Apex Court that reliable and direct evidence should not be rejected by hypothetical medical evidence and if it appears to be and even when medical evidence shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of the eye witness should be accepted by the Court. We accordingly find that the findings recorded by doctor was not at variance to testimony of ocular witnesses warranting rejection of either testimony of medical expert or ocular witnesses. The doctor was quite emphatic in his evidence about recovery of four pellets which were lodged in the body of the deceased and that too falsifies the prosecution version, about deceased having suffered gun shot injuries on his person. 13. The other contention raised on behalf of the appellants was that though the dead body was received in the mortuary at 7.30 a.m. on 27th October, 1985, it was quite unusual to find that the post mortem too was held by the doctor instantaneously at the same time. Since the doctor lost no time to hold autopsy shortly on its receipt in the mortuary, we do not find it an unusual feature of the prosecution case to reject its bona fide. Yet it is sought to be urged that though the Investigating Officer says about seizure of blood stained earth from the place of occurrence and also preparation of inquest report, but none of these documents were brought on the record by the State, and on this score too the prosecution case deserves rejection. No doubt, though the Investigating Officer says about preparation of inquest report, the same has not been brought on the record, but since inquest report is not a basic and substantive piece of evidence prepared by the Police Officer, failure of the State to bring it on the record would not make exclusion of consideration of other evidence that have been brought on the record. True it is that seizure memo too about seizure of blood stained earth was not placed on the record, but these are matters of petty details which do not befog the real issue and for bona fide lapses on part of the Investigating Officer, prosecution is not be a casualty, and for which a good number of decisions of the Courts are available. One of the arguments canvassed at Bar on behalf of the appellants was that it would appear from the post mortem report, which has been brought on the record, that it did not bear the case number which leads to an inference that by that time the case had not been registered by the Police, and in fact no inquest report was prepared by the Police, and on this score reference may be had to the observations made by the Apex Court of the land reported in AIR 2002 SC 2945 (Nallabothu Venkaiah V/s. State of Andhra Pradesh), that non-mention of title of crime in inquest report cannot be but either minor omission and bona fide error or casual approach on the part of the Investigating Officer which did not alter substratum of the prosecution case. 14. Learned counsel for the appellants would urge that though Doman Yadav and Naresh Yadav were shown to have rendered first information to the Police about the incident, none of them were examined at trial by the State and on this score too, a vital clue had been lacking in the prosecution version. 14. Learned counsel for the appellants would urge that though Doman Yadav and Naresh Yadav were shown to have rendered first information to the Police about the incident, none of them were examined at trial by the State and on this score too, a vital clue had been lacking in the prosecution version. In quick succession, it is sought to be urged that since first hand information was rendered by Doman Yadav and Naresh Yadav, that was the earliest version of the prosecution, and since those versions were suppressed by the State, prosecution case deserves to be rejected in entirety, and on this score too we may refer to the testimony of Raj Nandan Yadav (P.W.3) who says that though after an hour of the incident, chowkidar was sent to the Police Station, but he was not briefed about the details of the incident, and that apart, it is no longer res integra that cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence, cannot be treated as earliest version of the prosecution and reliance on this socre can be placed on a decision of the Apex Court reported in AIR 1970 SC 1566 (Tapinder Singh V/s. State of Punjab and another). No other circumstance would persuade us to believe suppression of the earliest version of prosecution, by the State. Yet other argument canvassed on behalf of the appellants was that though occurrence took place at 6.30 a.m. on 26th October, 1985, it was not before 2.45 p.m. that fardbeyan of Jagdish Yadav was recorded by the Police. Apart from delay in setting criminal law in motion, learned counsel would urge that there is yet another infirmity in the prosecution case which cannot be lost sight of. It is urged that though fardbeyan was recorded on 26th October, 1985, endorsement made by the Chief Judicial Magistrate on the body of the first information report would unmistakably show its receipt in the office of the Chief Judicial Magistrate on 29th October, 1985, and on these premises, learned counsel for the appellants would urge that since delay had not been explained by the State, on this score entire prosecution case has to be rejected. Learned counsel for the State on this score would draw our attention to some of the observations made by the Court below wherein it was noticed that since annual vacation intervened after 19th October, 1985, delay of 2-3 days in receipt of first information report in the office of the Chief Judicial Magistrate would not introduce, such a vital infirmity to militate against the bona fide of the prosecution case. We may not lose sight of this fact that the Investigating Officer too was stating at trial that Police Station situates at a distance of 16 Kms. from the place of occurrence and police shortly on receipt of information reached the place of occurrence at about-1 p.m. and within 1-1/2 hours, farabeyan of Jagdish Yadav was recorded by him. 15. Learned counsel for the appellants would draw our attention to the observations made by the Apex Court of the land reported in (2001)2 BLJ 176 (State of Rajasthan V/s. Teja Singh and ors.) in which observations were made that even if there was delay of two days in transmission of the first information report to the office of the Chief Judicial Magistrate, that delay would persuade the Court to disbelieve bona fide of the prosecution case and also promptitude, with which Police is expected to have acted. We may, however, take notice of the observation made by the Apex Court in a recent decision, and we refer to the case reported in (2001) 7 SCC 318 (Anil Rai V/s. State of Bihar) (supra). The Apex Court while considering the question of import of delay in transmission of first information report in the office of the Chief Judicial Magistrate, observed that delay in sending copy of the first information report to the Magistrate would not justify the conclusion that the investigation was tainted where first information report is shown to have been recorded promptly and investigation started on that basis. The Apex Court also took the view that not every delay, but only extraordinary and unexplained delay would matter. The Apex Court also took the view that not every delay, but only extraordinary and unexplained delay would matter. Catena of decision on this score can be referred to and we may usefully refer to a decision of this Court reported in 2002 (3) PLJR 76 (Uday Kant Singh @ Udai Singh V/s. State of Bihar) in which it was noticed that in case where shortly after receipt of fardbeyan, investigation commences, that cannot be termed to be tainted, and delayed receipt of the first information report in the office of the Chief Judicial Magistrate would not militate against the bona fide of the prosecution version. We may refer to yet another decision of the Apex Court of the land reported in (2002) 4 SCC 76 (Ashok Kumar Pandey V/s. State of Delhi) in which observations were made by the Apex Court of the land that delay in its despatch to Court or receipt by a Court alone cannot be taken to be a ground to throw out the prosecution case, if otherwise it is found to be proved by unimpeachable evidence. Contentions were raised on behalf of the appellants that narrative made by the witnesses would not fail to suggest that only those who were interested in the prosecution, were examined by the State, entirely to the exclusion of those who could have been independent witnesses. On this score our attention has been drawn to the evidence of P.Ws. 1, 3 and 4 who states about houses, which situate in the neighbourhood of the place of occurrence and on these premises, it is reiterated that since neighbours of these were not examined at trial, testimony of those who were partisan and interested, did not deserve credence. This fact cannot be, however, disputed that when evidence shows collection of independent witnesses at the place of occurrence, it is expected that they should be examined at trial. However, non-examination of such witnesses would not be a ground for rejection of the trustworthy testimony of even interested witnesses who happen to be, family members of injured or the deceased, and without multiplying decisions, on this score, we may refer to a decision of the Supreme Court reported in 1988 SCC (Crl) 279 (Hare Krishna Singh and ors. V/s. State of Bihar). V/s. State of Bihar). In this case State had not examined those witnesses who had seen the incident which happened inside the house but had examined those, some of whom were injured. Since these witnesses happened to be stamped witnesses, there were no good reasons to reject their testimony. As for credibility of Jagdish, it is urged that he may not be in a position to peep through the window to witness the incident happening in the Courtyard, and on this score, we may refer to the testimony of Investigating Officer (P.W.13), who had found a window opening to the Courtyard through which it was quite possible to witness the incident happening in the courtyard. 16. Learned counsel for the appellants would also urge that there was no sign of trampling or footstep on husk kept in room from where Jagdish Yadav claims to have witnessed the incident, and as for motive, argument is that it seems quite unusual that for three decimals of land, appellants would take recourse to violence causing death of Anugrah Yadav and gun shot injuries to three female members and also one child. Though Jagdish Yadav claims to have purchased three decimals of land in Barhai Bazar, it was admitted that neither his name was recorded in the Government record nor receipts were granted in his name, and even decree, in litigation had gone in favour of Ghura Mistry who was rival claimant for the land. Witnesses too admitted that entire incident took place only for three decimals of land, for which Ghura Mistri ransacked his house with aid of other miscreants, to recover possession of the land. Even if decree was in favour of Ghura Mistry, this did not give him licence to take recourse to violence for taking possession over the disputed land, and the motive even if it may appear to be weak and fragile, assumes insignificant role where direct evidence of ocular witnesses are available. 17. Though appellants had been charged under section 302/149 IPC and also section 307/149 IPC, moot question which falls for consideration was as to whether all the appellants came along with Chandeshwar Yadav or other assailants with common intention. In applying Section 149 IPC, Court has to be satisfied about common object and, if there is membership of accused in forming unlawful assembly. In applying Section 149 IPC, Court has to be satisfied about common object and, if there is membership of accused in forming unlawful assembly. The prosecution case that all were armed with gun and took recourse to firing cannot be accepted in entirety, as evidence, placed on the record did show that all of them did not use, their arms, and we may refer to the evidence of P.W.1 who was quite emphatic that among those who were on the roof of the house, only Chandeshwar Yadav had taken recourse to firing. We may also refer to the testimony of P.W.3 who says that only three persons took recourse to firing in the court yard, and one of them fired shots from the roof. The witness was quite explicit that all those who held guns, did not use their arms. Now, we may refer to the testimony of P.W.4 too who says that only three shots were fired in the Courtyard and about Suresh Mistry, Chanarik Yadav, and Mahendra Mistry, the witness says that they did not take recourse to firing from the tiled roof of the house. Now, we may refer to the testimony of P.W.10. This witness says that those who held arms did not use arms indiscriminately and only three persons fired shots in the Courtyard. If the narrative made by the witnesses is given due consideration, reasonable conclusion which can be drawn was that it was Chandeshwar alone who took recourse to firing from the tiled roof of the house, and those who took recourse to firing in court yard are suggested to be Ramdhyan Yadav, Baijnath Mahton and Rajdeo Yadav. The object too for which the appellants were shown to have ransacked the house of Jagdish Yadav cannot be lost sight of. The narratives made by the witnesses manifestly suggest that the appellants Were searching for Jagdish Yadav. The evidence did suggest that since Jagdish Vadav was not visible, he having concealed himself in a room on the roof, some of them took recourse to firing. Faced with such a situation, we find it difficult that all the appellants were members of the unlawful assembly sharing common intention to make themselves constructively liable under section 149 IPC. The evidence did suggest that since Jagdish Vadav was not visible, he having concealed himself in a room on the roof, some of them took recourse to firing. Faced with such a situation, we find it difficult that all the appellants were members of the unlawful assembly sharing common intention to make themselves constructively liable under section 149 IPC. No evidence was ever placed on the record that the appellants came there with an object to execute killing of Anugrah Yadav or to cause bodily injury to three female members and one minor child. 18. As has been discussed earlier, accusation against Chanark Yadav, Vijay Yadav, Jagdeo Yadav, and Ghura Mistry was that they were standing outside the house for which we have referred to the evidence of Subhash Yadav and Vijay Nadav. However, no other witness who claims to be ocular, has ever stated about presence of these four appellants outside the house. Even Raghunandan Yadav, who was sitting along with Subhash Yadav and Vijay Yadav at his house, and had eventually visited house of Jagdish Yadav, does not say about these appellants standing outside house holding arms. This fact too deserves consideration, that Subhash Yadav and Vijay Yadav were disbelieved even by the trial court in establishing injury on their person by hard and blunt substance, at the hands of Shyam Sunder Yadav, and for that reason, it is difficult to accept the prosecution version about presence of these appellants outside the house. As for Suresh Yadav, who was also shown to be a member of the assembly, there has been evidence of only P.W.1. No other witness states about presence of Suresh Yadav and for these reasons in case of Suresh Yadav too we find it difficult to accept the prosecution version about his presence along with other appellants. These five appellants, namely, Chanarik Yadav, Bijay Yadav, Jagdeo Yadav, Ghura Mistry, and Suresh Yadav as such are acquitted of the charges levelled against them and findings recorded by the trial court on this score are accordingly set aside. They are also discharged from the liability of their bait bonds. 19. As for Chandeshwar Yadav, evidence manifestly suggests that he was the assailant of Anugrah Yadav for which there has been testimony of P.Ws. 1, 3, 4 and 10. They are also discharged from the liability of their bait bonds. 19. As for Chandeshwar Yadav, evidence manifestly suggests that he was the assailant of Anugrah Yadav for which there has been testimony of P.Ws. 1, 3, 4 and 10. Positive finding recorded by the doctor had also lent assurance to the ocular testimony of witnesses about Anugrah Yadav having sustained gun shot injuries on his person at the hands of Chandeshwar Yadav and we accordingly find Chandeshwar Yadav who stood charged also u/s 302 IPC simpliciter guilty under section 302 IPC and sentence him to suffer rigorous imprisonment for life. Learned counsel for the appellants on this score has also urged that since Chandeshwar Yadav was not found guilty under section 302 IPC by the trial court, no finding can possibly be recorded under section 302 IPC simpliciter, and instead of multiplying decisions, we may refer to the recent decisions of the Apex Court reported in AIR 2002 SC 2948 in which observations were made by the Apex Court that notwithstanding omission of charge under section 302 simpliciter, conviction can be recorded, in case evidences do suggest the accused to be author of the episode of the murder. 20. Though we have not found that rest of the appellants including Ramswaroop Yadav, Ranjit Yadav, Keshwar Yadav, Bhola Yadav, Chamru Yadav, Ram Sundar Yadav, Shyamsunder Yadav, Ramadhar Yadav, Durga Dayal Mahton, Surajdeo Bhagat, Hardeo Bhagat, Suresh Mistry, Jagdeo Bhagat, Chamari Mistry, Chandradeo Mistry, Mahendra Mistry, Ramdhyan Yadav, Baijnath Mahto and Rajdeo Bhagat too had visited the place of occurrence with common object, yet evidence suggested them armed with weapons and hence we record finding of guilt against them and also Chandeshwar Yadav under section 148 IPC. Conviction and sentence recorded against those (except Suresh Yadav, since acquitted) under section 27 of the Arms Act is upheld. Accordingly, these 20 number of appellants are found guilty under section 148 IPC and are sentenced to suffer rigorous imprisonment for a term of two years. There being no evidence about common object for assaulting three female members and a minor child, finding recorded by the trial court under section 307/149 IPC is set aside. Accordingly, these 20 number of appellants are found guilty under section 148 IPC and are sentenced to suffer rigorous imprisonment for a term of two years. There being no evidence about common object for assaulting three female members and a minor child, finding recorded by the trial court under section 307/149 IPC is set aside. As for Ramdhyan Yadav, Baijnath Mahton and Rajdeo Bhagat, who were suggested to be author of the injuries noticed on the person of Shanti Devi, Rupkalia Kumari, Sangita and Santosh, and also that they stood charged under section 307 IPC, are convicted under section 307 IPC simpliciter for which we sentence them to suffer rigorous imprisonment for a term of three years. However, all the sentences shall run concurrently. Since the abovementioned 19 number of appellants (excluding Chandeshwar Yadav) stood charged under section 307/149 IPC and Chandeshwar Yadav too stood charged also u/s 302/149 IPC for being armed with deadly weapons, conviction under section 148 IPC would not prejudice them. 21. In the result these appeals succeed in part. Trial court is directed to take those appellants into custody forthwith to serve out the sentence whose conviction and sentence have been upheld with modification as indicated above. P.K.Sinha, J. 22 I agree.