JUDGMENT 1. - These two criminal appeals under section. 374(2) Cr.P.C. arise out of the judgment and order dated 1.10.1997 passed by the learned Special Judge (Forged Currency Notes), Jaipur City, Jaipur by which the learned Judge having found the accused-appellants guilty, convicted and sentenced them in the manner stated below:- Name of the appellant Offence under which convicted Sentence awarded Bhola @ Saeed khan 302/149 IPC Life Imprisonment with a fine of Rs. 2,000/-. 147 IPC Six months R.I. with a fine of Rs. 200/-. 323 IPC Six months R.I. with a fine of Rs. 200/-. Pappu @ Dilawar 302 IPC Life Imprisonment with a fine of Rs. 2,000/-. 148 IPC Six months R.I. with a fine of Rs. 200/-. 323 IPC Six months R.I. with a fine of Rs. 200/ 4/25 of the Arms Act Six months R.I. with a fine of Rs. 300/-. Saeed & Naushad 302 IPC Life Imprisonment with a fine of Rs. 2,000/-. 147 IPC Six months R.I. with a fine of Rs. 200/-. 323 IPC Six months R.I. with a fine of Rs. 200/-. Abrar & Gulab 302/149 IPC Life Imprisonment with a fine of Rs. 2,000/-. 147 IPC Six months R.I. with a fine of Rs. 200/-. 323 IPC Six months R.I. with a fine of Rs. 200/-. 2. It was further ordered that if the accused-appellants fail to deposit the amount of fine, they shall further undergo 3 months simple imprisonment. 3. All the sentences were ordered to run concurrently. 4. The prosecution story unfolded during trial is that on 6.1.1996, PW-4 Lal Chand submitted a written report Ex.P/8 at Police Station Galta Gate, Jaipur alleging therein that on 6.1.1996 at about 12.45 p.m., he along with his friend Govind Meena was going to Bhomiyaji-ki-Chhatari on his motor cycle No. RNI 7221 for collecting debt money. While they were on way through Nathiji-ka-Harwada, all of a sudden, accused-Pappu @ Dilawar, Bhola and his 6-7 associates stopped them and asked Govind to stay and in the meanwhile accused-Pappu @ Dilawar and his associates attacked on them and Pappu aimed `gupti' blow at Govinda and other accused started beating Govind. It was further alleged that due to fear he escaped from the scene on his motor-cycle and rushed to the house of Govinda and informed about the incident. It was further alleged that due to fear he escaped from the scene on his motor-cycle and rushed to the house of Govinda and informed about the incident. He then went to the SMS Hospital, but by the time he reached the Hospital, Govinda had passed away. Thereafter, he lodged the report. On the basis of this report, police registered a criminal case for offence under sections. 147, 148, 149, 341, 302 & 323 Indian Penal Code vide FIR, Ex.P/39 and proceeded with the investigation. 5. During investigation, police rushed to the place of incident and prepared site plan, Ex.P/9, seized blood stained soil, marked A and controlled soil marked B vide seizure memo Ex.P/12, and prepared inquest report Ex.P/1. The police recorded the statements of witnesses, namely Lal Cehand, Yograj, Abdul Hamid, Rajendra Gupta, Vijay Solanki and Rajendra Dhariwal under section. 161 Criminal Penal Code On the next day, police seized blood stained cloths of the deceased, viz., Sando Baniyan, under-wear, paint (marked C) and loongi and prepared seizure memo Ex.P/11. Statements of Yograj Pradhan, Rajendra Gupta and Vijay Solanki were also recorded under section. 164 by the learned Magistrate. Accused-Bhola, Pappu, Abrar, Sahid Naushad, Gulab and Bablu were arrested vide arrest memos Exs.P/40 & P/45 and P/58, respectively. 6. Accused-Naushad, Pappu, Abrar, Sahid, Bhola and Gulab furnished information under section. 27 of the Evidence Act on 11.1.1996 as regards the place of incident vide information memos Exs.P/52, P/51, P/50, P/53, P/60 & P/49 respectively, and memos Ex.P/22, P/23, P/25, P/26 and P/27 and P/54, respectively as regards identification of the place of incident by accused were also prepared. At the instance of accused-Pappu, Naushad, Sahid and Bhola, site plan (Ex.P/24) of the place of incident was prepared. 7. On the informations, Ex.P/47 & P/48 of accused-Pappu and Naushad, respectively, the police seized their paints marked E & F and prepared seizure memos Ex.P/2 & P/3, respectively. A Gupti was also recovered from the dicky of scooter RPE 3519 kept concealed by accused-Pappu vide memo Ex.P/4 and site plan, Ex.P/5 of the place of recovery was also made. The scooter was also seized vide memo Ex.P/6 on the information, Ex.P/46 furnished by accused-Pappu. 8. The post-mortem on the dead body of deceased was conducted on 7.1.1996 and post-mortem report Ex.P/33 was prepared. The scooter was also seized vide memo Ex.P/6 on the information, Ex.P/46 furnished by accused-Pappu. 8. The post-mortem on the dead body of deceased was conducted on 7.1.1996 and post-mortem report Ex.P/33 was prepared. The doctors who conducted autopsy found 9 injuries on the person of deceased, including 3 incised wounds, 3 stab wounds and 3 abrasions. The cause of death of deceased, in the opinion of the doctors, was syncope as a result of injury to liver with excessive haemorrhage as mentioned in the post-mortem report, which was sufficient to cause death in the ordinary course of nature. The visceras as mentioned in the post-mortem report were presented, sealed and were handed over to the police. 9. The seized and recovered articles were sent to the forensic science laboratory for chemical examination. The report of Serologist, Ex.P/61 reveals that articles 3 to 9 viz., Baniyan, under-wear, piece of lungi, pent, gupti, pent and pent, respectively were found to be contained with human blood. However, the blood groups of the stains could not be detected. 10. After completion of usual investigation, the police submitted a charge-sheet against the accused persons in the Court of learned Additional Civil Judge Cum-Judicial Magistrate No. 8, Jaipur City, Jaipur. The learned Magistrate having found the case exclusively triable by the Court of Sessions committed the case to the Court of Sessions. 11. The case came to be tried by the learned Special Judge (Forged Currency Cases), Jaipur City, Jaipur. The learned trial Judge, after hearing arguments of both the sides and considering the material placed before it framed charges against the accused-appellants for offence under sections. 147, 148, 302, 302 r/w Section 149, 23 IPC and Section 4/25 of the Arms Act. The charges were read over to the appellants, to which they pleaded not guilty and claimed trial. In the course of trial, the prosecution, in support of its case, examined as many as 17 witnesses and exhibited numerous documents. Thereafter, the accused-appellants were examined under section. 313 Criminal Penal Code They appellants explained that the statements of prosecution witnesses are far from truth. In defence, 3 witnesses were examined. 12. At the conclusion of trial and after considering the evidence and hearing counsel for the parties, the learned trial Judge found the accused-appellant guilty and accordingly convicted and sentenced them in the manner stated hereinabove. 313 Criminal Penal Code They appellants explained that the statements of prosecution witnesses are far from truth. In defence, 3 witnesses were examined. 12. At the conclusion of trial and after considering the evidence and hearing counsel for the parties, the learned trial Judge found the accused-appellant guilty and accordingly convicted and sentenced them in the manner stated hereinabove. It is against this judgment of conviction and sentence, the appellants have preferred these two appeals. 13. We have heard learned counsel for the accused-appellants and the learned Public Prosecutor and gone through the evidence and material on record. 14. The prosecution in order to prove its case has examined PW-1 Prahlad Sahai, PW-3 Daulat Ram, PW-4 Lal Chand, PW-5 Yograj, PW-6 Abdul Hameed, PW-7 Rajendra Gupta, PW-8 Vijay Solanki and PW-9 Rajendra Dhariwal as eye-witnesses of the incident. Out of these 8 eye-witnesses, PW-5 Yograj, PW-6 Abdul Hameed, PW-7 Rajendra Gupta, PW-8 Vijay Solanki & PW-9 Rajendra Dhariwal have not at all supported the prosecution case and they have been declared hostile. 15. The testimony PW-1 Prahlad Sahay, eye-witness has been discarded by the learned trial Court on the ground that this witness reached at the place of incident just after the incident. In doing so, the trial Court has assigned cogent and convincing reasons and has arrived at the above conclusion. We have no reason to differ with the above conclusion. 16. The trial Court has based conviction of the appellants solely on the testimony of PW-3 Daulat Ram, dying declaration of deceased and part testimony of PW-4 Lal Chand. 17. Firstly, we shall reappreciate the evidence of PW-1 Prahlad Sahai, whose testimony has been discarded by the trial Court. This witness in his examination-in-chief has deposed that when he alongwith PW-9 Rajendra Dhariwal, Abdul Hameed and PW-3 Daulat Ram, brought injured Govind Ram to the Hospital in a Taxi and while on way to Hospital, Govind disclosed to him that Naushad, Sayeed and Pappu @ Dilawar inflicted injuries on his chest. However, Daulat Ram has deposed that PW-5 Yograj, Hameed and PW-1 Prahlad Sahai brought injured Govind to the Hospital. PW-3 Daulat Ram has not supported the statement of Prahlad to the extent that in his presence Govind made oral dying declaration to Prahlad Sahay, PW-1. Likewise PW-9 Rajendra Dhariwal and PW-6 Hameed have also not supported the fact of oral dying declaration having been made by deceased-Govind. PW-3 Daulat Ram has not supported the statement of Prahlad to the extent that in his presence Govind made oral dying declaration to Prahlad Sahay, PW-1. Likewise PW-9 Rajendra Dhariwal and PW-6 Hameed have also not supported the fact of oral dying declaration having been made by deceased-Govind. It is also worthy to mention that PW-4 Lal Chand lodged the first information report of the incident and at the time of lodging the report, Rajendra Dhariwal and Hameed happened to be with Lal Chand and both of them informed the police that Govind, while on way to the Hospital, disclosed them that Pappu @ Dilawar inflicted gupti blow on his, while accused-Bhola and his associates caught hold of him. Thus, it is evident that there are glaring inconsistencies about what deceased-Govind actually disclosed to them. Therefore, in our considered view, the testimony of PW-1 Prahlad Sahai (brother of deceased-Govind) is not supported by the statement of any independent witness and there are material contradiction on the point as to what was exactly disclosed by Govind. In this view of the matter, it would not be safe to rely on the so called oral dying declaration having been made by Govind to PW-1 Prahlad Sahai. 18. As regards PW-4 Lal Chand, another eye-witness of the incident, the trial Court, on evaluation of his evidence has arrived at a conclusion that though this witness has been declared hostile, yet it is evident from the evidence of this witness that when he and Govind Meena reached near the place of incident on a motor cycle and accused-Pappu, Bhola @ Sayeed and others were present there and they intercepted deceased-Govind Meena and gave him beating. It is also evident that accused-Pappu had some sharp-edged weapon in his hand. It is also evident from the statement of PW-4 Lal Chand that accused-Pappu @ Dilawar and Bhola @ Sayeed and others gave beating to Govind Meena, as none of the accused in their statements under section. 313 Criminal Penal Code has not stated that deceased had given them beating nor any suggestion that Govind Meena had given beating to any accused, was put on behalf of the accused to any prosecution witness in the course of cross-examination. 313 Criminal Penal Code has not stated that deceased had given them beating nor any suggestion that Govind Meena had given beating to any accused, was put on behalf of the accused to any prosecution witness in the course of cross-examination. It is also evident from the evidence of PW-4 Lal Chand that immediately after the `marpeet' had started, he left the place of incident, reached the house of Govind Meena on a motor cycle and informed PW-1 Prahlad Sahay Meena (brother of deceased) about the beating given to Govind Meena and thereafter, Prahlad Sahay and other witnesses reached the place of incident. In the opinion of the trial Court, the evidence of PW-3 Lal Chand to the extent it is discussed in this para, inspired confidence. Further, PW-3 Daulat Ram has also supported the version of Lal Chand. 19. It is settled proposition of law that testimony of a witness cannot be excluded from consideration merely because the witness has been declared hostile. If the testimony of a hostile witness is corroborated by other reliable and cogent evidence, conviction can be based on the testimony of such a witness. 20. In assailing the conviction, the main thrust of the argument of learned counsel for the appellant is that the trial Court has committed serious illegality in relying upon the testimony of PW-3 Daulat Ram. It is contended that he is not named in the FIR and is a chance witness. His statement is not only in contradiction with the statements of other prosecution witnesses, but is self contradictory. He is a relative, concocted and a planned witness. Thus the conviction based on the testimony of such a witness cannot be sustained and the appellants deserve to be acquitted of the offence charged with. 21. Before we appreciate the above arguments, it is felt necessary to deal with the elaborate criticism so as to believe or disbelieve the testimony of PW-3 Daulat Ram. 22. Daulat Ram in his statement has deposed that his hotel is situated nearby the place of incident and he went to purchase meat from the meat shop situated at the place where incident occurred. In this view of the matter he cannot be termed as a chance witness and his presence at the time and place of incident appears to be natural. His hotel is situated in the area where the incident took place. 23. In this view of the matter he cannot be termed as a chance witness and his presence at the time and place of incident appears to be natural. His hotel is situated in the area where the incident took place. 23. Undisputedly, PW-3 Daulat Ram is distantly related to deceased-Govind. He happened to be the cousin brother of deceased. However, testimony of an interested eye-witness cannot be thrown, ignored or discarded merely on the ground of he being a relative witness, having close or distant relationship with the victim, unless, on a careful scrutiny of the evidence of such an interested relative witness, his testimony is not found trustworthy. If the evidence of an interested witness creates confidence of acceptability, then the question of rejection of his testimony on being ascribed as interested witness would not be justifiable. In our considered view, normally a close relative of the deceased would not like to falsely implicate a person in the incident leading to death of a relation, unless there are very strong and cogent reasons to accept such criticism. Learned counsel for the appellants has not been able to assign any reason for falsely implicating the accused-appellants by PW-3 Daulat Ram in the commission of crime, including enmity or ill will. 24. The FIR of the incident was lodged by Lal Chand, PW-4. This witness has deposed that there were 50-60 persons present at the place of incident i.e. crossing (chauraha) as it was the day of festival of "Shabberat" and was being celebrated. Thus, in the facts and circumstances of the case, possibility of escaping or not noting the presence of Daulat Ram cannot be ruled out. That apart, the purpose of the FIR is to set the criminal law in motion and the FIR does not require the details of the incident or the names of all eye-witnesses who have witnessed the happening of incident. It is not the case of the appellants that the statement of this witness under section.161 Criminal Penal Code was not immediately recorded by the investigating agency. Having gone through a statement, Ex.D/2 of PW-3 Daulat Ram recorded under section 161 Criminal Penal Code it is crystal clear. that his statement was recorded on 6.1.1996 i.e. on the same day of incident. Having gone through a statement, Ex.D/2 of PW-3 Daulat Ram recorded under section 161 Criminal Penal Code it is crystal clear. that his statement was recorded on 6.1.1996 i.e. on the same day of incident. Thus, the plea raised that the name of PW-3 Daulat Ram does not find place in the FIR far fetched and without any substance. 25. We have also gone through the case law cited at the bar. 26. In Deepak Kumar v. Ravi Virmani, (2002) 2 SCC 737 , their Lordships of the Supreme Court have propounded that : "It is not that multiplicity of witnesses would improve the situation nor corroboration from independent witnesses stands out to be a mandatory requirement. Witnesses though be interested can be relied upon provided, however, the evidence available on record is trust worthy and creates a confidence in the mind of the Court that the scrutiny entails only pointing out of commission of an offence by the accused persons and that scrutiny in totality leads to an inevitable conclusion of the guilt of the accused." 27. In Davinder v. Ram Dutta & Anr., 1990 Suppl. SCC 614 , their Lordships of the Supreme Court have held that the testimony of interested and chance witness should be examined with care. 28. In Badri v. State of Rajasthan, (1976) 1 SCC 442 , the FIR of the incident was lodged at the earliest opportunity on the basis of what the solitary witness told the complainant. There were serious discrepancies in the statements of solitary witness and the complainant. In these circumstances, the Apex Court held : "...... We are not prepared to accept that the statement given by Gopal, which is a simple statement, could have been wrongly re-corded by the Police Officer. The first information report would go to show that Patram and the deceased were together and they reached near the back door of Badri's house which is actually the place shown in the site plan where the dead body was lying. The first information report would go to show that Patram and the deceased were together and they reached near the back door of Badri's house which is actually the place shown in the site plan where the dead body was lying. For Patram to be together with the deceased at the time of firing, as recorded in the FIR and again his seeing from the by lane near Ganga Ram's house the accused firing with his gun, as deposed to in Court, are serious discrepancies in the version of an only eye-witness in the case and they throw grave doubt about his presence at the time of shooting." 29. In Lekh Ram v. Brijlal v. State of Punjab, 1993 Supp. (4) SCC 361 , the Supreme Court held that it will be seen from the circumstances that it was not safe for the High Court to rely on this type of chance witnesses, particularly when PW-4 knew the paternal side of the deceased. 30. In Varkery Joseph v. State of Kerala, 1993 Supp. (3) SCC 745 , their Lordships of the Supreme Court while considering the testimony of a chance witness who had motive to perjure, held that the deposition of the witness that accused had made extra-judicial confession to him, was incredible. 31. Lastly, it is vehemently convassed that conduct of PW-3 Daulat Ram is unnatural as he did not raise hue and cry and even did not try to come forward to rescue Govind who was none else but his cousin brother. Therefore, his conduct being unnatural, the trial Court has committed serious illegality in relying upon the testimony of such an unnatural witness. 32. The Apex Court in Leela Ram (dead) through Dulichand v. State of Haryana & Ors., (1999) 9 SCC 525 has considered the impact of reaction of the witnesses present at the time and place of incident, observed as under:- The Court shall have to bear in mind that different witnesses react differently under different situations : whereas some become speech-less, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling with a set pattern is unproductive and a pedantic exercise." 33. Again in Vijay Pal Singh v. State, N.C.T. of Delhi, AIR 2001 SC 2405 , their Lordships of the Supreme Court have observed that time and again this Court said that no fixed pattern of natural conduct can be laid down as different witnesses could react in different manner in the same situation. Reference was also made to a decision of the Apex Court in Rana Pratap & Ors. v. State of Haryana, AIR 1993 SC 680 . 34. In the case at hand, PW-4 Lal Chand left the place of incident out of fear and informed the brother of deceased about the incident. Daulat Ram PW-3 could not come forward with courage to save Govind. In a given situation when the appellants attacked the deceased with deadly weapon viz., Gupti, it was ordinarily not expected of a person to intervene and put his life to grave danger. Thus considering the conduct of PW-3 Daulat Ram in the light of the principle set out by the Apex Court that there cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise, we must held that his testimony cannot be said to be unnatural and he could not come forward to the rescue of deceased because of fear as appellant-Pappu had a gupti in his hand. The argument of the learned counsel for the appellants, therefore, has no merit. 35. It is next contended that the learned trial Court has committed serious illegality in not taking into consideration the important aspect of the cases that the prosecution has not been able the procure independent witnesses despite the admitted presence of 50-60 persons at the place of incident. It has even failed to examine the owners of the shops situated near the place of incident. In the absence of there being corroboration of the witnesses with independent witnesses, conviction cannot be sustained. 36. We have considered the above argument. It has even failed to examine the owners of the shops situated near the place of incident. In the absence of there being corroboration of the witnesses with independent witnesses, conviction cannot be sustained. 36. We have considered the above argument. No doubt, the incident took place at a public place and the prosecution witnesses. Lal Chand and Daulat Ram have admitted the presence of about 50-60 persons at the place of incident, but names of the persons present at the place of incident have not come on record. It is also worthy to note that even no suggestion was made to the Investigating agency about the non-examination of the owners of the shops situated in the area or the persons present at the time and place of incident. The learned trial Court as well as this Court have concluded that the evidence of Lal Chand PW-4 and Daulat Ram PW-3 inspire confidence and nothing concrete or substantial has been shown to use from the evidence available on record to castigate their version or condemn their evidence. In the light of above conclusion, non-examination of independent witnesses cannot be held to be a ground for rejecting the evidence of witnesses who were present and witnessed the incident. We may refer the views expressed by the Apex Court laying down reasons for non-examination of independent witnesses, in Ambika Prasad & Anr. v. State (Delhi Administration), (2000) 2 SCC 646 : "Firstly, in cases were injured witnesses or the close relative of the deceased are under constant threat and they dare not depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Another reason may be the delay in recording the evidence of independent witnesses and repeated adjournments in the Court. In any case, if independent persons are not willing to cooperate with the investigation, the prosecution cannot be blamed that it cannot be a ground for rejecting the evidence of injured witnesses." 37. Lastly, it also need be mentioned that it is the quality of the evidence and not the quantity which is required. The evidence adduced by the prosecution creates confidence of acceptability and therefore, the plea of non-examination of natural witnesses has no force. 38. Lastly, it also need be mentioned that it is the quality of the evidence and not the quantity which is required. The evidence adduced by the prosecution creates confidence of acceptability and therefore, the plea of non-examination of natural witnesses has no force. 38. PW-3 Daulat Ram has categorically stated that Pappu-appellant inflicted injury by gupti on the right side of chest of Govind. Appellants-Naushad and Sayeed also inflicted gupti blows on the person of Govind. PW-13 Dr. P.C. Vyas who conducted autopsy on the dead body of Govind found following injuries: (1) stab wound 1 1/2 x 1/2 cm x thorasic cavity deep with clotted blood present on the right side, front of chest at stunal border which is 13 cm below and medial to right nipple. It is 15 cm above umblicus. On further examination, the wound track going down wards and medially piercing inter-costal then piercing upper part of diaphras on right side and reaching to left lobe of lower supersity. There is an incised wound 1 x 1/2 x 2 cm on left lobe of liver. The depth of wound track is 7 cm from outer injury upto liver. (2) stab wound 2 x 1 and 1/2 cm x chest cavity deep with clotted blood present on left side front of chest lower 1/2 where it is 10 cm below nipple. On further examination, wound track piercing inter-costal muscles in 7th inter-costal muscle cavity chip fracture of left 8th rib, then going down wounds and medially to left side chest cavity and ending at left side diaphram with haemotoma in wound track depth from external wound up to left side diaphram in 4 cm. (3) Stab wound 1 cm x 1 cm x muscle deep with clotted blood present on left lateral side of chest in mid axillary bone in 8th intercostal space which is 15 cm from left nipple. Distance between injury No. 2 and 3 (mentioned above) is 5 cm. 39. Dr. Vyas has opined that cause of death is syncope as a result of injury to liver with excessive haemorrhage which is sufficient to cause death in the ordinary course of nature. 40. Therefore, the statement of PW-3 Daulat Ram, eye-witness of the incident finds support from medical evidence and also from the statement of Lal Chand. 39. Dr. Vyas has opined that cause of death is syncope as a result of injury to liver with excessive haemorrhage which is sufficient to cause death in the ordinary course of nature. 40. Therefore, the statement of PW-3 Daulat Ram, eye-witness of the incident finds support from medical evidence and also from the statement of Lal Chand. Further on the information of the accused-Pappu and Naushad Ex.P/47 & Ex.P/48 one pant each marked `E' and `F' were recovered vide Ex.P/2 & P/3 recovery memos. On the information of Pappu Ex.P/46 one scooter RPE 3519 and Gupti in the dickey of scooter was also recovered vide Ex.P/6 and Ex.P/4. Both the pant and gupti were found stand with human blood as per Forensic Science Laboratory report Ex.P/61. However, blood group could not be determined due to disintegration. 41. PW-3 Daulat Ram has described the incident in clear and graphic manner. It appears that he was subjected to searching cross-examination, but nothing material could be elicited from him, which may cast doubt on his credibility. The trial Judge who had an opportunity of making demanour assessed his evidence and did not find any good reason to discard his testimony. That apart, as already stated above, his testimony stands in corroboration with medical evidence. 42. Thus, on a careful scrutiny of the evidence of PW-3 Daulat Ram, we are of the firm view that his testimony inspires confidence. His testimony further finds corroboration with the statement of PW-4 Lal Chand and the recovery of Gupti and seizure of pants of appellants-Pappu and Naushad, having blood stains on them.From the evidence of PW-3 Daulat Ram following facts emerges out:- (a) Appellants-Pappu, Naushad and Gulab reached at the place of incident on a scooter; (b) Appellants-Bhola, Abrar and Sayeed reached at the place of incident on foot; (c) After the above named appellants and reached the place of incident, deceased-Govind along with Lal Chand came there on a motor cycle; (d) Pappu intercepted Govind and Lal Chand and called Govind to get down from motor cycle; (e) Thereafter Pappu-appellant and Govind talked together for 5-7 minutes; (f) Appellant-Pappu asked Gulab to fetch `gupti' from scooter's dickey and Pappu inflicted gupti blow on the right side of chest of Govind. Thereafter Naushad and Sayeed inflicted gupti blows on the person of Govind; (g) Rest of the appellants caught hold of Govind, and (h) The appellants were unarmed when they reached at the place of incident. 43. PW-4 Lal Chand has deposed that when he and Govind were proceeding to their distination and reached the place of incident, Pappu intercepted them and asked Govind to stop there. At that time accused-Pappu, Bhola and 50-60 others were present at the place of incident. He further deposed that on that day Shabberat festival was being celebrated. 44. In view of what has been discussed above and in the facts and circumstances of the case and the evidence adduced on behalf of the prosecution, the question which now emerges for our consideration is, whether the accused-appellants formed an unlawful assembly and if so, what was the common object of the unlawful assembly? 45. From the proved facts enumerated above, it is established that it was per chance that both the parties met each other at the place of incident, otherwise, they had no prior knowledge of their meeting at the place of incident. The appellants, as stated above, did not arrive at the place of incident collectively. Appellants-Pappu, Naushad and Gulab came on a scooter while appellants-Bhola, Abrar and Sayeed came there on foot. On the day of incident, the festival of Shabberat was being celebrated and large number of persons were present at the place of incident. The incident took place all of a sudden. Accused-Pappu intercepted Govind and talked to him for about 5-7 minute and it appears that in the course of talks between the two, some dispute arose, which became the proximate cause of the incident. Otherwise there is no evidence to suggest that there was previous enemity between the parties. Undoubtedly, the appellants were not having any weapon in their hands and appellants-Abrar, Gulab and Bhola did not cause any injury to the deceased. The only evidence against appellants-Abrar, Gulab and Bhola is that they caught hold the deceased. In this view of the matter, we have no hesitation in holding that the attack was not preconcerted and it cannot be said that the meeting of the appellant at the place of incident was preplanned or prearranged, with a view to cause death of deceased-Govind. In this view of the matter, we have no hesitation in holding that the attack was not preconcerted and it cannot be said that the meeting of the appellant at the place of incident was preplanned or prearranged, with a view to cause death of deceased-Govind. Mere presence of the appellants at the place of incident, which is admittedly a public place, is not sufficient to declare them members of unlawful assembly. 46. To conclude that a person is a member of unlawful assembly, it has to be proved that he was one of the persons constituting the assembly and he entertained along with other members of the assembly the common object as defined by Section 141 of the Indian Penal Code. It is no doubt legally correct that mere membership of the unlawful assembly with the requisite common object or knowledge is sufficient to fasten vicarious criminal liability under section 149 Indian Penal Code. 47. There is also evidence to the effect that even PW-3 Daulat Ram, eye-witness of the incident could not visualise the possibility of any quarrel. Daulat Ram has not deposed that appellants-Abrar, Gulab and Bhola caught hold the deceased at the time of inflicting injuries by other appellants. He has specifically deposed that he is not in a position to state whether Govind sustained any injury at the time when Gulab caught hold of him, as he was standing at a distance. Therefore, it cannot be concluded that their overt-act was in any way responsible to cause the death of deceased. In a give situation, their Lordships of the Supreme Court in Anil Rai v. State of Bihar, (2001) 7 SCC 318 have held as under: "Where the prosecution fails to prove the evidence of sharing of common object by all the members of the unlawful assembly, it is unsafe to convict all the accused persons merely on proof of their presence or some overt act which did not cause the death of the deceased." 48. Thus in the facts and circumstances of the case it has not been proved that the accused-appellants formed unlawful assembly with a common object to murder Govind. It has also not been proved that appellants-Abrar, Gulab & Bhola shared the common object. Therefore, the appellants cannot be convicted under section. 302 Indian Penal Code with the aid of Section. 149 Indian Penal Code. 49. It has also not been proved that appellants-Abrar, Gulab & Bhola shared the common object. Therefore, the appellants cannot be convicted under section. 302 Indian Penal Code with the aid of Section. 149 Indian Penal Code. 49. What is proved from the evidence on record is that accused-appellant-Pappu inflicted fatal blow by gupti on the right side of chest of deceased-Govind. Dr. Vyas who conducted autopsy opined that cause of death of deceased was syncope as a result of injury to liver with excessive haemorrhage and this injury was sufficient in the ordinary course of nature to cause death. The weapon used to inflict the injury, the part of body selected to inflict such injury, the force applied in inflicting injury and its impact leave no manner of doubt in our mind that accused-appellant-Pappu had intended to cause the death of deceased. The depth of the wound track was 7 cms. 50. As regards conviction of appellants-Sayeed and Naushad, the learned trial Court has convicted them for offence under section. 302 Indian Penal Code simpliciter. Sufficient it to say that both the appellants also inflicted injuries on the chest of Govind by gupti. However, Dr. Vyas has not opined that the injuries were grievous or dangerous to life or sufficient in the ordinary course of nature to cause death. The doctor has also not opined that these injuries proved fatal and were the cause of death. In this view of the matter, the conviction of appellants-Sayeed and Naushad under section. 302 Indian Penal Code simpliciter cannot be sustained. 51. Now it has to be seen as to for what offence appellants,:\Sayeed and Naushad should be convicted? 52. From the evidence on record, it stands established that first of all appellant-Pappu inflicted fatal blow on the right side of chest of Govind by Gupti. The said weapon fell down from the hands of Pappu. Thereafter, Naushad picked up the gupti and inflicted injury and in the end, appellant-Sayeed inflicted gupti blow on the person of Govind. All the three stab wounds are on the chest of the deceased. The overt acts of appellants-Pappu, Sayeed and Naushad and their conduct leave no doubt that they had common intention to murder Govind and in furtherance thereof, they inflicted injuries by gupti on the chest of Govind. All the three stab wounds are on the chest of the deceased. The overt acts of appellants-Pappu, Sayeed and Naushad and their conduct leave no doubt that they had common intention to murder Govind and in furtherance thereof, they inflicted injuries by gupti on the chest of Govind. The common intention was manifested or developed at the spur of moment in the course of commission of offence. Although there is no evidence of pre-concert of minds, but it is evident from the sequence of events that the intention of appellants-Pappu, Sayeed and Naushad was not to cause injury alone but to kill the deceased. The manner in which assault was carried out, the part selected for inflicting injuries and the weapon used and continuance of causing of injuries simultaneously with the same weapon leaves no doubt that the above named three appellants had the common intention to kill the deceased and in furtherance of their common intention, they inflicted injuries by gupti. The sequence of events unfolded clearly indicates the predetermined minds of the appellants to kill the deceased. Hence, appellants-Sayeed and Naushad are liable to be convicted for offence under section. 302/34 Indian Penal Code. 53. As regards conviction of accused-appellant-Pappu under section. 4/25 of the Arms Act and the sentence awarded thereunder, suffice it to say that it calls for no interference in as much as he was found to be in possession of weapon without any licence. Learned counsel for the appellants has also not challenged the conviction of the appellant under section. 4/25 of the Arms Act. 54. It is true that other injuries were also found on the person of deceased-Govind. However, there is no iota of evidence that the accused-appellants inflicted any simple injury. Hence, the conviction of accused-appellants under section. 323 Indian Penal Code also cannot be sustained. 55. For the reasons aforesaid, the appeals are partly allowed. The conviction of appellant-Pappu under section. 302 Indian Penal Code and Section 4/25 of the Arms Act and the sentences awarded to him thereunder are maintained. The conviction of appellants-Naushad & Saeed under section. 302 Indian Penal Code simpliciter is set aside, instead they are convicted under section. 302/34 Indian Penal Code and they are sentenced to undergo imprisonment for life with a fine of Rs. 2,000/-. In default of payment of fine, to further undergo 3 months simple imprisonment. The conviction of appellants-Naushad & Saeed under section. 302 Indian Penal Code simpliciter is set aside, instead they are convicted under section. 302/34 Indian Penal Code and they are sentenced to undergo imprisonment for life with a fine of Rs. 2,000/-. In default of payment of fine, to further undergo 3 months simple imprisonment. The conviction of appellants-Pappu @ Dilawar under sections. 148 & 323 Indian Penal Code and the sentences awarded thereunder are set aside. The conviction of appellants-Saeed and Naushad under sections. 147 & 323 IPC and the sentences awarded thereunder are set aside and they are acquitted of the offence under sections. 147 & 323 IPC. Accused-appellants-Bhola @ Saeed, Abrar and Gulab are acquitted of the offences under sections. 302/149, 147 & 323 IPC. Appellants-Abrar and Gulab are in jail and they be set at liberty forthwith, if not wanted in any other case. Accused-appellant-Bhola @ Saeed is already on bail and his bail bonds stand discharged.Appeal partly allowed. *******