M. C. JAIN, J. The judgment impugned in this case is one dated 21-2-1991 passed by Sri Praduman Kumar, the then Special Judge (E. C. Act), Aligarh in S. T. No. 519 of 1989. Nine persons including the present five appellants faced trial in the trial Court. They were 1. Raj Pal Singh 2. Bhojraj alias Pappu, 3. Rishi Pal, 4. Jagan Nath, 5. Ashok Kumar 6. Ram Swarup, 7. Mihipal, 8. Maharaj and 9. Dharam Pal. 2. The last four were acquitted by the trial Court whereas first five have been convicted under Section 302/149 IPC with sentence of life imprisonment accorded to them as well as under Section 307/149 IPC with a sentence of five years rigorous imprisonment passed against each of them. They have also been convicted under Section 148 IPC with sentence of two years rigorous imprisonment. All the sentences have been ordered to run concurrently. All the five have preferred this appeal. 3. The appellant Rajpal Singh is the father and Bhojraj alias Pappu is his son. The appellant Rishipal is the son of elder brother of Rajpal whereas Ashok is the grand-son of elder brother of Rajpal. The appellant Jagannath is the neighbour of Rajpal. At the time of incident, the appellant Rajpal was armed with D. B. B. L. gun whereas remaining four had country made pistols. It was Amrit Pal Singh, father of the informant Satendra Pal Singh who lost life in this incident. Eight others, namely, 1. Rajveer, 2. Vijendra Pal Singh son of Mohar Singh, 3. Ram Swarup, 4. Sushil, 5. Raksha Pal, 6. Gajendra Pal Singh, 7. Vijendra Pal Singh son of Nahar Singh and 8. Bhanwar Singh sustained injuries. 4. The incident took place on 1-7-1989 at about 6. 30 p. m. in Village Gangcholi, Police Station Hathras Junction, District Hathras (then forming part of District Aligarh ). The distance of the Police Station from the place of occurrence was 10 Kms. The FIR was lodged by Satendra Pal Singh P. W. 3 on 1-7-1989 at 9. 15 p. m. 5. The prosecution case, shortly stated, is thus: On the fateful day at about 6-6. The distance of the Police Station from the place of occurrence was 10 Kms. The FIR was lodged by Satendra Pal Singh P. W. 3 on 1-7-1989 at 9. 15 p. m. 5. The prosecution case, shortly stated, is thus: On the fateful day at about 6-6. 30 p. m. Amrit Pal Singh deceased along with Gajendra Pal Singh, Ramesh Pal Singh and Raksha Pal Singh was cleaning a drain on the crossing in the village nearby the house of Tursan Pal Singh because the marriage party of the daughter of Mahendra Pal Singh belonging to the family of Amrit Pal Singh was to arrive in the village the same day. At that time, all the nine accused (five appellants and other four who have been acquitted by the trial Court) appeared there with weapons as stated hereinabove. Four of them, namely, Ram Swarup, Mihi Pal, Maharaj and Dharma Pal (acquitted) were empty handed. On reaching near the drain all of them started hurling abuses on Amrit Pal Singh and his companions, questioning them angrily for cleaning the drain. They also uttered that as they were always making an issue of drain, the score would be settled then and there. The explanation offered by Amrit Pal Singh that the drain was being cleaned for the convenient passage of the marriage party went unheeded to. Instantaneously, the accused Raj Pal Singh started firing from his D. B. B. L. gun while other four holding the country made pistol, namely, Bhojraj alias Pappu, Rishi Pal, Jagan Nath and Ashok Kumar started firing from their weapons. The remaining four, namely, Ram Swarup, Mihi Pal, Maharaj and Dharam Pal who were empty handed went on the roof of Ram Swarup and started pelting brick-bats from the roof top Amrit Pal Singh and eight others named above received injuries. The occurrence was also witnessed by Raghu Raj Singh, Jeet Pal Singh and others. The accused ran away. Amrit Pal Singh and all other injured were taken to the hospital Hathras. However, on the way, Amrit Pal Singh succumbed to his injuries. From Hospital, Satendra Pal Singh P. W. 3 went to the Police Station Hathras Junction where he lodged the FIR. A case was registered and investigation followed. The post-mortem over the dead-body of the deceased Amrit Pal Singh was conducted by Dr. S. R. P. Misra P. W. 9 on 2-7-1989 at 12. From Hospital, Satendra Pal Singh P. W. 3 went to the Police Station Hathras Junction where he lodged the FIR. A case was registered and investigation followed. The post-mortem over the dead-body of the deceased Amrit Pal Singh was conducted by Dr. S. R. P. Misra P. W. 9 on 2-7-1989 at 12. 12 p. m. He was 56 years of age. The following ante-mortem injuries were found on his person: Multiple gunshot wounds of entry over neck, chest, abdomen, right thigh and right elbow front each measuring 1/2 cm x 1/2 cm, margins inverted. Right thigh upper-one Abdomen-ten, right shoulder-one, Chest-six, Right elbow front-three, Neck-two No blackening or tattooing. Two shots going deep in chest. Two shots going deep in abdomen. One found in abdominal wall. Eleven shots showing exit with same measurements in chest, abdomen and right elbow with everted margins. 6. The cause of the death was shock and haemorrhage due to fire-arm injuries sustained by him. 7. Some of the injured of the felony were examined by Dr. D. S. Tomar P. W. 5 and others by Dr. Rajeev Agrawal P. W. 7. 8. Rajveer Singh, Vijendra Pal Singh son of Mohar Singh, Ram Swarup, Sushil, Rakshapal, Vijendra Pal Singh son of Nahar Singh and Bhanwar Singh had received fire-arm injuries. Vijendra Pal Singh son of Nahar Singh had sustained two swellings also. There was a contusion also suffered by Bhanwar Singh. 9. Gajendra Pal Singh had sustained one lacerated wound and one swelling. 10. On X-ray being taken, two-radio opaque rounded foreign body were seen in the right upper arm of Rajveer Singh. 11. X-ray revealed two-radio opaque rounded foreign body in chest, four in abdomen and two in right upper arm in the injuries of Vijendra Pal Singh son of Mohar Singh. 12. In the injuries of Ram Swarup, X-ray revealed on radio opaque rounded foreign body on left side of face and one in thoraces lumber region. 13. There was one rounded radio opaque foreign body in the right upper arm and one in the abdomen of Sushil. 14. Two radio opaque rounded foreign body were present on the left upper arm, one, in right orbital region and one in left thigh of Bhanwar Singh. 15. The Investigating Officer was Arun Kumar Dixit P. W. 8. 13. There was one rounded radio opaque foreign body in the right upper arm and one in the abdomen of Sushil. 14. Two radio opaque rounded foreign body were present on the left upper arm, one, in right orbital region and one in left thigh of Bhanwar Singh. 15. The Investigating Officer was Arun Kumar Dixit P. W. 8. On conclusion of the investigation, charge- sheet was laid against accused persons and on trial being held, the judgment was passed as stated above. 16. The defence of the appellants was of denial. Inter se relationship amongst the appellants as mentioned earlier was admitted. The appellant Jagannath also admitted that he was neighbour of Raj Pal Singh. However, they pleaded false implication. The statement of Raj Pal Singh was that he had a dispute with the deceased over the drain and there was an order of the Court in his favour. The incident, according to him, took place over the issue of drain. 17. The prosecution, in all, examined mine witnesses out of whom Satendra Pal Singh P. W. 3 (informant), Sushil (injured) P. W. 4 and Vijendra Pal Singh (injured) son of Mohar Singh P. W. 6 were the eye-witnesses. Rest of the evidence consisted of the statements of Doctors, Investigating Officer and of other formal nature. 18. We have heard Sri V. P. Srivastava, learned Counsel for the appellants, learned A. G. A. as also Sri P. N. Mishra and Sri G. S. Chaturvedi, learned senior Advocates appearing on behalf of the complainant. The record of the lower Court has been summoned before us, which we have carefully perused. 19. The first argument from the side of the appellants is that neither Mahendra Pal Singh nor any member of his family was examined, though prosecution case was that it was the marriage of the daughter of Mahendra Pal Singh and the marriage party was to pass by the way where the Nali existed. Another main argument of the learned Counsel for the appellants centred around the contention that root of the incident was the own act of the deceased Amrit Pal Singh and his associates who started meddling with the drain in respect of which there was an order of the Court in favour of the appellants. In any case, they only acted in exercise of right of private defence of their property. In any case, they only acted in exercise of right of private defence of their property. Reference has also been made to the so-called weaknesses of the prosecution evidence and it is urged that the evidence adduced by the prosecution falls short to bring home the guilt to the accused-appellants. The learned A. G. A. as well as learned Counsel for the complainant, on the other hand, have supported the impugned judgment, repelling the arguments of the learned Counsel for the appellants. According to them, the evidence is wholesome proving the appellants to be guilty as found by the trial Court and that there could hardly be any question of exercise of any right of private defence of property by them. In subsequent discussion, we propose to deal with different aspects of the case having regard to the arguments advanced at the bar. 20. True, the prosecution case is that there was marriage of the daughter of Mahendra Pal Singh, belonging to the Khandan of deceased Amrit Pal Singh and it was for the convenient passing of the marriage party that the public drain was being cleaned by him along with three others, namely, Gajendra Pal Singh, Ramesh Pal Singh and Raksha Pal Singh. The record also bears out that neither Mahendra Pal Singh nor any member of his family has been examined by the prosecution. But we note from perusal of the evidence of Satendra Pal Singh informant (son of the deceased) P. W. 3, Sushil injured P. W. 4 and Vijendra Pal Singh (injured) P. W. 6 that it was not seriously challenged by the defence that Mahendra Pal Singh was the Khandani of Amrit Pal Singh and that the marriage of his daughter was to be celebrated that night in the village. It is also to be kept in mind that it is not the prosecution case that Mahendra Pal Singh was present at the spot. Under these circumstances, it was not at all necessary for the prosecution to have produced Mahendra Pal Singh or anyone of his family as a witness. This aspect does not weaken the prosecution case at all. We, therefore, do not attach any importance to the non-examination of Mahendra Pal Singh or anyone of his family by the prosecution before the trial Court. 21. This aspect does not weaken the prosecution case at all. We, therefore, do not attach any importance to the non-examination of Mahendra Pal Singh or anyone of his family by the prosecution before the trial Court. 21. Taking up the second argument advanced by the learned Counsel for the appellants, there is no dispute that root of the incident was that Amrit Pal Singh with three others had started cleaning the public drain of the village so as to facilitate convenient passing of the marriage party of the daughter of Mahendra Pal Singh. But it does not mean that the prosecution side is to be blamed for the incident or that the accused side came to acquire any right of private defence of property to attack Amrit Pal Singh and others of his side on their refusal to obey their command not to clean the drain. The learned Counsel for the appellants invited our attention to the grounds of appeal filed on behalf of the accused Raj Pal Singh and others against Ram Chandra Singh and another (Civil Appeal No. 70 of 1989) before the District Judge, Aligarh and the interim order passed therein by the District Judge, Aligarh on 15-5-1989 staying the operation of the judgment and decree under appeal. Raj Pal Singh accused and others were defendants in the original Suit No. 147 of 1988 which had been decreed by the Munsif against them in favour of Ram Chandra Singh and another plaintiffs of that case (arrayed as respondents in the appeal before the Destrict Judge ). We note from the testimony of Satendra Pal Singh P. W. 3 that he admitted that the drain which was being cleaned by his father and others on the date of the incident had been litigated upon before the Sub-Divisional Magistrate in which his uncle Ram Chandra Singh was also a party. He also admitted that his uncle Ram Chandra Singh had filed a suit in the Court of Munsif Hathras with regard to that drain against Raj Pal Singh accused and others. That suit had been decreed where against the appeal had been filed before the District Judge. Aligarh which was pending when this incident took place. He also admitted that his uncle Ram Chandra Singh had filed a suit in the Court of Munsif Hathras with regard to that drain against Raj Pal Singh accused and others. That suit had been decreed where against the appeal had been filed before the District Judge. Aligarh which was pending when this incident took place. Perusal of the grounds of appeal filed on behalf of the accused shows that the judgment of Munsif was different from that of S. D. M. concerned in the proceedings under Section 133 of Cr. P. C. However, the judgments of the Court of Munsif Hathras or S. D. M. Hathras in proceedings under Section 133 Cr. P. C. having not been placed on record, it cannot be ascertained as to what exactly were the findings regarding the dispute of drain between the parties. But it should be inferred that since the proceedings had been taken under Section 133 Cr. P. C. , it was a public drain. It has to be kept in mind that Section 133 Cr. P. C. relates to public nuisances. The order staying the judgment and decree passed by the Munsif cannot be taken to mean that there was stay even against the cleaning of the public drain and the parties were to maintain status quo letting the public drain to be filled with dirt to the brim with the breeding and swarming insects of varied nature all around the public drain. The public drain which was being cleaned was not the private property either of the accused or of the other inhabitants of the village or locality. The persons by the side of whose houses the pubic drain was flowing did not become its owner. Therefore, the accused side could not pretend to exercise the right of private defence of property by attacking Amrit Pal Singh and others when they were cleaning the public drain and declined to obey their command to desist from doing so. The contention of exercise of right of private defence of property cannot be imported by giving a free flight to imagination regardless of the ground situation and reality. There was no question or scope whatsoever of exercise of alleged right of private defence of property by the accused persons in assaulting the prosecution side-Amrit Pal Singh and others. The contention of exercise of right of private defence of property cannot be imported by giving a free flight to imagination regardless of the ground situation and reality. There was no question or scope whatsoever of exercise of alleged right of private defence of property by the accused persons in assaulting the prosecution side-Amrit Pal Singh and others. It has emphatically been stated by Satendra Pal Singh P. W. 3, Sushil P. W. 4 and Vijendra Pal Singh P. W. 6 that Amrit Pal Singh, Gajendra Pal Singh, Ramesh Pal Singh and Raksha Pal Singh were only cleaning the drain. Only one of them, namely, Amrit Pal Singh had shovel or mattock and three others were helping him in cleaning the drain. The purpose was that the passing of the marriage party of the daughter of Mahendra Pal Singh could be facilitated with convenience. Judging from the right perspective, we reject the argument of the learned Counsel of the appellants that they acted in exercise of right of private defence of property. The contention is wholly misplaced and built on straw just in an attempt to justify or minimize the crime committed by the accused-appellants. 22. Referring to the so-called weaknesses of the case of the prosecution, the learned Counsel for the appellants argued that Satendra Pal Singh P. W. 3 is himself not an injured. It may be pointed out that he is the son of the deceased Amrit Pal Singh and is the informant. We cannot subscribe to the view that he could not be believed as eye-witness of the incident unless he was himself an injured. The incident took place at about 6. 30 p. m. when he was expected to be at his home which was only a distance of 40 paces from the spot and as stated by him the shouts ensuing from the spot had attracted him to the scene. Though he himself is not the injured, but eight others in addition to the deceased Amrit Pal Singh received injuries in the incident. Amrit Pal Singh having a shovel or mattock was playing leading role in cleaning the public drain. He was, therefore, first targeted for being shot. In the job of the cleaning of the drain, he was being assisted by Gajendra Pal Singh, Ramesh Pal Singh and Raksha Pal Singh. Amrit Pal Singh having a shovel or mattock was playing leading role in cleaning the public drain. He was, therefore, first targeted for being shot. In the job of the cleaning of the drain, he was being assisted by Gajendra Pal Singh, Ramesh Pal Singh and Raksha Pal Singh. Barring Ramesh Pal Singh, Raksha Pal Singh and Gajendra Pal Singh also received injuries in the incident. Not only this several others on the prosecution side received injuries of fire-arms when they had also been attracted to the scene on the shouts emanating from the spot with the exchange of hot words. This argument does not carry any weight in favour of appellants that Satendra Pal Singh P. W. 3 is not an injured. 23. Proceeding further in an attempt to hit on the so-called weaknesses of the prosecution evidence, the learned Counsel for the appellants urged that the appellants before this Court allegedly used fire-arms whereas Gajendra Pal Singh, injured received only blunt weapon injuries (lacerated wound on cheek and swelling around right eye ). It has been recalled that the four accused who allegedly pelted brick bats were given benefit of doubt by the Court below and that part of the prosecution story fell short of being proved. We have also been taken through the statements of Satendra Pal Singh P. W. 3, Sushil P. W. 4 and Vijendra Pal Singh P. W. 6. It has been pointed out that Satendra Pal Singh P. W. 3 stated that immediately after abuses Raj Pal Singh had started firing from his double barrel gun and then the other four appellants started firing from their country-made pistols. This part of his statement has also been referred to that firing had been made from a distance of 20 paces and further that his father had fallen down on receiving shots and no other injured had fallen down. This part of the statement of Sushil P. W. 4 has been referred to that after holding out with hurling of abuses that the dispute of drain would be settled then and there, Raj Pal Singh opened shots from his gun and then the other appellants who had country made pistols resorted to firing. His statement has also been stressed that firing was made from a distance of 22-23 paces. His statement has also been stressed that firing was made from a distance of 22-23 paces. The submission is that one pace is equal to about 30 inches and as such the firing was made from a distance of about 55 feet. The distance of firing has been given about 20 or 25 paces by Vijendra Pal Singh P. W. 6. It has been submitted that Sushil P. W. 4 even stated that the accused had first come unarmed and thereafter they brought weapons from the house of Manohar. However, we note in the next breath he stated that he could not say as to whether they had come unarmed or with arms and he did not see them going to the house of Manohar. On a Court question, the witness stated that he had seen gun in the hand of Raj Pal Singh when he had arrived at the spot, but had not seen the weapons in the hands of others. 24. It is of great importance that Sushil P. W. 4 and Vijendra Pal Singh P. W. 6 are both the injured of the incident who received fire-arm injuries and their presence at the spot is beyond question. We also wish to say that conclusion is to be drawn on consideration of the testimony of the witness as a whole without undue emphasis on truncated portion divorced from the rest. The evidence of all the three eye- witnesses, out of whom two are themselves injured, is found generally reliable and, therefore, not much importance is to be given to the minor discrepancies and technical errors which came to be made by a particular witness under the stress of cross-examination. While dealing with the evidence of a witness, the approach must be whether the evidence read as a whole has the ring of truth. When this impression is formed, minor infirmities or deficiencies cannot overshadow the general tenor of the evidence given by the witnesses. In the present case, it follows from the reading of the entire evidence of Sushil P. W. 4 also that five persons (appellants) had opened volley of shots. Out of them, Raj Pal Singh had used a double barrel gun whereas the remaining four had used country made pistols. It is not of consequence whether he could see country-made pistols right in the beginning or during the course of firing. Out of them, Raj Pal Singh had used a double barrel gun whereas the remaining four had used country made pistols. It is not of consequence whether he could see country-made pistols right in the beginning or during the course of firing. On a careful consideration we are inclined to endorse the view taken by the trial Court on proper appreciation of the evidence of the witnesses that the present appellants used fire-arms as a result of which Amrit Pal Singh died and seven others received injuries of fire-arm. 25. So, we now take ourselves to the pertinent question as to what offence or offences have been committed by the accused-appellants within the four corners of law. Section 149 IPC is the hub of the vicarious liability of the members of an unlawful assembly. All the members of the unlawful assembly become liable to punishment for every offence committed by any or more members of that assembly in prosecution of the common object of the unlawful assembly. It must have been in the contemplation of the unlawful assembly directly or impliedly. 26. It is pertinent to State that the distance of firing stated by the prosecution witnesses is based on their crude estimate and is not to be judged with mathematical accuracy. It clearly flows from the testimony of three eye-witnesses that Amrit Pal Singh (deceased), Gajendra Pal Singh, Ramesh Pal Singh and Raksha Pal Singh were cleaning the drain. The appellants on coming to know of it reached the spot with deadly weapons-fire-arms. Appellant Raj Pal Singh was armed with DBBL gun whereas remaining four appellants had country made pistols. The evidence is also there on record that there was dispute about this drain between the parties and their relations over this score were not cordial. The appeal, arising out of a civil suit decreed in favour of the complainant side, was pending before the District Judge and proceedings under Sections 107/116 of Cr. P. C. had also been contested between them over the dispute of drain. It is, therefore, apparent that the appellants had come prepared to take revenge as they thought without any basis that the complainant side was causing harassment to them over the issue of drain. Raj Pal Singh, Bhoj Raj, Rishi Pal Singh and Ashok Kumar appellants were of one family and Jagannath appellant was their associate as per the evidence. It is, therefore, apparent that the appellants had come prepared to take revenge as they thought without any basis that the complainant side was causing harassment to them over the issue of drain. Raj Pal Singh, Bhoj Raj, Rishi Pal Singh and Ashok Kumar appellants were of one family and Jagannath appellant was their associate as per the evidence. Simultaneously, all of them came up armed with fire-arms and started firing causing injuries to many persons on vital parts. Out of them, one Amrit Pal Singh even died. All of them emerged at the same time giving no occasion to the victims to run away. If the common object of the unlawful assembly was simply to chastise or drive away and dissuade Amrit Pal Singh and others from cleaning the public drain, they would have just gone to the spot with or without arms challenging the persons cleaning the drain asking them to get away and not to meddle with the drain, but the fire-arms would not have been used. Shovel or mattock could have been snatched from Amrit Pal Singh. On the complainant side, only Amrit Pal Singh had shovel or mattock to clean the drain and all others were empty handed. In any case, there could be a single fire by any one of them to drive away the complainant side. But what happened was that multiple gun shot wounds were caused to the deceased Amrit Pal Singh on his vital parts-neck, chest, abdomen, etc. as found through autopsy. Not only this, Rajveer Singh, Vijendra Pal Singh son of Mohar Singh, Ram Swarup, Sushil, Raksha Pal Singh, Vijendra Pal Singh son of Nahar Singh and Bhanwar Singh on the complainant side were also caused a number of fire-arm injuries including on vital parts. Two radio opaque rounded foreign body were seen in the right upper arm of Rajveer Singh. Two radio opaque rounded foreign body in chest, four in abdomen and two in right upper arm were seen in the injuries of Vijendra Pal Singh son of Mohar Singh. One radio opaque rounded foreign body on left side of the face and one in thoraces lumber region had been found in the injuries of Ram Swaroop. One radio opaque rounded foreign body in the right upper arm and one in the abdomen of Sushil had been found. One radio opaque rounded foreign body on left side of the face and one in thoraces lumber region had been found in the injuries of Ram Swaroop. One radio opaque rounded foreign body in the right upper arm and one in the abdomen of Sushil had been found. Two radio opaque rounded foreign body were present on the left upper arm, one in right orbital region and one in left thigh of Bhanwar Singh. It was just by providence that the injured persons on the complainant side (other than Amrit Pal Singh who died) escaped death. It was merely a chance that only one of them Amrit Pal Singh died and rest survived, though the appellants had left nothing within their power to transport all those on complainant side to the other world. 27. The global consideration of all the facts, evidence and circumstances clearly indicate that the appellants had come prepared with deadly weapons-fire-arms, forming an unlawful assembly with the common object of settling the dispute of drain for all times to come by murdering Amrit Pal Singh and others on his side. The commission of the murder of Amrit Pal Singh was well in contemplation of the unlawful assembly formed by them. Therefore it is not possible to hold that they simply wanted to chastise or drive away Amrit Pal Singh and others on his side. The truth of the matter is that firing was started by one of them, Raj Pal Singh and remaining four appellants, without losing a second, also started indiscriminate firing with their weapons on the persons on the side of the complainant. 28. In view of the above discussion, we are of the firm opinion that five appellants have rightly been convicted under Section 302 IPC read with Section 149 IPC with sentence of life imprisonment as also under Section 307 IPC read with Section 149 IPC with sentence of five years rigorous imprisonment. Their conviction under Section 148 IPC with sentence of two years rigorous imprisonment is also well sustainable. The appeal has no merit and is liable to be dismissed. 29. Resultantly, we dismiss the appeal upholding the order of conviction and sentences passed against the appellants, namely, 1. Raj Pal Singh, 2. Bhojraj alias Pappu, 3. Rishi Pal, 4. Jagan Nath and 5. Ashok Kumar by the trial Court. Presently, the appellants are reported to be in Jail. The appeal has no merit and is liable to be dismissed. 29. Resultantly, we dismiss the appeal upholding the order of conviction and sentences passed against the appellants, namely, 1. Raj Pal Singh, 2. Bhojraj alias Pappu, 3. Rishi Pal, 4. Jagan Nath and 5. Ashok Kumar by the trial Court. Presently, the appellants are reported to be in Jail. The Chief Judicial Magistrate, Aligarh shall confirm it and do the needful to ensure that they serve out the sentences passed against them. 30. Let a copy of this judgment along with record of the case be immediately sent to the Court below for needful action and reporting compliance to this Court within two months from the date of receipt. Appeal dismissed. .