JUDGMENT 1. - This appeal has been filed by the abovenamed accused appellants against judgment and order dated 26.9.2002 passed by the learned Addl. Sessions Judge, Raisinghanagar (Sri Ganganagar) in Sessions Case No. 25/99 by which he convicted the accused appellants for the offence under sections 148, 302/149 Indian Penal Code and ;sentenced them in the following manner : Names of accused appellants Convicted under section Sentence awarded to each accused appellant 1. Birbal Ram Three years RI and to pay fine of Rs. 500/- , in default of payment of fine, to further undergo 6 months RI. 2. Banwari Lal 3. Kishan s/o Shankarlal 148 IPC 4. Leeladhar 5. Bhaga Ram 6. Kishan s/o Birbalram 302/149 IPC Life imprisonment & to pay fine of Rs. 5000/-, in default of payment of fine to further undergo one year RI. Both the aforesaid substantive sentences were ordered to run concurrently. 2. It arises in the following circumstances: On 20.3.1999 at about 5.15 AM in the morning, one of the accused appellants, namely, Banwarilal (accused appellant no.2) lodged an oral report before PW-13 Chirangilal, who was SHO of Police Station Sri Bijayanagar District Ganganagar, stating inter alia that his younger brother Ramjilal had four sons; elder one is Birbalram (accused appellant no.1), younger to him Jeetram, next to him Bhagaram (accused appellant no.5) and next to him Hansraj. It was further stated in the report by accused appellant no.2 Banwarilal that Jeetram had died four years back and accused appellant no.1 Birbalram and others were living separately. It was further stated in the report by accused appellant no.2 Banwarilal that wife of Jeetram, namely, Ravanti Devi (hereinafter referred to as deceased no.1) was living separately and Jeetram had two sons and one daughter and both sons were living in their mother's parents' house, but daughter Kiludi @ Sumitra (PW7) used to live with her mother (deceased no.1 Ravanti Devi). It was further stated in the report by accused appellant no.2 Banwarilal that after the death of Jeetram, deceased no.1 Ravanti Devi had developed illicit relations with Satyanarayan (hereinafter referred to as the deceased no.2) and deceased no.2 Satyanarayan had started coming to the house of deceased no.1 Ravanti Devi and for that, accused appellant no.1 Birbalram and others used to remain angry with deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan and they were in search of occasion. It was further stated in the report by accused appellant no.2 Banwarilal that at about 12 - 12.30 on 20.3.1999 in the night, accused appellant no.1 Birbalram came to him and informed him that deceased no.2 Satyanarayan had come to the house of deceased no.1 Ravanti Devi and they both were sleeping together and he (accused appellant no.1 Birbalram) and accused appellant no.4 Leeladhar had murdered both deceased with lathies. It was further stated in the report by accused appellant no.2 Banwarilal that upon this, he went to the house of deceased no.1 Ravanti Devi alongwith accused appellant no.1 Birbalram and he found that deceased no.1 Ravanti Devi was lying dead in the bakhal where cows were being tied down and in the - chowk, he found the dead body of deceased no,2 Satyanarayan and he also found accused appellant no.4 Leeladhar there. It was further stated in the report by accused appellant no.2 Banwarilal that PW-7 Sumitra @ Kiludi, daughter of deceased no.1 Ravanti Devi, was also there and she was weeping. It was further stated in the report by accused appellant no.2 Banwarilal that accused appellants no.1 Birbalram and no.4 Leeladhar had murdered both deceased. That oral report of accused appellant no.2 Banwarilal was reduced into writing by PW-13 Chirangilal in the shape of FIR Ex.P/50 and he started investigation. During investigation, site plan Ex.P/2 was got prepared by PW-13 Chirangilal. Through fard Ex.P/8, blood smeared soil and through fard Ex.P/9 control (simple) soil were seized by PW-13 Chirangilal. From the place of occurrence,a pair of chappal (article 5) belonging to deceased no.2 Satyanarayan was seized by PW-13 Chirangilal through fard Ex.P/17 in presence of PW-1 Nathuram and PW-5 Mangturam and the same were identified by PW-10 Banwarilal, brother of deceased no.2 Satyanarayan. From the place of occurrence, lathi and its pieces (article 8) stained with blood were also seized on the same day i.e. on 20.3.1999 by PW-13 Chirangilal in presence of PW-1 Nathuram and PW-5 Mangturam through fard Ex.P/18. Through fard Ex.P/19, a bag (article 3) stained with blood belonging to the deceased no.2 Satyanarayan was seized by PW-13 Chirangilal. Through fard Ex.P/20, Jumpher (article 1) and salwar (article 2) of deceased no.1 Ravanti Devi stained with blood were seized by PW-13 Chirangilal. Through fard Ex.P/21, blood stained paijama of deceased no.2 Satyanarayan was seized by PW-13 Chirangilal. Through fard Ex.P/19, a bag (article 3) stained with blood belonging to the deceased no.2 Satyanarayan was seized by PW-13 Chirangilal. Through fard Ex.P/20, Jumpher (article 1) and salwar (article 2) of deceased no.1 Ravanti Devi stained with blood were seized by PW-13 Chirangilal. Through fard Ex.P/21, blood stained paijama of deceased no.2 Satyanarayan was seized by PW-13 Chirangilal. The post-mortem of the dead body of both the deceased was got conducted by Medical Board and PW-8 Dr. Devilal was one of the members of that Medical Board and the post mortem report of deceased no.1 Ravanti Devi is Ex.P/37 where it was opined that cause of her death was head injuries. The post mortem report of deceased no.2 Satyanarayan is Ex. P/38 where it was opined that cause of his death was head injuries. The accused appellants Birbalram, Banwarilal, Leeladhar, Kishan s/o Shankarlal, Bhagaram and Kishan s/o Birbalram were got arrested by PW-13 Chirangilal through arrest memos Ex.P/22, Ex.P/23, Ex.P/24, Ex.P/25, Ex.P/26 and Ex. P/27 respectively. During arrest, accused appellant no.1 Birbalram gave information Ex.P/51 about recovery of lathi and in pursuance of that information, the accused appellant no.1 Birbalram got recovered lathi (article 9), which was stained blood, and the same was seized by PW-13 Chirangilal through fard Ex.P/59 in presence of motbris Budi Khan @ Roshan Deen and Kishanlal. During arrest, accused appellant no.2 Banwarilal also gave information Ex.P/52 about recovery of lathe and in pursuance of that information, the accused appellant no.2 Banwarilal got recovered lathi (article 12), which was stained with blood, and the same was seized by PW-13 Chirangilal through fard Ex. P/60 in presence of motbirs Budi Khan @ Roshan Deen and Kishanlal. During arrest, accused appellant no.4 Leeladhar gave information Ex.P/53 about recovery of lathi and in pursuance of that information the accused appellant no.4 Leeladhar got recovered lathi (article 10), which was stained with blood, and the same was seized by PW-13 Chirangilal through fared Ex.P/61 in presence of motbirs Budi Khan . Roshan Deen and Kishanlal. During arrest, accused appellant no.3 Kishanlal s/o Shankarlal gave information Ex.P/54 about recovery of lathi and in pursuance of that information, the accused appellant no.3 Kishanlal got recovered lathi (article 11), which was stained with blood, and the same was seized by PW-13 Chirangilal through fard Ex.P/62 in presence of motbris Budi Khan @ Roshan Deen and Kishanlal. During arrest, accused appellant no.3 Kishanlal s/o Shankarlal gave information Ex.P/54 about recovery of lathi and in pursuance of that information, the accused appellant no.3 Kishanlal got recovered lathi (article 11), which was stained with blood, and the same was seized by PW-13 Chirangilal through fard Ex.P/62 in presence of motbris Budi Khan @ Roshan Deen and Kishanlal. During arrest, accused appellant no.5 Bhagaram gave information Ex.P/55 about recovery of lathi and in pursuance of that information, the accused appellant no.5 Bhagaram got recovered lathi (article 13),which was stained with blood, and the same was seized by PW-13 Chirangilal through fard Ex.P/63 in presence of motbirs Budi Khan @ Roshan Deen and Kishanlal. During arrest, accused appellant no.6 Kishanlal s/o Birbalram gave information Ex.P/56 about recovery of lathi and in pursuance of that information, the accused appellant no.6 Kishanlal got recovered lathi (article 14), which was stained with blood, and the same was seized by PW-13 Chirangilal through fard Ex.P/64 in presence of motbirs Budi Khan @ Roshan Deen and Kishanlal. The recovered and seized articles were sent to FSL and the FSL report is Ex.P/57 and the report of the Serologist is Ex.P/58. During investigation, statement of PW-7 Sumitra @ Kiludi was recorded by PW-13 Chirangilal on 20.3.1999 and the same is Ex.D/1. The statement of PW-7 Sumitra was also recorded by Magistrate on 30.3.1999 and the same is Ex.D/2. After usual investigation, police came to the conclusion that even the lodger of the report Ex.P/50, namely, Banwarilal was also one of the accused and thus, police submitted challan against the six accused appellants for the offence under sections 302, 449, 147, 148, 149 Indian Penal Code in the Court of Magistrate and from where the case was committed to the Court of Session. On 23.2.2000, the learned Addl. Sessions Judge, Raisinghanagar framed the charges for the offence under sections 302, 302/149, 147 and 148 Indian Penal Code against the accused appellants. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial. During the course of trial, the prosecution got examined as many as 13 witnesses and exhibited several documents. Thereafter, statements of the accused appellants under section 313 Criminal Procedure Code were recorded. In defence, no evidence was produced by the accused appellants. After conclusion of trial, the learned Addl. During the course of trial, the prosecution got examined as many as 13 witnesses and exhibited several documents. Thereafter, statements of the accused appellants under section 313 Criminal Procedure Code were recorded. In defence, no evidence was produced by the accused appellants. After conclusion of trial, the learned Addl. Sessions Judge, Raisinghnagar through impugned judgment and order dated 26.9.2000 convicted the accused appellants for the offence under sections 148 and 302/149 Indian Penal Code and sentenced them in the manner as indicated above holding inter alias:- (i) That learned trial Judge had placed reliance on the statement of PW-7 Sumitra, who was child witness of 11 years of age, and he treated child witness PW-7 Sumitra as an eye witness of the occurrence and further, the statement of PW-7 Sumitra was found corroborated by the statement of PW-9 Brijlal, father of deceased no.1 Ravanti Devi, to whom she narrated the whole story just after the occurrence. (ii) That statement of PW-7 Sumitra was not found affected by the fact that before recording her statement, preliminary questions about sanctity of oath were not asked to her, as according to learned trial Judge, she was an intelligent witness and thus, if no question was put about sanctity of oath, her credibility was not affected at all. (iii) That learned trial Judge did not find any contradiction between the statements of PW-8 Dr. Devilal and PW-7 Sumitra on the point that though in cross - examination PW-7 Sumitra had admitted that injuries were caused to deceased by Gandasa, but since as per statement of PW-8 Dr. Devilal, injuries to deceased were caused by blunt weapon, therefore, learned trial Judge came to the conclusion that the statement of PW-7 Sumitra was not affected at all as in her initial statement, she had stated that accused appellants beat both deceased with lathier. (iv) That statement of PW-7 Sumitra was got corroborated by medical evidence, which was found in the statement of PW-8 Dr. Devilal and further, at the information under section 27 of Evidence Act of accused appellants, blood stained lathies were recovered and as per Serologist report Ex.P/58, on some of the lathies, human blood was found. (v) That motive was also found on the point that there were illicit relations between deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan and for that, accused appellants had enmity with both deceased. (v) That motive was also found on the point that there were illicit relations between deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan and for that, accused appellants had enmity with both deceased. (vi) That such portion of FIR Ex.P/50 where one of the accused appellants, namely, accused appellant no.2 Banwarilal had mentioned names of two accused appellants no.1 Birbalramt and no.4 Leeladhar was not found correct and on the contrary, learned trial Judge placed reliance on the statement of PW-7 Sumitra where she had implicated all the six accused appellants in murdering both deceased. (vii) That prosecution has proved its case beyond all reasonable doubts against the accused appellants for the offence under sections 148, 302/149 Indian Penal Code and thus, he convicted and sentenced them in the manner as indicated above. Aggrieved from the said judgment and order dated 26.9.2000 passed by the learned Addl. Sessions Judge, Raisinghnagar, this appeal has been filed by the accused appellants. 3. In this appeal, the following main submissions have been made by the learned counsel for the accused appellants: (i) That learned trial Judge has committed grave error in placing reliance only on sole eye witness of the case, who was PW-7 Sumitra as her statement, if read as a whole; does not inspire confidence and suffers from some infirmities and further, she was under the influence of her Mama and Nana and therefore, conviction should have not been based on sole statement of PW-7 Sumitra. (ii) That in the report Ex.P/50 lodged. by Banwarilal, no doubt he is one of the accused appellants, only the names of two accused appellants no.1 Birbalram and no.4 Leeladhar were mentioned and since some other family members have been roped in, therefore, the prosecution case cannot be found proved or established against atleast four accused appellants, namely, Banwarilal, Kishanlal, Bhagaram and Kishan. (iii) That statement of PW-7 Sumitra suffers from basic infirmity as before recording her statement, preliminary questions to test her competency, intellectual capacity and sanctity of oath were not asked to her though oath was administered. Hence, no reliance should have been placed on her statement. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 26.9.2000 passed by the learned Addl. Sessions Judge, Raisinghnagar. 5. Hence, no reliance should have been placed on her statement. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 26.9.2000 passed by the learned Addl. Sessions Judge, Raisinghnagar. 5. We have heard the learned counsel for the accused - appellants and the learned Public Prosecutor and gone through the record of the case. 6. Before proceeding further, first medical evidence of this case has to be seen.Post - mortem of dead body of deceased No.1 - Ravanti Devi 7. The post - mortem report of deceased No.1 - Ravanti Devi is Ex.P/37 and to prove the same, the prosecution has produced PW-8 Dr. Devilal. 8. PW-8 Dr. Devilal in his statement recorded in Court has stated that on 20.3.1999 he was Sr. Medical Officer in Government Hospital, Sri Vijaynagar and on that day, post - mortem of the dead body of deceased No.1 - Ravanti Devi was got conducted by Medical Board and he was one of the members of that Medical Board and following injuries were found on her dead body: 1. Lacerated wound 6" x 1/4" bone deep on Lt. side skull mid region, on opening Lt. prietal bone found fractured with underneath brain crushed. 2. Lacerated wound 5" x /14"x bone deep on Lt. side skull mid upper region on opening Lt. parietal bone found fractured with brain under crushed. 3. Lacerated wound 3" x /4"x bone deep on skull mid ant. No fracture. 4. Lacerated wound 3" x /4"x bone deep on skull Lt. ant No fracture. 5. Lacerated wound 3" x 1/4"x bone deep on Rt. forehead ant. No fracture. 6. Lacerated wound 3/4" x /4" x ⅛' on chain ant. No fracture underneath. 7. Lacerated wound ⅓" x tear through & through on upper lip mid with Rt. 1st inciser loose & bleeding in root present. 8. Bruise 6"x 8" on Rt. hip lat. No fracture. 9. Bruise 6"x4" on Abdomen lower anteriorly. 10. Multiple bruises from 6" x ⅓" to 1" x 1/2" on both lower leg anteriorly. No fracture underneath. 11. Lacerated wound 1/2" x 1/4" x /18" on Lt. elbow region. No fracture under. He has further stated that cause of death of deceased no.1 Ravanti Devi was head injuries. No fracture. 9. Bruise 6"x4" on Abdomen lower anteriorly. 10. Multiple bruises from 6" x ⅓" to 1" x 1/2" on both lower leg anteriorly. No fracture underneath. 11. Lacerated wound 1/2" x 1/4" x /18" on Lt. elbow region. No fracture under. He has further stated that cause of death of deceased no.1 Ravanti Devi was head injuries. He has further stated that all injuries were caused by blunt object and the injuries no.1 and 2 were sufficient in the ordinary course of nature to cause death. He has proved the post mortem report Ex.P/37. 9. Thus, from the statement of PW-8 Dr. Devilal, it is very much dear that the deceased no.1 Ravanti Devi died because of head injuries and she received 11 injuries and all injuries were caused by blunt object and the injuries no.1 and 2 were sufficient in the ordinary course of nature to cause death and thus the death of the deceased no.1 Ravanti Devi may be classified as homicidal one.Post-Mortem of dead body of deceased no.2 Satyanarayan 10. The post mortem report of deceased no.2 Satyanarayan is Ex.P/38 and to prove the same, the prosecution has produced PW-8 Dr. Devilal. 11. PW-8 Dr. Devilal has further stated that post mortem of the dead body of deceased no.2 Satyanarayan was also got conducted on 20.3.1999 and following injuries were found on his dead body: 1. Lacerated wound 1 1/2" x 1/4" x bone deep on skull above Lt. ear on opening lower parietal bone found fractured. 2. Lacerated wound 3" x 1/4"x bone deep on skull mid ant region. On opening both parietal bone at ant aspect found fractured brain underneath found crushed. 3. Bruises three 8"x1" each on Rt. side abdomen and Rt. chest. No fracture underneath. 4. Bruise 2"x2" on Rt. Eye. 5. Bruise three each 6" x 3/4" on back of chest both side. No fracture. 6. Lacerated wound 1" x 1/4" x bone deep on Lt. legal mid medially. 7. Lacerated wound 1" x 1/4" x bone deep on Lt. leg upper ant. 8. Lacerated wound 1" x 1/4" x bone deep on Lt. leg lower ant. 9. Bruises multiple from 1" x 1/4" to 1/2' to 1/2" on Lt. leg ant. 10. Bruises multiple from 4" x 1" to 3/4" x 3/4" on Rt. leg anteriorly. 11. Bruise 4"x1" on Rt. leg upper ant. 8. Lacerated wound 1" x 1/4" x bone deep on Lt. leg lower ant. 9. Bruises multiple from 1" x 1/4" to 1/2' to 1/2" on Lt. leg ant. 10. Bruises multiple from 4" x 1" to 3/4" x 3/4" on Rt. leg anteriorly. 11. Bruise 4"x1" on Rt. leg lower medially on opening * of both tibia and fibula at lower region detected. 12. Lacerated wound 1" x 1/4" bone deep on Rt. leg lower ant. 13. Bruise 1" x 3/4" on both knee jt. ant. 14. Multiple bruises 6" x 1" to 1" x 3/4" on both forearm ant. & posteriorly. Fracture of lower end of both radium & ulna detected on It. side. On Lt. hand little finger fracture at base phalanx detected. He has further stated that cause of death of deceased no.2 Satyananaryan was head injuries. He has further stated that all injuries were caused by blunt object and injuries no.1 and 2 were dangerous and injuries nos.11 and 14 were grievous and injuries nos.1 and 2 were sufficient in the ordinary course of nature to cause death. He has proved the post-mortem report Ex.P/38. 12. Thus, from the statement of PW-8 Dr. Devilal, it is very much clear that the deceased no.2 Satyanarayan died because of head injuries and he received 14 injuries and all injuries were caused by blunt object and injuries nos.1 and 2 were dangerous and injuries nos.11 and 14 were grievous and the injuries nos.1 and 2 were sufficient in the ordinary course of nature to cause death and thus, the death of the deceased no.2 Satyanarayan may be classified as homicidal one. 13. The next question for consideration is whether the findings of the learned trial Judge by which he came to the conclusion that the accused appellants had caused the above injuries to both deceased with lathies are liable to be confirmed one or not. 14. So far as the fact that deceased no.1 Ravanti Devi's husband Jeetram had died four years back from the date of incident is concerned, there is no dispute on that point and deceased no.1 Ravanti Devi was widow of Jeetram and PW-7 Sumitra is daughter of deceased no.1 Ravanti Devi and at that time, she was about 11 years of age. 15. 15. There is also no dispute on the point that the report of the alleged incident Ex.P/50 was lodged by accused appellant no.2 Banwarilal and gist of that report had already been stated above and the question is what would be the effect if the lodger of the report himself becomes the accused in the case after investigation. 16. In Faddi v. State of MP ( AIR 1964 SC 1850 ) , the Hon'ble Supreme Court held that where the person who lodged the first information report regarding the occurrence of a murder is himself subsequently accused of the offence and tried and the report lodged by him is not a confessional first information report, but is an admission by him of certain facts which have a bearing on the question to be determined by the Court viz., how and by whom the murder was committed or whether the statement of the accused in the Court denying the correctness of certain statement of the prosecution witnesses is correct or not, the first information report is admissible to prove against him as admissions which are relevant under section 21, Evidence Act. 17. It may be stated here that confessional first informant report is totally inadmissible in evidence. No part of such confessional statement except to the extent that the bar is lifted by section 27, Evidence Act is admissible. For that, the decision of Hon'ble Supreme Court in Aghnoo Negesia v. State of Bihar ( AIR 1966 SC 119 ) may be referred to. 18. In this case, as per report Ex.P/50, the accused appellant no.2 Banwarilal has not made himself as one of the accused and rather he has put liability on two accused appellants no.1 Birbalram and no.4 Leeladhar. Therefore, some of the admissions, which are found in the report Ex.P/50 are relevant such as two persons were murdered in the house of deceased no.1 Ravanti Devi in the night on 20.3.1999. 19. The Hon'ble Supreme Court in B.A. Ramaiah v. State of A.P. (1996 Cr.L.J. SC 4463 ) has observed that a statement contained in the FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. 19. The Hon'ble Supreme Court in B.A. Ramaiah v. State of A.P. (1996 Cr.L.J. SC 4463 ) has observed that a statement contained in the FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. Even as against the accused who made it, the statement cannot be used if it is inculpatory in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in the trial. The very limited use of it is as an admission under section 21 of the Evidence Act against its maker alone, unless the admission does not amount to confession. 20. Thus, the allegation in the report Ex.P/50 made by accused appellant no. 2 Banwarilal that the murder of both deceased was committed by two accused appellants no.1 Birbalram and no.4 Leeladhar cannot be used against them and for that, other evidence led by the prosecution has to be seen. 21. Therefore, since the principal object of the FIR is to set the criminal law in motion from the point of view of the informant and to obtain information about an alleged crime, therefore, from the point of view, FIR Ex.P/50 can be seen as it has put the police machinery on motion and the investigation was got conducted by PW-13 Chirangilal. 22. Apart from this, from the FIR Ex.P/50, the following facts have emerged: (i) That two persons, namely, deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan were murdered with lathies in the house of deceased no.1 Ravanti Devi on 20.3.1999 in the night. (ii) That PW-7 Sumitra was living with her mother (deceased no.1 Ravanti Devi) (iii) That Jeetram, husband of deceased no.1, had died four years back from the date of incident and deceased no.2 Satyanarayan used to come frequently to the house of deceased no.1 Ravanti Devi as paramour and both deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan were having illicit. relations and for that, other family members of deceased no.1 Ravanti Devi were not happy and they used to remain angry with them and they were in search of occasion so that such illicit relations between both deceased might be ended. 23. The result is that the FIR Ex.P/50 can be seen for the facts just narrated above. 24. relations and for that, other family members of deceased no.1 Ravanti Devi were not happy and they used to remain angry with them and they were in search of occasion so that such illicit relations between both deceased might be ended. 23. The result is that the FIR Ex.P/50 can be seen for the facts just narrated above. 24. Before proceeding further, relationship of the accused appellants with deceased no.1 Ravanti Devi may be stated here. 25. The accused appellants no.1 Birbalram and no.5 Bhagaram are the brothers of husband of deceased no.1 Ravanti Devi. The accused appellant no.6 Kishan is son of accused appellant no.1 Birbalram. The accused appellants no.3 Kishanlal s/o Shanker Lal and no.4 Leeladhar are also close relatives of deceased no.1 Ravanti Devi as they are sons of Jeetram's father's brother. The accused appellant no.2 Banwarilal, who lodged the report Ex. P/50 is brother of Ramjilal, who is father of Jeetram, husband of deceased no.1 Ravanti Devi. 26. Thus, it is very much clear that all accused appellants were close relatives of deceased no.1 Ravanti Devi and as per report Ex. P/50, because of illicit relations between both deceased, family members of deceased no.1 Ravanti Devi were not happy and they were in search of opportunity for ending this illicit relationship. 27. In this case, PW-7 Sumitra is daughter of deceased no.1 Ravanti Devi and at the time of alleged occurrence, she was about 10 - 11 years of age and when her statement was being recorded by the trial court, though oath was administered to her, but before recording her statement, preliminary questions were not asked to her by the trial Court to test her competency and intellectual capacity. 28. On this point, the learned counsel for the accused appellants has submitted that since preliminary question were not put to PW-7 Sumitra before recording her statement, therefore, her statement is tainted one and should be rejected on this ground alone. 29. To appreciate the above argument, we have to see the rule as embodied invoire dire : to tell the truth and whether preliminary examination of a child witness to test his competency an intellectual capacity is a rule of law or rule of caution?Voire dire (voire dire: to tell the truth) : preliminary examination of the witness to test his competency 30. No doubt before examining a child as a witness the court should test his intellectual capacity by putting a few simple and ordinary questions to child and should also record a brief proceeding of the inquiry so that the appellate court may feel satisfied as to the capacity of the child to give evidence, but if it has not happened so, whether evidence of child witness becomes invalid or inadmissible? 31. In our considered opinion, there is no rule of law that a Judge or Magistrate before recording statement of a child witness should invariably put preliminary questions for the purposes of ascertaining the child's capacity to understand and give rational answers; and the mere fact that a Judge did not interrogate the child witness before the examination will not render his evidence inadmissible. 32. Merely because the trial Judge did not put certain formal questions to the child witness or that he did not append a certificate that the child understood the duty of speaking the truth, the statement of the child does not become ineffective and its probative force will not suffer on that ground. In this respect the decision of the Hon'ble Supreme Court in Rameshwar v. State of Rajasthan ( AIR 1952 SC 54 ) may be referred to. 33. In Dattu Ramrao Sakhare v. State of Maharashtra (JT 1997 (5) SC 370) , the Hon'ble Supreme Court observed as follows : "A child witness if found competent to depose to the facts and is reliable one, such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." 34. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored." 34. On doubt, the above law laid down by the Hon'ble Supreme Court pertains to the requirement of oath, but the same reasoning may be applicable to a case where preliminary examination of a child witness to test his competency and intellectual capacity was not done by the trial court. If the court comes to the conclusion that the child witness is competent witness within the meaning of section 118 of Evidence Act, then such type of infirmity would not make her statement inadmissible because section 118 of Evidence Act simply says that all persons shall be competent to testify. 35. Thus, it is held that no doubt before examining the child witness, the Court should test his competency and intellectual capacity by putting a few simple and ordinary questions, but failure or omission to do so, does not render the evidence of the child witness inadmissible. Keeping a record of preliminary examination is not a condition precedent to taking of evidence. It may be desirable, but not an invariable requirement of law. Therefore, preliminary examination of the child witness to test his competency can be described as a rule of caution and not rule of law. 36. Therefore, in view of the above, in the present case, if preliminary questions were not put to PW-7 Sumitra before recording her statement, her evidence does not become invalid or inadmissible. Apart from this, she was not a very small child, but she was aged about 11 years and according to the learned trial Jude, she was an intelligent and intellectual witness. Therefore, from this point of view also, omission or failure to put preliminary questions to PW-7 Sumitra does not render her evidence inadmissible. 37. Hence, the argument that since preliminary questions were not put to PW-7 Sumitra before recording her statement, therefore, her evidence stood vitiated, stands rejected. 38. Before proceeding further, something should be said about appreciation of evidence of child witness. 39. 37. Hence, the argument that since preliminary questions were not put to PW-7 Sumitra before recording her statement, therefore, her evidence stood vitiated, stands rejected. 38. Before proceeding further, something should be said about appreciation of evidence of child witness. 39. It is well settled that although legally there is no bar to accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by their Lordship of the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah v. King (AIR 1956 PC 3 = 1946 ALJ 100 ) . The same view was taken by Their Lordships of the Hon'ble Supreme Court in the case of Rameshwar (supra) and later on, in so many cases. 40. As to the nature and extent of collaboration, which should be required, it may be stated here that it did not mean that the corroboration as to the identity must extend to all circumstances necessary to identify the accused with the offence, yet there has to be independent evidence which would make it reasonably safe to believe the witness's story that the accused was the one who committed the offence. 41. In Raja Ram Yadav v. State of Bihar (JT 1996 (4) SC 140) , the Hon'ble Supreme Court observed that the evidence of a child witness is not required to be rejected per se but the Court, as a rule of prudence, considers such evidence with close scrutiny and only on being, convicted about the quality of such evidence and its reliability, bases the conviction by accepting the deposition of the child witness. 42. The evidence of child witness would always stand irretrievably stigmatized. It is not the law that if a witness is child his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because child is susceptible to be swayed by what others tell them and thus a child witness is an easy pray (sic 'prey'?) to tutoring. 43. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because child is susceptible to be swayed by what others tell them and thus a child witness is an easy pray (sic 'prey'?) to tutoring. 43. While ordinarily a child witness is expected to give out a true and faithful version of the incident because of his innocence, there is always the danger in accepting his evidence because such witness might be under the influence or might have been tutored to narrate the incident in a particular manner. 44. If after carefully scrutinising the evidence of child witness, the Court comes to the conclusion that there was a great impress of truth in it, there was no bar in law in the way of accepting the evidence of child witness. The Court should look for corroboration as a matter of caution and not as a rule of law. 45. It may be stated here that if there are minor discrepancies in the evidence of a witness, they should be treated as natural one because a tutored witness will depose in a parrot like manner. This does not destroy the basic fabric of evidence of a truthful witness. Minor discrepancy guarantees that the witnesses are not tutored. 46. In the depositions of witnesses, there are always normal discrepancies, however, honest and truthful they may be. These are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like. 47. Keeping the above legal position in - mind, the statement of child witness PW-7 Sumitra is being examined. 48. PW-7 Sumitra in her examination - in - chief has stated that on the fateful day, when she was sleeping, she heard the cries and she found deceased no.2 Satyanarayan and her uncle Sarju. 47. Keeping the above legal position in - mind, the statement of child witness PW-7 Sumitra is being examined. 48. PW-7 Sumitra in her examination - in - chief has stated that on the fateful day, when she was sleeping, she heard the cries and she found deceased no.2 Satyanarayan and her uncle Sarju. She has further stated that Sarju had run away from the scene and when deceased no.2 Satyanarayan tried to run away, there upon, accused appellant no.1 Birbalram, accused appellant no.6 Kishan s/o Birbal Ram, accused appellant no.2 Banwarilal, accused appellant no.5 Bhaggaram, accused appellant no.3 Kishanlal s/o Shankarlal and accused appellant no.4 Leeladhar came there having lathies in their hands and they first killed deceased no.2 Satyanarayan and thereafter, accused appellant no.2 Banwarilal took out her mother (deceased no.1 Ravanti Devi) after catching hold her hands and told that she should also be killed and upon this, first accused appellants no.1 Birbalram, no.4 Leeladhar and no.6 Kishan beat deceased no.1 Ravanti Devi with lathies and then all accused appellants beat her. She has further stated that she also saw PW-1 Nathuram and PW-3 Puranmal standing there, but she was put in the room by the accused appellant no.5 Bhagaram. She has further stated that wife of accused appellant nol. Birbalram was also saying that she should be killed. She has further stated that accused appellants killed both deceased and nobody came forward to save them.In cross - examination, this witness admits the following facts: (i) That her mother (deceased no.1 Ravanti Devi) was sleeping in another room. (ii) That deceased no.2 Satyanarayan came in the night and at that time, she was sleeping. (iii) That PW-10 Banwarilal is brother of deceased no.2 Satyanarayan and relations of her mother (deceased no.1 Ravanti Devi) with PW-10 Banwarilal were not cordial. (iv) That she could not say as to for what purpose, deceased no.2 Satyanarayan came to the house of her mother (deceased no.1 Ravanti Devi) on the fateful day in the night. (v) That the fact of putting fire is not found in her statement Ex.D/1 recorded by police and in Ex.D/2 recorded by the Magistrate. (vi) That Amuram is her Mama and on his saying, she put signatures on warrant. (vii) That today she has come with her Nana PW-9 Brijlal and not with her Mama Amruram. (viii) That her another Mama is vakil. (vi) That Amuram is her Mama and on his saying, she put signatures on warrant. (vii) That today she has come with her Nana PW-9 Brijlal and not with her Mama Amruram. (viii) That her another Mama is vakil. (ix) That it is wrong to say that she was giving statement as per suggestion of her Nana Brijalal, PW-9 or Mama. (x) That she saw the dead bodies of both deceased together. (xi) That she could not say which accused appellant caused which injury to each deceased. (xii) That police came in early morning and police was called by accused appellant no.2 Banwarilal. (xiii) That her Nana Brijlal, PW-9 came at about 11.00 AM. (xiv) That before her Nana Brijlal, PW-9 came, her statement was recorded thrice by three persons. (xv) That she was taken to Anupgarh for appearing before Magistrate, by her another Nana, where they also met with lawyer. (xvi) That it is correct to say that the copy of statement, which was given by her to Magistrate, was taken by her Nana, but she did not know what was written in it. (xvii)That she is student of Vth class. (xiii) That it is correct to say that the statement, which was given by her before the Magistrate, same has been given by her in the Court. (xix) That accused appellants no.1 Birbalram, no.6 Kishan, no.2 Banwarilal and no.4 Leeladhar were armed with Gandasiya and they caused injuries with Gandasiya. (xx) That she could not say why deceased no.2 Satyanarayan came at 11.00 PM. (xxi) That deceased no.2 Satyanarayan was a married person, but his wife had died and it is also correct to say that for murder of his wife, he was facing trial. (xii) That it is also correct to say that some altercations took place between her mother (deceased no.1 Ravanti Devi) and deceased no.2 Satyanarayan. (xxiii)That the fact that accused appellant no.2.Banwarilal took out her mother (deceased no.1 Ravanti Devi) after catching hold her hands and told that she should also be killed is not found in her police statement Ex.D/1 and Magistrate statement Ex.D/2, but it appears that on that count, she was wrongly contradicted as that fact is found in Magistrate statement Ex.D/2. (xxiv)That wife of accused appellant Birbalram came there, but this fact is not found in her Magistrate statement Ex.D/2. (xxiv)That wife of accused appellant Birbalram came there, but this fact is not found in her Magistrate statement Ex.D/2. (xxv)That it is wrong to say that there were illicit relations between deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan, but it is correct to say that on the fateful day, deceased no.2 Satyanarayan came after jumping over wall. 49. From the statement of PW-7 Sumitra, presence of PW-1 Nathuram and PW-3 Purnmal appears, but both have begin declared hostile. 50. PW-9 Brijla lis Nana of PW-7 Sumitra and father of deceased no.1 Ravanti Devi. He has stated that he came to know in the noon that his daughter (deceased no.1 Ravanti Devi) had been killed and then he came to the dhani, where he found his daughter (deceased no.1 Ravanti Devi) dead and he was told PW-7 Sumitra that all the accused appellants had killed both deceased.In cross - examination, he has admitted the following facts : (i) That the fact of killing of both deceased by the accused appellants was told to him by PW-7 Sumitra near dead body of both deceased. (ii) That he could not say whether there were illicit relations between deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan. (iii) That whole land in the family where deceased no.1 Ravanti Devi was married, was in the name of Hari, father of accused appellant no.2 Banwarilal and Panchayat was called by deceased no.1 Ravanti Devi and accused appellant no.2 Banwarilal refused to give land to deceased no.1 Ravanti Devi. 51. Before proceeding further, it may be stated here that so far as the fact whether there were illicit relations between deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan is concerned, the same is found in the report Ex.P/50 lodged by accused appellant no.2 Banwarilal and further, for that, the statement of PW-10 Banwarilal, who is brother of deceased no.2 Satyanarayan, may be referred to and this witness has admitted that Guddi Devi, wife of deceased no.2 Satyanarayan, was murdered and in that murder, deceased no.2 Satyanarayan was accused. He has further admitted that deceased no.2 Satyanarayan was having illicit relations with deceased no.1 Ravanti Devi. 52. He has further admitted that deceased no.2 Satyanarayan was having illicit relations with deceased no.1 Ravanti Devi. 52. Thus, the fact that both deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan were having illicit relations with each other is well established in this case and from this point of view also, the motive as per report Ex.P/50, is also apparent for murdering both deceased. 53. There is also no dispute on the point that PW-7 Sumitra is daughter of deceased no.1 Ravanti Devi and if she is a relative of deceased no.1 Ravanti Devi, she is also relative of accused appellants, who were close relatives of deceased no.1 Ravanti Devi, as stated above. 54. There is also no dispute on the point that as per medical evidence, both deceased received several injuries by blunt object and not by sharp edged weapon. 55. There is also no dispute on the point that some of the contradictions, which have been put to PW-7 Sumitra, were not contradictions in substantial sense, but they were put to the mouth of PW-7 Sumitra. 56. There is also no dispute on the point that presence of PW-7 Sumitra at the place of occurrence has been stated by accused appellant no.2 Banwarilal in his report Ex.P/50 and she was living with deceased no.1 Ravanti Devi. 57. A witness, who is living in the house alongwith the deceased can be said to be a natural witness of that house. 58. In the present case, since PW-7 Sumitra was daughter of deceased no.1 Ravanti Devi and child witness and she was living with deceased no.1 Ravanti Devi, therefore, she can be regarded as natural witness and her presence on the scene of occurrence cannot be doubted in any manner because the house in which the alleged incident had taken place belonged to her and apart from this, her presence on the scene has been mentioned by accused appellant no.2 Banwarilal in his report Ex.P/50. 59. Therefore, the evidence of PW-7 Sumitra cannot be rejected merely on the around that she is a close relative being daughter of deceased no.1 Ravanti Devi. However, her statement should be subjected to dose scrutiny and should be believed, if otherwise found reliable and corroborated from other evidence. 60. 59. Therefore, the evidence of PW-7 Sumitra cannot be rejected merely on the around that she is a close relative being daughter of deceased no.1 Ravanti Devi. However, her statement should be subjected to dose scrutiny and should be believed, if otherwise found reliable and corroborated from other evidence. 60. There is also no dispute on the point that when police came in the early morning, PW-7 Sumitra was found in the house where murder of both deceased had taken place and her statement Ex.D/1 was recorded by PW-13 Chirangilal on the same day i.e. on 20.3.1999. Therefore, it cannot be said that statement of PW-7 Sumitra was recorded with delay. This also shows that she was very much there and the alleged incident had taken place in the house of deceased no.1 Ravanti Devi in her presence. 61. As already stated above, for murdering of both deceased, there was apparent motive as if found in the report Ex. P/50 lodged by accused appellant no.2 Banwarilal and further, it is well established fact that there were illicit relations between both deceased. 62. In the above background, if the statement of PW-7 Sumitra is read as a whole, it appears that she has categorically stated that all accused appellants were present at the place of occurrence and they beat first deceased no.2 Satyanarayan with lathies and thereafter, accused appellant no.2 Banwarilal took out deceased no.1 Ravanti Devi after catching hold her hands and then all accused appellants beat her also with lathies and as a result of which, both deceased died instantaneously on the spot. 63. In view of this fact, if PW-7 Sumitra has admitted in her cross - examination that four accused appellants beat deceased with Gandasiya and injuries by sharp edged weapon were not found on the body of both deceased, it cannot be said that she was giving a wrong statement as she has clearly stated in her examination - in - chief that all accused appellants gave beating to both deceased with lathies. Not only this, her statement that all accused appellants beat both deceased with lathies is further corroborated from the report Ex.P/50, which was lodged by - accused appellant no.2 Banwarilal. 64. Not only this, her statement that all accused appellants beat both deceased with lathies is further corroborated from the report Ex.P/50, which was lodged by - accused appellant no.2 Banwarilal. 64. Thus, the contradictions, which have been raised by the learned counsel for the accused appellants, do not survive and in this respect, it may be stated here that learned trial Judge in his impugned judgment has considered and dealt with all the submissions raised by the learned counsel appearing on behalf of accused appellants before the trial Court and has rightly rejected them by giving cogent reasons. 65. No doubt it has come in the statement of PW-7 Sumitra that she had gone to Anoopgarh with her Nana for giving statement before the Magistrate, but since she was child, she could not go alone and somebody was to accompany her. Therefore, from this point of view also, it cannot be said that she was a tutored witness. 66. So far as the fact that copies of statement of PW-7 Sumitra recorded before the Magistrate were taken by her Nana or Mama is concerned, for that, she has categorically stated that she did not read that statement. Therefore, to say that she was a tutored witness, cannot be accepted. 67. Apart from this, since, PW-7 Sumitra has narrated the incident in full details before PW-17 Chirangilal, SHO early in the morning just after the occurrence, as is evident from Ex.D/1 and her Nana PW-9 Brijlal came in the noon, therefore, to say that she was tutored.by her Nana or Mama cannot be accepted. Thus, her statement before the police cannot be said to have been influenced by any one. 68. Not only this, the manner in which PW-7 Sumitra has faced cross-examination dearly reveals that she is an intellectual child and she has given rational answers thereto. If minor discrepancies have come in the statement of PW-7 Sumitra, they should be treated as natural one and these minor discrepancies might be outcome of normal errors of observation and normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and the like and hence, they should be over - looked. Had statement of PW-7 Sumitra would have been suffered with material discrepancies, the position would have been different one. 69. Had statement of PW-7 Sumitra would have been suffered with material discrepancies, the position would have been different one. 69. The result of the above discussion is that PW-7 Sumitra is a reliable child witness and her statement was rightly believed by the learned trial Judge and from her statement, the fact that each accused appellant was there at the time of occurrence is well established and further, the fact that each accused appellant took active part in beating/killing both deceased is also well established and proved.Other Corroborative evidence to the statement of PW-7 Sumitra. (i) Medical Evidence 70. The statement of PW-7 Sumitra that all accused appellants beat both deceased with lathies is further corroborated by medical evidence, which is found in the post-mortem reports Ex.P/37 and Ex.P/38 where it was mentioned that deceased no.1 Ravanti Devi received 11 injuries by blunt weapon and deceased no.2 Satyanarayan received 14 injuries by blunt weapon.Recovery of lathies at the instance of accused appellants 71. From the statement of PW-13 Chirangilal, it is well proved that all accused appellants while in police custody gave information about recovery of lathies and on the information of accused appellants, blood stained lathies were recovered. 72. However, as per report of the Serologist Ex.P/58, only three lathies were found stained with human blood. But, from the statement of PW-13 Chirangilal, the fact that blood stained lathies were got recovered at the instance of accused appellants is well proved. 73. Apart from this, from the statement of PW-13 Chirangilal, it is also well proved that from the place of occurrence, he seized blood smeared soil as well as simple control soil and he also seizes one pair of chappal (article 5) of deceased no.2 Satyanarayan through Ex.P/17 and pieces of lathies through fard Ex.P/18, which were stained with blood. 74. It has been submitted by the learned counsel for the accused appellants that since in some of the lathies recovered at the instance of accused appellants, human blood was not found, therefore, so called recovery of lathies does not connect the accused appellants with the commission of crime. 75. In our considered opinion, the above argument cannot be accepted and liable to be rejected because of the following reasons:- (i) That when there is direct evidence, recovery of weapon is of not very much importance and that evidence can be seen for corroboration. 75. In our considered opinion, the above argument cannot be accepted and liable to be rejected because of the following reasons:- (i) That when there is direct evidence, recovery of weapon is of not very much importance and that evidence can be seen for corroboration. In the present case, since there is direct evidence in the statement of PW-7 Sumitra on the point that accused appellants murdered both deceased with lathies, recovery of weapon loses its importance. (ii) That in this case, there is positive evidence which is found in the statement of PW-13 Chirangilal that at the instance of accused appellants, blood stained lathies were recovered. However, on some of the lathies, human blood was not found. In this respect, it may be stated here that evidence of recovery of weapon of offence at the instance of the accused cannot be held to be of no utility merely because blood found on the weapon was not identified as human blood because the importance aspect concerning recovery of the weapons is that it renders the statement made by the accused admissible in evidence. The incriminating circumstance in such a case is not merely that the weapons were disinterred by the police, but that those persons admitted to the police that such weapons were concealed by them at those places. For that, the decision of the Hon'ble Supreme Court in Gulzar Ali v. State of H.P. ( 1998 (2) SCC 192 ) may be referred to. 76. Therefore, the fact that the lathies were concealed by the accused appellants is well established from the statement of PW-13 Chirangilal and it is one of the circumstances also, which corroborates the statement of PW-7 Sumitra on the point that the accused appellants beat both deceased with lathies. 77. 76. Therefore, the fact that the lathies were concealed by the accused appellants is well established from the statement of PW-13 Chirangilal and it is one of the circumstances also, which corroborates the statement of PW-7 Sumitra on the point that the accused appellants beat both deceased with lathies. 77. It may be stated here that since PW-7 Sumitra was close relative of deceased no.1 Ravanti Devi being her daughter, therefore, with a view to satisfy our judicial conscious, we have perused her evidence minutely and carefully, but we do not find any material infirmity in her statement and rather it appears that she is a truthful and reliable witness and she saw with her own eyes that the accused appellants had caused murder of both deceased with lathies and her statement is further corroborated by medical evidence and apart from this, her statement is corroborated by recovery of blood stained lathies at the instance of accused appellants. From her statement, it cannot reasonably be inferred that she was telling lie or falsely implicating the accused appellants with the commission of crime. She has very firmly stood to the cross - examination of the defence and has passed the test. Therefore, the learned trial Judge has rightly placed reliance on her statement. 78. No doubt PW-7 Sumitra has not stated which injury on the body of deceased was caused by which accused, but this cannot be expected when so much injuries were caused to both deceased and especially when accused appellants were convicted with the aid of Section 149 Indian Penal Code. 79. The next question that arises for consideration is whether in the facts and circumstances of the case, Section 149 Indian Penal Code was rightly made applicable by the learned trial Judge or not or whether all accused appellants were members of unlawful assembly, the common object of which was to murder both deceased or not, especially when the prosecution has not been able to prove which accused appellant caused which injury to each deceased. 80. As already stated above, all accused appellants are members of the same family to which PW 7 Sumitra and deceased no.1 Ravanti Devi belong. 81. 80. As already stated above, all accused appellants are members of the same family to which PW 7 Sumitra and deceased no.1 Ravanti Devi belong. 81. Before recording a conviction under section 147 or 148 Indian Penal Code and applicability of section 149 Indian Penal Code, the following essential ingredients must be satisfied by the prosecution : (i) That five or more person were assembled. (ii) That such assembly was unlawful when it was convened or subsequently became unlawful, having any one of the five objects specified in section 141. (iii) That such object was the common object of those composing such assembly. (iv) That the accused, or any member of such unlawful assembly, used force or violence. (v) That such force or violence was used in the prosecution of such common object. (vi) That the accused was armed with a deadly weapon, or with something which was likely to cause death, when used as a weapon of offence. 82. Section 149 Indian Penal Code creates a specific offence and deals with the punishment of that offence. Section 149 Indian Penal Code makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. 83. It is well settled that mere presence of persons does not make them members of unlawful assembly. For that two decisions of the Hon'ble Supreme Court in Baladin and ors. v. State of Uttar Pradesh ( AIR 1956 SC 181 ) and Bishambar Bhagat and ors. v. The State of Bihar ( AIR 1971 SC 2381 ) may be referred to. 84. When there is unlawful assembly, at that time, it becomes difficult for the witnesses to describe accurately the part played by each one of the assailants and thus, in such cases, criminal courts have to do their best in dealing with such cases and duty is cast upon the criminal court to sift the evidence carefully and decide which part of it is true and which is not. For that the decision of the Hon'ble Supreme Court in Masalti and ors. v. The State of U.P. ( AIR 1965 SC 202 ) may be seen. 85. For that the decision of the Hon'ble Supreme Court in Masalti and ors. v. The State of U.P. ( AIR 1965 SC 202 ) may be seen. 85. Before recording conviction with the aid of section 149 Indian Penal Code, act done by each of the accused must be shown to have been committed to accomplish common object. For that the decision of the Hon'ble Supreme Court in Allauddin Main and anr. v. State of Bihar ( AIR 1989 SC 1456 ) may be seen. Thus, if there is no participation, then no liability can be fastened. 86. For the purpose of application of section 149, the prosecution has to prove the presence and participation of each of the accused in unlawful assembly, as held by the hon'ble Supreme Court in Nallamsetty Yanadaih and ors. v. State of Andhra Pradesh ( AIR 1993 SC 1175 ) . 87. It is settled law that mere presence of a person at the place where the members of unlawful assembly had gathered for carrying out their illegal common objects does not make him a member of such assembly. The presumption of innocence would preclude such a conclusion. Whether a person was or was not a member of unlawful assembly is a question of fact. 88. In the case of groups rivalries and enmities it often happens that there is a general tendency to rope in as many persons as possible as having participated in an assault. The courts have, therefore, to be very careful and if after a close scrutiny of the evidence, a reasonable doubt arises with regard to the participation of any of those who have - been roped in, the courts should give the benefit of doubt to them.Inference of common object 89. The first part of section 149 Indian Penal Code states about the commission of an offence in prosecution of the common object of the assembly whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of the offence must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms its members carry and their behaviour at or before the actual conflict. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of the offence must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms its members carry and their behaviour at or before the actual conflict. 90. In Ramjanam Panday and ors. v. State of Bihar (1993 Supp (3) SCC 669 ) , the Hon'ble Supreme court has observed that it is well settled that common object has to be inferred from various factors like the weapons with which the members were armed, their, movements, the acts of violence committed by them and from the results thereof. 91. It may be stated here that an assembly which is initially lawful may subsequently become unlawful. 92. Keeping the above principles in mind, the present case is being critically examined on the point whether section 149 Indian Penal Code had been rightly applied by the learned trial Judge or not or whether each accused appellant was a member of unlawful assembly, the common object of which was to murder both deceased or not. 93. As already stated above, there was apparent motive on the point that because of illicit relations between both deceased no.1 Ravanti Devi and deceased no.2 Satyanarayan, members of family of deceased no.1 Ravanti Devi were not happy and they were in search of opportunity for ending such illicit relations between both deceased and when on the fateful day deceased no.2 Satyanarayan came to the house of deceased no.1 Ravanti Devi in the night and he was found in the room of deceased in no.1 Ravanti Devi, therefore, there can be every possibility that in the beginning, deceased no.2 would have been killed not by all accused appellants, but by some accused appellants, but later on, since all accused appellants were angry on that aspect, they joined with each other and first finished deceased no.2 Satyanarayan and thereafter, deceased no.1 Ravanti Devi, after giving several lathi blows on their bodies. 94. In this respect, if we see the injuries which are found on the body of both deceased, it appears that deceased no.1 Ravanti Devi received as many as 11 injuries and deceased no.2 Satyanarayan received 14 injuries (total 25 injuries). 94. In this respect, if we see the injuries which are found on the body of both deceased, it appears that deceased no.1 Ravanti Devi received as many as 11 injuries and deceased no.2 Satyanarayan received 14 injuries (total 25 injuries). Had one or two accused appellants was beating in the initial stage and had other accused appellants would have hot accelerated the matter, such type of injuries would have not been caused to both deceased and it appears that all accused appellants entertained with one other in giving beating to both deceased because they were very much angry on account of illicit relations between both deceased. Therefore, to say that some of the accused appellants have been wrongly implicated and convicted by the learned trial Judge cannot be accepted. 95. Apart from this, looking to the injuries sustained by both deceased, it appears that all accused appellants were playing the game of beating with both deceased to satisfy their lust of murdering both deceased because they were angry on account of illicit relations between both deceased and they caused so much injuries to both deceased. Had common sense would have prevailed amongst accused appellants, the incident could have been avoided and such injuries would have not been caused, but it appears that it was a game of beating with both deceased and all accused appellants took active part and caused injuries to both deceased. Thus, it appears that all the accused appellants were playing game of fun and entertainment in murdering both deceased in the shape of taking revenge. The accused appellants had acted in a cruel and brutal manner in murdering both deceased. 96. Thus, it can easily be said that all accused appellants were members of unlawful assembly, the common object of which was to murder both deceased and pursuant to that common object, all accused appellants beat both deceased mercilessly with lathies with intention to murder and they caused murder of both deceased and when this being the position, it is not necessary to prove which blow was given by which accused appellant to both deceased. When common object is established, it is irrelevant as to who gave fatal blow because in the present case, medical evidence shows that the injuries caused by one or other accused appellants were sufficient in the ordinary course of nature to cause death and this fact is sufficient to bring the case of accused appellants within the purview of section 302/149 Indian Penal Code. 97. Apart from this, as already stated above, section 149 Indian Penal Code makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. 98. Hence, the learned trial Judge has rightly convicted the accused appellants for the offence under section 302 with the aid of section 149 IPC. 99. Thus, in view of the discussion trade above, it is held that from the evidence just discussed above, the prosecution has proved its case beyond all reasonable doubts against all accused appellants for the offence under sections 148 and 302/149 Indian Penal Code and the learned trial Judge has rightly convicted all accused appellants for the said offences. The impugned judgment and order of the learned trial Judge do not suffer from any basic infirmity or illegality in the approach to the case or we do not see any perversity in the appreciation of evidence on record by the learned trial Judge. 100. It may be stated here that while appreciating the findings of the trial court, rule of practice which has almost the force of law is that the appellate court should not reverse a finding of fact rested on a proper appreciation of evidence. Thus, opinion of trial Judge on appreciation of evidence should not be disturbed except for exceptional reasons. In this case, we see no exceptional reasons. 101. For the reasons stated above, all the contentions raised by the learned counsel for the accused appellants stand rejected an no interference is called for with the findings of conviction recorded by the learned Addl. In this case, we see no exceptional reasons. 101. For the reasons stated above, all the contentions raised by the learned counsel for the accused appellants stand rejected an no interference is called for with the findings of conviction recorded by the learned Addl. Sessions Judge, Raisinghnagar through impugned judgment and order dated 26.9.2000 and this appeal is liable to be dismissed.Accordingly, this appeal filed by the accused appellants is dismissed, after confirming the judgment and order dated 26.9.2000 passed by the learned Addl. Sessions Judge, Raisinghnagar.Appeal dismissed. *******