S. L. KOCHAR, J. ( 1 ) ALL the aforesaid three appeals arise out of one and the same judgment, therefore, they are being decided and disposed of by this common judgment. ( 2 ) THE appellants Babukhan and chhotekhan have filed Cri. Appeal No. 222/ 96 and they are also appellants Nos. 4 and 5 in Cri. Appeal No. 253/96. Therefore, this judgment shall also govern the disposal of both these appeals. ( 3 ) THE abovenamed six appellants stand convicted for the offences punishable under Sections 302, 302/149, 323/149 and 148 of the Indian Penal Code by the learned third Additional Sessions Judge, Ratlam in sessions Trial No. 97/94 on 6-3-94 who sentenced each of the appellants to suffer r. I. for two years under Section 148, Indian penal Code, Abidkhan, Babukhan, chhotekhan, Gullukhan, Muzaffar Dilwar to suffer imprisonment for life with fine of Rs. 2,00/- each, in default of payment whereof to further undergo R. I. for one year under sections 302 and 302/149, Indian Penal code and to suffer R. I. for six months under Section 323/149, Indian Penal Code. Being dissatisfied by the aforesaid judgment of conviction and sentence, the appellants have preferred these appeals. ( 4 ) INITIALLY, ten accused persons were tried, but the learned trial Court finding the aforesaid six appellants guilty convicted and sentenced them. However, the remaining four appellants i. e. Iqbal, Ayyub, Jamil and israt Hussain have been acquitted. ( 5 ) THE brief facts of the prosecution case as unfolded before the trial Court were that on 27-1-94 in the night at 10. 45 p. m. in pramilaganj Alote, PW-4 Omprakash alias guddu along with his brother deceased pappu was witnessing T. V. programme in their house and their mother was sitting outside the house. At that juncture, they heard the voice that Laxinarayan has been surrounded by some persons, on which, they rushed towards Pramilaganj square, Alote, and saw that Babu cyclewala having a country-made pistol in his hand along with Gullu, muzaffar, Abid and others had encircled laximinarayan. When Omprakash and pappu reached over there, Muzaffar and gullu inflicted blows on the head of omprakash and Abid and his companions inflicted knife-blows to Pappu. The remaining assailants were having lathi and Farsa with them. When Omprakash and pappu reached over there, Muzaffar and gullu inflicted blows on the head of omprakash and Abid and his companions inflicted knife-blows to Pappu. The remaining assailants were having lathi and Farsa with them. When Omprakash and Pappu fell down on the ground, a vehicle belonging to s. P. reached over there, seeing which, the assailants fled away from the scene of occurrence. It is said that there was a dispute pertaining to money transaction between laximinarayan and Muzaffar and the present incident is the outcome therof. ( 6 ) IN the said vehicle of Sub-Divisional officer (Police), Omprakash (PW-4) went to the Police Station and lodged the report (Ex. P/5) which was reduced into writing by PW-10 Satish Sharma, Station House Officer, alote on the basis of which Cr. No. 26/94 was registered and investigation ensued. Injured Omprakash (PW-4) and laximinarayan (PW-6) and Pappu were sent to the hospital where PW-9 Dr. B. L. Chaturvedi examined Laximinarayan and omprakash vide Ex. P/32 and P/30. Pappu was examined by Dr. Anil Palod vide Ex. D/ 5. On 28-1-94 Yeshwant was also medically examined vide Ex. P/31. PW-10 Satish sharma inspected the place of occurrence in the same night where he noted some blood. The spot-map is Ex. P/35. Since, injured Pappu was in a serious state, Tehsildar was requested to record his dying-declaration. However, Pappu breathed his last, therefore, his dying-declaration could not be recorded. On 28-1-94 Dr. B. L. Chaturvedi (PW-9) conducted autopsy on the dead body of Pappu and issued postmortem examination report Ex. P/29. The accused persons were arrested and weapons of offence were seized at their instance and after completing all formalities of investigation, they were charge-sheeted before the Court. The accused persons denied the charges and some of them took the plea of alibi. ( 7 ) TO prove its case, the prosecution examined as many as 11 witnesses while the accused persons examined one witness in their defence. After conclusion of trial and hearing both the parties, the learned trial court found the appellants guilty, convicted and sentenced them as indicated above. ( 8 ) DR. B. I. Chaturvedi (PW-9) performed the postmortem examination of the deceased and opined that deceased Pappu died because of shock and profuse bleeding from the wounds within six hours from the time of postmortem examination. Thus, having regard to the medical evidence given by Dr. ( 8 ) DR. B. I. Chaturvedi (PW-9) performed the postmortem examination of the deceased and opined that deceased Pappu died because of shock and profuse bleeding from the wounds within six hours from the time of postmortem examination. Thus, having regard to the medical evidence given by Dr. Chatuvedi (PW-9) which is duly corroborated by" the postmortem report (Ex. P/29), it is amply proved that the deceased Pappu me a homicidal death. Even otherwise the fact of homicidal death has not been controverted by the learned counsel for the appellants. ( 9 ) WE have heard Senior Advocate Shri h. S. Oberoi assisted by Shri Manoj Soni and Shri Sanjay Sharma Advocates for the appellants. According to the learned counsel for the defence, though the Police station was at the distance of one furlong from the scene of occurrence, yet the First Information Report lodged after delay. The conviction is based on the testimony of interested and partisan witnesses. The material witnesses like Sub-Divisional Officer (Police)and the other of the deceased have not been examined. Therefore, an adverse inference should have been drawn by the learned trial court and the injuries found on the persons of the appellants were not explained by the eye-witnesses and the independent witnesses have narrated a story altogether different from what has been stated by the interested injured witnesses. It is also submitted that there was no sufficient light to identify the assailants and the witnesses have given contradictory versions. Therefore, no implicit reliance could be placed on their testimony. Lastly he has submitted that the common object of the unlawful assembly was not to commit murder of Pappu who reached on the scene of occurrence after some time and who was assaulted by the appellant Abid. According to him, the common object of the assembly was to extract stamp paper from Laxminarayan and in prosecution of this common object, if the appellant Abid had used knife causing injury to deceased who was not the target of the unlawful assembly and who reached after hearing the alarm regarding encircling of PW-6 Laxminarayan by the appellants, all the appellants could not be held responsible for committing murder of Pappu. ( 10 ) TO bolster his submission, learned counsel for the appellants placed reliance on the Judgments of the Supreme Court rendered in Bharosi v. State of M. P. , 2002 SCC (Cri) 1686 : (2002 Cri LJ 4322), Sukhah Raut v. State of Bihar, 2002 Cri LJ 560 : ( AIR 2002 sc 319 ) and Bhargavan v. State of Kerala (2003) 9 (IT) (SC) 513 : (2004 Cri LJ 646 ). ( 11 ) TO combat this argument, the learned cteputy Advocate General Shri Desai has supported the judgment and finding arrived at by the learned trial Court. According to him, specific plea of right of self defence of person has not been taken by the appellants. Even they have not tried to prove that they sustained injuries in the same incident. They were medically examined on 29-1-94 i. e. much late after the incident and they had also not ledged any report anuwhere. He submitted that for proving the common object of the assembly, it is not necessary for the prosecution to prove the individual acts of the appellants. ( 12 ) HAVING heard learned counsel for the parties and after having perused the entire record carefully, it emerged that the incident was witnessed by the injured eye-witnesses Omprakash, brother oi the deceased, pw-6 Laxminarayan, and other independent witnesses PW-5 Ramehandra and PW-7 virendra. The learned trial Court, replying on the testimony of these witnesses, convicted six appellants while acquitted other four accused persons namely, Iqbal, Ayyub, zamil and Ishrat mainly on the ground that their names did not find place in the First information Report lodged by Omprakash (PW-4), injured witness and brother of the deceased. On perusal of the statements of the eye-witnesses, medical evidence and the statement of Investigating Officers, we find absolutely no substance in the arguments advanced by the learned counsel for the appellants regarding non-examination of mother of the deceased and the Sub-Divisional Officer (Police) who had reached on the spot. The law is well settled in this regard that the prosecution need not examine all the witnesses on the same point, In this case the prosecution has already examined two injured and two independent eye witnesses, and there is no evidence on record that the witnesses who are said to have not been examined were material witnesses and the prosecution has withheld and not examined them with ulterior motive. ( 13 ) THE Court has to see the quality of the prosecution evidence and not the quantity. Apart from this, if the defence was feeling importance of the evidence of the witnesses who were not examined by the prosecution, the defence could have called them in defence. But, no such steps were taken by the defence. This shows that they have raised this objection only for the sake of arguments. We are also not convinced by the submission of the learned counsel for the defence regarding non-explanation of the injuries on the persons of the accused for the reason that no such specific questions were put to the eye-witnesses about the injuries sustained by the appellants in the same incident. The appellants have also suffered superficial injuries which were not required necessarily to be explained by the witnesses especially when on the spot more than 15 persons were present and the witnesses themselves were also assaulted. Theburden was on the appellants to establish that they had received the injuries in the same incident and for this purpose, they did not lead any evidence. Neither they had lodged the report at the police Station nor complained to any authority in this regard. They did not surrender themselves immediately after the incident so that they could be got examined medically by the police. ITiey were arrested on 29 1 -94 and got medically examined by PW -8 Dr. Anil Palod. So their medical examination was also done after lapse of long duration. ( 14 ) THE burden was on the appellants as per provision under Section 105 of the evidence Act to prove their defence. The said burden is not so heavy and onerous as on the prosecution, but at the same time, they have to prove by preponderance of probabilities regarding falling of their case within the purview of any of the general exceptions in the Indian Penal Code or within any special exception or proviso contained in any other part of the same Code. The appellants had to discharge this burden. ( 15 ) SIMILARLY, there is no substance in tire argument in regard to delay in lodging of the First Information Report. The incident took place on 27-1-94 at 10. 45 pm whereas the report was lodged in the same night at 11. 15 p. m. i. e. after half an hour. The appellants had to discharge this burden. ( 15 ) SIMILARLY, there is no substance in tire argument in regard to delay in lodging of the First Information Report. The incident took place on 27-1-94 at 10. 45 pm whereas the report was lodged in the same night at 11. 15 p. m. i. e. after half an hour. We have carefully gone through the evidence of the eye-witnesses and do not find any material exaggeration and contradictions in their statements going to the root of the case causing damage to the very foundation of the prosecution case. The defence has not pointed out any specific major inconsistency, exaggeration or embellishment in the statements of the eye-witnesses. ( 16 ) THE defence has also led stress on the point of non-leading of evidence regarding source of light on the scene of occurrence by the prosecution. This argument appears to have been advanced only for the sake of argument otherwise the facts are very, clear that the appellants and the witnesses were known to each other prior to the date of incident and at the time of the incident, they were within very close proximity. Therefore, there was no difficulty for a known person to Identify in the night especially when the incident had taken place on a triangular square of the town. One road from this square goes to the Railway Station. Therefore, the street-light must be available and reasonable light from other source like houses and shops must be there. The defence suggestion was denied by the witnesses that there was no source of light. The witnesses have said that the light was there and houses and shops are also situated there. The Supreme Court in the case of bharosi (2002 Cri LJ 4322} (supra) hr-s observed that 'even in faint darkness, the faces of the accused could be identified, more so when they are known to the witnesses'. ( 17 ) NOW, the last flank of arguments for consideration is whether the appellants had formed an unlawful assembly whose common object was to commit murder of Pappu. In this regard, on perusal of the statements of the eye-witnesses PW-4 Oxnprakash, PW-6 Laxminarayan, PW-5 Ramchandra and pw-7 Virendra as well as the First Information Report (Ex. P/5) lodged by PW-4 omprakash, the fact reveals that PW-6 laxminarayan was surrounded by the appellants on the road. In this regard, on perusal of the statements of the eye-witnesses PW-4 Oxnprakash, PW-6 Laxminarayan, PW-5 Ramchandra and pw-7 Virendra as well as the First Information Report (Ex. P/5) lodged by PW-4 omprakash, the fact reveals that PW-6 laxminarayan was surrounded by the appellants on the road. At that time, the deceased Pappu and his brother Omprakash (PW-4) were not present there. They were viewing television inside their house and their mother Gyanibai was sitting outside of the house on a platform (OTLA ). At that time, somebody had informed their mother that PW-6 Laxminarayan was surrounded by some persons. Thereafter, their mother came inside the house and informed them, on receiving this information, their mother, deceased Pappu and Omprakash (PW-4)rushed towards Pramilaganj Traingular square. PW-6 Laxminarayan has specifically stated in para 2 that he was surrounded by the appellants and, thereafter, they demanded the stamp -paper of the loan-transaction. He was also assaulted by dilawarkhan and Chhotekhan. At that time, deceased Pappu and PW-4 Omprakash reached over there. Pappu was assaulted by knife by appellant Abid and acquitted co-accused Jamil. Thereafter, the appellants also assaulted PW-4 Omprakash. Yeshwant who has not been examined by the prosecution and PW-6 Laxminarayan by hard and blunt object. They all have received simple injuries on their persons. They were medically examined by Dr. PW-9 B. L. Chaturvedi, vide their medical reports Ex. P/30, P/31 and P/ 32. The deceased sustained one incised wound, two stab injuries and one abrasion. Out of four injuries, incised wound was on the side of right palm and both stab wounds were on the right scapula region. One stab wound was behind the right lung and another was between 7th and 8th ribs. The abrasion was on the left shoulder. His right lung was damaged at two places. In the opinion of the doctor, the deceased died because of shock due to excessive bleeding because of cumulative effect of the injuries. ( 18 ) SHARP edged weapon was used for causing injuries to the deceased by two persons, one is the appellant Abid and the other was acquitted co-accused Jamil. Jamil has been acquitted because his name was not mentioned in the First Information Report and he was also not identified in the Test identification Parade. ( 18 ) SHARP edged weapon was used for causing injuries to the deceased by two persons, one is the appellant Abid and the other was acquitted co-accused Jamil. Jamil has been acquitted because his name was not mentioned in the First Information Report and he was also not identified in the Test identification Parade. ( 19 ) NOW, in the light of these facts the common object of the appellants was only to obtain written stamp paper regarding loan amount and they attacked only on PW-6 laxminarayan. Before opening assault on laxminarayan, they had asked for return of the said document. Thereafter, beating was given to Laxminarayan. Injuries on the person of Laxminarayan are clearly indicating that he was assaulted by hard and blunt object like lathi which the appellants were having in their possession. At that time, some of the appellants were also having knives and one appellant Babukhan was possessing a pistol. He also threatened PW-6 Laxminarayan by showing the pistol, but, neither of the appellants had used knife or the pistol for causing any injury or even grievous injury by dangerous weapon to laxminarayan. This aspect of the case is completely eliminating that the ultimate common object of the assembly was to commit murder and the same was done in furtherance thereof. In this regard we can profitably refer the judgments rendered by the supreme Court in the cases of Bhargavan v. State of Kerala (2004 Cri LJ 646), Sukhan raut (2002 Cri LJ 560) and Bharosi (2002 cri LJ 4322) (supra ). ( 20 ) IT is very easy to discern that when laxminarayan was surrounded by the appellants and demanded stamp-paper, for that purpose, he was also being given some sort of beating. His brothers Pappu (the deceased) and Omprakash (PW-4) reached over there all of a sudden and they must have tried to save their brother. At that juncture, the appellant Abid and one more unidentified person gave a knife-blow to the deceased. Therefore, for the Individual act of two persons, it could not be said that all the appellants formed an unlawful assembly whose common object was to commit murder of the deceased Pappu and in furtherance of the same, they had done so. It was an individual act of the appellant Abid and unidentified accused. Therefore, for the Individual act of two persons, it could not be said that all the appellants formed an unlawful assembly whose common object was to commit murder of the deceased Pappu and in furtherance of the same, they had done so. It was an individual act of the appellant Abid and unidentified accused. Therefore, we are of the opinion that the appellants had formed unlawful assembly and the said unlawful assembly had assaulted the witnesses. Therefore, all are responsible for the offence punishable under Section 148 of the Indian penal Code as well as under Section 323/ 149, Indian Penal Code for causing simple injuries to the witnesses. ( 21 ) FOR commission of murder of deceased Pappu, the only appellant Abid would be responsible who gave a knife blow and the same proved to be fatal. The blow by knife was so forceful which had pierced and damaged his lung. The eye-witnesses have specifically stated that the appellant Abid and unidentified accused caused knife-injuries on the scapula region and right palm of the deceased. The postmortem examination report, the doctor has found two stab injuries on scapula region and both have caused serious damage to the lung at different places. (See para 3 of the statement of PW-4 Omprakash and paras 2, 4, 5 and 7 of the statement of Dr. Chaturvedi PW-9 ). The right lung was cut at two places and this could be only by two separate blows and the deceased could succumb to one injury which pierced into the lung and out of two injuries at least for one injury appellant Abid could be held responsible. The appellant abid is the author of the injury to the scapula region. ( 22 ) HAVING regard to the nature of weapon and the depth of the injuries, we are of the opinion that the appellant Abid had dealt forceful blow having firm intention to commit murder of deceased Pappu. Therefore, we hold appellant Abid guilty of the offence punishable under Section 302 of the Indian Penal Code. He is also held responsible for the offence punishable under Sections 148 and 323/149 of the Indian penal Code. Therefore, we hold appellant Abid guilty of the offence punishable under Section 302 of the Indian Penal Code. He is also held responsible for the offence punishable under Sections 148 and 323/149 of the Indian penal Code. ( 23 ) IN the wake of the abovementioned evaluation of the facts and law involved in the present case, we set aside the conviction of the appellants under Section 302/ 149 Indian Penal Code, but convict only the appellant Abid under Section 302 of the Indian Penal Code. ( 24 ) IN the result, the appeals stand allowed in part. The conviction and sentences of the appellants except appellant Abid for the offence under Section 302/149, Indian penal Code are setaside. However, the conviction and sentences of all the appellants for the offences under Sections 148 and 323/149, Indian Penal Code as passed by the learned trial Court are maintained. The conviction and sentence of the appellant abid for the offence under Section 302, Indian Penal Code are affirmed. ( 25 ) THE appellant Abid Hussain is in jail while the remaining appellants are on bail, they are directed to surrender to their bail bonds before the trial Court within a period of fifteen days from today for being committed to custody for serving out the remaining part of their sentences. Let a copy of this judgment be sent together with the record to the trial Court for immediate compliance. ( 26 ) A copy of this judgment be placed in each of the Cri. A. No. 253/1996 and 254/ 1996 and the original be retained in the record of Cri. Appeal No. 222/1996. Appeal partly allowed. .