P. S. NARAYANA, J. ( 1 ) THESE two criminal appeals are preferred as against the judgment in Sessions Case No. 250 of 1996 dated 29. 10. 1997 on the file of the Additional sessions Judge, Adilabad. ( 2 ) CRIMINAL Appeal No. 1344 is filed by A-3, 4, 6 and 7 and Criminal Appeal no. 1428 of 1997 is filed by A-2 and A-5. A-l to A-8 were tried for the offences punishable under Sections 148,324 and 304 part-II read with Section 149 I. P. C. and section 34 I. P. C. for causing injuries to p. Ws. 1 to 3. During pendency of the case, a-1 reported died and the case against him is abated. The learned Additional Sessions judge by judgment, dated 29. 10. 1997 convicted A-2 to A-7 for the offence under section 304 Part n read with Section 149 i. P. C. and sentenced each to sufforrigorous imprisonment for five years and to pay a fine of Rs. 300/- each in default, to suffer rigorous imprisonment for a period of three months and A-2 to A-7 also were further convicted for the offences under Section 324 I. P. C. and 148 I. P. C. and sentenced to suffer rigorous imprisonment for a period of two years under each count and they were directed to pay a fine of Rs. 200/- and rs. 100/- respectively under each of the above counts and in default to suffer rigorous imprisonment for a period of one month and all the sentences were directed to be run concurrently. But however, A-8 was acquitted of all the charges. ( 3 ) THE case of the prosecution is that P. W. I is the brother of the deceased-Pandari, and P. W. 2 is brother of A-8 and father of P. W. 1. P. W. 3 is the wife of P. W. 1 and P. W. 4 is the wife of the deceased. All the accused and the material prosecution witnesses are residents of bhainsa Village. It is stated that there is a civil dispute pending between A-8 and the father of P. W. 1 relating to a vacant site and house bearing No. 3-5-103 and in the said house, the western side portion is in occupation of A-8 and the eastern portion is in occupation of P. W. 1. It is stated that there is a civil dispute pending between A-8 and the father of P. W. 1 relating to a vacant site and house bearing No. 3-5-103 and in the said house, the western side portion is in occupation of A-8 and the eastern portion is in occupation of P. W. 1. The dispute is that the western room in occupation of A-8 is 3 feet 9 inches more in width than the eastern room in occupation of P. W. 1 and that P. W. 1 filed O. S. No. 45 of 1995 on the file of the Court of the District Munsif, bhainsa about three months prior to the date of this incident. It is also the case of the prosecution that on the morning of the date of incident i. e. , on 22-12-1995, there was a panchayat to decide the disputed vacant site between the parties and a word was sent to all the accused. But however, none of the accused attended the panchayat. While so, on the same day, at about 9. 00 p. m. , A-1 to A-4 came to the house of P. W. 1 and raised an altercation relating to the vacant site in front of the house of P. W. 1. Again on the same day at 11. 00 p. m. , A-1 to A-8 came to the house of p. W. I armed with sticks and kicked the doors and broke open the main door, A-1 beat P. W. 1 with a stick on his head, A-3 and A-4 beat P. W. 1 with a stick on his back while A-4 and A-7 beat P. W. I with sticks on his left leg. When the deceased-Pandari came out of the house, all the accused beat him all over his body with sticks as a result of which he fell on the ground. A-1 beat on the head of the deceased with a stout stick and as such he fell on the ground with injuries. P. Ws. 2 and 3 also were beaten by all the accused. Thereafter, p. W. 1 went to the Police Station, Bhainsa at 11. 15 p. m. and orally narrated the incident to P. W. 15, Sub-Inspector of police. P. Ws. 2 and 3 also were beaten by all the accused. Thereafter, p. W. 1 went to the Police Station, Bhainsa at 11. 15 p. m. and orally narrated the incident to P. W. 15, Sub-Inspector of police. It is stated that P. W. 15 at that time had not registered any crime and he did not make any General Diary entry but proceeded to the scene of offence and shifted the injured to the Government Hospital, bhainsa. It is further stated that the statement of P. W. I was recorded in the hospital on 22-12-1995 at 11-45 p. m. , which is marked as Ex-P1. On the basis of Ex-Pi, p. W. 15-Sub-Inspector of Police, registered a case in Crime No. 103 of 1995 at about 11-50 p. m. , on the same day and forwarded the First Information Report (FIR) to all the concerned. It is stated that the said FIR reached the Court only after a gap of 12 hours, though the Court is situate locally. Ex-P28 is the original FIR. In the government Hospital, Bhainsa, deceased-Gali Pandari succumbed to the injuries while undergoing treatment. P. W. 16, inspector of Police, who had taken up further investigation, proceeded to the Government hospital and conducted inquest over the dead body of the deceased-Pandari in the presence of P. W. 8. Ex-P4 is the inquest report. Thereafter, the dead body of the deceased-Pandari was sent to post-mortem examination. On 22-12-1995 at about 1. 00 p. m. , P. W. 13, Civil Assistant surgeon, Government Hospital, Bhainsa examined the injured-P. Ws. 1 to 3 and issued exs. P24 to P26, wounds certificates respectively. On 23-12-1995 P. W. 14 conducted autopsy over the dead body of the deceased and issued Ex-P27-post-mortem certificate. On 23-12-1995 P. W. 16-Inspector of Police examined P. Ws. 4 to 7 and 11 and recorded their statements and also seized M. O. 1 bloodstained shirt from the person of P. W. 2 under a cover of Ex-P29 recovery panchanama. On 24-12-1995, he arrested a-l to A-4 in the presence of P. W. 9. Pursuant to the confession made by A-1 to a-4, it is said that the recovery of M. Os. 2 to 5-sticks and gadgoyyas was made. On 29-12-1995, he arrested A-5 to A-7 and recovery of M. Os. 6 to 8 sticks and gadgoyyas had been made. On 24-12-1995, he arrested a-l to A-4 in the presence of P. W. 9. Pursuant to the confession made by A-1 to a-4, it is said that the recovery of M. Os. 2 to 5-sticks and gadgoyyas was made. On 29-12-1995, he arrested A-5 to A-7 and recovery of M. Os. 6 to 8 sticks and gadgoyyas had been made. It is stated that all these material objects were recovered at the instance of the accused from their respective houses on 25-12-1995 and on 29-12-1995. After-completion of investigation, P. W-16 filed charge-sheet. ( 4 ) THE plea of the accused is one of total denial. ( 5 ) DURING the course of trial, prosecution examined P. Ws. 1 to 16 and marked Ex-Pi to P29 besides M. Os. 1 to 8. P. Ws. 6 and 7 did not support the case of prosecution and they were treated as hostile witnesses. The learned Additional Sessions Judge, while recording the findings had arrived at a conclusion that since the evidence of P. W. 3 cannot be believed and no recovery was made at the instance of A-8, A-8 is entitled for acquittal. It is said that as against the order of acquittal no appeal had been preferred and the said finding of acquittal attained finality. Hence the present two criminal appeals are filed by the respective accused referred to supra. ( 6 ) SRI A. Praveen Kumar, learned counsel representing the appellants had pointed out that in Ex-Pi given by P. W. 1, there is no reference about A-1 beating the deceased on his head and A-1, A-3 and A-7 beating P. W. 1. Learned Counsel pointed out that one of the persons named among the assailants was not arrayed as accused at all and the names of the witntesses-P. Ws. 4 and 5 also were not mentioned in the FIR. The learned Counsel also had pointed out to the inconsistent version relating to the overt acts attributed to the accused and also the time of the incident as deposed by p. Ws. 1 and 2. 4 and 5 also were not mentioned in the FIR. The learned Counsel also had pointed out to the inconsistent version relating to the overt acts attributed to the accused and also the time of the incident as deposed by p. Ws. 1 and 2. It is specifically pointed out by the learned Counsel that as per the statements elicited in the cross-examination of P. W. 5, after the incident, all the accused ran away by throwing gadgoyyas at the scene of offence and that police came to the spot on the same day and have taken away the gadgoyyas in the jeep. In the light of the same, the very recovery of weapons at the instance of the accused as alleged by the prosecution is highly doubtful. When the confession and the alleged recovery in pursuance thereof are falsified, the version of the prosecution cannot be believed. The learned Counsel also laid stress on the aspect that consistently it was suggested to the prosecution witnesses that there was a rumour that on the date of incident deceased was in the company of p. W. 3, who is the wife of P. W. 1 the incident had taken place in the altercation between the prosecution witnesses but not as alleged by the prosecution. The learned Counsel also had pointed out that there was no blood at the scene of offence and except the shirt of P. W. 2 no bloodstained clothes were seized by the police, but the medical evidence is totally inconsistent with the prosecution version as spoken to by the injured witnesses. It is further contended that the accused were alleged to have broken the doors of house of P. W. 1, but as per the evidence of P. W. 16, there were no signs of breaking open the doors, which also would falsify the version of the prosecution. The learned Counsel while further elaborating his submissions would point out that the finding recorded by the learned additional Sessions Judge is that the death of the deceased-Pandari occurred due to the head injury caused by A-1, which was also supported even by the medical evidence. The said A-1 is no more, as he died during the course of trial. The alleged motive for the incident is with regard to the civil dispute between P. W. 2 and A-8. The said A-1 is no more, as he died during the course of trial. The alleged motive for the incident is with regard to the civil dispute between P. W. 2 and A-8. The said A-8 was acquitted and the said acquittal became final. That being so, the learned counsel for the appellants urged that the appellants also are entitled to acquittal. The learned Counsel placed reliance on Shamu nath Singh and others v. State of Bihar, air 1960 SC 725 . ( 7 ) PER contra, the learned Additional public Prosecutor appearing for the State would contend that the stand taken by the prosecution is clear as the incident took place at the house of P. Ws. 1 to 3, who were also injured in the incident and hence the presence of P. Ws. 1 to 3 at the scene of offence cannot be doubted in any way and that the discrepancies pointed out by the defence are trivial in nature. The FIR need not contain all the minute details. The substance of the incident, if referred to in the FIR, would be sufficient. The very fact that the names of all the eye-witnesses had not been mentioned in the FIR would not make the FIR doubtful. When there is some discrepancy between the ocular evidence and the medical evidence, the ocular evidence has to be preferred, unless the total version of the prosecution is liable to be rejected on other grounds. The learned public Prosecutor also submitted that even if the recovery is not proved it is of no significance since sticks are available everywhere in the village. In fact the recovery had been proved in the present case. The learned Public Prosecutor also would submit that the acquittal of A-8 recorded by the learned District Judge is not on the basis of any sound reasoning and hence the appellate Court quite definitely record proper findings in this regard under Section 386 cr. P. C. The learned Public Prosecutor further explained that when all the accused are members of an unlawful assembly with the common object to do away with the deceased, trivial discrepancies in overt acts may not be of serious consequence since every member of such unlawful assembly would be liable and can be punished. P. C. The learned Public Prosecutor further explained that when all the accused are members of an unlawful assembly with the common object to do away with the deceased, trivial discrepancies in overt acts may not be of serious consequence since every member of such unlawful assembly would be liable and can be punished. The learned Public Prosecutor placed reliance on the decisions in Bhagwan Sing v. State of m. P. , 2002 (1) ALD (Crl.) 710 (SC) = 2002 scc (Crl.) 736 and State of U. P. v. Harban sahai, 1998 (1) ALD (Crl.) 855 = 1998 (6) scc 50 , in this regard. ( 8 ) HEARD both the Counsel on record at length and perused the evidence available on record. The learned Additional Sessions judge, Adilabad in S. C. No. 250 of 1996, had framed the charges as hereunder: firstly: that, A-1 to A-8 of you on 22. 12. 1995 at about 2300 hours in Pandrigalli, Bhainsa, were members of an unlawful assembly and were at that time, armed with deadly weapons like sticks and cartpegs (gadgoyyas) which used as weapons of offence likely to cause death and thereby committed an offence punishable under Section 148 I. P. C. and within the cognizance of this Court. Secondly: that, A-1 to A-8 of you on the said date, time and place as mentioned in Charge no. 1 supra, in furtherance of your common object, committed murder intentionally causing the death of Pandari by means of beating him indiscriminately with sticks and carpegs (gadgoyyas) and inflicting bleeding injuries and who succumbed to the injuries and thereby committed an offence punishable under Section 302 read with 149 I. P. C. and within the cognizance of this court. Thirdly: that, A-1 to A-8 of you on the said date, time and place as mentioned in Charge No. 1 supra, voluntarily caused hurt to Gali Vithal, gali Bokkanna and Gali Latha w/o. Vithal by means of beating them with sticks and cartpegs (gadgoyyas) which are used as instruments for the offence and inflicted bleeding injuries to them and thereby you have committed an offence punishable under section 324 I. P. C. and within the cognizance of this Court. ( 9 ) THE version of the prosecution in brief had already been narrated supra. Ex-P1 by P. W. 1 reads as follows:. "i am resident of Pandragalli, Bhainsa. ( 9 ) THE version of the prosecution in brief had already been narrated supra. Ex-P1 by P. W. 1 reads as follows:. "i am resident of Pandragalli, Bhainsa. Since few days disputes are taking place in between me and one Tapali Gali Narasaiah and his three sons viz. , Gali Laxman, Gali rajam and Gali Nadipi Balarajanna in regard to the Courtyard site. In this regard today i. e. , on 22-12-1995 we held a panchayat and were called to the panchayat who did not turn up. Keeping the above grudge today night at about 9-00 p. m. , the above persons took galata with me and my brother Pandari and they beat us and my father and later we went to our houses. After above galata we went to our houses and slept. Keeping the grudge the above persons again came to my house at about 11-00 p. m. , along with madapuram Laxman, Ravulola Narsaiah and Ravulola Ramulu, Madapuram yemmareddy with gadigoyya (stick) in their hands and while they came, Gala Laxman his father Narsaiah also accompanied them and all jointly dragged out forcibly my brother Pandari from his house while he was sleeping by knocking the doors and took him outside and beat black and blue with gadgoyyas (sticks) and also to me. While I received injuries on my head and other parts of my body. My brother fell down with a broken head. They also beat my father and my wife with sticks who came to our rescue. On knowing this incident, police took myself, my brother Pandari, my wife and my father to the hospital. My brother Pandari died in the hospital. I request to take action against such eight persons who killed my brother pandari and who are responsible for the incident. " ( 10 ) P. W. 1 had deposed that he is a resident of Bhainsa Town and he knows all the accused and the deceased-Pandari is his elder brother. He stated that the offence had taken place about six months back and on that day in the night at about 9. 00 p. m. A-1 to A-4 came to his house and raised altercation in relation to the vacant site in front of their house and they left. On the same day at 11. He stated that the offence had taken place about six months back and on that day in the night at about 9. 00 p. m. A-1 to A-4 came to his house and raised altercation in relation to the vacant site in front of their house and they left. On the same day at 11. 00 p. m. , A-1 to A-8 came to their house and kicked the door and dragged him from the house. A-1 beat him with stick on the head. A-3 and A-4 beat him on the back with sticks. A-4 and A-7 beat him with sticks on the left leg. When his brother-Pandari came out of the house, all the accused beat him all over his body with sticks and that he fell down and in the last a-l beat the deceased on the head with a stout stick. P. W. 1 further deposed that his brother-Pandari fell on ground with injuries and all the accused also beat his wife and father. He had gone to Bhainsa Police station and reported the incident orally to the Sub-Inspector of Police and that he recorded his statement and the same was marked as Ex-P1. Police came to the spot and his brother-deceased was taken to the government Hospital, Bhainsa where he died. All the injured were taken to government Hospital where they were treated. Inquest panchanama was conducted over the dead body of the deceased. P. W. 1 also deposed that in the morning of the date of incident a Panchayat was constituted to decide the dispute regarding the vacant site and though a word was sent to all the accused, they did not turn up for the said Panchayat. P. W. 1 also deposed that he filed a civil suit against A-8 in the Court of the District Munsif, Bhainsa, regarding the dispute of the vacant site and the said suit is pending. This witness was cross-examined at length relating to the civil dispute as well as the Panchayat relating to the dispute in the morning on the day of incident. He specifically deposed that the accused kicked the doors of the house and had broke them open, but the police had not seized the said broken doors at the time of investigation. This witness was cross-examined at length relating to the civil dispute as well as the Panchayat relating to the dispute in the morning on the day of incident. He specifically deposed that the accused kicked the doors of the house and had broke them open, but the police had not seized the said broken doors at the time of investigation. P. W. 1 deposed that when he had gone to the Police Station, police came in a jeep immediately to the scene of offence. In the hospital, police obtained his statement at about 11 -45 p. m. P. W. 1 denied the suggestion put to him that he had not stated in the statement-Ex. P-1, the specific names of the accused, who beat him and on which part of his body, he received injuries from them. He also stated that he received injuries all over his body, mostly on his head. P. W. 1 also denied the suggestion put to him that P. W. 9 and one b. Gangadhar got foisted this case due to political rivalry. The said B. Gangadhar is the Chairman of the Agricultural Market committee of Bhainsa. He also denied that during nights, he was sleeping in the hotel itself. A specific suggestion was put to him that there was a rumour in the locality that on the date of incident, at night, he had seen his wife-P. W. 3, in the company of deceased-Pandari and on seeing them he had beaten the deceased on the head and when P. W. 2 intervened, he also received injuries at that time. This suggestion was denied by him. He also denied the suggestion that when he attempted to beat P. W. 3 also, she caused scratches on his body with finger nails. He also denied the suggestion that due to enmity, the accused were implicated in the present case. ( 11 ) P. W. 2 is the father of P. W. 1. He deposed about the dispute and the altercation, which had taken place on the date of incident, at about 8. 00 or 9. 00 p. m. He also deposed that the accused came to his house at about 1. 00 a. m. , in the mid night. First they beat P. W. 1 with sticks and then beat the deceased-Pandari with sticks and also beat him (P. W. 2) with sticks in the incident. 00 or 9. 00 p. m. He also deposed that the accused came to his house at about 1. 00 a. m. , in the mid night. First they beat P. W. 1 with sticks and then beat the deceased-Pandari with sticks and also beat him (P. W. 2) with sticks in the incident. No doubt there is some discrepancy relating to the time of incident as spoken to by P. Ws. 1 and 2. This witness was cross-examined relating to partition and certain other details. He denied the suggestion put to him that there was no such incident at all. ( 12 ) P. W. 3 is the wife of P. W. 1. She deposed that the deceased-Pandari is her brother-in-law and the offence had taken place at about 1 years back. She also deposed about the incident which happened at 8. 00 p. m. , on the date of incident and subsequent thereto again at 11. 00 p. m. , that all the accused came to their house, kicked the door and entered into their house. According to aer in the first instance, the accused attacked P. W. 1 and caused injuries to him with gadgoyya and then they attacked the deceased-Pandari with gadgoyya and caused injuries to him. She also deposed that A-8 beat her with gadgoyya on the right hand. Accused also attacked p. W. 2 with sticks and caused injuries to him. While the other accused were beating the deceased, A-1 came in the last and gave a severe blow on the head with gadgoyya and that the deceased fell on the ground. Thereafter, P. W. 1 had gone to the Police station, Bhainsa and police came to the spot and had taken the deceased-Pandari to government Hospital, Bhainsa where the deceased-Pandari died. P. W. 3 also was cross-examined. She denied the specific suggestion put to her that there was a rumour in the locality that she was found in the company of the deceased-Pandari during that night; P. W1 came at 11. 00 p. m. , on that day and on seeing her with the deceased- pandari, he beat the deceased-Pandari and in that altercation only, their family members received injuries. As per the suggestions put to both P. Ws. 00 p. m. , on that day and on seeing her with the deceased- pandari, he beat the deceased-Pandari and in that altercation only, their family members received injuries. As per the suggestions put to both P. Ws. 1 and 3 in this regard, the version of the defence appears to be that the incident had taken place because of the said reason referred to supra. ( 13 ) P. W. 4 is the wife of deceased-Pandari. She also deposed about the incident stating that on that day, at 11. 00 p. m. , all the accused came to the scene of offence and attacked P. W. 1 in the first instance with sticks. Then all the accused attacked her husband-Pandari and that the deceased-Pandari fell down with injuries. P. W. 1 had gone to Police Station, Bhainsa and that police visited the spot and took the deceased-Pandari to the Government Hospital. This witness also specifically deposed that a-1 beat her husband-Pandari in the last on the head with a stout stick and that he had fallen down. She was cross-examined and certain suggestions were put to her, which she had denied. When the same suggestion relating to the rumour in the locality about the intimacy between P. W. 3 and her husband was put to this witness also, she denied the same. ( 14 ) P. W. 5 deposed that on the date of incident at 11. 00 p. m. , all the accused came to the house of the deceased by raising cries and kicking the doors and entered the house of the deceased. The accused dragged p. W. 1 from the house at the first instance and beat him with gadgoyyas. When the deceased came out, accused beat the deceased-Pandari with gadgoyya all over his body, and that the deceased-Pandari fell down on the ground with injuries. Subsequently police visited the spot and the deceased-Pandari was taken to Government hospital, Bhainsa where he died. Suggestions were put to this witness also in the cross-examination. It is no doubt true that in the cross-examination P. W. 5 had stated that the police came in the jeep after the incident on the same night and gadgoyyas were taken away in the jeep. Suggestions were put to this witness also in the cross-examination. It is no doubt true that in the cross-examination P. W. 5 had stated that the police came in the jeep after the incident on the same night and gadgoyyas were taken away in the jeep. On the strength of this statement made in the cross-examination by p. W. 5, an argument was advanced that the alleged recoveries in pursuance of the confessions made by the accused definitely cannot be believed. ( 15 ) P. W. 6 is the resident of Bhainsa town and is a tenant in the house of one raju Bhai. He deposed that he knows the deceased-Pandari and all the accused. On the date of incident at about 11. 00 p. m. , or 12. 00 in the mid night, he heard some galata from the house of the deceased and he came out and witnessed injuries on the body of the deceased-Pandari. The family members of the deceased were present in the house. The deceased-Pandari died in the hospital. No doubt, the prosecution sought permission to treat this witness as hostile and this witness was declared as hostile and he was cross-examined. The statement before police as in Ex-P2 was put to him in the cross-examination and he denied the same. ( 16 ) P. W. 7 also deposed that he heard about the dispute regarding the vacant site in front the houses between the brothers i. e. , P. W. 2 and A-8. On the next morning of the incident he had gone to Government hospital, Bhainsa and witnessed the dead body of the deceased-Pandari. At the time of post-mortem examination, police examined him. This witness was treated as hostile. His statement before police as in Ex-P3 was put to him in the cross-examination and he denied the same. ( 17 ) P. W. 8 deposed that he and one rajalingu was present at the time of inquest over the dead body of the deceased-Pandari and they had noticed injury on the head of the deceased. Inquest panchanama was drafted and signed by him and Rajalingu. Ex-P4 is the panchanama and they opined that death of the deceased was caused due to the injuries sustained by him. ( 18 ) P. W. 9 deposed that A-1 to A-4. led himself, other panch witness and C. I. of police to their houses. M. Os. Inquest panchanama was drafted and signed by him and Rajalingu. Ex-P4 is the panchanama and they opined that death of the deceased was caused due to the injuries sustained by him. ( 18 ) P. W. 9 deposed that A-1 to A-4. led himself, other panch witness and C. I. of police to their houses. M. Os. 2 to 5 - stout sticks were recovered from the houses of a-1 to A-4. Exs.-P5 to P8 are the admissible portions of the confessional statements of a-1 to A-4 dated 25-12-1995 leading to recovery. Exs-P9 to P12 are recovery panchanamas for M. Os. 2 to 5 from the houses of A-l to A-4 respectively. This witness was cross-examined and it was suggested that due to political rivalry he was deposing. He denied the suggestion. ( 19 ) P. W. 10 Head Constable, deposed that A-1 to A4 confessed about the offence and he had conducted search panchnama on A-l to A-4 in the presence of panch witness. Ex-P13 to P16 are search panchnamas conducted by him in the presence of two panch witnesses. Ex-Pi 7 is his report. He had sent A-1 to A-4 along with his report and search panchanamas to the Police Station, Bhoker. The Bhoker police produced A-1 to A-4 before Judicial first Class Magistrate, Bhoker on the next day i. e. , on 24. 12. 1995 and they were remanded to judicial custody. The Assistant police Inspector, P. S. Bhoker had sent a message to Police Station, Bhainsa about the arrest of A-1 to A-4 and production before Judicial First Class Magistrate, bhoker and their remand to judicial custody. ( 20 ) P. W. 11 deposed that his house is within the same locality as that of the deceased and the material prosecution witnesses and in the morning of the day of the incident an altercation took place between the family members of PW2 on one hand and A-8 regarding the vacant site in front of the house of P. W. 1. The deceased came to his house at 11. 00 a. m. , and reported about the altercation. This witness also deposed that as he had to go to another village he asked P. W. 1 and deceased that they would sit together on the next day morning and that he had gone to Nirmal on that day and the incident had taken place during that night. 00 a. m. , and reported about the altercation. This witness also deposed that as he had to go to another village he asked P. W. 1 and deceased that they would sit together on the next day morning and that he had gone to Nirmal on that day and the incident had taken place during that night. Police called him to the Government hospital, Bhainsa to be a witness for panchanama. Dead body of the deceased-Pandari was in Government Hospital, bhainsa. Police examined him during investigation. This witness was cross-examined and certain suggestions were put to him relating to political rivalry, which were denied by him. ( 21 ) P. W. 12 deposed that he was called to Bhainsa Police Station along with bashanna. A-5 to A-7 were present in the police Station. In their presence, on questioning A-5 to A-7, they confessed that they beat the deceased with sticks. From there they have gone to the houses of A5 to a-7 and that they brought sticks from their houses and handed over the same to police under the cover of recovery panchanamas drafted at their houses and they signed on it. Exs. P. 18 to P. 20 are the admissible portions of respective confessions made by a-5 to A-7 leading to the recovery. M. Os. 6 to 8 are the sticks seized from the houses of a-5 to A-7 under the cover of panchanamas exs. P. 21 to 23. This witness also was cross- examined. ( 22 ) P. W. 13 is the Doctor. He treated p. Ws. 1 to 3 and deposed about the injuries sustained by them. ( 23 ) P. W. 14 is another Doctor, who conducted post-mortem examination on the dead body of the deceased-Pandari. This witness has spoken about the external injuries received by the deceased. According to the Doctor, except a lacerated vertical injury, all other injuries are contusions. He opined that the cause of death, to the best of his knowledge was transverse fracture of skull with rupture of meninges injury to brain leading to intracerubral haemorrhage. Ex. P. 27 is the post-mortem report. He stated that the injuries could have been caused by blunt weapon. He opined that the cause of death, to the best of his knowledge was transverse fracture of skull with rupture of meninges injury to brain leading to intracerubral haemorrhage. Ex. P. 27 is the post-mortem report. He stated that the injuries could have been caused by blunt weapon. ( 24 ) P. W. 15 is the Sub-Inspector of police, who deposed about his visit to the scene of offence, shifting the injured persons to the Government Hospital, Bhainsa, the death of the deceased-Gali Pandari at the hospital while undergoing treatment and recording of Ex-P1-statement of P. W. 1 in the hospital. He also deposed that he returned to Police Station, Bhainsa and registered Ex. P. 1 as a case in Crime No. 103 of 1995 under Sections 147,148,324 and 302 I. P. C. and sent F. I. Rs to all the concerned. Ex. P. 28 is the original F. I. R. sent to the Court. Certain statements were made relating to the delay in sending F. I. R. to the Court. This witness also deposed that he had examined P. Ws. 1 to 3 and recorded their statements during the course of investigation. He had denied the suggestion put to him that the case was registered due to political influence. ( 25 ) P. W. 16 is the Circle-Inspector of police, Bhainsa, who had taken up further investigation in this case on 23. 12. 1995 and verified the investigation of P. W. 15. He also deposed that on receipt of F. I. R. he rushed to the Government Hospital, Bhainsa and held inquest over the dead body of deceased-Pandari in the presence of panch witnesses. Ex. P. 4 is the inquest panchanama. On 23. 12. 1995 he had examined P. Ws. 4 to 7 and 11 and four other witnesses and recorded their statements and he seized m. O. 1 bloodstained shirt from P. W. 2 under a cover of panchanama in the presence of panch witnesses. Ex. P. 29 is recovery panchanama of M. O. 1. During the course of investigation, he received information from Police Station, Bhokar of Maharashtra about the arrest of A-1 to A-4 by them. He rushed to Police Station, Bhokar on 24. 12. 1995 and he requested police custody of A-1 to A-4 from Judicial First Class magistrate, Bhoker. The learned Magistrate had given police custody. During the course of investigation, he received information from Police Station, Bhokar of Maharashtra about the arrest of A-1 to A-4 by them. He rushed to Police Station, Bhokar on 24. 12. 1995 and he requested police custody of A-1 to A-4 from Judicial First Class magistrate, Bhoker. The learned Magistrate had given police custody. Then A-l to A-4 were brought to Police Station, Bhainsa and he had interrogated them separately in the presence of P. W. 9 and one Ashanna and they confessed the offence. During the course of confession, A-1 to A-4 stated that they had kept gadgoyyas used in the offence in their houses. Exs. P. 5 to P. 8 are the confession statements of A-1 to A-4. The gadgoyyas, M. Os. 2 to 5, were recovered under the cover of separate panchanamas, exs. P. 9 to P. 12, in the presence of the same panch witnesses from the houses of a-1 to A-4 and they were remanded to judicial custody on 26. 12. 1995. On 29. 12. 1995 he arrested A-5 to A-8 at check post bhainsa and A-5 to A-8 were brought to police Station, Bhainsa and were interrogated in the presence of panch witnesses separately and confessional statements were recorded in the presence of Panch witnesses, P. W. 12 and another. Exs. P18 to P20 are admissible portions in the confession statements of A-5 to A-7 respectively. M. Os. 6 to 8 are the gadgoyyas seized under Exs. P. 21 to P. 23 from the houses of A-5 to A-7 respectively. After completion of investigation, he filed charge-sheet. This witness also deposed that P. W. 6 stated before him as in Ex. P. 2 and P. W. 7 stated before him as in Ex. P. 3. This witness was also cross-examined at length and certain suggestions were also put to him, which were denied by him. It is no doubt true that in Ex. P. 1 all the details were not mentioned. ( 26 ) ELABORATE submissions were made by the Counsel representing the appellants stating that important aspects had not been mentioned in the F. I. R. and hence, it is highly doubtful. There is some variance regarding time of offence in the evidence of p. Ws. 1and 2. ( 27 ) I am unable to accede to the submission made by the learned Counsel for the appellants. There is some variance regarding time of offence in the evidence of p. Ws. 1and 2. ( 27 ) I am unable to accede to the submission made by the learned Counsel for the appellants. In Bhagwan Sing v. State of m. P. , 2002 (1) ALD (Crl.) 710 (SC) = 2002 scc Crl. 736, wherein, the Apex Court while dealing with the contents of F. I. R. held:"non-MENTIONING of the name of a prosecution witness in F. I. R.-the statement by the witness cannot be discarded on such a ground. " ( 28 ) IN State of U. P. v. Harban Sahai, 1998 (1) ALD (Crl.) 855 = 1998 (6) SCC 50 , while dealing with the contents of F. I. R. the Apex Court held :"fir is not a chronicle of the exhaustive details of the occurrence, nor is it a catalogue of everything including minor particulars of the events which took place. Picking out an insignificant discrepancy regarding description of one of the weapons for jettisoning an otherwise sturdy account of the eye-witness is not a commendable approach in the evaluation of evidence. It is understood that kanta without sharp projection at the end would be a mere stick or lathi. If the informant mentioned in the FIR that the assailants were armed with lathis and guns there is no reason to conclude that the informant when he gave first information had rules out the possibility of kanta being used by the assailants. " ( 29 ) THIS is a case of an alleged unlawful assembly. The case of the prosecution is that all the accused with a common object assembled at the house of p. W. 1 and caused injuries. ( 30 ) P. W. 13 is the Doctor, who examined p. Ws. l to 3. He found the following injuries on P. W. 1:1. A laceration about 4" x " x " in the center of head. 2. Abrasion about 6" x " on the left forearm. 3. Abrasion about 1" x " on left upper arm. 4. Two lenior abrasions about 2" x " on the left forearm. 5. Abrasion " x " on the left wrist region. 6. Abrasion 1" x " on left ring finger. 7. Abrasion 1" x " on the right elbow joint. 8. Abrasion about 1" x " on the right shoulder region. 9. 4. Two lenior abrasions about 2" x " on the left forearm. 5. Abrasion " x " on the left wrist region. 6. Abrasion 1" x " on left ring finger. 7. Abrasion 1" x " on the right elbow joint. 8. Abrasion about 1" x " on the right shoulder region. 9. Abrasion 1" x " on left shoulder region. 10. Abrasion 7" x" on right shin. 11. 3 abrasion 1" x " on the left lower leg. 12. Abrasion 1" x " on left tendoachilis (left leg region ). ( 31 ) HE opined that all the injuries are simple in nature and would have been caused by blunt weapon and issued Ex. P. 24-injury certificate. He also deposed that on the same day he examined P. W. 2 and found the following injuries:1. Lacerated injury on left side of cheek 2 " x " x ". 2. Lacerated injury to upper Up near mid-line 3" x " x ". 3. A tiny laceration " x " to left side of upper lip. 4. A contusion media border of right scapular region 4"x 3". ( 32 ) HE opined that all the injuries are simple in nature and would have caused by blunt weapon and issued Ex. P. 25-injury certificate. He further deposed that on the same day, he examined P. W. 3 and found the following injuries:1. Contusion 3" x 3" on left wrist dorsalaspect. 2. A contusion about 1" x 1" on the left palmar aspect. 3. Contusion 2" x 2" on the right side of waist on back. 4. Two small abrasions /" x " on the left ankle region. He further deposed that X-ray was taken for first injury and no bone injury is found. He opined that all the injuries are simple in nature and would have been caused by blunt weapon and issued Ex. P. 26-injury certificate. During the course of cross-examination he deposed that in ex. P. 24-injury certificate of P. W. 1, injury Nos. 3, 5 to 7, 9 and 11 could have been caused with finger nails. This question was put to P. W. 13 with a view to support the version of the defence that on the fateful day, the incident in question happened in a different manner and not as alleged by the prosecution. 3, 5 to 7, 9 and 11 could have been caused with finger nails. This question was put to P. W. 13 with a view to support the version of the defence that on the fateful day, the incident in question happened in a different manner and not as alleged by the prosecution. It is no doubt true that on a careful scrutiny of the evidence of injured witnesses P. Ws. 1 to 3 and the evidence of P. W13, Doctor, the overt acts attributed to the accused and the corresponding injuries received by them are not tallying. This was made a serious ground of attack and inconsistency in this regard had been pointed out. ( 33 ) IN State of U. P. s case (supra), the apex Court while dealing with the evidentiary value of medical evidence vis-a-vis the eye-witnesses account, held that the testimony of eye-witness should be preferred unless medical evidence is so conclusive so as to rule out the possibility of eye-witness s version to be true. ( 34 ) ELABORATE submissions were made by both the Counsel relating to the liability of every member of an unlawful assembly in the commission of the offence. ( 35 ) IN Shambu Nath Singh and others v. State of Bihar, AIR 1960 SC 725 , the apex Court held that:"the question which then falls to be determined is whether the conviction of accused Nos. 2 to 8 and 14 for the offence under Section 326 read with Section 149 of the Indian Penal Code may be sustained when no offender is found guilty of the substantive offence under Section 326 of the Indian Penal Code. Counsel for the appellants submits that these accused were acquitted of the offence under Section 302 read with Section 149 of the Indian Penal code and in the absence of evidence to prove that grievous hurt was in prosecution of the proved common object caused by a member of the assembly their conviction for the offence under Section 326 read with section 149 is in law unwarranted. The 1st accused Shambu Nath Singh has been convicted of the offence under Section 302 read with Section 149 of the Indian Penal code and the other accused have been convicted of the offence under Section 326 read with Section 149 of the Indian Penal code. The 1st accused Shambu Nath Singh has been convicted of the offence under Section 302 read with Section 149 of the Indian Penal code and the other accused have been convicted of the offence under Section 326 read with Section 149 of the Indian Penal code. Counsel for the appellants contends that in the absence of evidence to show that grievous hurt was caused by one of the accused in prosecution of the common object, the Court was incompetent to record a conviction for the offence under Section 326 read with Section 149 of the Indian Penal code. ""section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. ""by Section 149 the vicarious liability of the members for offence committed in prosecution of the common object or for offences which were known to be likely to be committed by the members of the unlawful assembly is declared. ""by Section 149 the vicarious liability of the members for offence committed in prosecution of the common object or for offences which were known to be likely to be committed by the members of the unlawful assembly is declared. The offence of murder being in its nature an aggravated form of the offence of grievous hurt, we are unable to hold that because no offender was proved to have caused grievous hurt to the victims, the conviction of Accused Nos. 2 to 8 and 14 for an offence under Section 326 read with Section 149 of the Indian Penal code is illegal. " ( 36 ) IN Masalti v. State of Uttar Pradesh, the Apex Court while dealing with the attack by crowd of assailants held that"where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. Where for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task: but criminal Courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. In the present case, the High Court has in fact refused to act upon the evidence of bahoran and Prabhu Dayal, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infirmities. "the Apex Court further observed that:". . . In the present case, the High Court has in fact refused to act upon the evidence of bahoran and Prabhu Dayal, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infirmities. "the Apex Court further observed that:". . . He argues that under the Indian Evidence act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true: but where a Criminal Court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test maybe described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case. " ( 37 ) WHEN the accused are members of an unlawful assembly, and had attacked the house of P. Ws. 1 to 3 and the deceased with the common object despite the fact that a specific overt act had been attributed only to one of them, the other members of the unlawful assembly also would be liable. " ( 37 ) WHEN the accused are members of an unlawful assembly, and had attacked the house of P. Ws. 1 to 3 and the deceased with the common object despite the fact that a specific overt act had been attributed only to one of them, the other members of the unlawful assembly also would be liable. That is the very spirit of the object behind section 149 I. P. C. There is no controversy that a finding had been recorded on appreciation of the evidence, by the learned additional Sessions Judge that the death of the deceased was due to the blow on his head by A-1, who is no more. It is also true that A-8, because of whom the controversy had erupted, also was acquitted by the learned Judge recording certain reasons. The counsel for the appellants would contend that the same benefit has to be extended to the appellants also. ( 38 ) SUBMISSIONS at length were made by the learned Additional Public Prosecutor that merely because acquittal was recorded as against A-8 that will not automatically inure to the benefit of the other accused and this Court as Appellate Court, by virtue of powers conferred under Section 386 Cr. P. C. definitely can arrive at a conclusion that the said finding is not in accordance with law, though the order of acquittal had attained finality, without disturbing the order of said acquittal recorded as against A-8. It is no doubt true that the Criminal Court while appreciating the evidence may give benefit of doubt to certain accused and the accused may be acquitted. But here is a case of unlawful assembly. According to the prosecution, the accused had not participated in the panachayat though a request was made in the morning of the date of incident and prior to the incident there were some altercations and subsequent thereto, the attack was made. In the light of the evidence of P. W. 13 and the nature of injuries caused and weapons used, and especially in the light of Ex. In the light of the evidence of P. W. 13 and the nature of injuries caused and weapons used, and especially in the light of Ex. P. 1, it cannot be said that it was a deliberate preplanned attack to do away the life of any individual and as such the view expressed by the learned Sessions Judge that this offence would fall under Section 304 Part n read with Section 149 I. P. C. definitely cannot be sustained, though in the course of fight something happened which had resulted in the death of one Pandari. ( 39 ) ON appreciation of the whole evidence especially the overt acts spoken to by P. Ws. l and 3 and the injuries on their person as spoken to by P. W. 13, this Court is thoroughly satisfied that the offence under section 304 Part II read with Section 149 i. P. C. as against the appellants had not been established and accordingly, the conviction and the sentence imposed to undergo rigorous imprisonment of five years and to pay fine of Rs. 300/- (Rupees three hundred only) each, in default to undergo rigorous imprisonment for three months for the offence under Section 304 Part II read with section 149 IPC are hereby set aside. The rigorous imprisonment of one month in relation to Section 148 IPC also is hereby set aside. However, the conviction under section 324 read with Section 149 IPC is hereby confirmed. Taking into consideration the nature of injuries, which were caused, the sentence of rigorous imprisonment for two years is hereby modified to rigorous imprisonment of one year, but however, the fine imposed at Rs. 200/- (Rupees two hundred only) is hereby confirmed. ( 40 ) THEREFORE, the sentence is modified relating to the rigorous imprisonment to a period of one year and confirming the fine of Rs. 200/- (Rupees two hundred only) each as against all the appellants. The bail bonds are hereby cancelled and the appellants to serve the rest of the sentence, if any. ( 41 ) ACCORDINGLY, the criminal appeals are partly allowed to the extent indicated above.