Judgment S.K. Sharma, J.-Both these matters were heard together as the same arise out of a common Judgment rendered by the learned trial Judge. 2. The appellants twenty five in number, were the accused on the file of learned Additional Sessions Judge No. 2, Alwar bearing Sessions Case No. 39/1998. Learned Judge vide Judgment dated September 24, 1999 convicted and sentenced the appellats as under:- Accused Sohan Lal Under Section 302/IPC To suffer Imprisonment for life and fine of Rs. 1,000/-, in default to further suffer imprisonment for one year. Under Section 148 IPC. To suffer Rigorous Imprisonment for one year and fine of Rs. 500/-, in default to further suffer Imprisonment for three months. Under Section 323/149 IPC. To suffer Rigorous Imprisonment for six months and fine of Rs. 200/-, in default to further suffer Imprisonment for three months. Under Section 324/149 IPC. To suffer Rigorous Imprisonment for six months and fine of Rs. 500/-, in default to further suffer Imprisonment for three months. Sentences were ordered to run concurrently. Accused (1) Chandgi Ram, (2) Buddha, (3) Banwari, (4) Deva, (5) Totiya, (6) Surjan, (7) Gugan, (8) Dariya, (9) Pappu, (10) Shish Ram, (11) Rampat, (12) Ramphal, (13) Sant ram, (14) Srichand, (15) Surja, (16) Birju, (17) Veeru @ Veer Singh, (18) Thawaria, (19) Dharmapal, (20) Jai Dayal, (21) Rati Ram, (22) Rohitash, (23) Basanta and (24) Risal: Convicted under Section 148, 324/149 and 323/149 IPC and instead of sentencing them at once the benefit of Section 4 of Probation of Offenders Act was extended and they were directed to execute the bonds of Rs. 5000/-for keeping peace for two years. 3. The prosecution case as pictured during trial was that the informant Raghuvir instituted a report at Police Station Kotkasim on September 15, 1990 at 8.00 P.M. wherein it was alleged that on the said day around 7-8 a.m. Ghasi (since deceased) and Sunder went to the field bearing khasra No. 10 situated at Mauja Khairli, with the purpose of ploughing it with a tractor. When they reached there they found accused sitting there equipped with lathis, ballam, spears and a gun. The accused started demolishing boundary wall on the south of the said field. Ghasi tried to dissuade the accused. On the intervention of Ghasi, accused opened assault. Accused Sohan dealt a blow on the neck of the deceased with the spear. When they reached there they found accused sitting there equipped with lathis, ballam, spears and a gun. The accused started demolishing boundary wall on the south of the said field. Ghasi tried to dissuade the accused. On the intervention of Ghasi, accused opened assault. Accused Sohan dealt a blow on the neck of the deceased with the spear. Chandgi fired a gun shot at Ghasi and other appellants also assaulted the deceased, as a result of which Ghasi died at the spot. During the assault on Ghasi, other members of complainant party namely Raghuvir, Jagram, Buddha, Sunder, Dilip, Abhay Singh, Shiv Charan, Subhram, Atar Singh, Matadeen, Ram Singh, Vimla, Dhanak, Sushma, Sajna and Kalawati reached the place of incident. These persons were also assaulted by the accused, as a result of which seventeen persons from the side of complainant suffered injuries. On the basis of the said report a case under Sections 147, 148, 149, 323, 324, 307, 302 and 447 IPC was registered and investigation commenced. After conducting usual investigation the charge-sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge No. 2, Alwar. Charges under Sections 147, 148, 307/149, 323, 324, 325, 447 and 302 IPC were framed against the accused. The charges were denied and trial was claimed. The prosecution in support of its case examined as many as 25 witnesses. In the explanation under Section 313 CrPC the accused claimed innocence and denied the prosecution case. In defence the accused examined two witnesses. On hearing final submissions the learned trial Judge convicted and extended the benefit of probation to 24 accused, but convicted and sentenced the accused Sohan Lal as indicated herein above. 4. Having carefully gone through the record with the assistance of learned Counsel for the parties we notice that in the course of the incident complainant party and accused party both sustained injuries. Two persons Ghasi and Kanhaiya were done to death. Ghasi belonged to complainant party whereas Kanhaiya was member of accused party. 5. A look at the postmortem report (Exhibit P-24) of the deceased Ghasi Ram shows that he received following ante-mortem injuries:-"Stab Wound 3 cm. x 2 cm. x 5 cm. Elliptical shaped. Longitudinal in direction and directing obliquely inside towards the right side of the neck upto nee deep. 5. A look at the postmortem report (Exhibit P-24) of the deceased Ghasi Ram shows that he received following ante-mortem injuries:-"Stab Wound 3 cm. x 2 cm. x 5 cm. Elliptical shaped. Longitudinal in direction and directing obliquely inside towards the right side of the neck upto nee deep. The wound is filled with soft reddish clotted blood all the muscles, nerves and vessels underneath the wound are cut sharply. In the opinion of Doctor the cause of death was sever hemorrhage and shock because of stab wound in the neck. 6. Injuries sustained by the members of the complainant party are as under:- Raghuvir (Pw. 1) vide injury report (Exhibit P-4):- "1. Lacerated wound 3cm. x ½ cm. x ¼ cm. on the lateral side of left thigh. 2. Lacerated wound 2 ½ cm. x ½ cm. x ½ cm. on medial side of Rt. thigh. 3. Bruise1 ½ cm. x 1 cm. on back of Rt. forearm." Sunder Lal (PW . 4) vide injury report (Exhibit P-13):- "1. Lacerated wound 3 cm. x ½ cm. x ¼ cm. on left parietal area. 2. C/o pain left elbow joint. 3. Bruise4cm. x 2 cm. on Rt. Scapular area." Subh Ram (PW .5) vide injury report (Exhibit P-14):- "1. Abrasion 3 cm. x 1 ½ cm. on left-knee joint, 2. Bruise 2 cm. x 2 cm. on left deltoid area." Ram Singh (PW . 7) vide injury report (Exhibit P-15):- One bruise of 1 ½ cm. x 1 cm. on the palm surface of left hand. Jag Ram (PW . 9) vide injury report (Exhibit P-16):- "1. Incised would 2cm. x ¼ cm. x ¼ cm. on the medial side of lower 1/3rd Rt. leg. 2. Bruise2cm. x 2cm. on the posterior side of Rt. fore arm mid. 3. Bruise1 ½ cm. x ½ cm. x ¼ cm. on front of left elbow." Shiv Charan(PW . 12) vide injury report (Exhibit P-17):- "1. Lacerated wound 2cm. x ½ cm. x ¼ cm. on the left parietal area. 2. Bruise4 cm. x 2 cm. on the back of left forearm." Abhay Singh (PW . 8) vide injury report (Exhibit P-55):- 1. Lacerated wound 4 cm. x ½ cm. scalp deep. 2. Lacerated wound 2 ½ cm. x ½ cm. x bone deep 3. Reddish bruise10 cm. x 2 cm. and 8 cm. x 0.1 cm. Rt. scapular region. 4. Reddish bruise4cm. x 2 cm. on the back of left forearm." Abhay Singh (PW . 8) vide injury report (Exhibit P-55):- 1. Lacerated wound 4 cm. x ½ cm. scalp deep. 2. Lacerated wound 2 ½ cm. x ½ cm. x bone deep 3. Reddish bruise10 cm. x 2 cm. and 8 cm. x 0.1 cm. Rt. scapular region. 4. Reddish bruise4cm. x 4cm. Smt. Bimla (PW . 11) vide injury report (Exhibit P-29):- 1. Painful swelling around left elbow joint. 2. Lacerated wound ½ cm. x ¼ cm. x ¼ cm. on back of left index finger. 3. Lacerated wound 1 cm. x ¼ cm. on back of left middle finger. 4. Painful swelling on back of left hand. Vide X-ray report (Exhibit P-21) she sustained fracture on base of proximal phalange of left middle finger Dilip (PW . 6) vide injury report (Exhibit P-28):- 1. Gun shot wound 1 cm. x ½ cm. x bone deep on anterior side of Rt. elbow wound of entry. 2. Gun shot wound 1 ½ cm. x ½ cm. x bone deep on the back of Rt. elbow wound of exit. 3. Bruise 2 cm. x 2 cm. on lower 1/3rd left forearm 4. C/o pain left thigh. Karnawati vide injury report (Exhibit P-30):- 1. Painful swelling on dorsam of right hand 3cm. x 2cm. 2. C/o pain Rt. gluteal area. 3. C/o pain left gluteal area. Sushma vide injury report (Exhibit P-31):- Lacerated wound 2cm. x ½ cm. x ¼ cm. on the occipital region of scalp. Somoti vide injury report (Exhibit P-32):- 1. Lacerated wound 4 cm. x ¼ cm. x ¼ cm. on Rt. parietal area anterior rest. 2. Bruise3cm. x 2cm. on anterior side of Rt. shoulder joint. 3. C/o pain Rt. elbow joint. Sajana vide injury report (Exhibit P-33):- Lacerated wound 2 cm. x ¼ cm. x ¼ cm. on back of Rt. Thumb. Amar Singh (PW . 16) vide injury report (Exhibit P-34):- 1.Lacerated wound 1cm. x ½ cm. x ¼ cm. on occipital area. 2. C/o pain Rt. side neck. 3. C/o pain lateral side Rt. forearm. 7. Details of injuries sustained by the members of accused party are as under:- Banwari vide injury report (Exhibit D-15-A):- Lacerated wound 1cm. x ½ cm. x ½ cm. on upper ½ of anterior side of right leg. Budh Ram vide injury report (Exhibit D-16-A):- Lacerated wound 2cm. C/o pain Rt. side neck. 3. C/o pain lateral side Rt. forearm. 7. Details of injuries sustained by the members of accused party are as under:- Banwari vide injury report (Exhibit D-15-A):- Lacerated wound 1cm. x ½ cm. x ½ cm. on upper ½ of anterior side of right leg. Budh Ram vide injury report (Exhibit D-16-A):- Lacerated wound 2cm. x ½ cm. x ¼ cm. on left eye brow. Dariya vide injury report (Exhibit D-17-A):- "1. Lacerated wound 1 ½ cm. x ½ cm. x ¼ cm. on upper part of sternums. 2. Bruise ½ cm. x ¼ cm. on the back of middle finger. 3. C/o pain occipital area. Gugan vide injury report (Exhibit D-18A):- Lacerated wound 2 cm. x ¼ cm. x ¼ cm. in mid scale area. Chandgi vide injury report (Exhibit D-19A):- "1. Incised wound 2 cm. x ¼ cm. x bone deep on anterior side of mid area of right leg. 2. C/o pain Rt. shoulder. 3. Abrasion 3cm. x 1cm. on Rt. shoulder posteriorly 4. Bruise2cm. x 1cm. on anterior side of left forearm mid. 5. C/o pain mid scalp." As per postmortem report (Exhibit D-20A) deceased Kanhaiya sustained ante-mortem multiple injuries resembling gun shot wound on the upper part of left side of chest and front of left shoulder. Average size of wounds is 1/4cm. x 1/4cm., the is blackening around all wounds. In the opinion of Doctor the cause of death was shock due to sever internal hemorrhage from the left lung as a result of multiple gun shot wounds. Surjan vide injury report (Exhibit D-21A):- "1. Bruise Bluish coloured on the whole Rt. upper eye bid. 2. Bruise3cm. x 1 ½ cm. on Rt. Shoulder. 3. C/o pain Rt. parietal area." Sohan Lal vide injury report Exhibit D-22-A:- Sustained injuries and vide X-ray report Exhibit D-12 his right elbow was found fractured. 8. It is contended by learned Senior Counsel for the appellant that the prosecution witnesses have indulged in making material improvements in their Court statements upon their earlier version set forth before the investigating agency. There are numerous incongruencies and discrepancies with which the testimony of prosecution witnesses suffer. The site plan of the place of incident does not lend any corroboration to the ocular testimony of prosecution witnesses. There are numerous incongruencies and discrepancies with which the testimony of prosecution witnesses suffer. The site plan of the place of incident does not lend any corroboration to the ocular testimony of prosecution witnesses. The FIR has been lodged with an inordinate delay and the same casts a shadow of doubt on its veracity. The assertion of the prosecution witnesses that accused have endeavoured to damage the boundary wall of the field is not corroborated from the site plan of the place of incident. The prosecution has miserably failed to show the proximate cause of genesis of occurrence of the impugned incident. The prosecution has endeavoured to give a slant to the entire case. It has not come with the true version of impugned incident and has endeavoured to screen the same from the learned trial Court. Learned Senior Counsel prayed to set aside the impugned Judgment . 9. Per contra learned public prosecutor and learned Counsel for the complainant supported the impugned Judgment and urged that the appellant was rightly convicted and sentenced. We were taken through the statements of Sohan Lal recorded under Section 313, CrPC wherein Sohan Lal stated that when he attempted to rescue Kanhaiya and Chandgi, Ghasi (deceased) made assault on him with Bhala and in the attempt of snatching the Bhala it caused injury to Ghasi. On the basis of the statement of Sohan Lal it is contended that the charge against Sohan Lal is established beyond reasonable doubt. Canvassing the grounds of instant revision learned Counsel for the complainant prayed to convict the other 24 accused under Section 302/149, IPC. .10. The super structure of the prosecution case is founded on the testimony of Matadeen (PW. 2), Sita Ram (PW. 3), Sunder Lal (PW. 4), Subh Ram (PW. 5), Dilip (PW. 6), Ram Singh (PW. 7), Abhay Singh(PW. 8), Jag Ram (PW. 9), Sanjay (PW. 10), Bimla (PW. 11) and Shiv Charan (PW. 12), .who have been examined as eye-witnesses of the incident. Testimony of eye-witnesses was further corroborated by Dr. R.N. Gupta (PW. 14) who performed autopsy on the dead body of Ghasi. 11. We begin with our consideration by examining the evidence of accused Sohan Lal (DW. 1), who appeared as a defence witness. In this deposition Sohan Lal stated that in the incident he himself sustained grievous injurious which were incorporated in the injury report Exhibit D-22. R.N. Gupta (PW. 14) who performed autopsy on the dead body of Ghasi. 11. We begin with our consideration by examining the evidence of accused Sohan Lal (DW. 1), who appeared as a defence witness. In this deposition Sohan Lal stated that in the incident he himself sustained grievous injurious which were incorporated in the injury report Exhibit D-22. The injury report was filed in cross case being Sessions Case No. 39/91.Copies of X-ray report Exhibit D-12A and injury report Exhibit D-22A were placed on record. In the statement under Section 313 CrPC Sohan Lal stated that when he attempted to rescue Kanhaiya and Chandgi, Ghasi made assault on him with Bhala and in the scuffle of snatching Bhala it caused injury to Ghasi. Now the question that requires answer is whether the statement of accused under Section 313, CrPC can be made the sole basis of the finding? .12. Learned Senior Counsel for the accused canvassed that the burden which rests on the prosecution to establish its case beyond a reasonable doubt is neither neutralised nor shifted becuase the accused pleads the right of private defence. The prosecution must discharge its initial traditional burden to establish the complicity of the accused and not until it does so can the question arise whether the accused has acted in self defence. Reliance is placed on State of U.P. vs. Ram Swarup, AIR 1974 SC 1570 . Their Lordships of Supreme Court indicated in para 9 as under :- ."....Unlike in a civil case, it is open to a criminal Court to find in favour of an accused on a plea not taken up by him, and by so doing the Court does not invite the charge that it has made out a new case for the accused. The accused may not plead that he acted in self -defence and yet the Court may find form the evidence of the witnesses examined by the prosecution and the circumstance of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private, defence or that the offence is mitigated because the right of private defence has been exceeded." 13. Reliance is also placed on Ouseph @ Thankachan vs. State of Kerala, 2004(4) SCC 446 , wherein it was held that merely because on legal advice, he has chosen one line of defence he cannot be precluded from reaching other defence available to him. It is too harsh to deny the accused a right to resort to the alternative contention. 14. Interpreting Section 313 CrPC, the Apex Court in State of U.P. vs. Lakhmi, 1998 (4) SCC 336 , held that Sub-section (4) of Section 313 contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words "may be taken into consideration in such enquiry or trial" in Sub-section (4) would amount to a legislative guideline for the Court to give due weight to such answers though it does not mean that such answers could be made the sole basis of any finding. But the law is that burden of proving an exception is on the accused. The Apex Court in para 17 observed thus:- "The law is that burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 of the CrPC without referring to Exception I of Section 300 of IPC is not enough to deny him of the benefit of the exception, if the Court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability. " 15. In Mohan Singh vs. Prem Singh, 2002 (10) SCC 236, it was held in para 30 as under:-"The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant, 1969(1) SCC 347 by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction." 16. Learned Senior Counsel further contended that the FIR in the instant case lost its authenticity since it was written after inquest report was drawn. Reliance is placed on Balaka Singh vs. Sate of Punjab, AIR 1975 SC 1962 . We were taken through Exhibit P-11 and Exhibit P-44. 17. In State of Gujarat vs. Patel Mohan Mulji, AIR 1994 SC 250 , the Apex Court found the evidence of prosecution to be suffering from serious infirmities and affirm the order of acquittal by the High Court. 18. In Suresh Rai vs. State of Bihar, 2000 (4) SCC 84 , the Apex Court held in para 15 thus:-"Under section 174 read with Section 178 of the CrPC inquest report is prepared by the investigating officer to find out Prima facie the nature of injuries and the possible weapon used in causing those injuries as also the possible cause of death. In Pedda Narayana vs. State of A.P., 1975(4) SCC 153 it was held by this Court that the identity of the accused is outside the scope of the inquest report prepared under Section 174 CrPC. In George vs. State of Kerala, 1998 (4) SCC 605 it has been held that the investigating officer is not obliged to investigate, at the stage of inquest, or to ascertain as to who were the assailants. This Court has consistently held that the inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest." 19. This Court has consistently held that the inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest." 19. In Jaharlal Das vs. State of Orissa, 1991 (3) SCC 27 , it was indicated that where the inquest report did not mention the circumstance of the deceased having been last seen in the company of accused. It was held on facts that the circumstance was not proved. 20. In Kanhai Mishra vs. State of Bihar, 2001 (3) SCC 451 the informant had gone to the police station narrated the occurrence and after 10-20 minutes stay there, returned to his village where the officer in charge of the police station recorded his fard-bayan naming accused as having committed the offence. But while in Police Station, the informant had not disclosed the name of accused. It was held that recording of fard-bayan at the house of informant instead of at Police Station when he had gone there shows that there was inordinate delay in recording the fard-bayan. This further shows that by the time the informant was at the Police Station he did not suspect complicity of the accused with the crime and subsequently after due deliberations fard-bayan was given by the informant at his house alleging therein that the accused had committed the crime. Thus the evidence of this witness makes the prosecution case showing complicity of the accused with the crime doubtful. 21. In Satnam Singh vs. State of Rajasthan, 2000 (1) SCC 662 , the FIR was lodged immediately after the occurrence but names of the eye-witnesses were not mentioned therein. It was held that it would not by itself impeach the credibility of the eye-witnesses. 22. In Gangadhar Behera vs. State of Orissa, 2002 (8) SCC 381 , it was held that witnesses just cannot help in giving embroidery to a story however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is wothy of acceptance and merely because in some respect the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessary follow as a matter of law that it must be disregarded in all respects as well. In para 23 of the Judgment the difference between common object and common intention has been indicated thus:-"Common object" it is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the numbers composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incidence on the spot co instanti." 23. In Bijoy Singh vs. State of Bihar, 2002 (9) SCC 147 , it was indicated in para 7 thus:-"Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. In Bijoy Singh vs. State of Bihar, 2002 (9) SCC 147 , it was indicated in para 7 thus:-"Sending the copy of the special report to the Magistrate as required under Section 157 of the Criminal Procedure Code is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it" 24. In Mavila Thamban Nambiar vs. State of Kerala, AIR 1997 SC 687 where the accused gave one blow with pair of scissors on vital part of body of deceased. It was in the knowledge of accused that the injury would cause death though he might not have intention to commit murder. The conviction was altered from Section 302 to one under Section 304 Part II IPC. .25. Learned Public Prosecutor placed reliance on State of Rajasthan vs. Labhsing, 1982 CrLR (Raj) 87, wherein it was held that the statement of accused under Section 313 CrPC is also relevant and if in such a statement, the accused confesses to the commission of the offence charged against him, then the Court may rely upon that confession and proceed to convict him, but his statement as a whole should be taken into consideration. .26. At this juncture we may catalogue certain material facts appearing on record. .26. At this juncture we may catalogue certain material facts appearing on record. These are:- .(i) Ocular testimony of prosecution witnesses that the accused demolished boundary wall of the field does not get corroboration from the site plan of the place of incident. .(ii) The injuries sustained by the members of the accused party have not been explained by the prosecution witnesses. .(iii) Kanhaiya, a member of the accused party, sustained injuries in the course of the incident as a result of which he died. .(iv) Cross case was registered against the members of the complainant party. There was a mutual fight. .(v) Accused Sohan, who sustained fracture on his right elbow, in his statement under Section 313 CrPC stated that when he attempted to rescue Kanhaiya and Chandgi, Ghasi (deceased) made assault on him with spear (Bhala) and in the scuffle of snatching Bhala Ghasi received the injury. 27. In view of factual situation of the instant case it would be worthwhile to consider the principles governing constructive liability under Section 149 IPC. This section requires the consensus of five persons to do unlawful act prohibited by Section 141, in addition to which, in order to create a liability under this section, there must be proof that the accused knew that the offence, committed by one member of the assembly was likely to be committed by anyone of them. Section 149 does not create new offence but deals with vicarious liability of the members of unlawful assembly. The Apex Court in Munir Khan vs. State of U.P., AIR 1971 SC 355 indicated that where there is a mutual fight between the parties, the Court will not be justified in convicting any of the accused by taking recourse to Section 149. In mutual fight there is no common object. 28. It is trite that where there is a spontaneous fight between the parties or where the right of private defence is exceeded, the question of constructive liability under Section 149 does not arise and each individual is responsible for the injuries caused by him. 29. It is also well settled that when the accused has taken the plea that they acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. 29. It is also well settled that when the accused has taken the plea that they acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. The guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused being serious in nature assume importance in regard to genesis and manner of occurrence. The statement of accused under Section 313 CrPC can be used for appreciating evidence led by the prosecution to accept it or reject it. In the instant case as already noticed by us that the prosecution has not given any explanation as to how Kanhaiya, member of accused party, received gun shot injuries? Under what circumstances he was killed. The serious injuries received by other accused persons were also not explained. Ocular testimony of prosecution witnesses that the accused demolished boundary wall of the field did not find corroboration from the site plan drawn by the investigating officer. The accused were successful in probablising this fact that free fight took place between the complainant and the accused parties as a result of which Ghasi and Kanhaiya died and many others received fatal injuries. The origin and genesis of the occurrence appears to have been withheld by the prosecution. It is however established that the accused Sohan Lal inflicted blow with spear on the neck of deceased Ghasi. Accused Sohan Lal although received grievous injury and right of private defence was available to him but he had far exceeded it in dealing with the fatal blow on the neck of the deceased. Accused Sohan Lal, therefore, must be held guilty under second part of Section 304 IPC. Since free fight ensued, charges under Sections 148 and 149 IPC are not established against any of the accused. 30. For these reasons we dispose of the instant matters in the following terms:- .(i) Appealof accused Sohan Lal is partly allowed and instead of Section 302 IPC, we convict him under Section 304 Part-II, IPC. Since, the accused Sohan Lal has remained in custody for a period of more than six years and four months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. Since, the accused Sohan Lal has remained in custody for a period of more than six years and four months, the ends of justice would be met in sentencing him to the period already undergone by him in confinement. We however, acquit him of the charges under Sections 148, 323/149 and 324/149 IPC. The accused Sohan Lal, who is in jail, shall be set at libertty forthwith, if not required to be detained in any other case. .(ii) Appeal of accused