JUDGMENT S. P. KUKDA Y, J. :- Appellants and accused Nos. 1, 2, 7 and 9 were prosecuted for commission of offence punishable under sections 147, 148, 324, 307, 504, 506 read with section 149 of the Indian Penal Code (for short the "IPC"). Accused Nos. 1, 2, 7 and 9 are acquitted of all the offences charged against them. Appellants are acquitted of the offences punishable under sections 504 and 506 read with section 149 of the Indian Penal Code. They are, however, convicted for the offence punishable under sections 147, 148,324,307 read with section 149 of the Indian Penal Code and are sentenced to suffer R.I. for one year. each and fine of Rs. 100 each for the first, second and third offence and R.I. for five years each and fine of Rs. 1000/- each for the fourth offence. Substantive sentences are directed to run concurrently. The appellants have impugned this order of conviction and sentence in the present appeal. 2. Relevant facts, in nutshell, are that appellants and first informant-Arjun Maroti Shirsath (PW 1) are distant relatives. They are natives of village Takli Manur, Taluka Pathardi, District Ahmednagar. Land from the village was acquired for Ghatsil Pargaon Irrigation Project and villagers were rehabilitated at new settlement (Ambikanagar) near the old village. As the water of the Irrigation Project did not enter the village, the owners retained possession of their properties. Brothers of PW 1 Buvasaheb and Babasaheb (PW 2) are separately residing at Ambikanagar. PW 1 was serving in the Military. After retirement, he returned to the village and started living at his farm. He also opened a stationery shop at the village. Appellant No.1 Gahininath and appellant No.3 are sons of deceased J agannath. They reside at the village. Maroti, father of PW 1, owned open plot by the side of their house. This plot was sold by Maroti to Babasaheb Dhakne some 20 years back. Subsequently, the plot was purchased by the deceased from Babasaheb Dhakne about 12 years back. There was a dispute between PW 1 and deceased Jagannath in respect of this open plot. PW 1 has filed Civil Suit No. 291/2002 in the Court of Civil Judge Junior Division, Pathardi, against the deceased. The Court has passed an order for interim injunction against defendants in this suit. On 30-7-2002 there was a fair at the village. There was a dispute between PW 1 and deceased Jagannath in respect of this open plot. PW 1 has filed Civil Suit No. 291/2002 in the Court of Civil Judge Junior Division, Pathardi, against the deceased. The Court has passed an order for interim injunction against defendants in this suit. On 30-7-2002 there was a fair at the village. At about 3.00 p.m. Rangnath (appellant No.3), Gahininath (appellant No. 1), Ankush (appellant No.5), Bhima (accused No.7) and Rajendra (accused No.9) obstructed PW 1 near village Karodi, while he was returning from Pathardi. They threatened PW 1 with dire consequences if he did not withdraw the Civil Suit. To avert the assault, PW 1 told them that the dispute should be settled at the village and went to his shop at the village. 3. PW 1, then, came to his shop at about 4.00 p.m. while he was opening the shop, deceased, appellant Nos. 2 to 4 asked him to come to them before opening the shop. Sensing trouble, PW 1 accosted his brother PW 2 who was at the market. By that time, appellant Nos. 1, 3, 5 and accused Nos. 1, 2, 7 and 9 joined the deceased. As the assailants outnumbered him and his brother, PW 1 started running towards Ambikanagar. The assailants were chasing him. Appellant No.3 was carrying gupti, appellant No. 1 was wielding iron rod and accused No.9 was armed with sword. When he reached pipal tree ata distance of about 100 ft. from the shop, PW 2 asked him to stop running. When he stopped, appellant No. 1 inflicted blow on his head with iron rod. PW 1 fell down under the impact of the blow. PW 2 tried to reason with the assailants asking them not to assault PW 1 and went to the rescue of his brother. Appellant No.1 dealt blow on the stomach of PW 2 with gupti. At this moment, PW 2 snatched iron rod from the hands of appellant No. 1 and started waving it. The deceased who tried to assault PW 1, was struck at the back of the head above the ear and on the forehead. As the deceased was drunk, he could not control himself and fell on heap of stones. Having heard the cries, Buvasaheb and Kantabai (wife of PW 2), came there. The deceased who tried to assault PW 1, was struck at the back of the head above the ear and on the forehead. As the deceased was drunk, he could not control himself and fell on heap of stones. Having heard the cries, Buvasaheb and Kantabai (wife of PW 2), came there. When they saw that PW 2 has received injury, both of them started raising alarm. At this juncture, Ramdas, nephew of PW 1, came there on motorcycle, PW 1 went to the Police Station with Ramdas. From the Police Station, PW 1 obtained letter for the Medical Officer and went to the Rural Hospital, Pathardi, for treatment. Medical Officer Dr. Yermalkar examined him at 5.40 p.m. and found that PW 1 had sustained blow on occipital region of the size 2 x 1 x 1 cms, and abrasions on left fore-arm. On examination of PW 2 at 7.15 p.m., the Medical Officer found that he had suffered an injury on the abdomen from which the intestines and omentum were protruding. He referred PW 2 to the Civil Hospital, Ahmednagar for treatment. At the Hospital where PW 1 was taking treatment, his complaint was recorded by PSO Shirke. On the basis of this report, offence was registered at Crime No. 128/2002 under sections 147, 148, 324, 307, 504, 506 read with section 149 of the Indian Penal Code, against the accused. Investigation of this offence was then handed over to P.I. Randive (PW 6). 4. The Investigating Officer visited the scene of occurrence. Blood-stained soil and control soil was attached under Spot Panchanama (Exh. 75). He then arrested Haribhau (accused No.1) and his son Popat (accused No.2). On the next day, the Investigating Officer arrested appellant Nos. 1 and 2. Bloodstained clothes of appellant No. 3 were attached under seizure memo (Exh. 77) at the Hospital, where he was admitted for the treatment. Iron rod produced by the appellant No. 1 came to be attached under seizure memo (Exh. 79). Appellant No.3 came to be arrested on 1-8-2002 and appellant No.4 came to be arrested on 2-8-2002. On 5-8-2002, appellant No.3 made a confessional statement (Exh. 83) and produced Sattur from the well situated near the scene of occurrence. It was attached under seizure memo (Exh. 84). Clothes of PW 2 were attached on 7-82002. Articles attached during the investigation were sent to Forensic Laboratory, Aurangabad, on 12-8-2002. On 5-8-2002, appellant No.3 made a confessional statement (Exh. 83) and produced Sattur from the well situated near the scene of occurrence. It was attached under seizure memo (Exh. 84). Clothes of PW 2 were attached on 7-82002. Articles attached during the investigation were sent to Forensic Laboratory, Aurangabad, on 12-8-2002. On completion of the investigation, the accused were charge-sheeted. 5. At the trial, appellant No. 3 filed written statement mentioning that on the day of the occurrence on account of the previous enmity, he, his father and mother were attacked by PW 1, his brothers and relatives near Tamarind tree. As a result of the assault, his father expired on the spot, his mother he himself and appellant No.4 suffered injuries. Appellant No.1 and accused No.9 took plea of alibi claiming that they were at Aurangabad for recruitment in the Army. Appellant No.1 filed Admission Card for the examination to be held on 28-72002. Accused Nos. 1,2,6, 7 and 8 pleaded false implication. 6. In the trial Court, the prosecution examined PW I and PW 2, who were injured during the course of occurrence and wife of PW 2 namely, Kantabai (PW 3), in support of the prosecution case. At the outset, it may be pointed out that evidence of PW 3 to the effect that she witnessed the incident, has been rejected by learned trial Judge. PW 1 as well as PW 2 in their evidence have not referred to the presence of PW 3. The prosecution case itself is that she came at the end of the occurrence with sisters-in-law Dwarkabai and Zumerbai. In this view of the matter, the rejection of her evidence by the trial Court is justified. No controversy is raised by either of the parties before us in this behalf. This leaves us with the evidence of PW 1 and PW 2 only. PW 1 has given the background as regards controversy regarding the open plot belonging to his father-Maroti and filing of Civil Suit No. 291/2002. Neither appellants nor the respondent have controverted the fact that there was no dispute between the parties in respect of the plot and litigation in respect thereof was pending in the Court of law. This evidence has been given to establish the motive. Neither appellants nor the respondent have controverted the fact that there was no dispute between the parties in respect of the plot and litigation in respect thereof was pending in the Court of law. This evidence has been given to establish the motive. The version of the incident given by PW 1 is that on the day of occurrence, he was returning from Pathardi and was obstructed near village Karodi by appellants No. 1,3,5 and accused Nos. 7, 9. He however, escaped by promising that the dispute can be settled at the village. When he returned to the shop, deceased was there with appellants 2 and 4. Deceased asked him to come to them before opening of the shop. In the background in which the command was given, PW 1 apprehended danger and accosted PW 2 who was at the market, which is in front of the shop. Appellant No. 1 and others, who had obstructed PW 1 near Karodi and accused Nos. 1 and 2 joined the deceased. He, therefore, started running. The deceased and his companions were chasing him. When he reached near Pipal tree situated at about 100 f1. from the shop, PW 2 asked him to stop. When he stopped near the tree, appellant No. 1 dealt blow on his head by iron rod. As a result, he fell down. PW 2 fell on his person to shield him from others and was requesting the assailants not to kill his brother. Assailants, however, continued to shower fist and kick blows on him. Appellant No.3 then pulled PW 2 and dealt blow with Gupti on his stomach. Apprehending danger to his life and life of his brother, PW 1 snatched iron bar from appellant No. I and started waving the bar in the air. The deceased who made an attempt to assault him sustained two injuries from the iron bar - one on the back of the head above the ear and the other on frontal region. The deceased was intoxicate and could not maintain his balance. He therefore, fell on the heap of stones. By that time, Buvasaheb came there and was also assaulted. Having found that PW 1 and PW 2 have sustained injuries, Buvasaheb and Kantabai started raising alarm. At that time, his nephew Ramdas came there on a motor-cycle. Therefore, he went to the Police Station and from there to the Hospital. He therefore, fell on the heap of stones. By that time, Buvasaheb came there and was also assaulted. Having found that PW 1 and PW 2 have sustained injuries, Buvasaheb and Kantabai started raising alarm. At that time, his nephew Ramdas came there on a motor-cycle. Therefore, he went to the Police Station and from there to the Hospital. At the Hospital, his complaint was recorded. 7. The only other evidence in respect of the occurrence is that of PW 2. PW 2 has referred to presence of all the assailants, but has attributed specific acts only to appellant No. 1 and appellant No.3. PW 2 has stated that at the time of occurrence, appellant No.3 was armed with Sattur,; Appellant No.1 was armed with iron rod and acquitted accused No.9 was armed with sword. After PW 1 stopped at the Pipal tree, appellant No. 1 dealt a blow with iron rod on head of his brother. When he tried to intervene, appellant No.3 caught him by the throat and dealt Sattur blow on his stomach. Other assailants were showering kick and fist blows on PW 1. On sustaining the injury, he fell down and lost conscIOusness. 8. Both injured were examined by PW 4 Dr. Yermalkar. The injury certificate Exh. 71 shows that PW 1 was examined at 5.45 p.m. Injury certificate Exh. 72 shows that PW 2 was examined at 7.15 p.m. He had sustained a single injury in the form of an incised wound on the abdomen. The intestines and omentum were protruding from this injury. As the injury was severe, PW 2 was referred to Civil Hospital, Ahmednagar, for specialized treatment. 9. After the offence was registered at 8.50 p.m. investigation was handed over to P.I. Randive. The Investigating Officer collected blood stained soil and control soil from the spot under Panchanama Exh. 75. During the course of incident, clothes of injured and appellant Nos. 1 and 3, soiled with blood were attached. Appellant No.1 produced iron rod on 31-7-2002 which was attached under Seizure memo (Exh. 79). Appellant No.3 was arrested on 1-8-2002. He made confessional statement on 5-8-2002 and produced Sattur from the well near the scene of occurrence which was attached under Seizure memo (Exh. 84). Articles attached during the course of investigation were sent to Forensic Laboratory. Appellant No.1 produced iron rod on 31-7-2002 which was attached under Seizure memo (Exh. 79). Appellant No.3 was arrested on 1-8-2002. He made confessional statement on 5-8-2002 and produced Sattur from the well near the scene of occurrence which was attached under Seizure memo (Exh. 84). Articles attached during the course of investigation were sent to Forensic Laboratory. The CA report shows that except articles 1 and 4, other articles were stained with blood. Stones found at the scene of occurrence and pyjama of PW 2 were stained with blood of "A" group. Manila and pant of appellant No.3 were stained with "A" and "B" group. The CA report establish complicity of appellant No.3 in causing injury to PW 2. 10. Learned trial Judge found that accused Nos. 1, 2, 7 and 9 were falsely implicated. However, found the evidence on record to be sufficient to establish that appellants form an unlawful assembly and assaulted PW 1 and 2 causing injuries to them. In conformity of this finding, the trial Judge convicted the appellants as stated earlier. 11-12. In support of the appeal, learned counsel for the appellants Shri N. N. Chitlange, has emphasised that the prosecution party was the aggressor. Appellant No.3, his father and mother were attacked by PW 1 and his companions near Tamarind tree on Ambikanagar Road, at about 4.00 p.m. on the day of the occurrence. Pursuing this theory, learned counsel contends that the story narrated by the prosecution witnesses is inherently improbable. Coupled with this, the evidence of the prosecution witnesses suffers from major contradictions and omissions. The hypothesis that appellant No.3 and four others obstructed PW 1 near Karodi with the intention to assault him and was later on attacked at the village is, to say the least, absurd. Had the assailants planned to attack PW 1, this could have been conveniently done at an isolated place near Karodi. The story that culprits let this opportunity slip and chose crowded market place at village for accomplishing their object is neither logical nor probable and deserves to be discarded. In the background that the presence of appellant Nos. 2, 3 and 4 has not been disputed, in the alternative, learned counsel argues that specific acts are attributed only to appellant No. 1 and appellant No.3. No overt act is attributed to other assailants. In fact, accused Nos. In the background that the presence of appellant Nos. 2, 3 and 4 has not been disputed, in the alternative, learned counsel argues that specific acts are attributed only to appellant No. 1 and appellant No.3. No overt act is attributed to other assailants. In fact, accused Nos. 1, 2, 7 and 9 are acquitted, on the ground that no overt act is attributed to them. The case of appellant No.5 stands on the same footing. Thus, presence of only four persons including the deceased, from the party of appellants is established. It is, thus, apparent that learned Judge has committed an error in holding that the appellants formed an unlawful assembly. Even otherwise, there is no evidence on record to establish that appellants had formed an unlawful assembly with specific object. Common object of the assembly is neither established by the evidence nor discussed by the trial Judge in his judgment. According to learned counsel, in the absence of evidence regarding existence of unlawful assembly, at the most, appellant Nos. 1 and 3 can be convicted for their individual acts, it is further contended that conviction of appellant No. 3 for the offence punishable under section 307 Indian Penal Code is not justified as appellant No.3 had no intention to cause death of PW 2. In fact, the prosecution story that this injury is caused by Sattur has been falsified by medical evidence. Even assuming that some other weapon was used, the offence would fall under section 326 of the Indian Penal Code, in the absence of intention to cause death. 13. Learned counsel for appellants mainly emphasised non-explanation of injuries sustained by appellant No.3, his father, mother and appellant No.4. According to learned counsel, in view of the failure to explain injuries caused to these persons, the trial Judge ought to have discarded evidence of PW 1 and PW2. 14. In the present case, the appellants have not specifically pleaded right of private defence. Their defence is essentially that of total denial. The emphasis is on non-explanation of the injuries sustained by appellant No.3, his father, mother and appellant No.4. There can be no dispute regarding the proposition that omission to offer an explanation may lead to an inference that relevant details concerning the incident are suppressed. Suppression of the genesis of the occurrence and true version of the incident does affect reliability of the prosecution witnesses. There can be no dispute regarding the proposition that omission to offer an explanation may lead to an inference that relevant details concerning the incident are suppressed. Suppression of the genesis of the occurrence and true version of the incident does affect reliability of the prosecution witnesses. In counter cases, the prosecution witnesses invariably avoid to disclose those facts which tend to incriminate them on the premise that acceptance of these facts would be tantamount to accepting their guilt. In such a situation, the fact that the principle ''falsus in uno, falsus in omnibus" has no application in India has not be borne in mind. Falsity of particular material cannot ruin his entire evidence. In such cases, a duty is cast upon the Court to carefully sift the evidence and make an effort to separate the grain from the chaff. The Court has to consider whether the omission to give an explanation, makes the entire prosecution story unreliable or raises a suspicion regarding credibility of the evidence of the prosecution witnesses. No universal rule that the entire evidence of a witness should be discarded for failure of the prosecution to explain injuries suffered by the accused, can be evolved, in all cases of non-explanation of the injuries. The question of credibility of the evidence would depend upon its quality and reliability. The dilemma has to be resolved by considering all the attending circumstances, treating the non-explanation of the injuries as one of the circumstance and by appreciating the evidence of the prosecution witnesses in proper perspective. Dealing with this aspect in Bishna vs. State of West Bengal, (2005) 12 see 657 at page 675, it is observed in para Nos. 49 and 50 of the report: "49. The witnesses indisputably in their cross-examinations did not accept the said fact presumably because they were accused in the counter case, presumably on the premise that if they admitted the same, they would have accepted their guilt. It is now well settled that it is not imperative to prove the injuries on the person of the accused irrespective of the facts and circumstances of the case including the admitted facts. Normally, such a plea is entertained when the right of self-defence is accepted by the Court. 50. The fact as regards failure to explain injuries on the accused vary from case to case. Normally, such a plea is entertained when the right of self-defence is accepted by the Court. 50. The fact as regards failure to explain injuries on the accused vary from case to case. Whereas non-explanation of injuries suffered by the accused probabilises the defence version that the prosecution side attacked first, in a given situation, it may also be possible to hold that the explanation given by the accused about his injury is not satisfactory and the statements of the prosecution witnesses fully explain the same and, thus, it is possible to hold that the accused had committed a crime for which he was charged. Where injuries were sustained by both sides and when both the parties suppressed the genesis in the incident, or were coming out with the partial truth, the prosecution may fail. But, no law in general terms can be laid down to the effect that each and every case where the prosecution fails to explain the injuries on the person of the accused; the same should be rejected without any further probe. [See Bankey Lal vs. State of U. P., (1971)3 SCC 184 ; and Mohar Rai vs. State of Bihar, (1968)3 SCR 525 ]" Similar view is taken in Amar Malia vs. State of Tripura, (2002)7 SCC 91 . In para 9 of the report Their Lordships observed: "It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eye witnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the Investigating Officer". 15. Learned Counsel for the appellants has next argued that the prosecution has not established formation of the unlawful assembly with the object of assaulting PW 1 and his brothers. Section 149 is an exception to the general rule that the offender is liable for his own acts. Section 149 has introduced concept of vicarious liability in criminal jurisprudence. 15. Learned Counsel for the appellants has next argued that the prosecution has not established formation of the unlawful assembly with the object of assaulting PW 1 and his brothers. Section 149 is an exception to the general rule that the offender is liable for his own acts. Section 149 has introduced concept of vicarious liability in criminal jurisprudence. An accused can be convicted and sentence for the acts committed by any member of an unlawful assembly, if it is proved that he was a member of an unlawful assembly, shared the common object of the unlawful assembly with other members and that the offences are committed by any member of the unlawful assembly in prosecution of the said common object. Section 141 is in two parts. Under the first part, the liability arises if the offences are committed in prosecution of the common object. Under the second part, a member of an unlawful assembly is vicariously liable even for acts which are likely to be committed in the prosecution of the common object. For the applicability of section 149 the prosecution is required to affirmatively establish that five or more persons formed an unlawful assembly with one of the objects mentioned in section 141 and that the accused shared said common object. Once this is proved the vicarious liability arises irrespective of the absence of overt act on the part of the accused. The law on this topic is succinctly laid down by the Apex Court in Rajendra Shantaram Todankar vs. State of Maharashtra, (2003)2 SCC 257 , in para 14 of the report the Court observed: "14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The two clauses of section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of section 149 - either clause - is attracted and the Court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of section 149, Indian Penal Code, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within. the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act." 16. The common object being a condition of mind, direct evidence regarding nature of the common object is seldom available. the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act." 16. The common object being a condition of mind, direct evidence regarding nature of the common object is seldom available. The nature of the common object is therefore ascertained by taking into the consideration all surrounding circumstances, including the weapons carried by the members, the acts performed before, after and at the time of the commission of an offence. Preconcert is not always necessary for the formation of the common object, it can develop at any stage of the incident. In support of his contention in respect of the mode of ascertaining the nature of the common object, learned counsel for the appellants Shri Chitlange has placed reliance on the decision of the Apex Court in Charan Singh vs. State of U. P., (2004)4 SCC 205 . After considering the essential requisites of the unlawful assembly, Their Lordships referred to the mode of ascertaining the common object. In para 14 it is observed: "The "common object" of an assembly is to be ascertained from the acts and language of the members 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 incident at the spot eo instanti." 17. 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 incident at the spot eo instanti." 17. In the present case, the prosecution relies on the evidence of only two injured witnesses, namely, PW 1 who is the first informant and his brother PW 2. Both are highly interested and partisan witnesses. The first informant has resorted to exaggeration and embellishments at the time of giving evidence at the trial. The prosecution story that appellant Nos. 1, 3, 5 and accused Nos. 7 and 9 obstructed the first informant near village Karodi with an intention to assault him, to say the least, is illogical and absurd. If, in fact, they were actuated by the common object of assaulting the first informant, the isolated spot on the road near Karodi was the ideal place for achieving the object. Explanation of the first informant that he escaped by promising to have a settlement at the village is highly improbable in the circumstances of the present case. An attempt made by the first informant to explain other anomalies during his evidence at the trial, further casts a shadow of doubt on the veracity of his evidence. Original version of the incident narrated in the FIR by PW 1 is that he and appellant No. 1 inflicted blow on his head by iron rod at the commencement of the incident. PW 2 thus tried to shield him from further attack. At this juncture, appellant No. 3 dealt blow with gupti on the stomach of PW 2 causing bleeding injury. The Investigating Officer speaks of the discovery of Sattur at the instance of appellant No.3. It is the prosecution case that Sattur is the weapon used by appellant No.3 to inflict abdominal injury to PW 2. In an attempt to show that the injury to PW 2 is caused by Sattur, the first informant deviated from the original version, by mentioning that on receipt of the blow on the head, he fell down. His brother then shielded him by lying on his person and was attacked by appellant No.3. Similar variation is introduced by PW 2 at the trial by testifying that appellant No.3 used Sattur for inflicting abdominal injury. His brother then shielded him by lying on his person and was attacked by appellant No.3. Similar variation is introduced by PW 2 at the trial by testifying that appellant No.3 used Sattur for inflicting abdominal injury. This improvement is resorted to for the reason that it is not possible to inflict the abdominal injury of the nature suffered by PW 2, in standing posture, by using Sattur. This attempt is however of no avail to the prosecution in view of the admission of Dr. Yermalkar (PW 5) during his cross-examination that, the abdominal injury suffered by PW 2 cannot be caused by Sattur (article 13), as the front side of the weapon is blunt. Referring to this admission of the Medical Officer, learned counsel for the appellant has rightly pointed out that the evidence of discovery and consequently the evidence of PWs 1 and 2 regarding use of Sattur by appellant No.3 cannot be believed in view of the admission of PW 5. In fact, it was not necessary for the witnesses to make such an improvement as the absence of the discovery of the weapon of offence does not affect credibility of their evidence in view of the corroboration from the medical evidence on record. Be that, as it may; the injuries of Buvasaheb are also not properly explained by the prosecution. Admittedly, Buvasaheb reached the scene of occurrence at the end of the episode. No reference is made to the injuries of Buvasaheb in the first information report. All other injured went to the Hospital on the day of the incident and were treated by the Medical Officer. Buvasaheb, however, went to the Hospital two days after the occurrence on 1-8-2002 and was examined by Dr. Kulkarni (PW 4). Injury certificate (Exh. 67) shows that Buvasaheb sustained oblique incised wound on the right lower iliac region and had complained of pain over the left lower chest. He is not examined by the prosecution. In a bid to explain injury suffered by Buvasaheb. PW 1 made an improvement by mentioning in his evidence that on arrival of Buvasaheb appellant No.3 stabbed him in the stomach by gupti. It is difficult to place reliance on such an improvement made at the time of the trial. He is not examined by the prosecution. In a bid to explain injury suffered by Buvasaheb. PW 1 made an improvement by mentioning in his evidence that on arrival of Buvasaheb appellant No.3 stabbed him in the stomach by gupti. It is difficult to place reliance on such an improvement made at the time of the trial. The trial Judge has also accepted contention of the defence that evidence of PW 1 and 2 suffers from the vice of material omissions and improvements. In this view of the matter, only that portion of the evidence of these witnesses, which receives independent corroboration, can be accepted. The attack on the first informant is opened by appellant No.1. PW 2 then immediately intervened and was attacked by appellant No.3. The evidence of PW 1 and PW 2 in respect of this phase of the incident receives corroboration from the medical evidence and the report of the Chemical Analyzer, that the clothes of appellant No.3 were stained with blood of PW 2. Therefore, the evidence of these witnesses regarding the acts of appellant Nos. 1 and 3 can be safely accepted. In fact, both these witnesses have not attributed particular acts to other accused. The first informant has merely stated that other accused kicked and fisted him while he was lying on the ground. This vague assertion of the first informant is rightly discarded by the Trial Judge. There is no whisper about the acts of appellant No. 5 in the evidence of any of the prosecution witnesses. His case stands on par with the accused Nos. 1, 2, 7 and 9. Thus, acceptance of his presence and his participation in the incident, by the trial Judge does not appear to be justified. Taking into consideration totality of the circumstances, in our considered opinion, the prosecution has failed to establish complicity of appellant No. 5 in the commission of the offence. As a necessary corollary, it follows that the prosecution has failed to establish existence of an unlawful assembly. In this view of the matter, the accused are liable for only for their individual acts. No overt acts are attributed to 'appellant Nos. 2 and 4 by the first informant or PW 2. It is, therefore, not permissible to make out a new case against them on the basis of conjectures or surmises. In this view of the matter, the accused are liable for only for their individual acts. No overt acts are attributed to 'appellant Nos. 2 and 4 by the first informant or PW 2. It is, therefore, not permissible to make out a new case against them on the basis of conjectures or surmises. These two appellants are, therefore, entitled to the benefit of doubt Learned Trial judge has not given cogent reasons for his conclusion regarding the complicity of appellant Nos. 2, 4 and 5. In the absence of reliable evidence to establish their complicity, it is not possible for us to uphold their conviction. Taking overall view of the matter, in our considered opinion, the prosecution has failed to establish formation of an unlawful assembly by the accused with the object of assaulting PW 1 and his brothers. The accused are, thus, liable for their individual acts. The evidence of PW 1 and 2 proves assault by appellant No.1 on PW 1 by means of an iron rod which is a lethal weapon and causing of abdominal injury to PW 2 by appellant No.3. In absence of cogent evidence the charge of causing injury to Buvasaheb levelled against appellant No.3 must also fail. 18. Learned counsel for the appellants has argued that conviction of appellants for the offence under section 307 of the Indian Penal Code is not justified as there is no evidence to establish intention of appellant No. 2 to commit murder of PW 2. In support of this contention reliance is placed on the ruling of Jharkhand High Court reported in 2006 CriLJ. 291. In that case, the appellant had accompanied Bansi MandaI to the Hospital and he could have easily killed the victim if he had the intention to commit murder, weighed with the Court to come to the conclusion that offence under section 307 is not made out. As the facts of that case are entirely different, this ruling does not help the appellant. To bring the case within the ambit of section 307 the prosecution has to show that the act complained of was done with the intention of causing death. Intention of the assailant is to be ascertained by taking into consideration all the attending circumstances including the site selected for inflicting the injury and the viciousness of the assault. To bring the case within the ambit of section 307 the prosecution has to show that the act complained of was done with the intention of causing death. Intention of the assailant is to be ascertained by taking into consideration all the attending circumstances including the site selected for inflicting the injury and the viciousness of the assault. To justify conviction under section 307 an intent coupled with some overt act for its execution is sufficient. In the present case, appellant No.3 dealt a blow on the abdomen of PW 2 with such a vicious force that the intestines along with the omentum had protruded from the abdominal injury inflicted upon him. Evidence of PW 5 shows that but for the timely treatment, the death might have ensued. This evidence coupled with the established enmity between the parties, justifies conclusion of the trial Judge that appellant No.3 launched assault on PW 2 with the requisite intention of causing his death. In this vie~ of the matter, we do not find any fault with the finding of the trial Judge that appellant No. 2 is guilty of the commission of offence punishable under section 307 of the Indian Penal Code. In the absence of the existence of unlawful assembly the accused are responsible for their individual acts. Appellant No. 1 is, therefore, guilty of the offence punishable under section 324 of the Indian Penal Code and appellant No. 3 is guilty of the offence punishable under section 307 of the Indian Penal Code. In this view of the matter, the appeal is partly allowed. The order of conviction and sentence is modified. Conviction of appellants for the offences punishable under sections 147, 148,324 read with section 149 and 307 read with section 149 of the Indian Penal Code is set aside. Appellant Nos. 2, 4 and 5 .are acquitted of all the offences with which they are charged. Conviction of appellant No. 1 for the offence punishable under sections 324 of the Indian Penal Code and sentence of RI for one year and fine of Rs. 100 in default to suffer RI for 7 days imposed on him and conviction of appellant No.3 for the offence punishable under section 307 and the sentence of RI for five years and fine of Rs. 1000 in default sentence of imprisonment for one month imposed on him by the trial Court, is confirmed. 100 in default to suffer RI for 7 days imposed on him and conviction of appellant No.3 for the offence punishable under section 307 and the sentence of RI for five years and fine of Rs. 1000 in default sentence of imprisonment for one month imposed on him by the trial Court, is confirmed. Appellant Nos. 1 and 3 shall surrender to bail. Bail bonds of other appellants are cancelled. The appeal is partly allowed in the above terms. Appeal partly allowed.