DHIRENDRA MISHRA, J. ( 1 ) THE accused/ appellants have preferred this Criminal appeal under Section 374 (2) of the Code of criminal Procedure against the impugned judgment dated 26. 4. 1999 passed by Additional sessions Judge, Ambikapur in Sessions Trial No. 242/1997 whereby they have been convicted under Sections 147, 148, 302/ 149 and 324/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years each under Sections 147 and 148, imprisonment for life under section 302/149 and rigorous imprisonment for two years under Section 324/149 of the indian Penal Code. All the sentences have been directed to run concurrently. ( 2 ) CASE of the prosecution in brief is that on 20. 4. 1997 at 8 a. m. Premlata Devi (PW-4), the mother of the deceased persons lodged a report Ex. P-5 in Police Station lakhanpur to the effect that she is resident of village Sargawan, her father-in-law was the proprietor, the villagers regarded them like king and whenever they were in trouble, they used to make complaints to her and their grievances were resolved in the panchayat itself by imposing penalty on the wrongdoers. According to the complaint the said Panchayat was convened and headed by complainant herself and her two sons namely Karunendra and Rupendra, however complainant's husband never participated in it. On 18. 4. 1997 Mankunwar Bai, the sister of one Sukhram Kanwar had complained to Premlata Devi against her brother and sister-in-law and acting upon the said complaint a Durbar was convened which was attended by younger son of the complainant and other villagers as well. deceased Rupendra, however, sent a message to Sukhlal Kanwar and his wife to be present in the Durbar but they did not turn up and thus the Durbar had risen. The complainant further stated in the complaint that in the night she slept in her house, her middle son slept in verandah whereas her younger son Rupendra slept in a room. Her mentor (Guru) namely Bhairon Puri Baba ji, resident of Ghatbarra was also staying in their house and was sleeping beside her middle son. The complainant further stated in the complaint that in the night she slept in her house, her middle son slept in verandah whereas her younger son Rupendra slept in a room. Her mentor (Guru) namely Bhairon Puri Baba ji, resident of Ghatbarra was also staying in their house and was sleeping beside her middle son. In the morning at about 5 A. M. on hearing commotion and abuses being hurled, she came out and saw that Sukhlal kanwar, Shri Panika, Subhash Panika, gyan Panika, Kothya Kanwar, Ujendra kanwar, Jagdish Kanwar and his both sons, (one named Haribhajan and the name of the other she did not know) Deena Kanwar shivbaran Kanwar, Jaipal Nai, Sukhlal Nai and others who were holding sword, Lathi, spear (Barchha), Tabbal etc. and shouting that 'where is your son, produce him, today, we will finish him". They entered inside the house pushing the door by kicks, dragged out deceased Rupendra from the room and took him with them towards the village, whom she could not stop. Accused Kothya assaulted him by spear on his head and chin. Thereafter, she along with her middle son karunendra went towards the village to save her younger son. However, when her middle son Karunendra went to inform the village Patel about the incident, accused jagdish Kanwar, his two sons and his younger brother assaulted him with axe and lathi. When the complainant went to the house of accused Gyan Panika to save her younger son, she saw that accused Shri panika and Subhash Panika had killed her son by assaulting with axe. She, then came back helter skelter to her house and narrated the incident to Baba Ji and Sej Bai and thereafter she went to the police station to lodge the report along with village chowkidar namely Sandhudas. On the basis of this information given by the complainant merg intimation of Ex. P-3 with respect to the death of Rupendra and Ex. P-4 with respect to the death of Karunendra were registered at 8 a. m. on the same day. Based on the merg intimation Crime No. 58/ 1997 was registered and the police proceeded to the place of occurrence and took up investigation. ( 3 ) DURING investigation the photographs of the deceased persons Ex. P-6, Ex. P-7 and ex. P-8 were taken. Inquest over the dead bodies of deceased Karunendra and rupendra was performed vide Ex. Based on the merg intimation Crime No. 58/ 1997 was registered and the police proceeded to the place of occurrence and took up investigation. ( 3 ) DURING investigation the photographs of the deceased persons Ex. P-6, Ex. P-7 and ex. P-8 were taken. Inquest over the dead bodies of deceased Karunendra and rupendra was performed vide Ex. P-10 and p-11 respectively after due notice to the witnesses in their presence. On the memorandum of the accused Harbhajan (Ex. P-18) blood-stained axe, blood-stained T-shirt and blood-stained Lungi were taken into possession vide Ex. P-19. Similarly on the memorandum of Rajendra (Ex. P-20) cane was taken into possession vide Ex. P-21. On the memorandum of Kothya (Ex. P-22)blood-stained Barchha was taken into possession vide Ex. P-23. On the memorandum of Ujendra (Ex. P-24) Barchha was taken into possession vide Ex. P-25. Spot map Ex. P-26 was prepared by Investigating Officer m. K. Singh. Plain and blood-stained soil, sword lying near the dead body of karunendra were taken into possession vide ex. P- 27. Similarly, plain and blood-stained soil and sword lying near the dead body of rupendra were taken into possession vide ex. P-28. Site plan of Ex. P-29 was got prepared by Sumanram, Halka Patwari PW-10. Dead body of deceased Rupendra was sent for autopsy vide Ex. P-31 and that of deceased Karunendra was sent vide Ex. P-32. Thereupon, Dr. A. R. Jayant PW-7 conducted post-mortem examination and submitted the post-mortem reports vide Ex. P-13 and Ex. P-14 respectively. In reply to the query of Ex. P-55 and Ex. P-56 the doctor gave his opinion vide Ex. P-15 and Ex. P-16 that the injuries present over the deceased persons could be caused by axe and the blood present over it may be human blood and the injuries may be homicidal, however, he advised for expert opinion of the same. Similar opinion was given by the doctor vide Ex. P-17 that the injury No. 3 present over the body of Karunendra may be caused by cane seized from Rajendra. The complainant was also sent for medical examination to Primary Health Centre, Lakhanpur vide Ex. P-33 where Dr. I. D. Bhatnagar (PW-12) examined her and gave his report Ex. P-58. In reply to the query of the Investigating officer Dr. P-17 that the injury No. 3 present over the body of Karunendra may be caused by cane seized from Rajendra. The complainant was also sent for medical examination to Primary Health Centre, Lakhanpur vide Ex. P-33 where Dr. I. D. Bhatnagar (PW-12) examined her and gave his report Ex. P-58. In reply to the query of the Investigating officer Dr. Bhatnagar opined that the injuries present on the person of the complainant Premlata Devi could be caused by sharp edged weapon as also by hard and blunt object. The seized articles such as plain and blood-stained soil, clothing of the accused persons, spear etc. were sent for chemical examination to Forensic Science Laboratory, sagar vide Ex. P-51. Report of the Forensic Science Laboratory is Ex. P- 54. Report of the serologist and chemical examiner is Ex. P-52. X-ray report of the skull, mandible and chest of complainant premlata Devi are collectively marked as Ex. P-59. ( 4 ) AFTER completing the investigation charge-sheet was filed in the Court of judicial Magistrate First Class, Ambikapur who in turn committed the case to the Court of sessions Judge, Ambikapur from where learned Additional Sessions Judge, ambikapur received the same on transfer for trial. Charges under Sections 147, 148, 302/149 and 324/149 of the IPC were framed against the appellants who abjured their guilt. ( 5 ) THE prosecution in order to establish the charges framed against accused/appellants examined in all 12 witnesses. Statements of the accused persons were also recorded under section 313 of the Code of criminal Procedure in which they denied the circumstances appearing against them in the prosecution case and pleaded that they have been falsely implicated in the case due to animosity. The appellants also examined Baba Bhairon Puri as DW-1 in their defence. ( 6 ) AFTER hearing counsel for the parties the trial Court has convicted and sentenced the accused persons as mentioned in paragraph No. 1 of this judgment. ( 7 ) HOMICIDAL death of deceased Rupendra and Karunendra is not in dispute. Similarly, the injuries present over the body of the complainant have also not been disputed by the accused persons. Even otherwise, from the statement of Dr. ( 7 ) HOMICIDAL death of deceased Rupendra and Karunendra is not in dispute. Similarly, the injuries present over the body of the complainant have also not been disputed by the accused persons. Even otherwise, from the statement of Dr. Jayant who conducted the post-mortem examination over the dead bodies of the deceased persons and the injury reports describing the injuries as under and also the opinion given by him, the homicidal death of both the deceased persons is established: injuries found on the body of deceased rupendra: 1. incised wound 6" x 2" x 3" on left frontal side of skull bone 2. incised wound 5" x 2" x 3" on right frontal skull bone 3. incised wound 5" x 1" x 2" on left temporal skull bone 4. incised wound 1" x 1/2" x 1" left side of ear cause of death is opined to be coma due to intracranial haemorrhage and the death is homicidal in nature. Injuries found on the body of deceased karunendra: 1. incised wound 2" x 2" x 1" in neck on right side of ear 2. incised wound 5" x 2" x 3" in neck behind right ear 3. bruise 6" x 2" on the right side of back 4. incised wound 3" x 2" x 1 on the right shoulder cause of death is opined to be coma due to excessive haemorrhage from wounds and the death is homicidal in nature. Similarly, Dr. Bhatnagar who examined complainant Premlata Devi has found one lacerated wound bone deep 2" x 1/2" over occipital region caused by hard or blunt object. One incised wound over chin 2 x 1-1/2 c. m. caused by sharp weapon. Swelling over mandible was present. A bruise over sterno clavicular function caused by hard and blunt object. Pain and tenderness over back caused by hard and blunt object. In the X-ray report of Premlata Devi no bony injury was detected. ( 8 ) LEARNED Additional Sessions Judge has convicted the appellants by recording the findings as under: (a) That, the accused persons at the time of incident formed unlawful assembly with a common object to cause death of Rupendra and karunendra intentionally. In the X-ray report of Premlata Devi no bony injury was detected. ( 8 ) LEARNED Additional Sessions Judge has convicted the appellants by recording the findings as under: (a) That, the accused persons at the time of incident formed unlawful assembly with a common object to cause death of Rupendra and karunendra intentionally. Members of the said unlawful assembly namely Haribhajan rajendra, Kothya alias Mehato and Subhash Chandra were armed with lethal weapons which was known to the rest of the accused persons and therefore, all the members of the unlawful assembly are jointly responsible for each and every act. (b) That, all the members of the said unlawful assembly also caused simple injuries over the person of the complainant Premlata Devi by sharp edged weapon though it is not clear as to who in fact caused injury. However, all the accused persons are jointly responsible as the injuries were caused by the unlawful assembly while they were involved in rioting. (c) That, though the deceased persons and the complainant Premlata devi were the aggressors, the appellants had no right to commit murder of two deceased persons and the acts of the appellants cannot be termed to have been done for the purpose of private defence. ( 9 ) LEARNED counsel for the appellants submits that the above findings of the learned trial Court are based on the statements of PW-4 Premlata Devi, the injured eyewitness, PW-3 Mohan Nath and PW-6 rakesh Singh, the father of the deceased persons. The trial Court has also based the conviction on the recovery of weapons of offence and clothing worn by the accused persons at the time of incident which were found stained with blood. It is submitted that from the perusal of the statement of pw-4 Premlata Devi it is evident that she is not a reliable witness as her statement stands contradicted on material particulars from the merg intimation Ex. P-3 and Ex. P-4 of the deceased persons as also from the first Information Report of Ex. P-5 and her diary statement of Ex. D-2. So far as PW-3 mohan Nath is concerned, this witness is a cooked up witness as his diary statement has been recorded on 30. 5. 1997 i. e. more than a month after the incident without any explanation. The material omissions and contradictions are present in his statement. P-5 and her diary statement of Ex. D-2. So far as PW-3 mohan Nath is concerned, this witness is a cooked up witness as his diary statement has been recorded on 30. 5. 1997 i. e. more than a month after the incident without any explanation. The material omissions and contradictions are present in his statement. PW-6 Rakesh Singh is not the eyewitness to the incident rather he is the witness to the fact that his wife Premlata Devi informed him immediately after the incident that his son Rupendra has been done to death in the house of Gyan Das. He further submits that the prosecution witnesses have suppressed the genesis of the occurrence. The defence of the appellants that the complainant and her deceased sons had called a meeting a day before the incident and in that meeting accused Sukhlal and his wife did not come to attend the meeting despite being called by them which enraged the complainant and her two deceased sons who thereafter went towards village armed with swords with an object to teach lesson to the villagers and assaulted Shree Chand and subhash as a result of which they sustained injuries and in the process other villagers assaulted them, is established. However, the actual persons involved in the crime have been left out and the influential persons of the village have been falsely involved in the crime in question. It is argued that the trial Court even after reaching the conclusion that the deceased persons and premlata were the aggressors who went in the village armed with swords has erroneously held that the accused persons formed unlawful assembly with an object to cause death of deceased persons and in pursuance of the same Rupendra and Karunendra were killed. ( 10 ) ON the other hand learned counsel for the respondent/state supporting the impugned judgment of the trial Court argues that PW-4 Premlata Devi is an injured eyewitness who has categorically described the role played by the appellants in committing the crime in question. Her statement finds corroboration from the statement of PW-3 Mohan Nath, PW-6 Rakesh singh as also from the promptly lodged FIR. The weapon of offence and clothing discovered on the memorandum of accused persons were stained with blood and in these circumstances the trial Court has not committed any illegality or infirmity in convicting and sentencing the accused/appellants as mentioned above. The weapon of offence and clothing discovered on the memorandum of accused persons were stained with blood and in these circumstances the trial Court has not committed any illegality or infirmity in convicting and sentencing the accused/appellants as mentioned above. ( 11 ) WE have heard learned counsel for the parties and perused the material available on record including the documentary and oral evidence as well as the impugned judgment. ( 12 ) IN order to appreciate the arguments of the counsel for the respective parties the evidence of PW-4 Premlata Devi, the injured eyewitness has to be closely scrutinized ( 13 ) IT is true that Premlata Devi is a highly interested witness being the mother of the deceased persons. She had inimical relations with the appellants. In her deposition she has clearly stated that the incident is of around 5 a. m. on that day she along with both her deceased sons were in her house, she woke up at 5 a. m. and went outside, somebody pelted stone at her due to which she cried and on hearing the cries her son Rupendra came running. As soon as he came there, the assailants grabbed him. Among them Subhash, Shri, Gyan cas, jagdish, Haribhajan, Rajendra, Kothya, mehto, Jaipal. Shivpal, Dina and Shivbaran encircled her son and took him towards the village. She followed them shouting "save save". They took her son inside the house of gyan Das. She also went inside his house, at that time Ujjain assaulted on neck by spear, Jaipal caught hold of his legs. Kothya mounted on his back, Subhash, Gyan Das and Shree were assaulting her son. Her son screamed at her and asked her to go thereafter, she came out and in the meanwhile her son Karunendra came to her, she asked him that his younger brother has been killed. Thereupon her elder son went inside the house to see his brother. After seeing her son, she and Karunendra proceeded towards the house of Patel, however, when they were returning, Ujjain assaulted her middle son by battle axe and all other accused persons started pelting stones at her. Thereafter, she proceeded to the police station. On being confronted with the police report of Ex. After seeing her son, she and Karunendra proceeded towards the house of Patel, however, when they were returning, Ujjain assaulted her middle son by battle axe and all other accused persons started pelting stones at her. Thereafter, she proceeded to the police station. On being confronted with the police report of Ex. P-5 she denied the fact that baba Bhairon Puri, her Guru who resided at Ghatbarra had come to her house in the evening of Friday and was sleeping in her house, dragged outside from the verandah; son Haribhajan and younger son assaulted by axe and fell him down; narrated the incident to Baba Ji went to lodge the report with the village Kotwar. Thus from the close scrutiny of the evidence of this witness we are of the considered opinion that she has contradicted Ex. P-5, the FIR which was lodged by her promptly after the incident on material particulars, the particulars given by her regarding the weapon of offence carried by the accused persons at the time of incident is at variance with the version given by her in the FIR. She has also stated in paragraph no. 16 of her deposition that apart from the accused persons others were also with them. She has also denied the factum of having mentioned in the merg intimation Ex. P-4 that Haribhajan by axe and his brother by lathi assaulted Karunendra as a result of which he died. She further denied the portion of FIR Ex. P-5 that she tried to stop but Kothya assaulted by spear and lathi on head and chin. In paragraph No. 11 of her deposition she has stated that she had given names of the accused persons on a plain paper. Thereafter, she was sent to Dr. Bhatnagar by the Police Inspector. Thus after closely scrutinizing the evidence of this witness we find that in the cross examination she has virtually denied the total statement which she made earlier in her diary statement of Ex. D-2 and FIR Ex. P-5 as also the merg intimation of Ex. P-3 and P-4. That apart, she has denied the presence of Baba Bhairon Puri in her house on the date of incident though this fact finds place in the promptly lodged FIR as also in the diary statement of Ex. D-2. D-2 and FIR Ex. P-5 as also the merg intimation of Ex. P-3 and P-4. That apart, she has denied the presence of Baba Bhairon Puri in her house on the date of incident though this fact finds place in the promptly lodged FIR as also in the diary statement of Ex. D-2. She has further denied that after the incident she went back to her home and narrated the incident to baba Bhairon Puri though the same is mentioned in the FIR. Thus from the statement of this witnesses we are of the considered opinion that she has deliberately suppressed the genesis of the occurrence the manner in which the incident occurred and the identity of the participants. Her statement is full of embellishments. ( 14 ) SO far as the statement of PW-3 mohan Nath is concerned, he has stated that the incident took place on the eve of navratri. When he was proceeding to harvest the wheat crop, it was the time of sun rise, he heard commotion from the village side, he thought that the same must be due to Rohit, son of Akalu who is like a mad, when he reached Pipar Para, he saw that gyan Das, Shree, Subhash, Jagdish, rajendra, Dina, Shivbaran, Kothya, Jaipal, shiv Pal and Sukhlal dragged Rupendra into the house of Shree and thereafter, they closed the door, they were saying that they would kill him as he was holding Panchayat. From behind mother of Rupendra and karunendra came shouting "save save". They were striking the door, Rupendra was bleeding from mouth and head, thinking that there was possibility of death, he went to his house. He has further stated that shree, Subhash and Bhajan were holding axe and others were holding lathi. Afterwards, he came to know that Rupendra and karunendra have been murdered. In paragraph No. 8 this witness has stated that house of Agar Sai is adjacent to the house of Shree. When he reached village from the field, he saw that 10-12 persons of the village were assaulting Rupendra Singh near the house of Agar Sai. He has further stated that the Police Inspector came at about 10-11 a. m. on the same day; however, he did not narrate the incident to him. When he reached village from the field, he saw that 10-12 persons of the village were assaulting Rupendra Singh near the house of Agar Sai. He has further stated that the Police Inspector came at about 10-11 a. m. on the same day; however, he did not narrate the incident to him. On being asked by the Court, he replied that from the place of incident he ran towards his home, he did not go the house of Karunednra and rupendra to inform about the incident. He did not disclose the incident to his wife and other neighbours that the deceased karunendra was being beaten. In paragraph No. 12 he has further stated that he only saw scuffle and did not see Marpeet. He did not see as to who assaulted by axe and who by lathi. He only saw them holding axe and lathi. He has denied "a to A, B to B and C to C" portion of Ex. D-1. In paragraph No. 11 this witness has stated that his statement was recorded in the house of karunendra 4 days after the incident, however, from the perusal of diary statement of this witness Ex. D-1 we find that his statement was recorded only on 30. 5. 1997. The explanation of the Investigating Officer PW-11 for late recording of the statement of mohan Nath that he had gone to Chirmiri after the incident and returned after a month is belied with the statement of this witness who has stated that his statement was recorded 4 days after the incident in the house of Karunendra. From perusal of statement of PW-3 we find that except his corroborating the statement of PW-4 premlata Devi only with respect to her presence on the place of incident, rest of the statement is at variance with her statement. Delay in recording the statement of this witness creates serious doubt about the presence of this witness at the place of incident. Even otherwise, he has given a contradictory version about the incident and therefore, we are of the considered opinion that the statement of this witness is of no help to the prosecution case. So far as the evidence of PW-6 Rakesh Singh is concerned, he being the father of deceased persons and husband of the complainant is a highly interested witness. He is not the eyewitness to the incident. So far as the evidence of PW-6 Rakesh Singh is concerned, he being the father of deceased persons and husband of the complainant is a highly interested witness. He is not the eyewitness to the incident. He has stated that premlata Devi narrated the incident to him, whereupon both of them again went to the place of incident and saw the dead body of the deceased lying in the house of Gyan Das. They spotted the dead body of Karunendra and saw the accused persons standing there holding sword, axe etc. The account given by this witness is at variance with the statement of PW-4 Premlata Devi who never stated that she narrated the incident to her husband and thereafter both of them again went to the place of the incident and saw the dead bodies of their sons, and also the presence of accused persons. ( 15 ) IF we consider the defence taken by the accused persons that both the deceased persons and the complainant were terror in the village, they used to hold Durbars to settle the disputes in the village, it comes out that the villagers were in fear. The report of Ex. D-4 was lodged by them one day before the incident in police station lakhanpur which is admitted by PW-11 m. K. Singh, SHO. On the date of incident also the complainant along with her two sons armed with sword went to the village and assaulted accused Shree Chand by sword who sustained injuries described in ex. D-5. Defence taken by the appellants is also established by the statement of DW-1 baba Bhairon Puri whose presence in the house of the complainant at the time of incident is mentioned in Ex. P-5 FIR. This witness has categorically stated that he had gone to the house of Premlata Devi, at that time, her sons were murdered. On the previous day Durbar was held at Sati place. However, some persons did not attend durbar, he also attended Durbar and because of the absence of Sukhlal and his wife, durbar had risen. He slept in the house of rani Sahiba in the night, her son Lallu also slept beside him whereas the other son and rani Sahiba were sleeping elsewhere. However, some persons did not attend durbar, he also attended Durbar and because of the absence of Sukhlal and his wife, durbar had risen. He slept in the house of rani Sahiba in the night, her son Lallu also slept beside him whereas the other son and rani Sahiba were sleeping elsewhere. In the morning Premlata woke up, took out sword, woke up her sons and told them that she was going to kill the persons who did not obey her command. Both her sons followed her. He tried to make Ranisahiba understand but she did not heed to his advice. When Rani Sahiba returned, he found that her hands were stained with blood and she told him that her both sons have been killed. He further stated that his statement was recorded by the Police. There is no cross examination of this witness on the abovementioned facts. PW-11 M. K. Singh sho has admitted in paragraphs 16 and 17 of his deposition that Panchayat was convened a day before the incident and on investigation a fact has been disclosed that premlata Devi and her sons Rupendra and karunendra who are ex-proprietors feeling insulted by the absence of certain persons in the Panchayat, with a view to know reason for their absence they had gone towards the place of incident. This fact is also mentioned in the charge-sheet. He has further admitted that during investigation he found that Karunendra and Rupendra had gone to the place of occurrence armed with swords. He has further admitted that a day before the incident at about 10 p. m. the villagers came to the police station and gave report of Ex. D-4. Therefore, on the close scrutiny of the statement of Premlata Devi, mohan Nath and Rakesh Singh, we have no hesitation in reaching the conclusion that they are deliberately suppressing the origin of the occurrence and they are not coming with true facts. ( 16 ) DEFENCE version also finds support from the statement of PW-1 Kalyan Singh who has stated that on the date of incident at about 4 a. m. he was in his house, he came out on hearing commotion and saw that rupendra and Karunendra were coming holding swords and entered the house of shree Chand and Rupendra assaulted Shree chand on his leg by sword. Thereupon three villagers came there, entered the house and assaulted Rupendra and fled from there. However, he could not recognise them as it was dark. He was declared hostile by the prosecution. In his lengthy cross examination, the prosecution could not elicit any incriminating evidence against the appellants and this witness has also corroborated the defence version that the deceased persons were terror in the village and they were extracting huge amount in the name of penalty and they were involved in a murder case also. He has further stated that he could not recognise the person who assaulted the deceased. However,. he would have recognised had the assailants been amongst the accused persons. Similar is the statement of pw-2 Phulsai who has also been declared hostile by the prosecution. ( 17 ) WE have already held that the statement of PW-4 Premlata Devi is at variance with her earlier statement on material particulars such as identity of accused persons, weapon of offence held by them. She has also deliberately suppressed the presence of independent eyewitness Baba Bhairon Puri and therefore, their version does not inspire confidence. ( 18 ) THE Court below has convicted the appellants with the aid of section 149 of the ipc. It is settled law that in order to attract section 149 of the IPC the prosecution has to establish that (i) the offence was committed by a member of unlawful assembly with common object (ii) member of the assembly knew that it was likely to be committed. Unless these conditions are satisfied, the accused persons cannot be convicted with the aid of section 149 of the IPC. ( 19 ) IN the present case, as we have already held, the incident occurred when the complainant and the deceased persons armed with sword went to the place of occurrence and assaulted Shree Chand by sword and the evidence of PW-4 Premlata devi and PW-3 Mohan Nath does not inspire confidence. Court below has also arrived at the conclusion that the complainant party was the aggressor as they reached the place of incident armed with sword and opened assault and therefore, we are of the considered opinion that all the abovementioned ingredients to attract Section 149 of the IPC have not been established by the prosecution in this case. Court below has also arrived at the conclusion that the complainant party was the aggressor as they reached the place of incident armed with sword and opened assault and therefore, we are of the considered opinion that all the abovementioned ingredients to attract Section 149 of the IPC have not been established by the prosecution in this case. Therefore, the trial Court was not justified in convicting the appellants with the aid of Section 149 of the IPC. There is material discrepancy with respect to the account given by PW-4 Premlata Devi and PW-3 Mohan nath with respect to participation of accused Gyan Das, Shree Chand, Subhash, haribhajan and for this reason, their statements do not inspire confidence. Even the trial Court has not attributed any overt act to any individual in the impugned judgment and the participation of Haribhajan, rajendra Prasad, Kothya and Subhash chand has been inferred only on the basis of recovery of blood stained axe and wearing apparels vide Ex. P-19 under memorandum Ex. P-18, recovery of cane vide Ex. P-21 under memorandum Ex. P-20, recovery of blood-stained spear vide Ex. P-23 under memorandum Ex. P-22, blood-stained axe vide Ex. P-25 under memorandum Ex. P-24. As the articles seized from these accused persons were found to be stained with blood as per serologist's report Ex. P-52, the same has been proved by SHO PW-11. Fekusingh pw-8 and Omprakash PW-9 are the witnesses of memorandum and seizure in pursuance of the same. Both these witnesses have not supported the case of the prosecution and turned hostile. In their cross-examination also the prosecution could not elicit or extract anything which supports the case of the prosecution and, thus the seizure of weapons of offence and clothing of the accused persons has not been proved. Even otherwise, all the seizures of Ex. P-19, ex. P-21 and Ex. P-25 have been effected on the place where the memorandum was recorded and therefore, the same cannot be termed as discovery in pursuance of the memorandum given by these accused persons. Even otherwise, all the seizures of Ex. P-19, ex. P-21 and Ex. P-25 have been effected on the place where the memorandum was recorded and therefore, the same cannot be termed as discovery in pursuance of the memorandum given by these accused persons. In the matter of Balwant Singh v. State of Haryana in paragraph No. 13 the supreme Court has held that where the prosecution has not disclosed true genesis of the occurrence evidence disclosing that occurrence took place in a manner and at a different place in which three members of the defence party also suffered serious injuries in these circumstances the appellants and other co-accused were held at least entitled to the benefit of doubt. ( 20 ) IN the present case also we have held that the version of the complainant is doubtful as also the statement of Mohan Nath whose diary statement was recorded after more than a month of the incident. As already held, the prosecution has deliberately suppressed the genesis of the occurrence and the manner in which the incident took place. The defence version is more probablised and the possibility of other villagers participating in the incident cannot be ruled out. ( 21 ) IN the aforesaid circumstances we are of the considered opinion that the trial Court was not justified in relying upon the statements of PW-4 Premlata Devi, PW-3 Mohan nath and PW-6 Rakesh Singh for holding the appellants guilty of the offence under sections 147, 148, 302/149 and 324/149 of the IPC and it ought to have extended the benefit of doubt to the appellants. ( 22 ) IN the result, the appeal filed by accused-appellants Haribhajan, Rajendra, gyandas, Shreechandra, Kothya alias mehto, Subhashchandra, Ujendra Prasad, shivpal Ram, Deenanath, Jaipal Ram, jagdish, Sukhlal and Shivbaran Ram is allowed, the impugned judgment of conviction under sections 147, 148, 302/149 and 324/ 149 of the IPC is set aside. They are directed to be set at liberty forthwith if not required in any other case. Appeal allowed. --- *** --- .