JUDGMENT : S. K. KULSHRESTHA, J. The above appeals have been filed against the judgment dated 27th August, 1998 of the learned Addl. Sessions Judge, Shujalpur, in Sessions Trial No. 225/1994 by which the appellants Premsingh @ Premnarayan @ Pappu has been convicted under section 302 of the Indian Penal Code, while the other accused under section 302 read with section 149 thereof and each has been sentenced to imprisonment for life and fine of Rs. 500/-. 2. The appellants were tried with four others for the offences under sections 148, 302, 324 r/w. section 149 of the Indian Penal Code on the ground that armed with lethal weapons, these persons formed an unlawful assembly on 29-6-1994 with the common object to cause death of Jatal Singh and injuries to Jagdish, Ashok, Bhagirath, Karansingh and Dilip. During trial, original accused No. 9 Jagdish Prasad died and the case abated against him while co-accused Babulal, Kanhaiyalal and Bilal Khan were acquitted by the Court. 3. Since both the appeals assail the same judgment, they are being decided by this common order. 4. The prosecution story, in brief, is that Dilip Kumar (PW 6) had taken the land of Pannalal on crop share basis. According to the earlier slope, the water of this field used to drain through the field of accused Ramcharan, but Ramcharan made an embankment with the result the water started stagnating in the field of Dilip Kumar. He, therefore, protested against the act of Ramcharan. On account of the said protest, the accused persons armed with various weapons came to the house of the deceased near his well and stating that they would kill them, accused Jagdish stabbed Dilip (PW 6) in the back, accused Prem stabbed him with a Gupti in the abdomen, accused Goria stabbed his brother Jagdish (PW 8) with a Gupti. Complainant Dilip tried to run away but after a short distance, he staggered and slumped. Accused Premsingh @ Pappu assaulted Ashok (PW 7), while Jatal Singh was stabbed by Pappu and Goria by means of Guptis. It was also alleged that accused Ramcharan had assaulted Bhagirath (PW 3) with a Spade, while Kanhaiyalal armed with a Gun was shouting that they be done to death otherwise he shall himself shoot them. During this altercation, Bilal Khan also assaulted brother of Dilip and accused Babu assaulted Jatal Singh with an axe. It was also alleged that accused Ramcharan had assaulted Bhagirath (PW 3) with a Spade, while Kanhaiyalal armed with a Gun was shouting that they be done to death otherwise he shall himself shoot them. During this altercation, Bilal Khan also assaulted brother of Dilip and accused Babu assaulted Jatal Singh with an axe. It is stated that the woman accused Imrat Bai whacked a Sickle towards Dilip which did not strike him. Chinta Bai (PW4) tried to intervene, but she was also belaboured. 5. The report (Ex.P/5) of the incident was promptly lodged at the Police Station, at 6.30 p.m., at a distance of 12 KMs. On the basis of the report, Crime was registered and R. P. Soni (PW 9) commenced investigation. Injured Jagdish, Jatal Singh, Ashok, Bhagirath and Dilip were sent for medical examination, vide requisition Exs. P/9, P/10, P/11, P/12, and P/14 to Civil Hospital, Shujalpur. Their injuries were examined by Dr. S. K. Shrivastava (PW 11) who gave report in respect of Jagdish (PW 8), Jatal Singh (PW 7), Ashok, Bhagirath (PW 3), Dilip (PW 6) and Karan Singh (PW 5), Exs. P/39, P/40, P/41, P/42 P/43 and P/44, respectively. In the report Ex.P/39 the Doctor recorded that Jagdish s/o Jatal Singh had sustained one penetrating wound 3 cm x 1 cm x deep upto the abdominal cavity, loops of small intestine had come out over the illiac fossa, horizontal cut was also seen in the intestine. On examination of Jatal Singh, the Doctor recorded in his report Ex.P/40, an incised wound 2 cm x "½ cm x probing not done, over left iliac fossa with swelling all around. As per certificate Ex.P/41, Ashok had sustained two incised wounds; (1) 3 cm x "½ cm x depth not measured; horizontal over the middle of back at the level of 10th, 11th vertebrae and (2) an incised wound 1 cm x "¼ cm x probing not done, below right nipple at the level of 5th intercostal space. Bhagirath (PW 2) had sustained two superficial injuries (1) cut of size 2.5 cm vertical over the left ring finger and superficial cut of size 4 cm x linear x skin deep over right middle of sack. Bhagirath (PW 2) had sustained two superficial injuries (1) cut of size 2.5 cm vertical over the left ring finger and superficial cut of size 4 cm x linear x skin deep over right middle of sack. Ex.P/43 shows that Dilip had sustained a superficial cut of size 8" x linear x vertical over the left middle back and as per Ex.P/44 Karan Singh had sustained an incised wound 4 cm x "¼ cm x "¼ cm on the middle of right side of back at the level of T11 and T12. 6. In further investigation, R. K. Soni proceeded to the place of the incident and seized blood stained and control earth in the presence of Kallu Khan (PW 19) and Ramchandra (PW 20) at 11.45 on 30-6-1994, vide memo Ex.P/16. A 12 bore gun was seized from accused Kanhaiyalal. The other weapons were seized from other accused persons. Jatal Singh succumbed to his injuries on 7-7-1994 and after giving notices to the witnesses, inquest was held of which memo Ex.P/4 was prepared. On 7-7-1994 at about 1 p.m. the Medical Officer of the Medico Legal Institute, Bhopal, performed autopsy and recorded the following injuries on the body of the deceased, as per post-mortem report Ex.P/46 :- A wound having stitches intact present transverse in abdomen 7.5 cm above illiac crest. On opening the stitches, wound was 2 x 0.5 cm over skin and ends were spindle shaped. According to the opinion of the said Autopsy Surgeon, death occurred on account of shock and haemorrhage as a result of stab injury to abdomen caused by hard, sharp and penetrating object. 7…….. 8. After the accused were arrested, they made disclosures which were recorded in memoranda prepared under section 27 of the Evidence Act and in pursuance thereof, weapons were discovered at the instance of the accused. After completion of the investigation, the charge-sheet was filed and the accused were prosecuted. 9. The accused denied having committed any offence and pleaded that they were innocent and had been falsely implicated on account of enmity. According to the accused Ramcharan, deceased Jatal Singh had caused a breach in the embankment of his field and, therefore, altercation had ensued. Kanhaiyalal, Babulal and Bilal Khan stated that the accused side wanted them to be witnesses in this case against the other accused and since they refused, they have been falsely implicated. According to the accused Ramcharan, deceased Jatal Singh had caused a breach in the embankment of his field and, therefore, altercation had ensued. Kanhaiyalal, Babulal and Bilal Khan stated that the accused side wanted them to be witnesses in this case against the other accused and since they refused, they have been falsely implicated. Kanhaiyalal took the plea that there was puncture in the motorcycle of the S.H.O. and since he had expressed his inability to get it vulcanised, the Police Officer was averse to him. On trial, the learned Addl. Sessions Judge while acquitting the accused Babulal, Kanhaiyalal and Bilal Khan, has convicted the appellants as hereinabove stated. It is this conviction that the appellants have challenged. 10. The prosecution examined, in all 22 witnesses, to prove its case. Out of these witnesses Bhagirath (PW 3), brother of the deceased, Chintabai (PW 4), wife of the deceased, Karan Singh (PW 5), son of the deceased, Dilip (PW 6), nephew of the deceased who lodged FIR, Ashok Kumar (PW 7), nephew of the deceased, Jagdish (PW 8), son of the deceased, Bholaram (PW 12) and Parwat (PW 13), (independent witness) were examined as eye-witnesses. However, Bholaram turned hostile and did not support the case of the prosecution. The other witnesses have been examined to prove various other aspects of the case such as the steps taken during investigation and seizure of articles etc., 11. Since the case of the prosecution is mainly based on the testimony of the eye-witnesses, the learned counsel submits that if these eye-witnesses are held to be unreliable on account of the exaggerations contradictions inter se, there is no other material on record to sustain the conviction. His contention, further, is that the parties were in their respective fields which were neighbouring and it was not a case where the accused persons had formed an assembly and gone to the field determined to cause injuries to the deceased Jatal Singh and the prosecution witnesses aforesaid. Under these circumstances, learned counsel urges that provisions of sections 148 and 149 are not attracted and since the evidence with regard to the overt acts of the individual accused is not satisfactory, all the appellants deserve to be acquitted. Under these circumstances, learned counsel urges that provisions of sections 148 and 149 are not attracted and since the evidence with regard to the overt acts of the individual accused is not satisfactory, all the appellants deserve to be acquitted. Learned counsel for the State, per contra, has submitted that it is a case where the report FIR (Ex.P/7) has been made without any loss of time to permit any exaggeration or embellishment and the eye-witnesses have given a vivid description of the incident which supports the impugned judgment. 12. The short question that arises for determination in the present case is as to whether on the basis of the eye-witness account rendered by the prosecution and the other material brought on record, the impugned judgment can be sustained and if so, to what extent. 13. Before proceeding to analyse the prosecution evidence, we may record that the parties have not disputed that death of Jatal Singh was homicidal. Apart from the testimony of several eye-witnesses to the effect that he had been stabbed in the abdomen, there is MLC (Ex.P/40) regarding the injury sustained by Jatal Singh in his abdomen to which he, later, succumbed. There is also the post mortem report (Ex.P/46) and Dr. C. S. Jain (PW 14) has testified to it. In addition, there is testimony of Nansingh (PW 15) and the Police Officer with regard to the inquest. The above evidence leaves no manner of doubt that Jatal Singh has died and that his death was homicidal. 14. The prosecution has examined a number of eye-witnesses as hereinabove stated but the only independent eye-witnesses is Parvat (PW 13). Parvat has deposed that while he was going towards his field, he met Bhagirath on way who offered a 'Supari' (betelnut). While he was eating Supari along with Bhagirath, accused Ramcharan reprimanded Jatal Singh and demanded as to why he had caused breach in the embankment of his field. Jatal Singh replied that water was being collected in his field and, therefore, the only way was to drain out the water by making an aperture. This gave rise to exchange of abuses and altercation between Ramcharan and Jatalsingh. After about 5 minutes, he saw that the intestines had come out of the abdomen of Jatal Singh and Jagdish had also sustained injury in his abdomen and, Ashok in his back and abdomen. This gave rise to exchange of abuses and altercation between Ramcharan and Jatalsingh. After about 5 minutes, he saw that the intestines had come out of the abdomen of Jatal Singh and Jagdish had also sustained injury in his abdomen and, Ashok in his back and abdomen. Parvat (PW 13) in his cross-examination has resiled from his statements under section 161 Criminal Procedure Code and when confronted with his statement Ex.D/6, he has stated that he did not tell the police that he had gone running to the place and had seen 8 to 10 persons running away. From his statement, it is clear that he has not attributed any acts to the individuals and has merely stated that both the parties were grappling and that he had seen that intestines had come out from the stomach of Jatal Singh and Jagdish and Ashok were also injured and bleeding. The independent eye-witness, therefore, does not give any clear picture. 15. FIR was lodged by Dilip s/o Bhagirath, nephew of the deceased. The version of Dilip (PW 6) shows that since his father had caused the breach in the bund of the field of the accused persons, the accused persons arrived and started repairing the same to which deceased Jatal Singh objected. There ensued exchange of abuses and grappling. During the course of the quarrel, Pappu @ Prem Narayan and Gaurilal stabbed the deceased with Gupti while other persons started giving fist blows and kicks. When Jagdish and Pappu tried to escape, Gaurilal stabbed Jagdish in his abdomen, Mohan stabbed him with a Knife, Ashok sustained an injury of Knife in his chest inflicted by Mohan and Ramcharan gave a blow of spade on the back of his father Bhagirath. Jagdish stabbed him in his back and though Imrat Bai threw a Sickle towards the complainant side, it did not strike anyone. The evidence of this witness is corroborated by the evidence of his father Bhagirath (PW 3). Bhagirath has deposed that when the incident started, Pappu, Jagdish and Mohan attacked Jatal Singh and while Mohan and Jagdish caught hold of Jatal, Pappu @ Prem Narayan stabbed him with a Gupti in his abdomen. He has deposed that Gupti passed through his body but that statement is not corroborated by the medical evidence. It is further stated that Ashok was also belaboured and so also Dilip by Mohan, Ramcharan and Gaurilal. He has deposed that Gupti passed through his body but that statement is not corroborated by the medical evidence. It is further stated that Ashok was also belaboured and so also Dilip by Mohan, Ramcharan and Gaurilal. We may at once notice that the story of Mohan and Jagdish having caught the deceased appears to be an improvement apparently to attribute act to Mohan and Jagdish with a view to ensure that they are also held liable for the offence of murder. 16. Chintabai (PW 4) is the wife of the deceased. She has stated that Premnarayan and Gaurilal were, each, wielding Gupti and Jagdish was armed with a Knife. Imrat Bai had a 'Darata' (Sickle), and Mohan, a Knife. Though she alleges that all of them had assaulted deceased Jatal Singh, she stands belied by the medical evidence as in the MLC (Ex.P/39), Dr. S. K. Shrivastava (PW 11) had noticed only one injury in the abdomen. She has further stated that Jagdish was stabbed by Gaurilal, Premnarayan and Mohan. Karan Singh (PW 5) is the son of the deceased. He has admitted that Jatal Singh has caused a breach in the embankment of the accused persons which gave rise to the quarrel between the two parties. During the course of quarrel, accused Premnarayan and Gaurilal stabbed his father, each with a Gupti while Jagdish kept him in his grips and assaulted him with his other hand. He has further stated that when Jagdish had caught the deceased, Premnarayan had assaulted him with a Gupti. According to him, Ramcharan has also caught him while Imrat Bai had thrown a Darata towards him. The evidence of this witness is also not in line with the medical testimony. If so many persons had caused stab injuries to the deceased, a number of injuries would have been found on his person but the Doctor found only a single injury in his abdomen. 17. The next eye-witness is Ashok Kumar (PW 7), nephew of the deceased. He has stated that while they were eating Supari, Jagdish stabbed Jatal Singh in his abdomen with the result he died. Thereafter, all the accused persons conjointly participated in the incident. He has further stated that Ramcharan was armed with a Pistol which he had fired in the air stating that they would finish all of them. He has stated that while they were eating Supari, Jagdish stabbed Jatal Singh in his abdomen with the result he died. Thereafter, all the accused persons conjointly participated in the incident. He has further stated that Ramcharan was armed with a Pistol which he had fired in the air stating that they would finish all of them. While as per the version of other witnesses it was Pappu @ Premnarayan who has stabbed the deceased in his abdomen, according to this witness it was Jagdish Gadri who had stabbed. He has further stated that Gaurilal Gadri had also stabbed which is belied by the medical evidence. He has also stated that Ramcharan had fired his pistol in the air, which is nobody's case. 18. Jagdish (PW 8) is the son of the deceased. He has also deposed in the same manner as the other eye-witnesses. He has admitted that Jatal Singh (deceased) had caused a breach in the boundary of the field of the accused persons which gave rise to a quarrel and Jatal Singh stabbed him in the abdomen and the second stab injury was given by Gaurilal. To the extent that two injuries were inflicted, his evidence stands discredited by the medical evidence. 19. From the brief narration of the evidence of the eye witnesses it is manifest that the eye-witnesses have contradicted one another on material particulars. While some of the eye-witnesses ascribed the abdominal injury to Pappu @ Prem Kumar, others have given a different version and stated that it was Gaurilal who caused stab injury along with accused Pappu. If Gaurilal had also caused stab injury to the deceased, there should have been at least two injuries on the body of the deceased. However, the testimony of Dr. S. K. Shrivastava (PW 11) who initially examined the deceased and that of Dr. C. S. Jain's Autopsy Report (Ex.P/46), bely the statement of these witnesses. Likewise, though Bhagirath Prasad (PW 9) has also stated that Mohan and Jagdish had caught hold of the deceased to facilitate Pappu @ Premnarayan to stab him in the abdomen and Karan Singh (PW 5) has also stated that Jagdish had caught hold of him, the other eye-witnesses do not support this version of these witnesses. Likewise, though Bhagirath Prasad (PW 9) has also stated that Mohan and Jagdish had caught hold of the deceased to facilitate Pappu @ Premnarayan to stab him in the abdomen and Karan Singh (PW 5) has also stated that Jagdish had caught hold of him, the other eye-witnesses do not support this version of these witnesses. It is, therefore, clear that the act of stabbing with a Gupti and causing injury to deceased Jatal Singh, was the individual act of accused Premnarayan @ Pappu s/o Umrao Singh who has been convicted by the trial Court for an offence punishable under section 302 of the Indian Penal Code, simpliciter. 20. Learned counsel for the State has urged that since all the accused persons have participated conjointly in the incident, irrespective of the fact that the injury was caused to the deceased by appellant Premnarayan, all would be constructively liable for the said act of Premnarayan under the provisions of section 149 of the Indian Penal Code. 21. Ordinarily, of course, when five or more people participate in incident with the object of committing felonious act or offence, an inference can be drawn that it was in furtherance of the common object of the unlawful assembly that the act was committed. However, in the case in hand the situation is different. One cannot be oblivious of the fact that the field of the accused persons and the deceased were adjoining and it was not with a view to assault the deceased or to cause any injuries to the complainant party that the accused persons had assembled in their own field. It can also not be overlooked that the deceased had caused a breach in the embankment of the field of the accused with a view to drain out water stagnated in his field through that breach which was apparently an act in derogation of the rights of the accused persons to use their field for their own purpose. It was in this context that the accused persons had objected to the act of the deceased and since the deceased, instead of making amend had persisted in his act of draining the water collected in his field through the field of the accused and thereafter both parties had engaged in exchange of abuses, the incident occurred and injuries were caused. While there can be a formation of an unlawful assembly immediately before the commission of the offence, in the incident in question, the individuals participated on their own in the course of a sudden quarrel and, therefore, they cannot be held constructively liable. In these circumstances, we find that conviction of the appellants under section 148 of the Indian Penal Code and sentence of 2 years RI thereunder cannot be sustained. For the same reason the conviction of the accused other than accused Premnarayan @ Pappu who has been convicted on the principal charge under section 302 of the Indian Penal Code, cannot be sustained as section 149 of the Indian Penal Code, in the facts and circumstances alluded to above, is not attracted. 22. This takes us to the charge under section 324 read with section 149 of the Indian Penal Code for which all the appellants have been convicted and sentenced to RI for 1 year. 23. Evidence is consistent that accused Gaurilal, Mohan, Pappu, Ramcharan had also participated in causing injuries to the other witnesses namely; Jagdish (PW 8), Ashok (PW 7), Bhagirath (PW 3), Dilip (PW 6) and Karansingh (PW 5). The learned Addl. Sessions Judge has recorded a single conviction for the said offence with the aid of section 149 of the Indian Penal Code. Since it does not appear that Imrat Bai had also participated in the incident, and the allegation that she had thrown a Sickle towards the complainant side which did not strike any one, does not inspire confidence, we are of the view that only Ramchandra, Gaurilal, Premnarayan and Mohan would be guilty for the said offences committed in furtherance of their common intention. Under these circumstances, except for Imrat Bai, all the appellants are guilty under section 324 r/w. section 34 of the Indian Penal Code. 24. Learned counsel for the appellants submits that Ramcharan, Gaurilal and Mohan have already suffered incarceration of about 6 months before they were granted bail. The trial Court has awarded sentence of 1 year to each of them and at this distance of time only for an offence under section 324 of the Indian Penal Code for which the said appellants have been constructively found liable, we are of the view that it would be reasonable and just to reduce the sentence to the period already undergone with enhancement of fine to Rs. 2,000/-. 2,000/-. 25. Ex consequentia, the appeals are partly allowed. Appellant No. 2 Imrat Bai, wife of Ramcharan, in Cr.A.No. 1206/98, is acquitted of all the charges against her and the conviction and sentence passed against her is set aside. 26. Appellant No. 1 Ramcharan s/o Umrao and appellant No. 3 Gaurilal s/o Umrao Singh are acquitted of the offence under sections 148 and 302/149 of the Indian Penal Code and their conviction under these sections and the sentence awarded to them is set aside. They are, however, held guilty under section 324 r/w. section 34 of the Indian Penal Code and each is sentenced to the period already undergone and fine of Rs. 2,000/-. In default of payment of fine, the appellant in default, shall suffer RI for a period of 3 months. 27. The appeal of appellant No. 4 Premnarayan @ Pappu s/o Umrao Singh (Cr.A.No. 1206/98) is partly allowed. His conviction under section 148 of the Indian Penal Code is set aside and so also the sentence awarded thereunder. But his conviction under section 302 of the Indian Penal Code and the sentence of imprisonment for life and fine of Rs. 500/- and the sentence in default of payment of fine, are maintained but his conviction under section 324/149 is altered to section 324/34 of the Indian Penal Code and sentence awarded by the trial Court is affirmed. Cr.A.No. 1303/98 of accused Mohan s/o Bhanwarji is partly allowed. His conviction under section 148 and 302 r/w. section 149 and the sentence awarded thereunder is set aside. His conviction under section 324/149 is altered to section 324/34 of the Indian Penal Code and the sentence of imprisonment awarded to him is reduced to the period already undergone and payment of fine of Rs. 2,000/-. In default of payment of fine, the said appellant shall suffer RI for three months. The appeals are thus disposed of.