Judgment K.S.Chauhan, J. ( 1. ) These criminal appeals arise out from the same incident, therefore, they are being disposed of by the common judgment. ( 2. ) These criminal appeals have been preferred under Section 374(2) of Cr.P.C being aggrieved by the judgment, finding and sentence dated 18.01.2001 passed by VII Additional Sessions Judge, Jablalpur in S.T.No.275/98 whereby the appellants have been convicted under sections 147,302/149,324/149,323/149 and 436 of IPC and sentenced thereunder to R.I. for 1 year, life imprisonment with fine of Rs.500/-, in default R.I. for 3 months, R.I. for 2 years., R.I. for 1 year, R.I. for 5 years with fine of Rs.500/-, in default R.I. for 3 months respectively. The sentences are directed to run concurrently. ( 3. ) The prosecution case in short is that on 02.03.1998 at about 10.00 a.m. Shankar Lal Pandey went to his field which was given on Sikmi to Vishal alias , Lata for plucking tomatoes but was refused by his wife Sonibai who abused him. A village Panchayat was convened at Chabutara of Khermai in village Sukri where Shankar Lal Pandey was called through Sonibai, who went at the house of Shankar Lal Pandey with other women in the evening but the wife and mother of Shankar Lal Pandey refused to send him in Panchyat. When Sonibai returned, Lata, Bhaddu Singh, Barelal, Raghuveer Singh, Summat, Gyan Singh, Antar Singh, Bhaddu Singh, Khushilal, Pratap, Latori, Ramsingh, Beeran Singh, Rup Singh, Sone Singh, Jagan Singh, Sonu Singh, Awadhlal, Sonibai, Basori, Hari Singh and 15-20 other persons armed with Lathi, Danda, Sickle and Ballam went there at the house of Shankar Lal Pandey and set the houses on fire. They assaulted Shankar Lal Pandey, Awadh Bihari Pandey and Mahendra Prasad Pandey. As a result thereof, Shankar Lal Pandey died on the spot and Awadh Bihari Pandey and Mahendra Prasad Pandey sustained injuries. Mahendra Prasad Pandey (PW- 10) lodged the FIR (Ex.P/18) at police station Kundam on 02.03.1998 at 23:45 p.m. wherein Crime No.27/98 was registered under Section 147, 148, 149, 302, 436 of IPC. Marg intimation No.9/98 was registered under Section 174 of Cr.P.C. Kamta Singh Baghel, A.S.1. Mahendra Prasad Pandey (PW- 10) lodged the FIR (Ex.P/18) at police station Kundam on 02.03.1998 at 23:45 p.m. wherein Crime No.27/98 was registered under Section 147, 148, 149, 302, 436 of IPC. Marg intimation No.9/98 was registered under Section 174 of Cr.P.C. Kamta Singh Baghel, A.S.1. proceeded to the spot but on account of pelting stones by people he could not reach the spot, hence he informed Police Headquarter at Jabalpur and ultimately Shri Ravindra Kumar Gautam, S.H.O. of police station Kundam went alongwith the force and fire brigade and controlled the situation. Panchnama of dead body of Shankar Lal Pandey Ex.P/5 was prepared and his dead body was sent for postmortem examination. Dr. K.C. Singhai (PW-5) conducted the post mortem examination- and found 5 incised wounds on the head. He opined that his death was on account of haemorrhagic shock due to head injuries with fracture and the death was homicidal in nature. The clothes of deceased Shankar Lal Pandey were seized. Awadh Bihari Pandey and Mahendra Prasad Pandey were sent for medical examination to Kundam Hospital wherein they were also examined by Dr.K.C.Singhai (PW-5). He found 2 incised wounds, 2 lacerated wounds and 6 contusions on the person of Awadh Bihari Pandey and 2 lacerated wounds and 3 contusions on the person of Mahendra Prasad Pandey. The spot map (Ex.P/2) was prepared. Blood stained, controlled soil, sickle, danda were seized. Devdas Vaishno (PW-6), Patwari also prepared the spot map (Ex.P/15) and damage panchnama Ex.P/12 to Ex.P/14 caused by fire to the houses of Shankar Lal Pandey, Narayan Prasad Pandey and Umesh Kumar Burman. The statements of the witnesses were recorded under Section 161 Cr.P.C. After completing the investigation; the charge sheet was filed in the Court of JMFC, Jabalpur, wherein Criminal Case No. 282/98 was registered which was committed to the Sessions Court for trial on 29.06.1998. ( 4. The statements of the witnesses were recorded under Section 161 Cr.P.C. After completing the investigation; the charge sheet was filed in the Court of JMFC, Jabalpur, wherein Criminal Case No. 282/98 was registered which was committed to the Sessions Court for trial on 29.06.1998. ( 4. ) The appellants were charged under sections 147, 302, 307(2 counts), 302/149, 307/147 and Section 436 of IPC (3 counts) to the effect that on 02.03.1998 at about 11.00 p.m. at village Sukri, police station Kundam, District Jabalpur, they were the members of unlawful assembly and in prosecution of the common object of such assembly, namely to cause the murder of Shankar Lal Pandey and to attempt to cause the murder of Awadh Bihari Pandey and Mahendra Prasad Pandey and also to cause mischief by setting fire on the houses committed offence of rioting. On the same date, time and place committed the murder of Shankar Lal intentionally (or knowingly). On the same date, time and place they caused the hurt to Awadh Bihari Pandey and Mahendra Prasad Pandey with such intention or knowledge and under such circumstances, had their act caused death of them, they would have been guilty of murder. On the same date, time and place committed mischief by fire causing destruction of the buildings which were ordinarily used as human dwellings of Shankar Lal Pandey, Narayan Prasad Pandey and Umesh Kumar Burman. Thus, thereby committed the offences under the above mentioned Sections. ( 5. ) The appellants abjured the guilt and claimed to be tried mainly contending that they have been falsely implicated in this case on account of previous enmity. ( 6. ) Prosecution examined as many as 16 witnesses whereas defence examined only 5 witnesses. After considering the evidence, the trial Court found them guilty under Sections 147, 320/149, 324/149, 323/149 and 436 of IPC as stated in para No. 1 of this judgment. Being aggrieved by the judgment, finding and sentence, the instant appeals have been preferred under section 374(2) of Cr.P.C. on the grounds mentioned in the memo of appeals. ( 7. ) Learned counsel for the appellants has submitted that the trial Court has not appreciated the evidence in proper perspective and has committed an illegality in relying upon the prosecution witnesses and discarded the defence evidence. Six eyewitnesses belong to the same family and hence they are interested witnesses. ( 7. ) Learned counsel for the appellants has submitted that the trial Court has not appreciated the evidence in proper perspective and has committed an illegality in relying upon the prosecution witnesses and discarded the defence evidence. Six eyewitnesses belong to the same family and hence they are interested witnesses. There are discrepancies in ocular and medical evidence regarding the injuries caused to Mahendra Prasad Pandey and Shankar Lal Pandey. The prosecution has suppressed the incident which was committed by Shankar Lal Pandey and his son Raju by throwing bomb on Sukalu and Charan. They sustained grievous injuries. One eye of Sukalu was completely damaged. Further, it has been submitted that when people assembled in Panchayat, came to know about this incident. Thus, they committed this incident on account of grave and sudden provocation. The appellants have been falsely implicated due to old enmity. Further, it has been submitted that the prosecution has applied pick and choose method. There was no light and, therefore, the identification of the accused persons was not possible. No specific overt act has been attributed by any of the accused persons. It has not been proved that who set the houses on fire. The prosecution has failed to prove the case beyond reasonable doubt. Hence, the finding of guilt is erroneous, deserves to be set aside. Consequently, the appellants are entitled for acquittal. ( 8. ) On the other hand, Shri R.S. Patel, learned Additional Advocate General appearing on behalf of the respondent/State submitted that statements of Munnibai (PW-4), Kasturi Bai (PW-8), Jaidevi (PW-13) and Umesh Kumar Burman (PW- 11) have been recorded on 03.03.1998 within reasonable time. No explanation has been sought from Investigating Officer as to why the statements of Awadh Bihari Pandey (PW-12) and Mahendra Prasad Pandey (PW-14) were recorded late. He has further submitted that the appellants set the houses on fire and in that light, the appellants were identified. He has further submitted that no circumstances are available so as to attract Exception I of Section 300 Cr.P.C. regarding grave and sudden provocation. The prosecution has established the guilt beyond reasonable doubt and the trial Court has not committed an illegality in convicting and sentencing the appellants, therefore, it does not call for any interference. ( 9. He has further submitted that no circumstances are available so as to attract Exception I of Section 300 Cr.P.C. regarding grave and sudden provocation. The prosecution has established the guilt beyond reasonable doubt and the trial Court has not committed an illegality in convicting and sentencing the appellants, therefore, it does not call for any interference. ( 9. ) The main point for consideration in these appeals is whether the trial court has committed any illegality in convicting and sentencing the appellants under sections 147, 302/149, 324/149,323/149 and 436 IPC? ( 10. ) We have perused the case and the entire evidence recorded therein. ( 11. ) Mithilesh Pandey (PW-10) has deposed that Shanker Lal Pandey had gone to pluck tomatoes on his field which was given to Vishal @ Lata on Sikmi but Sonibai refused and some dispute arose. Jaidevi (PW-13) has deposed that Sonabai used filthy language against Shankar Lal Pandey. Munni Bai (PW-4), Kasturi Bai (PW-8), Awadh Bihari Pandey (PW-12) have also given the evidence in this respect. On the other hand, Charan (DW-4) and Sukalu (DW-5) have deposed that Shankar Lal Pandey himself used filthy language against Sonibai who told to panchas in the village. Sukalu (DW-5) himself admitted that he was not present at that field. In such a situation, Sonibai might be the best witness to depose about the misbehaviour, if any, committed by Shankar Lal Pandey with her. But no such evidence has been adduced. ( 12. ) Munni Bai (PW-4), Kasturi Bai (PW-8), Mithilesh Pandey (PW-10), Awadh Bihari Pandey (PW-12) and Mahendra Prasad Pandey (PW-14) have deposed that Sonibai came in evening to call Shankar Lal Pandey in Panchayat which was held at the Chabutara of Khermai temple but mother and wife of Shankar Lal Pandey refused to send him in night. Thereafter, Sonibai returned back. This fact also finds support from the statements of Charan (DW-4) and Sukalu (DW-5). ( 13. ) Munni Bai (PW-4), Kasturi Bai (PW-8), Mithilesh Pandey (PW-10), Awadh Bihari Pandey (PW-12), Jaidevi (PW-13) and Mahendra Prasad Pandey (PW- 14) have deposed that appellants came there, set the houses on fire and assaulted Shankar Lal Pandey, Awadh Bihari Pandey and Mahendra Prasad Pandey As a result thereof Shankar Lal Pandey died on the spot and Awadh Bihari Pandey and Mahendra Prasad Pandey sustained the injuries. ( 14. ( 14. ) Mithilesh Pandey (PW-10) who lodged the report Ex.P/18 at police station Kundam has deposed that all the accused persons came there and set the houses of Shankar Lal Pandey, Narayan Prasad Pandey and Umesh Kumar Burman on fire and when Awadh Bihari Pandey, Mahendra Prasad Pandey and Shankar Lal Pandey came out of their house, the accused persons assaulted them with Lathi, Ballam, sickle etc. On account of which, they sustained the injuries and Shankar Lal Pandey died on the spot. ( 15. ) This witness in cross examination has stated that accused persons surrounded Shankar Lal Pandey and assaulted him, therefore, he is not in a position to state specifically as. to which of the accused was having Lathi, Ballam and sickle. ( 16. ) Similar is the statement of Munni Bai (PW-4) who has deposed that the accused persons pelted stones, set the houses on fire, caused marpeet to Awadh Bihari Pandey, Mahendra Prasad Pandey and Shankar Lal Pandey by Lathi, Ballam and sickle etc by which they sustained the injuries and Shankar Lal Pandey died on the spot. ( 17. ) She has further deposed that when the stones were pelted she was in the house but when they set the houses on fire she came out of the house, saw accused setting fire. On account of which household articles were burnt. . ( 18. ) Since she stated that Mahendra Prasad Pandey was assaulted by sword and Ballam, therefore, contradictions have been brought from her police statement Ex.D/4. ( 19. ) Kasturi Bai (PW-8) has stated that at that time she hid herself behind the bush and saw the accused persons in the light of the burning houses. The accused persons were having Farsa, Ballam, sickle and wooden sticks. Firstly they assaulted Awadh Bihari Pandey, Mahendra Prasad Pandey and then to her husband Shankar Lal Pandey. All the accused persons surrounded him, assaulted and caused the injuries. As a result thereof, Shankar Lal Pandey died on the spot. Her sons Awadh Bihari Pandey and Mahendra Prasad Pandey also sustained the injuries. ( 20. ) Jaidevi (PW-13) is the mother of Shankar Lal Pandey. She has specifically deposed the names of the accused persons in para 3. of her deposition. As a result thereof, Shankar Lal Pandey died on the spot. Her sons Awadh Bihari Pandey and Mahendra Prasad Pandey also sustained the injuries. ( 20. ) Jaidevi (PW-13) is the mother of Shankar Lal Pandey. She has specifically deposed the names of the accused persons in para 3. of her deposition. She has specifically stated that firstly they pelted stones then set the houses on fire and when Shankar Lal Pandey and his sons came out of their house, they assaulted them. They were armed with Ballam, Farsi and Lathi etc. Mahendra Prasad Pandey was beaten by Basori and Raghuvir by Lathi. Awadh Bihari Pandey was beaten by Sukhram and Beeran. Shankar Lal Pandey was assaulted by all the accused persons as a result thereof he died on the spot. Awadh Bihari Pandey and Mahendra Prasad Pandey sustained injuries. ( 21. ) In the cross examination, some contradiction has been brought from her police statement Ex.D/5 on the point that who assaulted Awadh Bihari Pandey and Mahendra Prasad Pandey. ( 22. ) Awadh Bihari Pandey (PW-12) is the injured witness. He has specifically stated that the accused persons set the houses on fire and assaulted his father and his brother. His father Shankar Lal Pandey was assaulted by all the accused persons. He himself was assaulted by Vishal @ Lata and Sukhram by Lathies and by Beeran with Farsa. His brother Mahendra Prasad Pandey was also beaten by Basori, Raghuvir, Latori with Farsa and Lathi. He has further deposed that he sustained the damage amounting to Rs.2-3 lacs on account of burning of household articles. ( 23. ) This witness in the cross examination has deposed that he was not in a position to give the statement upto 18-19 days but was in a position to give such statement on 20th day. He denied the suggestion put to him that his statement was recorded nearly after about 13/4 months. ( 24. ) Mahendra Prasad Pandey (PW-14) is also an injured witness. He has corroborated the statement given by his brother Awadh Bihari Pandey (PW-12). He has specifically stated that the accused persons set the houses on fire and assaulted him, Awadh Bihari Pandey and Shankar Lal Pandey. On account of which they sustained the injuries and his father Shankar Lal Pandey died on the spot. ( 25. He has corroborated the statement given by his brother Awadh Bihari Pandey (PW-12). He has specifically stated that the accused persons set the houses on fire and assaulted him, Awadh Bihari Pandey and Shankar Lal Pandey. On account of which they sustained the injuries and his father Shankar Lal Pandey died on the spot. ( 25. ) Thus, it is manifestly clear from the statement of these witnesses that accused persons came there, set the houses on fire, caused the injuries to Awadh Bihari Pandey, Mahendra Prasad Pandey and Shankar Lal Pandey. As a result thereof, Shankar Lal Pandey died on the spot. Since they were injured in the same very incident, their presence on the spot cannot be doubted. ( 26. ) Kamta Singh Baghel (PW-16) recorded the FIR (Ex.P/18) lodged by Mithilesh Pandey (PW-10) and registered the marg (Ex.P/19) under Section 174 of Cr.P.C. He proceeded immediately to village Sukri by Jeep but could not reach on the spot on account of pelting the stones by people, therefore, came to village Padariya and informed the Control Room and Police Officer. This fact further finds support from the evidence of Suryapal (PW-9). This clearly shows there existed tense situation on that day. However, Ravindra Kumar Gautam (PW-15), S.H.O. of Kundam went there with force and controlled the situation. ( 27. ) Vinod Kumar (PW-3) has deposed that he carried the fire brigade at the spot and extinguished the fire. ( 28. ) Umesh Kumar Burman (PW-11) though declared hostile but has supported the fact that his house was also set oil fire by the accused persons. As a result thereof, his household articles were burnt. ( 29. ) Devdas Vaishno (PW-6) prepared the map Ex.P/11, damage panchnama Ex.P/12 to Ex.P/14 at the instance of complainant and submitted the report Ex.P/15. ( 30. ) From this evidence, it reveals that the houses of Shankar Lai Pandey, Narayan Prasad Pandey and Umesh Kumar Burman were set on fire. ( 31. ) Ravindra Kumar Gautam (PW-15) prepared the panchnama of dead body of Shankar Lal Pandey and sent his body to Kundam Hospital for postmortem examination where Dr.K.C.Singhai (PW-5) conducted the postmortem examination of Shankar Lal Pandey and found 5 incised wounds on his head. These injuries were caused by hard and sharp object which were anti mortem in nature. The death was homicidal. These injuries were caused by hard and sharp object which were anti mortem in nature. The death was homicidal. Cause of death was haemorrhagic shock due to head injury with fracture. Ex.P-10 is post mortem report which contains his signature. Thus, it is evident that death of Shankar Lal Pandey was homicidal in nature. ( 32. ) Dr.K.C.Singhai (PW-5) also examined the injured persons Awadh Bihari Pandey (PW-12) and Mahendra Prasad Pandey (PW-14). He found 6 contusions, 2 lacerated wounds and 2 incised wounds on the person of Awadh Bihari Pandey. Out of these injuries, injury Nos.1, 3, 4, 5, 6, 7, 9 and 10 were caused by hard and blunt object whereas injury No.2 and 8 were caused by hard and sharp object. These injuries were caused within 10-15 hours. The detailed description is given in medical report (Ex.P/8). ( 33. ) Likewise, on examination of Mahendra Prasad Pandey, he found 3 contusions and 2 lacerated wounds on his person. These injuries were caused by hard and blunt object within 10-15 hours. The detailed description of the injuries is given in the medical report (Ex.P/9). ( 34. ) On the other hand, the defence of the appellants is that the prosecution has suppressed the incident which was committed by Shankar Lal Pandey and his son Raju by throwing bomb on Charan and Sukalu. They have adduced the evidence in this regard wherein Charan (DW-4) and Sukalu (DW-5) have deposed that when they had gone to call Shankar Lal Pandey for Panchayat he abused them and threw bomb and caused injuries to them. ( 35. ) Dr.K.C.Singhai (DW-1) examined Sukalu and found-4 contusions on his person. He also examined Charan Singh and found 1 contusion. Keeping in view the seriousness of his injury, he was referred to District Hospital, Jabalpur. The medical reports were submitted in Sessions Trial No.638/98 and their certified copies Ex.D/7 and Ex.D/8 have been filed in this case. ( 36. ) Dr.Indu Pandey (DW-2) has stated that one eye of Sukalu has been completely damaged. The report was submitted in Sessions Trial Nq.638/98. Ex.D/9 is the photocopy of bed head ticket. ( 37. ) Dr.H.K.Takiraja (DW-3) on examination of Charan found one injury of bomb blast in his left hand which was grievous in nature. The report was submitted in Sessions Trial No.638/98 and its certified copy Ex.D/10 is filed in this case. ( 38. The report was submitted in Sessions Trial Nq.638/98. Ex.D/9 is the photocopy of bed head ticket. ( 37. ) Dr.H.K.Takiraja (DW-3) on examination of Charan found one injury of bomb blast in his left hand which was grievous in nature. The report was submitted in Sessions Trial No.638/98 and its certified copy Ex.D/10 is filed in this case. ( 38. ) Thus, from the defence evidence, it is clear that Charan and Sukalu had sustained grievous injuries but it was submitted that the accused persons in that case have been acquitted. ( 39. ) The main contention of the learned counsel for the appellants is that when the people of Panchayat came to know that Sukalu and Charan have been injured by bomb blast, therefore, they lost their power of self control and on account of sudden and grave provocation, committed this incident. ( 40. ) We have to consider whether such defence of grave and sudden provocation was available to the appellants in the facts and circumstances of this case? ( 41. ) It is not the case of the defence that on account of receiving the serious injuries by Sukalu and Charan they themselves lost their power of control and killed Shankar Lal Pandey. It is also not the case of the defence that seeing the injuries of Sukalu and Charan the appellants lost their power of self control and committed the incident. Their defence is that the people who were assembled in panchayat were suddenly and gravely provoked and committed this incident. It is beyond our comprehension that why those people would lose their power of control for the injuries of Sukalu and Charan and commit this offence. ( 42. ) On the facts also, when the mother and wife of Shankar Lal Pandey refused Sonabai to send him in Panchayat in night then Sukalu and Charan again compelled Shankar Lal Pandey to attend the Panchayat. Panchayat was free to take any decision within its jurisdiction in that situation if Shankar Lal Pandey was not coming to attend it. Sukalu and Charan themselves invited the eventualities. ( 43. ) The benefit of the 1 st Exception of Section 300 of IPC can not be provided to the offenders who sought the provocation as an excuse for killing or doing harm to any person. Sukalu and Charan themselves invited the eventualities. ( 43. ) The benefit of the 1 st Exception of Section 300 of IPC can not be provided to the offenders who sought the provocation as an excuse for killing or doing harm to any person. Moreover, the appellants have not put on record the copy of FIR of Sessions Trial No.638/98 to show the details of the incident regarding causing of injuries to Sukalu and Charan. No record regarding the proceedings of Panchayat has been placed on record. ( 44. ) For application of Exception 1 of Section 300 IPC, the act must be done whilst the person doing it is deprived of the power of self control by grave and sudden provocation i.e., it must be done under the immediate impulse of provocation. Thus, it brings about a sudden and temporary loss of self control. The test is of a reasonable person in circumstances which give rise to grave and sudden provocation. The provocation must be such as will upset not merely a hasty, hot tampered, and hyper sensitive person but would upset also a person of ordinary sense and calmness. The gap between provocation and assault causing death may render this exception inapplicable. ( 45. ) In the case of Ganayendra Kumar v. State of U.P., AIR 1972 SC 502 , one B made remarks that the father and the uncle of the accused were dishonest, the accused thereon travelled about one furlong to his house, brought a gun, directed other persons who were near the accused to go away lest bullet should hit them, fired towards B but it hit the deceased who in an attempt to interfere fell between, it was held the provocation was far from sudden and the offence is one under Section 302 and under Section 304, Part I I.P.C. ( 46. ) In the present case, there were number of persons and, therefore, it can not be said that they all lost their power of control and committed this offence hence we find the defence of sudden and grave provocation would not be available to the appellants in the facts and circumstances of this case. ( 47. ) The learned counsel for the appellants has further contended that the Panchayat was convened to resolve the dispute in between Shankar Lal Pandey and Sonibai, therefore, it can not be termed as unlawful assembly. ( 47. ) The learned counsel for the appellants has further contended that the Panchayat was convened to resolve the dispute in between Shankar Lal Pandey and Sonibai, therefore, it can not be termed as unlawful assembly. But, this contention is not acceptable for the simple reason that if it was not unlawful at the inception then it became so when they committed mischief by setting the houses on fire and assaulting Shankar Lal Pandey, Awadh Bihari Pandey and Mahendra Prasad Pandey. ( 48. ) Explanation provided under Section 141 IPC runs as follows:-"Explanation.-An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly." ( 49. ) According to Section 141 of IPC an assembly of 5 or more persons is designated as an unlawful assembly if the common object is to do the act mentioned in that section. The object to commit any mischief or criminal trespass or other offence is unlawful object. ( 50. ) Thus, from the evidence, adduced in this case, it is clearly established that the appellants formed an unlawful assembly for committing the mischief by setting houses on fire, killing of Shankar Lal Pandey and causing injuries to Awadh Bihari Pandey and Mahendra Prasad Pandey. ( 51. ) The learned counsel for the appellants further submitted that there was no source of light and it was very difficult to identify the appellants in mob. ( 52. ) On appreciation of evidence, it reveals that firstly the accused persons pelted the stones at the house of Shankar Lal Pandey and when he did not come out, the houses were set on fire. Jaidevi (PW-13) has clearly stated that she saw the appellants setting the houses on fire. As soon as Shankar Lal Pandey and his family members came out, they assaulted him and his sons Awadh Bihari Pandey and Mahendra Prasad Pandey. As a result thereof, Shankar Lal Pandey died on the spot and Awadh Bihari Pandey and Mahendra Prasad Pandey sustained the injuries. ( 53. ) Thus, the eyewitnesses saw the incident in the light emanating from burning houses. Though some discrepancies have been brought as to whether the fire was set on houses and then the assaults were committed but most of the eye witnesses have stated in one voice that the houses were set on fire first then assaults were committed. ( 53. ) Thus, the eyewitnesses saw the incident in the light emanating from burning houses. Though some discrepancies have been brought as to whether the fire was set on houses and then the assaults were committed but most of the eye witnesses have stated in one voice that the houses were set on fire first then assaults were committed. Therefore, the minor discrepancy brought in this respect is of no consequence and does not affect the merits of the prosecution case. Thus, we find that the witnesses saw the appellants in the light emanating from burning houses. ( 54. ) The learned counsel for the appellants further contended that no specific overt act has been attributed to any of the accused persons. On appreciation of evidence, it is manifestly clear that most of the eyewitnesses have stated that the accused persons surrounded Shankar Lal Pandey and assaulted him. The injured persons Awadh Bihari Pandey and Mahendra Prasad Pandey have stated the names of the accused persons who have assaulted them. ( 55. ) In the case of Kallu @ Masih and Ors. V The State of Madhya Pradesh, AIR 2006 SC 831 , the Apex Court has held thus: "14. Though the trial court referred to the evidence of the eyewitnesses, it chose to disbelieve them merely on account of minor inconsistencies in their evidence, relating to the exact site of occurrence and failure to name all who landed blows and the exact nature of injuries. The High Court, on the other hand, held that minor inconsistencies and discrepancies regarding the exact place or the point at which the incident took place or as to who landed the blows is not sufficient to disbelieve the evidence of injured eye-witnesses. It is not necessary that all eye-witnesses should specifically refer to the distinct acts of each member of an unlawful assembly. In fact, it is difficult, if not impossible. This Court in Masalti v. State of U.P. [ 1964 (8) SCR 133 ], observed: "Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault." ( 56. ) In the case of Dalbir Singh v. State of Punjab, AIR 1987 SC 1328 , it has Been held that:. "It is necessary to establish that accused were members of unlawful assembly but it is not necessary to decide as to which of accused persons had inflicted what particular injury and extent of their culpability shall be same. ( 57. ) In the case of Sita Ram Pandey v. State of Bihar, 1976 CrLJ 800 , it has been held that: "If persons are in a mob holding lathis and are in company of other persons who are holding deadly weapons like bhalas and if they come together and go together after the occurrence, it cannot be held that they did not share the common object. The provisions contained in Section 149 will be attracted, unless it is established that the persons holding lathis at the place of occurrence were mere sight-seers. It is also well settled that in all cases, it is not necessary that all the persons forming an unlawful assembly must do some overt act." ( 58. ) The provisions of Section 149 are as follows: "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." ( 59. ) Since, it has been proved in the instant case that the appellants were the members of an unlawful assembly and committed an offence of rioting hence every member of this unlawful assembly constructively becomes liable for the act of other members of that assembly and hence it was not required to prove the overt act done by each and individual person. ( 60. ) The learned counsel for the appellants has further contended that there is some discrepancy in medical and ocular evidence regarding causing injuries to Shankar Lal Pandey and Mahendra Prasad Pandey. ( 60. ) The learned counsel for the appellants has further contended that there is some discrepancy in medical and ocular evidence regarding causing injuries to Shankar Lal Pandey and Mahendra Prasad Pandey. But we find such discrepancy not of much importance because it was very difficult to attribute the injuries caused by individual person with a particular weapon in such a mob. ( 61. ) The learned counsel for the appellants has further submitted that there is delay in recording the statements of Awadh Bihari Pandey and Mahendra Prasad Pandey, therefore, their evidence be discarded. ( 62. ) On perusal of evidence, it reveals that the injured persons Awadh Bihari Pandey and Mahendra Prasad Pandey were hospitalized and from the statements of Ravindra Kumar Gautam (PW-15), it reveals that they were discharged from hospital on 20.03.1998 but their statements were recorded on 25.05.1998 by Shri R.D.Dwivedi. ( 63. ) No doubt, there is delay in recording the statements of these injured witnesses but the position in this case is that the report Ex.P/18 was lodged promptly. The statements of other eyewitnesses Munni Bai (PW-4), Kasturi Bai (PW-8), Umesh Kumar Burman (PW-11) and Jaidevi (PW-13) were recorded on 03.03.1998 within reasonable time, therefore, it can not be said that the delay was made by Investigating Officer in recording the statements of Awadh Bihari Pandey (PW-12) and Mahendra Prasad Pandey (PW-14) to give the shape to this case. Therefore, delay is not fatal to the prosecution. ( 64. ) The learned counsel for the appellants has further submitted that the .alleged eyewitnesses belong to the same family, therefore, they are the interested witnesses and hence the reliance can not be placed on their testimonies but this contention is also not acceptable for the simple reason that the incident is of night where the presence of these witnesses is quite natural and probable. They have seen the incident, therefore their testimonies can not be discarded merely on the basis that they belong to the same family. Mere relationship is not sufficient to discard their testimonies. ( 65. ) There is overwhelming evidence against the appellants. They assaulted Shankar Lal Pandey and caused such injuries on account of which he died at the spot. There intention was to kill Shankar Lal Pandey. They also caused the injuries to his sons Awadh Bihari Pandey and Mahendra Prasad Pandey. Mere relationship is not sufficient to discard their testimonies. ( 65. ) There is overwhelming evidence against the appellants. They assaulted Shankar Lal Pandey and caused such injuries on account of which he died at the spot. There intention was to kill Shankar Lal Pandey. They also caused the injuries to his sons Awadh Bihari Pandey and Mahendra Prasad Pandey. The ocular evidence of the eyewitnesses finds support from the medical evidence. ( 66. ) Apart from this, they also caused the destruction to the dwelling houses of Shankar Lal Pandey, Narayan Prasad Pandey and Umesh Kumar Burman and caused the damage in the huge amount. After this incident, the family members of the Shankar Lal Pandey left the village Sukari and took shelter in another village. ( 67. ) The trial Court has considered every aspect in great detail and has not committed any illegality in finding them guilty under Section 147, 302/149, 324/149, 323/149 and 436 of IPC hence, we affirm such finding and sentence passed by the trial Court. ( 68. ) We find no merit or substance in these appeals and hence deserve to be dismissed. ( 69. ) Consequently, these appeals fail and are dismissed accordingly. The appellant Beeran is on bail. His bail bonds are cancelled. He be directed to surrender before C.J.M., Jabalpur on 31.12.2007 to serve out the remaining part of the sentence. Appeal dismissed. RAHUL