Judgment ( 1. ) THE appeals have been preferred by the accused/appellants aggrieved by judgment dated 6. 8. 1999 passed in S. T. No. 97/1997 by Sessions judge, Raisen. The accused/appellants have been convicted for commission of offence under sections 148,435 r/w 149,436 r/w 149, 302 r/w 149 and 323 r/w 149 of IPC. Accused Om Prakash has also been convicted for commission of offence under section 394 IPC. The accused/appellants have been sentenced under section 148 IPC to undergo R. I. for six months, under section 435 r/w 149 ipc to undergo 3 years R. I. and fine of Rs. 500/-, in. default to undergo further six months imprisonment, under section 436 r/w 149 IPC to undergo R. I. for 3 years and fine of Rs. 500, in default to undergo further six months imprisonment, under section 302 r/w 149 IPC to undergo life imprisonment and fine of Rs. 2000/-, in default to undergo further two years imprisonment and under section 323 r/w 149 ipc to undergo R. I. for six months. Accused Om prakash has also been sentenced under section 394 IPC to undergo 5 years RI and fine of Rs. 1000/-, in default, to undergo further 6 months imprisonment. Sentences have been ordered to run concurrently. The amount of fine of Rs. 1,54,000/- on being deposited, has been ordered to be paid to Komal Bai, widow of deceased Ramgopal under section 357 Cr. P. C. ( 2. ) THE prosecution case in short is that on 23. 1. 1997 at about 8 PM all the accused persons formed unlawful assembly and in furtherance of their common object, came to the house of Ramgopal (deceased ). Accused Prem Singh Lodhi, baijnath Lodhi, Baliram Lodhi, Ramlal Rathore, Netram Rathore, Prakash Rathore, Daulatram Lodhi, Pratap Singh Lodhi, Kamal Singh Lodhi, Shivcharan Lodhi, Harisingh Lodhi, Omprakash Lodhi, Maharaj Singh Lodhi, Kalyan Singh Lodhi, Kamal Singh, Daulat Singh, Halke Singh, Lakhan Lodhi, Hemraj Lodhi, Gourelal Lodhi, Shaitan Singh Lodhi, Bahadur Singh Lodhi, Sardar Singh Lodhi, Jagannath lodhi, Hansraj s/o Jagannath Lodhi, Devi Lodhi, Ganesh Lodhi, Buddha Lodhi, Somat Singh Lodhi, Phool Singh Lodhi, Narayan Singh Lodhi, Hari Singh s/o Dharamchand Lodhi, Arjun Singh Lodhi, Gappu @ Ghansunder Lodhi, Aashram ka Baba Rambabu Lodhi along with 3-4 others persons came to the house, as mentioned by Badam Singh in Dehati Nalishi lodged at 21. 40 pm on 23. 1. 1997. 40 pm on 23. 1. 1997. Initially stones were pelted, thereafter house, motorcycle and tractor were set ablaze. Some of the accused persons entered the house and inflicted injuries on the person of deceased Ram Gopal with sword, katarna, trident, lathi etc. Several other persons Badam Singh, Rekha Bai, Mousam Bai, Sajjan Bai, Nadani Bai, teeran Singh, Bharat Singh, Rajesh, Ashok, Sheshram, Mahesh, Kala Bai and Mohan Singh sustained injuries. There was enmity between the parties as to the Patel ship of village. Father of complainant Mohan Singh was Patel of village and few days before. Shaitan Singh Maina committed rape on the daughter of Badam Singh Lodhi, which were also the cause of the incident. Deceased Ramgopal was initially examined by Dr. Kailash Bihari Bajpai (PW-4) at District Hospital, Raisen at 10. 15 PM on 23. 1. 1997. He has submitted report (Ex. P-23 ). Autopsy was performed by Dr. S. S. Kushwaha (PW-5) who has submitted report (Ex. P-28 ). Investigation was done. Accused persons were arrested, seizure was made. After due investigation accused were charge sheeted. ( 3. ) THE accused abjured the guilt and contended that they have been falsely implicated in the case due to enmity. They have been convicted and sentenced by the Trial Court. Dissatisfied thereby the appeals have been preferred by the accused/appellants. ( 4. ) LEARNED counsel appearing for the accused/appellants have submitted that investigation in the instant case has not been done fairly. Dehati Nalishi (Ex. P-1)cannot be said to be admissible in evidence as investigation was already set in by the time it was lodged. SDO (P),rewa along with the police force of P. S. Raisen had reached to the spot first in time and then intimation was given at P. S. Sanchi. Thereafter, Anar Singh Yadav (PW-19) had reached to the spot along with the police force. They have further submitted that by the time police of Saanchi reached to the spot, the injured were already sent to the District Hospital Raisen along with ASI Bhadouriya of P. S. Raisen. It was necessary to examine the SDO (P)and the author of medical requisitions of 12 injured persons. There is interpolation as to the timing on which the Dehati Nalishi was in fact recorded, thus the case has been concocted. It was necessary to examine the SDO (P)and the author of medical requisitions of 12 injured persons. There is interpolation as to the timing on which the Dehati Nalishi was in fact recorded, thus the case has been concocted. Though the date on which incident took place was Poornima day, counsel have submitted relying upon the Modis Jurisprudence 21st Edition pg. 68 that it would not be possible even in the full Moon night to identify the assailants from the distance of more than 15 meters i. e. 17 yards. Statements of most of the witnesses were recorded after 2-1/2 to 3 months after the date of incident. Compliance of section 157 Cr. P. C. of sending forthwith the intimation to the Magistrate has not been proved. Counsel have also submitted that the witnesses have attributed the injury caused to deceased Ramgopal to 8 of the accused persons namely Shivcharan s/o Ganpat, Hari Singh, Lakhan, Rambabu, Jagannath. Om Prakash, Maharaj Singh and Halke. The aforesaid 8 accused persons entered the house and injuries on the person of deceased have been attributed to them. In the facts and circumstances the other co accused persons could not be said to be responsible for causing death of deceased Ramgopal. Thus the conviction of rest of the accused persons with the aid of section 149 in the facts and circumstances of the instant case deserves to be set aside. They have also submitted that accused persons are entitled to acquittal as the ocular evidence furnished by the witnesses is clearly an after thought. ( 5. ) SHRI T. K. Modh, learned Dy. Advocate General appearing for State has submitted that it is a case where unlawful assembly was formed by the accused persons. They came armed with deadly weapons and it was not possible to mention in the circumstances name of all the accused persons in the first information report. First SDO (P) along with the police force had reached to the spot but except sending the injured to the District Hospital, Raisen, no further action was taken in the matter of investigation. In the meantime when house was still burning, police of Sanchi also reached to the spot and thereafter Dehati Nalishi (P-1) was recorded on the basis of which at 10. 40 PM on 23. 1. 1997 itself the first information report was reduced in writing at the concerned police station Sanchi. In the meantime when house was still burning, police of Sanchi also reached to the spot and thereafter Dehati Nalishi (P-1) was recorded on the basis of which at 10. 40 PM on 23. 1. 1997 itself the first information report was reduced in writing at the concerned police station Sanchi. Information was received on wireless by Sanchi Police Station at 8. 50 PM of which entry was made in general diary (P-209) and at 8. 55 pm Anar Singh Yadav (PW-19)started towards the spot ana reached within 15 minutes and had recorded Dehati nalishi (P-1), thus Dehati Nalishi cannot be said to be inadmissible in the instant case. It was not necessary to examine the SDO (P) as he has not done any part of investigation except reaching the spot earlier in point of time, police force of both the police stations joined together in extinguishing the fire of the house. Though aforesaid 8 accused persons have entered the house as per version of the eye witnesses and inflicted injury on the person of deceased but common object of larger unlawful assembly was to commit murder of Ramgopal as such accused have been rightly convicted for commission of murder of Ramgopal with the aid of section 149 IPC. No case is made out so as to make interference in the appeals. ( 6. ) FOUR of the accused persons have died. Accused Tularam died during the course of trial. Rest three accused persons namely Prakash, Rambabu and rammoo Lal have died during the pendency of appeal. Thus the appeal stands abated with respect to the aforesaid four accused persons. ( 7. ) IN the instant case prosecution has examined as many a 14 eye witnesses. In all 21 witnesses have been examined. The police statements of two of the eye witnesses namely Badam Singh (PW-1) and Bharat Singh (PW-6) were recorded on 24th January, 1997 and police statements of remaining witnesses were recorded on 14. 2. 1997, 3. 4. 1997,4. 4. 1997,9. 4. 1997 and 23. 4. 1997. Though there was some delay in recording statements of the aforesaid witnesses except two however in the instant case presence of injured witnesses on the spot cannot be doubted, similarly the persons who were residing in the house are quite natural witnesses. 2. 1997, 3. 4. 1997,4. 4. 1997,9. 4. 1997 and 23. 4. 1997. Though there was some delay in recording statements of the aforesaid witnesses except two however in the instant case presence of injured witnesses on the spot cannot be doubted, similarly the persons who were residing in the house are quite natural witnesses. The fact also remains that immediately the statement of two witnesses whose presence on the spot cannot be doubted namely Badam Singh (PW-1) and Bharat singh (PW-6) have been recorded without delay. ( 8. ) WHEN we consider the statement of Badam Singh (PW-1) he has stated that initially all the accused persons surrounded the house and started pelting stones/thereafter other accused persons namely Phool Singh, Hari Singh, Suresh, shivcharan, Kamal and Hemraj poured kerosene oil and set the house ablaze. Thereafter Phool Singh and Suresh set ablaze the motor cycle and tractor, due to that the loss of property worth several lakhs was caused. Hari Singh and Om prakash had inflicted injury on his person. He has further stated that accused shivcharan inflicted injury on the person of Ramgopal with Sang, Rambabu with trident, Hari Singh with Katarna, Maharaj with Katarna, Jagannath with sword, halke with sword, Om Prakash with Barchhi and Lakhan inflicted injury with the help of axe. The aforesaid 8 accused persons were responsible for inflicting injury on the person of deceased Ramgopal. He has,not attributed the injury caused to deceased Ramgopal to any other accused persons. Narayan Singh (PW-2) in para -2 of his deposition has also attributed the injury caused to the deceased to aforesaid 8 accused persons. Remaining witnesses Pohap Singh Yadav (PW-3), ravishankar Meena (PW-7), Mohan Singh (PW-8), Komal Bai (PW-9), Mahesh (PW-10),nandani Bai (PW-16), Teeran Singh (PW-17) and Ashok (PW-18) have also attributed the injuries caused on the person of deceased Ramgopal to the aforesaid 8 accused persons. Thus with respect to the aforesaid 8 accused persons there is no iota of doubt that they were responsible for causing death of deceased ramgopal by the weapons which they were carrying. With respect to other accused persons there is no difficulty in acquitting them for commission of offence under section 302 read with section 149 IPC as they did not share aforesaid common object of smaller unlawful assembly which had been formed on the spot itself to cause death of Ramgopal. ( 9. With respect to other accused persons there is no difficulty in acquitting them for commission of offence under section 302 read with section 149 IPC as they did not share aforesaid common object of smaller unlawful assembly which had been formed on the spot itself to cause death of Ramgopal. ( 9. ) COMING to the question whether the common object of other accused persons was also to cause death of Ramgopal. When we consider statement of complainant badam Singh (PW-1), it appears that only some of the accused persons namely phool Singh, Hari Singh, Suresh, Shivcharan, Kamal and Hemraj were responsible for setting ablaze the house. Thereafter, Phool Singh and Suresh set ablaze the motor cycle and tractor, however, it also appears that accused persons whose presence is established on the spot, formed an unlawful assembly and their common object was to cause damage to the property and to commit mischief by firing with intent to destroy the house and property as contemplated under section 435 IPC. Only six or seven person have entered the house, took-out Ramgopal from the house and deceased Ramgopal was beaten upon by the aforesaid 8 accused persons. It appears that common object of larger unlawful assembly of 34 accused persons was to commit offence under sections 148, 435 r/w 149, 436 r/w 149 and 323 r/w 149 of IPC and not to commit murder Ramgopal as apparent from the discussion of evidence made hereinafter. Badam Singh (PW-1) has not stated that any other co-accused except 8 who participated in beating had exhorted so as to kill Ramgopal. Narain Singh (PW-2)has also stated that only few of the accused persons were involved in setting ablaze the house and beating the injured persons including Ramgopal. He has attributed the injuries on the person of Ramgopal to the aforesaid 8 accused persons. It is further apparent from Para-5 of his deposition that those very accused persons who had beaten the deceased Ramgopal had taken him out in the outer courtyard. Pohap Singh Yadav (PW-3) in Para 4 of his deposition has stated that only aforesaid 8 accused persons had entered the house, caught hold of deceased ramgopal and took him to the outer courtyard, they were also responsible to inflict injury to Ramgopal. Presence of other co accused persons in the courtyard has not been stated by the witness. Pohap Singh Yadav (PW-3) in Para 4 of his deposition has stated that only aforesaid 8 accused persons had entered the house, caught hold of deceased ramgopal and took him to the outer courtyard, they were also responsible to inflict injury to Ramgopal. Presence of other co accused persons in the courtyard has not been stated by the witness. Bharat Singh (PW-6) has stated that all the accused persons surrounded the house, started pelting stones and some of the accused persons set ablaze the house, motor cycle and tractor. He has named accused Prakash, Gappu, Arjun, Devi, Kamal, Kalyan, Bahadur and Badami for setting ablaze the motorcycle and tractor, thereafter some of the accused persons entered the house, they have looted Rs. 5000/- thereafter inflicted injuries on the person of Ramgopal and injured persons. The aforesaid 8 accused persons have inflicted injury on the person of Ramgopal by the weapons which they were carrying, this he has stated in Para-5 of his deposition. Ravishankar (PW 7) has stated that accused initially pelted the stones, aforesaid accused persons have inflicted the injury on the person of deceased Ramgopal, Rambabu had inflicted injury on Mohan singh, Gorelal and Baijnath poured kerosene oil on Komal Bai, Nadani Bai was also beaten upon by them beside Badam Singh, Ashok and Bharat etc. Om Prakash took away the gold ring of deceased Ramgopal as apparent from Paras 2,3 and 4 of deposition of the witness. He has also stated that police reached to the spot when rioting was going on. Mohan Singh (PW-8) was also in the house. He has stated that Phool Singh, Goura, Shivharan, Shivharan s/o Beeralal, Suresh, Hari singh s/o Hukumchand, Buddu, Ganesh, Badami, Kamal and Hemram set ablaze the tractor and motorcycle, thereafter some of the accused persons entered the house. Rambabu, Shivcharan s/o Ganpat, Om Prakash, Hari Singh, Lakhan shivcharan, Halke, Lakhan and Maharaj Singh caught hold of Ramgopal, brought him in the outer courtyard and when he tried to save Ramgopal, Rambabu inflicted injury on him with trident and the aforesaid 8 accused persons inflicted injuries on the deceased. There was enmity between the parties on the appointment of Patel. The injured were sent by the Dy. SP to the hospital. Komal Bai (PW-9) is also an injured witness. She has stated that accused came to the spot, pelted the stones and set ablaze the house, motorcycle and tractor. There was enmity between the parties on the appointment of Patel. The injured were sent by the Dy. SP to the hospital. Komal Bai (PW-9) is also an injured witness. She has stated that accused came to the spot, pelted the stones and set ablaze the house, motorcycle and tractor. She has specifically named kamal, Devi, Pappu, Sardar, Hemraj as the persons responsible for setting ablaze the house. Ramgopal was beaten by aforesaid 8 accused persons. They entered the house, took him out and thereafter had beaten the deceased. She has also stated about the weapons carried by aforesaid 8 accused persons and injuries inflicted. She has not stated that any other accused persons entered the house except named by her. Mahesh (PW-10) is also an injured witness. He has stated that Gorelal, Halke, Phool Singh set ablaze the house and aforesaid 8 accused persons inflicted injury on the person of deceased Ramgopal. Narmada Prasad (PW-14) has not supported the prosecution case. He was declared hostile. Nadani bai (PW-16) wife of Mohan Singh has stated that 40-50 persons came to the house, set ablaze the house, tractor, motorcycle and the house. She was unable to name the accused persons who were responsible to set ablaze the motor cycle and tractor, however, she has specifically named the aforesaid 8 accused persons who had inflicted injury on the person of deceased Ramgopal in Para-2 of her deposition. Teeran Singh (PW-17) has stated that 50-60 persons came, out of them he has named certain accused persons, however, he has attributed the injuries to aforesaid 8 accused persons with respect to deceased Ramgopal. Injuries were also inflicted by other accused persons on the person of injured witness. Ashok (PW-18) has also landed support by-and-large to the aforesaid witness. He has attributed the injuries caused to the deceased to aforesaid 8 accused persons. ( 10. ) ON assessing of the aforesaid evidence, it becomes clear that 8 accused persons caught hold of deceased Ramgopal, they formed a smaller unlawful assembly on the spot, their common object was to kill Ramgopal and in furtherance of their common object they had inflicted injuries on the person of the deceased ramgopal as stated by the aforesaid witnesses. Most of them are injured. Injuries have been proved by Dr. Most of them are injured. Injuries have been proved by Dr. Kailash Bihari Bajpai (PW-4) on the person of Bharat singh (PW-6), Teeran Singh (PW-17), Sajjan Bai, Nadani Bai (PW-16), Komal Bai (PW-9), Rekha, Mousam Bai, Mohan Singh (PW-8), Badam Singh (PW-1), Rajesh, Kala Bai. He has proved that simple injuries have been caused to the aforesaid witnesses. Dr. Bajpai has also medically examined deceased Ramgopal and has found as many as 8 injuries, injury Nos. 1,3,5,6 and 7 were caused by sharp edged weapon and injury Nos. 2 and 4 were caused by hard and blunt object. He has also proved injury report (P-23) of Ramgopal, post mortem was performed by Dr. S. S. Kushwaha (PW-5), thus version of the aforesaid eye witnesses including the injured witnesses is medically corroborated with respect to the role played by the aforesaid 8 accused persons who have been specifically named by the witnesses to be responsible for causing death of Ramgopal. It could not be said in the facts of the instant case all the accused person had shared the common object to commit murder of Ramgopal though some of them may have inflicted simple injuries on injured persons. In the instant case it appears large number of persons had gathered, there was party factionalism also. There was dispute on the appointment of Patel and rape was also committed by one of the persons belonging to the community of deceased Ramgopal on the daughter of accused Badam Singh. Thus other accused persons whose presence we have found established beyond periphery of doubt in later part of judgment, they had gathered with the common object of giving lesson, they wanted to find out whereabouts of accused of the rape case and it appears that they shared common object of rioting and further to set ablaze the house and other property, not beyond that. The method and manner in which the narration of incident has been made by the aforesaid witnesses, only 8 accused persons namely Shivcharan s/o Ganpat, hari Singh s/o Shivcharan, Lakhan, Rambabu, Jagannath, Om Prakash, Maharaj singh and Halke formed a smaller unlawful assembly on the spot to further common object to kill Ramgopal. The method and manner in which the narration of incident has been made by the aforesaid witnesses, only 8 accused persons namely Shivcharan s/o Ganpat, hari Singh s/o Shivcharan, Lakhan, Rambabu, Jagannath, Om Prakash, Maharaj singh and Halke formed a smaller unlawful assembly on the spot to further common object to kill Ramgopal. In the facts and circumstances of the case we do not consider it safe to convict the large number of other accused persons for sharing common object for commission of murder of Ramgopal whose presence we have found established on the spot thus we acquit other accused persons for commission of offence under section 302 read with section 149 of IPC except the aforesaid 8 accused persons. ( 11. ) SHRI S. C. Datt, learned Sr. counsel has relied upon the decision of Apex court in Shambhu Nath Singh v. State of Bihar - AIR 1960 SUPREME COURT 725, in which the Apex Court has observed thus :- 6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Sec. 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. " Jahiruddin v. Queen Empress, ILR 22 Cal 306. 7. Therefore a conviction for an offence under Sec. 326 read with Sec. 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Sec. 326 of the Indian Penal code is in its relation to the offence of murder a minor offence and the language used in Sec. 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. We may briefly deal with those authorities. The Apex Court has observed that members of an unlawful assembly may have a community of object up to a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object. Learned Sr. counsel has further relied on the decision of Apex Court in Santosh v. State of M. P- AIR 1975 SUPREME COURT 654, in which the Apex Court has observed thus :- 9. Learned Sr. counsel has further relied on the decision of Apex Court in Santosh v. State of M. P- AIR 1975 SUPREME COURT 654, in which the Apex Court has observed thus :- 9. In a case such as the one before us, in which there were two factions in a village, one of the oppressors and the other of the oppressed, smarting under the pain of injuries inflicted by their oppressors, the intention of a member of an assembly could be initially quite lawful. His object may not go beyond joining a procession for purposes of protest. We are convinced, on the evidence on record that the participation of the appellant before us went beyond exhibiting a mere intention to protest. It not only embraced knowledge of likelihood of hurt of some kind to members of the party attacked, but it included an attack by the appellant on baliram, P. W. 1. The nature of that attack was, however, relatively mild. At most, from the concerted action of so many men a member of the unlawful assembly, on the facts and circumstances of the case before us, could be reasonably held to be aware that grievous hurt would result. Shri Datt Learned Sr. Counsel has also pressed into service decision of Apex court in Musakhan v. State of Maharashtra - AIR 1976 SUPREME COURT 2566, in which the Apex Court has observed that a bystander, does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that the accused shared the common object of the assembly. Thus a Court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages. Such an evidence is wholly lacking in this case where the evidence merely shows that some of the accused were members of the unlawful assembly at one particular stage but not at another. In these circumstances, therefore the accused, who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages. He has also relied upon decision of apex Court in Charan Singh and others Vs. State of Uttar Pradesh - 2004 air SCW 1329 in which the Apex Court has observed that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of S. 141. The word object means the purpose or design and, in order to make it common, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression in prosecution of common object as appearing in S. 149 have to be strictly construed as equivalent to in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members, of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of S. 149, I. P. C. may be different on different members of the same assembly. ( 12. ) WE do not find any merit in the submission that provision of Section 157 Cr. P. C. was not complied with. Anar Singh (PW-19) has stated that provision was complied with, intimation was sent to Magistrate. We also do not find merit in the submission that it was not possible to identify the accused persons due to lack of light, it was Poornima day, accused had surrounded the house and also inflicted injuries on the deceased and injured witnesses. It was clearly possible to identify the accused persons. ( 13. ) COMING to the question that presence of how many accused persons has been proved beyond reasonable doubt. No doubt about it that large number of persons had gathered, it may not be possible to mention the name of all of them in the Dehati Nalishi (Ex. P-1) lodged in the instant case. However, reading of first information report makes it clear that in the Dehati Nalishi names of 34 accused persons have been specifically mentioned i. e. 1. Prem Singh, 2. Baijnath, 3. Baliram, 4. Rammoolal, 5. Netram, 6. Prakash, 7. Daulatram, 8. Pratap, 9. Kamal, 10. Shivcharan, 11. Hari Singh, 12. Om Prakash, 13. Maharaj, 14. Kalyan, 15. Kamal, 16. Halke, 17. Lakhan, 18. Hemraj, 19. Gorelal, 20. Shaitan Singh, 21. Bahadur singh, 22. Sardar Lodhi, 23. Jagannath, 24. Hemraj, 25. Devi Lodhi, 26. Ganesh, 27. Buddu, 28. Somat, 29. Phool Singh, 30. Narayan, 31. Hari Singh s/o hukumchand (Dharamchand), 32. Arjun, 33. Gappu @ Ghansunder, 34. Ashram ka Baba Rambabu. ( 14. ) OTHER accused persons who were not named in Dehati Nalishi were 1. Gorelal, 20. Shaitan Singh, 21. Bahadur singh, 22. Sardar Lodhi, 23. Jagannath, 24. Hemraj, 25. Devi Lodhi, 26. Ganesh, 27. Buddu, 28. Somat, 29. Phool Singh, 30. Narayan, 31. Hari Singh s/o hukumchand (Dharamchand), 32. Arjun, 33. Gappu @ Ghansunder, 34. Ashram ka Baba Rambabu. ( 14. ) OTHER accused persons who were not named in Dehati Nalishi were 1. Vidyanand, 2. Murli Prasad, 3. Naresh Chandra, 4. Ramcharan, 5. Tularam, 6. Bhogiram, 7. Shivcharan s/o Beeralal, 8. Suresh Kumar, 9. Prakash Narayan, 10. Udayram, 11. Laxman Singh 12. Radheshyam @ Meharban Singh, 13. Harcharan, 14. Kailash, 15. Badami Singh, 16. Karan Singh, 17. Madan Lal, 18. Somat. The names of aforesaid 18 accused persons does not find place in the first version. However at the same time it was mentioned in the Dehati Nalishi that 3-4 persons in addition were present and complainant shall identify them when presented before him, he has not named the remaining 3-4 accused persons whose names were not mentioned in the Dehati Nalishi on the basis of which FIR was reduced in writing. Identification parade with respect to four Babas was held, out of them only 3 could be identified, however, Nayab Tehsildar has not been examined in the instant case. It was necessary to examine Nayab Tehsildar before whom identification parade was held. It also appears that there was possibility of false implication of remaining 18 accused persons as there was enmity due to appointment of Patel as well as there was enmity as rape was committed. In the facts and circumstances of the case except the police statement of two of the witnesses Badam Singh (PW-1) and Bharat Singh (PW-6), the statements of remaining witnesses were recorded belatedly, there was delay in recording the police statements of other witnesses of about 2-1/2 to 3 months. Thus in the facts and circumstances of the case we deem it appropriate to give benefit of doubt to the accused persons whose names were not specifically mentioned in Dehati Nalishi, their presence cannot be said to be established beyond periphery of reasonable doubt, however, with respect to the remaining accused persons, the version mentioned in the FIR on the basis of which FIR was reduced in writing promptly is found to be reliable. ( 15. ) COMING to the submission raised by Shri S. C. Datt, learned Sr. counsel that dehati Nalishi (Ex. ( 15. ) COMING to the submission raised by Shri S. C. Datt, learned Sr. counsel that dehati Nalishi (Ex. P-1) cannot be said to be admissible in the instant case. Investigation was already set in at the time when Dehati Nalishi was lodged. No doubt that initially after reaching the spot by SDO (P) under whose jurisdiction p. S. Raisen as well as P. S. in question Sanchi fell, except of making the effort of extinguishing the fire as intimation was received by police on telephone on that immediate steps were taken and message at the same time was sent to P. S. at sanchi. P. S. being nearer and the SDO (P) was first in point of time to reach the spot but at the same time on receiving the wireless information entry was made in general diary P-209 by Anar Singh Yadav (PW-19), that entry has been proved by him. After making entry at 8. 50 pm he proceeded towards the spot and spot being 10-15 Kms, he was going on motorcycle, he must have have taken time of about 15-20 mintues to reach the spot. Merely by the fact that in Dehati Nalishi though it was clearly mentioned that it was lodged at 9. 30 pm, there was some overwriting in the figure of minutes, there is no overwriting in numerical line, it is not of much consequence that minutes have been amended while reducing the dehati Nalishi in writing by Anar Singh Yadav (PW-19 ). As incident has taken place about about 8 pm, immediately police on receiving the information from P. S. Raisen as well as from P. S. Sanchi proceeded towards the spot and thereafter dehati Nalishi was recorded which was the definite information lodged with respect to the accused persons, it was reduced in writing by Anar Singh Yadav (PW-19 ). There is nothing on record to indicate that SDO (P) has reduced in writing any other report lodged by anyone else or any report was actually lodged at P. S. Raisen which has been suppressed in the instant case, thus with respect to the accused persons the first information which was lodged which was the definite information which was lodged as per (P-l) and it could not be said to be manufactured document as FIR was also reduced in writing i. e. on 23. 1. 1. 1997 and statements of two of the eye witnesses Badam Singh (PW-1) and Bharat Singh (PW-6) have been recorded immediately. Sawaliya Singh (PW-11) has stated that entire villagers had vacated the village he had fled away from the village due to party factionalism which, prevailed in the village, consequently his statement could be recorded later on. Explanation of I. O. has not been obtained as to the cause of delay in recording the statement. In the facts of the instant case the version of injured witnesses cannot be discarded merely by some delay in recording the statements by police with respect to 8 accused persons who have been found guilty for causing death of Ramgopal under section 302 read with section 149 IPC and with respect to which 33 accused persons including the aforesaid 8 accused persons for comission of offence under section 148, 435 r/w 149, 436 r/w 149, 323 r/w 149 of IPC. It was necessary to seek explanation of IO as laid down by the Apex Court in State of U. P. Vs. Satish - 2005 (3) SCC 114 . It is not in dispute that at the stage of evidence witnesses have clarified with precision the name of somat mentioned in Dehati Nalishi as s/o Amar Singh and Hari Singh who had inflicted injury upon the deceased Ramgopal was s/o Shivcharan and Shiv Charan who has inflicted injury on Ramgopal was s/o of Ganpat and Shivcharan who was responsible for riot and has been found guilty for commission of offence under section 148, 435, 436 and 323 r/w 149 of IPC was son of Beeralal. Somat s/o tularam is entitled for acquittal and Somat s/o Amar Singh has been found guilty for commission of offence" under section 148, 435, 436 and 323 r/w 149 of IPC ( 16. ) IN view of the aforesaid discussion, out of 8 persons one has died, we uphold the conviction of 7 accused persons namely Shivcharan s/o Ganpat, Hari Singh s/o shivcharan, Lakhan, Jagannath, Om Prakash, Maharaj Singh and Halke. As rambabu died during the pendency of this appeal, the appeal stands abated against rambabu. We uphold the conviction of aforesaid 7 accused persons under section 148 IPC and sentence of R. I. for 6 months. As rambabu died during the pendency of this appeal, the appeal stands abated against rambabu. We uphold the conviction of aforesaid 7 accused persons under section 148 IPC and sentence of R. I. for 6 months. We modify the sentence under section 435 read with section 149, under section 436 r/w section 149 IPC to 2-1/2 years and raise the fine of Rs.> 500/- to Rs. 2,500/-, in default of payment of fine they have to undergo further 9 months imprisonment under each section. Under section 302 read with section 149 IPC we uphold the sentence of life imprisonment and fine of Rs. 2000/ -. Under section 323 read with section 149 we uphold sentence of R. I. for 6 months. The conviction of Om Prakash under section 394 and sentence imposed thereunder is also affirmed. ( 17. ) OUT of remaining accused persons namely Prem Singh, Baijnath, Baliram,netram, Daulatram, Pratap, Kamal, Kalyan, Kamal, Hemraj, Gorelal, Shaitan singh, Bahadur Singh, Sardar Lodhi, Hemraj, Devi Lodhi, Ganesh, Buddu, Somat s/o Amar Singh, Phool Singh, Narayan, Hari Singh s/o Hukumchand (Dharamchand), Arjun, Gappu @ Ghansunder. We acquit remaining accused persons for commission of offence under section 302 read with section 149 IPC for committing murder of Ramgopal. We uphold their conviction under section 148 IPC and sentence of R:i. for 6 months. We modify the sentence under section 435 r/w section 149, under section 436 r/w section 149 IPC to 2-1/2 years and raise the fine of Rs. 500/- to Rs. 2,500/-, in default of payment of fine they have to undergo further 9 months imprisonment under each section. Under section 323 r/w section 149 of IPC, we uphold sentence of R. I. for 6 months. ( 18. ) WE acquit the remaining 18 accused persons namely Vidyanand, Murli Prasad, Naresh Chandra, Ramcharan, Devi, Gulab, Shivcharan s/o Beeralal, suresh Kumar, Prakash Narayan, Udayram, Laxman Singh, Radheshyam @ Meharban Singh, Harcharan, Kailash, Badami Singh, Karan Singh, ,madan Lal, somat s/o Tularam, Arjun s/o Narayan, Hemraj @ Hansraj, giving them benefit of doubt from commission of offence under the aforesaid sections. ( 19. ) THE fine which may have been paid to the wife of the deceased shall not be recovered from her and remaining amount of fine on being deposited shall also be paid and if refund is necessitated due to acquittal, remaining fine to be deposited by convicted accused persons. ( 20. ( 19. ) THE fine which may have been paid to the wife of the deceased shall not be recovered from her and remaining amount of fine on being deposited shall also be paid and if refund is necessitated due to acquittal, remaining fine to be deposited by convicted accused persons. ( 20. ) AS stated by counsel on behalf of State that appellants are on bail and in view of the aforesaid judgment 33 accused persons whose conviction have been upheld they are directed to surrender before the trial court for facing the remaining jail sentence on or before 15. 11. 2008. Subject to surrender their bail bonds are cancelled. Bail bonds of remaining 18 acquitted persons are hereby discharged. ( 21. ) RESULTANTLY, the appeals are hereby allowed in part to the aforesaid extent. Appeal partly allowed.