JUDGMENT : S.L. KOCHAR, J. The appellants have come up in appeal aggrieved with the judgment of conviction and sentence rendered against them by learned Addl.Sessions Judge, Narsinghgarh in Sessions Trial No. 64/88 judgment dated 30th September, 1999 whereby convicted the appellants Mangilal and Bhagwatsingh under sections 148, 302, 307/149 and 324 of the Indian Penal Code sentenced each to undergo three years RI, R.I. for life with fine of Rs. 1,000/-, 10 years RI with fine of Rs. 20,000/- and three years RI with fine of Rs. 2,000/- in two counts to Mangilal and in one count to Bhagwatsingh and also sentenced Bhagwatsingh under section 324/149 of the Indian Penal Code in one count, in default of payment of fine each were sentenced to undergo three months RI, three years RI, six months RI in two counts, respectively whereas appellants Ramnathsingh and Premsingh were convicted under sections 147, 302/149, 307/149 and 324/149 of the Indian Penal Code, sentenced each of them to two years RI, RI for life with fine of Rs. 1,000/-, 10 years RI with fine of Rs. 20,000/- and three years RI with fine of Rs. 2,000/- in two counts; in default of payment of fine each were sentenced to undergo three months RI, three years RI, six months RI in two counts, respectively. Out of fine amount, Rs. 90,000/- was directed to be paid to injured Bhagwansingh whereas Rs. 5000/- to each injured Shaitanbai and Gajrajsingh. However, the substantive jail sentences have been directed to run concurrently. 2. Briefly stated the prosecution case as unfolded before the trial Court is that on 12-9-1987 at about 10 A.M. prosecution witness Gajrajsingh (PW.4) along with his servant deceased Radheshyam were going to their field with bullock, at that moment appellants along with deceased co-accused Arjunsingh (Arjunsingh died during the course of trial) reached on the spot and started assaulting Radheshyam. Appellants Mangilal and Bhagwatsingh assaulted Radheshyam by axe whereas appellants Premsingh and Ramnathsingh assaulted by lathi. Gajrajsingh tried to save Radheshyam. He was assaulted by deceased co-accused by sickle. He was also assaulted by Mangilal, Bhagwatsingh, Premsingh and Ramnathsingh. During the course of assaulting deceased Radheshyam and Gajrajsingh, prosecution witness Bhagwansingh (PW.12) and his mother Shaitanbai (PW.2) reached there and tried to save deceased and Gajrajsingh but they too were also given beating by appellants. All the four injured fell unconscious on the spot. He was also assaulted by Mangilal, Bhagwatsingh, Premsingh and Ramnathsingh. During the course of assaulting deceased Radheshyam and Gajrajsingh, prosecution witness Bhagwansingh (PW.12) and his mother Shaitanbai (PW.2) reached there and tried to save deceased and Gajrajsingh but they too were also given beating by appellants. All the four injured fell unconscious on the spot. Ghisusingh, the son of Shaitanbai and daughter-in-law Bambubai (PW.3) were present in the nearby field having maize crop. They immediately went to their house and disclosed the incident to Phool Kunwar (PW.1). Phoolkunwar along with sister-in-law Nand Kunwar and Ratan Kunwar reached in the field and raised cry, attracting villagers Tawarsingh, Prabhunathsingh, Ajabsingh, Harnathsingh, Vikramsingh and village choukidar Gangaram. Phoolkunwar took all the four injured in bullock cart and when reached near the place known as Jamonia Bungalow at 4.05 p.m met with Sub Inspector Y. S. Thakur (PW.14) who was on patrolling duty. Y. S. Thakur, Sub Inspector recorded Dchati Nalishi at the instance of Phool Kunwar vide Ex.P.l. The injured persons were sent to Narsinghgarh Civil Hospital and were examined by Dr. N. K. Rathore (PW.6) who issued their MLC reports Ex.P.2 to P.5. Deceased Radheshyam and injured Bhagwansingh were referred to Hamidia Hospital for their further treatment. On 15/9/1987 in the night at 2.45 A.M. Radheshyam died during the course of treatment in Hamidia Hospital, Bhopal. It is said that the fields of witness Gajrajsingh (PW.4) and appellant Mangilal were situated adjacent to each other and from the field of appellants there was way to the field of Gajrajsingh. Appellant Mangilal collected dry earth after digging well on the way and there was dispute going on between them on this count. The dead body of deceased Radheshyam was sent for post-mortem examination which was conducted by Dr. Gour Boss (PW.23). The post-mortem report is Ex.P.36. Dr. S. K. Nigam (PW.20), Radiologist, after X-ray examination of deceased and Bhagwansingh (PW.12) given report Ex.P.28 and P.30, respectively. Dr. A. K. Tiwari (PW.23) also gave medico legal certificate of deceased Radheshyam Ex.P.34 and P.35 of Bhagwansingh (PW.12). Sub-Inspector Jenu Vishnoi (PW.21) registered FIR (Ex.P.33) on the basis of Dehati Nalishi. The Investigating Officer prepared the spot map (Ex.P.9) and also got prepared spot map (Ex.P.7) from Patvari Mangalsingh (PW.7). On completion of investigation, the appellants were charge-sheeted for commission of offence under sections 148, 302/149, 307/149 of the Indian Penal Code. 3. Sub-Inspector Jenu Vishnoi (PW.21) registered FIR (Ex.P.33) on the basis of Dehati Nalishi. The Investigating Officer prepared the spot map (Ex.P.9) and also got prepared spot map (Ex.P.7) from Patvari Mangalsingh (PW.7). On completion of investigation, the appellants were charge-sheeted for commission of offence under sections 148, 302/149, 307/149 of the Indian Penal Code. 3. The fifth co-accused Arjunsingh has died during the course of trial. 4. The appellants refuted the charges. Their defence was that deceased Radheshyam was having illicit relation with daughter-in-laws of Shaitanbai because of which her sons prosecution witnesses Gajrajsingh (PW.4) and Bhagwansingh (PW.12) were having ill-will with Radheshyam who was serving under them. On the date of incident, there was quarrel between Radheshyam and Gajrajsingh and in the same quarrel Shaitanbai, Bhagwansingh, Gajrajsingh and deceased Radheshyam received injuries but to save themselves, complainant party concocted a false case against them. Appellants have not examined any witness in defence. Learned trial Court finding the appellants guilty, convicted and sentenced them as described hereinabove. 5. Learned counsel for appellants has submitted that all the three injured eye witnesses Shaitanbai (PW.2), Gajrajsingh (PW.4) and Bhagwansingh (PW.12) have not given specific ovcrtact of the appellants regarding causing injuries to deceased. Same argument has also been advanced for eye witness Bambubai (PW.3). It has also been submitted that all the eye witnesses were not unconscious but none had lodged the reports and report was lodged by Phool Kunwar that shows that they have concocted a false case against the appellants and according to spot map prepared in presence of panch witnesses Vikramsingh (PW.9) and Aminulla Khan (PW.18), the incident occurred in the field of the appellants, and that conviction of the appellants with the aid of section 149 of the Indian Penal Code is not sustainable and since specific overtact has not been attributed, therefore, appellants arc entitled to be acquitted. 6. 6. In oppugnation, learned counsel for State has submitted that incident occurred on a common way; the approach road going to the field of the complainant party through barren land (PADAT JAMIN) of the appellants on which appellants had collected dry earth after digging well and the prosecution has placed all these material honestly before the Court, and that when five persons were assaulting the deceased and the witnesses and all have sustained number of injuries, it could not be possible for them to see and remember specific overtact of each and every appellants, causing injury to deceased and three injured witnesses and learned trial Court has evaluated the statements of all the prosecution witnesses in detail and accused persons have failed to point out any major lacuna to fragile the prosecution case. The learned counsel has supported the impugned judgment and finding arrived at by the trial Court. 7. Before this Court as well as before the trial Court homicidal death of deceased Radheshyam has not been disputed by the accused persons, even otherwise in view of the medical evidence of Dr. N. K. Rathore (PW.6) who examined the deceased and injured eye witnesses first in time, the evidence of Dr. S. K. Nigam (PW.20) Radiologist, Dr. A. K. Tiwari (PW.22) who proved MLC report of deceased Ex.P.34 and evidence of autopsy surgeon Dr. Gaur Boss (PW.23) who proved post-mortem report (Ex.P.36), the homicidal death of Radheshyam is proved beyond reasonable doubt. 8. Dr. N. K. Rathore (PW.6) found following injuries and gave MLC report (Ex.P.4) of deceased Radheshyam :- 1. I W.10 c.m. 'L' shaped x 2 c.m. x bone deep situated on right parietal region 13 c.m. away from right ext. ear Bone cut for 8 c.m. bleeding present. 2. I. W. 5 c.m. x ½ c.m. x bone deep horizontally placed 1 c.m. behind injury number 1. Bone cut for 4 cm. fresh bleeding present. 3. I. W. 6 c.m. x ½ c.m. x muscle deep 3 c.m. below left eye ball horizontally placed, bleeding present. 4. I. W. 2 c.m. x 1 c.m. over left forehead skin deep 2 c.m. above orbital margin horizontally placed. 5. I. W. 2 c.m. x ½ c.m. x skin deep obliquely placed just lateral to outer angle of left eye. 6. Bruise 10 inch x 2 inch obliquely placed across back at the level of D-10, colour red. 7. 4. I. W. 2 c.m. x 1 c.m. over left forehead skin deep 2 c.m. above orbital margin horizontally placed. 5. I. W. 2 c.m. x ½ c.m. x skin deep obliquely placed just lateral to outer angle of left eye. 6. Bruise 10 inch x 2 inch obliquely placed across back at the level of D-10, colour red. 7. Bruise 10 inch x 2 inch, 3 c.m. to the left of injury number six colour red. Opinion :- All injuries were caused within 6 hours of examination. Injury No. 1, 2, 5 by hard and sharp object. Injury No. 3, 4, 6, 7 by hard and blunt object. Nature :- Injury No. 3, 4, 5 is simple, rest all are referred x-ray and expert opinion for which referred to Hamidia Hospital, Bhopal. 9. Dr. N. K. Rathore (PW.6) found following injuries and issued MLC report (Ex.P.5) of injured Shaitanbai (PW.2) :- 1. I. W. left parietal region 5 c.m. x ½ c.m. x scalp deep vertically placed 13 c.m. above external ear fresh bleeding present. 2. I.W. 1 c.m. x ½ c.m. x skin deep vertically placed over middle 1/3rd of right tibial skin, fresh bleeding present. 3. Bruise 10 c.m. x 5 c.m. over medial aspect of left knee, colour reddish blue. 4. Bruise 12 c.m. x 4 c.m. over back of right knee, colour reddish blue. 5. Bruise left scapular region 10 c.m. x 4 c.m. horizontally placed, colour reddish blue. 6. Bruise 10 c.m. x 8 c.m. outer aspect of upper 1/3rd of left arm, colour reddish blue. 7. Bruise 12 c.m. x 6 c.m. near lower 1/3rd of left thigh outer aspect, colour reddish blue. 8. Bruise 8 inch x 1 inch over back vertically placed over left side 6 c.m. away from midline. Opinion :- All injuries were fresh. Injury No. 2 caused by hard and sharp object and was simple in nature. All other injuries were caused by hard and blunt object. 10. Dr. N. K. Rathore (PW.6) found following injuries in MLC report (Ex.P.2) of Gajrajsirigh (PW.4) :- 1. I. W. 3 c.m. x ½ c.m. x skin deep over right eyebrow oblique placed, fresh bleeding present. 2. Bruise 5 c.m. x 3 c.m. just beneath right eye, colour blue black. 3. I. W. 1 c.m. x ½ c.m. x skin deep over right cheek, fresh bleeding present. 4. I. W. 3 c.m. x ½ c.m. x skin deep over right eyebrow oblique placed, fresh bleeding present. 2. Bruise 5 c.m. x 3 c.m. just beneath right eye, colour blue black. 3. I. W. 1 c.m. x ½ c.m. x skin deep over right cheek, fresh bleeding present. 4. I. W. 1½ x ½ c.m. x muscle deep over right cheek 2 c.m. in front of injury number 3, fresh bleeding present. 5. I. W. 2 c.m. x 2 c.m. over tip of right ring finger bone deep, fresh bleeding present. 6. Bruise 3 c.m. x 2 c.m. over upper 1/3rd of left skin of tibia, swelling present. 7. I. W. 1 c.m. x ½ c.m. x skin deep, bleeding present over left skin 6 c.m. below injury No. 6. 8. I. W.1 c.m. x ½ c.m. x sub cut deep on middle 1/3rd of right skin. 9. I. W. 12 c.m. x 4 c.m. x muscle deep situated in right side of back starting from 2 c.m. lateral to L, spine directed downwards and laterally, spindle shaped, fresh bleeding present. Opinion :- All injuries were fresh, 1, 7, 8, 9 by hard and sharp object. 2, 3, 4, 5, 6 by hard and blunt object. 1, 3, 4, 8 were simple. All other injuries for nature referred for x-ray. 11. Dr. N. K. Rathore (PW.6) found following injuries in MLC report (Ex. P.3) of injured Bhagwansingh (PW.12) :- 1. I. W. 7 c.m. x 2 c.m. x bone deep situated over left parietal region placed vertically 11 c.m. from ext. ear. Fresh bleeding present. Right eye reddish blue on upper eye lid. Opinion :- Injury caused by hard and blunt object within 6 hours of examination. Nature referred for x-ray and opinion by surgical expert for which patient referred to Hamidia Hospital, Bhopal. 12. Dr. S.K. Nigam (PW.20) Radiologist took x-ray of injuries of deceased Radheshyam and found fracture of right parietal bone (Ex.P.28) and found fracture of left parietal bone in x-ray of Bhagwansingh (PW.12) (Ex.P.30). 13. Dr. A. K. Tiwari (PW.22) proved MLC report of deceased (Ex.P.34) and report of Bhagwansingh (Ex.P.35). Dr. Gaur Boss (PW.23) proved post-mortem report of deceased Radheshyam (Ex.P.36) and found the following :- On external examination, he found dead body of well build young male. Head is shaved and bandaged. 13. Dr. A. K. Tiwari (PW.22) proved MLC report of deceased (Ex.P.34) and report of Bhagwansingh (Ex.P.35). Dr. Gaur Boss (PW.23) proved post-mortem report of deceased Radheshyam (Ex.P.36) and found the following :- On external examination, he found dead body of well build young male. Head is shaved and bandaged. A red thread present around right wrist which is blood smudged (dried). Eyes are open, mouth open, tongue inside the mouth, intravonous and intra cardiac prick mark present, hypostasis present over back, rigor mortis present all over the body, reflex elicitation marks present, feet and legs are having dried mud stains. On internal examination of chest he found it healthy, little amount of froth present, lungs congested and edematous., percarsium healthy, right chamber of heart was full of blood and abdomen was healthy, his gall bladder was found empty, genital organ found healthy, stomach was containing 20 cc of brownish mucoid fluid, intestine was having little amount of faecal matter, liver, spleen and kidney were congested. Opinion:- Death was due to cardio respiratory failure as a result of head injury and its complications. Injury with hard sharp and hard and blunt object evident. Duration of death is within 24 hours since post-mortem examination. Death was homicidal. 14. The conviction of the appellants is mainly based on injured eye witnesses account of Shaitanbai (PW.2), Gajrajsingh (PW.4), Bhagwansingh (PW.12) and fourth eye witness Bambubai (PW.3) coupled with statement of Phool Kunwar (PW.1) who lodged the FIR (Dehati Nalishi) (Ex.P.l) corroborated by medical evidence and evidence of recovery of weapon of the offence from the possession of the appellants as well as FSL report. On examination of blood stained earth and lathi seized from appellant Premsingh, human blood was found in FSL report (Ex.P.37) and serologist report (Ex.P.38). 15. Phool Kunwar (PW.1) has accepted lodging of report (Ex.P.1) Dehati Nalishi recorded by Y.S. Thakur, Sub Inspector (PW.14) and on the basis of this report Sub Inspector Jenu Vishnoi (PW.21) registered the crime (Ex.P.33). The say of Phool Kunwar is that on the date of incident, in the morning at about 10 A.M. her son Devrajsingh and daughter Bambubai (PW.3) came from field and told her about quarrel going on in the field. The field was situated at the distance of 100-150 paces from her house and visible clearly from the house. The say of Phool Kunwar is that on the date of incident, in the morning at about 10 A.M. her son Devrajsingh and daughter Bambubai (PW.3) came from field and told her about quarrel going on in the field. The field was situated at the distance of 100-150 paces from her house and visible clearly from the house. She reached in the field followed by her two sister-in-laws and saw that servant Radheshyam, brother-in-laws Gajrajsingh, Bhagwansingh and mother-in-law Shaitanbai were lying on the field in injured condition and at the distance of 20-25 feet appellants and deceased co-accused Arjunsingh were standing having axe, sickle and lathi. On hearing outcry, village choukidar Gangaram (PW.5) with villagers, 1 Harnathsingh, and Ajabsingh (PW.11) reached on the spot. With their help the injured persons were brought in bullock cart to village Jamunia Bungalow where Sub Inspector Y. S. Thakur (PW.14) met them, she disclosed about the incident and same was recorded as Ex.P.l (Dehati Nalishi). In para 13 of the cross-examination she deposed that when she was 20-30 feet away from the accused persons she saw them and she saw the appellants assaulting the injured persons from the distance of 30 feet but she was unable to give specific overtact of the appellants. In para 20 she deposed that quarrel took place on account of throwing of dry earth on the approach road to their field, by the accused persons. It was the way for taking bullock cart. She denied the defence suggestion that there was quarrel between Radheshyam and her brother-in-law (devar) in which they sustained injuries and Radheshyam died. She also denied the defence suggestion about lodging false report. On careful perusal of the statement of this witness Phool Kunwar, we are not finding any substantial material to discard her testimony and in our considered opinion, she has given true statement. Her house was situated near to the place of incident and looking to the number of injured persons and injuries, it is clear that incident must have continued for some long time, therefore, her reaching after hearing the clamour of quarrel and witnessing the incident at some distance while reaching to the place of incident was possible. Her version is fully corroborated by report (Ex.P.1) recorded by Sub Inspector Y.S. Thakur (PW.14) on material particulars. 16. Her version is fully corroborated by report (Ex.P.1) recorded by Sub Inspector Y.S. Thakur (PW.14) on material particulars. 16. Shaitanbai (PW.2), injured eye witness has deposed that on the date of incident, deceased Radheshyam went to field in the morning and after some time her son Gajrajsingh, injured eye witness (PW.4) also reached to the field. After some time she and her son Bhagwansingh (PW.12) also reached in the field for calling Gajrajsingh to take Bhagwansingh to hospital who was suffering from fever. At that moment, appellants and deceased accused Arjunsingh were assaulting deceased Radheshyam. Appellants Mangilal and Bhagwatsingh were having axe, deceased-accused Arjunsingh having sickle whereas Ramnathsingh and Premsingh were assaulting by lathi, at that juncture her son injured witness Gajrajsingh (PW.4) tried to rescue Radheshyam but he too was assaulted by the appellants and when they also reached and tried to save them, they were also assaulted by the appellants and the incident was also witnessed by grand-daughter Bambubai (PW.3) and grand-son Devrajsingh who were watching the maize crop in the nearby field. The appellants assaulted them badly and all the four fell on the ground. Bambubai and Devrajsingh immediately went to the house and gave information to Phool Kunwar (PW.1) and sister-in-laws Ratan Kuwar and Nand Kunwar. They all reached on the spot, after some time Ajabsingh, watchman Gangaram and Harnathsingh also reached on the spot. With their help all the four injured persons were taken in bullock cart to village Jamunia Bungalow where inspector met them and deceased persons were taken to Narsingarh hospital. In cross-examination para three she has stated that police recorded her statement on the same day vide Ex.D.2. The defence has confronted this witness with her case diary statement regarding omission of time of incident i.e. 10 A.M. and regarding felling unconscious and regaining consciousness as well as witnessing incident by some other witnesses. On the basis of these omissions and contradictions, in the considered opinion of this Court, the entire testimony of this injured eye witness cannot be brushed aside. On the basis of these omissions and contradictions, in the considered opinion of this Court, the entire testimony of this injured eye witness cannot be brushed aside. The residential house of this witness as well as other injured eye witnesses and Bambubai (PW.3) were situated nearby the field where incident occurred and there was no major obstruction between them, therefore, presence of the witnesses Bambubai (PW.3), Shaitanbai (PW.2) and Bhagwansigh (PW.12) after commencement of the incident was not unnatural and presence of Shaitanbai (PW.2), Gajrajsingh (PW.4) and Bhagwansingh (PW.12) who all sustained injuries in the same incident as described herein above, is fully proved beyond reasonable doubt. The report of the incident was lodged immediately while taking the injured persons by Phool Kunwar (PW.1). 17. Gajrajsingh (PW.4) has deposed that deceased Radheshyam went to field in the morning between 8-9 A.M. and after some time he also reached in the field. When Radheshyam prepared the bullock for ploughing the field, appellants reached over there and started assaulting by their respective weapons to Radheshyam. Appellant Mangilal and Bhagwatsingh were having axe, deceased accused Arjunsingh used sickle and appellants Ramnathsingh and Premsingh were having lathi. He immediately tried to save Radheshyam but accused persons also assaulted him. This witness was present right from the beginning and it is clear from his statement that all the appellants along with deceased co-accused Arjunsingh came together on the spot and started assaulting deceased Radheshyam, thereafter to this witness who tried to save Radheshyam. The further say of Gajrajsingh is that when he was being assaulted, his mother Shaitanbai (PW.2) and brother Bhagwansingh (PW. 12). also reached over there to call him for taking Bahgwansingh to the hospital who was suffering from fever. They too were also beaten by the appellants and all sustained injuries in the same incident. He has stated specifically that he was not able to see which accused caused injury on a particular part of the body of deceased Radheshyam by their weapons because he was also assaulted by the appellants/accused persons. 18. The same statement has been given by Shaitanbai (PW.2) and Bhagwansingh (PW.12). He has stated specifically that he was not able to see which accused caused injury on a particular part of the body of deceased Radheshyam by their weapons because he was also assaulted by the appellants/accused persons. 18. The same statement has been given by Shaitanbai (PW.2) and Bhagwansingh (PW.12). When deceased and all the three injured eye witnesses were assaulted indiscriminately by five persons having axe, lathi and sickle, it could not be possible for them to observe and keep in mind specific overtact of each appellant causing injuries by a particular manner on a particular part of body of them. The fact remains that along with deceased these witnesses were assaulted and medical expert found injuries on their person caused by sharp edged weapons as well as hard and blunt object. The testimony of all the three injured eye witnesses is fully corroborated by medical evidence of aforesaid witnesses Dr. N. K. Rathore (PW.6), Dr. S. K. Nigam, Radiologist (PW.20), Dr. A. K. Tiwari (PW.22), their version about witnessing the incident of assault to deceased Radheshyam is also corroborated by autopsy surgeon Dr. Gaur Boss (PW.23) who proved post-mortem report (Bx.P.36). Bhagwan Singh (PW.12) sustained fracture of left parietal bone which is clear from x-ray report (Ex.P.30) proved by Dr. S. K. Nigam (PW.20). Deceased Radheshyam also suffered fracture of right parietal bone. Injured eye witness Gajraj sustained in all nine external injures caused by sharp edged weapon as well as hard and blunt object. Bhagwansingh (PW.12) suffered lacerated wound 7 c.m. x 2 c.m. with fracture of skull bone, deceased Radheshyam sustained in all seven injuries caused by hard and blunt object as well as sharp edged weapon with fracture of skull bone, Shaitanbai (PW.2) suffered eight injuries. It is pertinent to mention here that appellants have denied any kind of participation in the incident. It is not their case that incident occurred on their field and they acted in right of private defence of their person and property. They have not claimed suffering from any injury sustained in the same incident. 19. On careful perusal of the statements of aforementioned injured eye witnesses specifically, we are finding ring of truth in their statements and if report was not lodged by any of the injured eye witnesses, it cannot be said that a false case has been concocted. The report was lodged by Phool Kunwar (PW. 19. On careful perusal of the statements of aforementioned injured eye witnesses specifically, we are finding ring of truth in their statements and if report was not lodged by any of the injured eye witnesses, it cannot be said that a false case has been concocted. The report was lodged by Phool Kunwar (PW. 1) who had also seen the part of the incident and was taking the injured persons to the hospital. Her report was recorded on the way by Sub Inspector Y. S. Thakur (PW.14) who proved the same. 20. In view of the eye witnesses account of first eye witness Gajrajsingh (PW.4) in whose presence all the appellants reached on the spot having weapons (axe, lathi and sickle) and started assaulting deceased Radheshyam, thereafter on intervention by him, to him and lateron on intervention by Shaitanbai (PW.2) and Bhagwansingh (PW. 12) they were also assaulted, clearly establishes that appellants after forming unlawful assembly with common object to commit murder of Radheshyam reached on the spot and assaulted him and on intervention also assaulted to three witnesses, therefore, their conviction with the aid of section149 of the Indian Penal Code is fully justified. They came together and left the spot after causing injuries to deceased and three witnesses together is sufficient to hold that they were the members of unlawful assembly having deadly weapon and in prosecution of common object of commission of murder of Radheshyam assaulted him and same unlawful assembly also assaulted the injured persons, therefore, this Court does not find any merit in the argument of learned counsel for appellants that their conviction with the aid of section 149 of the Indian Penal Code is not maintainable. 21. In view of the aforesaid discussion, we do not find any substance in this appeal, therefore, same is dismissed. The appellant No. 2 Bhagwatsingh is on bail. lie is directed to surrender himself before the trial Court on 23rd March, 2009 and trial Court is directed to send him to jail to serve out the remainder part of jail sentence. On non-appearance of appellant Bhagwatsingh before the trial Court on a given date, the trial Court is directed to take suitable legal action against him as well as his surety under intimation to this Court. On non-appearance of appellant Bhagwatsingh before the trial Court on a given date, the trial Court is directed to take suitable legal action against him as well as his surety under intimation to this Court. Out of realisation of fine amount, compensation be given to the injured persons as directed by the learned trial Court, in the impugned judgment. Office is directed to send copy of this judgment along with the record to the trial Court.