JUDGMENT 1. - Heard learned counsel for the parties. 2. Sixteen accused-appellants namely Hari Charan S/o Madan Lal, Kanhaiya Lal S/o Madan Lal, Bhanwar Lal S/o Chhitar Lal, Pratap S/o Mangli Lal, Hazari Lal S/o Mangali Lal, Kajod S/o Badri Lal, Modu Lal S/o Madho Lal, Devi Lal S/o Onkar Lal, Babu Lal S/o Latoor Lal, Ram Singh S/o Ganga Ram, Jagannath S/o Ballabh, Chhitar Lal S/o Bheru Lal, Radhey Shyam S/o Mangi Lal, Laxman Singh S/o Panna Lal, Chhotu Lal S/o Madho Lal and Jagdish S/o Moti Lal have preferred the present appeal challenging their conviction and sentence passed by the Additional Sessions Judge (Fast Track), Chhabra, District, Baran in Sessions Case No.18/2002, whereby accused-appellants have been convicted and sentenced as under:-Appellants Chhotu S/o Madho Lal & Jagdish S/o Moti Lal:- Under/ Section 302 IPC To undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo rigorous imprisonment for two years. Under/ Section 148 IPC To undergo rigorous imprisonment for two years. Under/ Section 323/149 IPC To undergo rigorous imprisonment for one year. Remaining 14 Accused-Appellants:- Under/ Section 302/149 IPC To undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine to further undergo rigorous imprisonment for two years. Under/ Section 148 IPC To undergo rigorous imprisonment for two years. Under/ Section 323/149 IPC To undergo rigorous imprisonment for one year. All the sentences were ordered to run concurrently. 3. Brief facts of the present appeal are that on 14.9.1997 at about 12:30 AM in the night, Om Prakash(P.W.5) S/o Baldev, by caste Nath, resident of village Baravadi along with Janki Lal S/o Prabhu Nath and Bhura Lal S/o Devi Lal by caste Nath submitted a written report(Ex.P9) at Police Station, Mothpur, District Baran, alleging therein that today in the evening at about 7-8 PM, he, Kajod, Jagannath S/o Devanath and Jagannath S/o Ramsukh Gujar all four were consuming liquor at the 'Kankad' of the field, at that time, from the side of Kunthi Laxman Singh, Chhotu Lal, Kajod, Chhittar, Jagdish, Devi Lal, Radhey Shyam, Hajari, Bhanwar Lal, Jagannath, Pratap, Jagannath S/o Badrilal, Ram Singh, Hari Charan, Babu, Kanhaiya Lal, who were armed with Gandasi, Dharias, Lathis, came there with a common intention and upon reaching, Chhotu Lal and Jagdish started inflicting blows on Kajod. Both were having Gandasi in their hands due to which injuries were caused on his back. When he tried to rescue him, he also sustained injuries on his right hand caused by Devi Lal by Dharia, which resulted into profused bleeding, On making their hue and cry, Narendra Gujar and Janki Lal came to rescue them, thereafter, from there all of them dragged Kajod Nath towards hill. He came running to village Baravadi and told Daulat Ram and Gauri Lal that Kajod has been taken away towards Kachhi Hill of Kunthi, thereupon, Bhura Lal, Janki Lal and Shri Ram Gujar went to Kunthi, where they saw Kajod dead in front of temple and whereabouts of Jagannath was not known. It is alleged that the accused persons inflicted injuries to him and Kajod because Kajod used to pass through the Kachhiyo's temple after having consumed liquor. It was alleged that he, Narendra, Janki Lal saw the accused persons in the moon light. 4. On the basis of above written report(Ex.P9), case No.166/97 was registered under Sections 147, 148, 149, 302 & 323 IPC and investigation commenced. Chalked FIR No.166/97 is Ex.P10. During investigation, inquest report (Ex.P2), inspection and site-plan (Ex.P3) were prepared. Autopsy of the dead body was conducted on 14.9.1997 at 11.15 AM. Post-mortem report is Ex.P35. Statements of prosecution witnesses were recorded under Section 161 Cr.P.C. Accused persons were arrested. After completion of investigation, the police filed a charge-sheet against the above-named 16 accused-appellants. 5. Trial court framed charges against accused-appellants Jagdish and Chhotu for the offence under Sections 147, 148, 302 & 323/149 IPC and against remaining 14 accused-appellants for the offence under Sections 147, 148, 302/149 & 323/149 IPC. The accused persons denied the charges and claimed trial. 6. In support of its case, prosecution examined P.W.1 to P.W.35 and produced documentary evidence Ex.P1 to Ex.P77. Thereafter, statements of accused persons were recorded under Section 313 Cr.P.C., wherein they stated that prosecution evidence is false and they have falsely been implicated in the case. In defence, the accused persons examined D.W.1 to D.W.4 and produced documentary evidence Ex.D1 to Ex.D5. 7. Learned trial court after considering the submissions of the parties and record of the trial court convicted and sentenced the accused appellants as mentioned above. 8. In defence, the accused persons examined D.W.1 to D.W.4 and produced documentary evidence Ex.D1 to Ex.D5. 7. Learned trial court after considering the submissions of the parties and record of the trial court convicted and sentenced the accused appellants as mentioned above. 8. Shri A.K.Gupta learned counsel for the appellants vehemently argued that written report (Ex.P9) is fabricated and concocted document, it is ante-dated and ante-timed and the same is proved from the statements of P.W.1 Janki Lal, P.W.2 Bhura Lal, P.W.5 Om Prakash, P.W.32 Radhey Shyam, P.W.35 Bheru Singh, P.W.34 Daulat Ram, D.W.3 Sampat and D.W.4 Dwarka Lal. He referred the statements of above named prosecution witnesses and pointed out number of contradictions, which, according to him, are not only self contradictory but also not corroborated with the statements of each other. He submitted that the written report or the chalked FIR is ante timed and ante dated and concocted one is proved from the fact that there is delay in lodging the FIR and FIR reached late in the court of Judicial Magistrate. The incident took place at about 7-8 PM on 13th September, 1997, written report/chalked FIR is alleged to have been registered during the intervening night of 13th & 14th September, 1997 at about 12:30 AM. The FIR reached in the court on 15.9.1997 at 11:30 PM. He submitted that from this fact, it is clear that genuineness of the FIR is doubtful. The delay in lodging the FIR and late reaching of the FIR in the court, both are fatal to the prosecution case. In support of his submissions, he referred to Marudanal Augusti v. State of Kerala, reported in AIR 1980 SC 638 , Sahib Singh v. State of Haryana, reported in 1997(7) SCC 231 , Ronal Kiprono Ramkant v. State of Haryana, reported in AIR 2001 SC 2488 and Meharaj Singh v. State of U.P., reported in (1994) 5 SCC 188 . 9. Shri Gupta further argued that P.W.5 Om Prakash in his statement admitted that he was not knowing the accused-appellants before the date of incident, but still he mentioned the names of all the persons in the written report. No identification parade was conducted in the present case. The identification of the accused persons by him in the court is valueless. Shri Gupta further argued that P.W.5 Om Prakash in his statement admitted that he was not knowing the accused-appellants before the date of incident, but still he mentioned the names of all the persons in the written report. No identification parade was conducted in the present case. The identification of the accused persons by him in the court is valueless. In support of his submissions, he referred to Mohanlal Gangaram Gehani v. State of Maharashtra, reported in AIR 1982 SC 839 . 10. Shri Gupta further argued that trial court committed serious illegality in convicting 14 accused-appellants with the aid of Section 149 IPC as there is no iota of evidence of common object and an act of accused persons in furtherance of their common object. He has submitted that trial court has not considered the evidence relating to Section 149 IPC and without discussion wrongly convicted 14 accused-appellants with the aid of Section 149 IPC. Therefore, their conviction is liable to be set aside. 11. Learned Public Prosecutor supported the impugned judgment passed by the trial court and submitted that there is no illegality or perversity in the judgment passed by the trial court so as to interfere with the same by this Court. He further submitted that although there is no delay in lodging the FIR and in reaching the FIR before the Magistrate but even if it is assumed for the sake of argument that there is some delay in lodging the FIR and in reaching the FIR before the Magistrate then the same cannot be a ground to throw the entire prosecution case. In support of his submissions, he referred to 2006 Cr.L.R.(SC) 123, Rabindra Mahto & Anr. v. State of Jharkhand and 2009 Cr.L.R.(SC) 55, Aqeel Ahmad v. State of Uttar Pradesh . He submitted that the incident took place on 13.9.1997 at about 7-8 PM and FIR was immediately lodged in the night itself at about 12:30 AM, 14th September, 1997 was Sunday and FIR reached before the Magistrate on 15.9.1997. Therefore, neither there is delay in lodging the FIR, nor in sending the same to the Magistrate. 12. He further submitted that FIR cannot be said to be fabricated or concocted one in the facts and circumstances of the present case. Therefore, neither there is delay in lodging the FIR, nor in sending the same to the Magistrate. 12. He further submitted that FIR cannot be said to be fabricated or concocted one in the facts and circumstances of the present case. The inquest report was prepared on 14.9.1997 at 8:00 AM, the site-plan (Ex.P3) was prepared at 1:30 PM on 14.9.1997 and the post-mortem of the dead body of deceased was conducted on 14.9.1997 at 11:15 AM (morning). Therefore, there is no delay in lodging the FIR or in sending the FIR to the Magistrate. He submitted that neither it is ante-timed nor it is ante-dated. 13. He further argued that accused persons were known to informant and other prosecution witnesses accompanied with him and their names were mentioned in the written report. Therefore, there was no necessity for holding the test identification parade in the present case. 14. He further submitted that all the accused persons were arrested and while they were in custody, they gave information about weapon used by them for inflicting injuries on the person of deceased and injured. Vide Ex.P52, accused Jagdish was arrested on 18.9.1997. He gave an information vide Ex.P68 and in pursuance thereof a Gandasi was recovered vide recovery memo Ex.P30. Similarly, accused Chhotu was arrested vide Ex.P54 on 18.9.1997. He gave an information while in custody about weapon used by him vide information memo Ex.P70 and a weapon i.e. Gandasi was recovered vide recovery memo Ex.P18. He, therefore, submitted that statements of prosecution witnesses are corroborated with recovery of weapon used by accused-persons in the crime. 15. He also referred to the statements of eye-witnesses, doctor and the investigating officer and submitted that there is no force in any of the submissions of the learned counsel for the appellants and appeal deserves to be dismissed. 16. So far as evidence with regard to section 149 IPC is concerned, the learned Public Prosecutor could not point out any cogent and reliable evidence in this regard during the course of arguments. 17. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment passed by the trial court in the light of their submissions. 18. As per prosecution case, the incident in the present case took place on 13.9.1997 at about 7-8 PM. 17. We have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment passed by the trial court in the light of their submissions. 18. As per prosecution case, the incident in the present case took place on 13.9.1997 at about 7-8 PM. Written report was lodged during the intervening night of 13th & 14th September, 1997 at about 12:30 AM. Inquest report (Ex.P2) was prepared on 14.9.1997 at 8:00 AM. Post-mortem of the deceased was conducted on 14.9.1997 at 11:15 AM (morning). Site-plan (Ex.P3) was prepared on 14.9.1997 at 1:30 PM. 19. Four eye-witnesses have been examined on behalf of the prosecution in the present case namely P.W.1 Janki Lal, P.W.4 Narendra Gurjar, P.W.5 Om Prakash and P.W.8 Jagannath. P.W.1 Janki Lal and P.W.4 Narendra have stated that accused Jagdish and Chhotu inflicted injuries by Gandasis on the head of deceased Kajod. P.W.5 Om Prakash in his written report (Ex.P9) mentioned that accused Jagdish and Chhotu inflicted injuries by Gandasis on the back of deceased Kajod. However, in his court statement, he does not say as to on which part of body, accused Jagdish and Chhotu inflicted injuries on the person of the deceased. P.W.8 Jagannath, who identified all the accused appellants in the court, stated that they came armed with weapons and started beating on the person of Kajod. P.W.7 Shriram and P.W.34 Daulat Ram have corroborated the statements of prosecution eye-witnesses. 20. Ex.P35 is the post-mortem report of the deceased, according to which deceased sustained following five injuries:- (1) Incised wound 5 x 1 x deep bone left parietal-bone of scalp. (2) Incised wound 4 x 1 x deep bone just above right side ear of scalp. (3) Lacerated wound 3 x 1 x deep to muscle on left leg 11 cm below left knee joint & 4 x 3 cm swelling on mid of thigh. (4) Lacerated wound 3 x 2 deep muscle on right leg 7 cm below of right knee joint diffuse swelling on thigh of right leg. (5) Contusion 6 X 1 cm just below right scapular region. Post-mortem of deceased was conducted by P.W.31 Dr.Hemant Dawaria, who proved the post-mortem report (Ex.P35). He stated that cause of death of deceased was coma due to head injury. The injury sustained by deceased on head was sufficient to cause death in the ordinary course of nature. 21. (5) Contusion 6 X 1 cm just below right scapular region. Post-mortem of deceased was conducted by P.W.31 Dr.Hemant Dawaria, who proved the post-mortem report (Ex.P35). He stated that cause of death of deceased was coma due to head injury. The injury sustained by deceased on head was sufficient to cause death in the ordinary course of nature. 21. Submission of the learned counsel for the appellants that FIR is fabricated or concocted or ante timed or ante dated is based on the statements of P.W.1 Janki Lal, P.W.2 Bhura Lal, P.W.5 Om Prakash. During the course of arguments, he highlighted the statement of P.W.5 Om Prakash, who in his written report submitted that accused Jagdish and Chhotu inflicted injuries on the person of deceased at his back, whereas from the statement of Dr.Hemant Dadwaria and post-mortem report (Ex.P35), it is clear that there is no injury on the back of the deceased. The fatal injury was found on the head, whereas P.W.5 Om Prakash did not say in the written report that appellants Jagdish and Chhotu inflicted head injury. He, therefore, argued that P.W.5 Om Prakash was not present on the spot and he was not even aware as to on which part accused Jagdish and Chhotu inflicted injury on the person of the deceased. He also supported his submission contending that when incident took place at about 7-8 PM then there was no reason for not lodging the report immediately, there is delay of about 4-5 hours in lodging the First Information Report. He further submitted that FIR reached in the court on 15.9.1997 at 11:30 PM. He referred the statement of P.W.2 Bhura Lal, who accompanied with P.W.5 Om Prakash at the time of lodging of written report, but Bhura Lal in his statement does not say in the court about it. P.W.1 Janki Lal who accompanied with P.W.5 Om Prakash at the time of lodging of written report does not say in his court statement about it and only in his cross examination, he stated about it. So far as late reaching of FIR in the court is concerned, the learned counsel referred the statement of P.W.32 Radhey Shyam, who stated that he was Investigating Officer, but he stated in court that he is not aware about action taken with regard to sending of report to court. 22. So far as late reaching of FIR in the court is concerned, the learned counsel referred the statement of P.W.32 Radhey Shyam, who stated that he was Investigating Officer, but he stated in court that he is not aware about action taken with regard to sending of report to court. 22. In Marudanal Augusti v. State of Kerala (supra), the Hon'ble Apex Court held that the entire fabric of the prosecution case would collapse if the F.I.R.is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. 23. In Sahib Singh v. State of Haryana (supra), the Hon'ble Apex Court considered the chronology of events indicated in that case, that the F.I.R. Was registered after the statement of Dharam Pal was recorded by the police at the hospital and further that although Sunder remained in the village, he did not go to the police station to lodge the report. Hon'ble Apex Court observed that F.I.R. in that case was lodged after unreasonable "delay" and after due deliberation and gave the benefit to the accused persons by acquitting them. 24. In Ronal Kiprono Ramkant v. State of Haryana (supra), the Hon'ble Apex Court came to a conclusion after scrutinising the facts of that particular case that there was considerable delay in registering the FIR and the explanation given for the delay is not convincing and gave the benefit to accused by acquitting them. 25. In Meharaj Singh (L/Nk.) v. State of U.P. (supra), the Hon'ble Apex Court after considering the facts and circumstances of that particular case opined that on account of the infirmities as noticed in the case, the FIR has lost its value and authenticity and it appears that the same is ante timed and had not been recorded till the inquest proceedings were over at the spot. 26. In Rabindra Mahto & Anr. v. State of Jharkhand, reported in 2006 Cr.L.R.(SC) 123 , the Hon'ble Apex Court considered the scope of Section 157 Cr.P.C. and observed that there cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. 26. In Rabindra Mahto & Anr. v. State of Jharkhand, reported in 2006 Cr.L.R.(SC) 123 , the Hon'ble Apex Court considered the scope of Section 157 Cr.P.C. and observed that there cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. At the same time, this lacuna on part of prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. Hon'ble the Apex court observed that this will be a material circumstance, which will be taken into consideration while appreciating the evidence on record. Para 18 of the judgment is reproduced as under:- "18. In the matter of Suresh Chaudhary(supra) this Court in Para 9 (bottom) has held that: "....That apart, the express message which PW-13 sent to the jurisdictional Magistrate reached the said Magistrate at his place only on 10.12.1092 nearly 1= days after the said complaint was registered and we find no explanation from PW-13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case". There cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157, Cr.P.C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation. The cases cited by the learned counsel for the appellants do not lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The cases cited by the learned counsel for the appellants do not lay down any law that simply because there is a delay in lodging the FIR or sending it to the Magistrate forthwith, the entire case of the prosecution has to be discarded. The decisions rendered by this Court and relied upon by the learned counsel for the appellant would only show that this will be a material circumstance which will be taken into consideration while appreciating the evidence on record." 27. In Aqeel Ahmad v. State of Uttar Pradesh (supra), the Hon'ble Apex court considered the meaning of the word "forthwith" occurring in Section 157 of the Code of Criminal Procedure and held that there is no doubt that forwarding of the report is indispensable and absolute and it has to be forwarded with earliest. Hon'ble Apex Court also considered its earlier judgment in Sunil Kumar v. State of Rajasthan, (2005) 9 SCC 283 , wherein the Hon'ble Supreme Court observed that as a rule of universal application it cannot be laid down that whenever there is some delay in sending the F.I.R. to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. Para 5 of the judgment reads as under:- "5. There is no doubt that forwarding of the report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word 'forthwith' occurring in Section 157 of the Code which means promptly and without any undue delay. The real purpose is to avoid possibility of the improvement in the prosecution case and introduction of distorted version by deliberations and consultation and to enable the Magistrate concerned to have a watch on the progress of the investigation. In Sunil Kumar v. State of Rajasthan, (2005) 9 SCC 283 it was observed by this Court that as a rule of universal application it cannot be laid down that whenever there is some delay in sending the F.I.R. To the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. It was noted in the said case that investigation was taken up immediately and certain steps in the investigation were taken. Therefore, the plea that there was delayed F.I.R. and/or that the F.I.R. was inexistent at the relevant point of time was turned down. It would depend upon the facts of each case. It was noted in the said case that investigation was taken up immediately and certain steps in the investigation were taken. Therefore, the plea that there was delayed F.I.R. and/or that the F.I.R. was inexistent at the relevant point of time was turned down. In the instant case the High Court noted that the same was received on 20.12.2001. The High Court observed that if there was any lapse on the part of the Investigating Officer, that would not affect the credibility of the prosecution version." 28. Section 157 of the Code of Criminal Procedure, 1973 says that if, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case.The word 'forthwith' appearing in Section 157 Cr.P.C. makes it obligatory on part of an officer in-charge of a police station to send the report forthwith to the Magistrate empowered to take cognizance of such offence upon a police report. The word 'forthwith' occurring in Section 157 Cr.P.C. has been examined on number of times by Hon'ble Apex Court in number of judgments and ultimately held that forwarding of the report is indispensable and absolute and it has to be forwarded at the earliest. The real purpose is to avoid possibility of the improvement in the prosecution case and introduction of distorted version by deliberations and consultation and to enable the Magistrate concerned to have a watch on the progress of the investigation. However. As observed by the Hon'ble Supreme Court in Sunil Kumar v. State of Rajasthan (supra), which was further considered by Hon'ble Apex Court in Aqeel Ahmad v. State of U.P. (supra), the Hon'ble Apex Court observed that as a rule of universal application it cannot be laid down that whenever there is some delay in sending the F.I.R. to the Magistrate, the prosecution version becomes unreliable. It would depend upon the facts of each case. 29. Looking to the facts of the present case, as discussed above, the incident took place on 13.9.1997 at about 7-8 PM. The report was lodged in the night itself i.e. intervening night of 13th and 14th September, 1997 at about 12:30 AM. The distance of village, where incident took place and Police Station Mothpur is 6 Kms. The inquest report (Ex.P2) was prepared on 14.9.1997 at 8:00 AM. The autopsy of the deceased was conducted on 14.9.1997 at 11:15 AM. The site-plan (Ex.P3) was prepared on 14.9.1997 at 1:30 PM. 30. Learned counsel for the appellants referred some of the contradictions in the statements of the prosecution witnesses to show that written report is ante timed and ante dated but after considering whole of the statements of the prosecution witnesses, we are of the view that there is no delay in lodging the F.I.R. and written report cannot be said to be ante-dated and ante-timed. 31. So far as late reaching of the FIR to Magistrate is concerned, it reached on 15.9.1997 at 11:30 PM. As stated by the learned Public Prosecutor, 14th September, 1997 was Sunday and it reached to Magistrate at 11:30 PM on 15.9.1997. Learned Public Prosecutor explained that normally the copies of the FIRs are sent twice in a day by officer incharge of the police station to Magistrate i.e. before and after lunch hours. The FIR in the present case was in fact reached at 11:30 AM and due to inadvertence the word "PM" has been mentioned in place of "AM". He has submitted that although there is no restriction in sending the FIR to Magistrate at his residence and even at night at 11:30 PM, but generally it is not sent in the odd hours at the residence of the Magistrate. He also submitted that in Para 3 of the impugned judgment, the trial court has mentioned that report (Ex.P10) reached in the court on 15.9.1997 at 11:30 in the day. Although on Ex.P10 the time 11:30 PM has been mentioned and there is no explanation from the side of prosecution whether it was mentioned inadvertently or it is a correct time. Although on Ex.P10 the time 11:30 PM has been mentioned and there is no explanation from the side of prosecution whether it was mentioned inadvertently or it is a correct time. Be that as it may, since we have already came to the conclusion that there was no delay in lodging the FIR and it was registered at 12:30 AM in night, during intervening night of 13th & 14th September, 1997, even post-mortem was conducted at 11:15 AM on 14.9.1997, we are of the view that even if it is assumed that FIR in the present case reached to the Magistrate on 15.9.1997 at 11:30 PM, the entire prosecution case cannot be disbelieved and it cannot be thrown out on this ground alone in the facts and circumstances of the present case. We have considered the case laws referred by the learned counsel for the appellants and we find that all cases were decided on the basis of facts and circumstances of that particular case. 32. So far as submission with regard to test identification parade is concerned, we refer the written report, wherein names of all accused persons have been mentioned. Although P.W.5 Om Prakash initially stated in his court statement that he saw accused persons first time on that day but he further stated that he was knowing the accused persons earlier also. It is relevant to mention that P.W.1 Janki Lal and P.W.4 Narendra were named as eye-witnesses in the written report. P.W.1 Janki Lal was accompanied with P.W.5 Om Prakash at the time of lodging of that report. P.W.1 Janki Lal has named the accused persons in his statement recorded in the court. P.W.4 Narendra has also named the accused persons in his statement recorded in the court. P.W.5 Om Prakash also named seven persons in his statement recorded in the court. Since accused persons were known to prosecution witnesses, who saw the incident, therefore, there was no need for any identification parade in the present case. 33. In Mohanlal Gangaram Gehani v. State of Maharashtra (supra), the Hon'ble Apex Court considered the case, wherein accused was not known to victim and no identification parade took place in the case and victim identified the accused first time in the court. 33. In Mohanlal Gangaram Gehani v. State of Maharashtra (supra), the Hon'ble Apex Court considered the case, wherein accused was not known to victim and no identification parade took place in the case and victim identified the accused first time in the court. Therefore, the Hon'ble Apex Court observed that in the absence of a test identification parade, the evidence of prosecution witness who identified the accused first time in court is valueless and could not be relied upon as held in V.C. Shukla v. State (Delhi Administration), reported in AIR 1980 SC 1382 . Since accused persons were known to prosecution witnesses in the present case and they were named in the written report, therefore, identification of the accused in the court by prosecution witness in the present case cannot be said to be valueless. 34. Now, we will examine the submission of the learned counsel for the appellants with regard to applicability of Section 148 and 149 IPC and conviction of fourteen appellants on that basis. As per Section 149 IPC, 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 committing of that offence, is a member of the same assembly, is guilty of that offence. 35. Section 141 IPC defines "unlawful assembly" and the same is reproduced as under:- "141. 35. Section 141 IPC defines "unlawful assembly" and the same is reproduced as under:- "141. Unlawful assembly.- An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First.- To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second.- To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." 36. For the purpose of conviction of 14 appellants in the present case (except Jagdish and Chhotu) under Section 149 IPC, it was duty of the prosecution to establish that common object of these appellants was to commit murder of deceased Kajod. No iota of evidence in this regard is available in the file. Prosecution has failed to establish that all these persons met together at a particular place and time and agreed/decided to commit murder of Kajod. The learned Public Prosecutor submitted that all the accused came at a time and two persons inflicted injuries on the person of deceased, when Om Prakash resisted then he was also given beating by accused Devi Lal. It is relevant to mention that 16 persons were named in the written report and it was alleged that all were armed with weapons, P.W.1 and P.W.4 also stated that accused persons were armed with weapons, but a bare perusal of the post-mortem report of the deceased will show that he received only five injuries including two fatal injuries on head. So far as injured Om Prakash (P.W.5) is concerned, he sustained only two simple injuries by blunt object and allegation in this regard is against Devi Lal in the written report. P.W.5 Om Prakash in his statement before the court stated that when he intervened then he was beaten by all the accused persons. No other person sustained any injury. There is no evidence that all accused persons met together and understood that the assembly was unlawful and was likely to commit any of the acts, which fall within the purview of Section 141. It shows that their common object was not to kill the deceased. 37. As per statements of P.W.1 Janki Lal and P.W.4 Narendra, the injuries on the head of the person of the deceased were inflicted by accused Jagdish and Chhotu, which proved to be fatal. Although statement of P.W.5 Om Prakash is contradictory, as in the written report, he stated that Jagdish and Chhotu inflicted injuries at the back of the deceased and there is no injury on the back of the deceased, as per medical evidence, but P.W.1 Janki Lal and P.W.4 Narendra both were eye-witnesses in the incident and they were standing nearby the place of incident, as also shown in the site-plan (Ex.P3) and place of incident was easily visible to them. Statements of P.W.1 Janki Lal and P.W.4 Narendra have been corroborated to some extent by statements of P.W.5 Om Prakash and P.W.8 Jagannath and also by P.W.7 Shri Ram & P.W.34 Daulat Ram. These fatal injuries were found on the head of deceased, as per post-mortem report (Ex.P35) and statement of Dr.Hemant Dadwaria (P.W.33). Therefore, it is clear from all reasonable doubt that so far as fatal injuries on the head of the deceased is concerned, the same were inflicted by accused Jagdish and Chhotu and other injuries on the person of deceased were not found to be fatal and it is not clear as to which accused inflicted the said injuries. 38. In Sunil Kumar v. State of Rajasthan (supra), the Hon'ble Apex Court while considering the provisions of Section 149 IPC held that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. 38. In Sunil Kumar v. State of Rajasthan (supra), the Hon'ble Apex Court while considering the provisions of Section 149 IPC held that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. The expression "in prosecution of common object" as appearing in Section 149 IPC has to be strictly construed as equivalent to "in order to attain the common object". 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. 39. Sunil Kumar's case was further considered and relied upon by the Hon'ble Apex Court in Aqeel Ahmad v. State of U.P. (supra). Paras 10 to 17 of Sunil Kumar's case were quoted in Para 9 of Aqeel Ahmad' case. 40. So far as the present case is concerned, as discussed above, it is clear that all the 16 accused persons did not meet together at a particular place and time to form an opinion to commit murder of deceased. All accused-persons did not inflict injury on the person of deceased although they all were armed with weapons, as per prosecution case. As per medical evidence, there were only five injuries on the person of the deceased. However, only two injuries were found to be fatal, which are too attributed to accused Jagdish and Chhotu. It is not clear as to which accused inflicted remaining three injuries on the person of the deceased. 41. During the course of arguments the learned Public Prosecutor could not point out any cogent evidence with regard to Section 149 IPC. In these circumstances, we are of the view that learned trial court committed an illegality in convicting the remaining 14 accused appellants (except Jagdish and Chhotu) for the offence under Section 302 read with section 149 IPC. 41. During the course of arguments the learned Public Prosecutor could not point out any cogent evidence with regard to Section 149 IPC. In these circumstances, we are of the view that learned trial court committed an illegality in convicting the remaining 14 accused appellants (except Jagdish and Chhotu) for the offence under Section 302 read with section 149 IPC. There is no evidence with regard to offence under Section 148 IPC, therefore, trial court also committed an illegality in convicting all the 16 appellants for the offence under Section 148 IPC. 42. So far as appellants Jagdish and Chhotu are concerned, there is ample evidence against them that they inflicted fatal injuries on the head of the deceased, which is corroborated by medical evidence i.e. post-mortem report, therefore, the learned trial court has rightly convicted both of them under Section 302 IPC. 43. So far as injuries on the person of injured Om Prakash (P.W.5) is concerned, the allegation of causing those injuries is against accused Devi Lal in the written report but P.W.5 Om Prakash in his court statement does not name any one with regard to his injuries. Therefore, statement of P.W.5 is contrary to written report lodged by him, therefore, his statement to that extent is liable to be disbelieved. Therefore, all the accused persons are entitled to be acquitted of the offence under Section 323/149 IPC. 44. In view of above discussion, the appeal of 14 appellants namely (1) Hari Charan S/o Madan Lal, (2) Kanhaiya Lal S/o Madan Lal, (3) Bhanwar Lal S/o Chhitar Lal, (4) Pratap S/o Mangli Lal, (5) Hazari Lal S/o Mangali Lal, (6) Kajod S/o Badari Lal, (7) Modu Lal S/o Madho Lal, (8) Devi Lal S/o Onkar Lal, (9) Babu Lal S/o Latoor Lal, (10) Ram Singh S/o Ganga Ram, (11) Jagannath S/o Ballabh, (12) Chhitar Lal S/o Bheru Lal, (13) Radhey Shyam S/o Mangi Lal and (14) Laxman Singh S/o Panna Lal is allowed and they are acquitted of all the charges. The impugned judgment passed by the trial court qua these appellants is set aside. They are on bail, therefore, they need not surrender. Their bail bonds are cancelled. 45. Appeal of appellants Jagdish S/o Moti Lal and Chhotu S/o Madho Lal is partly allowed. The impugned judgment passed by the trial court qua these appellants is set aside. They are on bail, therefore, they need not surrender. Their bail bonds are cancelled. 45. Appeal of appellants Jagdish S/o Moti Lal and Chhotu S/o Madho Lal is partly allowed. They are acquitted of the charges under Section 148 and 323/149 IPC, but their conviction and sentence under Section 302 IPC is maintained. The judgment of the trial court to the above extent qua them is modified accordingly.Appeal of 14 accused persons allowed. *******