JUDGMENT (Per G.Krishna Mohan Reddy, J.) This Appeal is directed against conviction and sentences imposed against the appellants-A-1 toA7 in Sessions Case No.4 of 2004 dated 1.10.2007 on the file of the Court of II Additional Sessions Judge, Kadapa at Proddatur. 2. The appellants are the accused and the respondent is the complainant in the Sessions case. For the sake of convenience, the parties hereinafter be referred to as they are arrayed in the Sessions Case. 3. The prosecution case is as follows: The accused are the residents of Jangalapalli village. The accused and one Pedda Dastagiri Reddy, the sarpanch of the village are brothers. The accused belong to Congress Party. The deceased Vangala Chinna Veera Reddy (for short 'deceased') was also resident of same village and a follower of Telugu Desam Party. Due to panchayat elections, ill-feelings developed between the two groups. On 24/25.6.2003 the deceased was sleeping on a cot along with their daughter, P.W.1, his wife was sleeping on another cot along with their another daughter and P.W.2 another villager was also sleeping in front of the house of the deceased and P.W.1. At about 2 a.m. all the accused having formed unlawful assembly of themselves armed with deadly weapons like hunting sickles with a common object to kill the deceased went to the house of the deceased and Al hacked on the stomach of the deceased with hunting sickle and when the deceased fell down from the cot, the other accused hacked him indiscriminately with hunting sickles causing severe bleeding injuries to him. When P.W.1 got up and tried to intervene, A-1, A3 and A-5 attacked and dealt blows against her with hunting sickles and caused bleeding injuries on her right hand, left side of her chest and left thigh. Further, as P.W.2 also intervened, she was also beaten by which she received injuries. Further P.W.3, Yacob and Siva Reddy who were sleeping in the house, woke up on hearing cries and went to the spot, but as the accused threatened them, they could not intervene in the matter. The accused went away leaving one blood stained sickle at the scene of offence. Further then P.W.1 was informed that younger brother of the deceased namely, Bala Veera Reddy was sacked by Dastagiri Reddy and others. The accused went away leaving one blood stained sickle at the scene of offence. Further then P.W.1 was informed that younger brother of the deceased namely, Bala Veera Reddy was sacked by Dastagiri Reddy and others. Further, thereafter the injured were taken to the Government Hospital, Jammalamadugu and there, the deceased was declared dead and P.W.1 and P.W.2 were given treatment for their injuries. On a statement given by P.W.1, thecasewasregisteredinCrimeNo.31 of 2003 of Peddamudium Police Station, Kadapa district under Sections 147, 148, 324, 302 IPC read with Section 149 IPC. Further, P.W.9 Inspector of Police took up and conducted the investigation of the case. Further the dead body was sent for postmortem examination which was accordingly conducted. Further, during the course of investigation, the police arrested the accused and seized five hunting sickles from A-1 under cover of panchanama, ultimately, the Inspector of Police filed charge sheet. They were tried for charges under Sections 147, 148, 326 read with Section 149 and 302 IPC without a specific charge under Section 302 read with Section 149 IPC. 4. On behalf of the prosecution, P.Ws.1 to 9 were examined and marked Exs.P-1 to P.17 and M.Os.1 to 16 were marked. On behalf of the defence, none was examined but Exs.D1 to D4 were marked. After considering the matter, the Sessions Court found the accused guilty of committing the offences punishable under Sections 147, 148, 302 and 326 read with Section 149 IPC and accordingly convicted them under Section, 235 (2) Cr.P.C. and sentenced them to undergo rigorous imprisonment for three months under the first and second counts each and rigorous imprisonment for life each under the third count and rigorous imprisonment for two years each under the fourth count and also directed that all the sentences should run concurrently, whereby the present appeal is filed. 5. Here the evidence of PWs. 1 to 3 is to be mainly examined to establish the incident because they claim to be the direct witnesses of it. 6. 5. Here the evidence of PWs. 1 to 3 is to be mainly examined to establish the incident because they claim to be the direct witnesses of it. 6. The testimony of PW.1 is as follows: On 24.06.2003, she and her younger daughter were sleeping on a cot and her deceased husband and their eider daughter were sleeping on another cot and Sakunthalamma, their neighbour was also sleeping infront of their house at Jangalapalli village and because one of the daughter was infant, they switched on a light, whereas she deposed in her cross-examination that there was light to a holder at the door of the house and there was no meter outside the house, Further, she deposed in her chief examination that at about2 a.m., as she heard a sound, she woke up and found A-1 to A7 with hunting sickles surrounding the cot of the deceased. Then A-1 hacked on the stomach of the deceased proclaiming that the deceased should be killed and thereby the deceased fell down from the cot and then all the accused hacked the deceased indiscriminately. Further she intervened to save the deceased thereby A-1 hacked on her right hand, A3 hacked on the left side of her chest and A5 hacked on her left thigh and caused injuries. Further, when P.W.2 came to her rescue, she was also hacked and hence she received injury on her left little finger. Thereafter A-1 to A7 fled away. Further, while they were going away, a sickle stained with blood fell down. Further she saw them going away by virtue of a street bulb existing at a distance of 4 or 5 feet. She also deposed that PW.3, Yesob and Sivareddy, who were sleeping in the upstairs of their house, came down and they were threatened by A-1 to A7. Further, then one Papa Veerareddy came and informed her that the younger brother of the deceased, namely, Bala Veera Reddy was killed by Dasthagiri Reddy and others. Further later her husband's brother Bala Veera Reddy was brought to their house in a tractor with bleeding injuries and then she, PW.2 and both the deceased were taken to the Government hospital, Jammalamadugu by the same tractor by PW.3 and Yesob for treatment. Further later her husband's brother Bala Veera Reddy was brought to their house in a tractor with bleeding injuries and then she, PW.2 and both the deceased were taken to the Government hospital, Jammalamadugu by the same tractor by PW.3 and Yesob for treatment. Further, the Sub-Inspector of Police met her and recorded her statement and obtained her left hand thumb impression because her right hand was not functioning, as she received injury, as in Ex.P1. In her cross-examination, she deposed that they took food at about 8.30 or 9.00 p.m. during the previous night. Further she deposed that a bontha was placed on the cot of the deceased and the deceased received one blow while he was on the cot and he received other blows after he fell down on the slab and rolled down to earth portion and then the bontha were not stained with blood and the slab was stained with blood. She also deposed that the blood coming from her injuries also fell on the earth. Further, according to her in her chief examination itself, the motive for the incident was political rivalry following contest between her brother-in-law Bala Veera Reddy and Pedda Dasthagiri Reddy for the post of Sarpanch of the village which her brother-in-law lost. She also deposed that as the deceased desilted a well with the help of villagers under Sramadanam Scheme, Pedda Dasthagiri Reddy was jealous of that and was also jealous of the growing influence of the deceased and infact because of that reason the incident took place. Further, she identified the wearing apparel of the deceased marked as MOs.1 to 5. As per Ex.D1, P.W.1 stated to the police that her brother-in-law Papa Veera Reddy came running and informed that the other deceased was also hacked by some hunting sickles in front of his house. As per Ex.D2 P.W.1 stated in EX.P-1 report that on hearing noise P.W.2 came and objected A-1 to A7 and then they cu t her left hand fingers with knives which were in their hands. As per Ex.D3 she stated to the police accordingly i.e. as in EX.A2. She denied that she stated to the police as in Exs.D-1 and D3 whereas P.W.9 confirmed that P.W.1 deposed to that effect respectively. 7. P.W.2 and P.W.3 corroborated the evidence of P.W.1 by and large. As per Ex.D3 she stated to the police accordingly i.e. as in EX.A2. She denied that she stated to the police as in Exs.D-1 and D3 whereas P.W.9 confirmed that P.W.1 deposed to that effect respectively. 7. P.W.2 and P.W.3 corroborated the evidence of P.W.1 by and large. In her cross-examination, P.W.2 also deposed that her cloths were not stained with blood and no blood was collected on the cot of the deceased. On the other hand, PW.3 further deposed that himself and Yesanna were sleeping in the upstairs of the house of P.W.1 on that day and at about 2 a.m. he heard sounds and shouts and then they came down and found a bulb put on in the varandah of the house and also found street bulb burning outside and not hanging to any pole and then he found A-1 to A7 hacking the deceased with hunting sickles and as A-1 to A7 threatened them with dire consequences armed with hunting sickles, they could not interfere in the matter. Further P.W.2 deposed in her cross-examination that there were no switchboard and meter to the outer wall of the house. She admitted in her cross-examination that she did not state to the police that Yesanna and others were sleeping in the upstairs of the house, whereas according to P.W.1, P.W.3 Yacob and Siva Reddy were sleeping in the house. P.W.3 did not speak about Siva Red y in the house then. 8. P.W.1 and P.W.3 denied in their cross-examination that there was no bulb in the verandah of the house and there was no street bulb and there were also no cots at that time at the house of the deceased respectively. Further, P.W.3 admitted that he did not state to the police that A-1 to A7 threatened them armed with hunting sickles and they left one hunting sickle while going. As per Ex-D4, he stated to the police that he was living by doing cooly work near Chinna Veera Reddy house, he denied that he stated to the police accordingly, whereas P.W.9 testified that P.W.3 stated to him as in Ex.B4. 9. As per Ex-D4, he stated to the police that he was living by doing cooly work near Chinna Veera Reddy house, he denied that he stated to the police accordingly, whereas P.W.9 testified that P.W.3 stated to him as in Ex.B4. 9. With regards to the registration of the case and scene of offence, it is the testimony of P.W.8-S.I. of Police that on 25.6.2003 at 4.00 a.m., while he was Incharge of Peddamudium Police Station, he received hospital intimation (Ex.P5) about the death of the deceased and also about P.W.1 receiving injuries and he went to the hospital and found the dead body of the deceased and on the instructions of the Inspector of Police, who also came there, he recorded the statement of P.W.1 as in EX.P.1 from 4.45 to 6.00 a.m. and later he returned to the Police Station at Peddamudium and on the basis of Ex.P1, he registered the case in Crime No.32 of 2003 on his file and Ex .P.12 is the F.I.R. In his cross-examination, he denied that the report and F.I.R. were not prepared as stated and both of them were brought into existence at 11.30 a.m. under the instructions of T.D.P. Minister and other T.D.P. Personnel and EX.P1 was not given by P.W.1. On the other hand, as per the endorsement on the F.I.R. the concerned Magistrate received it at 1.45 p.m. on the date of incident which delay has not been explained in fact by the prosecution. 10. On the other hand, P. W. 9 deposed that on 25.6.2003 at about 9 a.m. he went to the Government Hospital, Jammalamadugu and he seized the blood stained clothes of P.W.1 (M.Os.1 to 5) and he took up the investigation of the case and it is his further evidence that during the course of the investigation of the case, he visited the scene of offence in front of the house of the deceased with Door N 0.3/166 after visiting the village at 3 p.m. and he prepared sketch of the scene of offence i.e. Ex.P.4 and seized the blood stained hunting sickles, two glowing bulbs, one fixed in front of the house and the other fixed to a nearby electric pole, stone, blood stained earth and control earth (M.Os.6 to 11) in the presence of mediators and EX.P.4 is the corresponding report. In his cross-examination, he deposed that in the panchanama number of cots and so also beds and bonthas existing there were not mentioned and he did not find any holders or bulb point or meter fixed to the outer wall of the house and he found electric wire of about one or two inches hanging from a pipe in the verandah of the house, which was not seized. P.W.4 who is one of the signatories to the panchanama, some what corroborated his evidence. He deposed further that hunting sickle and three electric bulbs were seized at the scene of offence and he did not speak about the seizure of other objects as deposed by P.W.9. 11. In EX.P4 it is stated that P.W.9 seized a bulb hanging from the holder of the street pole situated at a distance of 32 feet from the scene of offence on the western side near 'sandhu rastha' which is shown in the sketch and also a bulb hanging from a current pipe fixed to the wall in front of the house which is not shown in the sketch, but none of the bulbs or the electrical material was marked before the trial Court. Further, the evidence of P.W.1, P.W.3 and P.W.9 that there was a bulb only in the verandah of the ho .Ise which is also not shown in the sketch and the evidence of P.W.2 that there were no switchboard and meter to the outer wall of the house are contradictory to what is contained in EX.P-4 that there was a bulb fixed to the outer wall of the house. In these circumstances, it is difficult to believe that there was a bulb in the verandah of the house or fixed to the outer wall of the house. 12. Further, P.W.9 deposed that at 10 a.m. he conducted inquest over the dead body in the hospital and seized the blood stained clothes of the deceased in the presence of mediators and then it was opined that the deceased died due to the injuries received by him and accordingly inquest report was prepared, whereas EX.P3 is the admissible portion of it. 13. 13. P.W.6Medical Officer deposed that on receiving Ex.P5-requisition from the Police, she conducted post-mortem examination on the dead body of the deceased and found the following incised injuries: (1) An injury on the right side of his face measuring 10 cm x 2 cm x bone deep beginning from the front of his right ear and going to the nose cutting the tip of the nose, placed transversely. (2) An injury on the left side of his forehead near his hairline placed transversely measuring 5 cm x 2 cm x skin deep. (3) An injury on the left temporal region placed transversely measuring 8 cm x 1 cm x bone deep. (4) An injury on the left temporal region measuring 6 cm x 1 cm x bone deep extending to the back of his occipital region 1 cm above the injury No.3. (5) An injury on his right occipital region measuring 8 cm x 2 cm x bone deep placed transversely. (6) Another injury on the right side measuring 18 cm x 4 cm x bone deep from the occipital region to the frontal region. (7) An incised injury on his head from the back to the vault in the midline measuring 15 cm x 3 cm x bone deep. (8) An incised injury on the back of his head measuring 11 cm x 2 cm x bone deep below the right ear. (9) An injury on the right back of his head measuring 6 cm x 1 cm x skin deep 1 cm below injury No.8. (10) An injury on the right back side below the injury No.9 measuring 8 cm x 2 cm x bone deep. (11) An injury on the back of his neck measuring 6 cm x 1 cm x skin deep extending on to the right side shoulder transversely. (12) An incised injury on his scapular regionmeasuringl0cmx 1 cm x skin deep on the right side. (13) An injury on the right backside of the upper border of his Illiacrust measuring 5 cm x 1 cm x skin deep. (14) An incised injury on his right buttock measuring 8 cm x 2 cm placed transversely. (15) An injury on the left side of his lumbar region measuring 4 cm x 3 cm x skin deep placed vertically. (14) An incised injury on his right buttock measuring 8 cm x 2 cm placed transversely. (15) An injury on the left side of his lumbar region measuring 4 cm x 3 cm x skin deep placed vertically. (16) An incised injury on the back of his right thigh measuring 5 cm x 1 cm x muscle deep placed transversely. (17) A punctured wound on the right side of hypocondrium measuring 8 cm x 2 cm x peritoneal deep placed obliquely. (18) An injury on his right elbow measuring 12 cm x 5 cm x muscle deep on front. (19) An injury on the back of his left shoulder measuring 6 cm x 1 cm x skin deep. (20) An injury on the outer side of his left shoulder measuring 12 cm x 2 cm placed transversely. (21) An injury on the lower third of his left upper arm placed vertically measuring 7 cm x 1 cm x skin deep. Further, he deposed that the deceased would appear to have died of cardiac aspect due to hemorrhage and injuries to his brain and skull bone about 12 to 18 hours prior to the post-mortem examination. In his cross-examination, he deposed that it takes one to two hours for the partial digestion of food and he also deposed that his bladder was empty prior to the incident. He further deposed that on 25.6.2003 itself at 3.20 a.m. he examined P.W.1 and found the following injuries. (1) An incised injury on her right forearm measuring 15 cm x 10 cm x bone deep, transversely placed' in the middle third. (2) An incised wound on the left side of her chest measuring 13 cm x 5 cm x fat deep on chest below the left arm pits. (3) An incised injury on the left side of her thigh measuring 16 cm x 8 cm x muscle deep on the external side of her knee. (4) An abrasion on the upper side of her right thigh measuring 3 cm x 1 cm. Further, he deposed that the matter was referred to a Radiologist (P.W.7), who gave report that she received fracture of the radius of her right forearm and the injury No.1 was grevious in nature and the other injuries were simple in nature and were caused 1 to 4 hours prior to the examination. Further, he issued Ex.P8 wound certificate for her. Further, he issued Ex.P8 wound certificate for her. Further P.W.7 Radiologist in the hospital deposed that on 25.6.2003 on the requisition of the CM.O. of their hospital X-Ray of the right forearm, left thigh and knee of P.W.1 was taken and he noted fracture of the radius of her forearm only and EX.P.9 and P-10 happened to be the corresponding X-Ray and Ex.P-11 happened to be his opinion. Further P.W.6 deposed that on the same day at 4.30 a.m. he examined P.W.2 and found; (1) A contusion on the lower 1/3rd of the index finger of her left hand measuring 3 cm x 2 cm and X-Ray No.20/2003 revealed fracture of the first phalanx of her right index finger. Further he deposed that the injury was grievous in nature and was aged 4 to 6 hours prior to the examination and issued EX.P7 wound certificate. Further, P.W.6 deposed that all the inside injuries referred were possible by means of hunting sickles and further the injury No.4 caused to P.W.1 was possible by a fall on a hard surface. 14. There is absolutely no dispute with regard to the scene of offence, the inquest and post-mortem examination over the dead body and hence those circumstances are accepted. 15. Basing upon the medical evidence, it is necessary to ascertain the time of the incident, which is relevant for proper appreciation of the prosecution version ultimately. Whereas the ocular evidence asserts that the incident took place at a bout 2a.m.and P.W.1 affirmed that at about 8.30 or 9.00 p.m. during that night she and the deceased had meals the medical evidence determines that partial digestion of food takes place in 1 to 2 hours, which makes it categorical that the incident might have taken place between 10.00 and 11.00 p.m. but not by 2 p.m. and further the medical evidence emphasizes that he postmortem examination was conducted from 1.05 p.m. on 25.6.2003 and the death would have occurred about 12 to 18 hours prior to the same examination, which comes to 7.00 p.m. to 1.00 p.m. during that night. In addition to that, Ex.P.5 hospital intimation sent to the police provides that the deceased alleged to have received injuries by means of hunting sickles at 1.00 p.m. on 25.6.2003. In addition to that, Ex.P.5 hospital intimation sent to the police provides that the deceased alleged to have received injuries by means of hunting sickles at 1.00 p.m. on 25.6.2003. Further in Ex.P7 wound certificate of P.W.2 at first the time of incident was written as 1.30 a.m. or 2.30 a.m. but later it was changed to 4.30 a.m. whereas in EX.P-8 wound certificate of P.W.l it was noted as 1.00 a.m. on that day. 16. In any case, the deceased and P.W.1 would have taken food much prior to 10 p.m. on that day. Therefore, the medical evidence clearly falsifies that the incident took place at 2 a.m. during that night. Much significance is to be given to the fact that different timings were given at different stages in this context. These circumstances amply establish that the time of incident was shifted to 1.00 p.m. or 2.00 p.m. for the reasons best known to the main prosecution witnesses. It must have been done deliberately infact. 17. The learned defence counsel mainly attacks the findings of the trial Court on the following grounds. (1) There are major discrepancies in the evidence of P.Ws. 1 to 3 which are fatal and P.W.3 and others were not members of the family of the deceased and there is no reason to believe that they would have stayed in the house during that night being not the members of the family of the deceased. (2) Even though the prosecution claims that electrical bulb or bulbs was/were seized at the scene of offence, no such material is produced before the Court and hence there is no good basis to say that there was sufficient light to identify the actual culprits. (3) It is a case of faction and therefore an attempt to implicate A-1 to A7 or some of them cannot be ruled out unless on proper scrutiny of the evidence recorded, it could be ascertained that the prosecution version is true. (3) It is a case of faction and therefore an attempt to implicate A-1 to A7 or some of them cannot be ruled out unless on proper scrutiny of the evidence recorded, it could be ascertained that the prosecution version is true. He also draws the attention of this Court in this context to the factors that no electrical material was seized to establish the existence of light and thereby to establish the identity of A1 to A7 as the partners of the crime and there was unexplained delay of about 8 hours in sending the F.I.R. to the concerned Magistrate even supposing that P.W.8 recorded the statement of P.W.1 about 6 a.m. on that day and the time of incident was changed from 10.30 or 11.00 p.m. to 2.00 p.m. while affirming that those circumstances are sufficient to hold that A-1 to A7 were falsely implicated. (4) The conviction and sentences were recorded only with regards to the charge under Section 302 IPC and there is no separate charge under Section 302 IPC read with Section 149 IPC so far as causing the death of the deceased with a common object is concerned, in the absence of which, unless specific overt-acts of each of A1 to A7 were sufficient to cause the death, none of them can be convicted and sentenced for the charge under Section 302 IPC and in fact the overt-acts attributed to A1 against the deceased was not sufficient to cause the death. The omnibus allegations made against A2 to A7 about attacking the deceased cannot be considered in that context. 18. On the other hand, it is the contention of learned Public Prosecutor and also learned counsel for the defacto complainant that there is clear and categorical evidence from P.Ws.1 to 3 that A1 toA7 attacked and caused the death of the deceased giving several blows using hunting sickles which overt-acts can be the basis for the conviction of A1 to A7 for the charge under Section 302 IPC when they were sufficient to do so without any charge under Section 302 IPC read with Section 149 IPC and some irregularity in framing the charge is not fatal. Further even supposing that the concept raised by the learned defence counsel is true, the circumstances of the case amply establish thatA1 toA7 did so with a common intention to kill the deceased which therefore is sufficient to convict them under Section 302 IPC read with Section 34 IPC without framing a specific charge accordingly relying upon the following decisions: 1. Moti Das and others v. The State of Bihar (1) AIR 1954 SC 657 2. Hukam Singh and others v. State of U.V. (2) AIR 1961 SC 1541 . 3. Willie (William) Slaney v. State of Madhya Pradesh (3) AIR 1956 SC 116 . 19. Regarding the veracity of the evidence of P.W.3, admittedly he and the others said to have slept in the house got no relationship with the deceased and no explanation is given as to how it so happened that they got to sleep there during that night to believe there presence there, so the logical conclusion to be drawn is that they were planted as witnesses in the case and his evidence is to be discarded by reason of which, the evidence of P.Ws.1 and 2 remains to be considered to prove the incident. With regards to the other discrepancies, those covered by Exs.D-1 to D4 are only minor in nature to consider them seriously. In fact barring some minor natural discrepancies, their evidence is cogent and consistent throughout. 20. The case is to be examined in a broader prospective instead of dismissing it on the basis of narrow considerations. The concept of doing justice to the accusor and also the accused in a criminal case should always be kept in mind for administering justice to them properly. It is the duty of the court to weigh the evidence adduced quite judiciously and arrive at what is true and what is not true and come to a right conclusion to establish the charges framed. It is the duty of the court to weigh the evidence adduced quite judiciously and arrive at what is true and what is not true and come to a right conclusion to establish the charges framed. As a matter of fact, the definite assertion of the factors that there was a delay of about 8 hours in sending the F.I.R. to the concerned Magistrate and also the shifting of time of the incident from 10.30 or 11.00 p.m. to 1.00 or 2.00 p.m. during the relevant night in the context of the truthfulness of the prosecution version are to be definitely weighed in order to come to a conclusion as to how far the prosecution version and also the corresponding evidence adduced are true and also whether those, circumstances provide any doubt about the participation of A2 to A7 wholly or some of them in the crime. 21. Those lapses clearly play a predominant role in case it is a case of faction because if a faction was there between the two groups, an attempt to make false implication of all or some of the accused under similar circumstances was quite possible. Therefore, it is to be determined as to whether it is a case of faction or not. Infact, there is no evidence of any faction between the deceased and Al to A7 while it is only asserted that due to political rivalry or on the ground of growing influence of the deceased in the public, Al to A7 involved in causing their death which cannot be termed as a consequence of any faction or enmity between them. Virtually, it is to be ruled out that A1 to A7 were falsely implicated on the ground of existence of faction between the two groups. A feeble attempt was also made to elicit from P.W.1 that the deceased got several enemies and there was a possibility of some of them killing the deceased, which could not be substantiated. 22. Virtually, it is to be ruled out that A1 to A7 were falsely implicated on the ground of existence of faction between the two groups. A feeble attempt was also made to elicit from P.W.1 that the deceased got several enemies and there was a possibility of some of them killing the deceased, which could not be substantiated. 22. With regards to the identity of the actual culprits who caused the death of the deceased i.e. the husband of P.W.1, even though it is testified that the bulb fixed to the pole was seized and in the sketch of scene of offence in fact the existence of the pole nearby was noted, no such material was produced before the Court, whereas the question of existence of the other bulb at the house and the seizure of it is disproved to consider that factor in addition. I really wonder as to why no measures were taken for the production of such material or for the purpose of marking them before the trial Court. However, if the evidence of P.Ws.1 to 3 with regards to the incident and. also with regards to the participation of A1 to A7 in the crime is trustworthy, some conclusion can be arrived at about the existence of light as the basis of identifying them. If a person asserts that he saw a particular incident of crime, the acceptance of it against all odds gives a logical conclusion that there was sufficient light to identify those who caused the crime by reason of which any failure to seize relevant material need not be given any importance, whereas in fact, their evidence with regards to their participation in killing the deceased including the specific overt-acts of A1, A3 and A5 against the deceased is consistent apart from the fact that the medical evidence agrees with it. Added to that, when there was no enmity between the two groups there was no need for them to foist a false case against them and accordingly depose before the Court. In other words, even supposing that there existed some political rivalry or some jealousy on the ground of the deceased mustering good influence among the locals, that would not be the reason for the main prosecution witnesses to foist false case against A1 to A7 leaving the real culprits (other than A1 to A7). 23. In other words, even supposing that there existed some political rivalry or some jealousy on the ground of the deceased mustering good influence among the locals, that would not be the reason for the main prosecution witnesses to foist false case against A1 to A7 leaving the real culprits (other than A1 to A7). 23. Emphatically, P.Ws.1 and 2 also received injuries clearly establishes their presence at the scene of offence at the relevant point of time. It also concludes that they actually witnessed the incident. The factum of non-existence of any personal rivalries between the deceased and A1 to A7 which rules out any intention to falsely implicate them, very much weigh the veracity of the evidence of P.Ws.1 and 2, whereas the factum of causing the delay in sending the report to the Magistrate and also the factum of shifting the time of incident to 2.00 a.m. from 10.30 p.m. are also the factors which are to be examined for finally determining how far their evidence can be taken for concluding the complicity of A1 to A7 in the crime. There may not be a deliberate intention to foist false case against them, but there may be mistaken assertion of the participation of them or some of them owing to several other factors. In the circumstances of the case, when it can be ruled out that there would not be any intention of false implication of any of the accused their (P.W.2 and P.W.2's) specification of any of the accused with attribution of specific overt-acts against them is to be taken as true. Further, if there was a current pole with glowing bulb at a distance of 32 feet as depicted in the sketch of the scene of offence, there may not be sufficient opportunity for them to identify all the culprits while they encircled the deceased and dealt several blows against the deceased, such a contingency would not arise so far as those who involved in causing them injuries by specific overt-acts are concerned under such circumstances. Unfortunately, P.Ws.1 and 2 failed to identify the person who caused the injury to the second of them. Further, the evidence of P.Ws.1 and 2 is definite and consistent about the participation of the assailants, which was not possible unless there was sufficient light to do so. Unfortunately, P.Ws.1 and 2 failed to identify the person who caused the injury to the second of them. Further, the evidence of P.Ws.1 and 2 is definite and consistent about the participation of the assailants, which was not possible unless there was sufficient light to do so. Under these circumstances, it must be that there was glowing street bulb at a distanceof32 feet, which was sufficient to see what went on there broadly. Therefore, the failure on the part of the police or the prosecution to produce or mark the bulb or electrical material is not fatal. For their mistake the accused cannot be made to suffer. It is not the claim of the defence that A-1 to A7 were strangers to P.Ws.1 and 2 or the got no acquaintance with P.Ws.1 and 2. On the other hand, their evidence provides that they got acquaintance with A1 toA7, which therefore is to be accepted as true. In fact, their evidence against A1, A3 and A5 attributing the overt-acts given by them against the deceased and the first of them (P.W.1) respectively is natural and not exaggerated with an intention to fasten them to the charges framed and hence definitely it is to be accepted to be true and correct while in view of the fact that no specific overt-acts are attributed to A2, A4, A6 and A7 coupled with the latches enumerated above, a conclusion may be drawn that sufficient time was lapsed before giving the report to the police for the purpose of ascertaining and roping in the remaining culprits for the reasons best known to them, whereas one reason for that may be that they failed to properly identify them, then during that odd hour. In the result, it is advisable to give benefit of doubt toA2, A4, A6 and A7 in the matter. 24. In the result, it is advisable to give benefit of doubt toA2, A4, A6 and A7 in the matter. 24. With regards to the question of giving conviction and sentence for the offence punishable under Section 302 IPC, in Moti Das and others v. The State of Bihar (1 supra), the accused therein were tried for two objects, one for theft and another for assault, whereas one charge was framed for both of them and there was a question as to whether such charge was tenable and considering the relevant circumstances of the case, the Supreme Court observed that if they had been charged as two counts; or place in two paragraphs, such an objection could not have been taken, mere imperfection in the charge cannot be used to overthrow a conviction unless prejudice was caused to the accused and also held that the irregularity was curable both under Section 225 and Section 537 Cr.P.C. 25. Further, in Hukam Singh and others v. State of U.P. (2 supra), with reference to charge under Section 149, 300 and 302 IPC and relevant circumstances, it is observed by the Supreme Court that when several persons were armed with lathis and one of them was armed with a hatchet and used those weapons in the achievement of their object, it is by no means incorrect to conclude that they were prepared to use violence in prosecution of their common object and that they knew that in the prosecution of such common object it was likely that some one may be so injured as to die as a result of those injuries. 26.Moti Das's case (l supra) is with regards to different proposition, whereas pertinently in Hukam Singh's case (2 supra), there was charge under Section 149 IPC apart from the charge under Section 302 IPC with reference to the facts and circumstances of that case which analogies therefore cannot be applied here. 27. 26.Moti Das's case (l supra) is with regards to different proposition, whereas pertinently in Hukam Singh's case (2 supra), there was charge under Section 149 IPC apart from the charge under Section 302 IPC with reference to the facts and circumstances of that case which analogies therefore cannot be applied here. 27. Further, in Willie (William) Slaney v. State of Madhyn Pradesh (3 supra), the accused concerned therein two in number were charged under Section 302 read with Section 34 IPC without any charge under Section 302 IPC simplicitor and after necessary trial, one of the accused was acquitted and there was a question as to whether the other accused could be convicted and sentenced under Section 302 IPC without framing any charge thereunder simplicitor and there was also a question with reference to the scope of Section 149 IPC in respect of which no charge was framed. It is held by the Supreme Court that having regard to the nature of the charge framed, the omission to frame charge under Section 302 IPC simplicitor against the accused was only a curable remedy, which in the absence of any prejudice to the accused could not effect the legality of the conviction under Section 302 IPC and Section 34 IPC does not itself create any offence and any charge thereunder, and what is required is there will be active participation in the commission of a criminal act. It is further observed by the Supreme Court that Section 149 creates a specific offence and without applying its provisions a member of an unlawful assembly could not be made liable for the offence committed not by him but by another member of that assembly and therefore the case is not similar to the one where there is a charge under Section 302, read with Section 34 of the Indian Penal Code and when Section 149 is ruled out, the liability for murder ceases to be constructive and it becomes direct and there must be a separate charge therefor under Section 302 of the Indian Penal Code. 28. 28. Therefore, when it is clear that Section 149 IPC creates a specific offence and without applying its provisions, member of an unlawful assembly could not be made liable for the offence committed not by him, but by another member of that assembly and when that section is ruled out, the liability for murder ceases to be constructive and it becomes direct and there must be substantial evidence to hold that the individual overt-acts of each of the accused whose participation in the crime is proved were sufficient to cause the death of the deceased, but what is proved to the effect that A1 hacked the deceased and A1, A3 and A5 caused bleeding injuries to P.W.1 on her right hand, left side of the chest and left thigh were not sufficient individually to cause the death of the deceased to bring them within the purview of Section 302 IPC, unless the ambit of Section 34 IPC can be applied here for which no separate charge is necessary. 29. Whether A1, A3 and A5 along with others got common intention to cause the death of the deceased can be determined on the basis of their conduct and the overall circumstances of the case. The fact that all of them went to the house of the deceased armed with hunting sickle and dealt several blows causing his death instantaneously and when P.Ws.1 and 2 intervened, some of them also dealt blows against P.Ws.1 and 2 make it categorical that they went there only with a common intention to cause the death of the deceased against any odds by reason of• which, in fact it appears that when P.Ws.1 and 2 intervened, they were dealt with blows using the same weapons- against whom probably there would not have any grouse. Further, when the circumstances of the case amply establish their conduct of causing the death of the deceased by common intention and further no separate charge under Section 34 IPC is necessary no prejudice would be caused to A1, A2 and A5 by convicting them under Section 302 IPC read with Section 34 IPC applying the analogy arrived at in Willie (William) Slaney's case (3 supra). 30. Further, in fact no resistance has been offered so far as the conviction and sentence imposed against the accused under the remaining charges are concerned. 30. Further, in fact no resistance has been offered so far as the conviction and sentence imposed against the accused under the remaining charges are concerned. Factually, the evidence of P.Ws.1 and 2 also establishes those charges. Therefore, for the reasons discussed above, the conviction and sentence imposed against A1, A3 and A5 are sustainable, whereas the conviction and sentence imposed against A2, A4, A6 and A7 are not sustainable. In the result, the appeal is partly allowed setting aside the conviction and sentence imposed against A2, A4, A6 and A7 while affirming the conviction and sentence imposed by the Sessions Court against A1, A3 and A5 in respect of charge under Sections 147, 148, 326 read with Section 149 IPC and 302 making to read 302 along with 34 IPC respectively.