Hon'ble RAFIQ, J.—This appeal is directed against the judgment dated 10/10/2003 passed by the learned Additional District and Sessions Judge (Fast Track) No.5, Bundi in Sessions Case No.3/2003 whereby, the accused-appellants were convicted and sentenced for the alleged offences, as under:- Accused-appellant No.2-Gopal was convicted for offence u/S.302 IPC and was sentenced to life imprisonment with a fine of Rs.5,000/-, in default thereof, he was sentenced to further undergo simple imprisonment for six months. Accused-appellants No.1, 3, 4 & 5-Laxmi Narayan, Kishanlal, Pappu & Badrilal were convicted for offence u/S.302/149 IPC and were sentenced to life imprisonment with fine of Rs.5,000/-, in default thereof, they were sentenced to further undergo simple imprisonment for six months. Accused-appellants No.1 to 5-Laxmi Narayan, Gopal, Kishanlal, Pappu & Badrilal were convicted for offence u/S.147 IPC and were sentenced to rigorous imprisonment for one year with fine of Rs.500/- and in default thereof, they were awarded sentence to further undergo simple imprisonment for one month, convicted for offence u/S.148 IPC and were sentenced to rigorous imprisonment for two years with fine of Rs.1000/- and in default thereof, were awarded sentence to further undergo simple imprisonment for two months, convicted for offence u/S.323 IPC and were sentenced to rigorous imprisonment for six months with fine of Rs.500/- and in default thereof, were awarded sentence to further undergo simple imprisonment for fifteen days and were convicted for offence u/S.325/149 IPC and sentenced to rigorous imprisonment for two years with fine of Rs.1000/- and in default thereof, were awarded sentence to further undergo simple imprisonment for two months. Accused-appellants No.1 to 4-Laxmi Narayan, Gopal, Kishanlal & Pappu were convicted for offence u/S.324/149 IPC and were sentenced to rigorous imprisonment for one year with fine of Rs.1000/- and in default thereof, they were awarded sentence to further undergo simple imprisonment for one month. Accused-appellant No.5-Badrilal was convicted for offence u/S.324 IPC and was sentenced to rigorous imprisonment for one year with fine of Rs.1000/- and in default thereof, he was awarded sentence to further undergo simple imprisonment for one month. All the sentences were directed to run concurrently. Whereas, co-accused Kalyan was acquitted from the charge of offence u/Ss.147, 148, 323, 302/149, 324/149 and 325 IPC. 2. All the sentences were directed to run concurrently. Whereas, co-accused Kalyan was acquitted from the charge of offence u/Ss.147, 148, 323, 302/149, 324/149 and 325 IPC. 2. Facts giving rise to this appeal are that a parcha bayan (Exh.P.9) of Jagannathi (PW8) W/o Ramnarayan was recorded by ASI Police Station Patan Shri Bharat Singh (PW20) at 10.45 p.m. on 05/02/1994. She alleged that when she was cooking the food at 7.00 p.m. and her husband Ramnarayan, Gajanand and her daughter Ganeshi were sitting near the hearth, suddenly, Laxminarayan, Kishanlal, Badrilal, Pappu, Gopal and Kalyan of village Satheli, armed with lathi, gandasi and kulhadi, entered their house. Laxminarayan, Kishanlal and Badrilal had kulhadi, Pappu had a knife, Gopal had gandasi and Kalyan had lathi. They started beating her husband Ramnarayan. First of all, Gopal inflicted a gandasi blow on the head of her husband. When her daughter Ganeshi and Gajanand tried to save her husband, accused also subjected them to beating by lathi, kulhadi and gandasi. Her husband and Gajanand became unconscious. Upon hearing their hue and cry, Ram Narayan, Dhan Singh and other villagers came there and accused then fled from the place of occurrence. Both of them were still unconscious and were taken to hospital. The dispute between the accused and the complainant-party was with regard to the agriculture land. 3. The police on the basis of the aforesaid parcha bayan initially registered the FIR (Exh.P.21) for offence u/Ss.147, 148, 323, 324/149 and 325 IPC. Subsequently however injured Ramnarayan succumbed to his injuries and therefore offence u/Ss.302 & 302/149 IPC was added in the FIR. Police after investigation filed challan against six accused. While accused-appellants Laxmi Narayan, Gopal, Kishanlal, Pappu and Badrilal were convicted and sentenced, co-accused Kalyan was acquitted, in the manner indicated above. 4. Shri Ravi Kasliwal, learned counsel for the accused-appellants has argued that genesis of the incident has been suppressed by the prosecution and true facts have not been brought to the court. While accused-appellants Laxmi Narayan, Gopal, Kishanlal, Pappu and Badrilal were convicted and sentenced, co-accused Kalyan was acquitted, in the manner indicated above. 4. Shri Ravi Kasliwal, learned counsel for the accused-appellants has argued that genesis of the incident has been suppressed by the prosecution and true facts have not been brought to the court. Jagannathi (PW8) in her parcha bayan made specific allegation of causing injury on the head of her husband Ramnarayan against accused-appellant Gopal and thereafter stated that when she, her daughter Ganeshi and Gajanand tried to save him, all the accused caused injury to them by lathi and gandasi but in the court statement, Jagannathi (PW8) has made tremendous improvement upon the original version, which is not only not corroborated by the injuries of the injured but also has been made in deviation from her statement to the police u/S.161 Cr.P.C. Jagannathi (PW8) has falsely stated that initially Gopal inflicted gandasi blow on the head of her husband Ramnarayan and thereafter Laxminarayan inflicted a kulhadi blow on his head. Kishan also inflicted another kulhadi blow on his head, which actually hit his ear. Pappu inflicted a knife blow on his head. Thus, according to the version of this witness, there should have been four injuries by sharp edged weapon on the head of deceased-Ramnarayan. As per post-mortem report (Exh.P.5), only one injury was sustained by the deceased on his head by sharp edged weapon. Other two injuries were insignificant being abrasion on right shoulder 1”x½” and incised wound on back of left arm just above left elbow joint 1½”x½x½”. Similarly, Gajanand (PW4) son of younger brother of Ramnarayan, has also made lot of exaggeration. He has stated that Pappu also inflicted knife blow on deceased-Ramnarayan from behind in the middle of his head. He told this fact to the police but the police has not mentioned this fact in his statement u/S.161 Cr.P.C. and he cannot say why. Kishan and Badri also inflicted kulhadi blows on the head of Ramnarayan, which fact was also informed to the police but he cannot say why this is not mentioned in his statement u/S.161 Cr.P.C. Laxminarayan had also inflicted kulhadi blow but the police despite his statement has not mentioned in his statement recorded u/S.161 Cr.P.C. Gajanand (PW4) stated that he received four injuries on his head. Gopal inflicted a gandasi blow from front side on his head but the police has not mentioned this fact in his statement u/S.161 Cr.P.C. Ganeshi Bai (PW21) has given a different story than what she has stated in the statement u/S.161 Cr.P.C. and in the court statement. She has alleged that accused dragged her father out of the house. Gopal had a gandasi, Pappu had knife and Kalyan had lathi. Gopal inflicted a gandasi blow on the head of her father. Kishan and Badri caused injuries on his shoulder and forehead. Laxminarayan and Pappu, who respectively had kulhadi and knife, also inflicted injuries. Kalyan inflicted a lathi blow. Gajanand suffered an injury on below his left eye at the instance of Kishan. Laxminarayan caused injury by lathi and Kalyan by gandasi to her mother. 5. Shri Ravi Kasliwal, learned counsel for the accused-appellants argued that when the statements of all these three witnesses, are analysed in the light of the injuries sustained not only by deceased-Ramnarayan but also the three injured, it becomes clear that these witnesses are exaggerating and are making palpably false statement. Gajanand (PW4) received five injuries, only one of which was incised wound below left eye, which was simple in nature. All his other injuries were simple in nature. Jagannathi (PW8) received six injuries, only one of which was incised wound on base of left middle finger. It was this injury, which led to fracture of radius and ulna bone in lower 1/3rd region. Ganeshi Bai (PW21) received only one injury, being lacerated wound, on left arm, which was simple in nature. Allegations are made by these witnesses against all the accused, of causing number of injuries by sharp edged weapons, to deceased-Ramnarayan, but those injuries are not corroborated by the medico-legal evidence. This therefore clearly proves that these witnesses have exaggerated in order to falsely implicating the accused. 6. Shri Ravi Kasliwal, learned counsel for the accused-appellants argued that Ramnarayan and Kalyan were two sons of Kanaha and Dhankanwar was his daughter. They had agriculture land in their village Barda near Taleda. Ramnarayan however left his village and settled down in village Akhed. At that time, he sold his share in the ancestral agriculture land to Dhankanwar, who in turn sold the same to Gopal and Laxminarayan. They had agriculture land in their village Barda near Taleda. Ramnarayan however left his village and settled down in village Akhed. At that time, he sold his share in the ancestral agriculture land to Dhankanwar, who in turn sold the same to Gopal and Laxminarayan. Ramnarayan came back to his village and tried to forcibly take possession of the land purchased by Gopal and Laxminarayan. Learned counsel in this connection referred to the statement of Gajanand (PW4). The village panchs tried to mediate between Ramnarayan, on the one hand and Gopal and Laxminarayan, on the other. Bhenrulal (PW6) has also admitted that Ramnarayan was living in village Sitapura for last some time. Ramnarayan came to settle down in Satheli around ten-fifteen days ago. He raised 'tapri' (temporary shelter) on the land of Gobri Lal Balai. Ramratan (PW7) has also given similar statement. This witness has further stated that villagers tried to mediate between the persons namely; Ramnarayan, and Gajanand and Devlal but Ramnarayan insisted to forcibly take possession of the disputed land. Ram Narayan Meena (PW14) has also stated that only few days ago, deceased-Ramnarayan raised a 'tapri' on the agriculture field of Gobri Lal Balai and the way to the disputed land is adjacent to this ‘tapri’. He has stated that the complainant party had left the village 10-15 years ago. This question was put to Jagannathi (PW8) also but she denied the suggestion that village panchs tried to mediate the dispute between the parties and that it was Gajanand and Kalyan, who had invited them to village Satheli. Gajanand (PW4) in his cross-examination has stated that when he went to the house of Ramnarayan, he found the accused abusing him and thereafter the incident took place. Learned counsel therefore argued that the bone of dispute between the parties was agriculture land and deceased-Ramnarayan was trying to forcibly take possession of that agriculture land. It appears that the heated arguments took place between the parties leading to sudden provocation. It is because he inflicted only one blow and did not repeat the same. This indicates that there was no intention to cause death as he did not take undue advantage of the situation and the injuries caused by him were not sufficient in the ordinary course of nature to cause the death. It were the complainant-party, who wanted to forcibly take possession of the land of the accused. This indicates that there was no intention to cause death as he did not take undue advantage of the situation and the injuries caused by him were not sufficient in the ordinary course of nature to cause the death. It were the complainant-party, who wanted to forcibly take possession of the land of the accused. Accused purchased this land from Dhankanwar, sister of deceased-Ramnarayan but the complainant erected a ‘tapri’ (temporary shelter) on the land of Gobri Lal Balai adjacent to the way leading to disputed agriculture field. Evidence proves that they tried to persuade deceased-Ramnarayan not to take law in his hands. Once the land was sold by Dhankanwar to the appellants, he had no right over the land. Witness-Ram Narayan Meena (PW14) has also stated that deceased-Ramnarayan even then insisted that he would forcibly take possession of the land. Accused-appellants can thus be taken to have been deprived of power of self-control in the face of grave and sudden provocation. Incident thus took place suddenly at the spur of moment in sudden fight. The incident in the peculiar facts and circumstances of the case would therefore be covered by Exception 1 of Section 300 IPC. Alternatively, this case would therefore fall within Exception 4 of Section 300 of IPC and therefore accused-appellant-Gopal at the maximum can be said to have committed offence u/S.304 Part-I IPC because even as per own case of the prosecution, incident had taken place when other witnesses came to save Ramnarayan. Therefore the appellants cannot be said to have any intention to cause injury to this witness. He has in this connection placed reliance upon the judgment of Supreme Court in Krishna Tiwary and another vs. State of Bihar : AIR 2001 SC 2410 . 7. Shri Ravi Kasliwal, learned counsel for the accused-appellants has submitted that though witness-Ganeshi (PW21) has stated that deceased was dragged by the accused from his hut but there was no evidence of dragging. Nothing about this sort was mentioned in the site plan (Exh.P.13). It was argued that 'gandasi' alleged to have been recovered at the instance of accused-appellant Gopal did not have any blood stains thus indicating that it was not used in the crime. Even this weapon was not produced before the court when the statement of Dr.Rakesh Taneja (PW2) was recorded, to elicit his opinion whether the fatal injury could have been caused thereby. Even this weapon was not produced before the court when the statement of Dr.Rakesh Taneja (PW2) was recorded, to elicit his opinion whether the fatal injury could have been caused thereby. In the absence thereof, its evidence even cannot be read against him. Learned counsel referred to the statement of Ganeshi Bai (PW21) and has submitted that incident took place in the evening at around 7.00 p.m. in the month of February and normally the Sun in this month would set around 6.00 p.m. Ganeshi Bai (PW21) admitted that there was darkness. In this darkness, it was not possible for the witnesses to see precisely as to who caused which injury. It was argued that there was no mark of struggle or otherwise any evidence to show that the incident had actually started in the 'tapri'. In fact, incident had taken place at place 'B' in the site-plan (Exh.P.13), ten steps away from place 'E', which was temporary dwelling (tapri) of the deceased. 8. Shri Ravi Kasliwal, learned counsel for the accused-appellants has in support of his arguments, cited judgments of the Hon'ble Supreme Court in Ramesh Vithalrao Thakre and another vs. State of Maharashtra : AIR 1995 SC 1453 , Juthel and others vs. State of Madhya Pradesh : AIR 1995 SC 1455 , Masumsha Hasanasha Musalman vs. State of Maharashtra : AIR 2000 SC 1876 = RLW 2000(1) SC 173, M/s.Chordia Automobiles vs. S.Moosa and others : AIR 2000 SC 1880 , Ramesh Kumar @Toni vs. State of Haryana : AIR 2009 SC 2447 , Rachpal Singh & Ors. vs. Gurmit Kaur & Ors. : AIR 2009 SC 2448 , Ramchandra Dhondiba Kaware vs. State of Maharashtra : AIR 2009 SC 1835 , Aparna Goyal vs. Rakesh Goyal : AIR 2009 SC 1836 and judgments of this Court in Mohan Singh vs. The State of Rajasthan : 2001 Cr.L.R. (Raj.) 352 = RLW 2001(3) Raj. 1766, Poonya & another vs. State of Rajsthan & State of Rajasthan vs. Prem Chand & Ors. : 2006(1) Cr.L.R. (Raj.) 825 = RLW 2006(3) Raj. 2148, Aazad Nath vs. State of Rajasthan : 2006(1) Cr.L.R. (Raj.) 827, Kirti S/o Badna vs. State of Rajasthan : 2006(1) Cr.L.R. (Raj.) 763 = RLW 2006(3) Raj. 1718, Sandeep Thakran vs. State of Rjasthan & Pradeep Kumar vs. State of Rajasthan : 2006(1) Cr.L.R. (Raj.) 766 = RLW 2006(4) Raj. 2709, Sheo Pal & Anr. 2148, Aazad Nath vs. State of Rajasthan : 2006(1) Cr.L.R. (Raj.) 827, Kirti S/o Badna vs. State of Rajasthan : 2006(1) Cr.L.R. (Raj.) 763 = RLW 2006(3) Raj. 1718, Sandeep Thakran vs. State of Rjasthan & Pradeep Kumar vs. State of Rajasthan : 2006(1) Cr.L.R. (Raj.) 766 = RLW 2006(4) Raj. 2709, Sheo Pal & Anr. vs. State of Rajasthan : 2008(2) Cr.L.R. (Raj.) 1300, Nathu Khan vs. State of Rajasthan : 2008(2) Cr.L.R. (Raj.) 1310 & Dilip vs. State of Rajasthan : 2008(2) Cr.L.R. (Raj.) 1633 = 2008(3) RLW 1929. It is therefore prayed that the appeal be allowed. 9. Shri Javed Choudhary, learned Public Prosecutor has opposed the appeal and submitted that the very fact that three eye-witnesses namely; Gajanand (PW4), Jagannathi (PW8) and her daughter Ganeshi Bai (PW21), are injured, proves their presence on the scene of occurrence, therefore, their testimony even though may be having minor discrepancies, cannot be discarded. Learned Public Prosecutor submitted that evidence of the prosecution in so far as accused-appellant Gopal is concerned, is consistent right from the stage of recording of the parcha bayan of Jagannathi (PW8). Gajanand (PW4) has also consistently alleged that it was Gopal, who first of all inflicted the 'gandasi' blow on the head of the deceased. Gandasi has been recovered at the instance of Gopal vide Exh.P.27 on 17/02/1994. Since the incident had taken place on 05/02/1994 and the gandasi was recovered much thereafter on 17/02/1994 with the delay of twelve days, therefore, the blood stains might not have been there. It was argued that evidence of eye-witnesses otherwise also clearly proved that it were accused-appellants, who forcibly entered the house and pulled out Ramnarayan and put him to death. There is no evidence whatsoever on record that complainant-party ever provoked the accused-appellants and therefore it cannot be claimed by them that incident had taken place suddenly at the spur of moment, in the heat of passion or on account of any provocation by the deceased. There is no evidence whatsoever on record that complainant-party ever provoked the accused-appellants and therefore it cannot be claimed by them that incident had taken place suddenly at the spur of moment, in the heat of passion or on account of any provocation by the deceased. Firstly, this also cannot be believed because the accused-appellants were aggressor when they entered into the house, dragged him out and put him to death; secondly not a single injury has been sustained by any one of the accused and thirdly, the incident having not taken place on the disputed agriculture land, it cannot be contended by the accused-appellants that the complainant-party wanted to take forcible possession of such disputed land. Even if the deceased-Ramnarayan had built 'tapri' on the land of a third person namely; Gobri Lal Balai, that was his dwelling (temporary shelter) for the present and the accused had no justification to forcibly enter the house of the deceased-Ramnarayan, take the law in their hands and to cause his death. 10. Shri Javed Choudhary, learned Public Prosecutor argued that even if eye-witnesses have marginally exaggerated in respect of their injuries and also exaggerated by assigning the rolls to other accused as well, of causing injury on the person of deceased by kulhadi, gandasi and lathis, their evidence cannot be entirely discarded. Ocular evidence has been substantially corroborated by the medico-legal evidence. Though most of the injuries are simple in nature but one of the injuries received by one of the witnesses was grievous hurt, which clearly shows that they were trying to save Ramnarayan and while saving him, they were also subjected to intense beating by the accused-appellants. It was argued that incident took place on 05/02/1994 and the Sun set only around 6.00 p.m. in the evening during the month of February but it fully sets around 7.00 p.m. and therefore it cannot be said that there was total darkness. It is therefore prayed that the appeal be dismissed. 11. Fact that deceased-Ramnarayan came back to his native and settled down in his temporary shelter (tapri) and that accused-Gopal and others entered in his house, dragged him out and Gopal, as per consistent version of eye-witnesses, inflicted gandasi blow on his head, clearly indicates that firstly it was not at all a case of sudden fight. 11. Fact that deceased-Ramnarayan came back to his native and settled down in his temporary shelter (tapri) and that accused-Gopal and others entered in his house, dragged him out and Gopal, as per consistent version of eye-witnesses, inflicted gandasi blow on his head, clearly indicates that firstly it was not at all a case of sudden fight. Secondly, accused could not claim that there was no pre-meditation because appellant could not claim that the act was done in a heat of passion. Thirdly, there was pre-meditation atleast on the part of principal accused-Gopal, who was armed with deadly weapon i.e. gandasi. Accused in the face of the evidence cannot claim that the act was done in a heat of passion. And fourthly, it also cannot be said that accused had not taken any undue advantage or had not acted in the manner aforesaid. In fact, they entered the house of Ramnarayan and dragged him out and accused-Gopal inflicted gandasi blow on his head, which clearly takes the case out of the purview of Exception 4 of Section 300 IPC. Even if the matter is examined from the standpoint of Exception 4, we are unable to find any iota of evidence to say that the offence was committed by the accused without pre-medication in sudden fight or in the heat of passion, upon a sudden quarrel or that the accused had not taken any undue advantage of his position. Contention that since accused-appellant Gopal inflicted only one injury on the head of deceased-Ramnarayan and because he did not repeat the injury, therefore, it should be assumed that he had no intention to murder him and atleast he cannot be said to have taken any undue advantage, is in the facts of this case is noted to be rejected. 12. The Supreme Court in Arun Raj vs. Union of India and others : (2010) 6 SCC 457 while considering Exception 1 with reference to Section 300 discussed “what should be the provocation” as referred to therein. The Supreme Court held that provocation has to be judged on the scale of a normal man. It is an external stimulus which can result into loss of self-control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. The Supreme Court held that provocation has to be judged on the scale of a normal man. It is an external stimulus which can result into loss of self-control. Such provocation and the resulting reaction need to be measured from the surrounding circumstances. Provocation must be such as will upset not merely a hasty, hot-tempered and hypersensitive person but also a person with calm nature and ordinary sense. The appellants in the present case have not been able to show whether they had any provocation whatsoever, let alone sudden and grave provocation, to accused-Gopal, which can be said to have deprived him of the power of self-control. 13. The Supreme Court in Vijender Kumar alias Vijay vs. State of Delhi : (2010) 12 SCC 381 held that sine qua non for application of an Exception to S.300 IPC always is that it is a case of murder but accused claims benefit of the Exception to bring it out of S.300 and to make it a case of culpable homicide not amounting to murder. It is for the accused to show the applicability of the Exception claimed. It was further held that number of injuries caused in such a case is not conclusive in determining nature of offence, but what has to be primarily seen are circumstances preceding incident and not exclusively during incident. The case of the accused-appellant Gopal cannot therefore fall within Exception 4 of Section 300 IPC. 14. Besides, single injury that was caused by accused-Gopal on the head of deceased-Ramnarayan was an incised wound. The injuries sustained by Ramnarayan as per post mortem report, are as under:- 1. Incised wound on scalp runs of oblique posterior laterally starting just in front of lambojd. Suture on left parietal bone just lateral to sagital suture and running posteriorly on right parietal bone after crossing sagital suture and ended as occipital. Bone of just behind suture between right parietal and occipital bone into bone deep ½x½”. 2. Abrasion on right shoulder 1x½” 3. Incised wound on back of left arm just above left elbow joint 1½x½x½”. The injuries are ante mortem in nature. Bone of just behind suture between right parietal and occipital bone into bone deep ½x½”. 2. Abrasion on right shoulder 1x½” 3. Incised wound on back of left arm just above left elbow joint 1½x½x½”. The injuries are ante mortem in nature. Following opinion was expressed by the Medical Officer as to the cause of death:- Opinion:- In my opinion after post mortem of Ram Narain, cause of death is Head injury leading to Fracture of Parietal Bone (Right), temporal (Rt.) bone and frontal (Rt.side) bone and subdural Hematoma (Laigi), consequence of these events lead to contusion and compression of brain and cranial cavity compression and contusion of Brain are sufficient to cause of death of Ram Narain under such circumstances. 15. Post-mortem report also indicates that this injury resulted into fracture of right parietal bone just parallel to sagital suture starting 1½” in front of right parieto-occipital suture. Fracture is extended interiorly and inferiorly upto forward frontal bone, just above right orbit then turned towards right temporal bone and end at zygomatic arch. Fracture involved outer as well as inner table of skull bone. 16. The magnitude of the injury and force with which it was caused clearly reveals intention of the accused-Gopal in causing such bodily injury as he knew was likely to cause death of deceased-Ramnarayan. The act of accused-Gopal in causing such bodily injury to deceased-Ramnarayan was certainly intentional, which injury was sufficient in the ordinary course of nature to cause his death. He committed such an act without any excuse for incurring the risk of causing death or such injury as aforesaid. Thus, examining in the light of the provision of Section 300 IPC, the act of accused-Gopal would qualify all the clauses, firstly, secondly, thirdly and fourthly of Section 300 IPC alternatively, as well as cumulatively. 17. The Supreme Court in Suchand Bouri vs. State of West Bengal : (2009) 17 SCC 63 held that for the purpose of Exception 4 of Section 300, defence has to probabilise that “sudden fight” implies mutual provocation; a bilateral transaction in which blows are exchanged and “heat of passion” means there is no time for passion to cool down. The act was committed in a fit of anger. The present case does not have either of the ingredients. 18. The act was committed in a fit of anger. The present case does not have either of the ingredients. 18. Coming now to the question whether it was a case of the accused-appellants forming an unlawful assembly and whether other accused-appellants than Gopal can be vicariously held responsible for the murder of Ramnarayan even when they are held guilty of simple injuries on the person of three injured-witnesses. 19. The Supreme Court while considering this aspect of the matter in Maranadu and another vs. State by Inspector of Police, Tamil Nadu : (2008) 16 SCC 529, held as under:- “For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti.” 20. In Vishnu and others vs. State of Rajasthan : (2009) 10 SCC 773 , the Supreme Court sounded a note of caution that court has to ascertain whether every member of an unlawful assembly knew the offence likely to be committed in prosecution of a common object, only then a person, who at the time of committing that offence was such member, would be guilty of the offence committed. The court should guard against danger of convicting innocent persons and for that purpose scrutinize record carefully and if doubt arises, should give benefit thereof to the accused. The common object may be commission of one offence while there may be likelihood of commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly and whether a member of such unlawful assembly was aware as regards likelihood of commission of yet another offence or not would depend upon the facts and circumstances of each case. Background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime would be relevant factors for drawing an inference in this behalf. (emphasis ours) 21. In the light of the above, if the law is correctly applied to the facts of the present case, it is noticed that not only other two injuries i.e. Injuries No.2 & 3, of deceased-Ramnarayan, are simple and superficial in nature but Gajanand (PW4) also received five simple injuries, two of which were lacerated wounds, Ganeshi Bai (PW21) received one lacerated wound, which is simple in nature and Jagannathi (PW8) received six injuries, five of which were simple in nature and one injury was found grievous, being fracture of radius and ulna bone in lower 1/3rd region of left hand. Besides, critical examination of the statements of these three eye-witnesses clearly show that they are not stating complete truth and making lot of exaggeration. 22. Gajanand (PW4) though in the beginning reiterated what was alleged by Jagannathi (PW8) in her 'parcha bayan' that it was Gopal, who inflicted gandasi blow on the head of deceased-Ramnarayan but later she has out of sheer enthusiasm also sought to enrop all other accused-appellants than Gopal, for murder of Ramnarayan. He has named Kishan and Badri with kulhadi, Pappu with knife and Laxminarayan with kulhadi, and alleged that all four of them caused injuries on the person of deceased-Ramnarayan. Then, he has stated that he as well as Jagannathi (PW8) and Ganeshi Bai (PW21) intervened to save deceased-Ramnarayan. He has named Kishan and Badri with kulhadi, Pappu with knife and Laxminarayan with kulhadi, and alleged that all four of them caused injuries on the person of deceased-Ramnarayan. Then, he has stated that he as well as Jagannathi (PW8) and Ganeshi Bai (PW21) intervened to save deceased-Ramnarayan. Kishan inflicted kulhadi blow on his head, whereas injury report Exh.P.2 merely shows the incised wound on his face, below left eye in the size of 2½x½”, which is opined to be simple and another injury was lacerated wound and two injuries were merely complaints of pain. He did not stop here and went on to allege that Badri, who had kulhadi, inflicted on his right eye, Pappu, who had knife stabbed on his neck from behind, whereas no such injury is found on his person. 23. Jagannathi (PW8) has also similarly exaggerated when she states that after Gopal inflicted gandasi blow on the head of deceased followed by another kulhadi blow by Laxminarayan on his head, and then Kishan also inflicted kulhadi blow on his head. Pappu had stabbed knife on the neck from behind. Thereafter, she fell down on the deceased to save him. Gopal inflicted a gandasi blow on her neck. Badri also inflicted a kulhadi blow on her back. Then, Kishan also inflicted a kulhadi blow on her hand. And Pappu stabbed knife in her arm pit. Strangely, none of her injuries is incised wound. She sustained six injuries, two abrasions, two lacerated wounds, two complaints of pain and one is swelling and tenderness of lower ½ of left forearm and wrist joint, which was found to be fracture of radius and ulna bone. Thus, none of the injuries alleged to be caused to injured by varied nature of sharp edged weapons, has actually been received by them. 24. Ganeshi Bai (PW21), third witness, has stated that the first injury that was caused on the head of her father Ramnarayan by Gopal was with a gandasi. Kishan and Badri inflicted injuries on her shoulder and fore-arm by kulhadi. Laxminarayan had also inflicted lathi blows on the person of Ramnarayan. She has alleged that Kishan inflicted kulhadi blow on her left hand, Kishan also inflicted a kulhadi blow on the left eye of her brother Gajanand. Laxminarayan and Kalyan inflicted lathi and gandasi blows on her mother. Gopal caused injuries to her mother by lathi and gandasi. Laxminarayan had also inflicted lathi blows on the person of Ramnarayan. She has alleged that Kishan inflicted kulhadi blow on her left hand, Kishan also inflicted a kulhadi blow on the left eye of her brother Gajanand. Laxminarayan and Kalyan inflicted lathi and gandasi blows on her mother. Gopal caused injuries to her mother by lathi and gandasi. Kalyan inflicted lathi blow on her mother. Laxminarayan inflicted a kulhadi blow on her mother. Large number of injuries attributed mostly by sharp edged weapons by all the three witnesses to the accused are not only not corroborated by the medico-legal evidence but also speak volumes of the intention of these witnesses to falsely enrop all the other accused. 25. The Supreme Court in Roy Fernandes vs. State of Goa and others : (2012) 3 SCC 221 , held that in the absence of any evidence, leave alone credible evidence, it is not possible to hold that the accused persons had come to the place of occurrence with the common object of killing the deceased. The commission of offence of murder of the deceased was itself not the common object of unlawful assembly. And yet that assembly was unlawful, because from evidence adduced at trial (in that case), it was proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within contemplation of Section 141 thirdly. Thus, the accused persons including the appellant had certainly come to the spot with the common object to over awe and prevent the deceased, by use of criminal force, from putting up the fence in question. That they actually slapped and fisticuffed (boxed) witnesses (companions of the deceased), one of whom lost his two teeth and another sustained a fracture, only proves that point. There was no evidence to show that the appellant could be attributed with the knowledge of the likelihood that in prosecution of the common object of preventing the putting up of fence around the Chapel, member of assembly or any one of them was likely to commit murder of the deceased. There was no evidence to show that the appellant could be attributed with the knowledge of the likelihood that in prosecution of the common object of preventing the putting up of fence around the Chapel, member of assembly or any one of them was likely to commit murder of the deceased. The conduct of members of assembly, especially the appellant, also does not suggest that they intended to go beyond preventing laying of fence, leave alone committing a heinous offence of murder of a person, who had fallen to ground with a simple blow and who was being escorted away from the spot by his companions. Their lordships held that the prosecution case, therefore, boils down to the appellant and his four companions arriving at the spot, one of them giving a knife-blow to the deceased in his thigh, which cut his femoral artery and caused death. Sudden action of one of the members of unlawful assembly does not constitute an act in prosecution of common object of unlawful assembly, namely, preventing of erection of fence in question, and members of unlawful assembly did not know that such an offence was likely to be committed by any member of assembly. It was held that effect of Sec.149 may be different on different members of same unlawful assembly. The courts below fell in error in convicting the appellant u/S.302 with the aid of Sec. 149. However, conviction of the appellant u/Ss.143, 148, 323 and 325 read with Sec. 149 was maintained. 26. Ratio of the aforesaid case applies to the present matter with full force because it was accused-appellant Gopal alone, who inflicted gandasi blow on the person of Ramnarayan, whereas other accused are not shown to have used such force in causing the injury to any of the injured or in respect of other two injuries of the deceased, attributed to accused, which are mostly simple in nature except Injury No.5 of Injured-Jagannathi (PW8) leading to fracture of radius and ulna bone in lower 1/3rd region of left hand. Even though all the accused-appellants would be deemed to be member of unlawful assembly but common object of such assembly by their conduct and keeping in view the exaggerated statements by all the three eye witnesses, which have not been corroborated by the medico-legal evidence, would be to give thrashing to the complainant-party regarding other simple injuries on the person of deceased and on the person of three injured, but all of them cer-tainly did not form unlawful assembly with the common object of committing murder of deceased-Ramnarayan. Unlawful assembly though it was but only to give thrashing to deceased-Ramnarayan and not for anything else. Accused-Gopal exceeded the common object of the assembly, therefore, he would be individually liable for his own act. Other accused would not be vicariously liable for the act of the accused-Gopal. None of the judgments cited by the learned counsel for the appellants apply to the facts of the present case. 27. In the result, the appeal is allowed in part. The conviction of accused-appellant No.2 Gopal for offence under Section 302 IPC simplicitor is upheld, whereas conviction of accused-appellants No.1, 3, 4 & 5-Laxmi Narayan, Kishanlal, Pappu & Badrilal for offence u/S.302/149 IPC is set-aside. Conviction of all the accused-appellants including accused-appellant No.2-Gopal, for offence u/Ss.147, 148, 323, 324 and 325/149 IPC, however, is maintained. While sentence awarded to accused-appellant No.2-Gopal on each of these counts is maintained with direction that all the sentences shall run concurrently however, accused-appellants No.1, 3, 4 & 5-Laxmi Narayan, Kishanlal, Pappu & Badrilal are sentenced to the period already undergone by them. They are on bail and hence they need not to surrender. Their bail bonds are discharged. 28. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused-appellants No.1, 3, 4 & 5-Laxmi Narayan, Kishanlal, Pappu & Badrilal are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before the Supreme Court.