Hon'ble GUPTA, J.—Appeal No.101/2004 has been filed by accused appellants Ansar Miyan and Munna @ Bada Munna whereas Appeal No. 67/2004 has been filed by Chhotya @ Nisar, Sardar Khan and Abrar. However, as both these appeals are related to same incident and arises of a common judgment hence, both these appeals are being decided by this common judgment. 2. Both these appeals have been filed against the judgment dt. 13.12.2003 passed by Additional Sessions Judge (Fast Track) Tonk in Sessions Case No. 55/2003 whereby the appellants have been convicted and sentenced as under: Accused appellants (1) Ansar Miyan and Munna @ Bada Munna Under Section 302/149 IPC:- to undergo Life imprisonment and a fine of Rs. 100/- each in default of payment of fine, to further undergo three month S.I.; Under Section 325/149 IPC:- to undergo three years R.I., and fine of Rs. 1,000/- in each, in default of payment of fine, to undergo further three months S.I.; Under Section 148 IPC :- Rigorous imprisonment for two years along with fine of Rs. 100/- each, in default of payment of fine to further undergo 3 months S.I. Under Section 323 IPC :- three months rigorous imprisonment Under Section 341 IPC :- to undergo 1 months S.I. Accused appellants (1) Chhotya @ Nisar, (2) Sardar Khan and (3) Abrar Under Section 302/149 IPC:- to undergo Life imprisonment and a fine of Rs. 100/- each in default of payment of fine, to further undergo three month S.I.; Under Section 325/149 IPC:- to undergo three years R.I., and fine of Rs. 1,000/- in each, in default of payment of fine, to undergo further three months S.I.; Under Section 148 IPC :- Rigorous imprisonment for two years along with fine of Rs. 100/- each, in default of payment of fine to further undergo 3 months S.I. Under Section 323 IPC :- three months rigorous imprisonment Under Section 341 IPC :- to undergo 1 months S.I. (All the sentences were ordered to run concurrently) 3. The brief facts giving rise to these appeals are that complainant Mohammad Abid Rashid (PW/4) lodged a written report Ex.P/16 on 29.10.1996 stating therein that on 29.10.1996 at about 9.30 AM in the morning, his son Mohammad Zahid Rashid and Mohammad Yusuf Rashid went on a moped to their school. The brief facts giving rise to these appeals are that complainant Mohammad Abid Rashid (PW/4) lodged a written report Ex.P/16 on 29.10.1996 stating therein that on 29.10.1996 at about 9.30 AM in the morning, his son Mohammad Zahid Rashid and Mohammad Yusuf Rashid went on a moped to their school. He also went behind them on the moped of Nasir Najid and when they went to Jail Road, they saw that Ansar, Bada Munna, Sardar Khan, Chhote Khan, Abrar Khan all are inflicting lathi, Axe and knife blow to both his sons and both Zahid and Yusuf were lying there injured. The incident was also witnessed by Shahzad and Kana. As they were scared they went away from there and reported the matter to Police Station, Sadar and in police vehicle both the injured shifted to hospital from where they have been referred to Jaipur. Due to enmity as regards dispute of way they have been attacked and two-three days earlier, the incident has also taken at their farm-house. On this report, FIR No. 255/1996 has been registered for the offence under Sections 147, 148, 149, 307, 341, 323 IPC. Thereafter when Yusuf Rashid died offence under Section 302 IPC was also added and after usual investigation, charge sheet has been filed against the appellants and Sahzad Khan. The court below has framed charges against the appellants for the offence under Sections 148, 302, 302/149, 325, 323, 341 IPC. In support of its case, the prosecution has examined PW.1 Kana, PW.2 Ramawtar, PW.3 Azaz Rashid, PW.4 Mohd. Abid Rashid, PW.5 Mohd. Salim, PW.6 Zahid Rashid, PW.7 Ram Kishan, PW.8 Mohan Lal Sharma, PW.9 Phaguniram, PW.10 Hamid Ali, PW.11 Dr. Rakesh Gupta, PW.12 Banshilal Vishnoi, PW.13 Parvej, PW.14 Bajranglal Sharma, PW.15 Khalid Rashid, PW.16 Kedar, PW.17 Sahzad, PW.18 Radhey Shyam Sharma, PW.19 Shanker Singh, PW.20 Rashid Khan, PW.21 Birdha Ram, PW.22 Smt. Dr. Anu Bhandari, PW.23 Aslam Said, PW.24 Dr. R.K. Mathur, and PW.25 Satya Narayan Pareek and produced Ex. P/1 to P/59 and P/68. Statements of accused persons have been recorded under Section 313 Cr.P.C and in defence DW.1 Sitaram, DW.2 Rais, DW.3 Sardar Khan, DW.4 Abrar, DW.5 Muktyar and DW.6 Atik Miya have been examined and defence has also relied upon Ex.D/1 to D/18. After conclusion of the trial, Sahzad Khan has been acquitted and the present appellants have been convicted and sentenced, as referred above. Hence these appeals. After conclusion of the trial, Sahzad Khan has been acquitted and the present appellants have been convicted and sentenced, as referred above. Hence these appeals. 4. The contention of the present appellants is that the whole story is concocted one. Abid Rashid and Khalid Rashid are respectively father and brother of deceased, they are not the eye-witnesses, they have been implanted as eye-witnesses. Independent witness Kana has not supported the prosecution story and other witness Nasir Nazeeb named in the FIR has not been examined. Allegation of having sharp edged weapon has been lodged but there is no sharp edged injury received by the deceased or the injured and no sharp edged weapon has been recovered at the instance of any of the appellants. There is no evidence that the appellants were having any common object to murder the deceased or to inflict injury to Zahid. No specific over- tact has been assigned to any of the appellants. There is no evidence that it was the usual way of the deceased or the injured for going school and the appellants were knowing that at a particular time, they will pass through this way. Initially, on telephone message there is no narration that the injured has inflicted injuries due to some altercation, lathies have been recovered at the instance of appellants but none is blood-stained. Father has alleged to have reached the place of occurrence but he has not shifted the injured to hospital and he went to his Farm House which is unnatural conduct of the father Mohd. Abid Rashid (PW/4). There is no evidence that there was previous enmity between the parties. PW/4 Abid Rashid and PW/15 Khalid Rashid are not reliable witnesses and court below has also not relied on them. PW/6 Zahid Rashid was conscious throughout after the incident but his statement has been recorded after significant delay of 5 days. Initially, Sahjad Khan was named as eye-witness but as he has not supported the prosecution, he has been made accused falsely and has been acquitted. Number of injures did not go with the presence of five persons, the injured and the deceased have received injuries by way of accident and the present appellants have been implicated falsely. 5. Initially, Sahjad Khan was named as eye-witness but as he has not supported the prosecution, he has been made accused falsely and has been acquitted. Number of injures did not go with the presence of five persons, the injured and the deceased have received injuries by way of accident and the present appellants have been implicated falsely. 5. Per contra, the contention of the Public Prosecutor is that there is no reason to disbelieve the evidence of PW/6 Zahid Rashid who has also received injuries in the incident. He has narrated the incident and inspires confidence. When five persons are attacking, it was not possible for him to narrate the over- tact of every person and when the appellants are party to the unlawful assembly, they cannot escape from the vicarious liability. Zahid was seriously injured and was not in a fit condition to state hence his statement could not be recorded prior to 2.11.1996. FIR has been lodged just after the occurrence and FIR has been further corroborated by the evidence of PW/6 Zahid Rashid who has independently stated the incident. PW/4 Abid Rashid has not talked Zahid prior to the lodging of FIR but still FIR and statement of PW/6 Zahid corroborates each other. The defence has not able to probabilise the fact that injuries have been sustained accidentally. Injured witness cannot be discarded lightly hence, there is no infirmity in the conviction of the appellants and no interference is needed. 6. Heard the learned counsel for the appellants and learned Public Prosecutor and perused the impugned judgment as well as the original record of the case. 7. PW/4 Abid Rashid has lodged the First Information Report. He is the father of deceased and injured and he has stated that when he reached the Jail Road on moped with Nasir Najeeb, he saw that Ansar Miyan and Munna are inflicting injuries to his children Yusuf and Zahid and both were lying on the road in pool of blood. His further contention is that he ran away from the spot. He reported the matter to Police Station, Sadar and then went to his house. He admits the fact that he did not went with the injured to Saadat Hospital, Tonk or to Jaipur. His further contention is that he ran away from the spot. He reported the matter to Police Station, Sadar and then went to his house. He admits the fact that he did not went with the injured to Saadat Hospital, Tonk or to Jaipur. His further contention is that somebody has told him that Kana was also the eye-witness and from his residence, he went to his agricultural farm and he went at the spot at the last moment of the incident. The composite reading of the statement suggests that he has not witnessed the incident as a whole and he has stated the fact that after seeing the crowd, he returned from the spot, hence the court below has rightly held that PW/4 Abid Rashid is not the eye-witness of the whole incident and he has not stated about the specific role of any of the appellants. As regards infliction of injuries, he has named only Ansar Miyan and Munna hence PW/4 is not the eye-witness of the whole incident but he has seen the injured and the deceased lying on the road and he has also testified that both have received injuries and appellants were there on the spot. In support of this argument, the learned counsel for the appellants has relied upon State of U.P. vs. Mushtaq Alam, JT 2007(9) SC 556 wherein the conduct of the witness was unnatural. Here also the conduct of the father is unnatural and it can be safely inferred that he was not the eye-witness to the incident. 8. PW/15 Khalid Rashid is brother of the deceased and the injured, he has not been named in the FIR. His contention is that he went to MuZahid Miya's house to meet him and he saw that Munna and Ansar are inflicting injuries to Yusuf and thereafter they attacked on Zahid and both his brothers got injured. In site-plan (Ex.P/3), MuZahid Miya's house has been shown at the place of occurrence as `F'. Hence presence of this witness was probable at the spot but this witness has specifically stated in his cross-examination that when he reached at the spot, appellants were not there, they had already left the place. This means that this witness was not the eye-witness of the incident but he has seen his brothers injured. 9. Hence presence of this witness was probable at the spot but this witness has specifically stated in his cross-examination that when he reached at the spot, appellants were not there, they had already left the place. This means that this witness was not the eye-witness of the incident but he has seen his brothers injured. 9. PW/6 Zahid Rashid is the eye-witness and also injured in the incident who has stated that on 29.10.1996 at about quarter past nine, they started for their school and when they reached near Jail Road bridge where stall of Sahjad is situated, all the 6 persons, Sardar, Abrar, Ansar, Chhotar and Sahjad and Bada Munna attacked him and his brother Yusuf. Ansar and Munna inflicted injuries to his younger brother Yusuf and thereafter they both attacked on him with Pharsa and lathi and he has received injuries on his head, left eye, right eye, forehead and on the eye-brow etc. In cross-examination also, he has stated that on his left-eye Munna has inflicted injury and on his head, Ansar Miyan was the author of the injury. This witness has narrated the incident that all the appellants were there with weapons and Munna and Ansar has caused injuries to him and to the deceased. 10. The contention of the counsel for the appellants is that his statement has been recorded after 5 days, hence he is not the reliable witness. The contention of the prosecution is that Jajid (PW/6) was not in a fit condition to give statement hence his statement could not be recorded earlier and Public Prosecutor has pointed out the proceedings of FIR wherein narration has been mentioned that Yusuf and Zahid were not in a condition to depose. PW/1 Kalyanmal who has shifted the injured to the hospital has also stated that Yusuf was unconscious and the other injured person was not in a condition to speak. PW/2 Ramavatar who accompanied PW/1 Kalyanmal from the spot has also stated that both the persons were seriously injured. PW/8 Mohan Lal Sharma who has examined the injured Zahid has stated that on 2.11.1996, the duty doctor has verified that the injured is in a fit condition to state then only his statement has been recorded and he has denied the suggestion that earlier the injured was in a fit state to depose. PW/8 Mohan Lal Sharma who has examined the injured Zahid has stated that on 2.11.1996, the duty doctor has verified that the injured is in a fit condition to state then only his statement has been recorded and he has denied the suggestion that earlier the injured was in a fit state to depose. PW/25 Satya Narayan Pareek, Investigating Officer, has also stated that both the brothers were seriously injured. Medical Officer has verified the fact that both are not in a fit condition to depose. Both the injured were referred to Jaipur and Mohan Lal (PW/8) and two-three constable were also sent with them. In cross-examination, he has specifically stated that from 29.10.1996 to 1.11.1996, statements of Zahid Rashid could not be recorded as he was not in a fit condition to state. There is no doubt about this fact that Zahid was not in a fit condition to state although he may be conscious and looking to his condition if his statement could not be recorded prior to 2.11.1996 only on this count his testimony cannot be discarded. 11. PW/6 Zahid Rasid has stated that he was not knowing whether any FIR was lodged and he has not talked to his father prior to recording of his statements under Section 161 Cr.P.C., and PW/4 Mohd. Abid has also stated that prior to lodging of the FIR, he has not meet his son. This also gives strength to the prosecution that both the witnesses has independently narrated the same manner of the incident. 12. PW/6 Zahid Rashid is the eye-witness hence his presence cannot be doubted and his testimony is worth acceptance and reliance has been placed on Abdul Sayeed vs. State of Madhya Pradesh, 2010 (10) SCC 259 , wherein it has been held as under: “26. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". 27. "Convincing evidence is required to discredit an injured witness". 27. While deciding this issue, a similar view was taken in, Jarnail Singh vs. State of Punjab, (2009) 9 SCC 719 , where this Court reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:- "Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell.” In Shivalingappa Kallayanappa vs. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident. In State of U.P. vs. Kishan Chand, (2004) 7 SCC 629 , a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross- examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan vs. State of Haryana, (2006) 12 SCC 459 ). Thus, we are of the considered opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below." 13. Further, it has been held in Abdul Sayeed (supra) as under: “28. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.” 14. In the light of the law propounded above, PW/6 Zahid is himself injured in the course of the occurrence, hence his presence at the scene of crime cannot be denied. After lengthy cross-examination nothing can be brought out by the defence to discard his testimony and there is no reason for PW/6 Zahid to falsely implicate the present appellants for the commission of the offence and the court below has rightly relied upon the evidence of PW/6 Zahid. 15. PW/1 Kana who is the eye-witness to the incident named in the FIR has not supported the prosecution story but he has endorsed the fact that the person lying there who were bleeding. Other witnesses Nasir Nazeeb named in the FIR has not been examined by the prosecution, but non examination of the same is not fatal to the prosecution as prosecution has amply proved the incident by the evidence of PW/6 Zahid Rashid and Nasir was with PW/4 Abid Rashid and he has been considered not to be eye-witness to the incident hence non examination of Nasir is also inconsequential in the facts of the case. 16. The other contention of the appellants is that whole story is concocted one. Appellants were not knowing that the injured or the deceased will go through this way and there was no reason for the appellants to be there at the particular time but DW/1 Sitaram and DW/2 Rais have brushed aside this contention as both has stated that Zahid and Yusuf were there at Jail Road and further DW/1 Sitaram has stated that teachers and students usually go from this way which clearly suggests that this was the usual path for both the deceased and injured for going to their school and appellants were knowing well about the school timings of both. 17. 17. The other contention of the appellants is that initially, incident has been reported to Police Station, Sadar through telephonic message and there is no mention in Ex.P/1 and P/2, rapat Roznamcha that they have received injuries in quarrel or name of the accused has not been mentioned in the reports. It is true that names of the assailants have not been mentioned in these reports but this does not caste any doubt on the veracity of the prosecution as the telephonic message were cryptic and only as regards the presence of injured at the spot further it supports the prosecution that nothing has been mentioned in Ex.P/1, rapat Roznamchan that any accident has taken place at the spot. 18. The contention of the counsel for the appellants is that incident was accidental and due to enmity the present appellants have been implicated falsely. As mentioned earlier in Ex.P/1 and P/2, rapat Roznamca there is no mention that injured have received injuries accidentally and DW/1 Sitaram and DW/2 Rais has also not stated that it was an accident. They had only denied the fact of attack but has stated nothing as regards the accident. PW/11 Dr. Rakesh Gupta has examined Yusuf and Zahid and prepared the injury reports Ex.P/23 and P/24 respectively. Yusuf has received 5 injuries which are on skull, forehead, lower-back, knee etc., and from a single fall, it was not possible to have the injuries and the same is the situation with PW/4 Zahid, he has also received four injuries which are on head, hand, eye-brow etc. and when PW/6 Zahid Rashid has specifically deposed that they have received injuries in a wild attack, then contention of defence as regards to accident is not acceptable, the defence has not probabilise the theory of accident by any iota of evidence. 19. The other contention of the appellants is that Sahjad has been shown as witness in the First Information Report but during investigation, he has been booked as an accused and ultimately, after trial, he has been acquitted, hence a false case has been registered against one person which caste shadow on the truthfulness of the prosecution. It is true that Sahjad has been acquitted but it cannot be said that if he has been implicated falsely the others would have also particularly when PW/6 Zahid has specifically stated in favour of the prosecution. 20. It is true that Sahjad has been acquitted but it cannot be said that if he has been implicated falsely the others would have also particularly when PW/6 Zahid has specifically stated in favour of the prosecution. 20. The contention of the appellants is that witnesses are interested witnesses. Admittedly, their relations are inimical and they have exaggerated their versions and the evidence is not corroborated by the medical evidence, hence they should not be believed and reliance has been placed on Kuldip Yadav & ors. vs. State of Bihar, (2011) 5 SCC 324 . It is true that PW/6 Zahid Rashid is the interested witness but at the same time, he is injured witness and only due to the relation, his testimony cannot be discarded. The other contention of the appellants is that PW/6 Jaid Rashid has stated that appellants were having Pharsi but admittedly, there is no injury of sharp edged weapon caused to any of the injured and it cast serious doubt on the veracity of the prosecution. Reliance has been placed on Bhola Singh vs. State of Punjab, AIR 1999 SC 767 . It is true that PW/6 Zahid Rashid and others have stated that appellants were having Pharsi and admittedly, there is no injury suffered by any of the injured by sharp edged weapon but this alone would not cause doubt on the veracity of the prosecution and evidence of PW/6 Zahid Rashid cannot be discarded as a whole. There is some exaggeration as regards to use of particular weapon but on this point that Ansar Miyan and Munna @ Bada Munna have inflicted injuries on him and Yousf, there is no contradiction in the statement of Zahid Rashid even after a long cross-examination and his statement has been further corroborated by the medical evidence. PW/22 Dr. Smt. Anu Bhandari has testified the fact that Zahid has also received fracture of temporal parietal bone. PW/24 Dr. R. K. Mathur has conducted the post-mortem of deceased Yusuf and prepared post mortem report (Ex.P/68) and cause of death is shown as Comma as a result of injuries to skull and brain and it has also been further testified by the witness that injuries are sufficient to cause death in ordinary course of nature. PW/24 Dr. R. K. Mathur has conducted the post-mortem of deceased Yusuf and prepared post mortem report (Ex.P/68) and cause of death is shown as Comma as a result of injuries to skull and brain and it has also been further testified by the witness that injuries are sufficient to cause death in ordinary course of nature. Hence, the court below has rightly arrived at a conclusion that appellants Ansar Miyan and Munna @ Bada Munna were the assailants and they caused vital injuries to Yusuf and also inflicted grievous injury to Zahid on his head. 21. As regards other appellants, there is no allegation in the FIR that they have inflicted any injury to any person. Even PW/6 Zahid has stated only as regards to appellants Ansar and Munna @ Bada Munna and in cross-examination he has specifically stated that he has not seen Sardar Khan inflicting any injury and he could not say that Abrar, Chhotya and Sardar have inflicted which injury. All the injuries received by Zahid has been attributed to only Ansar Miyan and Munna and as stated earlier, Yusuf has received 5 injuries and Zahid has received four injuries and number of injuries does not go with the presence of 5 persons and no over-tact has been attributed to appellants. 22. The contention of the appellants is that others were not present and for the sake of arguments, if we assume the presence of these three persons then they were not sharing the common object and reliance has been placed on Bhudeo Mandal & ors. vs. State of Bihar, (1981) 2 SCC 755 wherein it has been held by the Hon'ble Supreme Court as under: “In the present case there is no overt act attributed to any of the appellants on the deceased and the mere fact that the appellants were armed with lathis by itself would not prove that they shared the common object with which the main accused was inspired.” 23. Per contra, the contention of the learned Public Prosecutor is that Section 149 Cr.P.C., provides for vicarious criminal liability and when the appellants assembled together armed with weapons and were party to the attack on the complainant party, the prosecution is not able to prove specific over tact and if appellants have not verified any violent act yet they have participated in the unlawful assembly for committing the offence, hence they have been rightly convicted and reliance has been placed on Lalji & Ors. vs. State of U.P., AIR 1989 754 and; Subal Ghorai vs. State of West Bengal, (2013) 4 SCC 607 . 24. There is no dispute about the legal proposition that if a person is part of unlawful assembly, he can be held guilty without proving a particular over-tact but at the same time, the Court should guard against the danger of implicating the innocent persons and the evidence should be scrutinized carefully that whether other member of unlawful assembly was aware of likelihood of commission of the offence or they have participated in the crime and principles have been explained by the Apex Court time and again. In Bachan Singh vs. State of Bihar - (2008) 12 SCC 23 , Supreme Court re-visited previous case law on the subject in Masalti & Ors. vs. The State of Uttar Pradesh - AIR 1965 SC 202 , Lalji and others vs. State of U.P. - (1989) 1 SCC 437 and Shamushul Kanwar vs. State of U.P - (1995) 4 SCC 430 and held that where prosecution fails to prove the existence of common object of all the members of unlawful assembly, it is unsafe to convict all on the basis of overt-acts of few. It was further held by the Supreme Court that where free fight took place and thirteen accused were charged, only those who caused fatal injuries, were liable to be convicted. The Supreme Court acquitted other accused-appellants, who were charged with the aid of Section 149 IPC giving them benefit of doubt. It was further held by the Supreme Court that where free fight took place and thirteen accused were charged, only those who caused fatal injuries, were liable to be convicted. The Supreme Court acquitted other accused-appellants, who were charged with the aid of Section 149 IPC giving them benefit of doubt. 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 attributed 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 supplied) In Nagarjit Ahir vs. State of Bihar - (2005) 10 SCC 369 , the Supreme Court held that it may be safe to convict only those persons against whom overt-act is alleged with the aid of Section 149 IPC, lest some innocent spectators may get involved. In Pandurang Chandrakant Mhatre and others vs. State of Maharashtra - (2009) 10 SCC 773 , the Supreme Court held that where a large number of persons are alleged to have participated in the crime and are sought to be convicted under section 149 IPC, the court needs to consider all the facts situation and convict only those accused, whose presence was clearly established and overt-acts were proved. The Supreme Court in Debashis Daw & Ors. The Supreme Court in Debashis Daw & Ors. vs. State of West Bengal (2010) 9 SCC 111 , while considering the question of applicability of Sections 149 and 141 IPC, held that it is well settled and needs no restatement that mere presence of the persons at the scene of offence, itself would not be enough to convict them and punish under Section 149 IPC unless it is established that each one of them was part of the unlawful assembly and committed the offence in prosecution of the common object of that assembly. When there are large number of accused with general allegations, the court should categorically scrutinies the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. 25. In the light of the above, when we scan the evidence of present case the allegations against appellants Chhotya @ Nisar, Sardar Khan and Abrar are general in nature. PW/6 Zahid Rashid has not stated any specific act of the above three appellants. They have only been named but as regards to infliction of injuries or any other over- tact, nothing has been stated in this regard against the present appellants, hence it can safely be concluded that appellants Chhotya @ Nisar, Sardar Khan and Abrar have not participated in the incident, the presence of these three has not been established at the occurrence beyond reasonable doubt and these three appellants are entitled for benefit of doubt and consequently for acquittal for the offences. The appellants Ansar Miyan and Munna @ Bada Munna are guilty of inflicting fatal injuries to deceased Yusuf and also grievous and simple injuries to Zahid. They both have shared common intention, consequently their conviction under Section 302/149 and 325/149 IPC is converted into offence under Section 302/34 and 325/34. Consequently, the Appeal No. 101/2004 filed by accused appellants Ansar Miyan and Munna @ Bada Munna fails and is dismissed as above. Appeal No. 67/2004 is allowed. The accused appellants Chhotya @ Nisar, Sardar Khan and Abrar are acquitted of all the charges levelled against him. Appellants Chhotya @ Nisar, Sardar Khan and Abrar are on bail, they need not surrender. Their bail bonds stand cancelled. Appeal No. 67/2004 is allowed. The accused appellants Chhotya @ Nisar, Sardar Khan and Abrar are acquitted of all the charges levelled against him. Appellants Chhotya @ Nisar, Sardar Khan and Abrar are on bail, they need not surrender. Their bail bonds stand cancelled. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused appellants (i) Chhotya @ Nisar, (ii) Sardar Khan and (iii) Abrar 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.