Hon'ble RAFIQ, J.—This appeal is directed against the judgment dated 8.11.2005 passed by Additional Sessions Judge, Kotputli whereunder all the 9 accused-appellants have been convicted for offence u/S. 302 read with Section 149 IPC and sentenced to life imprisonment with fine of Rs. 2,000. In default of payment of fine, they were to further undergo rigorous imprisonment of one year. Besides, they were also convicted for offence under Section 148 IPC and sentenced to undergo rigorous imprisonment of two years and for offence u/S. 447 IPC and sentenced to undergo rigorous imprisonment of three months. 2. The facts of the case are that a written report (Ex. P 6) was submitted by Suresh Yadav (PW.4) to Sub-Inspector of Police of Police Station Kotputli on the place of incident at 9.30 AM on 5.1.2003 inter alia alleging that he was resident of Village Raghunathpura. At about 9.00 AM on that day i.e. 5.1.2003, his father Deena Ram and brother Rajendra were in their house. At that time, Pappu, Subhash, Leela Ram, all sons of Sanwata, Leela Ram S/o Kana Ram, Sanjay, Tara Chand, Sanwata, Kana Ram, Banwari, father in law of Tara Chand, father in law, brother in law and uncle in law, of Subhash came there with `lathis' and `farsis' in their hands. Pappu was having a naked sword in his hand. Accused came to the house of the complainant with intention to kill them. Subhash with the intention to kill the informant's father Deena Ram, inflicted a `farsi' blow from reverse side on his head and Leela Ram S/o Sanwata Ram with the intention to kill his father, inflicted another `lathhi' blow on the person of Deena Ram as a result of which, he fell down on the ground and became unconscious. The complainant started weeping and raised hue and cry whereupon, the accused ran away. It was further alleged that Banwari S/o of Bhonre Lal, who is closely related to the informant, was a driver on the truck and Subhash and Tara Chand, were drivers on the trucks with Khurana Golden Transport Company. An inter se dispute arose between them on the question of driving the trucks. Owning to that dispute, accused fully armed with weapons attacked the complainant party in their house. His father has received serious injuries. 3. On the basis of aforesaid written report, a regular first information report (Ex. An inter se dispute arose between them on the question of driving the trucks. Owning to that dispute, accused fully armed with weapons attacked the complainant party in their house. His father has received serious injuries. 3. On the basis of aforesaid written report, a regular first information report (Ex. P.5) was chalked out bearing No. 7/03 for offence u/Ss. 147, 148, 149, 447 and 307 IPC. The injured Deena Ram was first admitted to BDM Hospital, Kotputli wherein the injury report (Ex. P.15) was prepared. When his condition has worsened, he was referred to SMS Hospital, Jaipur. During treatment he died there on 8.1.2003. Thereafter, offence for Section 302 IPC was added to the already registered FIR. The police after usual investigation filed challan against 12 accused. The learned trial Court framed charges against all the accused for offence u/S. 302 read with Section 149 IPC, 148 and 447 of IPC. The accused denied the charges and claimed to be tried. The prosecution has produced as many as 32 witnesses and exhibited 56 documents. The defence has not produced any witness, however exhibited 10 documents. The trial court on conclusion of the trial while acquitting three accused Basti Ram, Hawa Ram and Jagdish, convicted the remaining 9 of the aforesaid charges. Hence this appeal. 4. We may at the outset mention that accused-appellant No. 2 Sanwata Ram has during the pendency of appeal died on 12.8.2012 and his death certificate is on record. Accused-appellant Pappu @ Mahendra Kumar Yadav also died during the pendency of appeal on 4.4.2008 and his death certificate is also on record. Appeal filed on their behalf is liable to be dismissed as having abated. 5. We have heard Shri Rinesh Gupta and Ms. Chandra Kala Sahu, learned counsel for accused-appellants and Shri Javed Choudhary, learned Public Prosecutor for State. 6. Shri Rinesh Gupta, learned counsel for the accused-appellants has argued that basically the dispute as per the evidence of prosecution was between Subhash son of Sanwata Ram and Banwari, the son in law of deceased Deena Ram. They were both truck drivers. Dispute arose between them on the question of driving the truck. The testimony of the witnesses has proved that, in fact, efforts were made for resolving the dispute between them to so that they could compromise. However, the efforts failed to yield positive result. They were both truck drivers. Dispute arose between them on the question of driving the truck. The testimony of the witnesses has proved that, in fact, efforts were made for resolving the dispute between them to so that they could compromise. However, the efforts failed to yield positive result. It is thereafter that accused wanted to attack Banwari. The deceased Deena Ram tried to intervene with a view to save his son-in-law Banwari, in which process, he sustained a single blow by blunt weapon as evident by injury report Ex.P.15. For his unfortunate death as many as 12 accused were enropped. Though the learned trial court acquitted three accused, but the remaining nine accused were mechanically convicted even though the specific allegation of inflicting blow by reverse side of the `farsi' on the head of deceased Deena Ram was made against accused Subhash son of Sanwata and of inflicting a 'lathhi' blow on his person, was made against Leela Ram son of Sanwata. The prosecution witnesses maintained the same version in the Court by alleging that the `lathhi' blow inflicted by Leela Ram on the person of deceased Deena Ram was received on his shoulder. Referring to injury report Ex. P.15, it was argued that there was only one injury on the head of deceased and there was no injury whatsoever on the shoulder. The description of other injuries made therein was result of the surgery conducted on deceased during process of treatment. Learned counsel submitted that Dr. Satish Kumar Agarwal (PW.14) has proved the injury report Ex. P.15. According to him deceased sustained only one injury and there was no injury on his hand and shoulder or close to the ear which was attributed to Leela Ram in the statement of some of the witnesses. Learned counsel also referred to the statement of Dr. Rajesh Kumar Verma (PW 23) who conducted postmortem. Learned counsel with reference to the additional two injuries, being injury No. 2 and 3, submitted that they were actually not injuries but the stitch wounds which had occasioned on account of surgery conducted on the body of deceased to save his life. 7. Learned counsel stated that deceased was closely related to the accused and that their houses were constructed on an undivided land of the common ancestors inasmuch as they shared common agriculture land. Accused Kana Ram is first cousin of deceased Deena Ram. 7. Learned counsel stated that deceased was closely related to the accused and that their houses were constructed on an undivided land of the common ancestors inasmuch as they shared common agriculture land. Accused Kana Ram is first cousin of deceased Deena Ram. Accused Sanwata and Banwari Lal were cousin of the father of deceased Deena Ram i.e. Shyam Lal. Accused Subhash @ Leela Ram is the cousin of deceased Deena Ram, whereas Subhash Singh and Sanjay were sons of Kana Ram. Accused Sanwata and accused Banwari are real brothers of deceased Deena Ram whereas accused-appellants Subhash, Pappu (since dead), Tara Chand and Leela Ram are all sons of Sanwata Ram and therefore real nephew of the deceased Deena Ram. The dispute arose on a trifle issue where actual intention of the accused was not and could never be to murder deceased Deena Ram as per the evidence. They only wanted to teach a lesson to Banwari Lal, son-in-law of deceased Deena Ram. Since Deena Ram intervened to save him, he accidentally received injury and ultimately died. 8. Shri Rinesh Gupta, learned counsel submitted that all the eye witnesses relied by the learned trial court have given parrot like statement. Similarity of their statement raises a doubt about veracity of their testimony, which happens because they were closely related to deceased Deena Ram. Suresh (PW 4) and Rajendra (PW 12) are the sons of deceased Deena Ram, Savitri (PW 2) is wife of Suresh, thus daughter-in-law of Deena Ram, Koyali (PW.3) is wife of Rajendra and therefore she too is the daughter-in-law of deceased. Banwari (PW.8) and Girdhari (PW.7) happens to be sons-in-law of deceased. Rameshwar (PW.9) happens to be brother of Banwari, with whom basically Subhash had the dispute. Shimbhu Dayal (PW ) is brother-in-law of Suresh and Rajendra. Mahaveer (PW 13) of course is not resident of Village Raghunathpura, but he has not been believed to be an eye witness by the learned trial court. Rajpal (PW. 10) and Subhram (PW.11) are independent witnesses, but they have not supported the prosecution case and therefore declared hostile. Ami Chand (PW 31) is also independent witness, though he is not an eye witness, but he has given an actual genesis of the incident which had taken place owning to the dispute between accused Subhash son of Sanwata and Banwari, son-in-law of deceased Deena Ram. Ami Chand (PW 31) is also independent witness, though he is not an eye witness, but he has given an actual genesis of the incident which had taken place owning to the dispute between accused Subhash son of Sanwata and Banwari, son-in-law of deceased Deena Ram. Learned counsel has extensively taken the Court through the statement of witnesses, which we shall deal at the appropriate place hereinafter. 9. Shri Rinesh Gupta, learned counsel for the accused-appellant further argued that there is absolutely no evidence of active role or participation of the other accused than Subhash son of Sanwata and Leela Ram both sons of Sanwata. Leela Ram has been falsely implicated because he happens to be brother of Subhash. It is alleged against him by the prosecution that he too inflicted `lathhi' blow on the person of deceased Deena Ram, which he has received on his right shoulder, whereas no such injury is mentioned in the injury report or even in postmortem report (Ex. P.29). His implication is also therefore false. 10. Learned counsel for the appellants has argued that only because other accused are named in the FIR, they cannot be taken to become members of unlawful assembly because no overt act has been assigned to other accused except Subhash and Leela. The prosecution witnesses have also not assigned any active role to other accused. They therefore cannot be taken to be members of unlawful assembly as they have been falsely implicated on the basis of their relations with the accused. 11. In the alternative, learned counsel argued that even if it is held that Deena Ram died due to injury inflicted on his head by the accused-appellant Subhash, the evidence in totality proves it to be a case of unintentional murder inasmuch as it is clearly established that the dispute was between accused Subhash and Banwari, who happens to be the son-in-law of deceased Deena Ram and deceased received the aforesaid injury only because he intervened to save his son-in-law Banwari. Some of the witnesses are saying that accused Subhash had a barchhi in his hand, others said he had a `farsi', yet all have consistently alleged that he delivered the blow of `farsi'/barchhi from reverse side and recovery of `farsi' has been made at the instance of Subhash. Some of the witnesses are saying that accused Subhash had a barchhi in his hand, others said he had a `farsi', yet all have consistently alleged that he delivered the blow of `farsi'/barchhi from reverse side and recovery of `farsi' has been made at the instance of Subhash. It is thus evident that the accused did not intend to murder Deena Ram or else he would have used the `farsi' from sharp side. It is prayed that accused Subhash is in jail for last more than 10 years and 6 months and therefore in view of evidence, his conviction be altered from Section 302/149 to one under Section 304 Part I IPC and he be sentenced to the period already undergone by him. 12. Shri Javed Choudhary, learned Public Prosecutor for the State opposed the appeal and submitted that consistency in the statement of prosecution witnesses cannot be a factor against the prosecution. What the prosecution witnesses are alleging is substantially corroborated from the injury report (Ex.P.15) and the postmortem report (Ex. P. 29). Moreover, their allegation is in tune with the first version disclosed in the FIR. Their testimony cannot be discarded only by saying that they are making parrot like statement. It is argued that there is no presumption that if the witnesses are making similar statement, they are not speaking the truth. 13. Learned Public Prosecutor argued that `farsi' has been recovered at the instance of Subhash S/o Sanwata Ram, whereas `lathhis' have been recovered at the instance of other accused. Dr. Satish Kumar Agarwal (PW.14) has proved injury report (Ex. P. 15) whereas Dr. Rajesh Kumar Verma (PW. 23) has proved the postmortem report (Ex.P.29). Dr. N.C. Pooniya (PW. 26) was a neurosurgeon of SMS Hospital, who conducted surgery on the head of deceased. Learned Public Prosecutor argued that the statement of the witnesses is corroborated from the medical evidence and other circumstances on record. `farsi' has been recovered at the instance of Subhash which was inflicted from reverse side. In view of the specific allegation in the written report as well as statement of all the prosecution witnesses, the allegation of causing the single injury on the head of deceased is corroborated against the accused. `farsi' has been recovered at the instance of Subhash which was inflicted from reverse side. In view of the specific allegation in the written report as well as statement of all the prosecution witnesses, the allegation of causing the single injury on the head of deceased is corroborated against the accused. Learned Public Prosecutor argued that all the accused actually participated in the incident and the fact that there was only one injury would not make any difference because not only the participation of all the accused has been proved, but it is corroborated from the recovery of weapons at their instance. Each accused is therefore vicariously liable for the act of one another. Their conviction for offence u/S. 302 with the aid of Section 149 IPC is perfectly just and reasonable. 14. We have given our anxious consideration to the rival submissions and perused the material on record. 15. What is alleged in the first version that was given to the police in the written report naming all the accused was that accused were armed with 'lathhi's and farsis and Pappu had a naked sword. Specific overt act was assigned to Subhash who had 'farsi' with the allegation that he inflicted a blow of 'farsi' from the reverse side on the head of deceased and against his brother accused Leela Ram alleging that he inflicted second blow by `lathhi' on the shoulder of deceased Deena Ram. Savitri (PW.2), Koyli (PW.3), Suresh Chand Yadav (PW.4) and Banwari (PW.8) have in their court statement stated that it was Subhash who inflicted the barchhi blow on the head of deceased Deena Ram which hit him from reverse side. Shimbhu Dayal (PW.6), Girdharilal (PW.7), Rameshwar (PW.9), Rajendra (PW.12) and Mahaveer (PW.13) have stated that accused Subhash inflicted 'farsi' blow on the head of deceased Deena Ram which hit him from reverse side. All these witnesses have alleged that Leela Ram, brother of Subhash, also inflicted 'lathhi' blow on the person of deceased Deena Ram. While Savitri (PW.2), Koyali (PW.3), Suresh Chand Yadav (PW.4) and Banwari (PW.8) have stated that he intended to inflict the 'lathhi' blow on his head and it slipped and was received on his shoulder, there is no injury on the shoulder of the deceased as per injury report (Ex.P/15) or postmortem report (Ex.P/29). While Savitri (PW.2), Koyali (PW.3), Suresh Chand Yadav (PW.4) and Banwari (PW.8) have stated that he intended to inflict the 'lathhi' blow on his head and it slipped and was received on his shoulder, there is no injury on the shoulder of the deceased as per injury report (Ex.P/15) or postmortem report (Ex.P/29). Shimbhu Dayal (PW.6), Girdharilal (PW.7), Rameshwar (PW.9), Rajendra (PW.12) however straight-away alleged that Leela Ram inflicted a 'lathhi' blow on the shoulder of deceased. 16. Perusal of injury report (Ex. P.15) proved by Dr. Satish Kumar Agarwal (PW.14) indicates that there is only one lacerated wound on the head of deceased in the size of 10 cm x 2 cm on fronto parietal region of right side vertical position and no injury on his shoulder. The postmortem report (Ex.P.29) proved by Dr. Rajesh Kumar Verma (PW. 23) indicates two additional stitches, which are consequential injuries as a result of surgery conducted on the deceased, but no injury on the shoulder of the deceased was indicated therein. The cause of death was opined to be "COMA brought about as a result of antimortem injuries to skull and brain, sufficient to cause death in ordinary course of nature." 17. Coming now to the genesis of the incident, we find that it was basically a dispute between accused-appellant Subhash son of Sanwata and Banwari son of Bhonri Lal on the other. This Banwari is different than Banwari son of Shyam Lal, who is one of the accused-appellants. His brother Girdhari Lal has appeared as PW. 7, he has stated that he as well as Banwari were both married to the daughters of deceased Deena Ram. Thus, it is evident that Banwari was the son-in-law of Deena Ram. Girdhari Lal then stated that Banwari most of the time stayed at Raghunathpura with his in-laws. According to this witness, Subhash son of Sanwata Ram and Kana Ram son of Gyarsi were working as drivers with Khurana Transport Company. Accused appellant Sanjay was also a driver who used to accompany them. Tara Chand (accused-appellant) was also a driver. According to this witness, the dispute took place between accused Banwari and accused Subhash on the one hand and his brother Banwari on the other. There was verbal altercation and harsh exchange of words between them at a hotel in Raghunathpura. Accused appellant Sanjay was also a driver who used to accompany them. Tara Chand (accused-appellant) was also a driver. According to this witness, the dispute took place between accused Banwari and accused Subhash on the one hand and his brother Banwari on the other. There was verbal altercation and harsh exchange of words between them at a hotel in Raghunathpura. His brother Banwari then came their house at Raghunathpura and with him he (this witness) went to Raghunathpura to get the dispute sorted out and matter compromised. He along with his brother Rameshwar came to Raghunathpura on their motor cycle. They went to the house of deceased Deena Ramand then all three of them went to the house of Kana Ram. They explored the possibility of amicable settlement of the dispute. Kana Ram, Rajpal, Subhram, Ramshwar, Banwari, Tara Chand and his sons were there. Subhram and Leela Ram also came there. Sanjay and his relatives were also there. Despite efforts of negotiations, the disputed could not be compromised. Pappu and Subhram etc. persisted with the dispute. Even as they were there at the house of Kana Ram, the accused Subhash having `farsi' and Pappu with a naked sword and others `lathhis' went to the house of Deena Ram. This witness also followed them. Subhash inflicted a `farsi' blow at the head of Deena Ram from reverse side and thereafter Leela Ram inflicted a lathhi' blow on the person of deceased, thereby he fell on the ground. Shambhu Dayal (PW.6) has also stated that Subhash and Banwari quarreled with each other at Jaipur. Accused came to the house of the deceased. Pappu had a sword, Subhash had a `barchhi' and other had `lathhis'. They proclaimed that Suresh, Rajendra and Banwari should be finished. Rameshwar, Subhram, Rajpal also came there. Their neighbour Mahaveer also reached there. Subhash inflicted a `farsi' blow from reverse side on the head of Deena Ram. Leela Ram inflicted a `lathhi' blow on the shoulder of deceased which he missed. 18. Rameshwar (PW.9), brother of Banwari and Girdhari has also corroborated the statement of Girdhari that he along with Girdhari, Rajpal and Subhram went to the house of Kana Ram. He pleaded with him to get the dispute compromised. He went there at the instance of their brother Banwari, who wanted to settle the dispute. Accused was present there. 18. Rameshwar (PW.9), brother of Banwari and Girdhari has also corroborated the statement of Girdhari that he along with Girdhari, Rajpal and Subhram went to the house of Kana Ram. He pleaded with him to get the dispute compromised. He went there at the instance of their brother Banwari, who wanted to settle the dispute. Accused was present there. Pappu having a sword in his hand, Subhash with a `barchhi' and others with `lathhis', reached the house of Deena Ram. Deena Ram came out of house with folded hands requesting them not to fight. Subhash inflicted a `farsi' blow from reverse side on the head of deceased Deena Ram. Leela Ram inflicted a `lathhi' blow, which he received on his shoulder and others were just standing.Rajendra (PW.12), the son of Deena Ram has also named all the accused, who came to attack their house. He has stated that Pappu had a naked sword and the other accused had `lathhis'. His father requested them with folded hands not to fight. Pappu then gave extortion that he be finished. Subhash inflicted a blow from reverse side of the `farsi' on his head. Leela Ram inflicted `lathhi' blow on the shoulder of his father. Banwari (PW.8), with whom accused Subhash had the dispute, has stated that he was working as a driver with Golden Transport Company, Jaipur. Suresh and Rajendra, his brother-in-law were also drivers with the said Golden Transport Company. Accused Subhash Chand and Tara Chand were drivers with Khurana Transport Company. Kana Ram and Sanjay were also drivers with the Khurana Transport Company. He stated that a quarrel had taken place between him and Subhash at Jaipur and Subhash subjected him to beating. Subhash, Kana Ram and Banwari all gave him bating on 3rd of January. On 4th of January, he came on a truck of his company at Raghunathpura and parked the truck in front of a hotel of Sardar. Kana Ram, Subhash and Pappu came there on another truck. An altercation took place between them. Then these persons went to their house and he (this witness) went to his native place at Chhatarpura to fetch his brother. He brought his brothers Girdhari and Rameshwar to Raghunathpura for negotiations. Kana Ram, Subhash and Pappu came there on another truck. An altercation took place between them. Then these persons went to their house and he (this witness) went to his native place at Chhatarpura to fetch his brother. He brought his brothers Girdhari and Rameshwar to Raghunathpura for negotiations. On 5th January while he stayed back in his in-law place, his brothers went to the house of Kana Ram and requested Pappu and Kana Ram to get the matter compromised, but they refused. Then they attacked the house of in-law. Subhash had a `barchhi', Pappu had a sword and other had `lathhis' and farsis. His father-in-law Deena Ram requested them to forgive him (this witness). Subhash however inflicted a `barchhi' blow on his head from reverse side. Leela Ram inflicted a `lathhi' blow, which hit his head, then the shoulder. Thereupon, Deena Ram fell on ground. Suresh Chand Yadav (PW. 4), the informant has also stated that Pappu had a naked sword, Subhash had a `barchhi' and other accused had `lathhis'. Immediately on reaching his house, Pappu, Subhash and Leela Ram proclaimed that all the members of the complainant should be finished. Deena Ram requested them with folded hands not to fight. Subhash inflicted a `barchhi' blow from the reverse side on his head. Leela Ram inflicted the `lathhi' blow on his head, which missed the head. 19. The tenor of the statement of prosecution witnesses thus clearly show that there has been attempt to exaggerate the number of accused. 20. There are lot of contradictions and disparities in the statement of witnesses. Savitri (PW 2) has stated that she was not certain as to for how long the incident took place. At that time she was milking the buffalo and Koyli (PW 3) was preparing tea. She has failed to give any explanation why in her statement under Section 161 Cr.P.C. (Ex. D.1), she did not state that Subhash inflicted a `farsi' blow with reverse side and why police did not mention therein that Leela Ram inflicted a `lathhi' blow on deceased Deena Ram. Similarly Koyli (PW. 3) when confronted with her statement recorded u/S. 161 Cr.P.C., (Ex. D2) failed to give any explanation why she did not mention that the `lathhi' blow inflicted by Leela Ramwas received on his head, ear and shoulder. Suresh (PW. Similarly Koyli (PW. 3) when confronted with her statement recorded u/S. 161 Cr.P.C., (Ex. D2) failed to give any explanation why she did not mention that the `lathhi' blow inflicted by Leela Ramwas received on his head, ear and shoulder. Suresh (PW. 4) in his statement failed to give any explanation why did he not specify in his statement u/S. 161Cr.P.C. (Ex. D3) that Subhash inflicted `farsi' blow from the reverse side on the head of deceased which was very crucial because there are two persons by the name of Subhash. In the written report, he has not given parentage of Subhash to dispel the misgiving. He also failed to give any explanation why in written report (Ex. P.6), he did not specifically allege that Leela Ram inflicted `lathhi' blow on the head of deceased Deena Ram, which slipped and was received on his shoulder. Similarly, he also failed to give any explanation why did not mention so in his police report (Ex. P.6). Girdhari (PW. 7) also from his statement clears that, in fact, he was not an eye witness. Rameshwar (PW. 9) was also not an eye witness as would be evident from the tenor of his statement. In his police statement (Ex. D.8) he has stated that he reached the house of Deena Ram after arrival of police and saw Deena Ram lying in a pool of blood. On being confronted with this part of statement, he failed to give any explanation, which proves that he reached there after the incident had already taken place. Rameshwar (PW. 9) in his statement has, in fact, disputed the presence of Banwari (PW. 8) and Shimbhu (PW. 6) stated that these two witnesses had come to their house had taken place. The fact that in the first information report as also in the statement, allegation was made that Pappu came there with naked sword, yet no injury of sword was caused by him in the setting of the facts of the present case clearly is an old statement by the witnesses. They exaggerated only because they wanted to implicate as many accused as possible. In the first information report, the informant Suresh Kumar Yadav did not make any specific allegation that Leela Ram inflicted the `lathhi' blow on the head of deceased, whereas in his Court statement as PW. They exaggerated only because they wanted to implicate as many accused as possible. In the first information report, the informant Suresh Kumar Yadav did not make any specific allegation that Leela Ram inflicted the `lathhi' blow on the head of deceased, whereas in his Court statement as PW. 4, he as also the other witnesses, have sought to suggest that, in fact, accused Leela Ram intended to deliver this `lathhi' blow on the head of deceased, which missed the head and instead was received on the shoulder, whereas there is no corresponding injury on the shoulder. Except the role assigned to the accused-appellant Subhash and Leela Ram, no role has been assigned to any other accused. Therefore, in so far as the other accused are concerned, they cannot be held to be members of unlawful assembly only because they are named as accused. 21. The accused as well as deceased, as already noticed above, are closely related to each other and their houses were constructed on the land of their joint ancestral. No partition has been taken place inasmuch as their agriculture land was also common. Presence of accused there was natural, but mere presence does not make them the members of unlawful assembly. Recovery of `lathhis' from these accused alone also does not make them the offenders because `lathhi' is commonly founded in all the houses in rural areas and is considered to be an agriculture implant and not a weapon. Although it may also be used as a weapon, but nevertheless, it cannot be considered as a weapon so as to attribute any motive to the accused. In so far as Leela Ram is concerned, offence against him cannot be taken as proved beyond reasonable doubt because although the allegation against him is mad by the prosecution witnesses that he inflicted a blow on the head of deceased, which missed the head and instead fell on the shoulder, whereas there is no injury on the shoulder. It is therefore clearly an attempt to over implicate. 22. In Bachan Singh vs. State of Bihar (2008) 12 SCC 23 , Supreme Court re-visited previous case law on the subject in Masalti & Ors. It is therefore clearly an attempt to over implicate. 22. 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. 23. 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. 24. 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. 24. 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 need to consider all the facts situation and convict only those accused, whose presence was clearly established and overt-acts were proved. 25. The Supreme Court in Debashis Daw, supra, while considering the question of applicability of Secs.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 u/Sec.149 IPC unless it is established that each one of them was part of the unlawful assem-bly 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. 26. The Supreme Court in Khairuddin, supra, dealt with a case where the dispute was regarding possession and right to cultivate a parcel of agricultural land, which embittered relations between the accused on one hand and one A and his tillers on the other. On the day of the incident, when A along with the informant and victims accompanied by a few others were working on the disputed parcel of land, twenty-four named persons including the appellants and some unnamed persons, came to the spot, armed with sharp weapons. On the day of the incident, when A along with the informant and victims accompanied by a few others were working on the disputed parcel of land, twenty-four named persons including the appellants and some unnamed persons, came to the spot, armed with sharp weapons. On obstruction from ploughing the land in question, an altercation took place between the two parties, which escalated into a murderous assault by the appellants upon the persons in cultivation of land, who sustained grievous injuries from the sharp-edged weapons. The Supreme Court held that the evidence adduced at trial comprising depositions of prosecution witnesses, attributed overt-act of assault to only five of the appellants (Group A). The said evidence clearly shows that Group A accused were not only named in the FIR but were in specific terms named even at trial by the witnesses, some of whom were themselves injured in the incident, thereby proving their presence on the spot beyond any doubt. Hence, their conviction was confirmed. Accused of Group B were not named in the FIR and their presence and participation was doubtful, hence they were acquitted. Group C accused were not named in the FIR but participation of one amongst them proved. Hence, the Supreme Court upheld conviction only of one in Group C and acquitted remaining of this Group. 27. Coming now to the alternative submission, we find that actual dispute in the present matter was between accused Subhash on the one hand and Banwari Lal son of Bhonri Lal on the other, who happens to be son-in-law of deceased Deena Ram. When the negotiations of settlement failed, accused had gone to the house of Deena Ram to give a thrashing to Banwari Lal or may be with an intent to commit his murder. However, Deena Ram who was the real uncle of the principle accused Subhash and brother of two accused requested the accused with folded hands not to fight and forgive his son-in-law Banwari. It is in that process that one blow came to be delivered by Subhash on the head of deceased Deena Ram. All the witnesses have stated that this weapon was a sharp edged weapon, yet Subhash used it from reverse side, which was blunt. It is in that process that one blow came to be delivered by Subhash on the head of deceased Deena Ram. All the witnesses have stated that this weapon was a sharp edged weapon, yet Subhash used it from reverse side, which was blunt. While Savitri (PW.2), Koyli (PW.3), Suresh Chand Yadav (PW.4) and Banwari (PW.8) have described it as a 'barchhi', Shimbhu Dayal (PW.6), Girdhari Lal (PW.7), Rameshwar (PW.9), Rajendra (PW.12) and Mahaveer (PW.13) have stated that the accused Subhash was wielding 'farsi'. Difference in description of weapon can be owing to the similarity between the two. The fact is that all the five prosecution witnesses have alleged that accused Subhash was wielding a sharp edged weapon, yet all of them have consistently stated that he inflicted the blow on the head of deceased from reverse side and not from sharp edged side, is indicative of the fact that he did not intend to commit murder of deceased. The act of the accused would not be therefore culpable homicide amounting to murder, it would rather be culpable homicide not amounting to murder falling in Part I of Sec. 304 IPC. 28. In view of above discussion, we are persuaded to set-aside the conviction and sentence awarded to accused-appellants No. 1 Kana Ram S/o Gyarsa Ram, No. 3 Banwari Lal S/o Shyam Lal, No. 4 Subhash Singh @ Leela Ram S/o Kanaram No. 5- Sanjay S/o Kanaram, No. 8 - Tara Chand S/o Sanwata Ram and No. 9 - Leela Ram S/o Sanwata Ram vide judgment dated 8.11.2005 passed by learned Additional Sessions Judge, Kotputli, District Jaipur in Sessions Case No. 12/2003 and their appeal stands allowed and they are acquitted of the charges for offence u/Ss. 148, 447 and 302/149 IPC. However, appeal filed by accused-appellants No. 2- Sanwata Ram S/o Shyam Lal and No. 7 Pappu S/o Sanwata Ram, who have died during the pendency of the appeal, abates and is accordingly dismissed as having abated. In view of the analysis of the evidence that we have made above, conviction of accused-appellant No. 6- Subhash S/o Sanwata Ram for offence u/S. 302 read with Section 149 IPC is altered to one u/S. 304 Part I IPC, however, his conviction for offence u/Ss. 148 and 447 IPC is set-aside. In view of the analysis of the evidence that we have made above, conviction of accused-appellant No. 6- Subhash S/o Sanwata Ram for offence u/S. 302 read with Section 149 IPC is altered to one u/S. 304 Part I IPC, however, his conviction for offence u/Ss. 148 and 447 IPC is set-aside. Since he is in jail for last 10 years & 6 months, he is sentenced to the period already undergone by him. He be released forthwith, if not required in any other case. Since accused-appellants No. 1 Kana Ram, No. 3 Banwari Lal, No. 4 Subhash Singh @ Leela Ram, No. 5 Sanjay, No. 8- Tara Chand and No. 9 Leela Ram are already on bail, they need not surrender. Their bail bonds are accordingly discharged. 29. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, 1973, accused-appellants No. 1 Kana Ram,No. 3 Banwari Lal, No. 4 Subhash Singh @ Leela Ram, No. 5 Sanjay, No. 6 Subhash, No. 8 Tara Chand and No. 9- Leela 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.