JUDGMENT : Navin Sinha, J. 1. The appellants stand convicted under Section 302/149 IPC and sentenced to undergo life imprisonment along with fine of Rs.2,000/-. In the event of failure to pay fine, they were required to undergo one year further rigorous imprisonment. They have also been convicted under Section 326/149 IPC and sentenced to undergo 5 years rigorous imprisonment along with fine of Rs.2,000/-. In the event of failure to pay fine, each of them was required to undergo one year further rigorous imprisonment. The appellants have further been convicted under Section 324/149 IPC and sentenced to undergo two years rigorous imprisonment as ordered by the 7th Additional Sessions Jude, Bilaspur in Sessions Trial No.344/98 dated 4th August, 1999. 2. One of the accused Jagdish Yadav has been deceased during the pendency of the appeal and the appeal stood abated against him by order dated 11.7.2014. 3. Deceased Chhotelal is stated to have been assaulted on 15.5.1998 at about 11:00 p.m. The MLC of the deceased, Exhibit P-2 was carried out by Dr. Y.K. Soni, P.W.I who found two injuries on his person. Death occurred during treatment on 16.5.1998 at about 3:35 a.m. Dehati merg, Exhibit P-52 was lodged by the Ward Boy of the hospital on the same date at 3:45 a.m. The FIR, Exhibit P-21 was lodged on 16.5.1998 itself by Tiharu, P.W.5, who was also injured in the same incident. The postmortem of the deceased Chhotelal marked Exhibit P-19 was conducted by Dr. R.K. Pandey, P.W.3, on 16.5.1998 at 10: 15 a.m. opining that death was caused due to injury to the brain and that death had occurred within 12 hrs., of the postmortem examination. 4. Learned counsel for the appellants submitted that both sides are residents of the same village Nigarband. The prosecution side was the aggressor. The appellants had acted in self defence. The deceased Chhotelal had only one injury on his head. The second injury near the eye was opined by Dr. V.K. Soni, P.W.1 as a resultant of the first injury. 5. P.W.5, Tiharu was the son of P.W.6 Balak Ram. P.W.7 Umend Ram was the cousin of P.W.6. P.W. 8 Amarnath is the son of P.W.7. The latter is the brother of deceased Chhotelal. P. W.9 Rajendra is the son of P. W.6. These prosecution witnesses are all related to each other. 5. P.W.5, Tiharu was the son of P.W.6 Balak Ram. P.W.7 Umend Ram was the cousin of P.W.6. P.W. 8 Amarnath is the son of P.W.7. The latter is the brother of deceased Chhotelal. P. W.9 Rajendra is the son of P. W.6. These prosecution witnesses are all related to each other. The only independent witness is P.W. 10 Ramkhilawan who is also a resident of Nigarband. He has deposed that earlier in the evening there had been an altercation between the two sides. The appellants had gone to the police station at Takhatpur to lodge report. The house of the appellants is after that of the prosecution witnesses P.Ws. 5 to 9. The appellants were returning home after lodging the police report when they were assaulted by the aforesaid prosecution witnesses evident from the evidence of the independent witness P.W.10 Ram Khilawan. D.W. l Jeevan Das has also deposed that there was a fight between the appellants and the prosecution witnesses 5 to 9 at Takhatpur and that the appellants had gone to police to lodge report at about 10:00 p.m. They were returning at about 10:30 p.m. The house of P.W.7 Umend and deceased Chhotelal came first after which came the house of P. W.6 Balak Ram and at the end of village was the house of the appellants. The prosecution witnesses had indulged in the assault as aggressors. 0.W.2- Rishi Kashyap @ Munna from whose shop the prosecution witnesses alleged the presence of light for identification had deposed that he had closed the shop at 8:00 p.m. and switched off the lights. There was thus no light for identification. 6. The appellants had also suffered injuries as revealed from the MLC report of appellant No.4 marked Exhibit D-7, appellant No.5 marked Exhibit D-8, appellant No.7 marked Exhibit D-9, appellant No.6 marked Exhibit D-10 and appellant No.8 marked Exhibit D-11. No explanation has been given by the prosecution with regard to how the appellants came to suffer injuries or that it was suffered elsewhere and not in the present transaction. Reliance was placed on Nagarathinam and Ors. Vs. State, (2006) 9 SCC 57 . 7. It was further contended that P.W.6 Balak Ram, P.W.7 Umend, P.W.8 Amarnath and P.W.9 Rajendra and P.W.10 Ram Khilawan have only talked of assault by appellants Milan, Jeevan, Rajendra and Vishram. There is no evidence of any assault by the other four appellants. Reliance was placed on Nagarathinam and Ors. Vs. State, (2006) 9 SCC 57 . 7. It was further contended that P.W.6 Balak Ram, P.W.7 Umend, P.W.8 Amarnath and P.W.9 Rajendra and P.W.10 Ram Khilawan have only talked of assault by appellants Milan, Jeevan, Rajendra and Vishram. There is no evidence of any assault by the other four appellants. The basic pre-requisite for invoking Section 141 of the IPC to describe the presence of the appellants as an unlawful assembly was the presence of a minimum of five persons which was not fulfilled. Even if the other four appellants were present but did not participate in the assault in any manner, it cannot be said that they had any common object constituting an unlawful assembly. 8. Even if for the sake of argument, eight persons were present, in the nature of evidence available, it cannot be said that there was any common object to kill deceased- Chhotelal. Only one assault was made on his head by appellant -Milan, who on the spur of the moment took a tabbal from the hands of appellant- Tiharu and gave one blow only when the deceased sought to intervene to settle the fight. If the common object had been to cause death, surely more than one person would have assaulted Chhotelal or alternatively appellant Milan himself would have made more than one assault. This individual act of appellant Milan cannot be fastened as a common object to kill deceased Chhotelal on all the other appel1ants. Milan would be answerable for his individual act. In the facts of the case, the appellant Milan, if he is liable for conviction, should have been convicted under Section 304 Part-II of the IPC and not under Section 302 of the IPC. 9. Learned counsel for the appellant next submitted that the MLC of P.W.S Tiharu Exhibit P-8 found two injuries which were simple in nature. The MLC of P. W.6-Balak Ram, Exhibit P-6 found four injuries. The first three not being bone deep do not fall in the category of a grievous injury. The fourth injury on the right thumb revealed in X-ray, Exhibit P-13 to have fracture of the first metacarpal would fall in the category of causing hurt voluntarily under Section 324 IPC punishable for a maximum period of three years. The first three not being bone deep do not fall in the category of a grievous injury. The fourth injury on the right thumb revealed in X-ray, Exhibit P-13 to have fracture of the first metacarpal would fall in the category of causing hurt voluntarily under Section 324 IPC punishable for a maximum period of three years. The MLC of PW 7 Umend, Exhibit P-4 also will not fall under the definition of grievous injury as the X-ray Exhibit P-Il did not find the first and second injury to be bone deep. Injury number second, fourth and fifth were opined to be simple in nature. MLC of P. W.8 Amarnath, Exhibit P-10 contained two injuries one of which was simple in nature and the X-ray report with regard to other, Exhibit P15, did not find it to be bone deep to classify as grievous in nature. 10. The MLC of the appellant No.4 Bihari Exhibit D-7 showed injuries over the back of the right side of lumber region which were stated to have been caused by hard and blunt object. The MLC of appellant No.5 Rajendra Exhibit D-8 also showed two injuries to have been caused by hard and rough object on the right elbow and the lower part of the chest right side. The MLC of appellant No.7 Shobha marked Exhibit D-9 also showed injury over the left shoulder and on the right side of the face below the pinna of the ear, both caused by hard and blunt object. The MLC of appellant No.6 Churawan, Exhibit D-10 also showed two injuries over the right shoulder and back of right upper arm near the elbow joint caused by hard blunt object and that of appellant No.8 Jeevan Exhibit D.11 showed two injuries over the forehead and forearm upper and middle restricting active moment caused by hard and blunt object. X-ray of second injury Exhibit P-17 confirmed fracture on the right forearm. On basis of the same it was submitted that it was a free fight where the injuries alleged to have been caused by the appellants appropriately would fall within the definition of hurt only and not grievous hurt as the appellants had also suffered injuries in the fight that had ensued. Reliance was place on Narsingh Vs. State of C.G., 2008 (3) CGLJ 16 and Bharat Singh & Another Vs. State of C.G., 2008 (3) CGLJ 302 . Reliance was place on Narsingh Vs. State of C.G., 2008 (3) CGLJ 16 and Bharat Singh & Another Vs. State of C.G., 2008 (3) CGLJ 302 . It was lastly submitted that appellant Milan had already completed over 7 years in custody. Appellant Tiharu had also completed about 7 years 3 months in custody. Appellant- Vishram had completed about 6 years in custody and the rest had completed approximately one year 7 months in custody. Considering the fact that they were not the assailants but acted more in self defence, a free fight had ensued where both sides had suffered injuries, there was no common object to kill deceased Chhotelal, the appellants even if liable to conviction are entitled to the relief for conviction to the period already undergone by them. 11. Learned counsel for the State submitted that P.W.5 Tiharu, P.W.6 Balak Ram, P.W.7 Umend, P.W.8 Amarnath and P.W.9 Rajendra may have been related to each other but that alone will not be sufficient to reject their evidence as interested witnesses. They were persons who were also injured in the incident. The credibility of an injured witness has to be high unless there are factors material in nature to suspect or doubt the same. P.W.5 Tiharu, P.W.6 Balak Ram and P.W.7 Umend have consistently stated that the appellants came together at the door of P. W.6 Balak Ram and asked him to come out, banging on the door with lathis, abusing at the same time. If all of them came armed with lathi, tabbal and caused injuries to P.W.S Tiharu, P.W.6 Balak Ram, P.W.7 Umend, P.W.8 Amarnath along with the deceased Chhotelal, it cannot be said that they had not come in a frame of mind having a common object. Common object has to be inferred from all surrounding circumstances, the manner in which they came, their behaviour, being equipped with one or the other instruments capable of being used for assault, the nature of the assault, are all matters which have to be construed together to decide if there was a common object or not. It was further submitted that to demonstrate common object, it is not necessary that the thought process or conduct should necessarily precede the occurrence and common object can develop on the spot also which again has to be inferred from the manner in which inter alia the assault was made. 12. It was further submitted that to demonstrate common object, it is not necessary that the thought process or conduct should necessarily precede the occurrence and common object can develop on the spot also which again has to be inferred from the manner in which inter alia the assault was made. 12. P.W.10 Rajendra, the independent witness has not stated that the appellants were returning from Takhatpur police station when they were intercepted by P.W.5 Tiharu to P.W.9 Rajendra leading to assault in defence. The entire story of they having been assaulted earlier in the evening and having gone to Takahatpur police station is falsified by D.W. l Jeevan Das who states that no police report was lodged. 13. The injury caused to P.W.6 Balak Ram by fracture of the metacarpal thumb bone comes within Section 326 IPC and requires no interference. Considering the common object with which the appellant came, even if the assault on the deceased Chhotelal was by one of them only, vicarious liability will attach on all the members of the unlawful assembly relying on State of Rajasthan Vs. Shiv Charan and Ors., (2013) 12 SCC 76 . 14. We have considered the submissions on behalf of the parties and perused the evidence on record also. 15. The fact that P.W.5 to P.W.9 may be related to each other falling in the category of interested witnesses cannot be sufficient by itself to doubt the manner of occurrence as narrated and their credibility unless there is material contradiction in their evidence or other cogent material to doubt the same. On the contrary, their evidence with regard to the events and manner of assault is consistent. Moreover, they are witnesses who were injured during the occurrence. The deceased was their relative. No plea has been urged why the appellants were being falsely implicated. PWs 5 to 9 would be the most interested to ensure conviction of the real assailants of the deceased who was their relative. Their evidence find corroboration from the evidence of P.W. 10 Ram Khailawan who is not a related witness. 16. P.W.4 Kanha Ram is the Patwari who prepared the spot map marked Exhibit P-20. PWs 5 to 9 would be the most interested to ensure conviction of the real assailants of the deceased who was their relative. Their evidence find corroboration from the evidence of P.W. 10 Ram Khailawan who is not a related witness. 16. P.W.4 Kanha Ram is the Patwari who prepared the spot map marked Exhibit P-20. P.W.5 Tiharu deposed of the animosity between the parties because of the conduct of appellant Vishram in having run away with a girl to Delhi and then left her there for which the deceased Chhotelal had said that he would be fined. PWs 5 to 9 and the appellants had stopped interacting amongst themselves on the issue though living in the same village. P.W.5, Tiharu was watching T.V. in the house of neighbour Narendra Sahu when Rajendra, P.W.9 came and informed him that the appellants were beating on his door asking his father to come out failing which they will kill and cut him. The witness came and saw that Chhotelal was lying dead on the road and P.W.6 Balak Ram was lying injured along with P.W.8 Amamath. The Appellants were present. Appellant Milan and Tiharu had tabbal and rest had lath is in their hands. Appellant Jeevan assaulted the witness on his head and he ran away when Jeevan attempted to assault him again. P.W.6 Balak Ram, P.W.7 Umend P.W.8 Amarnath and the deceased Chhotelal had all gone to the police station on a bullock cart and the witness lodged the FIR marked as Exhibit P-21 acknowledging caste based rivalry between them. P.W.6 Balak stated he was at home at 11:00 in the night when his son P.W.5 Tiharu had gone to neighbour's house to watch T.V. All the appellants came and started banging on his door mouthing filthy abuses. When he came out, appellant Milan assaulted him on the head and when he tried to stop the second assault he was injured on his palm. There was light burning outside in which he recognized the appellants. His younger son Rajendra P.W.9 went and called Tiharu, P.W.5 and by the time deceased Chhotelal and Umend also came. It is therefore apparent that the prosecution witnesses had not assembled together for the purposes of any assault or lay in wait for the appellants to come but were at their respective houses. The witness further states that appellant Milan assaulted deceased Chhotelal. It is therefore apparent that the prosecution witnesses had not assembled together for the purposes of any assault or lay in wait for the appellants to come but were at their respective houses. The witness further states that appellant Milan assaulted deceased Chhotelal. P.W.7 Umend was also assaulted by Jeevan with lathi. Because of the injuries, the witnesses had to remain in the hospital for 10 to 12 days. P.W.5 Tiharu had also deposed that Balak Ram, P.W.6 and Umend P.W.7 had to remain in the hospital for 9 to 10 days. 17. P. W. 7 Umend stated that the appellants on their way back from Takhatpur at about 11:00 to 11:30 p.m. while crossing the house of his brother which was adjacent to his, were abusing. The witness and his son Amarnath P.W.8 came out on hearing the commotion and saw and heard the appellants abusing. The appellants reached the house of Balak Ram P.W.6 and stared assaulting. Appellant Tiharu and Milan were carrying tabbal while the rest had lathis. P.W.6 Balak Ram was assaulted by all of them and the deceased Chhotelal died on account of assault made on him. There was light for identification. P.W.8 Amarnath stated he was sleeping at home when he heard commotion, came out and saw P.W.6 Balak Ram, P.W.7 Umend and Chhotelal the deceased, lying on the road in injured condition. Appellant Tiharu and Milan had tabbal while rest were carrying lathis. Appellant Jeevan and Rajendra assaulted him with lathi, he fell down and regained consciousness in the hospital. P.W.9 Rajendra son of P.W.6 Balak Ram stated that he was sleeping in his house and his elder brother Tiharu P.W.5 had gone to the neighbour to watch T.V. The witness heard commotion and came out to see that his father P.W.6 Balak Ram, his uncle P.W.7 Umend and deceased Chhotelal as also P.W.8 Amartnah were lying inured on the ground with blood around them. He went and called Tiharu P.W.5. He had seen the appellants standing near the place of assault and they remained so when P.W.5 came. P.W.5 Tiharu was assaulted on the head with lathi by appellant Jeevan. In cross-examination, he stated with certainty that he had identified nine persons being present at the place• of occurrence. 18. He went and called Tiharu P.W.5. He had seen the appellants standing near the place of assault and they remained so when P.W.5 came. P.W.5 Tiharu was assaulted on the head with lathi by appellant Jeevan. In cross-examination, he stated with certainty that he had identified nine persons being present at the place• of occurrence. 18. P.W.10 Ramkhilawan the independent witness stated that when he heard commotion at 11:00 in the night he went near the house of P.W.6 Salak Ram and saw the appellants having a verbal duel with the prosecution witnesses. He tried to dissuade them when Jeevan assaulted Tiharu, P.W.5 with lathi on the head and a fight started leading to injuries on Salak Ram, P.W.6, Umend P.W.7 and Amarnath P.W.8. The deceased Chhotelal came forward and with folded hands asked them not to fight when appellant Milan assaulted him on the head with a tabbal after snatching it from the hands of appellant Tiharu. 19. P.W.1 Dr. V.K. Soni conducted the MLC on deceased Chhotelal and found only two injuries on him opining that the second injury could be the resultant effect of the first. P.W.2 Dr. R. Jeetkurre conducted the X-ray of PW.7 Umend and proved the X-ray report. He also proved X-ray report of P.W.6 Balak Ram including fracture of the thumb metacarpal bone as also the X-ray of P.W.8. He also proved the X-ray report of appellant Jeevan finding the right forearm fractured. P.W.3 Dr. R.K. Pandey conducted postmortem of deceased Chhotelal. P.W.12 S.L. Soni, the Investigating Officer, confirmed having recorded the FIR, Exhibit P-21 and having prepared the crime detail form Exhibit P-32. He also confirmed that the prosecution witnesses had come to the police station in an injured condition at 2:15 in the night. 20. The contention of learned counsel for the appellants that for an earlier altercation in the evening the appellants had gone to the Takhatpur Police Station and were returning home in which they had to cross the house of the prosecution witnesses when they were intercepted and assaulted, is difficult to accept in view of the nature of evidence available. 20. The contention of learned counsel for the appellants that for an earlier altercation in the evening the appellants had gone to the Takhatpur Police Station and were returning home in which they had to cross the house of the prosecution witnesses when they were intercepted and assaulted, is difficult to accept in view of the nature of evidence available. It has come in the evidence of prosecution witnesses that the appellants came to the house of Salak Ram P.W.6 and started banging on his door abusing asking him to come out when the other related prosecution witnesses came one by one on hearing the commotion including independent prosecution witness P.W.10 Ram Khilawan. The entire story that they were peacefully returning home after having lodged a report at Takhatpur police station is demolished by their own defence witness D.W. l Jeevan Das according to whom no police report was lodged at Takhatpur by the appellants. The evidence of defence witness DW.2, Rishi Kashyap, that there was no light available cannot be accepted with certainty in view of the evidence of prosecution witness that there was light available in the area. In any event the parties were all residents of one village and their residence was all next to each other. If they were interacting with each other at such close quarters, identification may not be a very big issue base~ on several factors like gait, voice, physique etc. 21. Narsingh (supra) relied upon on behalf of the appellants has no application to the facts of the present case as it was not an assault by tabbal on the head. The three to four injuries by lathi were simple in nature but death occurred due to liver rupture corresponding to the stomach injury. Likewise Bharat Singh (supra) is also distinguishable as here the assailant of the deceased is appellant Milan alone, and the present is not a case where it could not be said with certainty due to whose assault the deceased died. Nagarathinam (supra) has no applicability in the facts of the case in view of our conclusion that the appellants were the aggressors. 22. Nagarathinam (supra) has no applicability in the facts of the case in view of our conclusion that the appellants were the aggressors. 22. In Shiv Charan (supra) relied upon on behalf of the State, the Supreme Court considered the ingredients for applicability of Section 149 for constructive liability and declined to accept the plea of self defence in view of the simple injuries suffered by the accused observing as follows: "19. The pivotal question of applicability of Section 149 IPC has its foundation on constructive liability which is the sine qua non for its application. It contains essentially only two ingredients, namely, (1) offence committed by any member of any unlawful assembly consisting five or more members and; (II) such offence must be committed in prosecution of the common object (Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object. It is not necessary that for common object there should be a prior concert as the common object may be formed on the spur of the moment. Common object would mean the purpose or design shared by all members of such assembly and it may be formed at any stage. Even if the offence committed is not in direct prosecution of the common object of the unlawful assembly, it may yet fall under the second part of Section 149 IPC if it is established that the offence was such, as the members knew, was likely to be committed. For instance, if a body of persons go armed to take forcible possession of the land, it may be presumed that someone is likely to be killed, and all the members of the unlawful assembly must be aware of that likelihood and, thus, each of them can be held guilty of the offence punishable under Section 149 IPC. The court must keep in mind the distinction between the two parts of Section 149 IPC, and, once it is established that the unlawful assembly had a common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act, rather they can be convicted for vicarious liability........." 24. Non-explanation of serious injuries on the person of the accused may be fatal to the prosecution case. Non-explanation of serious injuries on the person of the accused may be fatal to the prosecution case. But where the injuries sustained by the accused are minor in nature, even in absence of proper explanation of prosecution, story of the prosecution cannot be disbelieved. (Vide Laxman v. State of Maharashtra.)" 23. That leaves the question for our consideration if there was a common object to only assault and teach a lesson or did the common object extend to causing death. Alternatively, did the members of the assembly have the awareness and knowledge that death may also be caused in prosecution of the common object. Was the appellant Milan answerable alone for his actions or were all the appellants answerable in common object for the act of appellant Milan with regard to the assault on deceased-Chhotelal. In the nature of evidence there can be no two opinions that what started the fight was the conduct and acts of the appellants who were all armed and went to the door of P.W.6 Balak ram, started banging on it mouthing abuses. Deceased- Chhotelal as also Ram Kihilawan, P.W. 10, the independent witness sought to intervene to stop the fight but the appellants did not relent. The very fact that all of them were possessed of either tabbal or lath is and six of them suffered injuries is sufficient to hold that there was an active involvement by all the appellants in the episode. The fact that appellant Jeevan may have also suffered fracture of the right forearm cannot be of any benefit to the appellants with regard to grievous injuries caused by them to P. W.6 Balak Ram in view of our conclusion that the appellants were the aggressors. We therefore find no reason to interfere with conviction of the appellants in so far as Sections 324, 326 read with Section 148 and 149 of the IPC is concerned. 24. But in the nature of the occurrence, manner of assault, the kind of injuries caused on the other prosecution witnesses, we find it difficult to hold that the common object of the assembly was to cause death or that the members of the assembly were aware that death was likely to be caused in prosecution of the common object. We are therefore unable to sustain their conviction under Section 302 read with Section 149 of the IPC. We are therefore unable to sustain their conviction under Section 302 read with Section 149 of the IPC. The act of the appellant Milan in having given a single tabbal blow on the head of deceased Chhotelal after having snatched the tabbal from appellant Tiharu has to be held to be his individual act committed in excess of the common object of the assembly to teach a lesson only. The dispute was petty in nature. If the intention had been to cause death in prosecution of the common object of the assembly, surely more grievous injuries would at least have been caused to the other prosecution witnesses than the simple nature done and assault on the deceased Chhotelal would at least have been repeated by appellant Milan, if not, the deceased would have been assaulted by all of them after he fell down. One injury only has been found on the deceased when he was taken to the hospital immediately after the assault in the MLC report. We therefore find it difficult to hold applicability of Section 302 of the IPC against all the appellants much less against Milan. The conviction of the appellants with the exception of Milan under Section 302 read with Section 149 is set aside. The conviction of Milan to that extent is altered to one under Section 304 Part-II relying on exception 4 of Section 300. His conviction is altered to period undergone and he is set at liberty subject to provision of Section 437-A of the Cr.P.C. 25. In so far as other appellants are concerned, in the nature of occurrence, the period undergone is considered sufficient under Section 324 of the IPC. With regard to their conviction under Section 326 of the IPC which provides for a maximum punishment of imprisonment for life or which may extend to 10 years we are of the considered opinion that considering the nature of grievous hurt caused not on any vital part of the body but the metacarpal bone of the left thumb, in the nature of free fight between the parties, the conviction therein be also reduced to period undergone. They also be set free at liberty subject to the condition under Section 437-A of the Cr.P.C. 26. With the aforesaid modification of sentence, the appeal is disposed.