ORDER N.K. JAIN, J. Heard the learned counsel for the accused-appellants as well as the learned Public Prosecutor for the State. 2. Instant appeal, under Section 374 Cr.P.C., has been preferred by the accused-appellants Smt. Shanti Devi, Smt. Seema @ Sunita and Bhawani Shankar questioning the correctness of the judgment and order dated 26.05.2004 passed by the learned Additional Sessions Judge, Dausa (hereinafter referred to 'the Trial Court') in Sessions Case No. 41/2003(State of Rajasthan Vs. Bhawani Shankar & Others), whereby the learned Trial Court, while acquitting the accused-appellants under Section 325 read with Section 149 IPC, convicted and sentenced them as under: NAME OF ACCUSED SECTION IMPRISONMENT (1) Smt. Shanti Devi W/o. Sh. Laxman; (2) Smt. Seema @ Sunita W/o. Shri Shivcharan; (3) Bhawani Shankar S/o. Shri Badri Prasad 148 IPC To undergo one year's rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine to further undergo one month's additional rigorous imprisonment. 341 IPC To undergo one month's rigorous imprisonment. 323/149 IPC To undergo six months rigorous imprisonment with fine of Rs. 200/-, in default of payment of fine to further undergo 15 days additional rigorous imprisonment. 326/149 IPC To undergo three years rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine to further undergo one month's additional rigorous imprisonment. 302/149 IPC To undergo rigorous imprisonment for life with fine of Rs. 2,000/-, in default of payment of fine to further undergo two months additional rigorous imprisonment. All the sentences were ordered to run concurrently. Learned Trial Court has also ordered that in this case other accused Deendayal, Shivcharan, Kamlesh and Anita have not been arrested by the police and they are absconding and further ordered for initiation of enquiry against Dr. Parshuram Meena(D.W.2). 3. In brief, the facts of the case are that on 09.06.2002, at about 9.00 P.M., complainant Surendra Kumar Sharma S/o. Hanuman Prasad R/o. Bandikui Jagir had submitted a written report (Exhibit P-3) stating therein that he along with his brother Ashok (deceased), Mahendra(P.W.7), his Bhabhi Dayawati (P.W.10) and Rampal Guard was coming from fields at about 8.00 P.M. On the way, their tractor was intercepted by Deendayal, Shivcharan, Kailash, Vijendra, Trilok, Bhawani Shankar, Shanti, Sunita and wife of Kamlesh. Mahendra was hit by sword by Deendayal and when Ashok came to intervene, he was also inflicted injury by sword. Mahendra was hit by sword by Deendayal and when Ashok came to intervene, he was also inflicted injury by sword. Shivcharan and Kamlesh were injured by Barchhiya, Vijendra, Bhawani Shankar and Trilok by 'Tanchiya'. Shanti, Sunita and Kamlesh's wife inflicted injuries by lathies. They caused grievous injuries to Ashok, as a result of which, he died on the spot. The informant, Surendra, Rampal and his Bhabhi sustained injuries. 4. On the basis of aforesaid written report (Exhibit P-3), FIR No. 313/2002 dated 09.06.2002(Exhibit P-5) was registered against nine persons for commission of offences punishable under Sections 302, 148, 149, 323, 341 IPC. During the course of investigation, the Investigating Officer prepared the relevant memos, inquest report, site plan, took sample of blood stained soil from the spot and collected other incriminating articles. Injured Smt. Dayawati, Mahendra Kumar, Surendra Kumar and Rampal Guard were got medically examined. Statements of the witnesses were recorded by the Investigating Officer. On the information received from accused-appellants Smt. Seema @ Sunita and Smt. Shanti Devi, lathies were recovered. Postmortem of the deceased Ashok Kumar (Exhibit P-18) was got conducted and the report was taken on record. 5. After due investigation, charge sheet was filed on 02.09.2002 against the accused-appellant Bhawani Shankar for the offences under Sections 147, 148, 149, 341, 323, 325, 326, 302 IPC. Thereafter on 09.12.2002, supplementary (Titamba) Charge Sheet was filed against the accused-appellants Smt. Santi Devi and Smt. Seema @ Sunita for the offences under Sections 147, 148, 149, 341, 323, 325, 326, 302 IPC, in the Court of Chief Judicial Magistrate, Bandikui, District Dausa. Investigation was kept pending against other accused-persons, namely Deendayal, Kamlesh, Vijendra, Anita and Shivcharan, under Section 173(8) Cr.P.C. A separate charge sheet was filed against the juvenile Trilok Chand in the Juvenile Justice Court, Jaipur. The case was committed to the Court of Additional District & Sessions Judge, Bandikui and thereafter, the case was assigned to the Trial Court. At the stage of final arguments, supplementary charge sheet was filed against accused Vijendra Kumar on 13.05.2004, after his arrest on 16.02.2004 and thereafter, separate trial was ordered to be conducted by the Trial Court. After trial, accused Vijendra Kumar was convicted and sentenced by the Trial Court vide separate judgment and order dated 29.03.2007 against which separate appeal has been preferred by him. 6. After trial, accused Vijendra Kumar was convicted and sentenced by the Trial Court vide separate judgment and order dated 29.03.2007 against which separate appeal has been preferred by him. 6. The Trial Court after hearing the arguments of learned counsels for the parties, framed charges against accused Bhawani Shankar under Section 148, 341, 302, in alternate under Section 302/149, 323, 323/149, 325, 325/149, 326, 326/149 IPC and against accused Smt. Shanti Devi and Smt. Seema @ Sunita under Sections 148, 341, 302, 302/149, 323, 323/149, 325, 325/149, 326, 326/149 IPC. Upon denial of the charges by the accused-appellants, trial commenced in the present case. During the course of trial, the prosecution supported its case with the aid of 19 witnesses and exhibited 45 documents. An opportunity was given by the learned Trial Court to the accused-appellants, as per the provisions of Section 313 Cr.P.C., to explain their conduct with regard to adverse material available in the evidence adduced by the prosecution. The accused-appellants negated the prosecution evidence. Accused Bhawani Shankar gave explanation that he was not involved in the incident because he is in relation of Deendayal etc. His name has been falsely implicated in this case. He is not concerned with the dispute. Smt. Shanti Devi and Smt. Seema @ Sunita both accused have given explanation that complainant party came at their house with the intention to attack on them and Deendayal sustained injury on his body in this incident. Laxman has filed complaint in the Court against the complainant party of this incident and the complainant party has falsely implicated them in this incident. 7. In defence, Laxman Sharma (D.W.1), Dr. Parshuram Meena (D.W. 2) were examined and five document, i.e. Exhibit D-1 to Exhibit D-5 were exhibited. Learned Trial Court, while relying upon the evidence of the injured eye witnesses and other evidence corroborated with medical evidence, recovery of weapons used by the accused-appellants in the instant case, convicted and sentenced the accused-appellants vide judgment and order dated 26.05.2004, in terms stated hereinabove. 8. Feeling aggrieved with the impugned judgment and order passed by the learned Trial Court, the accused-appellants have filed present appeal before this Court. 9. In the appeal, learned counsels for the accused-appellants mainly reiterated the contentions already advanced before the learned Trial Court and further contended that the Trial Court has erred while relying upon the statements of prosecution witnesses. Feeling aggrieved with the impugned judgment and order passed by the learned Trial Court, the accused-appellants have filed present appeal before this Court. 9. In the appeal, learned counsels for the accused-appellants mainly reiterated the contentions already advanced before the learned Trial Court and further contended that the Trial Court has erred while relying upon the statements of prosecution witnesses. Further they have submitted that the prosecution has failed to prove its case beyond reasonable doubt. The findings arrived at by the learned Trial Court are erroneous, perverse as well as contrary to the facts and circumstances of the present case and evidence available on record. The impugned judgment suffers from misreading and non-reading of the vital evidence available on record. The Trial Court has failed to consider that it was the duty of the prosecution to stand on its own legs so as to prove the case against the accused-appellants and the burden cannot be shifted to the accused persons. The accused persons are only to show preponderance of probabilities in their favour. But the learned Trial Court, by not dealing with the explanation given by the accused-appellants in their statements recorded under Section 313 Cr.P.C., has totally failed to consider this vital aspect of the matter that they have been falsely implicated in this case. 10. Learned counsels for the accused-appellants further contended that the prosecution story as regard to the incident is doubtful. Learned Trial Court has erred in convicting the accused-appellants. It has not properly appreciated the evidence on record and incorrectly applied the legal propositions. The impugned judgment is bad in the eyes of law and the same deserves to be quashed and set aside. Learned Trial Court has failed to consider that before appreciation of Section 149 IPC, the exact detail of each and every accused as well as the stage of the occurrence has to be proved by the prosecution. But in the instant case, instead of the prosecution bringing out the individual roles of the accused, as members of unlawful assembly, the prosecution witnesses themselves have denied the story brought about in FIR (Exhibit P-5) and accompanying the documents. They have contradicted, deviated and materially improved the prosecution case from the one in the FIR and the police statements. But in the instant case, instead of the prosecution bringing out the individual roles of the accused, as members of unlawful assembly, the prosecution witnesses themselves have denied the story brought about in FIR (Exhibit P-5) and accompanying the documents. They have contradicted, deviated and materially improved the prosecution case from the one in the FIR and the police statements. Surendra Kumar (P.W.3) informant as well as injured witnesses in their police statements recorded under Section 161 Cr.P.C. had stated that the incident took place on the way while going on a tractor. Mahendra Kumar (P.W.7) had sustained first injury on the right hand while Ashok sustained injury on the head and died on the spot. But in his statement before the Court he had turned the story and stated that Ashok, Mahendra, Rampal Guard, his Bhabhi Dayawati and himself had run away into the field towards the southern side and they were chased by the accused persons. The entire incident took place in the field. Mahendra Kumar (P.W.7) in his police statement (Exhibit D-2) had materially contradicted the location of the occurrence and also the roles attributed to the accused-persons. In the earlier police statement, he had not given any detail with regard to the role of appellants in causing injury to deceased Ashok Kumar. Dayawati (P.W.10) had contradicted her earlier police statement (Exhibit D-3). Therefore, these injured eyewitnesses are unreliable and tutored witnesses. 11. Learned counsels for the accused-appellants further submitted that the prosecution has withheld the material witnesses. It is bounden duty of the prosecution to examine all material witnesses and non-production of any of them casts a serious reflection on the fairness of the trial. Learned Trial court has failed to appreciate that the injured eye witness Ram Pal Guard, who is the only independent person as per the FIR was not summoned by the prosecution without any just explanation. In support of their arguments, the learned counsels for the accused-appellants have placed reliance on the decisions rendered by the Hon'ble Supreme Court in the cases of Habeeb Mohammad Vs. State of Hyderabad, AIR 1954 SC 51 ; Bir Singh & Others Vs. The State of Uttar Pradesh, 1977 Cr.L.R.(SC) 385; and decision rendered by this Court in the case of Kulvendra Singh Vs. State of Rajasthan, 1995(2) RCD 605 (Raj). 12. State of Hyderabad, AIR 1954 SC 51 ; Bir Singh & Others Vs. The State of Uttar Pradesh, 1977 Cr.L.R.(SC) 385; and decision rendered by this Court in the case of Kulvendra Singh Vs. State of Rajasthan, 1995(2) RCD 605 (Raj). 12. It has been further contended by learned counsels for the accused-appellants that the learned Trial Court has failed to appreciate the fact that no independent witness was examined in this case and the prosecution story is doubtful. No person from the locality was produced by the prosecution. It is clear from the prosecution story that there were many persons residing in the vicinity where the incident took place. They must have come to the place of occurrence. So, absence of independent witnesses in this case creates serious doubt on true version of the incident. Learned counsels for the accused appellants have placed reliance upon the decision rendered by a Co-ordinate Bench of this Court in the case of Kulvendra Singh (Supra) and submitted that in this case, site plan (Exhibit P-4) was made at the instance of the complainant Surendra Kumar (P.W.3), who lodged the FIR at the police station on next day of the incident which had taken place on 10.06.2002. As per the description of the site plan given by the investigating officer on the basis of the statement of the complainant, the complainant party came on tractor at the house of the appellants and some quarrel took place between them, resulting in injuries to both sides. There were blood stains on the sides and floor of the Chabootra. Injury Report (Exhibit D-5) of Deendayal gives out that the injury sustained was grievous in nature and the same was caused with sharp edged weapon. The incident is said to have taken place at 8 O'Clock in the night. If this vital piece of evidence is noted, then the inference of right of private defence accruing in favour of the appellants could not have been ignored, for which only preponderance of probability was sufficient. In these facts and circumstances and the evidence available on record, Section 149 IPC would have no application in this case. 13. Learned counsels for the accused-appellants have submitted that there is no recovery from accused Bhawani Shankar. Therefore, he cannot be connected with commission of crime in this case. In these facts and circumstances and the evidence available on record, Section 149 IPC would have no application in this case. 13. Learned counsels for the accused-appellants have submitted that there is no recovery from accused Bhawani Shankar. Therefore, he cannot be connected with commission of crime in this case. They have placed reliance upon the decision rendered by Single Bench of this Court in the case of Paramjeet Singh & Anr. Vs. State of Rajasthan, 2008(2) Cr.L.R. (Raj.) 1338. The tractor which was involved in the incident had not been seized, which further casts doubt on the prosecution case. It has further been contended by the learned counsels for the accused-appellants that injury on the body of Deendayal has not been explained and have wrongly been denied by the prosecution witnesses. The change of place of occurrence is sought and the prosecution case stands discredited. The genesis of occurrence has been suppressed by the prosecution. The fact is that the complainant party was the aggressor who came to the spot on tractor with the intention to attack the accused party. There are blood stains in the house of the accused. There was no occasion for the accused to take up a fight when the complainant side worked, according to them, peacefully for two years in the field in front of the house of the accused-persons. Thus, the prosecution has failed to bring out the true facts of the case. 14. Learned counsels for the accused-appellants have further contended that Mahendra Kumar (P.W.7) has not stated a single word as to who caused injury on his body and, therefore, no conviction under Section 326/149 IPC could have been awarded to the appellants. Surendra Kumar (P.W.3) had not sustained any visible injury and Dayawati's medical report, having simple injury, was prepared six days after the incident and it had no proximity with the occurrence. Therefore, no conviction under Section 323 IPC should have been awarded to the appellants. Investigating Officer has admitted that Bhawani Shankar had no role in this case and no recovery has been made from him. Bhawani Shankar was not resident of that place and had nothing to do with the incident. There are material omissions, contradictions and improvements in the statements of prosecution witnesses, which knocks the bottom out of evidence. Investigating Officer has admitted that Bhawani Shankar had no role in this case and no recovery has been made from him. Bhawani Shankar was not resident of that place and had nothing to do with the incident. There are material omissions, contradictions and improvements in the statements of prosecution witnesses, which knocks the bottom out of evidence. In support of their arguments, the counsels for accused have placed reliance on the decisions rendered by the Apex Court in the case of Dhanna etc. Vs. State of Madhya Pradesh, 1996 CRI.L.J. 3516 and decisions rendered by this Court in the cases of Keshav Das & Another Vs. The State of Rajasthan, 1979 RCC 3999; Inder Singh @ Thunig Singh Vs. The State of Rajasthan, 1990 Cr.L.R.(Raj.) 393; Pooran & Ors. Vs. State of Rajasthan, 1993 RCC 245; Ajit Bhanu Singh & Ors. Vs. State of Rajasthan, 1995 Cr.L.R.(Raj.) 304. 15. Learned counsels for the accused-appellants further submitted that in this case main witnesses namely, Surendra Kumar (P.W.3), Mahendra Kumar(P.W.7), Dayawati (P.W.10) are interested and relatives. Rampal Guard the only independent witness, who was present on the spot and named in the FIR, has not been produced by the prosecution which creates doubt on the prosecution story. Interested and relatives witnesses in the facts and circumstances of the present case cannot be relied upon and it is unsafe to do so on the testimonies of these witnesses. Learned counsels for the accused-appellants vehemently submitted that evidence of close relatives and interested witnesses cannot be relied upon, without independent evidence. They have placed reliance upon the decisions rendered by the Apex Court in the cases of State of Punjab Vs. Pritam Singh & Others; 1977 Cr.L.R.(SC) 363; Manzoor Vs. State of Uttar Pradesh, 1982 Cr.L.R.(SC) 134; Anil Phukan Vs. State of Assam, AIR 1993 SC 1462 and the decision rendered by this Court in the case of Pooran & Ors. Vs. State of Rajasthan, 1993 RCC 245. 16. Learned counsel for the accused-appellants further submitted that in this case falsehood has been inseparably mixed with the truth by eye witnesses. Therefore, the benefit of doubt should be given to the accused-appellants. They have placed reliance upon the decision rendered by this Court in the case of Kaliya & Others Vs. State of Rajasthan, 1977 Cr.L.J. 74. 16. Learned counsel for the accused-appellants further submitted that in this case falsehood has been inseparably mixed with the truth by eye witnesses. Therefore, the benefit of doubt should be given to the accused-appellants. They have placed reliance upon the decision rendered by this Court in the case of Kaliya & Others Vs. State of Rajasthan, 1977 Cr.L.J. 74. Learned counsels for the accused-appellants further submitted that as per the prosecution case, intervenor Ashok Kumar has died in this incident. So, there was no intention to murder him and no case of Section 302, 302/149 IPC is made out against the accused-appellants. Reliance has been placed upon the decision rendered in the case of Sitaram Vs. State of Rajasthan, 2003(1) Cr.L.R.(Raj.) 596. The prosecution has failed to bring on record any material to connect the accused-appellants with the alleged offence. Therefore, learned counsels for the accused appellants have prayed that instant appeal be allowed and impugned judgment and order passed by the learned Trial Court be quashed and set aside. The accused-appellants be acquitted from all the charges levelled against them. 17. While opposing the appeal, the learned Public Prosecutor has supported the impugned judgment and order passed by the learned Trial Court and submitted that there is no reason to disbelieve the prosecution witnesses Surendra Kumar (P.W.3), Mahendra Kumar (P.W.7) and Dayawati (P.W.10); medical evidence and recovery of lathies from accused-appellants Smt. Seema @ Sunita and Smt. Shanti Devi as per Exhibit P-36 and Exhibit P-39. It has also been submitted that the prosecution witnesses have fully supported their case and there is neither any improvement, nor any material contradiction nor omission in their statements. Their statements are natural, reliable and trustworthy in the facts and circumstances of the present case. Prosecution witnesses have narrated true facts of the incident. The occurrence took place firstly, when Surendra Kumar, Mahendra Kumar, deceased Ashok Kumar, Dayawati and Rampal guard were coming from their fields. Later, on the way when their tractor was stopped by the accused-party.Thereafter, when they gone to the field that the accused-persons had again attacked them and caused injuries. FIR has been promptly lodged. Therefore, the case is fully proved by the prosecution and the guilt has been proved beyond any shadow of doubt against all the accused-persons. Later, on the way when their tractor was stopped by the accused-party.Thereafter, when they gone to the field that the accused-persons had again attacked them and caused injuries. FIR has been promptly lodged. Therefore, the case is fully proved by the prosecution and the guilt has been proved beyond any shadow of doubt against all the accused-persons. There is no reason to disbelieve the evidence of Surendra Kumar, Mahendra Kumar and Dayawati only on the basis that Ram Pal Guard was not examined. The evidence of injured eye witnesses cannot be discarded in this case. Learned Trial Court has elaborately considered all the prosecution evidence and has rightly convicted and sentenced the accused-appellants, as mentioned hereinabove. Hence, learned Public Prosecutor has submitted that the present appeal of the accused-appellants is devoid of merits and the same is liable to be dismissed. 18. We have given our thoughtful consideration to the submissions made by learned counsels for the parties and carefully perused the entire, oral and documentary, evidence adduced by both the sides in the matter, as available on the record of the Trial Court. 19. It is an admitted position that Deendayal, Shivcharan, Kamlesh and his wife (Anita), who had been named as accused in the FIR have not been arrested in this case till now. Investigating Agency, during the course of investigation, got the autopsy of the deceased Ashok Kumar done and as per the said report and the statement of Dr. S.S. Khunteta (P.W.12) there were following ante mortem injuries on his body: “(i) Incise wound 3 cm x 3/4 cm x mussle deep below & lateral & lateral angle Rt. Eye. (ii) Incise wound 3 cm x 3/4 cm x muscle deep on back of left elbow joint. (iii) Incise wound 10 cm x 1 cm x bony deep on left occipital area of scalp. (iv) Incise wound 8 cm x 1 cm x bony deep on left tranto parietal area of scalp. (v) Incise wound 8 cm x 1 cm on back of mid of neck muscle deep. (vi) Incise would 3 cm x 1/2 cm x muscle deep on back of mid of left fore arm. (7) Incise wound 2 cm x 1/2 cm x muscle deep on medical aspect of mid of left leg. (8) Incise wound 1½ cm x ½ cm in mid of Rt. Leg anteriorly and muscle deep. (vi) Incise would 3 cm x 1/2 cm x muscle deep on back of mid of left fore arm. (7) Incise wound 2 cm x 1/2 cm x muscle deep on medical aspect of mid of left leg. (8) Incise wound 1½ cm x ½ cm in mid of Rt. Leg anteriorly and muscle deep. (9) Incise wound 2 cm x 1/2 cm x muscle deep on medial side of lower 3rd of Rt leg. (10) Incise wound 3 cm x 1 cm x muscle deep on back of upper aspect of left elbow joint. (11) Incise wound 5 cm x 1/2 cm x muscle deep on back of base of Rt hand index middle and ring fingers. (12) Incised wound 2 cm x ½ cm on palmar aspect of left hand in between little and ring fingers x muscle deep. (13) Abrasion 3 cm x 1 cm in front of Rt shoulder joint. (14) Abrasion 5 cm x 3 cm on ant. Aspect of upper 3rd of Rt upper arm. (15) --- is fracture of both tibia & tibula bone in mid of Rt leg. (16) Abrasion 8 cm x 2 cm on medial side of mid of upper 3rd of left leg. (17) Abrasion 6 cm x 2 cm on medial side of mid of left leg. (18) Bruise 6 cm x 1 ½ cm on medial side of lower 3rd of left thigh. (19) Abrasion 6 cm x 2 cm on lateral aspect of upper 3rd Rt thigh. (20) Bruise 8 cm x 4 cm on lateral aspect of mid of Rt thigh. (21) Abrasion 6 cm x ¼ cm on lateral aspect of lower rd left thigh. (22) Abrasion 4 cm x ¼ cm on ant. Aspect of mid of left thigh. (23) Abrasion 10 cm x ½ cm on back of left shoulder joint. (24) Abrasion 6 cm x ¼ cm below back of neck. (25) Abrasion 8 cm x ¼ cm on back of left side of chest lower aspect. (26) Bruise 6 cm x 1 ½ cm on back of lower aspect of Rt side of chest. (27) Abrasion 2 cm x ¼ cm on Rt side of abdomen.” As per the Postmortem Report(Exhibit P-18), Dr. (25) Abrasion 8 cm x ¼ cm on back of left side of chest lower aspect. (26) Bruise 6 cm x 1 ½ cm on back of lower aspect of Rt side of chest. (27) Abrasion 2 cm x ¼ cm on Rt side of abdomen.” As per the Postmortem Report(Exhibit P-18), Dr. S.S. Khunteta had clearly stated that the cause of death of Ashok Kumar was fracture of scalp bone and multiple deep injuries leading to coma and haemorrhagic shock. Dr. S.S. Khunteta (P.W.12) has also stated that Injuries Nos. 13, 14, 16, 17, 18 to 27 were simple injuries caused by blunt weapon. Only injury of scalp and fracture of right leg (Injury No. 3, 4 and 15) were grievous in nature. Injuries Nos. 13 to 27 were individually of general nature and were not sufficient to cause death in all probabilities. 20. As per Injury Report (Exhibit P-17) of Surendra Kumar (P.W.3), there was only complaint of pain on his person. As per Injury Report (Exhibit P-14) of Mahendra Kumar(P.W.7) there were following injuries: “(1) Diffuse swelling left occipital region with tenderness blunt object; (2) Diffuse swelling right frontal ----- with tenderness blunt object; (3) Plaster of Paris slab right forearm with hand up to fingertip type of weapon cannot be given.” As per the statement of Dr. Suman Dutta(P.W.11) Injuries No. 1 and 2 were caused by blunt weapon and Injury No. 3 was caused by sharp edged weapon. As per the operation note, Injury No. 3 was grievous in nature. 21. As per Injury Report(Exhibit P-35), Rampal was having following injuries: “(1) Slab over Rt. Forearm involving hand. (2) Lacerated wound 1.5 cm x 0.25 cm over occipital region scalp tissue deep along with veddish soft scals. (3) Abraded bruise 7 cm x 2 cm over Rt. Over laterally leg medialy, bluish in colour-simple/blunt. (4) Abraded bruise 6 cm x 2 cm over Rt. Thigh laterally bluish in colour-simple/blunt.” As per the statement of Dr. Akhilesh Pathak (P.W.14) and the X Ray report(Exhibit P-36), Injury No. 2, 3 and 4 were caused by blunt weapon and were simple in nature but Injury No. 1 was grievous in nature. As there was Plaster of Paris slab over the forearm, he could not say about the nature of weapon used. These injuries could have been caused by falling with force on the ground. As there was Plaster of Paris slab over the forearm, he could not say about the nature of weapon used. These injuries could have been caused by falling with force on the ground. It is an admitted fact that the injured Rampal Guard had not been examined by the prosecution, during trial of the case. 22. As per Injury Report(Exhibit P-13), Smt. Dayawati was having following injuries: “(1) Bruise along with greenish clolour 2cm x 1 cm on back of Rt shoulder joint, simple, blunt. (2) Bruise along with greenish colour 1 cm x 1 cm on back of mid of Rt leg.” As per the statement of Dr. S.S. Khunteta (P.W.12), both these injuries were simple in nature and caused by blunt weapon. 23. From accused side, Deendayal had also received injuries. As per Injury Report (Exhibit D-5) and statement of Dr. Parshuram Meena (D.W.2), Deendayal was having following injuries: “(1) Incised wound 4 cm x 1 cm x ½ cm below left scapula; (2) Incised wound 6 cm x 5 cm x 1 cm dorsal aspect, left hand on stn tacarpal; (3) Swelling 2 cm x 1 cm Rt parital region; (4) Bruise 5 cm x 1 cm below left axillary region.” 24. The investigating agency had arrested the accused-persons and on the basis of the discloser made by accused-appellants Smt. Shanti and Smt. Seema @ Sunita, one stick from each of them were recovered, vide Recovery Memos (Exhibit P-39 and Exhibit P-36). The sticks recovered were not blood stained nor sent to F.S.L. for its serological examination. It is an admitted fact that no recovery was made from the accused-appellant Bhawani Shankar. Karan Singh, SHO, Bandikui (P.W.17), investigating officer of this case had admitted in his Court statement that at the time of occurrence, Bhawani Shankar was having no weapon with him, as such no recovery was made from him during investigation. 25. We have pondered over the statements of the prosecution witnesses as well as that of the defence. We have also gone through the documentary evidence produced by the parties. The conviction of the accused-appellants is mainly based upon the testimonies of three injured eye witnesses viz. Surendra Kumar (P.W.3), Mahendra Kumar (P.W.7) and Smt. Dayawati (P.W.10). Another injured independent eye witness Rampal Guard was not produced by the prosecution in the trial, without any reasonable explanation. We have also gone through the documentary evidence produced by the parties. The conviction of the accused-appellants is mainly based upon the testimonies of three injured eye witnesses viz. Surendra Kumar (P.W.3), Mahendra Kumar (P.W.7) and Smt. Dayawati (P.W.10). Another injured independent eye witness Rampal Guard was not produced by the prosecution in the trial, without any reasonable explanation. In appeal, the conviction has been questioned mainly on the ground of contradictions which are said to be existing in the statements of the eye witnesses and also by pointing out the alleged improvements made by them. The place of occurrence is not proved beyond doubt and the prosecution has not only changed the place of occurrence, but also the role attributed to the accused-persons. The prosecution has failed to bring out true facts of the case and the motive behind it. The prosecution has also failed to establish the object, which is essential to form an unlawful assembly. The prosecution has withheld the material and independent witnesses. Bhawani Shankar, Smt. Shanti and Smt. Seema @ Sunita, accused-appellants are innocent person and there is no evidence on record to establish their involvement in the crime. Surendra Kumar (P.W.3) and Mahendra Kumar (P.W.7) are brothers of the deceased Ashok Kumar. Smt. Dayawati(P.W.10) is Bhabhi of the complainant Surendra Kumar. Another injured eye witnesses, named in the FIR, also by the name of Surendra Kumar, has not been produced by the prosecution. As per the medical report (Exhibit P-17), there was only complaint of pain in the body of Surendra Kumar (P.W.3). Karan Singh (P.W.17) has admitted in his statement that there was no visible injury on the body of Surendra Kumar at the time of lodging of the FIR. There is delay in medical examination of prosecution witness Smt. Dayawati (P.W.10) and this raises a doubt as to the correctness of such examination by the prosecution. Another injured Rampal Guard has not been examined during the trial by the prosecution. We have noticed that all the eye witnesses are close relatives, but on this ground alone it would be wrong to ignore or disbelieve the testimony of the injured eye witnesses. There is no rule of law to the effect that evidence of partisan witnesses cannot be accepted. Partisanship by itself is no ground to discard a sworn testimony. Relative evidence are not necessarily false evidence. There is no rule of law to the effect that evidence of partisan witnesses cannot be accepted. Partisanship by itself is no ground to discard a sworn testimony. Relative evidence are not necessarily false evidence. It should, no doubt, be subjected to careful scrutiny and accepted with caution. We need not burden the judgment by narrating all the evidence produced by the prosecution as the same has been narrated in detail by the Trial Court. 26. Surendra Kumar (P.W.3) injured eye witness has stated in written report (Exhibit P-3) that the deceased Ashok Kumar was hit with sword by the accused Deendayal; Bhawani Shankar by Tanchiya, whereas Smt. Shanti and Smt. Seema @ Sunita by lathies and due to which there were injuries by sharp edged weapon on head and leg of the deceased, as a result of which he died on spot. Mahendra Kumar (P.W.7) sustained grievous injury by sharp edged weapon on his right hand. Incident took place in front of house of accused persons. However, he has stated before the Court that Mahendra ran away in the field. Thereafter, Ashok Kumar deceased followed him and then Ram Pal and Dayawati also went to the field, where Ashok Kumar deceased sustained injuries on his back by sword and Barchi. According to him, the entire incident took place in the fields. So, there is contradiction as to the place of occurrence. As per the First Information Report (Exhibit P-5) injuries were caused 200 feet away from tractor and house of accused persons, but there is no statement of any of the witnesses during investigation regarding this version. 27. Smt. Dayawait(P.W.10) had stated before the Court that Deendayal had hit Mahendra by sword on his right hand when he was driving the tractor. Deendayal, Bhawani Shankar, Smt. Seema @ Sunita, Smt. Shanti Devi had hit the deceased with sword, Barchi and lathies. But this version was contradicted by Karan Singh (P.W.17), Investigating Officer, who had stated before the Court that Smt. Dayawati had not stated in her statement before the police (Exhibit D-3) that Ashok Kumar was inflicted injuries by Bhawani Shankar, Smt. Shanti Devi and Smt. Seema @ Sunita. Karan Singh (P.W. 17) has also stated that Surendra Kumar told that there was a dispute regarding 'Chadi'. Rampal had stated that there was dispute regarding cutting of 'Babul' and Smt. Dayawati stated that there was land dispute. Karan Singh (P.W. 17) has also stated that Surendra Kumar told that there was a dispute regarding 'Chadi'. Rampal had stated that there was dispute regarding cutting of 'Babul' and Smt. Dayawati stated that there was land dispute. All the witnesses had differed in respect of the genesis of the occurrence. Thus, the prosecution failed to establish the motive for formation of unlawful assembly. Proof of motive is although not required in a criminal prosecution, but it is relevant and important to establish intention of the accused persons. In the present case genesis of the occurrence is not established. Bhagchand (P.W.9) in his statement stated that there were other witnesses also, but investigating officer did not record statement of any other independent witness. As per the statement of Surendra Kumar (P.W.3), place of occurrence is the field which is 200 feet away from the house of the accused persons. Therefore, it is quite clear that the prosecution has changed the place of incident in this case. 28. Mahendra Kumar (P.W. 7) has also admitted that there is another way to go to their field and when at the time of incident, the complainant party was coming from their field, their tractor was stopped by the accused party and a dispute took place on the spot. It is clear from the spot that there were blood stains on the wall and at the house of the accused-party, as per the site plan (Exhibit P-4). Smt. Dayawati was medically examined on 14.06.2002, after six days from the incident. Karan Singh(P.W.17), investigating officer of this case has admitted that Surendra Kumar was not having any visible injury. Smt. Dayawati has not stated that Bhawani Shankar, Smt. Shanti Devi and Smt. Seema @ Sunita caused any injury to the deceased Ashok Kumar. It is also admitted by the Investigating Officer that during investigation when he recorded statement of witnesses, they said that the dispute was about 'Chadi'. Rampal had stated that there was a dispute about cutting of 'Babul' and Smt. Dayawati stated that there was a dispute about the land. He has also admitted that during investigation he had not recovered any weapon from accused Bhawani Shankar because during investigation it came to his knowledge that he was not carrying any weapon at the time of incident. There was no blood on lathies which were recovered at the instance of the accused-persons. 29. He has also admitted that during investigation he had not recovered any weapon from accused Bhawani Shankar because during investigation it came to his knowledge that he was not carrying any weapon at the time of incident. There was no blood on lathies which were recovered at the instance of the accused-persons. 29. Laxman Sharma(D.W.1) has stated that on 09.06.2002, when he was on duty at the control room, Jaipur, his son Vijendra had informed him that the complainant party had come on a tractor at their house and had destroyed their garden and gave beating to their family members. Deendayal was beaten by the complainant party. There was blood on the Chabutara of their house and the tractor was also standing in a running condition. Thereafter, he went to the police station, but his report was not registered by the police. Thereafter, he contacted the Superintendent of Police and Inspector General of Police, but even then a report was not lodged. On 20.06.2002, he had filed a complaint before a Court of law at Bandikui. Certified copy of the complaint (Exhibit D-4) has been produced in the Court and the medical report of his son Deendayal was also filed. The complainant party has filed false report against his sons Shivcharan, Kamlesh, Deendayal, Vijendra and Bhawani Shankar etc. Dr. Parshuram Meena(D.W.2) has verified the injury report(Exhibit D-5) of Deendayal. 30. In the case in hand, conviction of accused-appellants is based on the testimonies of Surendra Kumar (P.W.3), Mahendra Kumar (P.W.7) and Smt. Dayawati (P.W.10) with the aid of Section 149 IPC. Thus, their involvement is required to be examined by keeping in mind the facts of the case. However, before coming to the merits, pertaining to the act of accused-appellants, it will be appropriate to reproduce Section 141 IPC which reads as under: “141. Thus, their involvement is required to be examined by keeping in mind the facts of the case. However, before coming to the merits, pertaining to the act of accused-appellants, it will be appropriate to reproduce Section 141 IPC which reads as under: “141. Unlawful assembly.-An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is- First.-To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second.- To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” 31. As per Section 142 IPC, whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. 32. From examination of the evidence available on record, as discussed in preceding paras, it is apparent that an assembly of five or more persons was there and some persons of the assembly were having arms with them. But merely on that count it cannot be inferred that every member of the assembly was intending to commit mischief or any offence. In absence of such intention, the assembly cannot be termed as unlawful. Suffice it to mention that at the time of incident the accused were at their house, and were in relation of the victims also. They were having some dispute with them. But to resolve that dispute, their collective gathering was not unlawful. In absence of such intention, the assembly cannot be termed as unlawful. Suffice it to mention that at the time of incident the accused were at their house, and were in relation of the victims also. They were having some dispute with them. But to resolve that dispute, their collective gathering was not unlawful. Once the assembly has not been found to be unlawful, the conviction with the aid of Section 149 IPC is not sustainable. In this case, complainant party had come on their tractor to the house of the accused party and then the incident took place, as per the FIR and the site plan. Thus, individual acts of the accused persons acquire significance. With the aforesaid factual position, this case is further required to be examined in the light of the alleged formation of the mob that attacked the victims, in commission of the offences alleged, as the conviction is awarded with the aid of Section 149 IPC. 33. Now coming to the issue relating to applicability of Section 149 IPC, at the first instance we deem it appropriate to understand the correct position of law and scope of the provisions of Section 149 IPC. The Hon'ble Supreme Court in the case of Sikandar Singh & Ors. V. State of Bihar, AIR 2010 SC 3580 discussed the ambit of Section 149 IPC in detail and it is highly useful in the instant matter, therefore, the same is quoted below: “13. Section 149 IPC reads as follows: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 14. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. 15. In Mizaji & Anr. V. State of U.P., AIR 1959 SC 572 , explaining the scope of Section 149 IPC, this Court had observed thus: "This section has been the subject matter of interpretation in the various High Courts of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under S. 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under S. 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of S. 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all. There is a great deal to be said for the opinion of Couch, C.J., in Sabed Ali's case, 20 Suth WR Cr 5 (supra) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of S. 149, Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of S. 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part." 16. A `common object' does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. A `common object' does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The `common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. 17. In Masalti V. State of U.P., [1964] 8 SCR 133 :( AIR 1965 SC 202 ) a Constitution Bench of this Court had observed that Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. 18. In Pandurang Chandrakant Mhatre & Ors. 18. In Pandurang Chandrakant Mhatre & Ors. V. State of Maharashtra, (2009) 10 SCC 773 : (2010 AIR SCW 236) of which one of us (R.M. Lodha, J.) was the author had, however, relying on Masalti ( AIR 1965 SC 202 )(supra) and a few other decisions of this Court, cautioned that where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, only those accused, whose presence was clearly established and an overt act by any one of them was proved, should be convicted by taking into consideration a particular fact situation.” 34. The Hon'ble Supreme Court in the case of Shaji & Ors. V. State of Kerala, AIR 2011 SC 1825 , while examining the provisions of Section 149 IPC held as under: “10. In order to understand the rival claims, it is useful to refer Section 149 IPC which reads as under: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 11. While considering the applicability of necessary ingredients of Section 149 IPC, we had an occasion to consider the same in Kuldip Yadav & Ors. v. State of Bihar, JT 2011 (4) SC 436:(2011 AIR SCW 2404). After analyzing the conditions therein, it was held in paragraph 26 of the judgment as under: "26 The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. ............" The above principles have been reiterated in Bhudeo Mandal & Ors. v. State of Bihar, (1981) 2 SCC 755 : ( AIR 1981 SC 1219 ), Ranbir Yadav vv. State of Bihar (1995) 4 SCC 392 : ( AIR 1995 SC 1219 : 1995 AIR SCW 1980), Allauddin Mian & Ors. Sharif Mian & Anr. V. State of Bihar, (1989) 3 SCC 5 : ( AIR 1989 SC 1456 ), Rajendra Shantaram Todankar v. State of Maharashtra & Ors. (2003) 2 SCC 257 : ( AIR 2003 SC 1110 : 2003 AIR SCW 647) and State of Punjab v. Sanjiv Kumar @ Sanju & Ors. (2007) 9 SCC 791 : ( AIR 2007 SC 2430 : 2007 AIR SCW 4313). 12. The following conclusion in Kuldip Yadav (supra) is also relevant which reads as under: "It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC" 13. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC" 13. Though as per the decision of the Constitution Bench, the prosecution is well within its jurisdiction to establish the charge under Section 149 IPC even after the acquittal of two members of the unlawful assembly, however, in order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object...........” 35. In view of the judgments referred to above, ingredients to establish commission of an offence with the aid of Section 149 IPC can be summarized as under: (i) There must be an unlawful assembly; (ii) Accused must be a member of such assembly; (iii) Such unlawful assembly should have joined by the accused intentionally or should have continued with that knowingly; (iv) Accused was acquainted with the common object of the unlawful (v) As a member of unlawful assembly, the accused must be knowing (vi) It must be shown that the incriminating act was done to accomplish assembly; that an offence is likely to be committed; and any object of unlawful assembly. 36. So far as accused Bhawani Shankar is concerned, as per the evidence of Karan Singh(P.W.17), S.H.O. Bandikui, investigating officer of this case, it is quite clear that no weapon had been recovered from him in this case. He has also stated that Smt. Dayawati had not given any statement against Bhawani Shankar, Smt. Shanti Devi and Smt. Seema @ Sunita for inflicting any injury to the deceased Ashok Kumar. No weapon has been recovered from accused Bhawni Shankar during the investigation because he had no weapon with him at the time of incident. In his police statement(Exhibit D-2) the fact that he had inflicted injury to Ashok Kumar by Tanchiya has not been mentioned. He had not mentioned in his police statement(Exhibit D-2) that Bhawani Shankar had inflicted the injury on legs and hands. Similar statement had been given by Smt. Dayawati(P.W.10). In his police statement(Exhibit D-2) the fact that he had inflicted injury to Ashok Kumar by Tanchiya has not been mentioned. He had not mentioned in his police statement(Exhibit D-2) that Bhawani Shankar had inflicted the injury on legs and hands. Similar statement had been given by Smt. Dayawati(P.W.10). Bhawani Shankar is in relation of the complainant as well as accused party and is resident of Rajgarh, District Alwar whereas Smt. Shanti Devi and Smt. Seema @ Sunita are residents of Harnathpura. Accused persons were in their house at the time of occurrence. The complainant party had come there on their tractor. Thereafter, the incident took place. Therefore, there is no material available on record to establish the fact that accused persons were the members of an unlawful assembly. In the present case if the object of the accused party was to cause death of Ashok Kumar, then in such a situation, attack should have been made on him first, instead of any other person. The prosecution has failed to establish the object, which is very important and essential to form an unlawful assembly. As per the prosecution, the attack was made on Mahendra Kumar. Thereafter, the incident took place in the field and when Ashok Kumar intervened that Deendayal had caused injury to him by a sword. 37. It is settled a principle of criminal jurisprudence that burden of proof lies on the prosecution. In the present case, the prosecution has failed to establish true facts and genesis of the case and the motive of the incident. Moreover, the object with which accused-persons are alleged to have caused injuries and death of Ashok Kumar was also not established by the prosecution before the Trial Court. We have discussed the ingredients of Section 149 IPC in the preceding paras. The object is to be immediately connected with the common object of the unlawful assembly of which the accused persons were members. In rioting when ever force or violence is used by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same. There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same. However, in the present case, the prosecution has totally failed to prove nexus between the common object and the offence alleged to have been committed. If it is presumed that the object of the accused persons was to cause murder of Ashok Kumar, deceased then in that situation attack should have been on Ashok Kumar directly in spite of Mahendra Kumar or any other injured persons, as per the prosecution story. There is discrepancy with respect to this fact. So, in our considered opinion, the prosecution has failed to establish the object which is very essential to form an unlawful assembly. In the facts and circumstances of the case and evidence available on record, the prosecution has failed to prove that accused persons had wrongly restrained the deceased Ashok Kumar or other persons of the complainant party. 38. Keeping in view the circumstances; entire evidence on record; the arguments of the parties and the principles of law as referred to by learned counsels for the accused-appellants, it is clearly made out that the prosecution had not been able to prove the guilt of the accused-appellants beyond reasonable doubt. In the case in hand, the prosecution had made attempts to suppress the material facts; evidence; genesis of the case and object of the occurrence. The genesis of the occurrence has, thus, not been proved by the prosecution. Place of occurrence has been changed by the prosecution witnesses during the trial. Independent injured witness, Ram Pal Guard has not been produced by the prosecution, without any explanation. All other injured witnesses are close relatives. Delay in medical examination of Smt. Dayawati raises doubt on the prosecution story. As per the prosecution story, Ashok Kumar deceased was an intervenor who has died in this incident. Therefore, there was no intention to murder Ashok Kumar. There is no nexus between common object and the offence committed in this case. Surendra Kumar had not sustained any visible injury on his body. Ingredients of Section 149 IPC have not been proved by the prosecution in this case. No weapon had been recovered from the accused-appellant Bhawani Shankar. Therefore, there was no intention to murder Ashok Kumar. There is no nexus between common object and the offence committed in this case. Surendra Kumar had not sustained any visible injury on his body. Ingredients of Section 149 IPC have not been proved by the prosecution in this case. No weapon had been recovered from the accused-appellant Bhawani Shankar. For the reasons stated above, we are unable to maintain the conviction awarded to the present accused-appellants. In our considered opinion, the conclusion of the learned Trial Judge is a perverse one and, therefore, the impugned judgment and order passed by him cannot be sustained and the conviction of the accused-appellants Smt. Shanti Devi, Smt. Seema @ Sunita and Bhawani Shankar under Sections 302/149, 326/149, 323/149, 148, 341 IPC deserves to be set aside. 39. It is also pertinent to mention here that the main accused of this case namely Deendayal, who had inflicted sword injury on the head as also the leg of deceased Ashok Kumar and on the hand of Mahendra Kumar as well as other accused namely Shivcharan, Kamlesh and his wife Anita have not been arrested by the police till now, as per the information given to us by the learned Public Prosecutor. 40. Consequently, the appeal is allowed. The impugned judgment dated 26.05.2004 passed by Additional Sessions Judge, Dausa in Sessions Case No. 41/2003 is quashed and set aside. The appellants are acquitted of all the charges levelled against them. The accused appellant Bhawani Shankar is in jail and he shall be released forthwith, if not required in any other case. The accused appellants Smt. Shanti Devi and Smt. Seema @ Sunita are on bail. They need not surrender and their bail bonds stand discharged. 41. However, in the facts and circumstances of the case and for the reasons indicated above, we deem it just and proper to direct the Superintendent of Police Dausa to look into the matter, as aforesaid, for the arrest of other accused persons immediately and send a report to this Court within 30 days from the receipt of copy of this order, which shall be sent to him by the Registry, forthwith. The office is also directed to place the report, to be sent by the Superintendent of Police, Dausa, before this Court as and when it is received.