JUDGMENT : Sanjay Yadav, J. 1. At the outset, it may be mentioned that batch of these appeals arising out of judgments dated 30.8.2003 and 6.3.2006 passed in S.T. No. 220/1997 being clubbed with batch of other appeals viz. Cri. Appeal Nos. 1437/2003, 1513/2003, 1528/2003, 1625/2003, 1648/2003, 1649/2003, 1691/2003, 1707/2003, 1708/2003, 1771/2003 and 1876/2003, arising out of S.T. No. 218/1997 and S.T. No. 219/1997, are analogously heard and are, therefore, being decided by two separate judgments. The present judgment will govern disposal of Criminal Appeal Nos. 1436/2003, 1514/2003, 1527/2003, 1586/2003, 1626/2003, 1690/2003, 1720/2003, 1782/2003, 1871/2003 and 516/2006. 2. These abovementioned appeals are directed against the judgment dated 30.8.2003 and 6.3.2006 passed in Sessions Trial No. 220/1997 by the Additional Sessions Judge, Rewa, indicting ten persons for attempt to murder by forming unlawful assembly. While acquitting one of them (A-10), the trial Judge convicted other ten (arrayed as A-1 to A-9 & A-11) and sentenced as under with a direction that both the sentences shall run concurrently. 3. Two judgments are delivered by the trial Court. Whereas, against A-1 to A-9 and A-11 (as they were before the trial Court), the judgment was delivered on 30.8.2003 and in respect of accused Chunnu @ Anwar Khan Son of Sher Ali and Tarzen @ Afroz Khan son of Sufiyan Khan, they were tried after the delivery of judgment on 30.8.2003 and were indicted for an offence under Sections148 read with 307 read with 149 of IPC by judgment dated 6.3.2006. These appeals are, therefore, heard together and disposed of by this common judgment. 4. It is informed that accused Tarjen, appellant no. 2 in Criminal Appeal No. 516/2006, died during pendency of appeal. 5. Prosecution case, in brief, is that on 12.2.1997 at about 5.30 p.m. all the accused persons formed themselves into an unlawful assembly armed with katta (country made pistol), sword, iron rod and gupti, descended upon the shop of Brijeshnath Kanojia (PW1) situated inside Dharmashala Gate on three motorcycles and one jeep. Gudda (since absconding) fired Katta, which misfired, others attacked PW1 with sword, rod and gupti, as a result whereof, PW1 sustained injuries. PW1 after saving himself behind the counter where he was sitting, extricated himself, ran towards the terrace where he was followed by the miscreants. PW1 jumped into the neighbour's house and got himself locked in room of the house belonging to Jagdish (PW2). PW1 after saving himself behind the counter where he was sitting, extricated himself, ran towards the terrace where he was followed by the miscreants. PW1 jumped into the neighbour's house and got himself locked in room of the house belonging to Jagdish (PW2). The miscreants followed him till the terrace, then left the place. PW1 was taken to Police Station Civil Lines by his father (PW6) at 5.50 p.m. whereon the FIR was lodged (Ex. P/1). The injured was taken to Government Hospital (Ex. P/14) where, his injuries were attended at by Dr. Manish Kaushal (PW9). The complainant was admitted in the hospital and discharged on 20.2.1997. The injuries noted were - (i) incised wound at right forehead: size 10 x 2 x 2 cm leading to active bleeding part of skull cut, bony deep wound on palpation bony crepitus and (ii) abrasion over right arm, post aspect: size 3 cm covered with clotted blood. As per report (Ex. P/8), the injury no.(i) was grievous in nature. The investigating officer Parmeshwar Urmalia (PW14) seized jeep vide Ex. P/9 and motorcycle bearing registration no. MP-17-Y-2349, prepared map Ex. P/7 at 6.30 a.m. in presence of Gaurishakar and Shyamlal (PW7). Accused persons were arrested. On their memorandum, weapons were seized. On completion of investigation, PW14 submitted charge sheet against A-1 to A-11. Against the accused persons viz. Chunnu @ Anwar Khan Son of Sherali and Tarzen @Afroz Khan Son of Sufiyan Khan, supplementary charge sheet was filed after their arrest. 6. The motive that was attributed to the accused persons for committing the offences was that, there was a previous enmity wherein PW1, the injured-complainant, was a complainant against the acquaintance of the accused persons and the complainant was not withdrawing the case. As also, the complainant has been soliciting the company of Deepu Singh and Ajay Kumar Verma @ Anju (PW11), because of which, the accused persons conspired to do away with the complainant and pursuant thereto they committed the crime in question. 7. Accused persons pleaded not guilty to the charges levelled against them and contended that they were falsely implicated. 8. To bring home the charges, prosecution examined 15 witnesses. Of these, PW1, PW6, PW7 and PW11 figured as eye witnesses to the incident. PW4, PW/5 and PW/15 did not support the prosecution of having witnessed the seizures vide Ex. 7. Accused persons pleaded not guilty to the charges levelled against them and contended that they were falsely implicated. 8. To bring home the charges, prosecution examined 15 witnesses. Of these, PW1, PW6, PW7 and PW11 figured as eye witnesses to the incident. PW4, PW/5 and PW/15 did not support the prosecution of having witnessed the seizures vide Ex. P/5, P/6, P/16, P/17, P/22, P/23, P/18, P/19, P/26, P/20, P/21 and P/30. 9. PW/1, PW/6, PW/7 and PW/11 narrated the prosecution story. Their evidence was discussed threadbare by the trial Court in the light of the defence led and held that in so far as place, time and overt act attributed to accused persons, there were no material discrepancies, except minor omissions, having no bearing upon the substantive material evidence. The FIR was found to be promptly lodged. The medical evidence and the injuries sustained found corroborated with ocular evidence. The trial Court yet gave benefit to A-10 namely Ramju @ Ramjan Ali as the charges leveled against him were that under Sections 307 and 120B IPC and the prosecution having failed to prove these charges. 10. Trial Court on the basis of the evidence of PW1, PW6 and PW7, the eyewitnesses and corroborative evidence of PW11 to the extent that the accused were armed with deadly weapons and all together were going towards the shop of victim Brijeshnath Kanojia, returned the finding that, the prosecution have been able to establish beyond doubt as to commission of offence under Section 307 read with 149 of the IPC. But, as regard to criminal conspiracy, the trial Court found the evidence of PW11 not creditworthy that he witnessed the hatching of the plan by the accused to attack Brijeshnath Kanojia. The trial Court further found that the prosecution has failed in establishing of any offence being committed by A/10 Ramju @ Ramjan Ali, who was held not guilty of the offence under Section 307, 148 and 149 of the IPC. 11. Criticising the judgment and the conviction, it is urged by respective counsels appearing for the accused persons that the prosecution having failed to establish each of the accused persons forming member of unlawful assembly and there being discrepancy in the overt act as narrated by prosecution witnesses not closely supported by medical evidence, wherein, only two injuries were found on the complainant. And, in respect of the act of sustaining injuries, there is different version in the FIR, the case diary statement and the evidence in the Court, the prosecution version as to the accused persons forming unlawful assembly and causing grievous injuries on the complainant is not free from doubt as would lead to bring home the charges beyond doubt. To bring home the submissions, entire evidence on record has been read over. 12. Learned counsel appearing for the State; however, supports the finding arrived at by the trial Court contending inter alia that, barring minor omissions the prosecution has beyond doubt established the fact that the accused persons having formed an unlawful assembly and sharing common object to kill the complainant had assaulted him with deadly weapon sustaining injuries and had the complainant not extricated from the place would have met his end. 13. Considered the submissions. We have carefully gone through the entire evidence on record and the judgments by learned Court below and heard the learned counsel for the parties at length. 14. Earliest version available as regard to commission of crime is the First Information Report by the injured himself recorded within 20 minutes of the incident. The narration suggests act of Kajhanchi, Bhaiyyu, Takle, Saleem, Tarjan coming on three motorcycles and Afsar Ali, Gudda Parshad, Neemoo, Chunnu, Kalim on jeep. Each of them except Gudda Parshad as stated were carrying sword. Overt act of firing by country made pistol is attributed to Gudda (since absconding). There was misfire Everybody started assaulting resulting in injuries over head and left hand The injuries as noted above were two, i.e., incised wound at right forehead 10 cm x 2 cm x 2 cm caused by hard and sharp cutting object and the other one is the abrasion on the right forehand. In the statement under Section 161 Cr.P.C. recorded on 12.2.1997 (Ex. D/1), he (the complainant) attributed the sword blow to head by Afsar (A-1) whereas, in dying declaration (Ex. In the statement under Section 161 Cr.P.C. recorded on 12.2.1997 (Ex. D/1), he (the complainant) attributed the sword blow to head by Afsar (A-1) whereas, in dying declaration (Ex. D/2), he named Bhaiyu having inflicted injury with sword In examination in chief (on 03.04.1998) he attributes country pistol fired by Gudda and Bhaiyyu assaulting with sword Though the complainant in paragraph 14 & 15 of his cross examination (which was on behalf of Jani alias Firdous) expresses some doubt as to whether in police statement he stated of Bhaiyyu having assaulted with sword; however, he categorically stated that the statement has not given by him. Thus, certain he is about the person who had hit with sword on his temple i.e., Bhaiyyu. The fact that the injury to the head was caused by Bhaiyyu is also established from the statement of another eyewitnesses PW/6 in whose presence the incident has occurred. PW/6's presence on the spot cannot be doubted as it is he who had accompanied the victim to Police Station for lodging FIR. The defence has also failed to commend to any material evidence to create any doubt of PW/6's presence at the scene of crime. In his case diary statement, he names Khajanchi, Bhaiyyu, Takle, Tarjan, Saleem coming on motorcycle carrying sword, gupti, rod, tanga whereas Afsar Ali coming in jeep alongwith Gudda Prasad, Neemoo, Chunnu, Fyuz, Yakoob, Suleman, carrying sword, gupti, rod. Then, he states In his chief, this eyewitness reiterates the incident as was stated in case diary statement. However, in paragraphs 5 and 6 on being cross-examined on behalf of Afsar Ali and Jani, a minor, contradiction appear, but, it does not belie the fact that Bhaiyyu had caused injury over the temporal region as this witness in paragraph 13 of cross-examination states Though, there appears some discrepancy as regard to the type of weapon used to inflict the injury, as the complainant had deposed that the injury was sustained by sword, whereas PW6 talks about "gupti". This discrepancy has to be ignored because PW6 was sitting outside the shop where the incident had taken place, description as to where he was positioned is borne out from the statement in paragraph 12 of his cross-examination wherein he says The fact that he can see the incident from the place he was positioned is also borne out from the statement of Investigating Officer PW14 who, in paragraph 73, stated Though, the defence has relied on the statement of PW8 Rambhilash Dubey, Head Constable posted at Police Station Civil Lines who recorded the FIR Ex. P/1 having stated in his cross examination that - But, in view of ocular evidence led by the victim PW1 and PW6, corroborating with medical evidence which are free from abstract speculation, the prosecution has been able to establish beyond reasonable doubt that the injury on PW1 was caused by Bhaiyu. 15. True it is that, this witness PW6 specially ascribes the role of Gudda Parshad in firing from country made pistol, and Bhaiyu hitting on head with gupti and in respect of other assailants he ascribes the omnibus act and that some omissions and contradictions as regard to the assailants' position while committing the office, their specific role, vehicle number is being extracted from the witness by confronting him with the case diary statement Ex. D.4. However, his presence at the scene of crime, assailants coming with deadly weapons on scooter, motorcycles and on jeep and assaulting the complainant get established from the evidence of this witness, which cannot be doubted for more than one reasons, firstly, it is he who takes the injured to police station within close proximity of the offence being committed and in absence of any evidence to the contrary that he is a planted witness, his being at the scene of crime cannot be doubted. Secondly, the specific place from where he witnessed the committing of crime and the vivid description of the surrounding which he gives on being cross-examined in paragraph 12 and 13 leaves no trace of doubt of his being present and having witnessed the crime. Even otherwise, it cannot be gainsaid that since incident took place in the shop of the complainant at 5.30 p.m., the complainant PW1, who sustained injuries, is a natural witness. Presence of his father PW6 and Uncle PW7 within the vicinity can also be not doubted. Even otherwise, it cannot be gainsaid that since incident took place in the shop of the complainant at 5.30 p.m., the complainant PW1, who sustained injuries, is a natural witness. Presence of his father PW6 and Uncle PW7 within the vicinity can also be not doubted. Their evidence so far it relates to the manner in which the incident took place is consistent and cogent and does not suffer from any infirmity. These witnesses knowing the assailants personally as would call for a test identification parade is also beyond any pale of doubt, because two of the assailants have been the counselors viz., Gudda (since absconding) and Afsar Ali (A-1). The accused persons who accompanied them being the local residents are known in the vicinity is also established from the consistency of the evidence led. 16. It is contended on behalf of the appellants that in absence of identification parade, the evidence of PW6 Biharilal Kanojia is highly doubtful. These contentions have to give way to the fact that this witness, PW6, has known the assailants personally by name. In paragraph 3 of the evidence, he states of knowing all the accused present in Court In paragraph 4 of his chief examination, he states: This witness is also aware of two Chhunus, viz., Chunnu s/o Miraz-Ul-Haq and Chunnu s/o Sher Ali Khan. And, though contradicted with case diary statement, in his chief he clearly states one Chunnu coming on scooter/motorcycle and another Chunnu coming on Jeep with Afsar Ali. 17. At this juncture, pertinent it would be to mention that two Chunnus are being named, the question as to which of Chunnu or whether both the Chunnus were involved in commission of crime and whether the prosecution has succeeded in establishing the charges framed, will be dwelt upon while dealing with the judgment dated 6.3.2006. 18. The accused getting together armed with deadly weapons going towards complainant's shop is also borne out from the evidence of PW/11 and analysis of his evidence by the trial Court in paragraph 19 is just and proper. The trial Court found: 19. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. The facts and circumstances help in deducting the element of common object. The trial Court found: 19. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. The facts and circumstances help in deducting the element of common object. The question as to what is required to be proved against a person who is alleged to be a member of an unlawful assembly came up for consideration in Masalti v. State of U.P. : AIR 1965 SC 202 wherein it is held - "While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. In fact, S. 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 S. 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." 20. In Lalji v. State of U.P. : (1989) 1 SCC 437 , it is held - "8. Section 149 IPC provides 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 the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in S. 141 IPC, an assembly of five or more persons is designated an 'Un-lawful Assembly', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third', 'Fourth, and 'Fifth' of that section. As has been defined in S. 141 IPC, an assembly of five or more persons is designated an 'Un-lawful Assembly', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First', 'Second', 'Third', 'Fourth, and 'Fifth' of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. 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. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely, such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is. necessarily. guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in S. 141 IPC Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under S. 149. It must be noted that the basis of the constructive guilt under S. 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." 21. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under S. 149. It must be noted that the basis of the constructive guilt under S. 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." 21. In the case at hand, credible evidence by the complainant PW1 and eyewitness PW6 establishes that the appellants assembled at the shop of the complainant armed with lethal weapons, the complainant was fired at by a country made pistol, the fire missed. The fire was followed by the attack with sword, gupti and rod carried by these accused, vividly narrated by PW1, PW6 and PW7. Even PW11 whose evidence as to pre-mediation though not believed, but had witnessed these accused armed with lethal weapon in front of Dharamshala where the complainant's shop is situated. The eye witness' version along with the medical evidence, leaves no space for speculation, as the prosecution succeeded in proving the charges under Sections 148, 307 and 149 of IPC beyond reasonable doubt, as these accused shared common object to eliminate the complainant. And, had he not succeeded in running away from the place, the common object of killing him was within the close proximity of being achieved. The conclusion arrived at by learned Sessions Judge of holding these appellants guilty of the charges, being viewed thus warrants no interference. 22. Now coming to judgment-dated 6.3.2006. These two accused viz. Chunnu alia Anwar Khan Son of Sher Alai and Tarzen alia Afroz Khan Son of Sufiyan Khan were tried after the judgment having been delivered on 30.8.2003, as they could not be apprehended earlier, though under the same Sessions Trial No. 220/97. This led the Sessions Judge to pass separate order on 06.03.2006. 23. These two accused, as the accused convicted by judgment dated 30.8.2003, were charged with for the offence under Sections120-B, 148, 307 read with 149 of IPC and Section 25(1-B) of the Arms Act. The prosecution story having been narrated while dwelling on the Appeals by accused A1 to A-9 and A-11 is not repeated except that the prosecution in order to bring home the guilt of these two accused examined entire witnesses afresh. The prosecution story having been narrated while dwelling on the Appeals by accused A1 to A-9 and A-11 is not repeated except that the prosecution in order to bring home the guilt of these two accused examined entire witnesses afresh. To establish that these two accused were the members of unlawful assembly indulged in causing fatal injury to the complainant, prosecution examined the complainant, PW-4 Bihari Lal Kanojia PW-5, Shyamlal PW-9, Anju @ Anju Verma who, as per the prosecution, were eyewitnesses of the incident which took place on 12.2.1997 in the shop near Dharamshala Gate. 24. PW4, the victim complainant in an FIR, Ex. P/1, lodged at 5.50 p.m. named Tarzan and Chunnu along with Gudda Parshad, Afsar Ali Parshad, Bhaiyyu, Takle, Salim, Neemoo, Kaleem son of Shareef, Khajanchi being the assailants and while attributing overt act of firing country pistol by Gudda Parshad and a sword and rod blow by other assailants. In his evidence in Court, he mentions of knowing both the accused. 25. It has been strenuously contended on behalf of the appellant Chunnu that he was neither named in the FIR nor in case diary statement and has been roped in though not seen by anyone at the first instance. Reliance is placed on the FIR, case diary statement and evidence of PW/4, PW/5, PW/6 and PW/9, who are the eye-witnesses. Carefully taking through these evidence, it is urged that the complainant and other eyewitnesses having mentioned only Chunnu have improved their version during their evidence in the Court. Reliance is also placed on the evidence of the investigating officer who clearly states in paragraph 14 and 16. In paragraph 14, he stated: 26. This witness explains as to how Chunnu surfaced as an accused. In paragraph 16 of his cross-examination he explains: 27. However, further statement by this witness creates a doubt about Chunnu being involved in committing the crime. He states: 28. These statements go to establish that the presence of Chunnu is highly doubtful and the prosecution failed to establish beyond reasonable doubt of either of them being part of the unlawful assembly. Both the Chunnus viz. Chunnu s/o Miraz-Ul-Haq and Chunnu s/o Sher Ali Khan gets the benefit of doubt as the prosecution has failed to prove their participation in the crime. 29. Both the Chunnus viz. Chunnu s/o Miraz-Ul-Haq and Chunnu s/o Sher Ali Khan gets the benefit of doubt as the prosecution has failed to prove their participation in the crime. 29. So far as Tarjan is concerned, as evident from the eye witnesses version his name appear in FIR, in case diary statement and the evidence led in the Court by PW4 and PW5 his presence and having participated in crime is established by the prosecution beyond doubt. However, since it is reported that during pendency of appeal, he expired, his appeal abates. 30. The doubt as to whether Tarjen was the member of unlawful assembly is further ruled out when the evidence of PW1, PW6, PW7 and PW14 is closely examined. 31. Evident it is from the FIR (Ex. P-1) that the injured complainant within 20 minutes of the incident reported that Khajanchi, Bhaiyyu, Takle, Saleem and Tarzen came on three motorcycle at 5:30 armed with sword, immediately then joined by Afsar Ali Parshad in jeep along with Gudda Parshad, Neemoo, Chunnu, Kalim armed with sword, rod and exhorting by saying thus, Gudda Parshad fired with his country made pistol, there was misfire. Then, when the complainant was about to run away, the assailants caught him and assaulted with sword and rod The FIR further record of complainant reporting In his evidence in Court, the complainant examined as PW1, while acknowledging all the accused present in Court He further affirms of assailants armed with deadly weapons such as sword, rod, Gupti and country made pistol. Gudda exhorting that Ajju and Deepu being facilitated and are not compromising fired from the pistol he carried, the others carrying deadly weapon assaulted. The vivid description he gives , is supported by another eye witness, PW/6, who also knew these assailants personally. In his evidence in Court PW 6 categorically names Khajanchi, Bhaiyyu, Takle, Tarjen, Saleem, on scooter, motorcycle armed with sword, gupti, rod, taunga, Afsarali, Guddu Parshad, Neemu, Chunnu, Fyuz, Yakub, Suleman coming on Jeep, again armed with deadly weapons i.e. sword, gupti uttering that and started assaulting the complainant. Gudda Parshad fired which missed and simultaneously each of the assailants started assaulting with the weapons they carried. 32. Thus, there remains no iota of doubt as to commission of the offence by accused persons viz., A-1, A-3, A-7, A-8 and Tarjen. 33. Gudda Parshad fired which missed and simultaneously each of the assailants started assaulting with the weapons they carried. 32. Thus, there remains no iota of doubt as to commission of the offence by accused persons viz., A-1, A-3, A-7, A-8 and Tarjen. 33. Doubts, however, has been raised as to participation of A-4 (Fyuz @ Mahfooz), A-5 (Yakoob alias Popu), A-6 (Suleman son of Abdul Hafeez), A-9 (Jani @ Ramjan Ali) and A-11 (Raju son of Sher Ali) in the commission of offence for which they are found guilty. 34. These accused persons as evident from Ex. P/1, are not named in the FIR. In paragraphs 12, 31, 34 and 35 of his cross examination, complainant (PW1) is not sure as to why the name of A-4, A-5, A-6, A-9 and A-11 is not recorded in the FIR. Other eyewitnesses viz. PW7 does not confirm the presence of A-4, A-5, A-6, A-9 and A-11. Whereas, eyewitness PW6 states in his examination in chief about presence of A-4 but does not attribute any overt act by him. As regard to participation in commission of offence by A-5, A-6 and A-9, this witness i.e. PW6 indict them, however, when his statement as regard to A-4, A-5, A-6 and A-9 is read with FIR, statements of PW1 and PW7, does not inspire much confidence and is omnibus in nature as could lead to establish their presence (i.e. of A-4, A-5, A-6 and A-9) at the scene of crime and participation therein beyond doubt. Similar is the fact about A-11 whose name is disclosed by PW-11 only whereas other eyewitnesses viz. PW-1, PW-6 and PW-7 does not name him. 35. In the result - (i) Criminal Appeal No. 1720/2003 [Chunnu @ Mirajul Haq (A-2) vs. State of M.P.], Criminal Appeal No. 1626/2003 [Mahfyuj @ Fyuz (A-4) vs. State of M.P.], Criminal Appeal No. 1527/2003 [Yakoob @ Popu (A-5) and Suleman (A-6) vs. State of M.P.], Criminal Appeal No. 1436/2003 [Jani @ Firdous Khan (A-9) vs. State of M.P.] and Criminal Appeal No. 1690/2003 [Raju vs. State of M.P.] are allowed. The impugned convictions and consequent sentences are set aside. They are acquitted of the offences under Sections148 and 307 read with 149 IPC. If on bail, they need not surrender and they are discharged of the bail bonds. The impugned convictions and consequent sentences are set aside. They are acquitted of the offences under Sections148 and 307 read with 149 IPC. If on bail, they need not surrender and they are discharged of the bail bonds. (ii) Criminal Appeal No. 1514/2003 [Afsar Ali (A-1) vs. State of M.P.], Criminal Appeal No. 1782/2003 [Khajanchi (A-3) vs. State of M.P.], Criminal Appeal No. 1871/2003 [Neemoo @ Noushad Haq (A-7) vs. State of M.P.] and Criminal Appeal No. 1586/2003 [Bhaiyu @ Nasir @ Ibrarul Hassan (A-8) vs. State of M.P.] are dismissed. Impugned convictions of these appellants and consequent sentences are hereby upheld. If on bail, they should surrender to their bail bonds forthwith to serve out the sentence imposed by the trial Court. (iii) Criminal Appeal No. 516/2006 is allowed in part. Impugned conviction and consequent sentences, so far as it relates to accused Chunnu Khan @ Anwar Khan son of Sher Ali), are set aside. He is acquitted of the offences under Sections 148 and 307 read with 149 IPC. If on bail, he need not surrender and he is discharged of the bail bonds. Accused Tarjen @ Afroz died during the pendency of this appeal and the appeal, in so far as it relates to him, is consequently abated. 36. Let a copy of the judgment be retained in the connected criminal appeals.