JUDGMENT : 1. The present appeal is preferred against judgment and order dated 18.12.1981 passed by Vth Additional Sessions Judge, Ballia in Session Trial No.64 of 1981, convicting and sentencing the appellant-Radha Mohan Rai under Section 323 read with Section 149 of the Indian Penal Code and Section 147 of the Indian Penal Code on probation for two years while suspending the sentence. 2. The present appeal has been filed by two Appellant's, namely, Radha Mohan Rai (Appellant no.1) and Ram Kripal (Appellant no.2). During the pendency of the appeal, Ram Kripal (Appellant no.2) has died and the present appeal is abated in respect of Appellant no.2 by order dated 01.02.2010. 3. The prosecution case as per the first information report is to the effect that Madan Rai-informant had enmity with Ram Chhabila Rai regarding taking meals together. Radha Mohan is relative of Ram Chabila. About one month prior to the incident, Ram Chabila Rai wanted some passage to his house through the courtyard of the informant and the informant had promised Ram Chabila Rai for passage from the eastern corner of his house but Ram Chabila Rai did not accept the same. There was a panchayat in respect of the aforesaid dispute where the informant promised Ram Chabila Rai to give him passage through the border. Radha Mohan became annoyed and in the panchayat threatened the informant by throttling his neck and stating that he will take passage after finishing the informant. The other persons present in the panchayat intervened. 4. On 27.05.1980, informant together with his cousin Virendra Rai and uncle Munni Rai were sleeping at his tubewell in Village-Mansurpur. Three accused persons together with five-six other persons came there being armed with lathi and country made pistol. There was no electricity at the tubewell but the lantern was burning. The informant was lying awaken. The accused-appellant Radha Mohan shouted what is the delay we have got all three together kill them. On the aforesaid call, all the accused persons started beating the complainant, his uncle and cousin. As a result of the same, the uncle of the complainant and cousin was badly injured. The accused persons could be recognised in the moonlight and in the light of the lantern. The other persons could be recognised after seeing them. On the aforesaid call, all the accused persons started beating the complainant, his uncle and cousin. As a result of the same, the uncle of the complainant and cousin was badly injured. The accused persons could be recognised in the moonlight and in the light of the lantern. The other persons could be recognised after seeing them. On his alarm, some persons of the nearby vicinity arrived there and thereafter, the accused persons left thinking that the injured have died. The family members took the three injured persons to the hospital on the same night. The uncle of the complainant and the cousin were in serious condition in the hospital and after getting himself medically examined, the complainant came to the police station to lodge the first information report. The first information report was lodged on 28.05.1980 at 8:20 AM at police Station Phephna, which is 6 miles away from the place of occurrence. 5. On the basis of the aforesaid first information report, a case under Sections 147, 148, 149, 307 I.P.C. was lodged at Police Station Phephna being Case Crime No.126 of 1980. 6. The injured persons were medically examined by Dr. Arun Kumar on 28th May, 1980 am at District Hospital, Ballia. 7. After completion of investigation, Investigating Officer has submitted chargesheet against the accused persons and charges were framed on 19th September, 1981 against the accused persons under Sections 307/149/147, 323, 149, 325/149 I.P.C. 8. All the accused persons have denied the charges levelled against them and have claimed to be tried. In support of prosecution case seven witnesses were examined. 9. P.W.1-Madan Rai has stated that he has a residential house having an area of 3-4 kita and appurtenant land. He has further stated that he has a tubewell which is three furlong from his house and tubewell is on the agricultural land. He has further stated that Munni Rai is his uncle and Virendra Rai is his cousin brother. He has stated that his uncle Munni Rai is living with him and cousin Virendra also lives in the same house. The accused persons are friendly to each other and live together. He has further stated that the incident is of 2/3 months back and there was Barkhi of uncle of Ram Chhabila Rai. In the aforesaid occasion, Ram Chhabila Rai has invited for dinner. The accused persons are friendly to each other and live together. He has further stated that the incident is of 2/3 months back and there was Barkhi of uncle of Ram Chhabila Rai. In the aforesaid occasion, Ram Chhabila Rai has invited for dinner. However, his uncle was not invited and as such the witness could not go on the invitation and the aforesaid non-acceptance of the invitation has annoyed Radha Mohan and Ram Chhabila. One month prior to the incident the witness was arranging the bricks in the open field near his house when Radha Mohan and Ram Chhabila had stopped the witness from keeping the bricks as he wanted a way to his house from the aforesaid open land. With regard to the aforesaid dispute, a panchayat was held on 20th April, 1980. The witness in panchayat admitted to give way on the eastern corner of the land. However, Radha Mohan did not agree for the same. Radha Mohan in front of the panchayat caught hold the neck of the witness and abused and, thereafter, stated that he will take passage after finishing the witness. The dispute was subsided by intervention of the panchayat. On 27th May, 1980 at about 11.30 pm when the witness was at his tubewell along with his cousin Birendra and Uncle Munni Rai and were sleeping there on different cots and the lantern was burning near the tubewell and it was full moon night. The electricity was not coming on the tubewell and all the three persons were awaken. From the south, accused persons Radha Mohan, Ram Kripal and Chandrama along with 5-6 other accused persons came along with lathi and country made pistol. The witness on seeing them confronted them, then the accused Radha Mohan said to the other accused persons to kill the witness and other two persons being uncle and cousin brother as they are all together. On the aforesaid, all the accused persons started beating all of them and as a result of the same, the uncle and Birendra sustained injuries and they fell down and then accused Radha Mohan thought that they have died and as such they ran away. The accused persons have beaten the witness with lathi and the witness could identified Radha Mohan, Ram Kripal and Chandrama but did not recognize the other persons. The accused persons have beaten the witness with lathi and the witness could identified Radha Mohan, Ram Kripal and Chandrama but did not recognize the other persons. On the distress call, accused persons ran away and the villagers came. The injured persons were serious and uncle was taken by villagers on cot and remaining injured persons were also taken to the hospital by rickshaw. The position of his uncle was serious and medical aid was provided in the hospital. In the morning, first information report was lodged, which is Ex.Ka.1. The said report was lodged at Police Station Phephna. Thereafter, the Investigating Officer went to the place of occurrence along with informant from where the blood stained soil was recovered and recovery memo was prepared and same is marked as Ex.Ka.2. He has further stated that at the place of occurrence the witness has shown the lantern to the Investigating Officer, who had seen the same and, thereafter, had given in the supurdagi of the witness and the supurdagi memo was prepared, which is Ex.Ka.3. He has further stated that the lantern is with him. However, he has not brought the same to the court. 10. P.W.2-Birendra Rai has stated that on 26th May, 1980, occurrence took place at about 11.30 pm. The sky was clear and it was a full moon night. They were sleeping near the tubewell on the cot but was away. The lantern was burning then Radha Mohan, Ram Kripal and Chandrama along with 5-6 persons came with lathi and countrymade pistol from the north side and when Madan Rai confronted them, then Radha Mohan stated to the other accused persons to kill them as they are all together and on the aforesaid, accused persons started beating with lathi. He has further stated that all the three persons were beating and as a result of beating, present witness and his uncle fell down and the accused persons thought that we have died and as such they went away. The accused persons were beating the injured for 10 minutes and after the accused persons left, villagers came, to whom the incident was narrated and injured were taken to the hospital where the uncle was admitted and Madan Rai also sustained injuries. 11. The accused persons were beating the injured for 10 minutes and after the accused persons left, villagers came, to whom the incident was narrated and injured were taken to the hospital where the uncle was admitted and Madan Rai also sustained injuries. 11. P.W.3-Sri I.B.D. Dwivedi has stated that on 5th June, 1980 he was posted at Sadar Hospital as Radiologist and on the said date he had X-rayed the skull of Munni Rai and the X-ray was marked as Ex.I. On the basis of the X-ray, he found there was a fracture in the head and the X-ray report was marked as Ex.Ka.4. 12. P.W.4-Ram Sagar Rai has stated that he knows Madan Rai, Radha Mohan and Ram Chhabila and about 1 and 1/2 years from today, for the bricks and right of way a panchayat was held. He was present in the aforesaid panchayat. Madan Rai wanted to construct house on the open land and as such had kept bricks on the aforesaid land. However, Radha Mohan and Chhabila were opposing the same, they wanted right of way on the middle of the land. Madan Rai agreed to give right of way on the eastern corner of the land. In the panchayat Radha Mohan caught hold the neck of Madan Rai and stated that he will crush the neck if the way was not provided in the middle of the land. The persons there however, defused the situation. After one month at about 11.30 pm, witness was at his agricultural field and he heard some noise and the same was coming from the side of the tubewell of Madan Rai. It was a full moon night. The electricity was not there. He went there and saw that Madan Rai, Munni Rai and Birendra were injured and when the said witness asked them what has happened, Madan Rai has informed that Radha Mohan, Chandrama and Ram Kripal along with 5-6 persons have come with lathi and countrymade firearm and they have beaten the aforesaid three persons and as a result of the same, they had sustained injuries. Munni Rai was taken to the hospital on cot and Madan Rai and Birendra were given support and taken to the hospital. 13. P.W.5-Dr. Arun Kumar has medically examined the injured persons and has found the following injuries:- Injuries of Munni Rai:- 1. Munni Rai was taken to the hospital on cot and Madan Rai and Birendra were given support and taken to the hospital. 13. P.W.5-Dr. Arun Kumar has medically examined the injured persons and has found the following injuries:- Injuries of Munni Rai:- 1. Lacerated wound 6 cm X 1/2 cm X bone deep present on forehead 5 cm above eye brow. Bleeding present. 2. Lacerated wound 4 cm X 1/2 cm X bone deep present on left eye brow. Bleeding present. 3. Lacerated wound 1/2 cm X 1/2 cm on the zygamatee part of face left side. Bleeding present. 4. Lacerated wound 1/2 cm X 1/2 cm present 1 cm away from Injury no.III in the zygamatee part of face left side. Bleeding present. 5. Lacerated wound 3 cm X 1/2 cm muscle deep on the part of parietal region right side 10 cm above pinna. Supplementary injury report of Munni Rai Injury No.I, II, III, IV & V kept U.O. Injury No.I is grevious and others simple vide X-ray no.183 dated 5.6.80 of District Hospital Ballia. All injuries caused by hard & blunt object. Past x-rayed - X ray skull Findings - Fracture parietal bone Injuries of Virendra Rai: 1. A linear lacerated wound on middle of of scalp at the junction of both parietal region 12 cm above right pinna, 3 cm X 1/4 cm X skin deep. Blood clot present. 2. A contusion 4 cm X 4 cm at the nape of neck. Redish color 3. An abrated contusion on front of chest (L) side 5 cm X 5 cm, 4 cm below the sternoclevicular joint. 4. A linear abrasion 4 cm X 2 cm just above left nipple. Redish colour. 5. A contusion on dorsum of right hand, 3 cm X 3 cm at the junction of thumb index finger. Redish colour. 6. An abrasion 2 cm X 2 cm infront of right upper arm, 10 cm below acronioclavial joint. Redish colour. Injuries of Madan Rai:- 1. A linear lacerated wound 2.5 cm X .5 cm X skin deep on fore head 7 cm above left eyebrow. Blood clot present. 2. An abrasion 2 cm X 2 cm on the root of front of neck left side just above sternoclavicular joint left side. Redish Colour. 3. An abrasion 2 cm X 2 cm on front of chest. Left side just below middle of left clevicle. Blood clot present. 2. An abrasion 2 cm X 2 cm on the root of front of neck left side just above sternoclavicular joint left side. Redish Colour. 3. An abrasion 2 cm X 2 cm on front of chest. Left side just below middle of left clevicle. Redish colour 4. An abrated contusion 6 cm X 6 cm on front of left upper arm 3 cm below left acronio clevicular joint. Purple coloured. 5. An abrasion 19 cm X 2 cm on back of chest right side extending from right acronio clevicular joint to 2nd thoracic vertibra centre. Redish colour. 6. A contusion 3 cm X 3 cm on dorsum of hand between thumb and index finger left side. Redish colour. 7. A contusion 3 cm X 3 cm on dorsum of hand right side, between thumb and index finger. Redish colour. 14. In support of the prosecution case the prosecution has proved the following documents :- 15. Memo of report as Ex.Ka.1, Recovery of blood stained clothes as Ex.Ka.2, Memo of lantern as Ex.Ka.3, X-ray report of Munni Rai as Ex.Ka.4, Injury report of Munni Rai as Ex.Ka.5, Injury report of Birendra Rai as Ex.Ka.6, Injury report of Madan Rai as Ex.Ka.7, Supplementary report of Munni Rai as Ex.Ka.8, First Information Report as Ex.Ka.9, Recovery Memo of Bamboo clump as Ex.Ka.10 and site plan with index as Ex.Ka.11. 16. Appellant and other accused persons in the statement under section 313 Cr.P.C. have denied the charges and stated that they have been falsely implicated due to enmity. 17. Appellant in support of his defence has examined Chandramani as D.W.1. 18. The prosecution case is to the effect that Madan Rai had enmity with Ram Chabila Rai regarding the meals together. Radha Mohan is relative of Ram Chabila. About one month prior to the incident Ram Chabila Rai wanted passage to his house through the adjoining land of the house of the informant. Informant had promised Ram Chabila Rai to give passage from the side of his house however, Ram Chabila Rai did not agree to the same. A panchayat in this respect was also held where the informant had accepted for giving passage to Ram Chabila Rai from side of the house of informant. Radha Mohan became annoyed and in the panchayat threatened informant by throttling his neck and said that he will take passage after finishing informant. A panchayat in this respect was also held where the informant had accepted for giving passage to Ram Chabila Rai from side of the house of informant. Radha Mohan became annoyed and in the panchayat threatened informant by throttling his neck and said that he will take passage after finishing informant. The other persons present in the panchayat intervened and since then Radha Mohan is inimical to the informant. 19. On 27th May, 1980, informant and his cousin Birendra Rai and uncle Munni Rai were sleeping near the tube well in mauja Maisurpur. At about 11:30 PM in the night Radha Mohan Rai, Ram Kripal and Chandrama Rai along with five to six other persons armed with lathi and country made pistol came to the aforesaid place. There was no electricity at the tube well but the lantern was burning. The informant was awake. When the informant saw accused persons coming, he exclaimed, on this Radha Mohan said to the other accused persons to kill the informant and his relatives and thereafter, accused persons started beating the informant, his cousin brother and uncle Munni Rai. The accused persons inflicted grievous injuries on the uncle and cousin of the informant. Informant, his cousin and his uncle has recognised the three accused persons in the moonlight and in light of lantern. On the cry of the informant, other persons in the vicinity arrived there and thereafter, the accused persons left the cousin brother and uncle thinking them to be dead. Informant's family members took injured three persons to the hospital on the same night. The condition of the cousin brother and the uncle was serious and informant after getting medically examined came to police station to lodge the first information report. The first information report was lodged on 28th May, 1980 at 8:30 AM at Police Station-Phepna, which is 6 miles away from the place of occurrence. 20. The prosecution has examined Informant-Madan Rai as P.W.1. The aforesaid witness has supported the prosecution case. Informant is the eyewitness of the alleged incident. The prosecution has further examined Birendra Rai as P.W.2. The aforesaid witness has supported the prosecution case and has stated that on 27th May, 1980 the incident has taken place at about 11:30 PM. He has stated that it was a moonlight night. The aforesaid witness has supported the prosecution case. Informant is the eyewitness of the alleged incident. The prosecution has further examined Birendra Rai as P.W.2. The aforesaid witness has supported the prosecution case and has stated that on 27th May, 1980 the incident has taken place at about 11:30 PM. He has stated that it was a moonlight night. He was sleeping on cot near the tube well and was awake and towards the north his cousin brother was sitting on the platform and on the south his uncle Munni Rai was lying while he was awake. Lantern was burning near the tube well. Radha Mohan, Ram Kripal Singh and Chandrama Rai along with 5 to 6 persons came armed with lathi, country made pistol from the north. On coming of the accused persons, Madan Rai asked for the reason of the accused persons to come. On the aforesaid Radha Mohan Rai stated to other accused persons to beat the informant and his cousin and uncle. The accused persons started beating all the three persons. The witness has stated that the aforesaid persons were beating with stick. On beating the said witness his uncle fell down and the accused persons thinking that the witness and his uncle has died and they left away. On the same night, the witness and his uncle was admitted in the hospital and Madan Rai also suffered injuries. 20. The prosecution has also examined Dr. I.B.D. Dwivedi as P.W.3. The aforesaid witness has stated that on fifth of June 1980 he was posted at Ballia Sadar Hospital as radiologist. He had conducted X-ray of the skull of Munni Rai. He found fracture in the front of the head. He has further proved the x-ray report, which is marked as Ex.Ka-4. 21. The prosecution has further examined Ram Sagar Rai as P.W.4. He is stated that he knows Madan Rai, Radha Mohan and Ram Chhabila. About one and 1½ year prior to the said incident there was a panchayat held for passage and bricks. He was present in the aforesaid panchayat. Madan Rai was keeping bricks in his land for construction of the house then Radha Mohan and Ram Chhabila stated that he should remove the bricks and opened the passage. Madan Rai stated that he will need passage on the western side. He was present in the aforesaid panchayat. Madan Rai was keeping bricks in his land for construction of the house then Radha Mohan and Ram Chhabila stated that he should remove the bricks and opened the passage. Madan Rai stated that he will need passage on the western side. In the panchayat, Radha Mohan caught hold the neck of Madan Rai and stated that he will throttle the neck if the passage not left. On the intervention of the witness and other persons, the matter was diffused. One month after the above-mentioned panchayat at about 11:30 PM witness was on his agricultural field and he heard distress call and thereafter he went towards the tube well of Madan Rai where lantern was burning. Madan Rai, Munni Rai and Birendra were injured. On query being made, it was informed by them that Radha Mohan, Ram Chhabila and other persons who were armed with stick and country made pistol have beaten the three persons with stick and as a result of the same, injuries have been sustained. 22. The prosecution in support of the prosecution case has further examined Dr. Arun Kumar as P.W.5. He submitted that on 28th May, 1980 at about 1:45 PM he was posted at District Hospital, Ballia. He has further stated that he had examined Munni Rai alias Ganesh Rai on the said date and had found injuries. He has also examined Birendra Rai who has also sustained injuries. He has further stated that on the same day he had also examined Madan Rai and had found injuries. He has further stated that he had prepared the injury report of Munni Rai, Madan Rai and Birendra and same was marked as Ex.Ka.5, Ex.Ka.6 and Ex. Ka.7. 23. The P.W.6-M.N.Pathak and Ram Paramhans Singh are the formal witness. 24. It is submitted by counsel for the appellant that the injured Munni Rai was not produced before the court and as such the case of the prosecution is highly improbable. It is submitted by counsel for the appellant that adverse inference be drawn for the non-production of the aforesaid witness has the aforesaid witness was in worse condition and was badly injured. It is submitted by counsel for the appellant that adverse inference be drawn for the non-production of the aforesaid witness has the aforesaid witness was in worse condition and was badly injured. It is to be seen that the presence of the witnesses together with the testimony of P.W.1 and P.W.2 who are the eyewitness of the alleged incident and has proved the prosecution case is sufficient to establish the prosecution case against the appellant. The testimony of P.W.1 and P.W.2 has not been shaken in the cross examination nor the counsel for the Appellant has pointed out any material contradiction which goes to the root of the prosecution case. The testimony of P.W.1 and P.W.2 has been found to be reliable and trustworthy. The aforesaid witnesses are the eyewitness of the alleged incident. The failure to examine the other witnesses is inconsequential. It is the quality of evidence and not the number of witnesses that are material. The injuries sustained by Munni Rai has been duly proved by the prosecution witness no 5. 25. In Prithipal Singh v. State of Punjab, (2012) 1 SCC 10 , it was held as under :- "49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence." 25. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence." 25. There is no legal hurdle in convicting a person on the sole testimony of a single witness, if his version is clear and reliable, for the principle that the evidence has to be weighed and not counted. If the testimony of a single witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony in respect of third category. 26. The legal position is found in the statutory provision in Section 134 of the Evidence Act, 1872, which reads : "134. Number of witnesses.--No particular number of witnesses shall in any case be required for the proof of any fact." 27. Legal system in the country does not insist on plurality of witnesses. The Evidence Act, 1872 does not mandate that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses, if it is not satisfied about the quality of evidence. 28. The law does not require that the prosecution must examine all the eyewitnesses cited by the prosecution. Conversely, it may acquit the accused in spite of testimony of several witnesses, if it is not satisfied about the quality of evidence. 28. The law does not require that the prosecution must examine all the eyewitnesses cited by the prosecution. When the evidence of two eyewitnesses, PW 1 and 2 was found worthy of acceptance to prove the case, then it was not necessary for the prosecution to examine any more eyewitnesses. It is for the prosecution to decide as to how many and who should be examined as their witnesses for proving their case. Therefore, this court does not find any merit in this submission of the appellant. 29. It is further submitted by counsel for the Appellant that the only source of light at the place of alleged incident was lantern and as such it is improbable that the Appellant could have been recognised by the witnesses. 30. It is to be noted that as per the prosecution case the incident/occurrence has taken place at 11:30 PM in the night. The prosecution witnesses have stated that lantern was burning at the place of incident when the occurrence took place. Moonlight was available at the aforesaid time and the sky was clear. It is also to be noted that accused persons and the complainant and injured were known to each other and have participated in the panchayat for resolving the dispute. The trial court has recorded a finding that the complainant and victims were well-known with the accused and that there are every chances that they will be identified by their appearance and voice also. The trial court has further recorded finding that the physical assault had taken place for a long time and there was sufficient light. On the aforesaid basis, trial court has come to the conclusion that there was sufficient opportunity for the prosecution witness/victims to have identified the accused. Learned counsel for the appellant has not been able to demonstrate the perversity in the finding recorded by the trial court. The burning of lantern at the place of occurrence has been testified by the prosecution witnesses. The victim were known to the accused persons, under such circumstances the identification of the accused persons cannot be faulted and no benefit can be granted to the appellant. 31. The burning of lantern at the place of occurrence has been testified by the prosecution witnesses. The victim were known to the accused persons, under such circumstances the identification of the accused persons cannot be faulted and no benefit can be granted to the appellant. 31. Learned counsel for the appellant has also submitted that the dispute/motive of the alleged incident as claimed by the prosecution is the dispute with regard to passage. The nature of dispute was not of such magnitude which would have resulted in physical assault as has been claimed by the prosecution. The prosecution case rests upon the fact that the accused Radha Mohan Rai was claiming passage from the land adjoining the house of the informant. The aforesaid land belongs to informant. In respect of aforesaid dispute, a panchayat was also held between the parties where Appellant had threatened the informant of taking land after killing the informant. The matter was defused in the panchayat by intervention of other persons. Subsequently, appellant along with the other accused persons had visited the place where the informant and other injured persons were sleeping and physically assaulted as a result of the same, informant and his cousin brother and uncle also sustained injuries. The accused persons were carrying lathi and country made pistol along with them. The demand for passage by Appellant on the land of informant and when the same was not given to the satisfaction of Appellant, he has tried to force the demand using physical assault. The nature of injury sustained by the injured persons is indicative of the fact that the accused persons had physically assaulted injured including the informant which arises out of the demand for passage from the land of informant. The motive of Appellant and other accused persons can be asserted from the attending circumstances. 32. Learned counsel for the appellant submitted that Section 149 of the Indian Penal Code is not attracted as no five persons were found to be involved in the aforesaid incident. In the present case, the trial court on the basis of the evidence has sustained the conviction of the appellant under Section 323 read with Section 149 and 147 of the Indian Penal Code. In the present case, the trial court on the basis of the evidence has sustained the conviction of the appellant under Section 323 read with Section 149 and 147 of the Indian Penal Code. Section 141 of the Indian Penal Code defines the unlawful assembly as an assembly of five or more persons, if the common object of the present composing that assembly is to commit any offence as enumerated therein. One of the essential ingredients of the unlawful assembly is that it should comprise of more than four persons. In the present case, as per the first information report, accused Radha Mohan Rai (Appellant), Ram Kripal and Chandra Rai along with five to six other persons came with stick and country made pistol at the place of occurrence at 11:30 PM in the night. The aforesaid case of prosecution of involvement of more than four persons in the alleged crime has been proved by P.W.1 and P.W.2. The charge in the present case was framed on 19th September, 1981 against three accused persons namely the Appellant, Ram Kripal and Chandrama. It has been stated by the prosecution witness/injured witness that they can identify the other persons who were part of the unlawful assembly on seeing them. Nothing has been brought on record to demolish the aforesaid prosecution case which is supported by reliable and trustworthy testimony of the P.W.1 and P.W.2. Under the aforesaid circumstances, apart from the three main accused persons there were 5 to 6 more persons who were involved in the alleged offence. The trial court by impugned judgment has acquitted Chandrama Rai and have convicted Appellant and Ram Kripal. 33. The Apex Court in the case of Mahendra v. State of M.P. (SC) Criminal Appeal No.30 of 2022 (Arising out of SLP(Crl.) No.6530 of 2018) decided on 5.1.2022 has observed as under:- "The legal position in regard to essential ingredients of an offence referred to in Section 149 are settled. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such 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. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such 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. It may be noted that the essential ingredients of Section 149 of Indian penal code are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. It is an essential condition of an unlawful assembly that its membership must be five or more. At the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and unnamed." 34. It is the case of the prosecution that there are other unnamed or unidentified persons other than the one who charge-sheeted and faced trial. The appellant cannot get the benefit of acquittal of the co-accused Chandrama Rai as even excluding Chandrama Rai there were other persons were part of the unlawful assembly and such persons constitute more than four persons. 35. Learned counsel for the petitioner further submitted that the prosecution case is highly improbable on account of the fact that it is not natural to sleep in the open when the house of the injured was nearby. It is to be noted that the informant was having agricultural field nearby and tube well was also available on the agricultural field of the informant. In villages it is common to sleep near the tube well, specifically when the agricultural fields are to be irrigated. It is also common that more than one person usually sleeps on the tube well as the tube well are situated in a lonely place on the agricultural field and to ensure safety many persons sleep as a security measure. In villages it is common to sleep near the tube well, specifically when the agricultural fields are to be irrigated. It is also common that more than one person usually sleeps on the tube well as the tube well are situated in a lonely place on the agricultural field and to ensure safety many persons sleep as a security measure. There is nothing unnatural about the conduct of informant and injured witnesses in sleeping near the tube well in the agricultural field. It is also to be noted that the incident alleged to have in the month of May 1980. The electricity was not coming in the village at the relevant time as is stated in the testimony of the eyewitness/injured witness. Under the circumstances sleeping in the agricultural field by itself would not make the prosecution case unbelievable or improbable. 36. It is further submitted that Chandrama Rai has been acquitted by the trial court. On the basis of acquittal of Chandrama Rai, it is stated that the appellant also entitled to the aforesaid benefit. The trial court has given the benefit of doubt on account of enmity to the co-accused however there is eyewitness account of the alleged incident in which the appellant has been named by the injured witness including the informant. The incident is supported by the injuries sustained by the injured witness which has been duly proved by the prosecution witness by examining the doctor who has prepared the injury report. Nothing has been brought by the defence before the trial court which denies the complicity of the Appellant in the alleged offence. The prosecution has proved its case by reliable evidence. 37. It is to be noted that the trial court in the impugned judgement has recorded finding that the offence under section 307 of the Indian Penal Code read with Section 34 of IPC, it is not established against the accused persons. The trial court has further recorded finding that the accused persons as per the prosecution case were also carrying firearm and spears however no injury was found on the body of the injured in respect of firearm and spear and, therefore, the charge under section 307 read with section 149 of the Indian Penal Code was held to be not established. 38. 38. The trial court has further held that the offence under section 325 read with section 149 of the Indian Penal Code cannot be maintained in the facts and circumstances of the case. 39. The accused persons were known to the complainant-informant and other injured persons and there are chances that the accused person could have been identified by their appearance and voice. It is also to be noted that the physical assault is taking place for the long time and the voice of the accused person was heard and further there was source of light at the place of occurrence which was proved by the prosecution. It is further to be seen that Madan Rai, Birendra Rai and Munni Rai were the only person who had seen the occurrence and were also the victims. There was no one else who had seen the aforesaid physical assault. Munni Rai was taken to the hospital for medical examination and treatment. All the three injured witnesses have sustained injuries and the injury report has been duly proved by the prosecution. The physical assault by the Appellant on the injured witnesses including the informant has also been proved by the prosecution by testimony of P.W.1 and P.W.2 who are the eyewitness of the alleged incident. The accused person including the appellant came along with five-six persons with the common object of committing the crime/offence and as such the trial court has committed no illegality in convicting the appellant by impugned judgement. 40. Considering the overall circumstances and submission of learned counsel for the appellant, learned A.G.A. for the State and after going through the evidence and lower court record, we are unable to persuade ourselves in taking a different opinion from that of trial court. The trial court was fully justified in convicting the accused-respondent. 41. Learned counsel for the appellant failed to point out any illegality, infirmity or perversity in the judgment of the trial court. 42. The appeal lacks merit and is, accordingly, dismissed. 43. Registrar General of this Court is directed to pay an honorarium of Rs.20,000/- to Sri Raj Kumar Sharma, learned Amicus Curiae for rendering effective assistance in the appeal. 44. Let the lower court record be transmitted back to court below along with a copy of this order.