ORDER : Shree Chandrashekhar, J. The appellants of these criminal appeals have faced the trial for the charge under sections 302/149, 307/149 of the Indian Penal Code and section 27 of the Arms Act. 2. During pendency of these criminal appeals, Sanjay Yadav who is the appellant No. 2 in Cr. Appeal (DB) No. 575 of 2012 passed away. 3. By an order dated 28th February 2023, IA No. 9898 of 2022 filed in Cr. Appeal (DB) No. 575 of 2012 has been allowed and this criminal appeal qua Sanjay Yadav has abated. 4. In ST No.70 of 1998, the surviving appellants have been convicted and sentenced to imprisonment for life under section 302/149 of the Indian Penal Code. Anil Yadav who is the sole appellant in Cr. Appeal (DB) No. 580 of 2012 has been further convicted and sentenced to RI for 5 years under section 27 of the Arms Act. 5. Mahagama P.S. Case No. 64 of 1997 was lodged on the basis of the fardbeyan of Vinod Yadav recorded by the officer-in-charge of Mahagama Police Station at 09:20 AM on 16th August 1997 at village Dharmodih. The informant has stated in his fardbeyan that Anil Yadav, Lalan Yadav, Yogendra Yadav, Kailash Yadav, Jamri Yadav, Sanjay Yadav, Katki, Rajendra Yadav, Parmeshwar Yadav, Fuleshwar Yadav,Murlu Yadav and 15-20 other accused variously armed with lathi, bhala, farsa and Nalkatua (country-made firearm) suddenly started firing and in the occurrence his daughter died on the spot. In course of the investigation, complicity of other accused who were not named in the First Information Report has also transpired but most of them have remained absconder. 6. The prosecution case is that in the morning of 16th August 1997 a quarrel ensued between two groups of villagers. At that time, Anil Yadav and others started obstructing cremation of Tej Narayan Yadav insisting that the dispute regarding the land of Thakur Ji should be resolved first. Bechan Yadav has stated that Anil Yadav, Lalan Yadav, Kailash Yadav, Sanjay Yadav, Gunsagar Yadav, Mahesh Yadav, Sargun Yadav and Permanand were carrying masket/gun/country-made gun and Jawahar Yadav and Katki were armed with bhala and Permeshwar Yadav was wielding a lathi. All the prosecution witnesses except Satya Narayan Yadav have stated in unison that the accused persons started the quarrel and fired at the prosecution party. 7. All the prosecution witnesses except Satya Narayan Yadav have stated in unison that the accused persons started the quarrel and fired at the prosecution party. 7. A charge-sheet was laid against 11 persons out of whom 9 persons who are the appellants in these criminal appeals were put on trial. 8. To support the charge of forming an unlawful assembly with common object to murder Lata Devi and attacking Pramod Yadav with an intention to kill him, the prosecution has examined 9 witnesses during the trial. Except Dr. Dilip Kumar Choudhary who has tendered the evidence as PW9, the other witnesses happen to be co-villagers of Vinod Yadav PW7. 9. During the trial, these appellants have denied the charges framed against them for murder of Lata Devi and attempt to murder Pramod Yadav and have produced 3 witnesses in defence to prove their innocence. The defence set up by the accused is that there was a long-standing dispute and rivalry between two groups of villagers one led by Anil Yadav who is the appellant in Cr. Appeal (DB) No. 580 of 2012 – the other group was of Fagu Yadav. 10. The trial Judge has held as under: “18. The learned lawyer of the defence has argued that Lata was not killed by these accused persons rather she received injury fired from the goot of opposite party who are criminals and they have been convicted in two murder cases. Further the learned lawyer has argued that there was no intention or motive to kill Lata Devi of these accused persons because there was no enmity with Lata Devi with these accused persons. Further stated that out of 16 witnesses in charge-sheet only 9 witnesses have been examined by the prosecution. Therefore case of prosecution is totally doubtful. It has been also submitted that I.O of this case has not been examined. 19. From perusal of evidence on the record of both the side and after hearing the argument of both the learned lawyer and learned Addl. P.P it has been found that prosecution has examined 9 witnesses including Dr. to prove its case. P.W.7 Mahesh Yadav is informant of this case and this witness has clearly stated that all the accused persons armed with various fire arms and other weapons assembled near his darwaja and accused Anil Yadav fired and Lata Devi received fire arm injury and became died. to prove its case. P.W.7 Mahesh Yadav is informant of this case and this witness has clearly stated that all the accused persons armed with various fire arms and other weapons assembled near his darwaja and accused Anil Yadav fired and Lata Devi received fire arm injury and became died. P.W.1 to 8 all have stated that accused Anil Yadav fired his masket and due to the fire arm injury of Anil Yadav, Lata died. There is no contradiction on that point. On the point of time of occurrence, place of occurrence and manner of occurrence there is no contradiction among the version of prosecution witnesses. P.W.9 Dr. Dilip Kumar Choudhary has made P.M report of Lata Devi and he has also found that Lata Devi was died due to fire arm injury. P.W.7 has stated that on same day Shivnandan Yadav was also murdered. It has come in evidence that there was land dispute in between both the parties and due to protesting of cremation of Tejnarayan Yadav the occurrence took place. P.W.5 Manilal Yadav has stated that Anil Yauav fired upon Satyanarayan Yadav but the bullet hit to Lata Devi and she became died. P.W.4 Bechan Yadav has admitted that there is two groups in his village. One group is headed by Pappu Yadav and other is of Anil Yadav. Therefore, it is admitted fact that both the goots are quarrelling for land dispute and there are several cases in between both the groups. It has come in evidence that all the accused persons armed with various weapons started firing and on firing of Anil Yadav, Lata Devi died. Learned lawyer has submitted that rest accused persons except Anil Yadav have no involvement in the above occurrence. Therefore, they could not be found guilty u/8-302 I.P.C. Section 149 I.P.C makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful act committed pursuant to the object by any other member of that assembly. Once the case of a person falls within the ingredients of this section the fact that he did nothing with his own hands would be immaterial. The section creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful act committed pursuant to the object by any other member of that assembly. Once the case of a person falls within the ingredients of this section the fact that he did nothing with his own hands would be immaterial. In this case it has been proved by the prosecution witnesses that all the accused persons by making unlawful assembly armed with various weapons assembled and one member Anil Yadav fire in result Lata Devi died. Considering above facts and circumstances of the case it has been safely concluded that prosecution has proved its case beyond all reasonable doubt against the accused persons. Therefore, accused Anil Yadav, Jawahar Yadav, Mohril Yadav, Kailash Yadav, Sanjay Yadav, Lalan Yadav, Mahesh Yadav, Katki Yadav anu Sargun Yadav have been found gailty u/s-302/149 I.P.C. Other alleged injured persons such as Pramod Yadav has been not examined in this case and no injury report is on the record which show that any other person has received any injury. Therefore, section 307/149 I.P.C is not proved. The prosecution witnesses have fully supported the fact that accused Anil Yadav fired upon his masket due to that Lata Devi died. Therefore, accused Anil Yadav also found guilty u/s-27 Arms Act. The accused persons are on bail. Their bail bonds stands cancelled and they have been taken into custody.” 11. Mr. A.K. Kashyap, the learned senior counsel for the appellants has challenged the judgment of conviction of the appellants in ST No. 70 of 1998 inter alia on the following grounds: (i) The conviction with the aid of section 149 of the Indian Penal Code is improper and, at best, the appellants can be convicted for their individual role in the occurrence. (ii) The absence of motive on the part of Anil Yadav to commit murder of Lata Devi shall bring his case within the purview of section 304 Part I of the Indian Penal Code and (iii) non-examination of the Investigating Officer in the trial has caused serious prejudice to the appellants on account of which lessor punishment may be awarded to the appellants. 12. PW1 Bechan Yadav is a co-villager and an eyewitness. 12. PW1 Bechan Yadav is a co-villager and an eyewitness. He has stated that on 16th August 1997, at about 08:00 AM, he was talking to other co-villagers about cremation of Tej Narayan Yadav who had died the last night. However, the accused persons who were forcibly trying to take over land of Thakur Ji started a ruckus saying that first the land dispute should be settled. According to PW1, the first fire was made by Anil Yadav who was armed with Muskat as a result of which Lata Devi died. In his cross-examination he has stated that there are 100/125 cases between both the parties. He has admitted that he is an accused in murder case of Shivnandan Yadav who died on 16th August 1997 and was in jail in connection with Mahagama PS Case No. 65 of 1997. He has further stated that the police had reached the place of occurrence when the firing was continuing but on seeing the police the accused fled away and, that, the police had collected empty cartridges from the place of occurrence. PW2 Shri Prasad Yadav who claims to be an eyewitness has stated that the accused persons were engaged in a quarrel with the informant party over the cremation of Tej Narayan. He has deposed in the Court that upon instruction of Parmeshwar Yadav firing took place which caused injury to Lata Devi and she died on the spot. He has also admitted that he is an accused in the murder case of Shivnandan Yadav. PW3 Satya Narayan Yadav who also claims to be an eyewitness has stated that upon Parmeshwar Yadav's exhortion and call Anil Yadav opened fire as a result of which Lata Devi died. He has stated that Lata Devi received firearm injury on her back which came out through her chest. He has further stated that the reason behind the occurrence is death of Tejo Raut on the previous night of the present occurrence; the accused were obstructing to the cremation of deadbody unless the land dispute is settled, and; in connection to the same disputed land three persons were awarded death sentence and others have been sentenced for life on the previous occasions. PW4 Prayag Yadav has stated similar facts that the death of Tejo Raut was one day prior to the present occurrence and, that, the accused were objecting to the cremation of body unless the land dispute is settled. He has further stated about land dispute between the parties for about last 4 years and call for Parmeshwar Yadav whereupon Anil Yadav opened fire as a result of which Lata Devi died. PW5 Muni Lal Yadav has stated that there were two injured persons, namely, Lata Devi (deceased) and Pramod Yadav and the reason behind the occurrence was dispute over the land of Manmohan Thakur which the accused wanted to capture forcibly and, that, there have been five murders due to the said land dispute. PW 6 Baleshwar Yadav has stated that upon instruction of Parmeshwar, Anil Yadav opened fire upon Lata. He is a hearsay witness as he reached the place of occurrence upon hearing hulla that Lata has been murdered. He is nephew of the informant and has stated that he does not know who killed Lata Devi. PW 7 Binod Yadav is father of the deceased who is also the informant of the case. He has stated that upon instruction of Parmeshwar, Anil Yadav opened fire upon Lata Devi which caused firearm injury on her chest and Pramod Yadav also got injured from Anil Yadav's musket. He has further stated that there was a long-standing land dispute with the accused persons. He has stated that the accused persons did not come to his door rather they were firing from nahar. PW 8 Umesh Yadav has stated that upon hearing hulla he rushed towards the gate of Satan and saw Anil Yadav firing from his musket which injured Lata Devi. 13. We have perused the materials on record and carefully examined the evidences produced by the parties in ST Case No.70 of 1998. Insofar as defence evidence tendered through DW1, DW2 and DW3 is concerned, these witnesses have deposed in the Court that both parties have arrived at a compromise. These defence witnesses who have professed in the Court that they have seen the occurrence or were present in the village at the time of the occurrence have also stated that the appellants were not involved in murder of Lata Devi. But, at the same time, these witnesses have also not revealed the name of real culprit(s). These defence witnesses who have professed in the Court that they have seen the occurrence or were present in the village at the time of the occurrence have also stated that the appellants were not involved in murder of Lata Devi. But, at the same time, these witnesses have also not revealed the name of real culprit(s). In our opinion, the evidence tendered by the defence witnesses is not sufficient to discard the prosecution evidence. Such is the nature and quality of the defence evidence that not even a doubt can be said to have been created about the prosecution story of firing by the appellant which caused death of Lata Devi. PW1, PW2, PW3, PW4 and PW5 who have been projected by the prosecution as eyewitness have fully supported the informant who has been examined as PW7. 14. PW 9 Dr. Dilip Kumar is the doctor who conducted post mortem. He has found two firearm injury; one wound was on the entry on the back of chest. The wound was circular and one cm in diameter, margin entered and blackened. One wound of exit was found on the front of chest. The prosecution story that Lata Devi has succumbed to firearm injury is fully corroborated from the medical evidence tendered through PW9: “Antemortem Injuries found on her person:-Two fire arm wounds found on her person, one wound of the entery on the back of the chest 1/½” right to midline at the level of the lower angle of scapula the wound being circular and 1 cm is diameter the margin intterted and blackened and the clothing at the site was torn and jarred. One wound of exit was found on the front of chest 1/½” medfal and 3/4” below the right nipple, margin averted and the being 1.5 cm in diameter. On dissection:-i. Head & neck:-scalp, skull, membralu were intact, brain was pale, trachea laryax and oesophagus were intact. ii. Thorax:-Two ribs 6th and 7th were broken at their costalhondral region, pleura was torn both anteriorly and posteriorly, the right middle and lower lobe of lung was lacerated torn, the mediastinum was lacerated and the right atrium was torn, arota was intact. On sectioning the lung tissue was pall. All the chambers of the heart was empty. The direction of the firearm bullet being from behind forward and lateral to medialward. iii. On sectioning the lung tissue was pall. All the chambers of the heart was empty. The direction of the firearm bullet being from behind forward and lateral to medialward. iii. Abdomen:-Abdominal wall intact, the stomach was empty and small intestine was containing a little gas, the huge intestine was containing taecal matter and gases. The liver, spleen, kidneys were pale on section. Bladder was empty uterus small. iv. External genitalia:-External genitalia was intact and there was no pubic hair. Nature or injury Grievous Cause of injury Firearm bullet Time since death within 12 hours Cause of death In my (Dr.'s) opinion the cause of death is shock and haemorrhage due to above mentioned injuries leading to cardio respiratory failure and ultimately death.” 15. There was a cross case vide Mahagama P.S. Case No. 65 of 1997 in which the allegation of firing at Shivanand Yadav has been levelled against Pappu Yadav who however is not a witness in ST No. 70 of 1998. In the course of cross-examination of the prosecution witnesses, the defence has elicited from PW1, PW2 and PW7 that Shivanand Yadav was murdered on 16th August 1997 at village Dharmodih in respect of which Mahagama PS Case No. 65 of 1997 was lodged at the instance of Mahesh Yadav who is an accused (A-7) in ST No. 70 of 1998. PW1 has admitted in his cross- examination that he has been made an accused for murder of Shivanand Yadav in Mahagama PS Case No.65 of 1997. He has further admitted that Tej Narayan Yadav is his maternal uncle-in-law. PW2 has also admitted in the Court that his two sons are accused in the murder of Shivanand Yadav. PW3, PW4, PW5 and PW6 have all admitted in the cross-examination that there was a land dispute between two groups of the villagers. 16. To prove rivalry and animosity with the prosecution party the defence has laid in evidence the judgments in SC No. 15 of 1995/89 of 1996 vide Ext.A; SC No. 46 of 1998/390 of 1998 vide Ext. A/1; order dated 27th February 1998 in Crl. Misc. No.1023 of 1997 and; in so far as Ramjee Singh who has been examined as PW8 in SC No. 46 of 1998 vide Ext.B. 17. In the first place, any material relating to Mahagama PS Case No. 65 of 1997 was not laid in evidence in the present case. A/1; order dated 27th February 1998 in Crl. Misc. No.1023 of 1997 and; in so far as Ramjee Singh who has been examined as PW8 in SC No. 46 of 1998 vide Ext.B. 17. In the first place, any material relating to Mahagama PS Case No. 65 of 1997 was not laid in evidence in the present case. According to Mahesh Yadav who is the informant in Mahagama PS Case No. 65 of 1997, Shivanandan Yadav had died and others were injured in the firing resorted to by the prosecution party of the present case. However, the medical evidence of the said case has not been brought on the record of ST No. 70 of 1998 to set-up a defence of free fight between both the groups. Moreover, even where a witness has a bad antecedent which may be made a ground to indicate that the witness had a possible motive to harm the accused, the testimony of such a witness is not discarded in toto. While examining the testimony of such a witness, the Court is required to see whether there is evidence of the witness deposing falsely in the Court. Where the Court finds the testimony of such a witness not tainted with ulterior motive the same is accepted and relied upon by the Court. The criminal antecedent of some of the prosecution witnesses and a counter case lodged by one of the appellants of the present case would have been relevant for the purpose of examining whether it was a case of firing in self defence. However, no such case has been projected on behalf of the appellant nor is there any material to infer that the appellants resorted to firing in self defence. The prosecution evidence against Anil Yadav is clear, cogent and consistent and there is no doubt that he has caused fire arm injury to Lata Devi on account of which she has died. 18. Mr. A.K. Kashyap, the learned senior counsel for the appellants would submit that in absence of the Investigating Officer, the appellants were handicapped insofar as to elicit from him the details about the place of occurrence which has been seriously challenged by them. 19. There is no law of universal application that non-examination of the Investigating Officer shall cause such prejudice to the accused facing the trial on a serious charge of murder that the trial itself would vitiate. 19. There is no law of universal application that non-examination of the Investigating Officer shall cause such prejudice to the accused facing the trial on a serious charge of murder that the trial itself would vitiate. It is the nature of prejudice caused to the accused in respect of which a specific stand must be put forth on behalf of the accused which has to be examined having regard to the facts and circumstances of the case. In a case of this nature in which as many as 6 prosecution witnesses have tendered evidence as eyewitness, merely raising a ground that non-examination of the Investigating Officer has caused serious prejudice to the appellants is not sufficient. 20. On non-examination of the investigating officer, in “Behari Prasad v. State of Bihar” (1996) 2 SCC 317 , the Hon’ble Supreme Court has observed as under: “23. ............We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. ..........” 21. Mr. A.K. Kashyap, the learned senior counsel for the appellants has submitted that there is no consistency in the evidence of the prosecution witnesses as regards manner of occurrence. In “Ramesh v. State of U.P.” (2009) 15 SCC 513 the Hon'ble Supreme Court has observed that the minor contradictions, inconsistencies, exaggerations and embellishments in the testimony of the prosecution witnesses are bound to happen but they by themselves may not challenge credibility of the witness. All the prosecution witnesses are co-villagers and their presence at the time of occurrence is quite possible. They are competent witnesses who have tendered such evidence in the Court which does not admit any doubt about participation of the appellants in the crime. All the prosecution witnesses are co-villagers and their presence at the time of occurrence is quite possible. They are competent witnesses who have tendered such evidence in the Court which does not admit any doubt about participation of the appellants in the crime. According to the prosecution, the time of occurrence is at about 08:30 AM and an information in this regard was promptly lodged with the Mahagama PS and pursuant thereto fardbeyan of the informant has been recorded at 09:20 AM the same day. Notwithstanding the prosecution witnesses being labeled interested, there was little time for the informant to fabricate a false story to implicate the appellants in the occurrence. 22. Mr. A.K. Kashyap, the learned senior counsel for the appellants has submitted that there is general allegation of firing against others also and PW3 has specifically stated in the Court that Anil Yadav had intended to fire at Pramod Yadav. Therefore, the learned senior counsel has next submitted that intention to cause death of Lata Devi cannot be imputed to Anil Yadav and while so Anil Yadav can be convicted under section 304 Part I of the Indian Penal Code. 23. Section 300 of the Indian Penal Code reads as under: “300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— 2ndly.—If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— 3rdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— 4thly.—If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.” 24. A glance at the aforesaid provisions under section 300 of the Indian Penal Code would make it clear that in every case it is not necessary to prove that the accused had intended to cause death. A glance at the aforesaid provisions under section 300 of the Indian Penal Code would make it clear that in every case it is not necessary to prove that the accused had intended to cause death. As per the opinion of Doctor the cause of death is shock and haemorrhage due to above-mentioned injuries leading to cardio respiratory failure and ultimately death. This is also important to indicate that a charge under section 27 of the Arms Act has been framed only against Anil Yadav who has been found guilty and sentenced to RI for 5 years under section 27 of the Arms Act. All the prosecution witnesses have made specific allegation against Anil Yadav of firing which hit Lata Devi. This act of Anil Yadav falls under clause Fourthly of section 300 of the Indian Penal Code inasmuch as he must be imputed with the knowledge that his act was so imminently dangerous that in all probability it would have caused death or such bodily injury which was likely to cause death. 25. Having regard to the aforesaid facts and circumstances in the case, we are satisfied that the prosecution witnesses are reliable and trustworthy. The prosecution has proved the case against Anil Yadav for committing murder of Lata Devi beyond reasonable doubt. Accordingly, Anil Yadav is held liable for committing murder of Lata Devi and his conviction under section 302/149 of the Indian Penal Code is converted into one under 302 of the Indian Penal Code. 26. However, the finding that all the accused persons shared the same common object has been seriously challenged by the appellants. The learned senior counsel for the appellants has submitted that the appellants in Cr. Appeal (DB) No.575 of 2012 against whom no specific overt act has been proved by the prosecution cannot be convicted for committing murder of Lata Devi with the aid of section 149 of the Indian Penal Code. The learned senior counsel has made submissions on behalf of these appellants with reference to “Ananta Kathod Pawar v. State of Maharashtra” (1997) 11 SCC 564 ; “State of Haryana v. Chandvir” (1996) 8 SCC 678 and; “Parsuram Pandey v. State of Bihar” (2004) 13 SCC 189 to fortify this contention. 27. Though the charge under section 307/149 of the Indian Penal Code has failed, the involvement of the appellants in Cr. Appeal (DB) No.575 of 2012 cannot be doubted. 27. Though the charge under section 307/149 of the Indian Penal Code has failed, the involvement of the appellants in Cr. Appeal (DB) No.575 of 2012 cannot be doubted. 28. Section 149 of the Indian Penal Code creates vicarious liability of other accused who formed an unlawful assembly as provided under section 141. The participation with a common object contemplates two situations viz. (i) participation in action as a member of the unlawful assembly and (ii) being a member of the unlawful assembly having knowledge of the common objects. In “Adalat Pandit v. State of Bihar” (2010) 6 SCC 469 , the Hon'ble Supreme Court has observed that the accused who were bystanders at the time when murder took place cannot be roped in either with the aid of section 34 or section 149 of the Indian Penal Code. 29. In “Joseph v. State Rep. by Inspector of Police” (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts: 11.1. The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. 11.2. The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed. 11.3. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.” 30. In our opinion, the prosecution evidence particularly evidence of PW7 creates serious doubt about the appellants in Cr. Appeal (DB) No.575 of 2012 that they shared common object to commit murder of Lata Devi, or that they had knowledge of such common object of the unlawful assembly. 31. In paragraph no.3 of his cross-examination, PW7 has stated as under: ^^3- esjk [ksr esjs ?kj ls nks&rhu lkS xt dh nwjh ij gSA esjs lkFk esjh ekWa] esjk HkkbZ thrHkku ;kno FkkA vxy&cxy es cgqr lk vkneh FkkA eSa gYyk lwuk ctjaxcyh ds uke dk rc ogkWa ij ls nkSM+sA vk;s rc xksyh pyhA esjs ?kj ls esjk [ksr nf{k.k gSA nf{k.k ls eSa mRrj nkSM+kA pkikdy esjs ?kj ls if'pe rjQ gSA lR;ukjk;.k ;kno ds cklk ds ikl pkikdy gSA tc ge igq¡ps rc ogkWa ij ugj ds ikl ipkl&lkB vkneh tek FkkA ugj gekjs ?kj ls chl&ipkl gkFk dh nwjh ij gSA f'kouUnu ds yk'k dks ge yksx ugha ns[k jgs Fks f'kouUnu ds yk'k dks mldk ikVhZ okyk ns[krk FkkA geyksx vius csVh dk yk'k ns[k jgs Fks rc iqfyl vkbZ iqfyl nksuksa ds yk'k dks mBkdj ys xbZA tc ge ogkWa igq¡ps rc pkikdy ij ik¡p FksA ik¡pks vkneh iSj /kks jgs FksA eqnkyg yksx esjs njokts ij ugha vk;k ugj ls xksyh pyk jgk FkkA ch iPphl uky xksyh ,d ?kaVk rd pykA lc yksx vius&vius ?kj esa ?kql x,A xksyh pyus ds ckn dkSu&dkSu ckgj vk;k dg ugha ldrk gw¡A geyksx lHkh ifjokj ogha ij [kM+s FksA fluk esa xksyh yxhA xksyh yxrs gh yrk fxj xbZA xksyh pyus ij fdlh dks yx ldrh gSA** English Translation “3. Field of Informant is situated at a distance of about 200300 yards. Field of Informant is situated at a distance of about 200300 yards. Along with him, his mother, his brother namely Jeet Bhaan Yadav were there. Alongside there were lot of people around. I heard hulla "Bajrang Bali" and went there running, when I reached, then firing was made. My field is towards south of my house. I ran from south to north direction. Hand Pump is towards west of my house. Handpump is near Basa (open filed) of Satyanarayan Yadav. When I reached, there were 50-60 people near the canal. The canal is almost a distance of 20-50 hands from my house. We were not seeing dead body of Shivnandan. Dead body of Shivnandan was looked upon by his party. We were seeing our daughter's dead body, then the police arrived. Police took away dead body of both. When I reached, there were 5 people near the handpump. All 5 persons were washing legs. Accused persons did not come to my door. There were firing from the canal. 20-25 rounds of firing was made for about one hour. All the people went inside their respective houses. After firing who all came out, I cannot say. We all family members were standing there, only firing was made on chest. Soon after being shot, Lata fell down. Firing can hurt anyone.” 32. However, the appellants in Criminal Appeal (DB) No. 575 of 2012 were member of the unlawful assembly is not in doubt. The prosecution has laid sufficient material to infer that these appellants had knowledge that in prosecution of the common object grievous injuries may be caused. 33. Therefore, the conviction and sentence of the appellants in Cr. Appeal (DB) No.575 of 2012 under section 302/149 of the Indian Penal Code are set-aside. 34. Having regard to the evidence laid by the prosecution against these appellants, they are convicted and sentenced to RI for 5 years under section 304 Part II of the Indian Penal Code. 35. Let a fresh conviction warrant be prepared in ST No.70 of 1998 upon receipt of a copy of this order. 36. Cr. Appeal (DB) No.580 of 2012 is dismissed with the modification in the order of conviction as indicated in this order. 37. Cr. Appeal (DB) No.575 of 2012 is partly allowed in the aforesaid terms. The bail-bonds furnished by the appellants shall stand cancelled. 38. 36. Cr. Appeal (DB) No.580 of 2012 is dismissed with the modification in the order of conviction as indicated in this order. 37. Cr. Appeal (DB) No.575 of 2012 is partly allowed in the aforesaid terms. The bail-bonds furnished by the appellants shall stand cancelled. 38. Let the lower Court records be sent to the Court concerned forthwith. 39. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'FAX'.