JUDGMENT : Munnuri Laxman, J. 1. The challenge in the present appeal is to the judgment dated 05.01.1995 passed by the learned Sessions Judge, Balotara on the file of Sessions Case No.31/1992, wherein and whereby the appellants-accused were convicted and sentenced as below:- S. No. Appellants- Accused Conviction for offence Sentence imposed 1 Shanker Singh u/Sec. 302 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s RI. u/Sec. 325/149 IPC to undergo 2 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 2 Pokar Singh u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376 /120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324 IPC to undergo 1 year’s R.I. u/Sec. 325/149 IPC to undergo 2 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 3 Babu Lal u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376/120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s RI. u/Sec. 325/149 IPC to undergo 2 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 4 Khangara Ram u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376/120B IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323 IPC to undergo 1 year’s R.I. u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s RI. u/Sec. 325/149 IPC to undergo 2 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 5 Dhanna Ram u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376 /120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323 IPC to undergo 1 year’s R.I. u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s R.I. u/Sec. 325/149 IPC to undergo 2 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 6 Bhalla Ram u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376 /120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323 IPC to undergo 1 year’s R.I. u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s R.I. u/Sec. 325/149 IPC to undergo 2 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 7 Aidan Gawariya u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376 /120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323 IPC to undergo 1 year’s R.I. u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s R.I. u/Sec. 325/149 IPC to undergo 2 years R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 8 Bhop Singh S/o Tejsingh u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376/120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 323 IPC to undergo 1 year’s R.I. u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s RI. u/Sec. 325/149 IPC to undergo 2 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 9 Kalji u/Sec. 302/149 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation, 6 months additional imprisonment u/Sec. 376/120 IPC to undergo life imprisonment and a fine of Rs.1000/-; in default stipulation 6 months additional imprisonment u/Sec. 366 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 459 IPC to undergo 7 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 324 IPC to undergo 1 year’s R.I. u/Sec. 323/149 IPC to undergo 1 year’s R.I. u/Sec. 324/149 IPC to undergo 1 year’s RI. u/Sec. 325/149 IPC to undergo 2 years’ R.I. and a fine of Rs.500/-; in default stipulation 3 months additional imprisonment u/Sec. 148 IPC to undergo 2 years’ R.I. 2. For the sake of convenience, accused shall be referred to by their nomenclature in the order of conviction dated 05.01.1995 i.e Shankar Singh (A-1), Pokar Singh (A-2), Babu Lal (A-3), Khangara Ram (A-4), Dhanna Ram (A-5), Bhalla Ram (A-6), Aidan Gawariya (A-7), Aidan Bheel (A-8), Shaitan Singh (A-9), Bhop Singh S/o Bheem Singh (A-10), Kalyan Singh (A-11), Bhop Singh S/o Tej Singh (A-12), Mohan (A-13), Kalji (A-14) and Ganpat Singh (A-15). 3. The sum and substance of the prosecution case is that Shankar Singh (A-1) was engaged with PW-16 ‘X’, the daughter of Narsingh (deceased) and PW-1 Jhamku. The family of Shankar Singh (A-1) were expelled from their community. Subsequent to engagement of A-1 with PW-16 ‘X’, the engagement was cancelled on account of out-casting of the family of the accused from their community. Subsequently, on the night of 14.07.1992 at about 2:00 a.m., accused-persons (A-1 to A-15), Bhanwar Singh and Chhoga Ram (died during trial) came in the jeep holding dharia (a weapon like knife) and lathies (sticks). Initially, Shankar Singh (A-1), Mohan (A-13) and Pokar Singh (A-2) allegedly forcibly lifted PW-16 ‘X’ into the jeep. Accused-Shankar (A-1) and accused-Mohan (A-13) allegedly inflicted injuries by dhariya on the deceased. Accused-Pokar Singh (A-2), accused-Kalji (A-14), accused-Bhop Singh (A-12), accused-Ganpat (A-15) inflicted injuries by dhariya and lathis on Pukhraj (PW-5), the nephew of the deceased. Initially, Shankar Singh (A-1), Mohan (A-13) and Pokar Singh (A-2) allegedly forcibly lifted PW-16 ‘X’ into the jeep. Accused-Shankar (A-1) and accused-Mohan (A-13) allegedly inflicted injuries by dhariya on the deceased. Accused-Pokar Singh (A-2), accused-Kalji (A-14), accused-Bhop Singh (A-12), accused-Ganpat (A-15) inflicted injuries by dhariya and lathis on Pukhraj (PW-5), the nephew of the deceased. Accused-Pokar Singh (A-2) and accused-Dhanna Ram (A-5) and two other accused inflicted stick injuries on PW-1 Smt. Jhamku, wife of the deceased. Accused-Chhoga Ram (died during trial) and accused-Kalji (A-14) inflicted injuries with lathis on Smt. Bhanwari (PW-2), wife of Pukhraj. Accused Kalji also hit Mohan (PW-14), brother of the deceased. The other persons were allegedly part of the unlawful assembly whose object was to kidnap PW-16 ‘X’ and in the process of kidnapping, they cleared all the obstructions by causing either death or the injuries to the family members of PW-16 ‘X’. While carrying out such a common object, accused-Shankar Singh (A-1) and accused-Mohan (A-13) allegedly caused injuries by dhariya on the body of the deceased-Nursingh resulting in his death amongst the other injuries caused to other family members. Subsequently, accused-Shankar Singh (A-1) forcibly committed rape on PW-16 ‘X’ by putting her in fear of death. On the basis of the above allegations, the police issued the FIR No.70/1992 at Police Station Samdari, Distt. Barmer for the offence under Sections 147, 148, 149, 458, 307, 366, 323 of IPC and commenced investigation. 4. Initially, chargesheet was laid against 13 accused i.e. A-1 to A-12 and Bhanwar Singh. Accused-Ganpat Singh (A-15) absconded. Subsequently, accused-Bhanwar Singh was discharged from the charges and accused-Mohan (A-13) and Kalji (A-14) were added as accused. Barmer for the offence under Sections 147, 148, 149, 458, 307, 366, 323 of IPC and commenced investigation. 4. Initially, chargesheet was laid against 13 accused i.e. A-1 to A-12 and Bhanwar Singh. Accused-Ganpat Singh (A-15) absconded. Subsequently, accused-Bhanwar Singh was discharged from the charges and accused-Mohan (A-13) and Kalji (A-14) were added as accused. On the basis of the material available on record, charges against A-1 to A-14 were framed as follows:- 1 Shankar Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 2 Pokar Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 3 Babu Lal Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 4 Khangara Ram Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 5 Dhanna Ram Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 6 Bhalla Ram Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 7 Bhanwar Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 8 Aidan Gawariya Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 9 Aidan Bheel Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 10 Shaitan Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 11 Bhop Singh S/o Bheem Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 12 Kalyan Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 13 Bhop Singh S/o Tej Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC 14 Gapsingh @ Ganpat Singh Section 302, 376, 366, 458, 147, 148, 149, 323 of IPC (Accused is absconding) 5. The charges were read over and explained to the accused, to which they pleaded not guilty and claimed trial. 6. The prosecution to establish charges examined as many as 31 witnesses and relied upon the documents under Exhibit-P/1 to P/72. Accused in their statements under Section 313 Cr.P.C. denied all the incriminating evidence against them. Accused examined DW-1 Smt.Khama, who is sister of Pukhraj and wife of Dileep (brother of accused-Shankar) and relied upon the documents Exhibit-D/1 to D/11. 7. The prosecution to establish charges examined as many as 31 witnesses and relied upon the documents under Exhibit-P/1 to P/72. Accused in their statements under Section 313 Cr.P.C. denied all the incriminating evidence against them. Accused examined DW-1 Smt.Khama, who is sister of Pukhraj and wife of Dileep (brother of accused-Shankar) and relied upon the documents Exhibit-D/1 to D/11. 7. The trial court acquitted Aidan (A-8), Shaitan Singh (A-9), Bhop Singh (A-10), Kalyan Singh (A-11) and Mohan (A-13) from all the charges, whereas Shankar Singh (A-1), Pokar Singh (A-2), Babu Lal (A-3), Khangara Ram (A-4), Dhanna Ram (A-5), Bhalla Ram (A-6), Aidan Gawariya (A-7), Bhop Singh (A-12) and Kalji (A-14) were acquitted of the charge for offence under Sections 343 of IPC. A-1 to A-7, A-12 and A-14 were convicted and sentenced for the offences as indicated herein-above. Hence, the present appeal is at the instance of accused A-1 to A-7, A-12 and A-14. During the pendency of the appeal, accused-Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) died. There is no appeal from the State against the acquittal of the remaining accused. 8. The present appeal is confined to the sustainability of the conviction of appellants-Shankar Singh (A-1), Pokar Singh (A-2), Babu Lal (A-3), Khangara Ram (A-4), Dhanna Ram (A-5), Bhalla Ram (A-6), Aidan Gawariya (A-7), Bhop singh S/o Tej Singh (A- 12) and Kalji (A-14) for the offences charged. 9. The contention of the learned counsel appearing for the appellants-accused is that initially, an oral information was given by Mag Singh, Ex-Sarpanch of the village, with the police on 14.07.1992 at about 3:45 a.m. and issuance of FIR basing on statement of injured PW-5 Pukhraj recorded in the hospital, which was reduced into writing by the police officer, was impermissible. The statement of Pukhraj, which is foundation for the issuance of FIR is nothing but a statement made under Section 161 Cr.P.C. Since it was signed by PW-5, the same is hit by Section 162 Cr.P.C. and such statement cannot be treated as First Information. 10. The learned counsel further submitted that FIR basing on the report of Mag Singh was not issued because the names of limited accused were reflected in the report. The police with connivance of the witnesses wanted to over implicate the other accused, who were not connected with the above charges. 10. The learned counsel further submitted that FIR basing on the report of Mag Singh was not issued because the names of limited accused were reflected in the report. The police with connivance of the witnesses wanted to over implicate the other accused, who were not connected with the above charges. The learned counsel also contended that the initial information given by Pukhraj to Mag Singh, Ex-Sarpanch of the village, do not contain the name of Kalji and other accused. It was an afterthought to implicate Kalji as one of the accused in the case, which is result of deliberation. 11. The learned counsel appearing for the appellants-accused also contended that testimony of eyewitnesses with regard to weapons used and nature of injuries caused to the deceased were in conflict with the injuries noted by the doctor, who conducted the postmortem examination on the deceased. The postmortem examination refers that the injuries to the deceased were result of blunt weapon. Whereas the weapons allegedly used according to the prosecution witnesses could only cause incised wounds and not blunt injuries. This ocular evidence must be discarded since it is against medical evidence. 12. The learned counsel also contended that invocation of Sections 149 & 120-B of IPC against the other accused for the charged offences of murder and rape was wrongly made since there was no material before the trial court to show that common object of the alleged unlawful assembly was to commit murder of the deceased-Narsingh. There was no conspiracy on the part of other accused with accused-Shankar Singh so as to commit rape on the victim ‘X’. According to him, conviction of accused other than A-1 for the charged offences of Section 302 and 376 of IPC by invoking Section 149, 120-B of IPC is unsustainable. 13. The learned counsel for the accused-appellants further contended that in the First Information Report lodged by Ex-Sarpanch of the village, there was no reference of A-1 causing head injury to the deceased-Narsingh and subsequent statement was a foundation for implication of A-1 for the fatal injury caused to the deceased and such afterthought evidence cannot be made basis for convection of A-1. 14. 14. The learned counsel further contended that the conviction of A-1 for the offence under Section 376 of IPC was erroneous for the reason that PW-16 ‘X’ is the married wife of A-1 and there is no question of commission of rape on married wife. It is also his contention that ingredients of offence under Section 458 of IPC is also not made out. Therefore, he prayed to allow the appeal and acquit the appellants for the offences charged. 15. The learned Public Prosecutor appearing for the State has submitted that the information furnished by the Ex-Sarpanch of the village was incomplete, as such, it was not taken foundation for registering the FIR. The Police Officer rushed to the hospital where the injured was admitted and oral information of the injured-Pukhraj was taken and thereafter, the FIR was issued. Therefore, the contention that suppression of report lodged by Mag Singh would arise only if it is written report. The cross-examination of PW-4 Mag Singh, who was cited as a witness of seizure memo shows that he along with one Doongar Singh were accompanying with the injured in the bus. He and Doongar Singh alighted from the bus at police station and informed the Police Officer about the incident. It is not the case of the accused that any specific report has been lodged by Mag Singh incorporating the details of the incident. The cross-examination of PW-4 only refers that the incident was reported to police by Mag Singh and Doongar Singh. There is no reference of any written report so as to suppress the information. Therefore, such a contention has no consequence. 16. The learned Public Prosecutor also contended that the oral report of Pukhraj (PW-5), which was reduced into writing was not hit by Section 162 Cr.P.C. since it is not a statement recorded under Section 161 Cr.P.C. but it is an oral report, which was reduced into writing and was basis for issuing the FIR. Therefore, this contention has also no legs to stand. 17. The learned Public Prosecutor also submitted that there is no over implication and the report of PW-5 Pukhraj clearly indicates that it is not result of any deliberations and if it is result of deliberations, he would have mentioned names of all the accused, who participated in the crime. Therefore, this contention has also no legs to stand. 17. The learned Public Prosecutor also submitted that there is no over implication and the report of PW-5 Pukhraj clearly indicates that it is not result of any deliberations and if it is result of deliberations, he would have mentioned names of all the accused, who participated in the crime. They have only mentioned the names of their own community with whom PW-1 and PW-5 were well acquainted. Therefore, suppression of information by Mag Singh and bringing the report of PW-5, do not arise. 18. The learned Public Prosecutor also contended that the consistent statements of all the witnesses show that accused were holding dharias & lathis, and initially, they attacked on the deceased -Narsingh and in the process of taking away PW-16 ‘X’, Shanker Singh inflicted dhariya blow on the head of the deceased, which was fatal injury. The claim of involvement of Mohan Singh though spoken by the witnesses was not accepted by the trial court and he was acquitted, but the evidence of all the injured witnesses clearly demonstrate that accused-Shankar Singh had inflicted fatal blow on the head of the deceased and the common object of the alleged unlawful assembly was to kidnap the daughter of the deceased, whose engagement was held with accused-Shankar Singh and subsequently, it was broken. As a result of such breaking of engagement, accused-Shankar Singh along with other members of the unlawful assembly, in order to kidnap PW-16 by attacking on the family members of the victim, came to house of deceased. Though the object of the unlawful assembly was not to kill the deceased but common object of unlawful assembly was to kidnap the victim and probability of causing fatal injury to the deceased were within their knowledge. Therefore, the other members, who were part of unlawful assembly, were responsible for causing the death of the deceased by accused-Shankar Singh. The circumstances gathered from the incident clearly shows that all the members of unlawful assembly were either holding dhariya and lathis in their hands and in fact, they also inflicted injuries to the other injured witnesses i.e. PW-1, PW-4, PW-5 and PW-14. 19. The learned Public Prosecutor also contended that the injury certificate of the deceased (Exhibit-P/28) clearly shows that the doctor found cut injuries on the deceased, which could only be possible with the weapon like dhariya. 19. The learned Public Prosecutor also contended that the injury certificate of the deceased (Exhibit-P/28) clearly shows that the doctor found cut injuries on the deceased, which could only be possible with the weapon like dhariya. Though as per the postmortem report, the injuries to the deceased were result of blunt object but the said conclusion was on account of subsequent treatment. Subsequent treatment must have made unclear of the nature of wounds suffered by the deceased on account of various treatment made to him. Whereas, the first examination of the deceased by the doctor clearly shows that the deceased sustained cut injuries, which were only caused by the weapon like dhariya, which was rightly spoken by all the witnesses consistently, who were witnesses to the incident. The learned Public Prosecutor also contended that all the ingredients of the charged offences are proved and conviction of the appellants-accused by invoking Section 149 & 120-B of IPC was rightly made by the trail court. Therefore, such a conviction requires no interference. 20. We have heard the learned counsel for the appellants as well as learned Public Prosecutor and carefully perused the record of the case. Conviction u/ Sec. 302, 302 read with Sec.149 IPC: 21. The postmortem report shows that the death of the deceased was on account of head injury. The injury report indicates that said injury was caused with blunt object. The initial injury report of the deceased under Exhibit-P/28 and evidence of PW-17 Dr.Ramesh Chandra Mathur clearly show that the injuries found on the deceased were inflicted with a sharp-edged weapon. The evidence of PW-30, Dr. N.S.Kothari, the doctor who conducted postmortem examination and Exhibit-P/59 PMR show that the injuries, which were causative fact of the death of the deceased, was caused with blunt object. It is true that there is confliction in the injury report and PMR. The consistent ocular evidence of witnesses show that Shankar Singh (A-1) caused incised wounds to the deceased by attacking with dhariya. Though the witnesses also spoke about involvement of Mohan (A-13) with the dhariya only, but the trial court found his involvement in the crime doubtful. However, consistent evidence clearly shows that accused-Shankar Singh has caused dhariya injury on the head of the deceased, which is fatal injury. This ocular evidence is in tune with the earliest examination of the injured made by PW-17 as detailed in Exhibit-P/28. However, consistent evidence clearly shows that accused-Shankar Singh has caused dhariya injury on the head of the deceased, which is fatal injury. This ocular evidence is in tune with the earliest examination of the injured made by PW-17 as detailed in Exhibit-P/28. The contrary opinion formed under Exhibit-P/59 PMR and the evidence of PW-30 might be on account of some treatment given in the meantime, which could be the reason for misleading opinion. Therefore, the ocular evidence, which is in tune with the earliest report, has to be accepted, which was rightly accepted by the trial court to hold that the injuries found on the deceased was with sharp-edged weapon like dhariya, which is allegedly recovered at the instance of accused-Shankar Singh. These evidence clearly show that the weapon used for inflicting injuries to the deceased was sharp-edged and not blunt object. The conflicting opinion of the injury certificate and PMR was rightly dealt with by the trial court and rightly found that they were caused by the sharp-edged weapon. Such findings requires no interference. The nature of injuries clearly shows that they are the fatal injuries. Such injuries, which were inflicted by accused-Shankar Singh (A-1) on the person of the deceased was sufficient in the ordinary course of nature to cause death. The intention of accused No.1 to cause bodily injuries made out from the injuries inflicted by the accused on the vital part of the body of the deceased. The acts of the accused fall under the offence of murder and punishable under Section 302 of IPC. 22. The consistent evidence of all the injured witnesses clearly show that it was the accused No.1 Shankar Singh, who inflicted fatal blow on the head of the deceased with dhariya. These statements of the injured witnesses are consistent so far as accused No.1 is concerned. The contention of the learned counsel for the accused is that the name of Shankar Singh was not initially made by Mag Singh, who gave the First Information to the Police. This contention is devoid of merit. When Mag Singh was examined as PW-4 though as a witness of seizure, there was clear statement from him in the cross-examination that he along with Doongar Singh unboarded from the bus, in which the injured-persons were carrying to the hospital. They informed the police about the incident. This contention is devoid of merit. When Mag Singh was examined as PW-4 though as a witness of seizure, there was clear statement from him in the cross-examination that he along with Doongar Singh unboarded from the bus, in which the injured-persons were carrying to the hospital. They informed the police about the incident. They did not claim that any written report was submitted before the Police by them. It is also not their case that in the information, which is made by PW-5 to the police, reference of accused-Shankar Singh was not taken. When there is no written report and it is casual information of the Ex-Sarpanch Mag Singh and Doongar Singh about the incident, which made the police to rush to the hospital where the injured were admitted and recorded the oral report in the form of the statement of injured-Pukhraj, which was made basis for issuance of FIR. The contents of First Information Report clearly show that it is not full fledged deliberated report. PW-5 Pukhraj, the informant only referred some names and not the name of entire accused who were involved in the offence, which clearly rules out Exhibit-P/6 deliberate report. Therefore, the said contention of the learned counsel for the accused has no merit and the same is rejected. The trial court has rightly appreciated the evidence on record and rightly found that A-1 caused fatal injury resulted the death of the deceased. Therefore, Shankar Singh (A-1) is rightly convicted for offence under Section 302 IPC. 23. Now, the question is whether other accused i.e. A-2 to A-7, A-12 and A-14 are liable for acts of A-1 in causing the murder of the deceased. The prosecution tried to rope such accused by invoking Section 149 of IPC. In this regard, it is apt to refer to Section 141 and 149 of IPC, which reads as follows:- “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly, in prosecution of the common object of that assembly, of 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.” XXX XXX XXX “141. Unlawful assembly.-An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is: First.- To overawe by criminal force, or show of criminal force, 1the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second-To resist the execution of any law, or of any legal process; or Third- To commit any mischief or criminal trespass, or other offence; or Fourth- By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanations- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” 24. A reading of Clauses - third & fifth of Section 141 IPC, makes it clear that the common object of unlawful assembly may be to commit any mischief or criminal trespass, or any other offence, or by means of criminal force or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Section 149 of IPC has two parts; The first part deals with the cases where offences committed by any member of an unlawful assembly, in prosecution of the common object of that assembly. The second part deals with cases where commission of given offences not by itself common object of unlawful assembly, but members of such assembly knew that same is likely to be committed in prosecution of common object of that assembly. 25. The second part deals with cases where commission of given offences not by itself common object of unlawful assembly, but members of such assembly knew that same is likely to be committed in prosecution of common object of that assembly. 25. A conjoint reading of above two provisions make it clear that in carrying out the common object of the unlawful assembly, any other incident took place other than common object, if the members of unlawful assembly knew such an incident is likely to happen while executing their common object, each member is liable to such an act though it is not common object of such assembly. The common object of an assembly can be gathered from the nature of assembly, arms used by them and behavior of the assembly at or before the scene of occurrence and it is result of inference deduced from the facts and circumstances of each case. 26. The evidence on record clearly show that the members of unlawful assembly were carrying lethal weapons like dhariya and lathis. Some members of the assembly inflicted and caused the injuries to the injured witnesses other than the injuries, which were caused to the deceased. Though the common object of the assembly was not to murder the deceased but the object was to cause injuries to anyone who come in their way lifting PW-16 ‘X’. From the nature of weapons used, the acts committed by the members of unlawful assembly clearly demonstrate that they knew that the injuries, which they would cause to the family members of PW-16, would likely to result of death though which is not the common object of assembly, but such a result was in execution of common object. Section 149 of IPC can be rightly invoked in the given facts and circumstances of the case, which was rightly invoked by the trial court. 27. In the present case, the conviction of accused-Khangara Ram (A-4), Aidan Gawariya (A-7), Kalyan Singh (A-11) Bhop Singh (A-12) treating them as a part of unlawful assembly is contrary to the evidence on record. The cross-examination of PW-5 Pukhraj clearly shows that Khangara Ram (A-4), Aidan Gawaria (A-7), Kalyan Singh (A-11) and Bhop Singh (A-12) were not the part of unlawful assembly when the attack was made on the night of the incident. The cross-examination of PW-5 Pukhraj clearly shows that Khangara Ram (A-4), Aidan Gawaria (A-7), Kalyan Singh (A-11) and Bhop Singh (A-12) were not the part of unlawful assembly when the attack was made on the night of the incident. PW-5 also admitted in the cross-examination that these four accused also did not come to the proceedings before the Sub-Divisional Magistrate under Section 107 of Cr.P.C. This admission of the important injured witness was not taken note by the trial court. Therefore, conviction of Khangara Ram (A-4), Aidan Gawaria (A-7), Bhop Singh (A-12) while giving benefit of acquittal to Kalyan Singh (A-11) is not sustainable in view of the admission made by PW-5. The conviction of Babu Lal (A-3) treating him as part of 149 IPC is also doubtful. The reason is that Babu Lal (A-3) is the driver and his name was not referred in the First Information Report. He was stranger to all the witnesses and there is no Test Identification parade. His involvement was basing on the evidence of PW-9 Jitendra Kumar, the owner of jeep, who did not support that Babu Lal (A-3) is driver of the jeep. There is no Test Identification parade conducted by the Investigating Agency, which could be the corroborating fact for the identification made by the witnesses before the Court. Therefore, the benefit of doubt has to be extended to accused-Babu Lal (A-3) also. 28. The evidence clearly and consistently show that Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) are the members of unlawful assembly along with accused No.1, who were holding weapons i.e. dhariya and lathis. They are the close relatives of accused-Shankar Singh (A-1) and they are from their community, for which the injured party also belong to and they knew each other. Therefore, their names are also specifically referred in the First Information Report. Thus, the conviction of Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) by invoking Section 149 of IPC for the acts of accused-Shankar Singh (A-1) is rightly made by the trial court, which findings do not require any interference. 29. From the above findings we are of the opinion that conviction of accused-Pokar Singh (A-2), Dhanna Ram (A-5) , Bhalla Ram (A-6) and Kalji (A-14) for the offence under Section 302 read with Section 149 of IPC is sustainable. 29. From the above findings we are of the opinion that conviction of accused-Pokar Singh (A-2), Dhanna Ram (A-5) , Bhalla Ram (A-6) and Kalji (A-14) for the offence under Section 302 read with Section 149 of IPC is sustainable. However, accused-Babu Lal (A-3), Khangara Ram (A-4), Aidan Gawariya (A-7) and Bhop Singh (A-12) are acquitted of the charge under Section 302 read with Section 149 of IPC. Conviction u/Sec. 366 of IPC: 30. The consistent evidence on record shows that Shankar Singh (A-1), Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) have come in the jeep along with the other accused and the object of such persons was to kidnap PW-16 ‘X’ on account of breakage of engagement between accused No.1 and ‘X’. The learned counsel for the appellants-accused submitted that the kidnapping is not applicable in the present case as the victim was major above 18 years. In this regard, it is relevant to refer to Section 366 of IPC, which reads as follows:- 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.” 31. From perusal of the above provision, it is clear that kidnapping or abduction of a woman can be said to be an offence when such an act is done to compel her to marry any person against her will or forcing her, seducing her to illicit intercourse. The evidence on record show that object of the accused was to take PW-16 ‘X’, who was engaged with accused-Shankar Singh (A-1) and such engagement was broken. The evidence on record show that object of the accused was to take PW-16 ‘X’, who was engaged with accused-Shankar Singh (A-1) and such engagement was broken. The kidnapping or abduction was intended either to marry or to have sexual intercourse with her by Accused No.1. These two objects of the accused were very much within the knowledge of all the accused for the reason that very purpose of all of accused coming to the residence of PW-16 was result of breakage of engagement, and taking away PW-16 would also demonstrate that the intention was to marry her or to have sexual intercourse with accused No.1. In fact, the offence of rape was also committed on the victim. The age determination done by the Medical Officer under Exhibit-P-26 shows that the age of the victim is in between 17 to 19. The mother of the victim and other relatives of the victim clearly claim that the victim is minor. Their evidence has to be given credentials. Further, the medical report prescribing minimum age of 17 years of the victim gets the corroboration to such evidence. Even otherwise, it is a case of abduction. In these circumstances, the argument of learned counsel for the appellants-accused has no merit and the same is rejected. Accordingly, accused-Shankar Singh (A-1), Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) was rightly convicted for the offence under Section 366 of IPC. However, the conviction of accused-Babu Lal (A-3), Khangara Ram (A-4), Aidan Gawariya (A-7) and Bhop Singh (A-12) cannot be sustained for the reason that their presence itself on the date of incident was doubtful since the owner of the vehicle did not identify accused-Babu Lal (A-3) as a driver of his vehicle and PW-5 Pukhraj clearly admitted in his cross-examination that Khangara Ram (A-4) and Aidan Gawariya (A-7), Bhop Singh (A-12) were not part of the mob, which attacked them in the night of the incident. Therefore, they are liable to be acquitted of the said charge. Conviction u/Sec. 376 of IPC: 32. The evidence of PW-16 ‘X’ clearly shows that she was subjected to sexual intercourse on the second day of their stay with DW-1 Smt. Khama. DW-1 tried to support the claim of the accused that A-1 married to PW-16 ‘X’. Therefore, they are liable to be acquitted of the said charge. Conviction u/Sec. 376 of IPC: 32. The evidence of PW-16 ‘X’ clearly shows that she was subjected to sexual intercourse on the second day of their stay with DW-1 Smt. Khama. DW-1 tried to support the claim of the accused that A-1 married to PW-16 ‘X’. The consistent evidence of prosecution witnesses clearly show that it was only engagement between A-1 and PW-16 ‘X’ and no proof of marriage has been placed on record. This is clear from the evidence of PW-2 Smt. Bhanwari (mother of victim), PW-5 Pukhraj, PW-14 Mohan and the victim herself said that she was not married to Shankar Singh (A-1). The claim of the accused that sexual intercourse is not a rape, cannot be accepted. The evidence of victim is enough to show that she was sexually assaulted under threat while staying in the house of DW-1 on the second day of their stay. However, the trial court was not right in invoking Section 120-B of IPC for convicting other accused for the act of accused-Shankar Singh (A-1). From the circumstances surrounding the incident, there is no meeting of minds or any conspiracy among the accused to commit sexual assault on PW-16. Therefore, conviction of other accused other than accused-Shankar Singh (A-1) invoking Section 120-B read with Section 376 of IPC cannot be sustained. Therefore, all the accused other than A-1 are acquitted of the charge under Section 376 read with Section 120-B of IPC. Conviction of A-1 for offence of rape is confirmed. Conviction of Section 459 of IPC: 33. The offence of Section 459 of IPC is attracted on proof of causing grievous hurt or attempt to cause death or grievous hurt to any person while committing lurking house-trespass or house-breaking. The evidence on record clearly establish that there was a house-breaking to commit house-trespass by unbolting the bolt. The object of house-breaking was to cause grievous hurt or attempt to death or grievous hurt. In fact, a death is caused apart from inflicting grievous hurt to the deceased and hurt to other injured-party. Accused-Shankar Singh (A-1), Pokar Singh (A- 2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) was rightly convicted for the offence under Section 459 of IPC. In fact, a death is caused apart from inflicting grievous hurt to the deceased and hurt to other injured-party. Accused-Shankar Singh (A-1), Pokar Singh (A- 2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) was rightly convicted for the offence under Section 459 of IPC. However, the conviction of Babu Lal (A-3) is unsustainable because there is no Test Identification parade and owner of the vehicle i.e. PW-9 Jitendra Kumar has not supported that he was the driver of his vehicle, in which all the accused went to the house of deceased. The involvement of Babu Lal (A-3) in the offence was doubtful. PW-5 Pukhraj clearly admitted in his cross-examination that Khangara Ram (A-4) and Aidan Gawariya (A-7), Bhop Singh (A-12) were not part of the mob, which attacked them in the night of the incident. Therefore, A-3, A-4, A-7 and A-12 are liable to be acquitted of the said charge. Conviction u/Sec. 148 of IPC: 34. The ingredients of Section 148 of IPC clearly show that rioting must be done with deadly weapons. Rioting would occur when unlawful assembly resorted to use force or violence in prosecution of common object of such assembly. In the present case, there is clear evidence of use of force or violence by the members of unlawful assembly. There is also evidence which clearly show that all of the accused were holding deadly weapons like dhariya and lathis. The presence of accused-Shankar Singh (A-1), Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) has been clearly established and they are rightly convicted for the offence under Section 148 of IPC. However, the presence of accused-Babu Lal (A-3) , Khangara Ram (A-4), Aidan Gawariya (A-7) and Bhop Singh (A-12) were not clearly established, therefore, they are entitled for acquittal of the said charge. Conviction u/Sec. 323, 323/149, 324, 324/149, 325 of IPC: 35. The evidence of PW-1 Jhamku shows that she sustained injuries in the alleged incident. According to her statement, Shankar Singh (A-1) and Pokar Singh (A-2) hit on her head with dhariya. Accused-Dhanna Ram (A-5), Bhalla Ram (A-6) and Aidan Gawariya (A-7) hit her with sticks on right arm, left knee and left elbow respectively. The injury certificate of PW-1 (Exhibit-P/29) supports such injuries. PW-17, Dr. Ramesh Chandra Mathur also supports the injuries sustained by PW-1. Accused-Dhanna Ram (A-5), Bhalla Ram (A-6) and Aidan Gawariya (A-7) hit her with sticks on right arm, left knee and left elbow respectively. The injury certificate of PW-1 (Exhibit-P/29) supports such injuries. PW-17, Dr. Ramesh Chandra Mathur also supports the injuries sustained by PW-1. A close scrutiny of injuries reflected under Exhibit-P/29 and the evidence of PW-17, the doctor, shows that the incised wound found on the head of PW-1 is only one, whereas the injured stated that Shankar Singh (A-1) and Pokar Singh (A-2) both inflicted head injury with dhariya. Role of one of them is doubtful. Therefore, the benefit is given to both the accused Shankar Singh (A-1) and Pokar Singh (A-2) with regard to causing of head injury to PW-1. Though the injuries inflicted by accused-Aidan Gawariya (A-7) were getting support from the injury certificate, but accused No.7 was stranger to PW-1 Jhamku. PW-1 also stated that Dhannia @ Dhanna Ram (A-5) hit her with lathi on right arm. She also stated that Bhallia @ Bhalla Ram (A-6) hit lathi on the left knee. The Injury Certificate of PW-1 (Exhibit-P/29) supports such injuries. PW-17, the doctor, also supports injuries sustained by PW-1. This injured correctly identified accused-Shankar Singh (A-1), Pokariya @ Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A-6) and Aidan Gawariya (A-7), whereas she wrongly identified Kaliya @ Kalji as Bhop Singh. However, by considering the evidence of PW-5 Pukhraj, the presence of Aidan Gawariya (A-7) is not believed by this Court. Therefore, involvement of Accused No.7 is doubtful as there is conflicting evidence from PW-5 and PW-1. The injuries inflicted by accused-Dhanna Ram (A-5) and Bhalla Ram (A-6) are getting support from the injury certificate as well the evidence of PW-17. Accused-Dhanna Ram (A-5) and Bhalla Ram (A-6) are from the same community as the deceased and PW-1 so they are well acquainted to each other. Therefore, their conviction is upheld. 36. The evidence of PW-2 Smt. Bhanwari show that Pokar Singh (A-2) inflicted injury to her by dhariya, which is incised wound and she also claimed that Bhop Singh (A-12) hit with stick on her right hand and Khangara Ram (A-4) also hit with stick. The evidence of PW-2 clearly show that except Pokar Singh, other accused were stranger to this witness and there is no Test Identification parade. Further, before the police, the names of the accused were also taken. The evidence of PW-2 clearly show that except Pokar Singh, other accused were stranger to this witness and there is no Test Identification parade. Further, before the police, the names of the accused were also taken. This creates doubt over the testimony of this witness with regard to inflicting injuries by Khangara Ram (A- 4) and Bhop Singh (A-12). The involvement of A-4 and A-12 was not attributed by PW-5 Pukhraj. There is material contradictions in between these two witnesses. 37. The evidence of PW-5 Pukhraj shows that he named accused-Pokar Singh (A-2), who inflicted injury on his head with dhariya. He also refers injury caused by accused-Kalji (A-14) on his waist with dhariya. These injuries spoken by the injured-witnesses are supported by injury certificates and the weapons used caused grievous hurt, which are deadly weapons. In view of the above evidence, conviction of accused-Pokar Singh (A-2) and Kalji (A-14) for offence under Section 325 of IPC is upheld. Accused-Shankar Singh (A-1), Pokar Singh (A-2), Dhanna Ram (A- 5) and Bhalla Ram (A-6) being the part of unlawful assembly were also rightly been convicted for offence under Sections 325 read with Section 149 of IPC. 38. On appreciation of the above evidence on record, the conviction of accused-Dhanna Ram (A-5) and Bhalla Ram (A-6) for offence under Sections 323 and 324 of IPC for causing injury to PW-1 is confirmed. Accused-Shankar Singh (A-1), Pokar Singh (A-2) and Kalji (A-14) being the members of unlawful assembly were also rightly convicted for the offence under Section 323 read with 149 and 324 read with 149 of IPC. The conviction of Shankar Singh (A- 1) , Pokar Singh (A-2), Dhanna Ram (A-5), Bhalla Ram (A- 6) and Kalji (A-14) for offence under Section 325 read with 149 for causing injury to PW-1 is acquitted. 39. The conviction of accused-Babu Lal (A-3), Khanara Ram (A-4), Aidan Gawariya (A-7) and Bhop Singh is unsustainable on account of their doubtful nature of involvement on the alleged date of incident and they are liable to be acquitted of the said charges i.e. under Sections 325, 323 & 324 read with Section 149 of IPC. 40. 39. The conviction of accused-Babu Lal (A-3), Khanara Ram (A-4), Aidan Gawariya (A-7) and Bhop Singh is unsustainable on account of their doubtful nature of involvement on the alleged date of incident and they are liable to be acquitted of the said charges i.e. under Sections 325, 323 & 324 read with Section 149 of IPC. 40. In the result, the criminal appeal is partly allowed as follows: I. The conviction and sentence imposed by the trial court against A-1, A-2, A-5, A-6 & A-14 are hereby confirmed as under:- (i) Appellant No.1- Shanker Singh (Accused No.1) u/Sec. 302, 376,366, 459, 323/149, 324/149, 325/149 148 of IPC (ii) Appellant No.2-Pokar Singh (Accused No.2) u/Sec.302 read with 149, 366, 459, 148, 323/149 324/149 & 325 of IPC (iii) Appellant No.5-Dhanna Ram (Accused No.5) [Died pending appeal] u/Sec.302 read with 149, 366, 459, 148, 323, 324, 325 read with 149 of IPC. (iv) Appellant No.-6-Bhalla Ram (Accused No.6) [Died pending appeal] u/Sec.302 read with 149, 366, 459, 148, 323, 324 & 325 read with 149 of IPC (v) Appellant No.9-Kalji (Accused No.14): [Died pending appeal] u/Sec.302 read with 149, 366, 459, 148, 323/149, 324/149, 325 of IPC II. The conviction and sentence impugned against A-2, A-5, A-6 and A-14 for offence under Section 376 r/w 120B of IPC is unsustainable and it is set aside. III. Appellants-accused Dhanna Ram (A-5), Bhalla Ram (A-6) and Kalji (A-14) have died during the pendency of the appeal, therefore, the present appeal qua A-5, A-6 and A-14 is dismissed as abated. IV. Appellant No.1-Shankar Singh (A-1) and appellant No.2 Pokar Singh (A-2) are on bail, their bail bonds are forfeited and they are directed to surrender before the court where they was convicted, within a period of 15 days from the date of this judgment to serve remaining sentence. V) The conviction and sentence imposed by the trial court against accused-appellant No.3 Babu Lal (A-3), appellant No.4 Khangara Ram (A-4), appellant No.7-Aidan Gawariya (A-7) and appellant No.8 Bhop Singh (A-12) are set aside and they are acquitted of all the charges. Appellants-Babu Lal, Khangara Ram, Aidan Gawariya and Bhop Singh are on bail, their bail bonds shall continue for 3 months and thereafter, stand discharged. Appellants-Babu Lal, Khangara Ram, Aidan Gawariya and Bhop Singh are on bail, their bail bonds shall continue for 3 months and thereafter, stand discharged. VI) Keeping in view the provision of Section 437-A Cr.P.C., accused Nos.A-3, A-4, A-7 and A-12 are directed to furnish a personal bond in a sum of Rs.40,000/- and a surety bond in the like amount, before the learned Trial Court, which shall be made effective for a period of six months, to the effect that in the event of filing of Special Leave Petition against this judgment or for grant of leave, these appellants, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court as soon as he would be called upon to do so.