Mohammad Rafiq, J. - This appeal is directed against judgement and order dated 06.03.2003 passed by the Court of Additional District and Sessions Judge, Fast Track, Kaman (for short the trial court) whereby the accused-appellants have been convicted for offences under Sections 302/149, 147, 148 IPC and sentenced under Section 302/149 IPC to life imprisonment with fine of Rs. 2,000/-, in default of payment of fine, each accused-appellants to undergo six months additional simple imprisonment; for offence under Section 147 IPC to one years rigorous imprisonment and for offence under Section 148 IPC to two years rigorous imprisonment. All the sentences were ordered to run concurrently.

2. At this stage, it may be noted that aforesaid appeal was earlier decided by Co-ordinate Bench of this Court vide Judgement dated 03.12.2007 whereby appeal qua Mohammadin son of Samay was treated as abated; Appeal qua Sufeda, Kamru, Samsu was dismissed and their conviction and sentence was maintained; appeal qua Aasu son of Lukka; Umar Khan son of Sami Khan, Mast Khan son of Asru; Jumma Khan son of Lukka, Noor Khan son of Lukka; Kallu son of Asru and Aasu son of Rehman was allowed. Said Judgement was assailed before the Supreme Court by the appellants whose conviction and sentence was maintained, by the complainant as also by the State. The Supreme Court vide Judgement dated 05.12.2017 observed that the High Court has not analysed the evidence on record and not recorded sufficient reasoning, therefore, while setting aside Judgement of this Court, remitted the matter to decide the same afresh.

3. It is informed that apart from Mohammadin, who died during penedncy of appear earlier, accused-appellant Umar Khan died on 30.03.2012 and Mast Khan died on 05.07.2008. Appeal therefore now survives only in respect of Sufeda, Kamru, Samsu, Aasu son of Lukka, Jumma Khan, Noor Khan, Kallu and Aasu son of Rehman.

4. Facts of the case are that on 05.02.1991, complainant Chhanga (P.W.-2) lodged a written report at Police Station, Jurhera alleging therein that his 14-15 bighas land is situated in Ganvadi wherein his crop of mustard was standing. Out of this, 2-3 days ago Samsu, Kamru and others harvested some crop, for which report was lodged by Hasan Khan son of Kalua, partner of the complainant at Police Station, Jurhera on 14.02.1991 itself. For investigation of that matter, on 15.02.1991 at 11.00 A.M. complainant, his father Akku, Hasan Khan and Israil and the police personnel of Police Station, Jurhera reached at their village situated in village Ganvadi. They all had gone in the Maruti Car of Deenu Mev (P.W.-8). When the police was investigating the matter; at that time Sufeda, Kamru, Kanka, Kallu, Mast Khan armed with jelly, Amru, Jumme Khan, Samsu, Aasu, Noor Khand and Tulsi armed with lathis, Umar Khan was armed with tanchia all resident of Ganvadi along with 8 to 10 person, whom he did not know, came and told to kill them and see what the police will do. All these persons gave beating to complainants father Akku and Hasan Khan with jelly, Tanchia and lathis and took them dragging at the kotha (room) of Kamru where also they gave beating. They also caught hold of complainant, Israil (P.W.-11) and Deenu (P.W.-8). The police personnel tried to intervene but these persons did not hear anything of the police personnel too. After killing the complainants father Akku and Hasan Khan, they closed them in the kotha and then set the chhappar on fire. Thereafter, they ran away towards the forest and some persons stayed there and not allowed anybody to enter in the kotha. The dead bodies were lying in the kotha.

5. On the basis of aforesaid written report (Exhibit P-1), FIR No. 15/1991 (Exhibit P-2) for offence under Sections 302, 323, 342 and 447 IPC was registered and investigation commenced. During the course of investigation, the accused appellants were arrested and after completing the investigation, the police filed the challan. Charges were framed for offence under Sections 147, 148, 436 and 302 IPC against Kamru and Umar Khan while against rest of the accused for offence under Sections 147, 148, 436 and 302/149 IPC. The accused denied the charge and claimed to be tried. The prosecution produced as many as 19 witnesses and exhibited 31 documents. Thereafter, the accused were examined under Section 313 Cr.P.C., 1973 wherein they stated false implication. In defence, one witness was produced and 15 documents were exhibited. Upon completion of trial, learned trial court vide Judgement and order dated 06.03.2003 convicted and sentenced the accused-appellants in the manner as indicated above. Hence, this appeal.

6. Mr. N.A. Naqvi, learned Senior Counsel appearing on behalf of the accused-appellants argued that the findings of the trial court are against the facts and material on record and therefore liable to be set aside by this court. The trial court has erred in law in not correctly appreciating the statements of prosecution witnesses in their true perspective. The statements of prosecution witnesses have been recorded thrice and they have changed their version before the court. The statements of the prosecution witnesses are self contradictory. Hence, conviction of the accused appellants is bad in law and deserves to be set aside by this Court. The allegation is of inflicting injury on the head of deceased, but that was not the cause of death. The cause of death of deceased was strangulation. There is no allegation in the FIR or in the statements recorded under Section 161 Cr.P.C., 1973 but during the trial for the first time the allegation was made that the accused person put a Danda on the neck of deceased and then pressed that Danda. No reliance can be placed on such statements of prosecution witnesses. The allegation has been developed after seeing the postmortem report. It is well settled law that if the prosecution witnesses gave statements after seeing the postmortem report then no reliance can be placed on such evidence of the prosecution witnesses. The trial court has erred in law in not taking into consideration that the prosecution has not put the true genesis of the incident and they suppressed the same from the court. The prosecution witnesses are not truthful as the evidence did not get the corroboration from the medical report and their statements are self contradictory. The trial court has disbelieved the prosecution story as regards offence under Section 436 of IPC. Therefore, conviction of the accused appellant is based on the evidence of the interested witnesses without any corroboration from the independent source.

7. Mr. N.A. Naqvi, learned Senior Counsel argued that accused-appellants were named in the written report (Exhibit P-1), one of whom namely Tulsi died during trial. Chhanga (P.W.-2); Deenu (P.W.-8) and Israil (P.W.-11) were named as eye witnesses. Apart from them, Puran Singh (P.W.-12) and Dharam Singh (P.W.-13) are police personnel, who were present at the place of occurrence which took place earlier and they have also been cited as eye witnesses. Though Majla (P.W.-6) and Sirdar (P.W.-19) were named as eye witness, but Majla (P.W.-6) turned hostile and not supported prosecution case. Testimony of the eye witnesses does not at all prove as to who caused injuries to deceased as none of them is speaking truth inasmuch as two police personnel namely Puran Singh (P.W.-12) and Dharam Singh (P.W.-13) were not present where the deceased Akku and Hasan Khan were done to death. Learned Senior Counsel referred to statement of Chhanga (P.W.-2) and submitted that this witness has stated that when they had taken the police with them in connection with investigation of FIR lodged against the accused party for uprooting their harvest in the disputed agricultural field in the Maruti Car of Deenu. Israil was also with them. When the police personnel were preparing papers, Samsu, Sufeda, Kamru, Mast Khan, Jumma Khan, Kallu, Noor Khan, Tulsi, Aasu, another Aasu son of Rehman, Mohammadin armed with tanchia, jelly and lathies, came there. Kanka and Umar Khan were also with them. Umar Khan had tanchia, Kanka had jelly. Allegation made by this witness is that Kanka inflicted jelly blow on the head of Akku and thereafter all other accused started beating him with lathies. When Akku fell on the ground, Umar Khan inflicted blow of tanchia on his chin. Samsu, Kamru and Kanka dragged Akku towards village and rest of the accused followed. Jumma Khan and Aasu caught hold of Hasan and brought him towards the village. It was further alleged that both were taken to the room of Samsu and Kamru, adjacent to which there was a chhaper. Samsu put chapper on fire. It is contended that Chhanga has made lots of improvements and embellishments over his original version given to the police inasmuch as in the Court. He stated that Jumma Khan and Aasu and another Aasu put a lathi on the neck of Hasan Khan. Samsu was also there. All four of them broke neck of Hasan Khan. This witness stated that he saw the entire incident because doors of room, in which deceased were killed, was opened. Samsu, Aasu and Umar Khan, all three of them repeatedly hit Akku with jelly and lathies and put him to death. All his teeth were broken and his jaw was also cut.

8. It is argued that if statement of Chhanga is analysed in the light of statement of Puran Singh (P.W.-12), he cannot be believed as eye witness. Puran Singh (P.W.-12) constable of police, came to place of incident to investigate in earlier FIR. He has stated that when the accused attacked Akku and Hasan. Both policemen tried to protect him, but accused then started beating them as well. He sustained injuries on his left shoulder, back and right arm. These accused dragged Akku and Hasan towards their village. Accused did not allow these two policemen to go forward. They were encircled by 7-8 women of their family. Finally when they somehow reached the village Ganvadi, Chhanga, Israil and Deenu met them. Accused were standing near them, who upon seeing them fled away from there. Chhanga had told that these accused had killed Akku and Hasan Khan and concealed their dead bodies in the room of Sufeda and then locked it. When they went near the room, they found that a chhaper adjoining the room was burning. They peeped into the room through window and noticed dead bodies of Akku and Hasan Khan lying in the pool of blood. Room was locked from outside. Learned Senior Counsel submitted that if Puran Singh is believed, the room in which dead body of Akku and Hasan Khan were placed was locked and therefore, Chhanga cannot be believed when he stated that room was opened and therefore he could see the accused subjecting the deceased to beating.

9. Learned Senior Counsel submitted that not only Puran Singh but also Dharam Singh were not witness to the beating of Akku and Hasan Khan. Even Dharam Singh (P.W.-13) after naming the accused has stated that when two policemen tried to protect the deceased, accused started beating them as well. These people dragged Akku and Hasan Khan. They started to follow them but women of their village obstructed their movement. They took 15- 20 minutes in reaching the village Ganvadi where Chhanga met them. Chhanga told that the accused had run away after locked the dead bodies of Akku and Hasan Khan in the room of Sufeda and put adjoining chhaper on fire. They saw their dead bodies in the room through window. Learned Senior Counsel submitted that Majla (P.W.-6) has not supported case of the prosecution and turned hostile. Deenu (P.W.-8) also does not prove anything against the accused. What he has stated is that he is not certain as to how many accused were there. He stated that there were 10-15-20 accused. Kanka inflicted jelly blow on the head of Akku; Kamru also then caused injuries to him by jelly. Sufeda also inflicted injuries to him by jelly. When the police personnel tried to intervene, accused threatened to kill them as well. Umar Khan inflicted tanchia blow on the chin of Akku who fell on the ground, which resulted into breaking his teeth. They also killed Hasan Khan, but he was not sure as to who caused injuries to Hasan Khan. After Akku and Hasan Khan were killed, they dragged them towards their village. There is contradiction between what has been stated by this witness and what other witness have stated because other witness stated that first Akku and Hasan Khan were dragged to village Ganvadi and then they were killed there. Even this witness is also saying that he has not seen anybody causing injuries to anyone.

10. Learned Senior Counsel has also submitted that Israil (P.W.-11) has stated that Samsu inflicted jelly blow on the head of Akku. Then, the police personnel tried to save them. Tulsi and Akku also inflicted lathi blows on Akku. Kamru and Sufeda inflicted jelly blow on the head of Hasan Khan and when he fell down, Kanka and Samsu put a lathi on the neck of Hasan Khan and by applying pressure, broke neck of Hasan Khan. Umar inflicted tanchia blow on the chin of Akku, as a result of which his teeth were broken. Aasu then inflicted lathi blow on Hasan Khan, which led to fracture of his right leg. When these persons dragged Hasan Khan and Akku to the room of Sufeda and Kamru, there they subjected him to beating. Learned Senior Counsel referring to statement of Sirdar (P.W.-19) submitted that he to has made omnibus allegations against all the accused and not assigned specific role to any of the accused. Learned Senior Counsel referred to post mortem report of Hasan Khan (Exhibit P-20) and post mortem report of Akku (Exhibit P21), which have been proved by Dr. Ramesh Kumar (P.W.-7) and argued that almost all the injuries which they sustained were simple in nature, which indicate that intention of the accused was not to commit their murder. Even the injuries sustained by Puran Singh (P.W.-12) and Dharam Singh (P.W.-13) as indicated in their MLRs (Exhibit P-24 and Exhibit P-26 respectively) are simple in nature. The incident in the present case took place all of sudden in a spur of moment and if the deceased allegedly died of beating given by the accused, action of the accused-appellant cannot be said to fall within the purview of culpable homicide amounting to murder and it would fall within the purview of culpable homicide not amounting to murder, which is punishable under Section 304 Part II IPC or maximum under Section 304 Part I, IPC.

11. Learned Senior Counsel argued that dispute between the parties was with regard to land which was admittedly in possession of the accused party. He in this connection referred to Exhibit D( 10 of 20) [CRLA-411/2003] 14, revenue suit filed by the accused party; Exhibit D-15, copy of the judgement and decree dated 09.07.1997, according to which a finding has been recorded by the revenue court that land in dispute was in possession of the appellants. It is therefore that the prosecution did not file charge sheet against accused-appellants for offence punishable under Section 447 or 452 IPC. Learned Senior Counsel referred to site plan (Exhibit P-7) and submitted that there is neither any marks of burning of chapper nor of blood. There is also no sign of dragging of the deceased. Therefore, the incident had not actually taken place at the place where it is alleged to have taken place by the prosecution. The prosecution has thus withheld genesis of the incident. It is argued that there was no proof that the accused were very much present at the place where the complainant party came and they formed an unlawful assembly. In fact, the incident as per the prosecution, took place in two parts. The prosecution witnesses are only stating about injuries received by the deceased and two police personnel in the first part and there is no evidence with regard to injuries caused to the deceased in the second part which is alleged to have taken place inside the room where dead bodies were actually found. Presence of the accused party there cannot be therefore said to unlawful assembly. It is argued that Aasu son of Rehman and Mohammadin were not named in FIR, yet they were subsequently made accused. Even in the investigation, no case was found to be made against Kallu, Mast Khan, Jumma Khan, Noor Khan but the cognizance against them was taken by the trial court under Section 319 Cr.P.C., 1973 Initially the allegation of causing fatal injury was against Kanka and Umar and other accused were subsequently implicated during trial. Therefore, no case is made out against them. It is therefore prayed that present appeal be allowed and the accused-appellants may be acquitted of the charges framed against them.

12. Mr. Sonia Shandilya, learned Public Prosecutor opposed the appeal and argued that as per FIR, presence of Chhanga (P.W.-2); Israil (P.W.-11) and Deenu (P.W.-8) has been shown inasmuch as Puran Singh (P.W.-12) and Dharam Singh (P.W.-13), who were police personnel and present there, therefore, their presence at the place of occurrence cannot be doubted because they were injured as well. Police personnel had gone there to prepare site plan in respect of FIR lodged by the complainant party. The accused, who were armed with tanchia, jelly and lathies, by forming an unlawful assembly suddenly attacked not only members of complainant party but also police personnel. They subjected Akku and Hasan Khan to severe beating, which is evident from the fact that while Akku had sustained 14 injuries, Hasan Khan sustained 22 injuries. Both of them were put to death by breaking bones of their necks. Weapons of offence have been recovered at the instance of the accused-appellants. Judgement of the revenue court was delivered in 1997, which does not in any manner reflect the correct position on the ground with respect to possession of the parties on the date of incident. In a case where two persons have died by multiple injuries by large number of accused, it cannot be said that there was no unlawful assembly. It is argued that minor contradictions and inconsistencies in the statements of prosecution witnesses cannot form a basis to discard entire case of the prosecution. Dead bodies of Akku and Hasan Khan as per evidence on record were first dragged to village Ganvadi by the accused and eventually their dead bodies were found in the locked room of accused Sufeda. Therefore, learned trial court in respect of second part of incident was well within its right to hold that it was the accused who form an unlawful assembly and committed murder of the deceased. It is, therefore, prayed that present appeal may be dismissed and Judgement and order passed by the trial court may be affirmed. Learned Public Prosecutor in support of her arguments relied upon the Judgements of the Supreme Court in Ganga Ram Sah & Others v. State of Bihar, (2017) 12 SCC 707 ; Iqbal & Another v. State of Uttar Pradesh, (2017) 11 SCC 93 ; Yogesh Singh v. Mahabeer Singh & Others, (2017) 11 SCC 195; Ramvilas v. State of Madhya Pradesh, (2016) 16 SCC 316 ; Ramchandran & Others v. State of Kerala, (2011) 9 ScC 257 ; Fazar Ali & Others v. State of Assam, (2017) 13 SCC 535 .

13. We have given our anxious consideration to rival submissions and carefully perused the material on record.

14. No doubt, there is some discrepancy in the statements of various prosecution witnesses but there are two witnesses namely Puran Singh (P.W.-12) and Dharam Singh (P.W.-13), who both were police personnel. We have to therefore accept that large number of accused attacked Akku and Hasan Khan and other persons accompanied them on taking annoyance from the fact that they had approached the police against them and filed a criminal case for uprooting their harvest. When we compare statements of these two witnesses with what was stated as first version in the written report, we find that there is similarity in what they stated with regard to involvement of accused, who are mostly common. In the written report (Exhibit P-1), Sufeda son of Kamla; Kamru son of Kamla; Kanka son of Rumi; Kallu and Mast Khan both sons of Aasru; Umar Khan son of Sani Khan; Jumma Khan son of Lukka; Samsu son of Kamla, Aasu son of Lukka; Tulsi son of Lukka were named as accused. Chhanga (P.W.-2) in his statement has named Samsu, Sufeda, Kamru, Mast Khan, Jumma Khan, Kallu, Noor Khan, Tulsi, Aasu, another Aasu son of Rehman and Mohammadin. Here he had made addition of Aasu son of Rehman and Mohammadin, who were not named in the written report. Majla (P.W.-6) even though turned hostile but he has mentioned names of Kamru, Sufeda, Samsu, Aasu, Mohammadin, Tulsi, Umar Khan, Kallu, Mast Khan, Jumma Khan, Noor Khan as those who were beating Hasan Khan and Akku.

15. Deenu (P.W.-8) named Kanka, Kamru, Sufeda, Aasu, another Aasu son of Lukka, Samsu, Umar Khan, Jumma Khan, Jahur Khan, Mast Khan, Noor Khan, Tulsi, Mohammadin, Kallu. Israil (P.W.-11) has also named Sufeda; Kamru; Kanka, Umar Khan, Aasu, Jumma Khan, Noor Khan, Tulsi, Kallu, Mast Khan and then additionally named Aasu son of Rehman and Mohammadin. Puran Singh (P.W.-12) Police Constable has named Sufeda, Kamru, Kanka, Aasu son of Rehman, Umar Khan, Mohammadin, Samsu, Khurshid. Sufeda, Kamru, Kanka, Aasu son of Rehman were armed with jelly, Umar Khan had tanchia; Mohammadin, Samsu, Khurshid had lathies. All of them started beating Akku and Hasan Khan. Dharam Singh (P.W.-13), Assistant Sub Inspector has named Sufeda, Kamru, Samsu, Kanka, Tulsi, Aasu, Noor Khan, Kallu, Mast Khan, Aasu son of Lukka and certain other persons as the accused. Similarly Sirdar (P.W.-19) also named Samsu, Sufeda, Kamru, Kanka, Aasu, another Aasu, Umar Khan, Mast Khan, Noor Khan, Jumma Khan. Cumulative reading of all the aforesaid statements, which in fact support earlier version and finds consistency with regard to presence of accused-appellants Sufeda, Kamru, Kanka, Kallu, Mast Khan, Umar Khan, Jumma Khan, Samsu, Aasu son of Lukka, Tulsi. Names of Aasu son of Rehman and Mohammadin have been apparently added at later stage during trial, one of whom, Mohammadin had already died. No doubt prosecution witnesses have somewhat deviating, but Chhanga (P.W.-2) had corroborated what he earlier alleged in the written report by stating that Umar Khan had tanchia, Kanka had jelly. When Sansu and Aasu raised voice to kill the deceased, Kanka inflicted jelly blow on the head of Akku and other accused inflicted lathi blows on him. When Akku fell on the ground, Umar Khan inflicted tanchia blow on his chin. Thereafter, Samsu, Amru and Kanka dragged Akku towards their village. Jumma Khan and Aasu dragged Hasan Khan. Then both of them were thrown into the room of Sufeda and Samsu and chapper adjoining the room was set on fire. Here Chhanga has deviated from the version given in the written report and his police statement by stating that Jumma Khan, Aasu and another Aasu put lathi on the neck of Hasan Khan and by applying pressure broke his neck. When he was confronted with the written report, he admitted in cross-examination that he did not say so therein. But then his statement in other aspects finds corroboration from the testimony of independent witnesses Puran Singh (P.W.-12), who stated that Sufeda, Kamru, Kanka, Aasu son of Rehman had jelly, Umar Khan had tanchia and other had lathies. They immediately on arrival started beating Akku and Hasan. This witness and his companion police personnel tried to save them but they were also stopped. He stated that he sustained injuries on his left shoulder, back and right arm. Then these people dragged Akku and Hasan Khan towards village Ganvadi. Other 8-10 people came there and they did not allow him and his companion to move further. 7-8 women also came there and encircled them. In this process, time of 10-15 minutes was consumed but finally when they somehow reached Village Ganvadi, they found that Akku was caught hold by accused. On their arrival, accused left the deceased and ran away from there. Chhanga told that these accused had killed Akku and Hasan Khan and threw their dead bodies in locked room of Sufeda. When they went towards that room, they found that chapper adjoining thereto was burning. Window of the room was open through which they could see that dead bodies of Akku and Hasan were lying in the pool of blood. The room was locked from outside. Substantially, similar statement has been given by Dharam Singh (P.W.-13) Assistant Sub Inspector. He has stated that the accused were armed with lathies, jelly and tanchia. Upon arriving, Sufeda and Kanka exhorted other accused to kill Akku and Hasan. They tried to persuade the accused not to take law in their hands, then accused started beating members of the complainant party and in that process, they gave beating to this witness and his companion. He as well as his companion Puran Singh (P.W.-12) sustained injuries. Then these accused dragged Akku and Hasan Khan to their village. They wanted to follow them to their village but then certain women of their village encircled them and did not allow them to move. It took about 15-20 minutes to reach the village where Chhanga met them and informed that these accused had murdered Akku and Hasan Khan and locked their dead bodies in the room of Sufeda and put the chapper adjoining thereto on fire. When they reached there, they saw through window of the room dead bodies of Akku and Hasan were lying in the pool of blood inside the room.

16. Deenu (P.W.-8) and Israil (P.W.-11) are two other important witnesses, who have also provided substantial corroboration to what has been stated by Chhanga (P.W.-2), Puran Singh (P.W.-12) and Dharam Singh (P.W.-13). Deenu (P.W.-8) stated that it was his Maruti Car in which Akku and Hasan Khan went to the disputed agricultural field of village Ganvadi. Police personnel were also present there and prepared site plan. Residents of Village Ganvadi came there and they started beating Akku and Hasan Khan. He stated that Kanka, Sufeda and Aasu had jelly, Umar had tanchia and others had lathies. Kanka inflicted jelly blow on the head of Akku. Kamru then inflicted jelly blow which was followed by jelly blow by Sufeda on head of Akku. Police personnel tried to intervene and save Akku but the accused then started beating them. Akku then fell on the ground. Umar Khan inflicted tanchia blow on his chin as a result of which his chin was cut and teeth were broken. Hasan Khan was also given beating in the same way. Then they both were dragged towards village Ganvadi. He also followed them. These accused took Akku and Hasan in the room of Sufeda and then locked them in the room. Then they were subjected to beating.

17. Israil (P.W.-11) has also stated that Sufeda, Kamru and Kanka had jelly. Umar had tanchia, Kallu and Mast Khan had jelly and others had lathies. Samsu inflicted jelly blow on the head of Akku. Police personnel tried to save him. Even they were subjected to beating. Tulsi and Aasu also inflicted lathi blow on the hands of Akku. Sufeda and Kamru inflicted jelly blow on the person of Hasan Khan. When he fell on the ground, Kanka and Umar Khan put lathi on the neck of Hasan Khan and climbed on both ends of lathi, thereby, breaking his neck. Kanka inflicted tanchia blow on the chin of Akku as a result of which his teeth were broken. Jumma Khan also inflicted lathi blow on the person of Hasan as a result of which his right leg was broken. Then these accused dragged Akku and Hasan Khan towards the room of Sufeda and Kamru where also they were subjected to beating. Then their dead bodies were locked inside the room.

18. Dr. Ramesh Kumar (P.W.-7) has proved post mortem report of Hasan Khan (Exhibit P-20), according to which he sustained 14 injuries all by blunt weapon. Similarly, he has also proved post mortem report of Akku (Exhibit P-21), according to which he sustained 22 injuries all by blunt weapon. Dr. Ram Niwas Yadav (P.W.-15) has proved injury report of Puran Singh (Exhibit P- 24), who sustained five simple injuries by blunt weapon. He has also proved injury report of Dharam Singh (Exhibit P-26), who also sustained five simple injuries by blunt weapon. The fact that the accused-appellant had not bothered for the presence of police personnel and not only mercilessly subjected Akku and Hasan to beating; dragged them to the room and after killing them, locked their dead bodies inside the room and put chapper adjoining of room on fire clearly indicate their intent and purpose. Even if the incident is said to have taken place in two parts whereby the accused gave beating to the deceased at one place and dragged them to another place, as per Puran Singh (P.W.-12), Chhanga (P.W.-2); Deenu (P.W.-8) and Israil (P.W.-11), who were present in the village Ganvadi because they were found there caught hold by the accused and therefore their presence at village Ganvadi where later part of the incident took place cannot be doubted. Even as per Dharam Singh (P.W.-13), when they reached Village Ganvadi, Chhanga (P.W.-2) met there. There is, of course, some deviation in between what has been submitted by prosecution witnesses and but the coherence of the prosecution case is not taken away thereby that it were these very accused who have beaten two deceased to death at the earlier place as also at the later place.

19. We may in this connection refer to judgement of the Supreme Court in Yogesh Singh (supra), in which it was held that prosecution witnesses need not be discarded because of minor contradictions, inconsistencies, exaggerations or embellishments, if they are corroborated on material aspects by other evidence on record.

20. While a jelly has been recovered at the instance of accused Sufeda vide Exhibit P18; lathi has been recovered at the instance of accused Aasu son of Lukka vide Exhibit P15; stick has been recovered at the instance of accused Samsu (Exhibit P-17), jelly has been recovered at the instance of accused Kamru (Exhibit P-19); tanchia has been recovered at the instance of accused Umar Khan vide Exhibit P-14. We are therefore not inclined to uphold the argument of learned Senior Counsel appearing on behalf of the accused-appellant that the appellant did not have any common object inasmuch as they did not form any unlawful assembly. It is settled law that unlawful assembly in a given case can be developed even on the spot. We may in this connection refer to judgement of the Supreme Court in Ganga Ram Sah & Others (supra) wherein the Supreme Court was dealing with a case where accused were armed with gun and lathies and had gone to complainants home. Appellant 1 therein exhorted accused to attack complainant party pursuant to which, one of the accused fired two gunshots killing complainants brother. While other accused assaulted complainant and his other brother causing them grievous injuries. Motive for commission of offence viz. previous animosity inasmuch as complainant had chastised accused for damaging his crops was established in that case. Presence of the Appellant 1 at place of occurrence ensuing assault and death at his exhortation also proved. The Supreme Court held that common object of unlawful assembly has to be inferred from membership, weapons used, nature, number and location of injuries caused as well as other surrounding circumstances. It was further held that the accused therein were very well aware of consequence of their action and hence courts below after rendering a finding on common object were justified in convicting them under Sections 302/149 and 307/149 IPC.

21. The Supreme Court in Iqbal & Another (supra) was dealing with a case where 6 accused armed with rifles and katta alleged to have formed unlawful assembly with object of killing members from complainants party in furtherance of which intention they entered complainants home, enquired whereabouts of complainant. The moment accused exhorted others to fire at complainant resulting in his death and causing injuries. It was held that when common object of unlawful assembly is proved, separate roles played by all accused need not be examined as all members of unlawful assembly would be vicariously liable for acts done by the assembly.

22. At this stage, it is informed that accused-appellant namely Sufeda and Kamru have already served out their sentence pursuant to judgement and order passed by the trial court.

23. In view of above, present appeal qua accused-appellants Umar Khan; Mast Khan and Mohammadin stands dismissed as having abated. Appeal qua accused-appellants Sufeda, Kamru, Samsu, Aasu son of Lukka, Jumma Khan, Nor Khan and Kallu fails and is dismissed. Their conviction and sentenced awarded by the trial court is affirmed. The fact whether Sufeda and Kamru had already served their sentence and been released may be verified and if it is found to be correct, they need not be put behind the bars. Samsu is said to be in jail and may serve out remaining sentence. Aasu son of Lukka; Jumma Khan, Nor Khan and Kallu are on bail. They are directed to surrender before the trial court to serve out their remaining sentence. Present appeal qua accused-appellant Aasu son of Rehman stands allowed. He is acquitted of the charges framed against him. He is on bail and need not surrender. His bail bonds stands cancelled.

24. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, namely, Aasu son of Rehman is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave Petition being filed against this judgement or on grant of leave, he, on receipt of notice thereof, shall appear before the Supreme Court.