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[6] Learned counsel for the appellants in Criminal Appeal No. 408/2000 submits that Pancham Singh, who was armed with ballam and had caused injury to Indrapal close to his eye, has died. It is submitted that accused Baldhari, Brahmanand, Munna Lal and Baburam are real brothers. Accused Brahmanand, Munna, Baldhari and Jagat Singh were armed with lathis, whereas Ramlakhan and Pancham were armed with ballam. According to complainant Indrapal Singh (PW-1), all these persons started beating his brother Ranveer Singh, Bachan, Brajpal and Ramjilal. Ramlakhan hit him a ballam causing injury below his eye. It is submitted that injured Bachan Singh and Parvati sustained simple injuries, whereas Ranveer was referred for MLC vide Exhibit P-4. In the MLC, it was found that patient was in a state of shock. Treatment was given to him and his dying Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 declaration was taken by Tahsildar. There was a circular wound over right shoulder joint near armpit measuring 1 cm x 1 cm in diameter, edges were inverted and blackened, blood was oozing from wound. Direction of wound was medially inferior and posteriorly. There was a exit wound measuring 6 cm x 6 cm in diameter, margins were irregular and everted, muscle piece. Injury was reported to be grievous in nature caused by gunshot. Ranveer was referred to J.A. hospital Gwalior. In x-ray report Exhibit P-7, fracture of scapula and head of humerus of right side was seen. It is submitted that there was allegation of causing gunshot injury on Baburam, and therefore, offence under Sections 148, 149, 324 was enhanced to 307 IPC. It is submitted that MLC of Parvati widow of Chuttan Singh Exhibit P-6 reveals abrasion on right temporal and one abrasion over scalp of right side and doctor opined injury to be simple in nature caused by hard and blunt object. It is submitted that thus it is apparent that fight had taken place at the spur of moment because of old enmity between two rival parties who had visited house of Indrapal Singh on account of Pata (death ritual) of his father. There was no premeditation, and once trial Court has recorded finding of acquittal under Sections 148, 324/149 and 323/149 of IPC and has also recorded a finding that any of the accused in Criminal Appeal No. 408/2000 had not caused any injury to Bachan Singh and Parvati in furtherance of their common object or common intention, and taking into consideration the fact that Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 statements of Bachu Singh and Parvati Bai were not recorded before the Court, it is a case where individual act is to be seen, and therefore, there could not have been any conviction under Section 307/149 IPC. [7] Learned counsel for the appellants referring to statement of Indrapal (PW-1) submits that accused Baburam Sharma, Mahendra, Ramjilal, Ramavtar were invited for a family function at his place. There was old enmity between Ramavtar and Baburam Sharma. Accused Babu Sharma abused Ramavtar. Bachu Singh and Raghunath tried to intervene in the matter, when suddenly attack was made by Ramlakhan, Munnu, Baldhari Brahmanand on Ramavtar and Ramjilal who tried to intervene in the matter, when, Baburam Sharma, fired a gunshot from his katta hitting Ranveer. It is alleged that Brajpal sustained lathi blows on his knee whereas Ramjilal Sharma also sustained injuries. Ramlakhan hit him with a ballam below his eye, therefore, a report was lodged at police chowki. It is submitted that Court statements of Indrapal (PW-2) are contrary to his case diary statements Exhibit D-2 inasmuch as in his case diary statement under Section 161 Cr.P.C, this witness has deposed that Pancham Singh had hit him with a ballam causing injury on his left cheek. He had not seen as to who had caused injury to Ranveer Singh and some how he managed to escape so to reach police station. Reading case diary statement of Indrapal, it is submitted that there are several omissions and contradictions in the Court statement of Indrapal Singh (PW-1) Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 and after gathering fact of death of Pancham, he has improvised his statement so to frame Ramlakhan alleging causation of injury by Ramlakhan with a ballam on his left cheek. It is also submitted that since name of Baburam has not been mentioned in the list of persons who had caused injury with katta to Ranveer in statements under Section 161 Cr.P.C, this is also an improvisation in his court statements. It is submitted that in Para 6 of his court statement, this witness has though denied giving a statement that complainant party had also sustained injuries but this is contrary to the statement (Exhibit D-2). It is also submitted that Mangal Singh (PW-8) has admitted that Baburam had not returned money borrowed from Ramjilal and that was the bone of contention. It is submitted that Ramjilal was serving food whereas Ramavtar was sitting. According to Mangal Singh (PW-8), he had categorically mentioned in his case diary statement that Baburam had caused gunshot injury to Ranveer whereas Baldhari had hit Bachhu Singh with a lathi and Jagat Singh had hit mother of Indal i.e. Parvati with lathi. In view of such testimony of prosecution witnesses, it is submitted that all the accused could not have been convicted under Section 307 IPC with the aid of Section 149 IPC. Therefore, since the incident had taken place at spur of moment, individual act of accused is to be seen as there was no common intention or common object.

[10] Learned counsel for the appellants in Cr.A. No.408/2000 submits that in Para 23, a categorical finding has been recorded that accused persons in the night of 16.09.1989 had not committed any rioting in furtherance of common object and accordingly they have been acquitted from the charges under Sections 148, 324/149, 323/149 of IPC, but without assigning any reason, as to how offence under Section 149 IPC is made out when the court has recorded a categorical finding in regard to lack of common object, convicted them under Section 307/149 IPC, and therefore, conviction of all the accused under Section 307 IPC with the aid of Section 149 IPC is not made out. Attention is also drawn to the fact that Bacchu Singh and Parvati Bai have not been examined by the prosecution, and therefore, it cannot be said that each of the accused was an active participant in the incident. It is also submitted that overt act of firing of gunshot is specifically attributed to Baburam. Allegation on Pancham was of hitting Indrapal Singh but MLC of Indrapal Singh has not been placed on record. Prosecution has placed on record MLC of only Bacchu Singh, Ranveer and Parvati Bai, and prosecution has not examined Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 Bachu Singh and Parvati Bai; therefore, conviction of all the accused under Section 307 IPC with the aid of Section 149 IPC is not made out.

[12] Brijpal (PW-3) has not supported prosecution story and he has categorically deposed that nothing happened in front of him and he did not sustain any injury. Besides this, Police had not made Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 any enquiry from him. Similarly, Ramjilal (PW-4) has partially supported prosecution story and has alleged that he saw Baburam firing a gunshot from his katta on Ranveer hitting Ranveer in his left shoulder but he had not seen anybody else hitting any other person. According to him, Baldhari, Munnalal and Brahmanand hit him with lathi on his left wrist. He admitted that out of these three, lathi of Munnalal had hit him on his wrist. There is a contradiction in case diary statement (Ex.D-3) and Court statement of Ramjilal (PW-4) inasmuch as in case diary statements he has attributed a lathi below on his left hand to Baldhari, whereas in Court statement he has given name of Munnalal and there is no MLC of PW-4 to support such allegations. Raghunath Singh (PW-5), father of injured Ranveer, has also admitted that it was Baburam who has fired a gunshot from his katta hitting Ranveer on his right shoulder. Ramjilal (PW-4) has tried to rope in different persons in Court statements against his case diary statements, and therefore, it is apparent that testimony of this witness is not wholly reliable. However, principle of "falsus in uno falsus in omnibus" is not applicable in India, and therefore, to the extent that all the witnesses are consistent in their testimony in regard to role of Baburam firing a gunshot on Ranveer, coupled with the fact that Dr. Mudgal (Exhibit P-11) has deposed in his cross-examination that injuries of Ranveer Singh were grievous, and therefore, he was referred vide Exhibit P-7 to J.A. Hospital, Gwalior for needful Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 treatment. As per x-ray report (Exhibit P-7), fracture of scapula and head of humerus of right side was found. Therefore, it is apparent that mere presence of other accused in a family function of Indrapal (PW-

13) that Ranveer had sustained gunshot injury; Bachan Singh, Indrapal and Parvati too sustained injuries, then it was for the prosecution to explain that how such injuries were sustained by the members of the accused party.

[42] Therefore, in light of the law laid down in case of Laxmi Singh (Supra), it is apparent that there is omission on the part of the prosecution to explain the injuries on the person of accused specially when prosecution has examined only interested and related witnesses and has not bothered to examine any of the independent witnesses contrary to testimony of G.S. Sharma (PW-12), who had conducted investigation in the matter and had recorded statements of such independent witnesses. This witness has admitted several over writings in the seizure memos Exhibit P-7, P-8, P-9 and P-10 and admitted that no seizure was made in terms of Exhibit P-11, P-12 and P-13, which are the memorandum under Section 27 of the Evidence Act, coupled with the fact that prosecution has not examined any of Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 the witnesses of seizure, namely, Vidyaram, Arjun Singh, Dev Singh, Chatur Singh, Narendra Singh in support of such seizures. [43] There is substantial force in the argument of learned counsel for the appellants that even if an accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from the material on record. Admittedly, Baburam was armed with a gun, Ranveer had sustained gunshot injury in his shoulder, and therefore, even if plea of private defence is not accepted, the fact remains that trial Court has erred in recording a finding that appellants were the aggressors. This is contrary to the natural conduct of the parties inasmuch as if the holistic view of the situation is visualized and taken into consideration then at the first instance altercation took place between Baburam and Ramavtar at place of Raghunath. There were only 7 members of the party of Baburam. Out of which even presence of two is doubtful inasmuch they admit that after hearing cries of a dispute, had returned back from the house of Ramlakhan, yet these seven persons could escape from the clutches of 15 persons allegedly armed with deadly weapons appears to be improbable specially if they would had common intention or common object to eliminate the members of complainant party. Also looking to the fact that weapons like Ballam, lathi, farsa attributed to accused persons would not have caused simple injuries to Ramlakhan (PW-1), Jagat Singh (PW-6), Baburam, Baldhari, Brahmanand, and Munnalal, as has Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 been mentioned by PW-13. In MLC report Exhibit P-24, it is clearly mentioned that though simple injuries were caused by hard and blunt object, but PW-13 doctor has admitted that they could be due to fall. Similarly, as per MLC (Exhibit P-25-A) of Jagat Singh, he sustained simple injuries caused by fiction with hard and blunt object and could be caused due to fall. Baburam sustained simple injuries vide Exhibit P-26-A caused by hard and blunt object. Baldhari (PW-3) also sustained simple injuries caused by hard and blunt object vide Exhibit P-27-A, whereas no external injury was seen on the body of Brahmanand vide Exhibit P-28-A. Munnalal also sustained simple abrasion caused by friction, therefore, except for the injury sustained by Pancham Singh as mentioned in postmortem report (Exhibit P-45) attributed to Bachan Singh, none of the members of the complainant party sustained any grievous injury which could have been easily caused by danda, lathi, ballam, and therefore, in absence of a common object, conviction of all the other appellants except Bachan Singh under Section 302 with the aid of Section 149 IPC cannot be sustained in the eye of law, as has been held in case of State of Maharastra Vs. Kashirao & Ors., as reported in AIR 2003 SC 3901 that 'common object' of unlawful assembly is different from 'common intention' as it can develop during course of incident at the spot coinstante. The meaning assigned by the prosecution to 'common object' is attainment of common object and object means purpose or design and in order to Criminal Appeal Nos. 408/2000, 449/2000, 465/2000 & 545/2000 make it common, it must be shared by all and no proof of overt act is necessary.