Prem Prakash, J. - (1.) THE State of Uttar Pradesh has directed this by the 1st. Temporary Civil and Sessions Judge, Barabanki, for offences under sections 147, 148, 302 read with sections 149, 325 read with sections 149 and 323 read with section 149 Penal Code upon an indict ment that they in village Sidhaur, police circle Asandra (District Barabanki), formed an unlawful assembly with un known persons in the house of Idris, at about 4 or 5 P.M., on 8th. March, 1967, and that, in prosecution of the common object of the unlawful assembly, they committed the murder of Idris and caused hurt to his two brothers, Moharram Ali and Dastgir, (P. W. 8) as also to his labourers, amongst them being Mijjan (P.W. 2) and Saheb Din (P.W. 4). In the F.I.R. Putti, Gajjoo, Adharey and Iddu had been named as the culprits. THE investigation had submitted charge-sheet for the prosecution of Putti, Gajjoo, Adharey and Iddu as well. Gajjoo died during the pendency of the appeal and, therefore, the appeal abated against him. Putti was declared an absconder; his trial was accordingly separated. Adharey died after the committal of the case and Iddu died before the charge-sheet was submitted. THE house of Idris, who was a well-to-do man of the village, was situate in the midst of the village abadi; in the northern proximity were the houses of his two brothers, Moharram Ali and Dastgir. His house had two exits-one towards the east which opened in the galiyara which leads off towards north. To the north of this galiyara was the house of Ramjani (P.W. 6) and to its east was the house of Tahir and Sirajuddin (P. W. 5). Inside the house of the deceased there was a court-yard four or five steps in width and 8 or 9 paces in length. To the west of this court-yard was a verandah and a kothri and also there was a barotha near the eastern exit. On the fateful day the eastern exit was unlocked, but other exits of the house had been locked. THE eastern exit opened on the chabutra near the galiyara. Briefly, stated, the prosecution story was this : About a week prior to this unfortunate incident the deceased had purchased the tobacco field belonging to Ghulam Lodh and had paid Rs. 300/-as earnest money. Ghulam Lodh, how ever, sold that plot subsequently to Zahoor and Gajjoo. In the morning of 8th Match, 1967, at about 8 A.M. Mijjan (P. W. 2), one of the servants of the deceased, met Ghulam Lodh in the way and complained to him why he had sold the field to Zahoor and Gajju. THEre was a verbal altercation between the two which brought Gajjoo and Zahoor on the spot. Apprehending an assault upon him by the latter two, Mijjan ran to Idris and told him what had happened. Idris went to Gajjoo Zahoor and Ghul am. On return from there, the deceased told his wife that Gajjoo, Zahoor and Ghulam were bent upon a quarrel. At about noon the deceased learnt that Zahoor and others were collecting per sons. On hearing that, Idris called for his labourers working at his tobacco field, they being nine in number. THE labo urers, however, became busy in separating tobacco leaves from the stumps, inside the house. At about 5 P.M. when the deceased, his servants Munney and Mijjan (P. W. 2) his wife Smt. Sughra (P. W. 1) and his two brothers, Dastgir (P. W. 8) and Moharram Ali were sitting on the Chabutra outside the house, 20 men appeared in the galiyara. Putti (the absconder) was holding a hand-grenade and a country-made pistol. On seeing the miscreants those who were sitting out side his house, ran inside ; they closed the eastern exit, but some of the miscreants climbed down the house and opened the exit. THEreafter all those, who were outside his house, also entered the inner court-yard. On seeing them the deceased, his son, and his two brothers ran to take shelter in the western kothri and closed the door. THE labourers including Mijjan and Munney, however, stayed in the inner court-yard. THE miscreants assault ed the labourers in the court-yard. THEreafter, they broke open the western kothri and dragged from there the deceased and his two brothers. THEy gave them a beating with lathis. Putti had thrown the hand-grenade inside the house. When Smt. Sughra rushed to the rescue of her husband, the accused Chauhan caught hold of her. On account of the severe beating, Idris had been dropped in the inner court-yard. THEn Zahoor, one of the accused, exhorted his companions to kill him. Zahoor placed bricks underneath the head of Idris. Zahoor and Santey holding a lathi on one side and Gajjoo and Adharey hold ing it on the other end pressed the neck of Idris which resulted in his instantane ous death. THE culprits escaped away uncaught. THE noise attracted Ramjani (P. W. 6) and Sirajuddin (P. W. 5), living in the close proximity of the house of Idris. THEy saw from their doors the escaping culprits. It was quarter to an hour before sun-set. Amongst the injured labourers were Saheb Din (P.W. 4) and Mijjan (P.W. 2). THE dead body of Idris was removed on a cot in the Tirwaha of the house. THEreafter, Smt. Sughra dictated the report of the occurrence to Sheo Prasad (P.W. 11), the peon in the Sidhaur Block, at a distance of about 100 yards from her house, which was carried to the police station by Badal Chaukidar to whom it was delivered in that very night at about 2.30 A. M. Badal made it over at the police station at 7.55 A.M. in the following morning. In this report she named the appellants along with three others as the assailants; it was also stated that the assailants also included some unknown men. THE Station Officer was not present at the police station. THE case was registered and the check report was prepared by Head Constable Udai Bhan Pathak (P.W. 7). After re ceiving the check report and other papers, Sri Kunwar Pratap Singh (P.W. 10), the then Station Officer, rushed to the spot reaching there in the afternoon. He per formed the inquest on the dead body and sent it to the mortuary for post- mortem examination. Bloodstained earth was re covered from inside the house of the deceased. He also found burnt pieces of handgrenade in the court-yard. Smt. Sughra was interrogated. THE injured were sent to Zaidpur Dispensary for ex amination and treatment. THE site-plan was prepared and after usual investiga tion the police submitted charge-sheet as a result of which the appellants were committed to the court of sessions and tried by the learned Addl. Sessions Judge as indicated above. THEre can be no doubt that Idris, his two brothers and his nine labourers were assaulted in the inner court-yard of the house. Idris had been assaulted in a most brutal and dastardly manner by the assailants as it would appear from the number of injuries found upon his per son, they being about 30 in number, all caused either by lathi blows or as a result of his being dragged from inside the kothri. We need not describe in detail such injuries. It would be sufficient for our present purpose to state that he bore abraded contusions on the right side of neck in middle and in front of neck middle and lower part. THEre was a lacerated wound 6 cm, x 2 cm. x scalp deep on back of head right side. He also bore abrasions on the back and other parts of the body. His stomach was empty. THE small intestines were also empty. In the opinion of Dr. B. S. Mathur, who performed autopsy on the dead body, death was due to asphyxia as a result of strangulation. Moharram Ali bore a number of con tused wounds and contusions, besides abrasions on the back of left shoulder. THE injuries were 13 in number. Saheb Din bore a contused wound 6" x " X bone front of left side fore-head besides two contused wounds on the right side of head. He had also suffered a number of contusions on the right and left shoulder and on his left fore-arm. His injuries were about 15 in number. Munney had also received contusion and lacerated wound, the former on the front of lower neck left side and the latter on the inner side of the lower lip. Dastgir bore 12 injuries, they being contused wounds and abrasions on various parts of the body. Amongst the other injured labourers were Mangrey, Tejai, Ram Asrey, Ayodhya, Tilak, Bishnu, Bali Natk and Sukhi. Each of them had suffered not one but many injuries, all caused by lathis. Some of them had received blows on their head. Mijjan (P.W. 2) was examined in the Balrampur Hospital on 9th March, 1967, at 5.40 P.M. THE learned Sessions Judge has overlooked the injuries suffered by him, though, as it would appear from the injury report (Ext. Ka- 42), they were as many as 15, a large number of them being contusions. In the opinion of Dr. Nagi, whose statement made in the com mittal court tendered in evidence, they coincided in duration with the time of the occurrence and they had been caused by lathis. From a bare perusal of the injury reports it is unmistakably clear that there is no conflict between the medical evidence and the ocular testimony and this conclusion has also been reached by the learned Sessions Judge. THE medical evidence in the present case is a very important piece of evidence to adjudge the credibility of the eye-witnesses when they unfold the manner in which the crime was executed. In particular stress may be laid when the version of the prosecution which Idris was dragged from inside the kothri and was, thereafter strangulated to death in the manner des cribed by Smt, Sughra (P.W. 1), Mijjan (P.W. 2), Dastgir (P.W. 8) and Saheb Din (P. W. 4). THE accused pleaded innocence and their main defence was that they had been falsely implicated due to factional animus, admittedly, there were two fac tions in the village, one led by Pashey M ian and manned by the deceased, the two witnesses Ramjani and Sirajuddin along with others, and another of which the architect was Jamil Pradhan. Zahoor denied to have purchased tobacco field from Ghulam or to have entered into any verbal altercation with Mijjan or Idris in the morning of that day. THEy did not, however, adduce any evidence in defence, although they made varying suggestions to the prosecution witnesses contending the time of occurrence. To Smt. Sughra it was suggested that some unknown persons had in the night com mitted the crime and to others a sugges tion was posed that the incident had taken place outside the house when it was dark (vide P. W. 2 and P. W. 1). Also it was suggested to Saheb Din (P.W. 4) that a dacoity was committed in the house of Idris in that night in the course of which he lost his life. THE learned Sessions Judge, while accepting the version of the prosecution that the occurrence had taken place inside the house of Idris, held that the prosecution had not succeeded to proving the guilt, the time of the occurrence, and the manner of the execution of the crime beyond reasonable doubt. His findings are that the occurrence had taken place during the night; the report of the occur rence was not dictated as claimed by the prosecution by Smt. Sughra, to Sheo Prasad (P.W. 11) after the occurrence and that it was prepared in consultation with interest ed persons and lodged the next day at the police station. THE indications, as held by the learned Sessions Judge, were that a dacoity was committed in that night in the course of which Idris met his death and his mother labourers received in juries. Adverse inference was drawn from the absence of injury on the person of Smt. Sughra, who, if who was there, would not have been spared by the assailants. THE evidence of Mijjan (P.W. 2) and Saheb Din (P.W. 4) was rejected as being unworthy of belief on the ground that the former was in the employ of the deceased and the latter was a permanent labourer of Idris. Dastgir (P.W 8) being the real brother of Idris, his testimony, in the opinion of the learned Sessions Judge, also did not inspire belief. About Mijjan (P.W. 2) the learned Sessions Judge has said that since he had named Rameshwar and Chhotey wrongly as amongst the assailants, his testimony was unreliable. Further, the learned Sessions Judge dis carded the evidence of the eye-witnesses on the ground that they were not consis tent in naming the culprits in the state ments made in the course of investigation and what they said at the trial. Conse quently, a finding of not guilty was re turned against all the appellants. We have been taken through the entire record and the judgment of the learned Addl. Sessions Judge and we are of the opinion that the finding of acquittal is manifestly improper and substantially incorrect. THE Addl. Sessions Judge appears to have relied on certain circum stances which were not at all material and which did not admit of any adverse in ference against the prosecution. Some of the reasons given by the Addl. Sessions Judge were based on pure speculation. In giving the findings the learned Sessions Judge completely overlooked certain im portant aspects of the evidence which was adduced before the court. THE rejection of the testimony of Dastgir, Mijjan, Saheb Din and Smt. Sughra rests on conjectural and fanciful grounds. We are conscious of the rule that the appel late court should be slow and circums pect to disturb a finding of fact, nonethe less if it is of the opinion that the finding of fact shakes the sense of justice or has been unreasonably arrived at, there is no limitation on its power to interfere with the order of acquittal. With this preface, we now proceed to deal with the arguments canvassed before us by the counsel for the parties. THE first contention raised by the learned Government Advocate was that the finding of the trial court that the F.I.R. was lodged not at the time mentioned in it but much later and after the deliberation was not at all justified. Smt. Sughra (P.W. 1) dictated the report of the occurrence to Sheo Prasad (P.W. 11), the Peon at the Sidhaur Block, at about 7 P.M. on that day. Sheo Prasad has stated on sworn testimony that he had scribed the report at the house of Smt. Sughra. He denies to have any associa tion wich Pashey Mian; nothing was elicited which could show his bias in favour of the faction led by Pashey Mian. He has refuted the suggestion that he had written the F.I.R. in the following morning in consultation with Pashey Mian, and after the arrival of the Investi gating Officer. In the committal court Smt. Sughra had no doubt stated that she had gone to dictate the report at the Block. When she was confronted with that statement she denied to have made it. We are unable to accept it as a material contradiction so as to throw doubt upon her claim that she dictated the report to Sheo Prasad at 7 P.M. on that day. Sheo Prasad is a witness of credit. His association with Pashey Mian is not proved. According to the general diary of the police station (Ext. Ka-5), the report was made over by Badal Chaukidar at the police station at 7.55 A.M. THE inquest report, which was prepared by the Investigating Officer after his arrival in the village on 9th March at 12.45 P.M., recites that the report was lodged at 7.55 A.M. on 9th March. THE chalan sent with the dead body also dis closes that the report was lodged at that hour on 9th March. THE dead body was received in the Sadar at 11 P.M., the distance between the scene of occurrence and the Head-quarters being 18 miles. May it be that Dastgir and Moharram Ali, who had suffered good number of injuries, and others of the group of the deceased did not take steps to get the report written or to get it lodged at the police station in that very night, but since in the aftermath of the occurrence uneasi ness must have prevailed in the locality, no adverse inference can be drawn from it, more so, when there is nothing to warrant that the Investigating Officer fabricated or manufactured the docu ments prepared at the police station. What as tersible reason could impell the police of police station Asandra to indulge in the fabrication, the evidence fails to answer. Smt. Sughra has consistently stated that she gave over the report to Badal Chaukidar at 2.30 A.M. in that night. THE entry of the general diary shows that Badal Chaukidar had lodged the report written by P. W. 11 Badal Chaukidar would have taken time to reach the police station, at a distance of six miles from village Sidhaur. THEre was thus no inordinate delay in lodging the report. It was said that police constables, who were on patrol duty, had visited the house of Smt. Sughra after the occur rence. THE learned Sessions Judge has taken the view that if the occurrence had taken place at 4 or 5 in the evening, the police constables would have been told about it disclosing the identity of the assailants. Indeed, it was the duty of the patrol party to send the information at the police station but if they were negligent in the performance of their duty the prosecution cannot suffer. No question was posed to Smt. Sughra as to why she did not send the report through the police patrol party. Smt. Sughra, when examined on that point, said that she had no talk with the patrol party and that was not an unnatural conduct in the circumstances in which the incident had taken place. In these circumstances, we are fully satisfied that the F.I.R. was dictated by Smt. Sughra to Sheo Prasad (P.W. 11) at about 7 P.M. on that day which report was taken by Badal Chaukidar to the police station making it over there at 7.55 A.M. the next day. THE finding of the learned Sessions Judge that a dacoity was committed in the house of the deceased in that night is wholly unwarranted. We have already referred to the varying suggestions made in that behalf to the prosecution witnesses in the course of their cross-examination. THE accused persons resided in that very village and it is astonishing that neither in their statements made in the committal court nor in those made under section 342, Cr. P. C., did they assert that the deceased was the victim of the dacoity. We are conscious of the rule that the accused is not bound to speak and the burden to prove the guilt rests through out on the prosecution, but the statements made in the committal court and in the court of sessions can certainly be taken into consideration while evaluating the evidence of the prosecution. THE manner, in which Idris was done to death after having been taken out from inside the kothri, where he had hid himself, negatives in our opinion, that the mis creants had come to commit dacoity. If there was an armed dacoity, the mis creants would have ransacked the house and removed or attempted to remove the valuables, but the evidence does not in dicate that the learned Sessions Judge has observed that the miscreants broke open the room to enquire from Idris about the valuables etc., but we do not find anything in the evidence to sustain that observation. THE assailants broke open the door to take out Idris from inside the kothri to pay off -old scores, spark to which was caused by the protest, made on the purchase of the tobacco field from Ghulam Lodh which the deceased had already purchased. If the culprits entered the kothri to the valuables, some of them, when they were about 20 in number, would have disturbed the mov ables and decamped with whatever they could have found. It is in evidence that traces of used hand-grenade were found inside the court-yard of the house. Fur thermore, we have the independent testimony of Sheo Prasad (P.W. U) who in his cross- examination has unequivo cally declared that he did not hear about any occurrence in the night, although the main exit of the house of the deceased was visible from the building of the Block where the witness had been living in those days. THE witness stayed in the Block building during the whole night. In absence of anything to doubt the testimony of the witnesses, we are driven to the conclusion, re- enforced by the circumstances afore-mentioned, that the claim of the defence that the deceased and others were the victims of the dacoity in that night was a pure figment of im agination. THE plea has an air of artifi ciality around it. THE trial court was not at all justified in holding that the occurrence had taken place in the night and that the deceased and others suffered injuries in the course of the commission of dacoity. We may note that the stomach of Idris was found empty by Dr. Mathur who performed the post-mortem exami nation which may be used as another circumstances to set at naught the defence plea about the time of occurrence. THE next ground, which prevailed with the learned Sessions Judge, was that the evidence of the eye- witnesses consisted of partisan evidence and should not, therefore, be relied on particularly be cause the evidence shows that there were two opposing factions in the village-one led by Pashey Mian and the other manned by some of the accused. THE testimony of Dastgir (P.W. 8) was rejected because he happened to be brother of the deceased and the testimony of Mijjan and Saheb Din was discarded because they happened to be the labourers in the employ of the deceased. Ramjani and Sirajuddin were, no doubt, co-accused with Idris in a riot case brought against the factions of Pashey Mian. But in the present case theirs was not the only evidence to establish the complicity and participa tion of the accused in the crime. THE presence of Mijjan and Saheb Din in the house of the deceased at the time of the occurrence cannot be disputed ; they bore injuries not one, but many. THEir claim that the deceased apprehending some trouble from Zahoor and others had brought his labourers to his house who were staying in the court-yard of the house when the assailants directed the aggression, is equally worthy of belief. A number of them had received injuries. THE circumstance that none of them wielded lathis in self-defence recedes to the background when we find them the sufferers of the occurrence. THE learned Sessions Judge has rejected their testimony on grounds which are far from being tenable. May it be that Mijjan was the servant of Idris, but it is not established that he was also the member of that faction. Saheb Din was prosecuted for dacoity, but that was done only after this occurrence. It cannot be accepted that because he was prosecuted for a crime, his testimony, if otherwise reliable, should be said to have sprung from a tainted origin. THEre was nothing in evidence to show that he was permanently in the employ of Idris, and, even if it was so, in absence of his affiliation with the faction, he could not be dubbed as a partisan witness. In these circumstances, even if the evidence of Ramjani and Sirajuddin be treated to be partisan, there was the evidence of Saheb Din (P.W. 4) and Mijjan (P.W. 2) ho could not be regarded as interested witnesses in view of the test laid down by the Supreme Court in Dalbir Kaur v. State of Punjab (I). At page 282, Mr. Justice Fazl Ali, speaking for the Court, ob served : "THE term 'interested" postu lates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some Other reason." In the Instant case, there is absolutely no evidence to indicate that either Mijjan or Saheb Din bore any ill-will or hostile animus against the accused persons. THEir presence at the spot is more than certain. THEir evidence is consistent with the medical opinion. THE learned Sessions Judge fell into error in not even noticing that Mijjan, who had a verbal altercation with Zahoor about the purchase of tobacco field, suffered injuries in the occurrence. THE presence of Dastgir (P. W. 8), the brother of the deceased, at the time of the occurrence cannot also be gainsaid. THE learned Sessions Judge has not chosen to appraise his testimony in the light of the probabilities of the case and with reference to the medical evidence which, as we have already said at the outset, is in conformity with the ocular testimony. THE mere fact that he is a relation of Idris is not sufficient to dis card his testimony. Normally close rela tives of the deceased would not be consi dered to be interested witnesses who would falsely mention the names of persons as responsible for causing injuries to the deceased. See Dalip Singh v. State of Punjab (A.I.R. 1953 S.C. 202.); Guli Chand v. State of Rajasthan (A.I.R. 1974 S.C. 276.) and Piara Singh v. State of Punjab (A.I.R. 1977 S.C. 2274.). According to the law laid down by the Supreme Court, the evi dence of interested or inimical witnesses has to be scrutinised with care, but it cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the court is satis fied that the evidence is trustworthy, there is no bar in the court relying on the said evidence. In the present case, we have the ocular testimony furnished by those who were inside the house and who saw the entire occurrence from the time the miscreants entered the house till they left it. THE learned Sessions Judge has, however, overlooked these important aspects of the case and we find no reason to distrust the evidence of Dastgir even on its intrinsic merit. We have carefully perused the evidence of Mijjan, Saheb Din and Dastgir as also the evidence of Smt. Sughra and there are no strong or cogent reasons why their evidence should be completely discarded. Counsel for the respondents has urged that if Smt. Sughra was present and ran to the rescue of her husband, she would have suffered blows from the hands of the assailants and got blood marks on her clothes when she lifted the dead body to the cot. We are unable to agree with the submission. Smt. Sughra did not weep over the dead body. THE assailants had come with the object to kill Idris and gave a beating to others who offered resistance in their way. Those, who were inside the house, were unable to counter the aggression in the exercise of the right of private defence. Smt. Sughra had declared in the F.I.R. that when she ran towards her husband, she was caught by two of the assailants and she consistently named Chauhan as one of those two assailants. It was at the instance of Smt. Sughra that Sheo Prasad (P.W. 11) had scribed the report in that very evening. In these circumstances, the absence of injuries upon her cannot lead to the in ference that she was not there. Another circumstance, which appears to have weighed heavily with the learned trial Judge, was that no independent witness of the locality had been examined by the prosecution to prove the prosecu tion case of the assault on the deceased and others. In our opinion, the com ment of the Addl. Sessions Judge is based on serious misconception of the correct legal position. THE onus of proving the prosecution case rests entirely on the prosecution and it follows that the pro secution has complete liberty to choose its witnesses if it has to prove its case. Before an adverse inference can be drawn, it is essential to show to the satis faction of the court that the witnesses who had been withheld were eye- wit nesses who had actually seen the occur rence and were, therefore, material to prove the case. In the instant case, the evidence of the eye-witnesses does not suffer from any infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted and his house was surrounded, a large crowd had gathered and some of them had seen the occurrence. It being a faction-ridden village, no body was to be a witness if he could avoid it. When the occurrence was taking place inside the house, it is only those who were present inside the house who could describe the occurrence and disclose the identity of the assailants. In these circumstances, the lack of other evi dence does not introduce an infirmity in the prosecution case. THE learned Sessions Judge was not at all justified, in our opinion, in drawing an adverse inference against the prosecution from this fact, specially, to emphasise again, when these, who were inside the house, have con sistently stated about the manner in which the crime unfolded itself in the inner, court-yard of the house. Thus, after construing the evidence of the four eye-witnesses Smt. Sughra (P.W. 1), Mijjan (P.W. 2), Saheb Din (P.W. 4) and Dastgir (P.W. 8) on their intrinsic merits regard being laid to the fact that substantial aspects of the pro secution story were deposed by them consistently and further having taken into consideration the fact that the ocular testimony is in complete harmony with the medical evidence, we are satisfied that their evidence contains a ring of truth and they have proved the prosecu tion case generally. THE finding of the trial court to the contrary and the reasons given in arriving at that finding are against the weight of evidence and the probabilities inhering the prosecution story. THEy are manifestly improper and in arriving at them the learned Sessions Judge has misconceived the correct legal position with respect to the evaluation of testimony of the relations of the victim and of those whose presence at the spot was more than certain. In our opinion, it is indubitably estab lished that twenty men known and un known armed with lathis, hand-grenade and fire-arm formed an unlawful assembly in the house of Idris at about 4/5 P.M. that day and without any provocation or excuse whatsoever, they in prosecution of the common object, not only resorted to severe beating to those inside the house but also proceeded to commit the murder of Idris. May it be that the evi dence assigns the actual killing to four of the appellants, namely, Zahoor, Sante, Adharey (who died after committal) and Gajjoo (since then dead); and to Chauhan the overt act attributed is that when Smt. Sughra on seeing the fatal operation ran to the rescue of her husband, he caught hold of her and did not let her intervene. Nonetheless, the vicarious liability under section 149, Penal Code does not always proceed on the basis that the offence has been actually committed by other member of the unlawful assembly. Section 149 makes it clear that if an offence is committed by any mem ber of the unlawful assembly in prosecu tion of the common object or such as the members of the unlawful assembly knew it likely to be committed in prosecution of that object, every person, who, at the time of the commission of the offence, is member of the same assembly, is guilty of that offence. THE murder of Idris was not extraneous to the common object. It was such as the members of the unlawful assembly knew it likely to be committed in the circumstances of the case in pro secution of the object. It being a faction-ridden village-Zahoor and others affilia ted to one group and the deceased be longing to another the explosive irritant to their existing embittered relations was supplied by the purchase of the tobacco field from Ghulam Lodh by Zahoor which the deceased was claiming to have purchased from him much earlier. Despite the verbal altercation between Zahoor and Mijjan (P.W. 2), the protests made by the deceased were in vain and the dispute could not be amicably resolv ed. Apprehending danger to his life, it appears that the deceased had collected his labourers at his house. In that per spective, if a large crowd armed with lathis and fire-arm had gone there, and if during the transaction the offence of murder was committed, it was such as the members of the same assembly could have known likely to be committed in prosecution of the common object. That being so, whosoever is found a member of the unlawful assembly would be guilty of the offence under sections 147, 302, 323 and 325 read with section 149 Penal Code. Now, as to the guilt of the individual accused, notwithstanding the presence of the injured and Smt. Sughra at the scene of occurrence, we have to eliminate all possibility of innocent men being roped in. Without aspersing on the credibility of the eye-witnesses, the reasonable conflict, if any, in evidence has to be construed in favour of the particular accused. Unless the witnesses are shown to have given a consistent account against any of the accused, the case, it is well settled, against them cannot be said to have been proved beyond reasonable doubt. In some cases, to instance, Bala Din v. State of U.P. (A.I.R. 1956 S.C. 181.), it was held that unless an overt act is proved against a person who is alleged to be the member of an unlawful assembly, it cannot be said that he was the member of the unlawful assembly. THEre are also decisions to the effect, to instance, Masalti v. State of Punjab (supra), that the ocular testimony of two or more witnesses, who give a consistent account of the incident, is sufficient to bring home the guilt in a case involving a large number of offenders and a large number of victims. In the instant, and subject to what we have said in the aforesaid, we can safely apply the test handed down in the latter. It was not a case in which passive spectators were there in the unlawful assembly. THE offenders actuated with a common object committed offences in the very court-yard of the house. THE overt act proved aga inst a particular accused may reinforce the testimony of the witness, if it, with respect to some other persons, presents a conflict. THE maxim "falsus in uno falsus in omnibus" is inapplicable to India. Partly unreliable witness may be acted upon if his testimony receives corroboration from other evidence, direct or circumstantial. In such a case, the testimony of the witness cannot be discarded stock and barrel, if it is not in conflict with sub stantial aspects of the prosecution story. We may, to begin with, take up the case of Zahoor, Sante and Chauhan. As we have already noticed, the evidence establishes chat Zahoor, Sante and two others physically participated in the act which resulted in the instantaneous death of Idris. Chauhan did not physically participate; but "they also serve who stand and wait". He did not let Smt. Sughra intervene when she ran to the rescue of her husband. THE overt acts were consistently assigned to them by P.Ws. 1, 2 and 8, the avowed eye-wit nesses. Accordingly, we find them guilty of the offences with which they have been charged. As regards the other accused, the evi dence poses a serious conflict about their presence in the assembly which should enure in their favour. To none of them any overt act has been ascribed by the eye-witnesses. Mijjan (P. W. 2) was definite that Rameshwar and Chhotey did not see Rameshwar give beating to any person. THEir presence is thus not estab lished beyond reasonable doubt. Simi larly, P.Ws. 2 and 3 do not depose to the presence of Farhat, Subrati and Ghanl in the assembly. Dastgir (P. W. 8) is on record to admit that Rameshwar, Chho tey, Subrati and Ghani had no cause for grievance in the tobacco affair. Ghulam, Khushi Ram and Baijnath are brothers, it is not shown that they belong to the faction of Zahoor. It is also unlikely that all the three without any motive would join Zahoor and others. Even Sirajuddin (P.W. 5), who saw the escaping culprits from his nearby house, did not depose to their presence in the committal court. In these circumstances, they are also entitled to the benefit of doubt. For the discussion in the foregoing, the acquittal of Zahoor, Sante alias Sant Ram and Chauhan is set aside. THEy are convicted and sentenced to a term of life imprisonment each under section 302 read with section 149, Penal Code ; they are convicted and sentenced to a term of one year's R. I. each under section 323 read with section 149, Penal Code ; they are further convicted and sentenced to a term of five years R.I. each under section 325 read with section 149, Penal Code they are also convicted and sentenced to a term of two years' R. I. each under section 148, Penal Code. THE sentences awarded to them shall run concurrently. THEy are on bail. THEy are to surrender to their bails forthwith. THE Chief Judicial Magistrate concerned shall re port compliance within six weeks. In respect of the other accused-res pondents, the order of acquittal is main tained. THEy are on bail. THEy need not surrender to their bails. THEir bails ae cancelled and sureties discharged.;