A. C. SEN GUPTA, J. ( 1 ) THIS appeal is directed against the order of conviction and sentence passed by the Additional Sessions Judge of Barasat in Sessions Trial Case No. 2 of March, 1985 of that Court. Each of the six appellants have been convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 500. 00 in default to suffer rigorous imprisonment for six months under sections 302/149 I. P. C. Each of them has also been sentenced to suffer rigorous imprisonment for three years on a charge under section 148 I. P. C. The sentences have been ordered to run concurrently. ( 2 ) NOW the prosecution case is mainly this:- On 26/4/1981 corresponding to 13th Baishala 1388 B. S. which was a Sunday at about 11/11. 30 A. M. about 40/45 person of the Bride's party came from the village Telia, to the house of Bhola Parui at Kharupara on the occasion of Boubhat Ceremony In respect of the marriage of Bhola Parui's son. There, was a disturbance and quarrel between Bhola Parui and his co-villagers on the one hand and the Brides party of the Telia village on the other because instead of 15/16 heads the Brides party comprised 30/40 persons. The villagers of Kharupara that is, the co-villagers of Bhola Parui tried to control the situation but the villagers of Telia, that is, the Bride's party assaulted P. Ws. 1, 6, 13 and 14 and left the village without taking meals in Bhola, Paruis house, by swimming across the river Bidhyadhari which runs in between the two 8 villages namely, Kharupara and Telia. Within a few minutes thereafter about 10/15 villagers of Telia again came to Kharupara and attacked the villagers. Out of fear some of the villager of Kharupara Including P. W. 10 rushed to an open land and in the meantime the appellant Haripada and Joykrishna rushed to the house of P. W. 1 Joykrishna had then a lathi in his hand and Haripada, a spear, Joykrishna dragged Sushil, son of P. W. 1, from his room in where Sushil took shelter and Haripada pierced the left chest of Sushil with this spear. Sushil on being assaulted fell down and died. After committing the mischief Haripada, Joykrishna and owners fled away hurriedly. Sushil on being assaulted fell down and died. After committing the mischief Haripada, Joykrishna and owners fled away hurriedly. ( 3 ) AFTER the occurrence P. W. 1 went to Police Station on that day that is, on 26. 4. 1981 and lodged the F. I. R. , which was recorded by the O. C. Haroah P. S. at 5. 05 p. m. The O. C. then reached the Kharupara village on that day that is, on, 26/4/1981 at 6. 30 p. m. He seized blood-stained earth from the courtyard where lay the dead body of Sushil and some dl other articles and held inquest and sent the dead-body for post-mortem examination. Then he examined witnesses and lent P. Ws. 1, 6, 13 and 14 who had injuries on their persons to Haroah Primary Health Centre for treatment. ( 4 ) HE searched in vain for the accused persons in the village Telia on that night. Haripada could be arrested in the early morning of 7/5/1981. He was brought Haroah P. S. at 9. 55 a. m. Pursuant to his statement the 1. 0. accompanied by force went with the accused Haripada to the Telia village. The accused Haripada got down in a pond near his house and brought out a spear head with cutoff handle from the pond. The 1. 0. P. W. 21 seized the spear-head In the presence of witnesses. The 1. 0. sent the spear-head and some other articles seized by him in separate sealed packets to Forensic Science Laboratory. On examination at the P. S. L. the spear head was found stained with human blood. ( 5 ) AFTER collecting the necessary reports and completing investigation P. W. 21 submitted charge-sheet on 6/7/1983. ( 6 ) THE defence case as appearing from the suggestions given to the prosecution witnesses and the statement of the accused recorded under section 313 Cr. P. C. is mainly this:no such incident as alleged occurred. The accused persons have been falsely implicated. The I. P. P. W. 21 in collusion with P. W. 4 concocted and manufactured the story of murder by the accused persons. There was trouble between the villagers of Telia and Kharupara over catching of fishes from the Bidyadhari River. There was no trouble between the accused persons and P. W. 1 in connection with Boubhat ceremony of Bhola Parui's son. There was trouble between the villagers of Telia and Kharupara over catching of fishes from the Bidyadhari River. There was no trouble between the accused persons and P. W. 1 in connection with Boubhat ceremony of Bhola Parui's son. There was no Boubhat function in the house of Bhola Parui on the relevant day. P. W. 1 has manufactured the story of marriage and Boubhat of Bhola Parui is false. P. W. 1 and others have falsely implicated the named persons in this case out of revenge. Sushil died on the bank of the Bidyadhari River. The witnesses have deposed falsely as the instance of P. Ws. 1, 4 and the O. C. of the Police Station as the accused persons belonged to Congress (I ). The O. C. did not seize the spear-head from the doha of Haripadas house. ( 7 ) THE learned Trial Court after considering the evidence on record held that the prosecution has proved both the charges under sections 148 and 149/302 I. P. C. against all the accused persons. He accordingly passed the order of conviction and sentence as noted. ( 8 ) THE point for consideration is whether the charges or anyone of them can be said to have been proved against the accused persons or anyone of them. ( 9 ) THE learned advocate for the appellants contended before us that the prosecution case should be held to be false because of the inconsistencies and contradictions in the evidence of the witnesses. He pointed out that some witnesses have said that Sushil on being struck with the spear fell down inside his room and that some have said that he fell down in the court-yard outside the threshold of his room. He pointed out that the story of dragging of Sushil by Joykrishna does not find any place in the F. I. R. and that story is belied by the evidence of P. Ws. 7 and 11 who does not speak of dragging by Joykrishna as deposed to by P. Ws. 1, 2, 8, 10, 13, 14 and 16. He also wanted us to disbelieve the evidence of the alleged eye-witnesses on the ground that although according to the evidence of the police officer P. W. 21 and the medical officer P. W. 19, P. Ws. 1, 2, 8, 10, 13, 14 and 16. He also wanted us to disbelieve the evidence of the alleged eye-witnesses on the ground that although according to the evidence of the police officer P. W. 21 and the medical officer P. W. 19, P. Ws. 1, 6, 11 and 14 had injuries on their persons on the date of the occurrence P. W. 1 and some of the witnesses have suppressed the fact of receiving such injuries on the date of the occurrence. He contended that none of the alleged eye-witnesses who witnessed could witness the alleged occurrence because he submitted that the witnesses have given different statements about the place where Sushil on being stabbed by the accused Haripada with a spear fell down some saying that Sushil on being thus stabbed fell down inside the room and some saying Sushil fell down on the threshold and some saying that Sushil fell down in the court yard outside the room. He drew our attention to the evidence of P. W. 6 who was declared hostile and was contradicted by his statement recorded under section 161 Cr. P. C. , that the occurrence took place beside the Bidhyadhari River. He also contended that the prosecution case should be held to be false on the ground that according to the evidence of the alleged eye-witnesses Sushil was murdered at about 1/1. 30 p. m. of 26. 4. 81 but that according to the evidence of the medical officer, P. W. 20, who held postmortem examination into the dead body of Sushil on 27-4-81, the death took place at about 4 a. m. of 26-4-81. He also challenged the veracity of the evidence of the alleged eyewitnesses on the ground that the witnesses have differed with regard to the number of villagers of Telia, who came to the village Kharupara and participated in the occurrence, some saying that about 30/40 villagers of Telia came and some saying 60/70 villagers. He also contended that there was no specific evidence to show how many persons did in fact participate in the occurrence leading to the murder of Sushil by Haripada. On these grounds he wanted us to disbelieve the prosecution case and to acquit the accused persons. ( 10 ) WE have carefully considered all these submissions of the learned advocate for the appellants in the light of the entire evidence on record. On these grounds he wanted us to disbelieve the prosecution case and to acquit the accused persons. ( 10 ) WE have carefully considered all these submissions of the learned advocate for the appellants in the light of the entire evidence on record. It may be noted that the elementary procedural law with regard to the question as to how a finding as to whether a particular fact has been proved or not should be arrived at is that such a finding should be arrived at not on the basis of a stray piece of evidence considered in an isolated manner but on the basis of the total effect of the entire evidence on record. This is the law which is laid down by the Third Section of the Evidence Act. It is true that the witnesses have not given a mathematically accurate statement about the number of villagers who came to Kharupara village and participated in the alleged occurrence. But, the evidence of the witnesses clearly shows that more than five persons participated in the occurrence which resulted in the death of Sushil the son of P. W. 1. ( 11 ) WITH regard to the contention of the learned advocate for the appellants that the evidence of P. Ws. 1, 2, 8, 10, 13, 14 and 16 stating that the accused Joykrishna dragged Sushil and that then the accused Haripada stabbed Sushil on the chest with a dagger is contradicted by the F. I. R. the story of dragging by the accused Joykrishna is not mentioned in the F. I. R. , it may be noted that F. I. R. is not a substantive piece of evidence and that its maker only can be contradicted by it and not others. The evidence of Haripada that all the accused persons and others participated in the occurrence is not contradicted by the F. I. R. He says that within 10/15 minutes after the guest party left about 10/15 villager of Telia come back to his village that they rushed towards him, that while he was running away he turned his head and found the accused Joykrishna dragging Sushil from the small room and accused Haripada stabbing Sushil on the chest with a spear, that then those miscreants fled away by swimming across the river Bidyadhari and that along with Haripada and Joykrishna other miscreants Swapan, Dulal, Gopal, Durga and others were with them. P. W. 2, the daughter of P. W. 1, supports die evidence of P. W. 1 by saying that Sushil fell down on being stabbed by Haripada and that Haripada and Joykrishna along with 8/10 others escaped away hurriedly. This evidence could not be shaken in her cross-examination. P. W. 7 says that after the villagers of Telia left the village Kharupara 15/16 persons of Telia came back again, that out of them Haripada and Joykrishna murdered Sushil and that by doing the mischief Haripada, Joykrishna and others fled away. His evidence that 15/16 persons including Haripada and Joykrishna participated in the occurrence leading to the murder of Sushil remained unshaken in his cross-examination. P. W. 9 however has not stated whether anybody besides Haripada and Joykrishna participated in the occurrence leading to the death of Sushil. P. W. 10 states that within five minutes after the bride's party of the village Telia left 10/15 persons armed with lathis and ballam came back to the village Kharupara and attacked them. He has also not stated how many of them besides Haripada and Joykrishna rushed to the house of P. W. 1. So is the evidence of P. W. 11. The evidence of P. W. 12 who was declared hostile by the prosecution has been contradicted by his statement recorded under section 161 Cr. P. C. P. W. 13 speaks of formal between Brides party of the village Telia and the villagers of Kharupara, and dragging by Joykrishna and stabbing by Haripada who according to the evidence on record belonged to the Brides party of Teliapara. P. C. P. W. 13 speaks of formal between Brides party of the village Telia and the villagers of Kharupara, and dragging by Joykrishna and stabbing by Haripada who according to the evidence on record belonged to the Brides party of Teliapara. It is elicited in his cross-examination that he found the accused persons namely, Haripada, Joykrishna and others chasing from Banatala thereby making out a case of unlawful assembly. P. W. 14 refers to the participation of 7/8 persons in the occurrence leading to the death of Sushil. P. W. 16 also deposed about the return of Telia party with ballam, lathis etc. and dragging by Joykrishna and stabbing by Haripada. He says that he could not recognise other persons who accompanied Haripada and Joykrishna when Sushil was murdered. ( 12 ) ON considering the total effect of the entire evidence on record some of which has been noted above we find that the prosecution has been able to prove that the appellants Haripada and Joykrishna were members of an unlawful assembly, the common object of which was to assault P. W. 1, his son Sushil and some others including P. Ws. 6, 13 and 14 and that in prosecution of the common object of that assembly the accused stabbed Sushil with a spear when the accused Joykrishna dragged Sushil; The evidence of the M. O. P. W. 20 who held post-mortem examination into the dead body of Sushil on 27-4-81 at about 4 p. m. shows that the injury which caused the death of Sushil could be inflicted by a spear. The evidence further shows that this spear which was found, on chemical examination, to be stained with human blood was recovered from a pond near the house of Haripada when Haripada brought out the same from that pond. ( 13 ) WITH regard to the evidence of the Doctor P. W. 20 regarding the time of death it may be said that his evidence with regard to the time of death of Sushil is too shaky and inconsistent to belie the evidence of the eyewitnesses. After saying that rigor mortis was present on the dead-body all through and that in our country rigor mortis remains usually 36 to 38 hours after the death he says that the death in this case occurred 36 hours before his examination. After saying that rigor mortis was present on the dead-body all through and that in our country rigor mortis remains usually 36 to 38 hours after the death he says that the death in this case occurred 36 hours before his examination. This is an arbitrary statement which cannot be preferred to the evidence of the eye-witnesses. ( 14 ) THE apparent inconsistencies in the evidence of the witnesses about the place where Sushil fell down on being stabbed by Haripada is too insignificant to shake the broad features of the evidence of the eyewitnesses whom we have already referred to. Some of these witnesses have said that Sushil on being stabbed by Haripada with a spear fell down inside the ghar. Some has said that Sushil fell down on the threshold of that ghar and some has said that Sushil fell down in the courtyard near the ghar. The evidence of the eye-witnesses we have referred to belie the evidence of P. W. 6 who was declared hostile by the prosecution and contradicted by the statement recorded under section 161 Cr. P. C. , that some villagers of Telia murdered Sushil on the bank of the river. We find no reason to disbelieve the evidence that the members of the unlawful assembly including the appellant Haripada and Joykrishna rushed to the house of P. W. 1 where Sushil was stabbed to death by the appellant Haripada. ( 15 ) THE prosecution case of false implication of the accused due to political rivalry is not supported by the evidence. Some of the witnesses belonged to different parties and some do not appear to be members of any party. ( 16 ) IN view of the evidence we have discussed above, we find that murder of Sushil was committed by a member of an unlawful assembly in prosecution on the common object on that assembly. Now the question is who were the members of that unlawful assembly. ( 17 ) AFTER scrutinising the evidence of the witness we find that excepting the evidence of P. W. 1 there is no satisfactory evidence to show that the appellants Swapan, Dulal, Gopal and Durga were also members of that unlawful assembly. Now the question is who were the members of that unlawful assembly. ( 17 ) AFTER scrutinising the evidence of the witness we find that excepting the evidence of P. W. 1 there is no satisfactory evidence to show that the appellants Swapan, Dulal, Gopal and Durga were also members of that unlawful assembly. Therefore these four appellants are entitled to be acquitted of the charge under Sec. 302/149 I. P. C. But the evidence clearly shows that the appellants Haripada and Joykrishna were members of that unlawful assembly and that murder was committed by the appellant Haripada in prosecution of the common object of that assembly. The appellants Haripada and Joykrishna has therefore, been convicted under sections 304/149 I. P. C. The other appellants are to be acquitted of the charge under section 302/149 I. P. C. ( 18 ) WITH regard to the charge under section 148 I. P. C. all the appellants excepting Haripada is to be acquitted of the said charge because there is no evidence that any of the accused persons excepting Haripada was armed with any weapon contemplated In section 148 I. P. C. Haripada alone is, therefore, liable to be convicted under section 148 and Joykrishna under section 147 I. P. C. ( 19 ) WE accordingly dispose of the appeal thus:- The appeal is allowed as against the appellants Durga Parui, Swapan Parui, Gopal Parui and Dulal Parui. Each of them is acquitted of both the charges under sections 302/149 I. P. C. and 148 I. P. C. The order of conviction and sentence passed against each of these accused persons under sections 302/149 I. P. C. and section 148 I. P. C. are set aside. The accused Durga Parui, Swapan Parui, Gopal Parui and Dulal Parui be released forth with. The appeal is dismissed against the appellant Haripada Parui, the appeal by Joykrishna Parui is partly allowed so far as it relates with regard to the charge under section 148 I. P. C. The order of conviction and sentence passed against Joykrishna Parui under section 148 I. P. C. is not set aside. In the circumstances of the case no separate sentence need be passed against Haripada under section 148 I. P. C. and against Joykrishna under section 147 I. P. C. of which he is convicted.