Judgment M. P. Varma, Abhiram Singh, JJ. 1. This appeal is against the judgment of conviction of aforementioned accused on various charges including under section 302/148 of the Indian Penal Code (hereinafter referred to as the Code ). They have been sentenced to suffer imprisonment for life and also to various other terms of imprisonment on other charges, the details of which will be discussed hereinafter. 2. The case against them arose on the statement (fardbeyan Ext.2) of p. W.13 Ayodha Pd. made on 28-2-1974 at Rafiganj State Dispensary. It was recorded by an A. S. I. Shibpujan Singh (P. W.18) and he drew a formal FIR on it, which has been marked as Ext.6. The police registered a case under sections 379, 149, 148, 147 and also Sec.34 of the Code for committing theft, causing riot and for assaulting Firangi Pd. who later died in the Pilgrim hospital Gaya. Short facts of the case are as follows :- "there is a land bearing survey plot No.378 Khata No.101 in village deokali under Police Station Rafiganj. P. W.13 Ayodhya Prasad claims that this land belongs to him. It is the case of the prosecution that at the relevant time there were crops of Masuri and Tisi in the field. It is about 4 bighas in area. There was a proceeding under section 145 of the Code of Criminal Procedure between ayodhya Singh on the one hand and some of the accused persons on the other. Ayodhya Prasad states that just a day prior to the occurrence, on 27-2-1974 the proceeding terminated in his favour. A copy of the judgment was also filed in court which has been marked as Ext.9. Ayodhya Prasad was declared to be in possession over the land. " 3 In the morning on 28-2-1974, just a day following the judgment, he went to that field and noticed that the accused were harvesting the crops. Ayodhya protested, on which the accused chased him and accused Banwari and accused Nathuni alias Fauzdari assaulted him with Bhala and Garasa. He raised alarm. On his cry and finding that he was being beaten up, his men, namely, firangi, Ramautar, Jittan, Nittan, Ramnandan, Ram Kumar, Kamldeo and some women ran to his rescue. Ayodhya protested, on which the accused chased him and accused Banwari and accused Nathuni alias Fauzdari assaulted him with Bhala and Garasa. He raised alarm. On his cry and finding that he was being beaten up, his men, namely, firangi, Ramautar, Jittan, Nittan, Ramnandan, Ram Kumar, Kamldeo and some women ran to his rescue. The accused persons all of a sudden fell upon the villagers and four of them namely, accused Monarik, Dwarik, Jogan and mohan assaulted Firangi with Bhala, Garasa and Lathi. Accused Lakhan and chamarik assaulted Jittan by Garasa and accused Raghunandan and Yadunandan also assaulted Jittan by Lathis. Accused Banwari assaulted Ramnandan by bhala and Lakhan assaulted Ramnandan with alathi. Accused Lakhan and yadunandan further assaulted Mittan also with Garasa and Lathi. Accused rajeshwar and Ghanshyam assaulted Sheokali Devi wife of Raj Kumar by a bhala and accused Lakhmi assaul. ed her with a Lathi. Then again accused yadunandan and Raghunandan assaulted Shyam Dai Devi wife of Mittan and also to Nagina wife of Khelawan by Lathi. Sheokali wife of Firangi was also assaulted by accused Naresh son of Parmeshwar by a Bhala and it was only thereafter that all the accused ran away carrying the Masur crop from the field. 4. As stated above, the case is that it was on hulla that many other persons namely, Ramswaroop, Ram Chandra, Ramsundar and Deonarain had arrived and witnessed the occurrence Firangi and all other injured were soon removed to Rafiganj hospital and Firangi was taken from Rafiganj hospital to Pilgrim Hospital, Gaya for better treatment. He succumed to the injuries two days after on 2nd March, 1974. 5. The police after institution of the case proceeded with the investigation, examined the witnesses prepared injury reports, visited the place of occurrence and finally submitted charge-sheet against 20 accused persons and thus, they all were put on trial and the one accused namely, Ram Kripal died during the course of trial and the 19 accused persons have been convicted, out 61 whom appellant No.1 Nathuni Yadav alias Fauzdari Yadav and No.13 Yogan singh died during the pendency of this appeal when they were in jail, in defence it was pleaded in the court below that at the relevant time, the plot in question was parti. There was on Masur crop in the field. There was on Masur crop in the field. The manner of occurrence was also disputed and that the accused were implicated due to past enmity and litigations going on between the parties. 6. At the trial stage, prosecution examined 19 witnesses in all, out of whom P. Ws.1, 2, 3, 4, 6, 7, 8, 9, 10 and also the informant P. W.13 are said to be eye-witnesses. We further get that P. Ws.1 to 4 and P. Ws.8, 9, 12 and the informant 13 whose reference have been given above had got injuries in the occurrence. Of course P. W.12 was tendered in court for examination. The other witnesses who were tendered by the prosecution and P. Ws.5, 11 and 12. P. W.14 had examined the injured witnesses and also the deceased Firangi at kafiganj hospital prior to his removal to Pilgrim hospital, Gaya. It was P. W.15 who did the postmortem examination over his dead body on 3rd March, 1974. The post-mortem report is Ext.5. Regarding the time of death, we could not get correct evidence, but it is said that he died in between night of 2nd and 3rd march, 1974. It may also be noted here that since after getting injury in the occurrence, he remained unconscious although till the time of his death and could not make any statement. P. W.16 is a formal witness in the sense that he has proved the formal FIR. It was P. W.18 who investigated the whole case and has been described by the counsel for the State as main Investigating Officer. P. W.18 the other Investigating Officer and the only part played by him that he recorded the fardbeyan marked Ext.2. P. W.19 is also a formal witness. He had carried an O. D. slip given by the doctor at Rafiganj Hospital to Rafiganj police Station and it was on the receipt of the O. D. slip that police officer p. W.18 had arrived there in the hospital and had recorded the statement of p. W.13 Ayodhya. 7. The accused also examined 3 witnesses in defence. We may put here that in course of the argument the counsel for the appellants did not refer to their statements and confined his argument mostly to the question of charge. 7. The accused also examined 3 witnesses in defence. We may put here that in course of the argument the counsel for the appellants did not refer to their statements and confined his argument mostly to the question of charge. It has been argued that the prosecution miserably failed to substantiate that these accused had any common object, much less the common object to commit the murder of Firangi and that having failed, none of them can be constructively made liable for the charges under Sec.302 read with Sec.149 of the Code. Of course, learned Advocate conceded that even if the charge of having the common object for committing the offence fails as in the present case, each one of the accused may be held liable for his individual act or omission and commission, which has to be adjudged from the evidence on the record. 8. It has next been argued that the accused appellant No.2 Mohan, no.4 Dwarik, No.5 Monarik and No.13 Jogan were independantly charged under Sec.302 of the Code for committing the murder of Firangi. It has been maintained at the bar by the counsel for an appellant that the trial court, in the judgment impugned, recorded the order of acquittal, on this charge against all the four accused. This fact has been stoutly disputed by Sri Lala Kailash behari Prasad, Counsel for the State and it has been argued that all that the trial courts has said in the judgment impugned is that there is no clear evidence as to who, out of the four accused, gave fatal blow to Firangi and it was in that circumstance that they could not be held guilty for the offence of committing murder of the deceased, but the court, in fact, did not record any finding of acquittal on this charge under Sec.302 of the Code, and they may be held guilty of the charge under Sec.302/34 even at this stage. 9. We have given full consideration to the legal quibblings raised in this case whether the findings given by the trial court tantamounts to an order of acquittal or the court hold them guilty of the charge. The trial court in the judgment impugned has observed that evidence has been led in support of the fact that accused appellant Mohan Lohar assaulted deceased Firangi with Garasa and accused Jogan with Lathi. The trial court in the judgment impugned has observed that evidence has been led in support of the fact that accused appellant Mohan Lohar assaulted deceased Firangi with Garasa and accused Jogan with Lathi. But it is very difficult to say whether the death occurred due to injuries caused by Garasa or the injury caused by the Lathi and that there was absence of proof that which particular injury caused the death of Firangi. To make it more clear the trial court further said in the judgment impugned that it could not be definitely said that the deceased died due to the injury caused by accused Mohan Lohar or accused Jogan and that the other accused monarik and Dwarik too had not caused any injury on the head of the deceased. The doctors finding is that Firangi had some injury on the head and that was the fatal blow, but it could not be known who caused such injuries and because of it the trial court could not find any one out of the four accused guilty of the charge. In the given circumstances, the trial court did not record any independent finding holding them guilty of the charge. In order to hold them guilty of the charge under Sec.31)2/149 of the Code the court observed that even assuming they were not directly responsible for causing the murder, they shared the constructive liability of causing the death of Firangi Prasad with other members of the assembly. Here we like to state that for all practical purposes, in the circumstances, as discussed above, if the court does not hold an accused guilty of the charge made against him, the irresistible conclusion would be that the case of the prosecution on the charge failed and it will be deemed to be an order of acquittal. In this view, we would further like to record here that the State respondent did not come in appeal against the findings of the trial court in not convicting the four accused of the charge of murder. But in appeal before us, the learned advocate has attempted to turn the table by advancing a diifersnt argument suggesting us to hold the accused guilty of the charge under Sec.302/34 of the Code. But in appeal before us, the learned advocate has attempted to turn the table by advancing a diifersnt argument suggesting us to hold the accused guilty of the charge under Sec.302/34 of the Code. We can understand that if in a case there is a charge under Section 302/149 of the Code and circumstances do indicate that ths accused had the common intention of causing the death, the accused committing the offence in the alternative be held guilty of offence under Sec.302/34 of the Code and bs convicted accordingly. Therefore, in the present case we have to find out once again if these four accused shared the constructive liability for the murder of firangi to hold them guilty of the charge under Sec.302/34 of the Code and it would be incorrect to argue that if the case under Sec.302 of the Code fails and the trial court does not hold them guilty or does not record a specific finding, still they can be held guilty of the charge under Sec.34 of the Code in appeal. The submission of the State Respondent is ruled out. 10. In judging the case of all the accused including these four for sharing the common object in causing the murder of Firangi, the Counsel for the appellants have taken us through the entire evidence It has been argued that the charge as framed in the court below is that the all formed an unlawful assembly wich the common object of committing theft of Masoor crops and also causing the murder of Firangi Pd. The case of the prosecution is that the Masoor crop was cut and removed from plot No.378 and this plot has been subsequently mentioned in the charge itself. The informant Ajodhya P. W.13 did not mention any plot No. in the F. I. R. This plot has been introduced in court. The Counsel for the S;ate respondent, Mr. Lala Kailash Bihari Pd. while refering to this aspect of the argument has placed reliance on Ext.9, which is a judgment in a proceeding under Sec.145 of the Code of Criminal Procedure between the parties. But the learned Advocate forgets that the two prosecution witnesses p. Ws.6 and 7 had stated in their earlier statement before the police to which their attention was drawn in court that accused persons had grown the Masoor crops over the disputed plot. But the learned Advocate forgets that the two prosecution witnesses p. Ws.6 and 7 had stated in their earlier statement before the police to which their attention was drawn in court that accused persons had grown the Masoor crops over the disputed plot. Even the informant had stated in his earlier statement before the police that Gwalas of the village (which refers to the accussd persons) had forcibly grown tha Massor and Khesari over the same mentioning thereby aforesaid plot which was in dispute in the aforesaid proceeding under section 145 of the Code. In these circumstances, even assuming that in the proceedings the findings with regard to possession over the land in question were there in favour of the informant P. W.13 Ajodhya, the fact remains that accused persons had grown the crops as admitted by the witness and charge of committing theft of the Matoor crop must fail. But that is not the end of the matter. The prosecution could not successfully establish even the identity of the land. The Investigating Officer P. W.17 at some stage in the court has said that he had looked into some papers but the prosecution could not connect from aay positive evidence that it was same plote No.378 over which some occurrence took place. The evidence of the Investigating Officer P. W.17 is also discripant. He has said that he found cutting of the Masoor crops in three kyaries and that none had cut and removed the lincid crop. Both the crops were mingled and mixedup together in the field and not separate. If there is cutcing of only Mawor crop and not of lincid, this would only indicate that the cutting was not in an irregular manner and haphazardly or in a hurriedness of theft and removal. This creates doubt if there was attempt to commit theft. It may also be stated here that the area comprises of 4 bighas, -vhereas, according to P. W.13 the informant, the cutting was done only over a bigha and a half. The Investigating Officer does not say to identify the plot. 11. The prosecution case has been put in two parties. In the first part it has been stated that when the informant Ajodhya visited his field and had seen the accused persons cutting the crops, he had made a protest. The Investigating Officer does not say to identify the plot. 11. The prosecution case has been put in two parties. In the first part it has been stated that when the informant Ajodhya visited his field and had seen the accused persons cutting the crops, he had made a protest. Thereupon the accused chased him for assault and some of them assaulted him as well. He ran to the village side raising a cry for help. It was on his cry that the villagers including Firangi and his other relatives came running to rescue ajodhya and it was thereupon that the accused persons, who were chasing Ajodhya suddenly fell upon the rescuers and in course of that some of the accused, as alleged by the prosecution, made an attack on Firangi which caused his death. It cannot be denied that Firangi accidently fell victim of the wrath of a few individuals it cannot be said that he fell victim of the entire mob. A few members in the mob proceeded ahead and assaulted Firangi resulting in his death. In that situation, it cannot be said that the accused persons at the very earliest instance had shared common object or had a common intention of causing the death of Firangi. We would be only repeating that Firangi was not there. It was Ajodhya who objected to the cutting of the crops. Firangi and other members came to rescue when Ajodhya was being chased. Thus, it is hard to accept that any of the accused, who had assembled to cut and remove the masoor crop could have ever thought of causing the death of Firangi and in absence of any such evidence it cannot be said that they had share the common object or intention of causing the death of Firangi and in absence of the same the contention of Sri Lala Kailash Bihari Prasad that the aforesaid four accused namely, Mohan, Dwarik, Monarik and Jogan were guilty of the charge under section 302/34 of the Code is ruled out and at the same time in the circumstances, as discussed above, none of the accused can be guilty of the charge under section 302/149 of the Code as well. 12. In the end, we may further state that the Counsel for the appallants did not advance any plea of private defence. 12. In the end, we may further state that the Counsel for the appallants did not advance any plea of private defence. It has not been aruged before us that since the accused had grown the crop they had the right to attack on kill those who interferred with their right. They, of course, took the defence that there was no such incident in the field and in that situation it was argued that though none of the accused shared the common object of causing the death of firangi nor they can be held guilty of the charge under section 379 of the Code, but none the less, they cannot escape the liability for their individual act of omission and commission. Here at this stage, it has been contended that though the prosecution could not show by adducing positive and cogent evidence as to who gave fatal blow to Firangi resulting in his death, but evidence is consistent that these four had attacked Firangi and other accused assaulted P. Ws.1,2,3, 4,8,9, 12 and 13. Taking these evidence into consideration, the trial court convicted some of the accused under Sec.147 and a few other under section 148 of the Code and also for their individual act of assaulting those witnesses, who had run on cry of Ajodhya. The evidence indicates that these four accused namely, Mohan, Dwarik, Monarik and Jogan had assaulted firangi and Firangi died two or three days after the incident in the Pilgrim hospital at Gaya. The doctor had found the following ante-mortem injuries on his body :- (i) one lacerated wound having three stitches with size 2" X 1/4" X 1/4" on the lateral and middle part of the fore-arm. (ii) Abrasion 1" X" over the upper and front part of the left side of the chest. Abrasion 11/3" x " over the back of left shoulder multiple small abrasion over both the knee in front and on the back of right elbow joint. (iii) Incised wound " X 1/4" cavity deep on the lateral border of the left side of abdomen below the rib margin. (iv) Three leniar stitches wounds having two stitches in each i. e.1"x 1/6" skin-deep, l1/4"x ]" X skin-deep and 1" X 1/4" X skin deep. 13 Therefore, these four accused cannot escape their liability for conviction under Sec.326 of the Code. They are therefore, held to be guilty under this charge. (iv) Three leniar stitches wounds having two stitches in each i. e.1"x 1/6" skin-deep, l1/4"x ]" X skin-deep and 1" X 1/4" X skin deep. 13 Therefore, these four accused cannot escape their liability for conviction under Sec.326 of the Code. They are therefore, held to be guilty under this charge. The other accused namely, Raghunandan Yadav, Lakshmi yadav, Jadunandan Singh, Jadunandan Yadav, Naresh Singh (son of Ganga singh), Umesh Singh, Lakhan Yadav and Jagan Singh were carrying lathies and they have been rightly held guilty of offence under Sec.147 of the Code and rest of the accused, who were carrying deadly weapons under Sec.148 of the Code. Their convictions under other heads of the charges, as held by the trial court is maintained but all of them are acquitted of the charges under section 379 and also of the charges under Sec.302/149 of the Code. 14. Coming to the question of sentence, it has been noticed that under section 326 of the Code against the aforesaid three appellants (Jagan is said to have died durig the pendency of the appeal) are in jail for more than three years. In the circumstances of the case, we feel that the sentence to the period of imprisonment already undergone, with a payment of fine of Rs.200/-each will meet the ends of justice. All the three appellants will pay the fine of Rs.200/- and in default of payment of fine will suffer further rigorous imprisonment for six months. So far their conviction on other charges are concerned, which has been maintained by the judgment, we find that each one of them had been behind the prison for a few months and therefore, we do not propose to send them back to jail and they are sentenced to suffer imprisonment for a period already undergone and in addition to this they are sentenced to pay fine as well. The conviction of the appellants namely Monarik Yadav, Dwarik yadav, Naresh Yadav, Rajeshwar Yadav, Ghanshyam Yadav, Banwari Singh, naresh Singh son of Parmeshwar Singh, Faujdar Yadav alias Nathuni Yadav, chanarik Yadav, Mohan Lohar and Lakhan Yadav under Sec.148 of the Code is maintained and in addition to the sentence of imprisonment already suffered by them, they are further sentenced to pay a fine of Rs, 200/- each and in default thereof, to suffer rigorous imprisonment for a month and a half, and similarly while maintaining the conviction of Raghunandan Yadav, lachhmi Yadav, Jadunandan Yadav, Jadunandan Singh, Naresh Singh son ot ganga Singh, Umesh Singh, Lakhan Singh and Jogan Singh, under Sec.147 of the Code they are sentenced to a period of imprisonment already served in jail and also to pay a fine of Rs.200/- each, in default to suffer further imprisonment- for a month and a half. Their conviction under other heads of the charges, except Sections 302/149 and 379/34, is also maintained but we do not record any separate sentence under other heads of the charges. 15. In the result, the appeal is allowed in part and convictions of the appellants under Sections 379/34 and 302/149 are set aside. Their convictions under other heads of the charges, as detailed above, are maintained. Appeal partly allowed.