J. DAS, J. ( 1 ) THIS appeal arises out of the conviction and sentence dated 6-12-1984 passed by Sri L. Pradhan, Second Additional Sessions Judge, Cuttack, In Sessions Trial No. 136 of 1985 convicting the appellant Dhirandra Das under Section 102 I. P. C. and appellant Niran Das under Sections 324 and 323 I. P. C. and convicting all the appellants under Section 148 I. P. C. and also convicting the remaining appellants other than Dhirendra Das and Nirart as, who have been convicted under the substantive Sections as stated above, under Sections 302, 324 and 323 I. P. C. read with Section 149 I. P. C. and under Section 148 I. P. C. and sentencing the appellants as follows: Accused Dhirendra Das has been sentenced to imprisonment for life for the conviction under Section 302 I. P. C. and to undergo R. I. for one year on each count for the offences under Sections 148 and 324/323 read with Section 149 I. P. C. It has been directed that the sentences would run concurrently. Accused Niran Das has been sentenced to undergo R. I. for three years for the offence under Section 302/1491. P. C. and one year for the offence under Section 18, 324/323 I. P. C. on each count and it has been directed that the sentences would run concurrently. Accused Niran Das, Rarnakanta Das and China Das have been convicted and sentenced to undergo R. I. for two years each for, the offence under Section 302/149 I. P. C. and one year each for the offence under Section 148 I. P. C. and further sentenced to undergo R. I. for one year each for the offences under Sections 324/149 and 323/149 I. P. C. and it has been directed that the sentences would run concurrently. ( 2 ) THE prosecution case, briefly stated is that on 26-6-1982 at about 1 P. M. the accused appellants Dhiran. Niran and Biran who are brothers, were putting a fence on the ban land of deceased Binod. Binod protested to the action of the accused persons. Being enraged, accused Miran brought out a Katari and crowbar and attempted to assault the deceased Binod with the crowbar. The deceased, however, snatchad away the crowbar and threw the same on the ground. Niran and Biran who are brothers, were putting a fence on the ban land of deceased Binod. Binod protested to the action of the accused persons. Being enraged, accused Miran brought out a Katari and crowbar and attempted to assault the deceased Binod with the crowbar. The deceased, however, snatchad away the crowbar and threw the same on the ground. After that accused- appellant Miran dealt a blow on the right shoulder of the deceased Binod with the Katari causing bleading injury. Out of fear Binod ran towards Barakati village-crossing shouting for help. Accused Dhiran followed Binod with a Balam in his hand. The other appellants Niran, Biran, Ramakanta and China Das also ran after Binod. Accused Niran was holding a big knife and others were holding lathis. At the village crossing accused Dhiran reaching deceased Binod, stabbed, with the Billam on his back and as a result of that Binod fell down with bleeding injury. Karunakar Das (P. W. 1) seeing the assault on Binod ran near him to rescue him and while P. W. 1 was raising the deceased from the ground, accused Niran dealt a blow with the knife causing injury on his right side chest. It is also alleged that accused Niran dealt a blow with a crowbar on the head of P. W. 1 causing bleeding injury and accused China also assaulted P. W. 1 with a lathi on his left knee. Accused Dhirendra drew up the balam from the seat of injury of the deceased Binod but the iron portion stuck to the injury and the handle come out. Hearing hulla, many persons including the witnesses came to the spot and at that time accused persons fledaway. Hrusi Jena (P. W. 5) brought out the iron portion of the Balam from the seat of the injury of Binod and ultimately that portion was seized by the 1. 0. It is also alleged that the accused persons assaulted some family members but as no materials are available, the lower court has not believed the said assault except the assault on Basanti Das (P. W. 4) by accused Niran with a crowbar. It appears that soon after the incident the members of the public mere agitated against the accused persons and some police constables guarded the accused persons in order to protect them from the public fury being molested. It appears that soon after the incident the members of the public mere agitated against the accused persons and some police constables guarded the accused persons in order to protect them from the public fury being molested. The accused persons also sustained injuries and as such they were medically examined. On account of the assault Binod died. The 1. 0. held inquest over the dead body and sent the dead body for postmortem examination. Dr. Prasanna Kumar Dabata (P. W. 8) conducted the postmonem examination over the dead body of the deceased Binod and gave opinion that the cause of death was haemorrhage and shock on account of stab injury on the back. The injured persons were also medically examined on police requisition. The Medical Officer, Pritipur Hospital, Dr. Sarat Chandra Samal (P. W. 11) sent a written repon to the Sinjharpur P. S. and on the basis of that report a station diary entry was made and the 1. 0. also proceeded\to the Hospital where he recorded the plain paper F. I. R. (Ext. 1) on the basis of the statement of Karunakar Das (P. W. 1 ). Durilg investigation the 1. 0. seized various incriminating articles. Some blood stained articles were sent for chemical examination and serological test and on such examination human blood was found on the Iron portion of the Balamandon other articles. After due investigation, charge-sheet was submitted and the appellants stood their trial and stand convicted and sentenced as stated above. ( 3 ) THE defence plea is that accused Dhiran, Niran, Biran and Ramakanta were rapairing the fence of their Ban and at that time the deceased armed with a Balam along with P. W. 1 and their other brother Ramesh who were armed with knife and lathi came and threatened to assault the appellants. At that time the, deceased brandished the Balam and as it struck against the pillar of the house of Rabati Bawa, the iron portion came out and few down on the ground. Because the pointed portion projected upwards and at that time the deceased Binod fell down on the projected iron portion of the Balam on his back, he sustained the injury which resulted in his death. The accused persons denied the prosecution allegation. Because the pointed portion projected upwards and at that time the deceased Binod fell down on the projected iron portion of the Balam on his back, he sustained the injury which resulted in his death. The accused persons denied the prosecution allegation. ( 4 ) THE trial court gave the finding that the stab wound inflicted by Dhiran by the Balam on the back of deceased Binod resulted in his (Binod) death and hence the offence under Section 302, I. P. C. was made out against the appellant Dhiran. The trial court also gave the finding that the appellant Niran assaulted the deceased Binod with a Katari on his right shoulder and he also inflicted injury with a Katari 6n the right chest of P. W. 1 and he also assaulted Basanti Das (P. W. 4) with a crowbar and hence the offences under Sections 324 and 323 I. P. C. have been made out against accused Niram. The trial, court, however held that the remaining accused persons other than accused Dhran and Niran had no over-act and they did not assault anyone. However/the trial court held that all the appellants were members of an unlawful assembly and accused Dhiran and Niran caused injuries to deceased Binod and P. Ws. 1 and 4 in prosecution of their common object of the unlawful assembly. In such circumstances, all the accused persons have been convicted under Section 148 I. P. C. and the remaining accused persons other than Dhiran and Niran have also been made constructively liable for causing the death of Binod and for voluntarily causing hurt to deceased Binod and P. W. 1 with sharp cutting weapons and voluntarily causing hurt to P. W. 4. It was mentioned that besides being convicted under Sections 324 and 323 I. P. C. , accused Niran was constructively liable for causing the death of Binod, The trial court disbelieved the defence plea is: The learned advocate for the appellants Mr. Dhal argued that the trial court has failed to appreciate the evidence in its proper prospective. He also argued that the evidence taken as a whole does not make out a case of unlawful assembly and by making name of the accused persons constructively liable for the offence under Sections 302, 323 and 324 I. P. C. , the trial court has committed gross error. He also argued that the evidence taken as a whole does not make out a case of unlawful assembly and by making name of the accused persons constructively liable for the offence under Sections 302, 323 and 324 I. P. C. , the trial court has committed gross error. ( 5 ) THE trial court gave clear finding that the death of deceased Binod is homicidal. This finding of the trial court cannot be assailed in view of the medical evidence and also ocular testimony or the witnesses, who have consistently stated that the accused-appellant Dhiran stabbed deceased Binod on his back with a Balam and as a result of that deceased Binod died. The testimony of the witnesses is fully corroborated by the Medical Officer of Jaipur Sub-Divisional Hospital (P. W. 8), who conducted the postmortem examination. At the time or post-mortem examination P. W. 8 found the stab Injury as describing by the witnesses and the corresponding internal injuries whereby vital organs had been damaged. The doctor also gave clear opinion that the cause of death was due to shock and haemorrhage on account of the stab injury on the back and corresponding internal injuries and such injuries are sufficient in the ordinary course of natures to cause death. Hence, the finding of the trial court that the death of deceased Binod was homicidal is quite correct and the same is upheld. ( 6 ) THE trial court gave the finding that accused Dhiren caused the fatal injury on the deceased by stabbing the Balam on the back and on the basis of this finding, the learned Second Additional Sessions Judge made accused Dhiran liable for causing the death of deceased Binod and convicted him under Section 302 I. P. C. In order to arrive at this finding, the trial court has discussed the evidence of the witnesses in detail and has given a cogent reasons. On reappraisal of the evidence, we find that the, sum-total of the evidence of P. Ws. 1 to 7 clearly establishes the fact that the accused Dhiran srabbed the deceased Binod on the back with the Balam and as a result of that Binod fail down and subsequently died. On reappraisal of the evidence, we find that the, sum-total of the evidence of P. Ws. 1 to 7 clearly establishes the fact that the accused Dhiran srabbed the deceased Binod on the back with the Balam and as a result of that Binod fail down and subsequently died. P. W s. 2, 3 and 4 have stated that being assaulted by Niran with a Karari on his right shoulder, deceased Binod ran out of fear and at that time accused Dhiren chased him with a Balam in his hand. P. Ws. 1, 5, 6 and 7 have clearly stated that accused Dhiren stabbed on the back of the deceased Binod and as a result of that Binod fell down and after that Dhiren tried to pull the Balam but the iron portion of the Balam stuck to the injury and the handle same out. The evidence is quite consistent and there is nothing in the cross-examination of any witness or any other circumstance to discredit their testimony. As the trial court has given very cogent reasons and discussed the evidence in detail, there is no need to reilerate the evidence again. The doctor (P. W. 8), who conducted the post mortem examination has given clear opinion that the injury inflictetion the back of deceased i. e. the stab injury caused by Dhiren with the Balam was the cause of death. Thus, accused Dhiren has intentionally caused the death of deceased Binod and so his conviction under Section 302 I. P. C. is quite justified and the sentence awarded against him is also quite justified. ( 7 ) THE trial court gave the finding that accused Niren gave a blow with the Katarion the right shoulder of deceased Binod causing bleeding injury and as a result of that Binod ran towards the village-crossing, The trial court further held that while Karunakar Das (P. W. 1) was trying to raise Binod from the ground near the village-crossing after Binod fell down being stabbed on the back by the Balam, accused Niren gave a blow with the Katari on the right chest of P. W. 1 causing injury and accused Niren also assaulted Basanti Das (P. W. 4) with a crowbar. In these circumstances the trial court found accused Niren guilty of the, offences under Sections 324 and 323 I. P. C. P. Ws. 1 and 4 have testified regarding their injuries. In these circumstances the trial court found accused Niren guilty of the, offences under Sections 324 and 323 I. P. C. P. Ws. 1 and 4 have testified regarding their injuries. P. W. 4 has stated that accused Niren dealt a blow with a crowbar on herleft wrist. P. W. 1 has stated that accused Niren assaulted him with a Katari on his right side chest. The eye witnesses have stated that accused Niren gave a blow with a Katari on the right shoulder of Binod. Regarding the injury on the right shoulder of Binod, the ocular testimony is quite consistent. The testimony of the eye-witnesses regarding the injuries on the right shoulder of deceased Binod is also well corroborated by the medical evidence. P. W. 8, who conducted the post mortem examination, found an incised wound on the right shoulder of deceased Binod at the time of post mortem examination. Thus, the allegation that accused Niren inflicted an injury on the right shoulder of deceased Binod with a Katari is established beyond reasonable doubt by well corroborated evidence. ( 8 ) P. W. 1 has stated clearly that when his deceased brother Binod fell down receiving the fatal blow on his back, he rushed near him and while he was raising him from the ground, accused Niran gave a blow with the Katari on his right side chest. P. W. 1 is well corroborated by P. Ws. 5, 6 and 7, who are witnesses to the occurrence. Dr. S. C. Sarnal (P. W. 11) examined Karunakar Das (P. W. 1) and found an incised wound on the front or chest 1 below the right nipple. Thus the ocular evidence is corroborated by the medical evidence. ( 9 ) P. W. 4 has stated that accused Niren gave a blow with a crowbar on her left wrist causing injury. P. W. 4 is corroborated by Damayanti Dei (P. W. 2 ). Basanti Das (P. W. 4) was medically examined by Dr. S. C. Samal (P. W: 11), who found an abrasion on the left wrist joint. , The doctor gave an opinion that the injury might have been caused by hard and blunt weapon. Thus, the doctor also corroborates P. Ws. Basanti Das (P. W. 4) was medically examined by Dr. S. C. Samal (P. W: 11), who found an abrasion on the left wrist joint. , The doctor gave an opinion that the injury might have been caused by hard and blunt weapon. Thus, the doctor also corroborates P. Ws. 2 and 4 regarding the injury on P. W. 4 and the allegation that it was accused Niren who caused injury on P. W. 4 is well corroborated by reliable evidence. ( 10 ) REGARDING the injuries stated to be caused by accused Niren to deceased Binod and P. Ws. 1 and 4, the evidence of relevant witnesses is quite unimpeachable and there is nothing in the crossexamination to discredit any witness in this regard. The trial court has also discussed the relevant evidence in detail and has given a cogent reasons in support of his finding. On reappraisal of the evidence we also find that the findings of the learned Second Additional Sessions Judge in this regard are quite correct. Thus, accused Ninen has bean rightly convicted under Sections 324 and 323 I. P. C. ( 11 ) THE only evidence of witnesses against the remaining appellants other than Dhirend and Niren is that they found Niren, China and Ramakanta were running after deceased Binod carrying lathis in their hands. There is, however, no allegation that any of these-accused caused any injury to deceased Binod. Accused Biren, China and Ramakanta have been made constructively liable under Section 149 I. P. C. for the offence under Sections 302, 324 and 323 I. P. C. and they have also been convicted under Sections 148 I. P. C. The learned advocate or the appellants Mr. Dhal argued that the circumstances of the case are such that the allegation that the accused persons are members of an unlawful assembly can be ruled out. ( 12 ) THE first part of the occurrence is that the appellants were putting a new fence on the Ban land of deceased Binod and P. W. 1 and when Binod Protested, accused Niren attempted to assault Binod with a crowbar. ( 12 ) THE first part of the occurrence is that the appellants were putting a new fence on the Ban land of deceased Binod and P. W. 1 and when Binod Protested, accused Niren attempted to assault Binod with a crowbar. Binod snatched away the crowbar and threw the same to the ground and just after that accused Niren gave a blow with a Katari on the right shoulder of Binod and so Binod ran away: Thus in this part of the occurrence, the fight was only in between accused Niren and deceased Binod. The other appellants have not taken any part. On being assaulted, Binod ran towards the village crossing and at that time accused Dhiren chased him with a Balam in his hand and he was followed by Niren and other accused persons. P. W. 2 has stated that accused Biren, China and Ramakanta were chasing the deceased holding lathis. P. W. 3 has stated that accused Biren China and Ramakanta were chasing Binod by carrying lathis. P. W. 3, however, stated before the 1. 0. that while chasing Binod, accused Ramakanta was carrying an Ekmuna. Basanti Das (P. W. 4) has stated that accused Biren, China and Ramakanta were chasing deceased Binod by holding lathis but she stated before the 1. 0. that they were holding Katas while chasing Binod. P. W. 5 has stated that accused Biren and China were carrying lathis while chasing Binod. P. W. 5. however, did not name accused Ramakanta before the 1. 0. P. W. 5 has stated that while chasing Binod, accused Biren and China were armed with crowbar and accused Ramakanta was armed with an Ekmuna. P. W. 6 has stated that accused Biren, Chinaand Ramakanta were chasing the deceased holding lathis. P. W. 7 has stated that accused Biren and Ramakanta were following the deceased Binod carrying lathis. P. W. 7 however, did not implicate China. Thus, it is seen that the witnesses are not consistent regarding the roll of accused Biren, China and Ramakanta and there are discrepancies regarding the weapons which they were carrying at the time of alleged chasing of deceased Binod. Added to this, P. Ws. 7 does not implicate accused China in the court and P. W. 5 has not specifically named accused Ramakanta in court. Added to this, P. Ws. 7 does not implicate accused China in the court and P. W. 5 has not specifically named accused Ramakanta in court. If either Ramakanta or China is excluded, then there is no basis of the allegation that the accused persons were members of an unlawful assembly. Added to this, accused Biren, China and Ramakanta have not been attributed with any over acts and the only allegation is that they were running after the deceased Binod and accused Dhirem carrying lathis. After accused Dhiren stabbed on the back of deceased Binod, there is no evidence of further assault on him. It is the only allegation that accused Niren assaulted P. W. 1 when P. W. 1 attempted to raise Binod, who fell down on the ground. At that time also there is no allegation that the accused Biren, China and Ramakanta committed any overact. In these circumstances, it is difficult to believe that accused Biren, China and Ramakanta had any intention to cause the death of Binod and in prosecution of their common object that they were running after deceased Binod and accused Dhiren. There is also no compelling basis to say that accused Biren, China and Ramakanta had any intention to voluntarily cause hurt to P. Ws. 1 and 4. Accused Niran caused hurt to P. W. 1 suddenly and before it was premeditated by the other accused persons, Niren caused hurt top. W. 4 another place. There is discrepancy in the evidence and in absence of any overt-act on the part of the accused Biren, China and Ramakanta and due to inconsistent evidents regarding the participation of Ramakanta and China, it is difficult to say that there was on unlawful assembly and the appellants were members of an unlawful assembly and in prosecution of the common object of the unlawful assembly accused Dhiren caused the death of Binod and Niren caused injuries to Binod, P. Ws. 1 and 4. In any case a summon of the evidence makes the allegation that the accused persons were the members of an unlawful assembly and in prosecution of their common object of the unlawful assembly one of the members cause the death of Binod and another member caused injuries to deceased Binod and P. Ws. 1 and 4. In any case a summon of the evidence makes the allegation that the accused persons were the members of an unlawful assembly and in prosecution of their common object of the unlawful assembly one of the members cause the death of Binod and another member caused injuries to deceased Binod and P. Ws. 1 and 4 doubtful and benefit of doubts must be given to accused Biren; China and Ramakanta and they are bound to be acquitted. ( 13 ) THE defence plea is one of denial of the prosecution allegation. The defence has also taken a plea that the fatal injury was caused to Binod accidentally. The trial court has rejected the defence plea that the death of Binod was accidental. The trial court has disbelieved the evidence of D. W. 1 as being afterthought. D. W. 1 has stated in his cross-examination that the i. o. asked him as to what he knew about the occurrence and at that time he did not tell anything and gave a story only when he was examined as defence witness. On this ground the evidence of D. W. 1 cannot be believed and the trial court has rightly, disbelieved the evidence. Except the evidence of D. W. 1, there is no other material in support of the defence plea and hence the defence plea must be held to be an after thought D. W. 1 has stated that Karunakar Das and Ramesh came with Katari and lathi and assaulted accused Dhiren with a Katari and Ramesh assaulted accused Niren with a crowbar causing injury on his head. Dhiren has not stated in his statement under Section 313, Cr. P. C. that he was assaulted by Katari. Dhiren has not also stated that Niren was assaulted by Ramesh with a crowbar. Niren has also not stated in his statement under Section 313, Cr. P. C. that he was assaulted by Ramesh with a crowbar. This goes to show that the evidence of D. W. 1 is quite imaginary and false. The trial court discussed the defence plea in detail and disbelieved the defence plea by giving cogent reasons and on reappraisal of the material on record, we also find that the trial court has rightly rejected the defence plea. This goes to show that the evidence of D. W. 1 is quite imaginary and false. The trial court discussed the defence plea in detail and disbelieved the defence plea by giving cogent reasons and on reappraisal of the material on record, we also find that the trial court has rightly rejected the defence plea. ( 14 ) IN the circumstances discussed above, the conviction of accused Dhirendra Das under Section 302 and the conviction of accused Niren, Das under Sections 324 and 323 I. P. C. is quite justified. ( 15 ) THE Trial Court awarded the sentence of imprisonment for life to the accused Dhirendra Das and accused Niren Das has been sentenced to undergo R. I. for one year for the offence under Sections 324 and 323 I. P. C. on each count and it has been directed that the sentences would run concurrently. The learned advocate for the appellants Mr. Dhal submitted that the sentences of accused Niren Das should be reduced to the period undergone by him. It appears from the record that Niren Das has remained in jail custody for three months. The offence is quite heinous. Accused Niren has taken very active part in the incident and it is he, who assaulted the deceased Binod at first and incited Dhirendra to assault deceased Binod. Niren has assaulted P. Ws. 1 and 4 also. In such circumstances, the R. I. for one year may be held to be on The lighter side and hence we do not see any justification to reduce the sentence. 1. In the result, the appeal is allowed in part and the conviction and sentence passed against accused biren Das, China Das and Ramakanta Das on all counts are set aside and the conviction and sentence passed against Dhirendra under Sections 148,323/149 and 324/149 I. P. C. are set aside and with regard to the remaining part the appeal is dismissed and the conviction and sentence passed against accused Dhirendra Das under Section 302, and 324 and 323 I. P. C. are also upheld And the direction of the trial court that the sentence passed against the convict niran would run concurrently is also maintained. We do not find any reason to interfere with the order of disposal of M. os passed by the trial court. .