D. M. PATNAIK, J. ( 1 ) THE Criminal Appeal as well as the revision arise from the judgment of the Additional Session Judge; Jeypore in S. C. No. 46 of 1987. All the appellants who were tried for the offences punishable under Sections 302/324/149 and Section 148 I. P. C. were acquitted of the charges under Section 302/149 but having been convicted for the offences under Sections 324/149 and Section 148 I. P. C. and sentenced to undergo rigorous imprisonment for one year on each count, they assail their conviction in this appeal. The suo motu criminal revision was initiated by this Court to judge the legality or otherwise of the order of acquittal of the appellants of the charge under section 302, I. P. C. This common judgment will dispose of the above two cases. ( 2 ) PROSECUTION case is, on 15/6/1987 at 7 p. m. appellant Mallipilli Tavitayya and Talapu Polayya (hereinafter referred to as the deceased) quarreled over a previous domestic stifle. Talapu Tautaya (P. W. 1) intervened to pacify the quarrel. At that time appellant Talapu Chinna Jamayya rushed to the spot and assaulted P. W. 1 by means of an axe on his forehead causing incised bleeding injury. P. W. 1 and the deceased went to the hospital for treatment of P. W. 1. At about 10p. m. on the same day hey were returning from the hospital. On the way, it was alleged that all the appellants surrounded both of them and carried on an indiscriminate assault on the deceased causing injuries on his person including a lacerated one on his head which sub-sequently proved to be fatal and Tolapu Polayya died of that injury. It was further alleged that appellant Edla Simachalam assaulted P. W. 1 on his right shoulder and appellant Kotu Gouri assaulted on his right thigh by means of lathis. The following morning i. e. 16/6/1987 at 9 a. m. P. W. 1 lodged the F. I. R. at the Rayagada Police Station. The deceased was sent for medical examination to the Rayagada hospital but for lack of accommodation in the said hospital he could not be treated as an indoor patient and came back to his house and died at about 8 p. m. The appellants in their 313 statements/denied the occurrence. ( 3 ) MR. The deceased was sent for medical examination to the Rayagada hospital but for lack of accommodation in the said hospital he could not be treated as an indoor patient and came back to his house and died at about 8 p. m. The appellants in their 313 statements/denied the occurrence. ( 3 ) MR. B. Panda, the learned counsel for the appellants strenuously urged that the prosecution having miserably failed to prove the case against the appellants, the learned Additional - Sessions Judge committed an error in recording the order of conviction which is liable to be set aside. Mr. Panda also pointed to various infirmities in the prosecution evidence. Mr. G. Mohanty, learned Additional Government Advocate, on the other-hand, submitted that when the learned Additional Sessions Judge believed the testimony of the prosecution witnesses and convicted the appellants of the charges under Sections 324/149 and section 148 I. P. C. , there was no justification for him in acquitting the appellants of the charge under Section 302 read with section 149 I. P. C. He pressed for the reversal of the order of acquittal. The rival contentions need careful examination. ( 4 ) WE have gone through the judgment of the learned Additional Sessions Judge as well as the evidence on record. That Tolapu Polayya died- a homicidal death has not been proved. The reasons are as follows P. W. 6, the Doctor who on 16-6-1987 medically examined Tolapu Polayya at 11. 30 a. m. , on police requisition found in all six injuries on his person including one lacerated wound on the right side of the head, of the dimension of 2 x 1/2 x 1/2. The rest five injuries were bruises on other parts of the body like index finger, waist, shoulder, forearm and dorsum of the right hand. They were not on any vital part of the body. The Doctor opined that all these five injuries were simple in nature. With regard to injury no. 1, P. W. 6 reserved his opinion as to the nature of that injury pending Xray examination. This indicates that there was no visible fracture of the skull bone for which the Doctor reserved his opinion. Ext. 16 is the post-mortem examination report. This was marked as such on admission. It seems one Dr. S. L. Devi conducted- the postmortem examination. This indicates that there was no visible fracture of the skull bone for which the Doctor reserved his opinion. Ext. 16 is the post-mortem examination report. This was marked as such on admission. It seems one Dr. S. L. Devi conducted- the postmortem examination. She found all the six injuries noticed by P. W. 6. She was not examined in the Court since her attendance could not be procured. On going through the post-mortem examination report we find, the lady Doctor found the injuries on the head, of the same dimension as found by P. W. 6. On dissection, corresponding to the external head injury she found the scalp over the right parietal eminence to have been bruised affecting an area of 3 c. m. in diameter and a crack-fracture of the right side skull. There was extramural hecatomb of 1 cm. diameter and of 1/4 cm. thickness on the right parietal lobe of brain. On opening the stomach, she found mucus membrane of stomach was congested and there was emission of alcoholic-like smell. Accordingly to her opinion, the death was due to the combined effect of the head injury and acute alcoholismt and the time since the death was within 36 hours at the time of postmortem examination. P. W. 6 further stated that at the time of examination of the: injured was conscious and was able to walk. He was advised hospitalization after the preliminary treatment. In the cross-examination, the doctor stated that injured Polaya was not serious and further stated that such injuries could not cause instantaneous death. After going through the evidence of the doctor (P. W. 6), the post-mortem examination (Ext. He was advised hospitalization after the preliminary treatment. In the cross-examination, the doctor stated that injured Polaya was not serious and further stated that such injuries could not cause instantaneous death. After going through the evidence of the doctor (P. W. 6), the post-mortem examination (Ext. 16) and considering that the injury on the head did not visibly indicate any fracture on clinical examination and further considering that the deceased after the assault walked to his house in the night and thereafter on the following day come to the hospital for treatment and against went back to his house and died at 8 p. m. and giving due weight to the opinion of the doctor that the injury on the head was not that serious which would cause, instantaneous death, we arc of the view that the assailant did not intend to voluntarily cause death, nor did he intend to cause the particular injury which was sufficient in the ordinary course of nature to cause death nor the assailant had the requisite knowledge that the same was likely to cause death. To add to this, the cause of death was also attributed to acute alcoholism as per the post-mortem examination report (Ext. 16 ). For the reasons stated above, we have no hesitation to hold that the death of Talapu Polayya could not have been homicidal in nature. ( 5 ) NEXT we are to see whether the acquittal of the appellants of the charge under Sections 302/ 149 I. P. C. was proper and whether this Court should interfere with the order of acquittal recorded by the Trial Court. The learned Additional Sessions Judge framed charge under section 302 I. P. C. only against appellant E. Lachayya, E. Simhachalam and M. Tavitayya. Along with all the other accused persons they have also been charged separately under Sections 302/149. The learned Additional Sessions Judge acquittal the three appellants of the charge under Section 302 I. P. C. after recording the reasons firstly that the death was not homicidal and secondly. P. Ws. 1, 2, 4 and 5 did not specifically, name these appellants alone assaulting deceased Talpu Polayya (vide Para 12 of the judgment ). We have nothing to differ from the finding of the learned Additional Sessions Judge with regard to these two aspects. P. Ws. 1, 2, 4 and 5 did not specifically, name these appellants alone assaulting deceased Talpu Polayya (vide Para 12 of the judgment ). We have nothing to differ from the finding of the learned Additional Sessions Judge with regard to these two aspects. For ourselves, we have already held in the preceding paragraph that the death of Talapu Polya could not have been homicidal. Also on going through the evidence of the prosecution witnesses we find that although P. W. 1 in the F. I. R. had mentioned the names of these three appellants along with others as the assailants of Talapu Polayya, in the evidence he did not name that these three appellant side at lathi blows on the deceased though he stated that all the appellants combined assaulted the deceased by means of lathis. The learned Additional Sessions Judge therefore has been right in not accepting the evidence of the prosecution witnesses with regard to the assault by the three appellants. This reason so given by the learned Additional Sessions Judge cannot be said to be based on non- consideration of the evidence on record nor can it be said to be a reason not acceptable to us. Since we cannot possibly take a different view of the nature of the appreciation of the evidence as pointed out by the learned Additional Sessions Judge, we are not inclined to interfere with the findings. Since the prosecution has failed to prove the charge under section 302 I. P. C. for the reasons stated above, the suo motu criminal revision must fail. ( 6 ) THE next point arises for consideration is whether the criminal appeal should be allowed and conviction of the appellants under Sections 324/ 149 and section 14h I. P. C. should be set aside. All the appellants have been convicted under the above sections though appellants E. Simhachalam and Katu Gouri were separately charged under Section 324 I. P. C. for having voluntarily caused hurt to the deceased for assaulting him by means of lathis. The learned Additional Sessions Judge in Para 10 of his judgment has held that the charge against these two appellants under section 324 I. P. C. as not proved. The learned Additional Sessions Judge in Para 10 of his judgment has held that the charge against these two appellants under section 324 I. P. C. as not proved. He has so held because P. W. 1, the informant stated in the F. I. R. about these two appellants assaulting him by means of lathis and though he corroborated this in his evidence in the court yet, P. Ws. 2 and 5, the other two eye witnesses did not support his version. The learned Additional Sessions Judge did not accept the evidence of P. W. 1 alone because of his animosity disclosed in his admission in the cross-examination that he was in accused in a criminal case for having assaulted appellant E. Gengamayya. Since this reason for not believing the assault by the two appellants cannot be said to be wholly unreasonable, we are not inclined to record a different opinion on the analysis of the evidence so made by the learned Additional Sessions Judge. But, however, we find, the learned Additional Sessions Judge did no disbelieve P. Ws evidence as false though it was his sole version so far as the assault on him was concerned. He has not believed the assault by the two appellants on P. W. 1 since he did not find corroboration to the evidence of P. W. 1 for ourselves, we do not find any reason to disbelieve the evidence of P. W. 1, though the learned Additional Sessions Judge has attributed animosity on account of the counter allegation. In the facts and circumstances of the present case, we are not in a position to reject the testimony of P. W. 1 though not corroborated by P. Ws. 2 and 5. Therefore, on going through the evidence of P. W. 1 fully corroborating his earlier version in the F. I. R. , we hold that on the same day after the occurrence at 7 p. m. he was medically examined and was found to have sustained an incised wound on the head, this second occurrence took place while he and his deceased brother were returning from the hospital. The evidence of the doctor (P. W. 6) is that he examined P. W. 1 and found as many as six injuries on his person including injury no. The evidence of the doctor (P. W. 6) is that he examined P. W. 1 and found as many as six injuries on his person including injury no. I which was an injury of the size of 5 x 1/4 x 1/4 across the right side forehead and the said injury could have been possibly by a sharp cutting weapon. After carefully going through the evidence of P. W. 1, we do not find any infirmity in his evidence. That apart, the learned Additional Sessions Judge, in fact, has believed his evidence as to the assault on deceased Talapu Polayya by all the accused persons though he has accepted the prosecution case on the basis of the evidence of the prosecution witnesses including P. W. 1 that the deceased was assaulted indiscriminately by all the accused persons combinedly. For the reasons stated above by us we would accept the sole evidence of P. W. 1 and hold that the prosecution has been able to prove that appellants, E. Simhachal and Kotu Gouri assaulted P. W. 1 by means of lathis and thereby caused simple injuries on his person. ( 7 ) SO far as the conviction of the other appellants under Sections 324/149 and section 148 I. P. C. is concerned, the said conviction has to be set aside for the reasons to follow The appellants have been convicted under section 324 with the aid of section 149 I. P. C. The essential ingredients of section 149 I. P. C. are that there must be an assembly of more than five persons, secondly the assembly must be an unlawful assembly and thirdly the members of such assembly should share the common object of committing any particular offence. Therefore, the essential ingredients of section 141 must be established, the emphasis being on common object. The learned Additional Sessions Judge has nowhere mentioned that the assembly was an assembly consisting of five persons or more. There is no evidence on record that all the appellants who have been found guilty for causing hurt by means of lathis to P. W. 1 and deceased Talapu Polaya in fact did share the common object to assault the two fellows. The learned Additional Sessions Judge as discussed above has found the three appellants namely E. Lchayya, E. Simhanchalam and M. Tavityya not guilty for the offence of murder. The learned Additional Sessions Judge as discussed above has found the three appellants namely E. Lchayya, E. Simhanchalam and M. Tavityya not guilty for the offence of murder. We may refer to the evidence in this regard. P. W. 1 slated in general that all the accused persons assaulted deceased Talapu Polayya indiscriminately. So far as the assault on him is concerned he stated that the was assaulted by Simhachalam and Kotu Gouri by means of lathis which fact we have believed as mentioned in the foregoing paragraphs. In the cross-examination, in Para 6 he stated that on 16-6-1987 he reported the matter in between 8 p. m. to9 p. m. (presumably a mistake for 8 a. m. ). The entire spot was in darkness. Nothing else has been elicited in the cross-examination. P. W. 2 stated that the occurrence took place on a Monday around 10 p. m. while she and others were carrying water from the cold storage to their masters house. The occurrence took place in front or the Bank. She saw the accused persons near the Bank with sticks or one foot length. When the deceased and P. W. 1 came near the Bank, the accused persons assaulted them. She neither stated the number of persons who assaulted nor did she Slate that they had assembly there prior to the assault or there was any deliberation among the appellants to carryon assault in pursuance to their common object. P. W. 3 stated that the accused persons were 14 to 15 in number and each had a lathi. Hearing the hulla he came to the spot and saw the accused persons assaulting somebody. Deceased Polayya was crying Marigali, Marigali. The accused persons left the place. This witness also did not state the names of the appellation who look part in the assault. P. W. 5 stated that the occurrence took place on a Monday during night hours while herself and other ladies were carrying water for their master from the cold-storage near the Bank. She found the accused persons were armed with lathis and assaulting P. W. 1 and the deceased. The deceased fell down due to assault. She went there with others and intervened. Thereafter the accused persons left the spot. She found injuries on the head and other parts of body of P. W. 1 and deceased Polayya. She found the accused persons were armed with lathis and assaulting P. W. 1 and the deceased. The deceased fell down due to assault. She went there with others and intervened. Thereafter the accused persons left the spot. She found injuries on the head and other parts of body of P. W. 1 and deceased Polayya. ( 8 ) FROM the entire evidence of these eye witnesses nothing has been proved with regard to the formation of the unlawful assembly and the members of that assembly sharing the common object to assault P. W. 1 and the deceased. In this regard we may profitably refer to a decision reported in Bhudeo Mandai and others v: State of Bihar1, where their Lordships held that when the Court convicts any person or persons of an offence with the aid of section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful, since their Lordships observed that section 149 creates a specific offence and deals with the punishment of that offence. In the judgment of the learned Additional Sessions Judge there is no discussion as to whether there was an assembly of more than five persons i. e. the appellants and that these appellants shared the common object already mentioned above and in pursuance of that object they assaulted both P. W. 1 and the deceased. We have already pointed out that the evidence do not disclose the formation of an unlawful assembly, the members of which shared the common object. In our view, the prosecution having failed to prove the necessary ingredients of section 149, the learned Additional Sessions Judge committed an error on facts for not discussing the evidence in that regard as well as on the point of law, as rendered by the apex Court in the decision referred to. In another decision reported in Mariadasin and others v. State of Tamil Nadu, their Lordships held that where there is no evidence as to the formation of the unlawful assembly with common object, the accused cannot be convicted under sections 147, 148 or 149,i. P. C. but any member of that assembly could only be liable for his own individual act. The above proposition of law squarely applies to the facts of the present case. The above proposition of law squarely applies to the facts of the present case. Following the principles decided in the two decisions referred to above, we hold that none of the appellants arc found to have committed any offence of rioting punishable under section 148 and hence, they arc acquitted of that charge and their conviction and sentence are set aside. None of the appellants except appellants E. Simhachalam and Kota Gouri are found guilty for the offence under section 324, I. P. C. and, therefore, all or them except the two arc acquitted of the charge under section 324, I. P. C. and their conviction and sentence are set aside. Accepting the evidence of P. W. 1 as true for the reasons already stated, we confirm the finding of the learned Additional Sessions Judge that appellants E. Simhachalam and Kota Gouri assaulted P. W. 1 with lathis. We may make it clear that they have found to be liable for the assault not with the aid of section 149, I. P. C. but taking into account the assault as their individual acts. The learned counsel for the appellants referred to a decision reported in Benudhara Nayak and another v. State of Orissa3. In the case, a Division Bench of this court held that whether the assault by means of lathi would come within the purview of section 323 or 324, I. P. C. would depend on the nature or the weapon used and the weapon must be one or which one can predicate that the probable result of its use would be, by Virtue of its very nature, death. The question whether a lathi is a deadly weapon is a question of fact to be determined in the peculiar circumstances of the case. In the absence of the evidence about the description of the lathi indicating that if used as a weapon of offence it was likely to cause death, the accused could be convicted under section 323 and not under section 324, I. P. C. In the present case, P. W. 2 stated in her evidence that the appellants were armed with sticks of one foot length. In the absence of any other evidence with regard to the size of the lathis we are bound to accept the evidence of this witness that in the facts and circumstances of the case, the lathi which was used by the above two appellants could not be said to have been used as deadly weapon. Therefore, the conviction of the two appellants under section 324, I. P. C. is converted to one under section 323, I. P. C. Accordingly, their sentence of one year Rigorous Imprisonment is reduced to one month's Rigorous Imprisonment each and further they are directed to pay fine of Rs. 500. 00 each, in default, to undergo further Rigorous Imprisonment for 15 days each. ( 9 ) IN the result, therefore, the suo motu criminal revision is dismissed and the criminal appeal is partly allowed with the above modification of sentence. Appeal partly allowed.