Judgment S.K.Chattopadhyaya, J. 1. The appellants have impugned the judgment of conviction and order of sentence dated 1.6.1993 passed by 7th Additional Judicial Commissioner, Rarichi in Sessions Trial No. 120/88, by reason of which these appellants have been convicted and sentenced to undergo rigorous imprisonment for three years under Sec. 326 read with Sec. 149 IPC and six months rigorous imprisonment for offence under Sec. 147 IPC. 2. It is pertinent to mention that accused Jaipal Ahir though was found guilty for an offence under Secs. 147, 326 read with Sec. 149 IPC, has been sentenced for the period already undergone. 3. The facts are simple. On 18.9.1983 Jagdeo Singh, PW 4 and Kalil Sao had gone to the house of Jagarnath Thakur of village Barabia. The date was next day of Karma festival and as local tradition, people of the village were drunk and some occurrence took place with Jagdeo Singh and Kalil Sao. Jagdeo returned to his house. At 6 PM about 3035 persons of village Barabia came to the house of Jagdeo Singh variously armed and started beating his roof. The appellants and Jaipal also were there. It is specifically stated that Birsa Oraon, appellant No. 4 was having a tartgi and others were armed with lathi. The deceased Manbahal Singh came there and tried to specify them but the accused persons started assaulting him with respective weapons on his head. Manbahal failed down unconscious. Jagdeo Singh also sustained Chhura blow. Sundra Mali, Kisto Mali, Charku Singh, Sudama Pandey and others said to have witnessed the occurrence and when other villagers started rushing to the place of occurrence, all the accused filed away. Manbahal Singh in an injured condition was removed to Chanho Police Station where FIR was lodged. Later on manbahal succumbed to his injury. After investigation chargesheet was submitted and on framing of charge, trial commenced. The defence was totally denial of charges on the ground that at the time of occurrence they were not even in the village. 4. In order to prove its case, five prosecution witnesses were examined by the prosecution, though admittedly there were 12 chargesheet witnesses. PW 1, K.P. Srivastava is the doctor, who held post-mortem examination on the dead body of Manbahal Singh. PW 2, Charku Singh is one of the sons of the deceased. PW 3, Sadhu Singh, another son of the deceased, is the informant. PW 1, K.P. Srivastava is the doctor, who held post-mortem examination on the dead body of Manbahal Singh. PW 2, Charku Singh is one of the sons of the deceased. PW 3, Sadhu Singh, another son of the deceased, is the informant. PW 4, Jagdeo Singh, is the cousin of PWs 2 and 3 and PW 5 is Jagarnath Ram, a formal witness. The Investigating Officer has not been examined in this case. FIR has been marked as Ext. 3, whereas Ext. 2 to 2/2 are the signatures of the informant and other witnesses on the FIR. Inquest report is Ext. 4 and injury report sent by the I.O. alongwith injured persons are Ext, 5 and 5/1. On behalf of the defence, injury report of Jagdeo Singh was proved and marked as Ext. A. FIR of the counter case lodged by one Barna Oraon on 19.9.1983 against PWs 2, 3 and 4 is Ext. B. 5. According to PW 3, the informant, at the time of occurrence is he was in his house and he saw 30-35 persons of Barabia armed with various weapons surrounded the house of Jagdeo Singh and started beating the roof with lathi. The house the next to the house of the informant and his father went there and requested them not do so, but the accused started assaulting his father. His specific claim is that the appellant No. 1 gave lathi blow on his head. Appellant No. 3, Jhirga assaulted with Tangi from its blunt portion on the head of the deceased, whereas Jaipal, appellant No. 2 and appellant No. 5 assaulted his father with lathi. Appellant No. 5 also gave a Chhura blow to PW 4. As the time was not dark, he could see the occurrence and rush to the place. However, he was chased by the accused persons and he fled away and again returned after 20-25 minutes. But that time accused had fled away and his father was lying smeared with blood. With the help of others, he removed his injured father to police station where he died. According to is deposition, it appears that he is an eye witness, who went to the place of occurrence to see the assault on his father. He was not afraid of face the miscreants as his father was going to die. With the help of others, he removed his injured father to police station where he died. According to is deposition, it appears that he is an eye witness, who went to the place of occurrence to see the assault on his father. He was not afraid of face the miscreants as his father was going to die. He had gone to the adjacent village Hutli for help but none came to his help and on the other hand, closed their respective doors. He took shelter in an unroofed house to save his life. He has categorically deposed that none of the accused persons was known to him. Though broken tiles of the roof of PW 4 were shown to the I.O. but they were not seized. He could see Jagdeo receiving Chhura blow, as he was standing at the distance of only 15-20. Jagdeo fled away and could not be assaulted any further. 6. PW 2, claiming himself to be another eye witness, has deposed that he saw the aforesaid persons coming with deadly weapons in their hands and they started beating on the roof of PW 4 and in the meantime, his father Manbahal went to specify them but he was severely assaulted by the accused. According to this witness, Bandhu was armed with Tangi whereas other accused with lathi. He admitted that a counter case was filed on the next day against them. Though this witness was subjected to lengthy cross examination but nothing improbabilities could be brought out. 7. PW 4, Jagdeo Singh has corroborated the prosecution case in ill its material aspect. According to him, while he was returning from Barabia alongwith Kalil Sao, he found Kisto Bhagat of his village having some altercation with Puran. He asked Kisto to stop altercation and to leave the shop but in the meantime, Chandrika started assaulting Kisto, in which this PW intervened. Thereafter Kalil and Kisto left the place and returned to home. This was at about 3 PM on the date of occurrence. This witness further says that at about 5-6 PM, on the same day, while he was in his house, 30-35 persons of village Barabia, variously armed with lathi, tangi, chuura etc., arrived there and started beating his roof. Thereafter Kalil and Kisto left the place and returned to home. This was at about 3 PM on the date of occurrence. This witness further says that at about 5-6 PM, on the same day, while he was in his house, 30-35 persons of village Barabia, variously armed with lathi, tangi, chuura etc., arrived there and started beating his roof. Appellant No. 5 gave him Chhura blow and when Manbahal came to rescue him by specifying all the miscreants, this witness fled away from there and stood in front of the door. He found from there that Manbahal was being assaulted with lathi and tangi, as a result of which, he fell down bleeding. When the accused left the place, injured was taken to police station where he died. Being himself injured, he did not went to the police station alongwith injured Manbahal. He stated before the police that as he was assaulted near the shop of Puran, he also abused and gave 2-3 slaps to Chandru Kumhar. As he does not know of Chamru Oraon of Barabia so he was unable to say as to who assaulted him. A suggestion was given to this witness that to take revenge they had assembled near Role Pond and misbehaved with the girl of village Barabia but the same has been denied. 8. From the aforesaid discussion of evidence of PWs 2, 3 and 4 one thing is clear that defence also admitted that people of Barabia had assaulted the witnesses. However, stand has been taken by the defence that villagers of Barabia were also assaulted in the said quarrel, for which a counter case was lodged on the next day. 9. The Doctor, PW 1, opined that the head injuries sustained by the deceased were sufficient to cause death in ordinary course of nature. He found 5 abrasions injuries, one on the back of right forearm, one on the back of right elbow, two on the back of left elbow, one of left thigh and one on the right cheek. However, he found lacerated wound to the extent of 3 × 1 cm scalp deep situated on left parietal head posterialy and associated with conclusion of local scalp of that area. Other injuries, which were found by the doctor are as follows: 6. Contusion-There was diffused contusion of soft issues on back of chest and abdomen and left glutical area. However, he found lacerated wound to the extent of 3 × 1 cm scalp deep situated on left parietal head posterialy and associated with conclusion of local scalp of that area. Other injuries, which were found by the doctor are as follows: 6. Contusion-There was diffused contusion of soft issues on back of chest and abdomen and left glutical area. D. Internal-There was depressed fracture (2) × 3/4 cm. of left partial bone underneath the lacuated would No. (i) mentioned above. There was diffused confusion of right temporo parieto frontal scalp and right temporalis muscle depressed comminuted fracture (6 x 51/2 cm.) in right temporo parieto frontal bone and from there crack fracture extended to right middle cranial fossa, there was lacuation of dura meter and brain underneath the depressed comminuted fracture, contusion of entire brain and there was presence of blood and blood cloth in the cranial cavity. Finally the doctor came to the conclusion that death was due to aforesaid head injuries. 10. It is, thus, clear that factum of assault on Manbahal and his ultimate death, out of head injuries, cannot be disputed. The prosecution has able to prove beyond all reasonable doubts that there was an assault in which some people took part and the injured succumbed to his injuries. 11. The question, which is to be decided precisely in this appeal is as to whether in view of the death caused to Manbahal by the unlawful assembly, which is punishable under Sec. 302 with the aid of Sec. 149 IPC, the corroboration to the participation of each individual member of the assembly would be necessary, and if so, whether in the instant case there is such. corroboration. 12. Mr. Sinha, learned Counsel appearing on behalf of the appellants, has contended that even though the factum of assault and death of Manbahal cannot be denied but from the evidence on record, it cannot be said with certainty that the appellants were the assailants and committed the offence. According to him, there is no explanation coming forth from the prosecution side as to why out of 12 chargesheet witnesses only three interested witnesses were examined. According to him, there is no explanation coming forth from the prosecution side as to why out of 12 chargesheet witnesses only three interested witnesses were examined. The non-examination of the I.O., learned Counsel asserts, makes the case of the prosecution more weak inasmuch as the reasons for non-examination of the independent witnesses could have been explained by the I.O. Learned Counsel further asserts that so-called eye witness namely PWs 2 and 3 are in total contradiction when they put the axe (tangi) in the hands of different persons before the Court. Lastly he urged that by no stretch of imagination it can be said that the appellants alongwith accused Ahir had formed an unlawful assembly with common knowledge of murdering Manbahal. 13. Mr. Chatterjee, learned APP appearing on behalf of the State, however, contended that when the eye witnesses have supported the case of prosecution by pointing out the appellants as main assailants, their evidence cannot be discarded merely on the ground that there were minor contradictions. According to him, appellants have failed to point out as to how they were prejudiced for non-examination of the Investigation Officer. Lastly, it is contended that in an offence under Sec. 149 of the Penal Code, it is enough for the prosecution to prove that one of the members of such assembly was responsible for giving injuries on the head of Manbahal. 14. Sec. 149 IPC contemplates that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who, at the time of committing of that offence is a member of the same assembly, is guilty of that offence. 15. Sec. 141 IPC defines Unlawful assembly, which means an assembly of five or more persons is designated an unlawful assembly, if the common object of the persons composing the assembly is to do any act or acts stated in clauses first, second, third, forth and fifth of that section. The explanation to the section says that an assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly. The explanation to the section says that an assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever, being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. The two essentials of the Sec. 141 are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. Thus, the common object of the assembly must be one of the five objects mentioned in Sec. 141 IPC. This object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be reduced from the facts and circumstances of each case. 16. While interpreting the scope of Sec. 149 IPC, the Supreme Court in the case of Lalji and Ors. V/s. State of U.P., observed thus: Sec. 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts, committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person pertaining the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Sec. 149. It must be noted that the basis of the constructive guilt under Sec. 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 17. In this background if one scrutinises the facts and circumstances of the instant case, it will reveal that, due to some reason or other 30-35 villagers of village Barabia assembled to teach a lesson to Jugdeo Singh, PW 4. It is an admitted case that accused started breaking the titles of the house of Jagdeo. Therefore, at that moment those persons including the appellants had no common object to murder Manbahal. Their sole object was to do some harm to Jagdeo, PW 4. It is also the case of the prosecution that Jagdeo received knife injury from appellant No. 5. However, for the reasons best known to the prosecution, the doctor, who examined the injury of PW 4, was not examined, but the injury report has been proved by the prosecution. Thus, from these facts, it can be well presumed that if there was any common object of the said unlawful assembly, it was directed against Jagdeo and not against the deceased Manbahal. Thus, from these facts, it can be well presumed that if there was any common object of the said unlawful assembly, it was directed against Jagdeo and not against the deceased Manbahal. The deceased, as well-wisher of Jagdeo, came out from his house and tried to specify the miscreants but unfortunately was assaulted by the accused persons. Thus, it cannot be said that the accused persons formed an unlawful assembly from the very beginning with a common object to murder Manbahal. Under these circumstances, in my considered opinion, the appellants cannot be convicted with the aid of Sec. 149 IPC. 18. The next question is to be considered as to whether the appellants can be convicted under Sec. 326 read with Sec. 147 IPC. In this context, it may be mentioned that out of the six accused only Birsa Oraon (AFO) was charged under Sec. 148 IPC but he was also not convicted under the said Section. As far as offence under Sec. 323 IPC is concerned, I have already indicated above that the prosecution witnesses are not sure of the fact as to who actually assaulted the deceased by axe (tangi). In the FIR the name of appellant No. 4, Birsa Oraon is there, who was holding a tangi, whereas the informant, PW 3, in his deposition placed the tangi in the hand of Jhirga (appellant No. 3). On the other hand, PW 2, said to be in an eye witness, claimed that Bhagat (appellant No. 2) was holding tangi and assaulted the deceased by the same. Thus, there is total contradiction in the evidence of these two alleged eye witnesses. However, this discrepancy, in my view, is not very much in favour to the defence case inasmuch as the evidence of doctor is clear that the deceased died out of head injuries sustained by him as a result of assault by hard and blunt substance. Even assuming that the deceased was not hit by back portion of tangi but there cannot be denial of the fact that all the accused persons assaulted him with lathi. Though, it has been argued by Mr. Sinha that the prosecution case is that except the person holding tangi, all others assaulted the deceased by lathis on different part of the body, in my view, is not justified. Though, it has been argued by Mr. Sinha that the prosecution case is that except the person holding tangi, all others assaulted the deceased by lathis on different part of the body, in my view, is not justified. In such a situation where indiscriminate assault is going on by members of an unlawful assembly, it is not possible for any body to see clearly as to who gave the specific blow of lathi or tangi on the injured. Thus, in my opinion, the prosecution has been able to prove that the deceased was assaulted on his head by hard and blunt substance and that hard and blunt substance either may be lathi or tangi. Under these circumstances, in my view, the appellants cannot escape to conviction at least under Sec. 326 IPC. 19. Thus, keeping in view the facts and circumstances, the judgment of conviction under Sec. 326 read with Sec. 147 IPC cannot be interfered with but taking into consideration of the fact that since the offences were committed and more than 15 years have elapsed and during that period the appellants have gone through the ordial of a protected criminal trial and moreover one of the accused namely, Jaipal Ahir has been set free by the Court below, I modify the order of sentence to the period already undergone by the appellants. 20. In the result, the appeal is dismissed subject to modification in the order of sentence as indicated above. The appellants, who are on bail, are discharged from the bail bonds.