Judgment R.N.Sahay, J. 1. This appeal is on behalf of the ten convicted accused in Sessions Trial No. 43 of 1980/41 of 1982 on the file of 1st Additional Sessions Judge, Sitamarhi. As many as 22 persons including the appellants were tried in this case. The judgment was delivered on 1st May, 1985. The learned Additional Sessions Judge convicted twenty accused while two accused, namely Pawan Kumar Thakur and Sesh Narain Thakur were acquitted for lack of evidence. 2. The appeal preferred by remaining convicted persons has been separated from this case since in one of the appeals i.e., Cr. App. No. 77/85 notice was not been properly served. The trial of the present appellants and the other accused related to an incident which took place on 7.6.1978. The prosecution case has been accurately narrated by the learned Additional Sessions Judge in Para 2 of the judgment, extracted hereunder : "The prosecution case, in brief as gathered from the fardbeyan, is that Ram Bujhawan Yadav (PW 2) informant injured came to P.S. Nanpur along with injured Rajendra Sahani and Tildhari Sahani at 8 p.m. on 7.6.1978 and lodged information to the effect that on that date at 12 a.m., he had gone from Mahisautha to village Samar along with his few associates for canvassing for vote. He reached the darwaja of Bhushan Pathak and requested him for vote. At that time about 25-30 persons were at the darwaja of Bhushan Pathak. He names some of them as Ram Singhasan Rai, Anup Lal Rai, Ram Swaroop Rai, Nand Kisohre Rai, Rajendra Rai of village Sater, Bhole Rai of village Sager Tola Ranglali, Bhushan Pathak, Rama Kant Pathak, Dhananjay Pathak, Shayama Pathak, Ishwar Chand Pathak, Sudhir Pathak, Prem Chand Pathak, Satto Pathak, Bindeshwar Pathak of village Samar and Dhirendra Thakur, Pitember Thakur, Amol Thakur, Madhu Thakur of village Jajuar and others. It is indicated that Jajuar is within P.S. Katara within Muzaffarpur district. Village Mahisautha, Samar and Sater are within P.S. Nanpur, District Sitamarhi. It is alleged in the fardbeyan that Dhananjay Pathak retorted to the informant that they were gossiping and he should go to other place for asking vote (Hum Guftgu Kar Rahe Hain Aap Dusare Sthan Par Jakar Vote Ka Nivedan Kare). Thereafter, the informant went in the same village via the darwaja of Shivji Rai to the darwaja of Mangnu Chowdhary. Thereafter, the informant went in the same village via the darwaja of Shivji Rai to the darwaja of Mangnu Chowdhary. He began to ask for vote there is alleged that at about 2 p.m., he proceeded from the darwaja of Mangnu Chowdhary for going to Mahisautha. When he reached again near, the darwaja of Bhushan Pathak it is alleged that Bhushan Pathak uttered to Ram Singhasan Rai that he has got his gun seized and he has changed the booth from Dasai to Mahabir Sthan and he (informant) was helpless (Apka Banduk Wahi Seej Kara Diya Hain Aur Dasai Par Jo Booth Hai Usakao Mahabir Sthan Men Kara Diya Inka Kuchh Nahin Chala). On hearing the utterances aforesaid the informant replied that is Devottar property and not fit for running school and he would get a proceeding under Section 144, Cr.P.C. started. On hearing this, it was replied to him (informant) let account be settled today (Aaj Ki Aap Pharchha Lijiye). Thereafter, the associates of the informant asked the informant to proceed on and said that they (accused persons) are trying to quarrel. Thereafter, Rama Pathak alias Ramakant Pathak assured that there will not be any quarrel and also said that all of them will move with you to Mahisautha Further case is that when they reached near the Khanua Ghat, they (accused persons) began to quarrel with the informant and his associates and some of the accused persons loudly called out their other persons who were in south of Khanua Ghat. Those per sons had guns and bombs in their hands. Five of them had guns. It is alleged that Ram Singhasan Rai, Anup Lal Rai, Ram Swaroop Rai, Nand Kishore Rai and Dhirendra Thakur took guns from the hands of those persons. Other accused persons took bombs from the hands of those persons. Thereafter, Bhushan Pathak and Pitambar Thakur said that that gun has been got seized but how you will get this gun seized (Wah Banduk Seej Kara Diya Yeh Banduk Kaise Seej Kara Doge) and by so saying both of them gave further orders to open gun shots and the hurl bombs whereupon Dhirendra Thakur and Ram Singhasan Rai opened gun fire as a result of which Niranjan Sahni and Sakoor Nadaf of village Mahisautha died on the spot. Dhananjay Pathak, Bhushan Pathak and others began to hurl bombs as a result of which Rajendra Sahni, Rajdeo Rai and Vijay Kumar received injuries by bombs. They had also thrown bombs on the deceased persons. It is alleged that the informant himself ran away and entered into the house of Tildhari Sahni. Dhananjay Pathak asked the miscreants to set fire to the house of Tildhari. He also asked Tildhari to bring out the informant. Tildhari,however, said that he will not take out the informant because he has taken refuge (Sharan) with him. Thereafter, Sudhir Pathak pierced bhala in the stomach of Tildhari Sahni. Ishwar Chand Pathak also hurled bhala blow. Other accused persons assaulted him by fists and slaps. It is alleged that Tildhari was still senseless at the time of fardbeyan. It is also alleged that Mithlesh Pathak, Rajendra Rai, Bhola Rai, Ramakant Pathak, Premchand Pathak, Amol Thakur and Madhu Thakur were also armed with lathi, bhala and bomb and they were using the same. It is alleged that Anup Lal Rai took out a matches from his pocket and set fire to the tatti house of Tildhari. It is also alleged that seeing the aforesaid acts, the informant ran away from the place whereupon Ram Singhasan Rai opened gun fire upon him due to the orders given by Satto Pathak, Bindeshwar Pathak for killing the informant soon who was coming out of that house. The gun shot fired by Ram Singhasan Rai caused injury on neck, chest and left arm of the informant who fell down." 3. During trial 25 witnesses were called for on behalf of the prosecution and equal number of defence witnesses were examined. In this case, there is no doubt that three persons lost their lives and several persons were injured in the occurrence. 4. Ram Bhujawan, the most important witness of the case, had received fire-arm injuries. Sakoor Nadaf one of the persons killed in the occurrence had number of injuries on his persons. Blackening and tatooing was found on his body. According to the doctor, firearm was used from a distance of 15 to 20 feet. Similar injuries were found On Niranjan Sahni, the other deceased, who also died by gun shot injury. 5. Rajdeo, PW 4, had received as many as seven pellet injuries. Other injured were Rajendra Sahni, PW 15 and Vijay Kumar Singh PW 17. According to the doctor, firearm was used from a distance of 15 to 20 feet. Similar injuries were found On Niranjan Sahni, the other deceased, who also died by gun shot injury. 5. Rajdeo, PW 4, had received as many as seven pellet injuries. Other injured were Rajendra Sahni, PW 15 and Vijay Kumar Singh PW 17. They also received gun shot injury. 6. Tildhari Sahni, who was killed in the second part of the occurrence, had sharp cutting injuries on his persons. 7. The learned Sessions Judge has held that the assailants amongs the accused persons had become armed with five guns and also several bombs and they were using them also. Moreover, some of the assailants became in possession of bhalas and lathis and bhala was used against Tildhari who died as a result of the bhala injury sustained. There is no evidence against any of the appellants that they possessed firearms. Two of the appellants, namely, Shaymakant Pathak and Prem Chand Pathak were charged under Section 307, IPC for having fired at Ram Bhuj-wan Yadav. There is no evidence that they also fired or assaulted the informant. According to the evidence, it was Ram Singhasan Rai alone who fired and injured Rambhujawan. They were also charged under Section 302/149, IPC in respect of murder of Niranjan Sahni and Sakoor. 8. According to the evidence of the informant Rambhujawan, appellants Bhushan Pathak and Shyama Kant Pathak took bhalas from the persons who were sitting near Kanua Ghat and these persons supplied arms to five accused persons. There is general allegation against the other accused persons that they took lathis. 9. So far charges against Sudhir Pathak and Ishwar Chand Pathak for committing the murder of Tildhari Sahni is concerned, the Trial Judge has held that the prosecution has led discrepant evidence to prove this charge. Before the police accused Madhur Thakur was said to be an assailant by bhala on Tildhari. The allegation against Ishwar Chand was of hurling bhala which did not hit Tildhari. The Trial Judge, however, held that the ocular evidence indicates that the witnesses were not in a position to specify the real assailant much less Sudhir Pathak and Ishwar Chand Pathak. Therefore, these two appellants were acquitted of the charges under Section 302, IPC for committing the murder of Tildhari. 10. The Trial Judge, however, held that the ocular evidence indicates that the witnesses were not in a position to specify the real assailant much less Sudhir Pathak and Ishwar Chand Pathak. Therefore, these two appellants were acquitted of the charges under Section 302, IPC for committing the murder of Tildhari. 10. The learned Additional Sessions Judge held that two guns were fired simultaneously one of which was fired by Dhirendra Thakur (not appellant) but about the other gunner there is discrepant evidence. Only Ram Singhasan Rai was found guilty under Section 307, IPC for causing the gun shot injury to the informant. Some of the appellants, according to the evidence, were supplied bombs by the miscreants who were sitting at the Ghat and they supplied arms to five persons. The learned Additional Sessions Judge, however, found that the existence of bomb was not proved as such the accused persons who are alleged to be in possession of bombs were convicted under Section 147 of the Indian Penal Code. 11. Appellants Sudhir Pathak and Ishwar Chand Pathak, who were in possession of bhalas were convicted under Section 148, IPC. 12. So far as appellant Nos. 1, 2 and 3, as noticed earlier, are concerned, the Trial Judge has found that the charge against appellant Nos. 1, 2 and 3 for hurling bombs has not been proved. Similarly charge against appellant No. 5 Sudhir Pathak and appellant No. 7 Ishwar Chand Pathak that they hurled bhalas to Tilakdhari has not been proved. There is no allegation that the remaining appellants were carrying lathis or lathis were supplied to them. 13. In the light of the evidence led by the prosecution, the principal question that arise for consideration is whether the Trial Judge had correctly applied Section 149, IPC against the appellants and convicting them for the murder of Niranjan and Sakoor. 14. So far as Dhirendra Thakur and Ram Sinhasan Rai are concerned, there may be evidence available on the record to convict those accused under Section 302/149, IPC. It is submitted that the accused persons had not committed any overt Act. In the instant case, it is difficult to ascertain what was common object of the unlawful assembly. 15. 14. So far as Dhirendra Thakur and Ram Sinhasan Rai are concerned, there may be evidence available on the record to convict those accused under Section 302/149, IPC. It is submitted that the accused persons had not committed any overt Act. In the instant case, it is difficult to ascertain what was common object of the unlawful assembly. 15. In a recent decision of the Supreme Court in Dukhmochan Pan-dey V/s. The State of Bihar, AIR 1998 SC 40 , it has been held that mere fact that the accused persons were armed with weapons itself would not be sufficient to attribute common object of all of them was to commit the murder where assault was not on vital parts of the body which ultimately resulted in causing some minor injuries, it may not be sufficient to establish beyond reasonable doubt that they also shared a common intention of causing murder of deceased. In that case a mob of 200 persons came to the field armed with different weapons with a sole object to desist the prosecution party from carrying on transplantation operation on the field but at the spur of moment on account of certain Lalkara being given by some of the accused persons, persons armed with weapons started assaulting the deceased resulting in his death. It has held that all the accused could not be convicted under Section 302/34 for community murder. Accused person assaulting deceased not in vital parts and causing minor injuries were held liable to be convicted under Section 325/34, IPC. 16. In the instant case, so far these appellants are concerned, it is difficult to conclude that these appellants and other accused persons had any common object even though they were members of unlawful assembly. As noticed earlier, three of the appellants who are alleged to have hurled bombs are acquitted by the Trial Judge. 17. In my consideration opinion, the evidence is not sufficient to hold they are constructively liable for deaths of Niranjan and Sakoor. 18. It would be noticed that the persons sitting at the house of Bhushan Pathak followed the informant up to Khanua Ghat where the actual occurrence took place. No member of the assembly was armed, hence the assembly was not unlawful till then. The assembly became unlawful only when fire-arms were supplied to them by their associates who were waiting at Khanua Ghat. No member of the assembly was armed, hence the assembly was not unlawful till then. The assembly became unlawful only when fire-arms were supplied to them by their associates who were waiting at Khanua Ghat. Then two of the accused persons fired killing two persons. These appellants committed no overt act. The evidence is that some of them were carrying bombs which evidence is disbelieved by the Trial Court. There is general allegation against five of the appellants that they were possessing lathies. 19. The question for consideration is whether these appellants were rightly convicted under Section 302/149 of the Indian Penal Code when they have not committed any overt act. 20. To fasten the liability on these appellants of two murders by taking resort to Section 149, IPC there should clear cogent and convincing evidence that these appellants were having prior knowledge or expectation or they anticipated that the murders were likely to be committed by some members of the assembly. 21. The prosecution case is that common object was to do away the life of the informant but he escaped. Two persons, the followers of the informant were killed. 22. The learned Trial Court ignored this crucial aspect of the case and convicted these ten appellants for the murder even no overt act was committed by them, except they were armed with lathis. The Court did not accept major part of the case against these appellants as noticed earlier. 23. The words "In prosecution of the common object" do not mean "during the prosecution of the common object of the assembly". It means that the offence committed was immediately connected with the common object of the assembly or the act is one which upon the evidence appears to have been done with a view to accomplish the common object attributed to the members of the assembly. The words "in prosecution of the common object" have to be strictly accused as equivalent to "in order to attain common object." 24. In Ram Bilas Singh V/s. State of Bihar, AIR 1969 SC 1593, the Supreme Court observed that it is true that in order to convict persons vicariously under Section 34 or Section 149, it is not necessary to prove that each and every one of them had indulged in overt acts. In Ram Bilas Singh V/s. State of Bihar, AIR 1969 SC 1593, the Supreme Court observed that it is true that in order to convict persons vicariously under Section 34 or Section 149, it is not necessary to prove that each and every one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more was or were done in furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly. In Ram Bilash Singhs case (supra) the common object of the unlawful assembly was to kill a particular person. Two members of the assembly went after him. Sensing danger, he ran into the adjoining room to fetch a spear to defend himself. His wife blocked his way and he could not come out. Frustrated, as they were, the two members of the assembly gunned down two young girls of their intended victim who were then playing in the courtyard outside the house. The Supreme Court set aside the conviction of the rest of the members for this murder as this was neither their common object. 25. In my view considering the ratio in Dukhmochan Pandey V/s. The State of Bihar, AIR 1998 SC 40 and Ram Bilash Singhs case in absence of sufficient evidence that these appellants shared common object with those who caused two deaths they cannot be held liable under Section 302/149, IPC. The conviction of the appellants under Section 302/149, IPC therefore, cannot stand and is accordingly quashed. 26. Now the question for consideration is whether the conviction of the appellants under Section 147 or 148, IPC is proper and justified. 27. So far as appellants No. 1 and 8, namely, Bhushan Pathak and Satya Narain Pathak @ Satto Pathak are concerned, they being dead this appeal abates so far they are concerned. Appellant No. 4 Ramakant Pathak @ Ram Narain Pathak @ Ramanand at the relevant time, was postmaster at village Samar. He had taken a plea of alibi that he had taken leave for that date. He had handed over charge on 6.6.1978. DW 16 Jagannath Pandey, a postal clerk, was examined, has confirmed this fact and also proved the memo of undisbursed pay for June and July 1978 (Ext. He had taken a plea of alibi that he had taken leave for that date. He had handed over charge on 6.6.1978. DW 16 Jagannath Pandey, a postal clerk, was examined, has confirmed this fact and also proved the memo of undisbursed pay for June and July 1978 (Ext. J) and the certificate of the Head postmaster of Sitamarhi showing grant of leave (Ext. K). DW 9 Bimlesh Pathak also testified regarding his presence at Laheriasarai on 7.6.1978. Laheriasarai is in a distance of 40 miles from the village Samar. The plea of this appellant was not given due weight by the learned Trial Judge. 28. I am inclined to differ from the Trial Court that plea of alibi is not fit to be accepted. This appellant is given benefit of doubt and acquitted of the charge under Section 147, IPC. 29. Appellant No. 5 (Sudhir Pathak) and appellant No. 7 (Ishwar Chand Pathak) have been convicted under Section 148, IPC as there was consistent evidence against them they were armed with bhalas. Similarly, the Trial Court accepted the evidence against appellant Nos. 2, 3, 4, 6, 9 and 10 and convicted under Section 147, IPC as there was consistent evidence that they are armed with lathis. The conviction of these appellants for the minor offence stands and is confirmed. So far as question of sentence is concerned, keeping in mind that the occurrence has taken place 22 years back in which three innocent persons have lost their lives these appellants were involved only to the extent that they were members of unlawful assembly. The involvement of the appellants in the death of three persons has not been established beyond reasonable doubt. The appellants were taken into custody on 1.5.1985 and they were released on bail on 8.5.1985. They were in custody at the initial stage of the case. 30. The involvement of the appellants in the death of three persons has not been established beyond reasonable doubt. The appellants were taken into custody on 1.5.1985 and they were released on bail on 8.5.1985. They were in custody at the initial stage of the case. 30. In the result (a) the appeal has abated in respect of Bhushan Pathak (appellant No. 1) and Satyanarain Pathak (appellant No. 8), (b) Ramakant Pathak alias Ram Narain Pathak (appellant No. 4) is acquitted, (c) the conviction of Sudhir Pathak (appellant No. 5) and Ishwar Chand Pathak (appellant No. 7) is affirmed but their sentence is reduced to the period already undergone by them and (d) the conviction of remaining appellants, namely, Dhanan-jay Pathak, Shyama Kant Pathak, Prem Chand Pathak, Bindeshwar Pathak and Mithlesh Pathak under Section 147, IPC is affirmed but their sentence is reduced to the period already undergone. This appeal is accordingly disposed of.