Judgment R.N.Sahay and P.K.Sarkar JJ. 1. This is an appeal against judgment and order of the 4th Additional Sessions Judge, Saran dated 30th January, 1986 in S.T. No. 123 of 1980 in which case these six appellants were placed on trial having been charged under Section 302/149 and some minor sections of the Indian Penal Code. Appellant Sudarshan Rai was charged under Section 302, IPC simplicitor for intentionally causing death of Asharfi Rai. The remaining five appellants were charged under Section 302/149, IPC for being members of unlawful assembly and in prosecution of common object Sudarshan Rai had committed murder of Asharfi Rai. Bhikari Rai and Ram Pukar Rai were also charged under Section 147, IPC. Appellant Dhanai Rai was further charged under Section 324, IPC for voluntarily causing hurt to Jeetlal Rai by means of bhala. Appellants Sudarshan Rai, Dhanai Rai, Sitaram Rai and Raghunath Rai were charged under Section 148, IPC. Learned Trial Judge on consideration of the evidence of eight witnesses produced by the prosecution held the charge under Section 302, IPC against appellant Sudarshan Rai well proved from the evidence on record. Learned Additional Sessions Judge further held that the remaining five appellants shared a common object and participated in the assault on Asharfi Rai causing his death and therefore, charge under Section 302/149, IPC have been brought home against them. Appellants Sudarshan Rai, Dhanai Rai, Sitaram Rai and Raghunath Rai were further found guilty under Section 148, IPC. Appellants Bhikari Rai and Ram Pukar Rai were found guilty under Section 147, IPC. Appellant Dhanai Rai was further held guilty under Section 324, IPC. All the appellants have been sentenced to imprisonment for life against the main charge. No separate sentence has been awarded for the other charges for which these appellants have been held guilty. 2. The incident which led to the trial and conviction of the appellants happened on 14.9.1978 at 2.00 p.m. in village Dhanauti which is 12 kms. from Dariapur PS. in the district of Saran. The occurrence was reported at Dariapur P.S. on the same day at 6.30 p.m. by Deonandan Rai (PW 2), who is an agnate of the deceased Asharfi Rai. 3. from Dariapur PS. in the district of Saran. The occurrence was reported at Dariapur P.S. on the same day at 6.30 p.m. by Deonandan Rai (PW 2), who is an agnate of the deceased Asharfi Rai. 3. According to the version of Deonandan Rai in his fardbeyan, one Tribeni Rai had cut one bundle of Masuria from his own field and was feeding his cattle at his Bathan at about 2 p.m. on the day of occurrence. Bhikari Rai suddenly appeared at the Bathan of Tribeni Rai and charged him that on instigation of Asharfi Rai, he has cut Masuria crop from the field of Bhikari Rai, which allegation was promptly refuted by Tribeni Rai saying that this was not the fact. He had cut the Masuria crop from his own field. Thereafter, Asharfi Rai and his nephew Jeetlal Rai, whose houses are close to the house and Bathan of Tribeni Rai as also the accused persons came there. Then followed altercation between Tribeni Rai, Asharfi Rai and Jeetlal Rai on the one hand and Bhikari Rai on the other. Bhikari Rai was still there when the remaining appellants arrived variously armed. All except Ram Pukar Rai were holding bhala. Ram Pukar Rai was having a lathi. 4. Bhikari Rai ordered his companions to assault whereupon Raghunath Rai caught hold of the hands of Asharfi Rai and Sitaram Rai that of Jeetlal Rai. Bhikari Rai instigated his men to assault. Appellant Sudarshan Rai gave a bhala blow on the back of Asharfi Rai and Dhanai Rai caused injury on the back of Jeetlal Rai. Both of them fell down. Asharfi Rai died then and there. His dead body was brought at his Bathan and kept on a cot. There had been litigation between the parties from before and Asharfi Rai was to depose on 16.9.1978 against the appellants in some case. 5. Bihari Prasad Bhagat (PW 5) was officer-in-charge of Dariyapur P.S. on the material date. Deonandan Rai had gone to the P.S. to lodge the case but prior to that appellants Sita Ram Rai, Dhanai Rai and Bhikari Rai had gone to the P.S. and had given counter-version of the incident which was recorded in the Station Diary being Sanaha No. 273 dated 14.9.1978. The Officer-in-charge noticed small scratches on the person of Sitaram Rai which was covered by two surgical cotton. The Officer-in-charge noticed small scratches on the person of Sitaram Rai which was covered by two surgical cotton. As stated earlier, fardbeyan of Deonandan Rai was recorded at 6.30 p.m. According to the fardbeyan, the Officer-in-charge arrested Sitaram Rai, Dhanai Rai and Bhikari Rai. 6. Officer-in-charge left the Police Station at 10.30 p.m. for proceeding to P.O. village. He, however, stopped on the way because it started raining heavily. He reached the village in the morning. First of all, he inspected the Bathan of Tribeni Rai said to be the place of occurrence. He found some blood stains at one place. The Bathan is situated east to the village road which goes from north to south. Bathan of Bhikari Rai was close to the Bathan of Tribeni Rai. There was a big BAR Tree near the Bathan of Bhikari Rai. House of Deonandan Rai is behind the house of Tribeni Rai House of Asharfi Rai and Jeetlal Rai is 50 yards away west to the road from the Bathan of Deonandan Rai. The dead body of Asharfi Rai was in front of his house. The Investigating Officer found two small bundles of straw some distance away from the house of Deonandan Rai which was burnt and smoke was coming out. He seized blood stained earth and prepared seizure list and inquest report of the dead body of the deceased. He noticed injuries on the person of Jeetlal Rai and prepared injury report to this effect. The dead body of the deceased Asharfi Rai was sent to Sadar Hospital Chapra for post-mortem. The Investigating Officer also inquired into the allegation recorded in Sanaha Entry No. 273 at the instance of the appellant Sitaram Rai. The Investigating Officer has stated that Sitaram Rai had reached the Police Station at 6.00 p.m. and his statement in the Station Diary No. 273 was recorded. The statement of Deonandan Rai was recorded at 6.30 p.m. Dhanai Rai and Bhikari Rai reached latter. In view of the fardbeyan of Deonandan Rai, Dhanai Rai, Bhikari Rai and Sitaram Rai were arrested. The Investigating Officer did not register any case in respect of the allegation in the Sanaha of Sitaram Rai. The Investigating Officer had found trail of blood at 2 or 3 places. He also prepared site plan in presence of the witnesses which is at Ext. 6. 7. Injured Jeetlal Rai was examined by Dr. The Investigating Officer did not register any case in respect of the allegation in the Sanaha of Sitaram Rai. The Investigating Officer had found trail of blood at 2 or 3 places. He also prepared site plan in presence of the witnesses which is at Ext. 6. 7. Injured Jeetlal Rai was examined by Dr. Rajendra Prasad Singh, the then Medical Officer, State Dispensary Dariyapur and found following injuries on his person : (1) Sharp point cut injury 1 /2" X 1/8" x 1/8" in the middle and right lateral side of the back. (2) This was a simple injury caused by sharp cut weapon such as bhala. 8. Dr. Shambhunath, Civil Assistant Surgeon, Sadar Hospital, Chapra (PW 3) conducted autopsy on the dead body of Asharfi Rai and found following ante-mortem injury : (1) One incised wound about 1 1/2" x 1/2" x chest cavity deep on the back of right chest between 4th and 5th intercostal space, on exploration chest cavity was filled with blood, Incised would about 1" x 1/2" x 2" in right lung substance present. (2) The injury was caused by sharp cutting pointed weapon such as bhala. Death was due to shock and haemorrhage and injury to vital organ like lung. Post-mortem Report is Ext. 2. It is clear from the evidence of the doctor that Asharfi Rai died homicidal death. 9. Learned Additional Sessions Judge found the evidence of Deoki Rai (PW 1) to be of waivering nature but otherwise flawless. This witness was aged 60 years and the occurrence took place about 8 years ago. This witness, however, was declared hostile although he supported substantial part of the prosecution case, because of his age, he could not identify the accused persons in the Dock. There was no body when altercation was going on between Asharfi Rai and Bhikari Rai. Others came latter. This witness said that Tribeni Rai was also there. He stated about the role of the appellants. He saw Sudarshan Rai striking Asharfi Rai with Bhala. He died on the spot. This witness further stated that no body was injured apart from Asharfi Rai. This witness was not examined by the police. This witness had not stated whether the bundles of straw kept near the Bathan of Deonandan Rai was set on fire. Actual assault had taken place some distance away from the Palani. He died on the spot. This witness further stated that no body was injured apart from Asharfi Rai. This witness was not examined by the police. This witness had not stated whether the bundles of straw kept near the Bathan of Deonandan Rai was set on fire. Actual assault had taken place some distance away from the Palani. The altercation had occurred between the Palani of Tribeni Rai and two Nads kept east of Palani. Learned Sessions Jude observed that this witness has given cogent account of evidence. 10. Deonandan Rai (PW 2) the informant of the case was at his house close to the Bathan of Tribeni Rai. He went there on hulla. He saw Bhikari Rai having altercation with Asharfi Rai and Jeetlal Rai. Tribeni Rai was also present there. This witness has reaffirmed his statement in his fardbeyan as mentioned in the earlier part of the judgment. This witness saw the assault on Asharfi Rai and Jeetlal Rai. Learned Trial Judge naturally was impressed with the evidence of this witness as no contradiction in his evidence was found. 11. The most important witness is Jeetlal Rai (PW 4), who had himself received bhala injury on his back. He being an injured witness, his evidence has to be given due weight. His presence at the place of occurrence cannot be doubted. According to this witness, Bhikari Rai suspected that Tribeni Rai had cut Masuria crop from the field of Bhikari Rai at the instigation of Asharfi Rai. It is noticed here that Asharfi Rai along with Jeetlal Rai reached the Bathan of Tribeni Rai without being called by any body. They were only attracted by altercation between Tribeni Rai and Bhikari Rai. Asharfi Rai refuted the allegation that he had asked Tribeni Rai to cut Masuria. Other accused persons were not there. They came suddenly. There is. no evidence that Bhikari Rai had shouted for help. However, they came armed with bhala and lathi. Asharfi Rai and Jeetlal Rai noticing danger made a bid to run away. Raghunath Rai caught Asharfi, then Sudarshan Rai gave a bhala blow on Asharfi Rai. Dhanai Rai gave a bhala blow to Jeetlal Rai while Sitaram Rai was helping him. 12. Learned Trial Judge in his well considered judgment accepted the evidence of this witness and found all the three eye-witnesses to be natural and trustworthy. Raghunath Rai caught Asharfi, then Sudarshan Rai gave a bhala blow on Asharfi Rai. Dhanai Rai gave a bhala blow to Jeetlal Rai while Sitaram Rai was helping him. 12. Learned Trial Judge in his well considered judgment accepted the evidence of this witness and found all the three eye-witnesses to be natural and trustworthy. Tribeni Rai died during the pendency of this case and so he could not be examined. Learned Trial Judge has not attached any importance to the criticism levelled on behalf of the appellants that no independent witness has been examined in the case and that the conviction cannot be based on the testimony of interested witnesses. The witnesses are no doubt interested, but on careful scrutiny of the evidence, learned Trial Judge found them to be reliable witnesses. The occurrence had taken place on a day time and houses of the witnesses and the accused persons are located at the same place. Objective finding of the learned Trial Judge make it clear that the occurrence had taken place at the place as deposed by the witnesses. As stated earlier, blood stains were noticed by the Investigating Officer. 13. Learned Trial Judge has summed up his findings with regard to the occurrence in Para 12 of the judgment as quoted hereunder : "12. I, therefore, find that the prosecution evidence is unanimous on the point that there was an occurrence in the manner as alleged. There is no good or valid reason to disbelieve the evidence of the prosecution witnesses on this point. What is more, the evidence of the I.O. and the doctor support the version narrated by the prosecution witnesses." 14. Mrs. Mridula Mishra, learned Counsel appearing on behalf of the appellants has argued the case of the appellants with utmost ability. She has highlighted various infirmities in the case. She was not omitted to argue any valid point which could be urged on behalf of the appellants. Her first submission was that the evidence regarding place of occurrence and manner of occurrence is highly doubtful. The genesis of the occurrence was not proved by satisfactory evidence. The genesis of the occurrence was that Masuria was cut by Tribeni Rai from the field of Bhikari Rai but the prosecution failed to prover it. Her first submission was that the evidence regarding place of occurrence and manner of occurrence is highly doubtful. The genesis of the occurrence was not proved by satisfactory evidence. The genesis of the occurrence was that Masuria was cut by Tribeni Rai from the field of Bhikari Rai but the prosecution failed to prover it. It is alleged that the I.O. did not investigate whether it is a fact that Masuriya was cut from the field of Bhikari Rai. The I.O. has not mentioned that he found bundle of Masuria at the Bathan of Tribeni Rai. The I.O. should have at least tried to ascertain whether it is a fact that Masuria cut from the field of Bhikari Rai was the cause of the occurrence. It cannot be said to be serious lapses on the part of the Investigation Officer. Learned Additional Sessions Judge has given sound reasoning why the Investigating Officer did not think it necessary to visit Masuria field in order to ascertain whether Masuria has been cut. Learned Additional Sessions Judge says that since this allegation was denied by Tribeni Rai, hence the Investigating Officer did not visit the Masuria field. 15. Learned Counsel for the appellants next contended that considering the injury sustained by Asharfi Rai, there must have been profuse bleeding but the Investigating Officer only found two drops of blood at the place of occurrence. It may be recalled that the Investigating Officer visited the place of occurrence on the next morning. Asharfi Rai was struck by bhala and was immediately removed to his Bathan. The Investigating Officer found clot of blood near the dead body of the deceased Asharfi Rai. The Investigating Officer has given other explanation also. He said that there was heavy rain in the night. According to the learned Trial Judge, it may be possible that there was few blood stains at the place of occurrence. Mrs. Mishra, learned Counsel submitted that the Investigating Officer had not stated that there was rain in the P.O. village. He said that he stopped on the way because there was heavy rain. The Investigating Officer stated that he could not proceed to come to P.O. village and stopped on the way because there was heavy shower. No witness was asked on this point. 16. He said that he stopped on the way because there was heavy rain. The Investigating Officer stated that he could not proceed to come to P.O. village and stopped on the way because there was heavy shower. No witness was asked on this point. 16. It was next urged that the fact that the appellants lodged sanaha before the FIR was lodged in the present case alleging arson and assault by the prosecution party. Thus, the genesis of the occurrence becomes doubtful. Learned Additional Sessions Judge did not properly appreciate the fact of sanaha entry of the accused persons. Learned Additional Sessions Judge has considered this aspect in Para 14 of the judgment. Learned Trial Jude was of the opinion that the sanaha was lodged to create the alibi, that is why, the accused persons rushed to the Police Station. 17. Learned Counsel for the appellants further submitted that the learned Trial judge could not place reliance on the evidence of Deoki Rai, who was declared hostile by the prosecution. Learned Trial Judge has given sound reason for not accepting his evidence. We have gone through the evidence of Deoki Rai and we failed to understand as to why he was declared hostile. On fresh appreciation of the evidence, we agree with the learned Trial Judge that the occurrence had taken place at the place and in the manner as alleged by the eye-witnesses. It cannot be doubted that there are some contradictions in their evidence but the evidence prove the case against the appellants beyond reasonable doubt. 18. All the appellants are convicted under Section 302/149, Indian Penal Code. It was argued on behalf of the appellants that there was no cogent evidence to support the charge that Asharfi Rai was assaulted with common object to cause his death. Learned Additional Sessions Judge has casually considered this aspect of the matter In any view of the matter, common object is a question of fact which can be inferred from the facts and circumstances of the case. According to the learned Trial Judge, on the order of Bhikari Rai, Sudarshan Rai had given bhala blow to Asharfi Rai causing instantaneous death. 19. In our view, there is lack of evidence that Asharfi Rai was assaulted in furtherance of common object. There is no evidence that Bhikari Rai had instigated his companions to do away with the life of Asharfi Rai. 19. In our view, there is lack of evidence that Asharfi Rai was assaulted in furtherance of common object. There is no evidence that Bhikari Rai had instigated his companions to do away with the life of Asharfi Rai. It is to be noticed that Bhikari Rai had gone alone to Tribeni Rai and he was unarmed. Asharfi Rai and Jeetlal Rai were also there. They suddenly came on hearing altercation between Bhikari Rai and Tribeni Rai. Sudarshan Rai, Raghunath Rai, Dhanai Rai, Ram Pukar Rai and Sitaram Rai came after the arrival of Asharfi Rai. They were not aware what was the altercation about. Hence, in absence of positive evidence, it is not possible to infer that the act of Sudarshan Rai in giving single bhala blow to Asharfi Rai was in furtherance of common object to kill him. It is further noticed that there was exchange of hot words followed by assault. We are, therefore, not inclined to agree with the learned Trial Judge that the accused persons were assembled for the purpose of causing death of Asharfi Rai. This fact was not proved. 20. So far Sudarshan Rai is concerned, he had given a single blow which was responsible for the death of Asharfi Rai. It cannot be said that he did it intentionally but he was aware that the injury which he was going to cause was likely to cause death of the victim. Sudarshan Rai is, therefore, held guilty under Section 304, Part II of the Indian Penal Code and sentenced to seven years imprisonment. The period he has spent in jail during trial and after conviction shall be set off this sentence. He has also been held guilty under Section 148, IPC but no separate sentence has been awarded. Accordingly, the conviction of Sudarshan Rai under Section 302/149, IPC is set aside. However, his conviction under Section 148, IPC is affirmed. Conviction of appellants Dhanai Rai, Sitaram Rai and Raghunath Rai under Section 148, IPC and conviction of appellants Bhikari Rai and Ram Pukar Rai under Section 147, IPC is confirmed. Learned Additional Sessions Judge has not awarded any sentence except sentence of life imprisonment. 21. Considering the facts of the case, appellant Bhikari Rai is sentenced to three months R.I. under Section 147, IPC because he was responsible for the entire episode although he did not cause any injury. Learned Additional Sessions Judge has not awarded any sentence except sentence of life imprisonment. 21. Considering the facts of the case, appellant Bhikari Rai is sentenced to three months R.I. under Section 147, IPC because he was responsible for the entire episode although he did not cause any injury. Appellant Ram Pukar Rai is sentenced to the period already undergone by him during trial and after conviction as he has not committed any overt act. The conviction of appellant Dhanai Rai under Sections 324 and 148, IPC is confirmed. Learned Additional Sessions Judge has not awarded any sentence in respect of these offences. Appellant Dhanai Rai is awarded six months imprisonment under Section 324 of the IPC. No separate sentence is imposed for the offence under Section 148 IPC. The remaining appellants Sitaram Rai and Raghunath Rai are also sentenced to three months imprisonment. Conviction of all the appellants under Section 302/149, IPC is set aside. Bail bonds of all the appellants are cancelled. All the appellants except appellant Ram Pukar Rai shall surrender before the Trial Court to serve out the remaining period of sentence. 22. This appeal is disposed of with the above modification in their sentence.