Judgment R.N.Sahay, J. 1. By judgment pronounced on 29.4.1986 in Sessions Trial No. 12/83, the 4th Additional Sessions Judge, Gaya convicted all the fourteen accused persons under Sections 302/149,147, 148, 323 of the Indian Penal Code and 27, Arms Act. 2. Three separate appeals have been preferred by the convicted accused. In Cr. Appeal No. 220 of 1986, appellants are Ram Nandan Singh and Kapil Singh. Both of them have been convicted under Sec. 302 read with Sec. 149, I.P.C. and have been sentenced to imprisonment for life. Appellant Ram Nandan Singh has been further convicted under Sec. 147 and 323, I.P.C. and sentenced to undergo R.I. for one year and six months respectively. Appellant Kapil Singh has been further convicted under Sec. 148, IPC and sentenced to undergo R.I. for two years. The sentences have been ordered to run concurrently. 3. In Cr. Appeal No. 238 of 1986 there are eleven appellants. All the appellants have been convicted under Sec. 302/149, I.P.C. and sentenced to imprisonment for life. Appellant No. 1 has further been convicted under Sec. 27 Arms Act and sentenced to two years R.I. The appellant Nos. 2, 4, 6, 7, 8, 10 and 11 have further been convicted under Sec. 147, I.P.C. and sentenced to R.I. for one year. Appellant Nos. 1, 3, 5 and 9 have further been convicted under Section 148, I.P.C. and sentenced to undergo R.I. for two years. Appellant Nos. 2, 3, 6, 7, 8 and 10 have further been convicted under Sec. 323, I.P.C. and sentenced to undergo R.I. for six months. All the sentences have been ordered to run concurrently. 4. In Cr. Appeal No. 286 of 1986, sole appellant in Ram Bilash Singh, who has been convicted under Sec. 302/ 149, I.P.C. and sentenced to imprisonment for life. He has further been convicted under Sec. 148, I.P.C. and sentenced to undergo R.I. for two years. The sentences have been ordered to run concurrently. 5. These appellants were tried for offence of rioting and murder of one Ramanand Singh, which, according to the prosecution, occurred on 12.12.1979 at 5.00 p.m. at village Bathani, P.3.--Konch within the district of Gaya. The case of the prosecution has been accurately narrated by the learned trial Judge in para-2 of the judgment as extracted hereunder- The prosecution story stated in brief is like this. The case of the prosecution has been accurately narrated by the learned trial Judge in para-2 of the judgment as extracted hereunder- The prosecution story stated in brief is like this. At about 5 p.m. on 12.12.79 P.W. 2 Parsuram Singh had to fetch some straw from his khalihan to feed his cattle in village Bathani within P.S. Konch. While he was returning with a bundle of straw and he reached near a potato field to the west of his house, he was intercepted by accused Kaushal Sharma who caught him by waist and raised alarm. In the meanwhile the other accused persons, namely, Awadh Singh, with lathi, Shyam Bihari Singh with Garasa, Rabindra Sharma alias Kishore Sharma with lathi, Sheodutt Singh with lathi, Sakal Singh with Pharsa, Krishnesh Singh with Garasa, Gopal Sharma with lathi Ram Janam Rajeshwari Sharma with Garasa, Krishna Singh with Garasa, Kapil sharma with Garasa, Bilesh Sharma with Garasa, Ragnandan Singh with lathi and Awadh Singh with lathi emerged from a nearby Rahar field and accused Sekal Singh ordered them to assault. On this accused Awadh, Kaushal and Gopal started beating Parsuram (P.W.2) with lathis. When his family members witnessed the scene they came forward to his rescue. His father Ramananad Singh and uncle Bilash Singh as well as his brother Siya Ram Singh proceeded towards the P.O. and as soon as Ramanand Singh went there, he was assaulted with a Garasa on his head by accused Sakal Singh and he fell down. Thereafter, he was assaulted with Garasa by accused Ram Janam Sharma, Krishnesh Sharma and Shyam Bihari Sharma. P.W. 1 Ram Bilesh Singh was also assaulted by Krishna Singh and Rajeshwari Sharma with Garasa. Other accused persons were also dealing lathi blows to the injured persons and the informant (P.W. 7) Ram Lakhan Sharma started pelting brick bats at the culprits. On hearing hulla of the injured persons and the family members, the villagers also started assembling on which accused Sakal Singh took a gun from the hand of one of the two unknown persons accompanying the accused and opened fire thrice and threatened the villagers not to proceed further. So no one could dare proceed ahead and the culprits went away. So no one could dare proceed ahead and the culprits went away. Ramanand Singh had died on the spot due to the injuries sustained by him and the other three persons, namely P.W. 1 Ram Bilash, P.W. 2 Parsuram and P.W. 4 Siri Ram had sustained injuries. The family members then assembled and took the dead body of Ramanand Singh to their house and the three injured were also picked up and were taken inside the house. In the meantime--While the local police received information regarding the occurrence and arrived at the place of the deceased Ramanand Singh and recorded the statement of his brother Ram Lakhan Sharma (P.W.7) in a Fardbeyan (Ext. 4.) On the basis of it, a case was registered and later a formal F.I.R. (Ext.3) was drawn up in the P.S. A.S.I. Nathuni Pd. Singh who had recorded the fardbeyan of the informant also took up investigation and recorded the statements of the witnesses and he inspected the P.O. He also collected some Ext. P. regarding seizure lists and he prepared inquest report of the dead body of Ramanand Singh and sent the dead body for P.M. examination. He also issued injury reports to the three injured persons in this case and sent them to the local hospital for examination and treatment in the early morning of 13.12.79. Subsequently, the injury reports and the P.M. report were received by the I.O. and on completing investigation, he submitted charge-sheet in the case on which cognizance was taken and the case was committed to the Court of Session by Sri P.D. Prasad, Judicial Magistrate 1st Class, Gaya on 9.6.1980. Accordingly, the Sessions case was registered which was transferred to this Court for disposal. 6. The appellants refuted the entire prosecution case. The defence case was that the occurrence did not take place in the manner and time as alleged in the F.I.R. A plea of alibi was taken on behalf of appellant Awadesh Singh, who was a teacher in Government Basic High School at Dantar in district of Hazaribagh. He said that he was present in the school on 12th and 13th December, 1979, which is at a distance of 50 kms. from the village where the occurrence took place. He said that he was present in the school on 12th and 13th December, 1979, which is at a distance of 50 kms. from the village where the occurrence took place. According to the defence, the deceased might have been killed by some extremists of the locality as the witnesses and family members of the deceased could not identify them. They named the accused persons on suspicion on account of previous enmity. 7. Learned trial Judge on proper scrutiny and appreciation of the evidence found that there was overwhelming evidence that the occurrence took place some time in the evening in which Ramanand Singh lost his life and his three family members namely, Ram Bilesh Singh, Parsuram Singh and Sri Ram Singh sustained injuries on their person. The conviction of these appellants is primarily based on ocular evidence of the eye-witnesses. Learned trial Judge held that there was reliable evidence of these witnesses, who have supported the prosecution case. 8. The entire evidence on the basis of which learned trial Judge found the appellants guilty of the charges may be summarised as follows. The occurrence took place on 12.12.1979 at about 5.00 p.m. at village Bathani which is at a distance of 18 Kms. from Konch police station. The fardbeyan was recorded at 2.00 a.m. The entire prosecution case is contained in the F.I.R. which has been extracted in the earlier part of this judgment. 9. Ram Bilash Singh (P.W. 1) is the eye-witness to the occurrence. He watched the occurrence from his house. He saw Parsuram Singh coming from khalihan with the straw. Appellant Kaushal Singh caught him. Parsuram Singh cried for help. In the meantime, 15-16 persons emerged from the Rahar field including the appellants variously armed with lethal weapons. All of them surrounded Parsuram Singh and assaulted him with various weapons. Ramanand Singh, who was uncle of Parsuram ran to rescue him. Ramanand Singh was assaulted by Sakal Singh (since dead). Some other accused also assaulted Ramanand Singh. Ram Bilash Singh also came there and he was assaulted by lathi and farsa. Ram Bilash Singh fell down and then appellant Kishore Singh assaulted him with lathi, Sri Ram Singh came next who was assaulted by lathi by Sheodutt Singh. Sakal Singh handed over his Garasa to an unidentified accused and started firing with gun to scatter the villagers who came there. Ram Bilash Singh fell down and then appellant Kishore Singh assaulted him with lathi, Sri Ram Singh came next who was assaulted by lathi by Sheodutt Singh. Sakal Singh handed over his Garasa to an unidentified accused and started firing with gun to scatter the villagers who came there. Ram Lakhan Sharma and Baliram Singh also came there. 10. Baliram Singh (P.W. 3), son of Ramanand Singh and brother of Parsuram Singh was grazing his cattle where his sister Heera informed him about the occurrence. Baliram Singh brought his cattle to Angan and tied them. On hulla, he came to his darwaja and saw a mob coming-out of the Rahar field. He identified 14 of them. They all were armed. Ramanand Singh died on the spot. Three persons were injured. The evidence of this witness is consistent with some minor contradictions. This witness was sent to Gaya by the first informant to meet the Superintendent of police before institution of the first information report. He met the Superintendent of police around mid night, who asked Baliram Singh to meet the inspector of police. He narrated the entire incident to the Superintendent of police and the inspector but before that the Inspector had received information about the occurrence but not the details of it. The statement of this witness as recorded after a month. There is no explanation by the Investigating Officer nor the inordinate delay in recording the statement of this witness. Learned trial Judge has not touched this point. 11. Parsuram Singh (P.W. 2) is the son of the deceased. He is also an important witness since he had received injuries. Appellant Ram Nandan Singh gave him warning but he paid no heed. This witness had seen the occurrence from his darwaja. The accused were coming out of the Rahar field but in his evidence he said that he had seen the occurrence from the roof. He has given the details of the occurrence. 12. Sri Ram Singh (P.W. 4) is another eye-witness. He is son of Ramanand Singh. He has corroborated the prosecution case as narrated in the fardbeyan of the informant. He has given detailed version of the occurrence. This witness was assaulted by Awadh Singh, Sheo Dutt Singh, Ram Nandan Singh. 13. Hearamani (P.W. 6) is the daughter of Ramanand Singh. Before the occurrence one had gone to graze her cattle towards west. He has corroborated the prosecution case as narrated in the fardbeyan of the informant. He has given detailed version of the occurrence. This witness was assaulted by Awadh Singh, Sheo Dutt Singh, Ram Nandan Singh. 13. Hearamani (P.W. 6) is the daughter of Ramanand Singh. Before the occurrence one had gone to graze her cattle towards west. She noticed 15 to 16 persons in the Rahar Field and identified most of the appellants. They were armed. She also witnessed the occurrence. Her evidence has been accepted by the trial Court. 14. Ram Lakhan Sharma (P.W. 7) is brother of witness Ram Bilash Singh. He is also an eye-witness. He was deposed that he threw pieces of bricks at the miscreants to scare them away. He raised alarm on which some villagers assembled. About the motive, this witness says that there was long-standing enmity but no document in support of this was filed. 15. Dr. Kapil Prasad (P.W. 8) had conducted post-mortem examination of the dead body of Ramanand Singh. Following injuries were found on the person of the deceased. I. Lacerated wound over left side of lower jaw of size 1" × 1/2". II. Lacerated wound on right temporal region of size 11/2" × 1/4". III. Lacerated wound over left parie-tal region of size 11/2" × 1/2". IV. Lacerated wound over right parie-tal region of size 11/2" × 1/2". On dissection of the scalp intera-dural haematoma was found below this injury. V. Bruises of red colour and swelling over right wrist joint of size 11/2" × 1/2". VI. Bruises of red colour over left side of chest of size 2" × 1/2". VII. Abrasion over right side of chest of size 2" × 1/2". All the injuries were ante-mortarn in nature and were caused by hard and blunt object, such as lathi and were simple in nature. There was no depth in any of the injuries. The injuries were not sufficient to cause death in ordinary course. 16. Natnuni Prasad Singh (P.W. 10) was posted at Konch police station. In the night of 12.12.1979, he received a message from some body that there had been some murder in village Bathani. He made Sanaha Entry No. 201 and immediately proceeded to the place of occurrence. He has not stated at what time he had received the message. 16. Natnuni Prasad Singh (P.W. 10) was posted at Konch police station. In the night of 12.12.1979, he received a message from some body that there had been some murder in village Bathani. He made Sanaha Entry No. 201 and immediately proceeded to the place of occurrence. He has not stated at what time he had received the message. He recorded the fardbeyan of the informant and took the statements ofParsurarii Singh, Ram Bilash Singh, who had.injuries on their person and prepared injury report and sent them to hospital. As it was night, inquest report of the deceased Ramanand Singh was prepared on the next day. In the meantime, Inspector of Police reached there. The inquest report: was prepared at 6.00 a.m. The dead body was despatched to the hospital for post-mortem. The place of occurrence was situated west of village Bathani, the field of appellant Awadh Singh in which wheat and gram had been sown. Rahar Field of Awadh Singh is about 40 yards from the place of occurrence. Some straw was wound in the potato field. The house of the deceased Ramanand Singh is 225 yards from the place of occurrence. The pieces of bricks and straw which were found at the place of occurrence were seized. In his cross-examination, this officer stated that he had not mentioned the time when he received information about murder. He had also received information that Marpit had taken place between Awadh Singh and Ramanand Singh. He said that Ram Lakhan Singh was found in his village home where his fardbeyan was recorded. He did not find any blood at the place of occurrence. 17. Learned Sessions Judge on analysis of the evidence brought on record by the prosecution recorded the following findings: (i) From the description of the place of occurrence as given by the eye-witnesses as well as Investigating Officer, it becomes clear that the occurrence had taken place very close to the house of the deceased and consistent evidence of the witnesses is that it had taken place at 5.00 p.m. in the evening on 12.12.1979. (ii) So far as injuries on the persons of P.Ws. 1, 2, and 4 are concerned, the same were found by the doctor when he had examined the injured persons but the doctor could not be examined in Court by the prosecution, hence the injury report has not been brought on record. (ii) So far as injuries on the persons of P.Ws. 1, 2, and 4 are concerned, the same were found by the doctor when he had examined the injured persons but the doctor could not be examined in Court by the prosecution, hence the injury report has not been brought on record. However, injuries on the persons of the three witnesses have not been denied and so far as deceased is concerned, it has been proved from oral as well as medical evidence that he died of injuries sustained by him in course of occurrence. (iii) However, there is some discrepancy in the medical evidence so far manner of assault is concerned. According to the P.Ws. on the point of occurrence, i.e. P.Ws. 1, 2, 3, 4 and 7, the deceased was assaulted by some of the accused with Garasa and by some with lathi but according to the evidence of the doctor (P.W. 8), he found all the injuries caused by hard and blunt substance. P.Ws. 1, 4 and 7 cleaily stated in their evidence that while the Investigating Officer was preparing inquest report, he found some cut injuries on the face of the deceased. It is clearly indicated that the -prosecution is correct and no inference can be drawn on this point. (iv) It cannot be said that the witnesses examined in this case were not competent as they were relations of the deceased and highly interested. It is clear that the witnesses, who supported the prosecution story in this case are most competent witnesses and their presence at the time of alleged occurrence cannot, be doubted. There is also consistency in the evidence regarding manner of assault and name of the accused persons as member of unlawful assembly and their participation in the occurrence. (v) Three accused, namely, Awadh Singh, Kaushlesh Sharma and Gopal Singh have been charged under Sec. 325, I.P.C. for causing grievous hurt to P.W. 2 Parsuram Singh bur, since the doctor has not been examined, they cannot be held guilty under Sec. 325, I.P.C. So far Krishna Singh is concerned, he was charged under Sec. 307, I.P.C. for having tried to kill P.W. 1 Ram Bilash Singh by assaulting him with Garasa, but again medical evidence is not available to support this, he cannot be held guilty under Sec. 307 I.P.C. So far as other charges are concerned, these are under Secs. 147, 148 and 323, I.P.C. and there is no difficulty in holding the accused guilty under these charges. However, all the accused persons in this case were charged under Sec. 302/ 149, I.P.C. for having committed murder of Ramanand Singh. 18. Appellant Awadh Singh is a teacher, who at the relevant time was posted in Dantai Basic School which is at. a distance of 50 kms. from the P.O. village. One has to travel 8 kms to catch the bus for going to Dantar. The Head Master of the school, D.W. 1 Ram Ashray Singh was examined and he produced the attendance register of the teachers to show that Awadh Singh was present in School on 12.12.1979 and 13.12.1979. This witness, however, has not stated that he had seen Awadh Singh on the crucial date. It is stated that he was absent on 14th and 15th December, 1979. Learned Trial Judge held that the plea of alibi is to be accepted only if it is of such nature which completely excludes the possibility of the presence of accused at the place as held by the Supreme Court in -- . The nature of evidence is not such as to exclude the possibility of presence of the accused Awadh Singh on the date of occurrence. 19. Learned trial Judge gave his final verdict as follows: ...Therefore, all the accused persons facing trial in this case are held to have participated in the commission of this offence by becoming members of an unlawful assembly armed with various kinds of weapons with a common object to assault arid kill the deceased and since the murder of the deceased was committed in prosecution of the common object of the unlawful assembly within the knowledge of the individual participants they are all equally liable for the same. Accordingly, accused Gopal Singh, Sheodutt Singh, Awadh Singh, Rabindar Singh, Siyaram Singh, Ramanandan Sharma, Kaushlesh Sharma and Krishna Singh are held guilty of offence under Sec. 147, I.P.C. and are convicted of the same. Accused Sakal Singh, Krishnesh Sharma, Shyam Bihari Singh, Ram Janam Singh, Kapil Sharma and Bilash Sharma are held guilty of offence under Sec. 148, I.P.C. and are convicted of the case. Accused Sakal Singh, Krishnesh Sharma, Shyam Bihari Singh, Ram Janam Singh, Kapil Sharma and Bilash Sharma are held guilty of offence under Sec. 148, I.P.C. and are convicted of the case. All the 14 accused persons are held guilty of offence under Sec. 302 read with Sec. 149, I.P.C. for having participated in the unlawful assembly with the common object to kill Ramanand Singh the deceased who was killed in prosecution of the common object of this unlawful assembly. Accordingly they are convicted of the same. Accused Sakal Singh is held guilty or offence under Sec. 27 Arms Act and if convicted of the same. Accused Awadhesh Singh, Kaushlesh Sharma and Gopal Singh are held guilty of offence under Sec. 323, I.P.C. for having caused hurt to Parsuram Singh. Accused Krishnesh Singh is also held guilty of offence under Sec. 23, I.P.C. for having caused hurt to Ram Bilash Singh and he is acquitted of the charge under Sec. 307, I.P.C. and convicted under Section 323, I.P.C. Further accused Rabindar Sharma, Sheodutt Singh and Ramnandan Sharma are held guilty of offence under Sec. 323, I.P.C. and are convicted of the same. 20. The legal question for consideration is whether the trial Judge was right in applying Sec. 149, I.P.C. in the facts and circumstances of the case. In Kripal V/s. State of U.P. -- , the scenario of the crime was similar. In that case, there were three accused persons. The case was that they were working in a well in the morning of the occurrence. They saw few members of the prosecution party going towards the well. They asked where they were going. On being told that they were going to harvest sugarcane field, the accused persons abused them and told then not to go there but to work for them. They did not listen to them and walked on. When they had gone 30-40 paces, the three accused rushed at them and began to beat them with handles of spears which were in the hands of two of the accused persons and with lathi which was in the hand of third accused. In the meantime, the deceased arrived at the spot and asked the accused persons as to why they were beating his labourers and stopped them from beating them. The accused was assaulted with lathi and knife. He died on the spot. In the meantime, the deceased arrived at the spot and asked the accused persons as to why they were beating his labourers and stopped them from beating them. The accused was assaulted with lathi and knife. He died on the spot. It was hold by the Supreme Court that so far as sault on deceased was concerned, common intention was only to beat him with the weapons in their hands which was likely to give some grievous injury and all the accused were held guilty under Sec. 326, I.P.C. while accused who was responsible for the death or the deceased was held guilty under Sec. 302, I.P.C. 21. In the instant case, Sakal Singh could be convicted under Sec. 302, I.P.C. but following the ratio of Kripals cases (supra), it is difficult, to sustain the conviction of all the accused under Sec. 302/149, I.P.C. The appellants were charged under Sec. 302/149, I.P.C. for being members of unlawful assembly with common object to kill Ramanand Singh and in consequence of that object, Ramanand Singh was killed. This appears to be defective. There is clear evidence that only Parsuram Singh was first attacked by the accused persons. Ramanand Singh was not there. He came there by chance to rescue Parsuram Singh from assault. Secondly, medical evidence is that all the injuries were of hard and blunt substance which were not sufficient to cause death in ordinary course of nature. This goes in favour of the appellants to negative the charge under Sec. 302, I.P.C. Surprisingly, learned Sessions Judge has not considered the opinion of the Post-Mortem Surgeon that the injuries were not sufficient to cause death. He was persuaded to hold that some of the injuries were caused by Garasa as deposed by the witnesses. There ,is no evidence regarding motive for the crime. On these considerations, I am inclined to hold that the conviction of the appellants under Sec. 302, I.P.C. cannot stand. 22. Appellant Sakal Singh, who is said to have assaulted the deceased Ramanand Singh with Garasa on his head is dead. Thus, Cr. Appeal No. 238 of 1986, so far as appellant Sakal Singh is concerned, has abated. 23. Appellants Ram Janam Singh, Krishnesh Sharma and Shyam Bihari Singh are alleged to have assaulted the deceased with Garasa after he fell down after being assaulted by Sakal Singh. Thus, Cr. Appeal No. 238 of 1986, so far as appellant Sakal Singh is concerned, has abated. 23. Appellants Ram Janam Singh, Krishnesh Sharma and Shyam Bihari Singh are alleged to have assaulted the deceased with Garasa after he fell down after being assaulted by Sakal Singh. These three appellants are, therefore, guilty under Sec. 304, Part-1 of the Indian Penal Code. Their conviction under Sec. 148, Indian Penal Code is affirmed. Appellants Kapil Sharma and Bilash Sharma have been convicted under Sec. 148, Indian Penal Code. Their conviction is confirmed. The remaining appellants are not held responsible for the death of Ramanand Singh since they had not assaulted him. Appellants Gopal Sharma, Sheodutt Singh, Awadh Singh, Ravindra Sharma, Sia Ram Sharma, Ram Nandan Sharma, Kaushlesh Sharma and Krishna Singh have been convicted under Section 147, Indian Penal Code by the trial Court. Their conviction is confirmed. Appellants Awadh Singh, Kaushlesh Sharma, Gopal Sharma have also been convicted under Sec. 323, Indian Penal Code for causing hurt to Parsuram Singh. Their conviction under Sec. 323, Indian Penal Code is also confirmed. Appellant Krishnesh Singh who has been convicted under Sec. 323, Indian Penal Code for causing hurt to Ram Bilash Singh. His conviction is also confirmed. Appellants Ravindra Sharma, Sheodutt Singh, and Ram Nandan Sharma have been convicted under Sec. 323, Indian Penal Code. Their conviction is confirmed. 24. So far as sentence is concerned, the three appellants, namely, Krishnesh Sharma, Shyam Bihari Singh and Ram Janam Sharma, who have been convicted under Sec. 304, Part-1 of the Indian Penal Code, are sentenced to five years imprisonment. No separate sentence is passed under Sec. 148, Indian Penal Code. Appellants, namely, Awadh Singh Kaushlesh Sharma, Gopal Sharma, Krishnesh Singh, Ravindra Sharma, Sheodutt Singh and Ram Nandan Sharma, who have been convicted under Sec. 323, Indian Penal Code, are sentenced to three months imprisonment. Appellants Kapil Sharma and Bilash Sharma, who have been convicted under Sec. 148, Indian Penal Code are a sentenced to six months imprisonment. A remaining eight appellants, namely, Gopal Sharma, Sheodutt Singh, Awadh Singh, Ravindra Sharma, Siva Ram Sharma, Ram Nandan Sharma, Kaushlesh Sharma, and Krishna Singh, who have been convicted under Sec. 147, Indian Penal Code are sentenced to three months imprisonment. All the sentences are ordered to run concurrently. However, period of sentence will be set off to the period already undergone by the concerned appellants. All the sentences are ordered to run concurrently. However, period of sentence will be set off to the period already undergone by the concerned appellants. The appellants are directed to surrender before the Court below to serve out the remaining period of their sentence. 25. All the three appeals are dismissed with modification in sentence as indicated above. P.K.Sarkar, J. 26 I agree.