Judgment 1. There are four appellants in this appeal, out of whom, Asharfi Yadav has been found guilty of the offence under Section 302, IPC and sentenced to undergo rigorous imprisonment for life. The remaining three appellants have been found guilty of the offence under Sections 302/149, IPC, and have also been sentenced to undergo rigorous imprisonment for life. Though they have been found guilty of the offence under Section 147, IPC, no separate sentence has been passed. These appellants along with one Mahadevi were put up for trial before the Sessions judge, Begusarai, in Sessions Case No. 14 of 1986. The trial Court by its judgment and order dated 22nd June, 1989 found the appellants guilty as aforesaid. 2. Appellant No. 1 Asharfi Yadav who has been convicted of the offence under Section 302, IPC has died and, therefore, his appeal abates. 3. The occurrence is said to have taken place on 16.4.1983 at about 9 p.m. in the common angan of the Informant and the appellants in which, according to the prosecution, as many as 12 persons took part in assaulting the deceased Garbhu Yadav. On sustaining injuries he breathed his last soon after the assault. The prosecution case is that the appellants and others were variously armed with lathis, Lodhi (grinding stone) and brick bats. 4. At about 11 p.m. on the date of occurrence, the Investigating Officer came to the place of occurrence, and recorded the fardbeyan of Ramadhar Yadav, PW 4, the son of the deceased. In his fardbeyan, the Informant, stated that at about 9 p.m. appellant No. 2 Ram Bilash Yadav came to his handpump to take water. On account of family dispute, his father Garbhu Yadav, deceased, objected to Ram Bilash Yadav taking water from his handpump. Ram Bilash Yadav was enraged and he dismantled the handle of the handpump and was taking it away. Seeing this, his father Garbhu, deceased, objected saying that the handpump belonged to him and, therefore, he should not take away the handle. Thereafter, Ram Bilash Yadav abused his father, and his father also abused Ram Bilash Yadav. Ram Bilash Yadav called other members of the family 11 in number whose names have been mentioned in the fardbeyan. Those persons came armed with lathies, brick bats and Lodhia and started assaulting his father. Thereafter, Ram Bilash Yadav abused his father, and his father also abused Ram Bilash Yadav. Ram Bilash Yadav called other members of the family 11 in number whose names have been mentioned in the fardbeyan. Those persons came armed with lathies, brick bats and Lodhia and started assaulting his father. The specific role assigned in the fardbeyan is to appellant No. 2 Ram Bilash Yadav who is said to have assaulted his father with stone hitting him on his chest. The others assaulted his father with lathis. His father Garbhu Yadav, deceased, fell down and was writhing in pain. The Informant and his wife raised an alarm and 3 villagers, whose names are mentioned in the fardbeyan and others came running to the place of occurrence and witnessed the assault on his father and also intervened to save him. However, his father died. 5. It may here be stated that none of the witnesses who are said to have arrived on alarm being raised by the Informant and his wife, have been examined as witnesses in this case. The Investigating Officer has also not been examined. Out of 12 persons named in the fardbeyan, only four were put up for trial. The fifth accused put up for trial was Mahadevi, who was not named in the First Information Report. Apparently, the Investigating Officer found no case against the remaining persons named in the fardbeyan. 6. At the trial, 7 witnesses were examined, out of whom, PWs 1 to 5 are the witnesses of the occurrence while PW 6 is the doctor who conducted the postmortem examination on the dead-body of the deceased. PW 7 is a formal witness who has proved the handwriting of the Investigating Officer who had recorded the fardbeyan and the inquest report. 7. PW 1 Ram Swarath Yadav was the son of the deceased, but he stated that he had not seen the occurrence. PW 2 Shanti Devi in her examination in-chief appeared to be an eye-witness, but in her cross-examination admitted that she came to the place of occurrence after Garbhu Yadav had been assaulted, whose body she found lying in the angan. It thus appears that PW 2 is also not an eye-witness. The trial Court has also not relied upon the testimony of these two witnesses. 8. PW 3 Basmati Devi is the wife of the deceased, Garbhu Yadav. It thus appears that PW 2 is also not an eye-witness. The trial Court has also not relied upon the testimony of these two witnesses. 8. PW 3 Basmati Devi is the wife of the deceased, Garbhu Yadav. She has stated that on the date of occurrence 12 persons named in the FIR came to the angan. Appellant No. 2 Ram Bilash Yadav hit her husband on chest with stone, while appellant No. 1 Asharfi Yadav (since deceased) assaulted her husband on his head with lathi. The other named persons assault her husband with lathis. The cause of the occurrence was the quarrel which arose on account of the handpump. In her cross-examination, she has admitted that about an hour before the occurrence there was a quarrel between the female members relating to the hand pump. She has stated that all the accused as well as the Informant lived in the same angan. She has further stated that appellant No. 2 Ram Bilash Yadav had assaulted her husband twice with stone as a result of which blood started coming out from the nose of her husband. She asserted that in her statement under Section 161, Cr PC she had stated before the Investigating Officer that appellant No. 2 Ram Bilash Yadav had assaulted her husband on his chest with stone and Asharfi Yadav had assaulted him with his lathi on his head. She also claimed to have named all the appellants before the Investigating Officer. 9. PW 4 Ramadhar Yadav is the Informant and the son of the deceased. He has stated about the quarrel which took place between appellant No. 2 Ram Bilash Yadav and his father when Ram Bilash Yadav wanted to take water from their handpump. According to this witness, after the altercation which followed, appellant No. 2 Ram Bilash Yadav called the remaining 11 persons named in the fardbeyan who came armed with lathis, brick-bats and stone. They came to the angan and thereafter appellant No. 2 Ram Bilash Yadav assaulted his father with stone while others assaulted him with brick-bats, lathis, etc. On receiving injuries, his father fell down and died at about 9 p.m. This witness has admitted the relationship between the parties and has further stated that Batahu, the father of Asharfi Yadav, appellant No. 1 and Bijo one of the persons named in the First Information Report live in the same angan. On receiving injuries, his father fell down and died at about 9 p.m. This witness has admitted the relationship between the parties and has further stated that Batahu, the father of Asharfi Yadav, appellant No. 1 and Bijo one of the persons named in the First Information Report live in the same angan. There were disputes between the parties relating to the said angan which was settled about a year and a half ago. According to this witness, Mahadevi had brought a Lodhi (grinding stone) and assaulted his father on his elbow. He had named Mahadevi in his fardbeyan. No one else was carrying a Lodhi, but appellant No. 2 Ram Bilash Yadav was carrying a stone. On account of injury caused on his chest by stone, blood started coming out from the nose of his father. His father suffered 10-20 lathi blows. 10. PW 5 Ram Jyoti Devi is the wife of the Informant. She has also deposed about the manner in which a quarrel took place between Ram Bilash Yadav and her father-in-law Garbhu Yadav, the deceased. She has also stated that Ram Bilash Yadav called the other 11 persons who came variously armed with lathis, stone and brick-bats. Appellant Ram Bilash Yadav had carried a stone and he assaulted his father-in-law, deceased, on his chest. The remaining persons assaulted him with lathi and brick bats, as a result of which the deceased died. In her cross-examination, she has admitted that some quarrel was going on since morning between the female members of the family. She however, categorically stated that Mahadevi (since acquitted) had not come to the handpump to take water. In the evening, appellant Ram Bilash Yadav had come to take water. She has further stated that appellant Ram Bilash Yadav called the others who were in the front portion of the house. She admits that she had named all the accused before the Investigating Officer. She also claimed to have told the Investigating Officer that Asharfi Yadav had a lathi in his hand. She had also told the Investigating Officer about the assault on her father-in-law with stone. This witness further stated that she had not seen Bijo at the place of occurrence. She had seen his earlier in the day. 11. PW 6 Dr. B.C. Choubey conducted the post-mortem examination on the dead-body at 9 a.m. on 18.4.1983. She had also told the Investigating Officer about the assault on her father-in-law with stone. This witness further stated that she had not seen Bijo at the place of occurrence. She had seen his earlier in the day. 11. PW 6 Dr. B.C. Choubey conducted the post-mortem examination on the dead-body at 9 a.m. on 18.4.1983. He found the following injuries on the person of the deceased. (i) Scratch and ecchymosed area on the right elbow joint 3" x 2" x 1". (ii) Bruise on the whole of the mid region of head 4" x 2" x 1/2". On dissection muscle under skin was injured. Blood clot contained whole region of the skull. (iii) Skull bones, parietal, occipital, frontal were fractured in the mid adjoining bone into pieces. (iv) Membrane of the brain and brain substance were full of blood clot. The brain substance were injured. Heart and lungs and other organs were normal. In his opinion, death was due to shock which was caused as a result of brain injury. The injuries were caused by hard and blunt substance and were sufficient in ordinary course of nature to cause death. 12 This is all the evidence on record. The trial Court after considering the evidence on record relied upon the testimony of PWs 3, 4 and 5 and found the appellants guilty and sentenced them as noticed earlier. The trial Court held that even though, it was the prosecution case that appellant Ram Bilash Yadav had assaulted the deceased on his chest with stone, the absence of any injury on chest did not cast any doubt about the truthfulness of the prosecution case. In his view, the witnesses may have made a mistake. In any event, none of the accused could absolve themselves of the charge under Section 149 read with Section 302, IPC on the plea that he had committed no overt act. He observed that mere membership of the unlawful assembly with the requisite common object or knowledge was enough to attract Section 149, IPC. The trial Court has also noticed the fact that the Investigating Officer has not been examined and has observed that he has looked into the case diary only to verify whether the statements made in the Court were contradict to the statements made before the Police. 13. The trial Court has also noticed the fact that the Investigating Officer has not been examined and has observed that he has looked into the case diary only to verify whether the statements made in the Court were contradict to the statements made before the Police. 13. So far as Mahadevi is concerned, the trial Court found that she was not named in the First Information Report, nor was she named by the Informant in his further statement It was only at a later stage that her name was introduced. He, therefore, gave to her the benefit of doubt. However, it was held that even excluding Mahadevi, according to the prosecution there were 8 other persons who had taken part in the assault, and, therefore, Section 149, IPC was applicable to the facts of the case. 14. It appears from the record that the Informant as well as the accused belong to the same family, and different branches of the family reside in the same house which has a common angan as deposed to by PW 3, the wife of the deceased. The question is whether in the facts and circumstances of the case, it is established that there was an unlawful assembly with the common object to commit the murder of the deceased. Having regard to the fact that the family of the deceased as well as the accused were residing in the same house in different portions, the fact that all of them assembled when there was a quarrel between the deceased and appellant Ram Bilash Yadav, does not necessarily lead to the inference at the inception that thev had formed themselves into an unlawful assembly. It makes no difference whether they were called by appellant Ram Bilash Yadav or they came on their own hearing the exchange of abuses between the deceased and appellant Ram Bilash Yadav. It was but natural for the members of the family to come running to the angan where a quarrel was going on between two members of the family. We are, therefore, of the opinion that the mere fact that all the persons named in the First Information Report came to the angan is not sufficient to establish the formation of an unlawful assembly. We are, therefore, of the opinion that the mere fact that all the persons named in the First Information Report came to the angan is not sufficient to establish the formation of an unlawful assembly. With a view to find out whether an unlawful assembly was formed thereafter, we have to look into the facts and circumstances of the case, including the role played by the accused. We have earlier noticed the injuries suffered by the deceased. Really speaking, there are two injuries; the first is in the nature of a scratch on the right elbow attributed to Mahadevi (since acquitted) by PW 4, the Informant himself. The trial Court has not accepted the evidence of the Informant in this regard inasmuch as Mahadevi stands acquitted. The other injury was found on the skull of the deceased. It is not clear from the record as to whether there were multiple injuries on the head. The doctor has not stated that the injury found on the head was caused by more than one blow. It appears to us that the injury on the head was caused by a hard and blunt substance with great force resulting in the fracture of the skull-bone, etc. Having regard to the number and nature of injuries, we are not prepared to believe the witness who say that all the 12 persons started assaulting the deceased. The prosecution case appears to be exaggerated, and if the scratch attributed to Mahadevi is kept out of consideration, there is really only one injury on the head of the deceased caused by hard and blunt substance. 15. PW 3 has stated that appellant Ram Bilash had assaulted her husband on his chest with stone while appellant Asharfi (since deceased) assaulted her husband on his head with lathi. No injury has been found on the chest of the deceased, and, therefore, the testimony of PW 3 is not corroborated by the medical evidence on record insofar as the assault bv appellant Ram Bilash Yadav is concerned. According to her, Asharfi Yadav (since deceased) assaulted her husband with his lathi on his head which is corroborated by the medical evidence on record. PW 4 has not ascribed am specific role to Asharfi Yadav. He has generally stated that the appellants and others assaulted his father with stone, lathis, brick-bats, etc. According to her, Asharfi Yadav (since deceased) assaulted her husband with his lathi on his head which is corroborated by the medical evidence on record. PW 4 has not ascribed am specific role to Asharfi Yadav. He has generally stated that the appellants and others assaulted his father with stone, lathis, brick-bats, etc. In his cross- examination, he has ascribed a specific role to Mahadevi (since acquitted) and appellant Ram Bilash Yadav. According to him, Mahadevi had assaulted his father with a Lodhi on his elbow. Though he claimed that he had mentioned the name of Mahadevi in his fardbeyan, that appears to be a false assertion. As far as Ram Bilash Yadav is concerned, he has stated that on account of blows given by him with a stone on the chest of his father, blood started coming out from the nose. It, therefore, appears that according to this witness also, appellant Ram Bilash Yadav assaulted the deceased on his chest with stone. As we have observed earlier, there is no injury on the chest of the deceased. 16. According to PW 5 also, Ram Bilash Yadav, appellant No. 2 had assaulted the deceased on his chest with stone. This witness has not mentioned about the presence of Mahadevi at the time of occurrence, but she has definitely stated that one of the persons named in the fardbeyan, namely, Bijo Yadav was not seen by her at the time of occurrence, though she had seen him earlier in the day. 17. From the evidence on record, it appears that there is consistent evidence that appellant Asharfi Yadav assaulted the deceased on his head which resulted in his death. This has been accepted by the trial Court as well and that is why an order of conviction has been recorded against him under Section 302, IPC. Since Asharfi Yadav is dead, his appeal abates. Apart from the head injury, there is no other injury on the person of the deceased except a scratch on his elbow. It, therefore, appears to us that the other members of the family may not have participated in the assaulted. As we have earlier held, their mere presence in the angan in the circumstances stated above would not lead to the inference that at the inception they had formed themselves into an unlawful assembly. It, therefore, appears to us that the other members of the family may not have participated in the assaulted. As we have earlier held, their mere presence in the angan in the circumstances stated above would not lead to the inference that at the inception they had formed themselves into an unlawful assembly. Since the prosecution case appears to be an exaggerated version of the true incident and there has been attempt to falsely implicate at least two persons namely, Mahadevi and Bijo Yadav, it would not be safe to accept the testimony of the alleged eye-witnesses on their face value. We have, therefore, scrutinised the evidence with a view to find out whether any of the members of the family who collected on the call of appellant Ram Bilash Yadav took part in the assault. We find no satisfactory evidence on record to establish that any of the appellants apart from appellant Asharfi Yadav, caused any injury to the deceased. The specific role assigned to appellant Ram Bilash Yadav is belied by the fact that no injury has been found on the chest of the deceased. 18. In view of the above discussion, we hold that the prosecution has not proved the charge under Sections 302/149, IPC against appellants 2 to 4. They are, therefore, acquitted of the charges levelled against them. These appellants have been released on bail. Their bail bonds are discharged. So far as Asharfi Yadav is concerned, though he has rightly been found guilty for committing an offence under Section 302, IPC since he is dead, his appeal abates. Appeal abated as regards A1 and allowed as regards others.