Judgment M.L.Visa, J. 1. Both these appeals, arising out of same judgment dated 8-4-1993 and order dated 12-4-1993 passed by the Additional Sessions Judge, Purnea in Sessions Trial No. 265 of 1991 convicting and sentencing both the appellants to undergo rigorous imprisonment for life u/s. 302 read with Sec. 149, Indian Penal Code, rigorous imprisonment for three months under Sec. 147, Indian Penal Code and rigorous imprisonment for one month under Sec. 323. Indian Penal Code and ordering for all these sentences to run concurrently, have been heard together and are being disposed of by this common judgment. 2. The case of prosecution in short, as disclosed by the fardbayan of informant Arjun Mandal (PW 15) is that on 20-4-1990 at about 1.30 a.m., the informant, alongwith Umesh Ram (PW 6), Krishna Kumar Mandal (PW 7) and Vibhishan Mandal (PW 8) was going to a Magistrate deputed in the village to complain that Adivasis (members of a tribal community) were extending their illegal possession of land and they were blocking the entry of villagers from all the sides and were becoming ready to assault the villagers who wanted to go outside the village. When he reached near the boring of one Sarjug Mandal, both the Appellants, alongwith Raghu-nandan Murmu and Ramji Murmu, armed with arrows and Phatta (bamboo) sticks) came there and saying that why they were crossing through their land, Raghunandan Murmu pierced an arrow on the right thigh of informant and Ramji Murmu assaulted Krishna Kumar Mandal (PW 7) with Phatta and both the appellants assaulted Vibhishan Mandal (PW 8) with phatta, fists and slaps. The informant and his companions ran here and there and informant came to his house and he narrated the incident to his villagers and he, out of fear, could not go to Police Station but he, along-with some of his villagers, namely, Bipin Mandal (PW 9), Laxmi Ram (PW 3), Puran Ram (PW 2), Shyamlal Mandal (PW 5), Chulhai Ram (PW 11), Charitar Mandal (PW 4), Krishna Kumar Mandal (PW 7), Vibhishan Mandal (PW 8) and Umesh Ram (PW 6) proceeded to pacify the Adivasis and when they all reached a place from where the disputed land is situated about 150 yards towards north east, both the appellants alongwith Raghunandan Murmu, Ramji Murmu, Sanichar Murmu, Chando Hasda, Thakur Soren, Bindeshwar Soren and others, variously armed with arrows and Phatta, started throwing arrows on them. In the meantime, Bido Yadav was going to his house from eastern side and coaccused Raghunandan Murmu thinking that he was member of prose-cution party called him and when Bido Yadav looked at him, Raghunandan Murmu shot an arrow hitting on the abdomen of Bido Yadav who fell down and died on the spot. The informant and his companions, thereafter, went running to the Magistrate for informing him about the occurrence. In the mean-time, the appellants and their compa-nions started setting fire to their own huts. The fardbeyan of informant was recorded by Sub Inspector Rameshwar Prasad (PW 17) on the same day at about 7 p.m. in the village of occur-rence. About the motive of occurrence, the informant, in his fardbeyan, has stated that appellants on the land of Laxmipur Baphariya Primary School given in charity by Charital Mandal, Baleshwar Mandal and Mahendra Mandal, had illegally constructed huts for which a case at Baphariya Police Station was already lodged and appe-llants and their companions were exten-ding the area of their encroachment and they had closed the entry of the villagers. On the basis of Fardbeyan of informant, a case by drawing formal first information report (Exhibit-4) under Secs. 47, 148, 323, 307 and 302, Indian Penal Code was registered against both the appellants and six others. After investigation police sub-mitted charge-sheet against the appe-llants and co-accused Raghunandan Murmu and Ramji Murmu. The case was committed to the Court of Session where charges under Secs. 147, 323, 302/149 were framed against both the appellants and co-accused Ramji Murmu and charges under Secs. After investigation police sub-mitted charge-sheet against the appe-llants and co-accused Raghunandan Murmu and Ramji Murmu. The case was committed to the Court of Session where charges under Secs. 147, 323, 302/149 were framed against both the appellants and co-accused Ramji Murmu and charges under Secs. 148, 324 and 302 against co-accused Raghunandan Murmu. After trial, appellants, alongwith Ramji Murmu and Raghunandan Murmu were held guilty and all were convicted and sentenced. Appellants alongwith co-accused Ramji Murmu were sentenced to undergo rigorous imprisonment for life under Secs. 302 read with Sec. 149, rigorous imprisonment for three months under Sec. 147, Indian Penal Code and rigorous imprisonment for one month under Sec. 323, Indian Penal Code, as indicated above whereas co-accused Raghunandan Murmu was convicted and sentenced to undergo rigorous imprisonment for life under Sec. 302, Indian Penal Code and rigorous imprisonment of sixmonths under Sec. 147, Indian Penal Code. 3. The case of appellants, as it appears from the trend of cross-examination of prosecution witnesses, is that on the day of occurrence, the informant and others had gone to dispossess the appellants from their land and set fire to their huts and at that time, members of prosecution party were shooting arrows and one of such arrow hit Bido Yadav resulting into his death. 4. In order to prove its case, pro-secution has examined seventeen witnesses, Laxmi Ram (PW 3), Chulhai Ram (PW 11) and Jageshwar Yadav (PW 12) are tendered witnesses, Arjun Mandal (PW 15) is informant. Dr. Basant Kumar Singh (PW 14) is the doctor who had conducted autopsy on the dead body of Bido Yadav, Dr. Priya Brat Yadav (PW 16) was deputed as Magistrate at the relevant time in the village of occurrence. Rameshwar Prasad (PW 17) is the Investigating Officer. Other witnesses are said to be eye-witnesses to the occurrence. 5. The case of prosecution consists of two parts. First part relates when informant and some other witnesses were assaulted by the appellants and their companions and second part is in which Bido Yadav died of an arrow injury inflicted by co-accused Raghu-nandan Mandal, who was a member of unlawful assembly comprising of appe-llants and others. 6. PWs 6, 7 and 8 are witnesses of the first part of occurrence whereas PWs 2, 3, 4, 5, 9, 10, and 13 are the witnesses on the second part of occurrence. 6. PWs 6, 7 and 8 are witnesses of the first part of occurrence whereas PWs 2, 3, 4, 5, 9, 10, and 13 are the witnesses on the second part of occurrence. Informant and Dasrath Mandal (PW 1) are witnesses of both parts of occurrence. Informant Arjun Mandal (PW 15), in his evidence, has said that on the day of occurrence, he, alongwith PWs 6, 7 and 8, was going to Magistrate for making complaint about illegal occupation of their land and blocking the way by adivasis and when he reached near the boring of Sarjug Mandal, both the appellants alongwith co-accused Raghunandan Murmu, Ramji Murmu, armed with Phatta and arrows came from a maize crop field and after saying that why they were crossing their land, co-accused Raghunandan Murmu pierced an arrow on his right thigh and coaccused Ramji Murmu assaulted Krishna Kumar Mandal by Phatta on his head and both the appellants assaulted Vibhishan Mandal with fist. He then came running to his village and his other companions went to Magistrate and he narrated the incident to the villagers and, thereafter, along-with villagers, namely, Bipin Mandal (PW 9), Puran Ram (PW 2), Laxmi Ram (PW 3), Chulhai Ram (PW 11), Charitar Mandal (PW 4), Dasrath Mandal (PW 1) and others went to adivasis for pacifying the matter and when they reached the land of Jugo Ram near Chamartoli, both the appellants and co-accused Raghunandan Murmu and Ramji Murmu alongwith eight to ten came armed with arrows and Phatta and they started shooting arrows and then he and others went running to Chamartoli where they hided and he, hiding near the house of Laxmi Ram, Started looking and saw that deceased Bido Yadav was going from east to west towards his village-Rahijagatpur when co-accused Raghunandan Murmu scolded him and when deceased turned back, co-accused Raghunandan shot an arrow on him hitting of his abdomen and Bido Yadav fell down and died. He then ran to the Magistrate but in the meantime, Magistrate came and adiwasis after setting fire to their own huts, fled away. He has said that adiwasis had forcibly constructed their huts on the land of Charitar Mandal (PW 4), Mahendra (not examined) and Baleshwar (not examined). He then ran to the Magistrate but in the meantime, Magistrate came and adiwasis after setting fire to their own huts, fled away. He has said that adiwasis had forcibly constructed their huts on the land of Charitar Mandal (PW 4), Mahendra (not examined) and Baleshwar (not examined). He has further said that police reached at about 6 p.m. and recorded his fardbayan on which he put his signature (Exhibit-1) and Dasrath Mandal (PW 1) and Arun Bhagat (PW 15) also put their sig-natures (Exhibits-1/1 and 1/2) on fardbeyan and he, alongwith Krishna Kumar Mandal (PW 7) and Vibhishan Mandal (PW 8) were sent by police to Barahra Hospital for treatment. In cross-examination, he has said that at the time of occurrence, he ran in his village and when Magistrate came near the dead body, he also came there, in Para 9 of his cross-examination he has said that about six to seven persons were shooting arrows and at that time, he was hiding in a tatiya. In cross-examination, he has admitted that Santhals had not constructed any hut on his land. Dasrath Mandal (PW 1) has said that when informant and PWs. 6, 7, 8 and others were going to lodge complaint to Magistrate, co-accused Raghu Murmu inflicted injury by an arrow on right thigh of informant and, thereafter, informant and his compani-ons turned back. He has further said that when villagers went to Santhals for pacifying the matter, Santhals brought their arrows and bows and co-accused Raghu Murmu scolded Bido Yadav who was a passerby and when Bido Yadav turned back, co-accused Raghu Murmu shot an arrow on the abdomen of Bido Yadav and Bido Yadav fell down and died. He has further said that fard-bayan of informant was recorded on the same day in the evening on which he put his signature. In his entire deposition, he has not whispered the names of appellants and in cross-examination, he has admitted that because of passage of time, he does not remember anything and whatever he heard from the diary, he has deposed and he cannot say whether his evidence is based on the statement of informant or not. 7. Puran Ram (PW 2), Charitar Mandal (PW 4), Shyamlal Mandal (PW 5), Bipin Mandal (PW 9), Yogendra Ram (PW 10), Suresh Prasad Mandal (PW 13) have claimed themselves to be eyewitnesses of second part of occurrence. 7. Puran Ram (PW 2), Charitar Mandal (PW 4), Shyamlal Mandal (PW 5), Bipin Mandal (PW 9), Yogendra Ram (PW 10), Suresh Prasad Mandal (PW 13) have claimed themselves to be eyewitnesses of second part of occurrence. They all have stated that when they were going to adiwasis for pacifying them, they all started shooting arrows and co-accused Raghunandan Mandal scolded Biro Yadav who was passerby and when Biro Yadav looked back, co-accused Raghunandan Murmu shot an arrow on his abdomen as a result of which he fell down and died there. 8. The learned counsel appearing on behalf of the appellants has sub-mitted that the appellants have been convicted under Secs. 302 read with Sec. 149, Indian Penal Code by Court below holding that they were the members of an unlawful assembly and one of its members, namely, co-accused Raghunandan Murmu in prosecution of common object of that assembly, shot an arrow which hit on the abdomen of Bido Yadav who died on the spot but evidence of prosecution witnesses who have claimed themselves to be eye-witnesses to this part of occurrence, clearly show that the deceased Bido Yadav was not a member of prosecution party and he was a passerby and was going towards his village coming from eastern side and when co-accused Raghunandan Murmu scolded him, he looked back and then co-accused Raghunandan shot an arrow on his abdomen. According to him, the action of Raghunandan Murmu was an inde-pendent act and these appellants had no concern with that action of co-accused Raghunandan Murmu. Relying upon a decision of Apex Court in the case of Kshudiram Majhi V/s. State of West Bengal, he has argued that for any offence committed by a particular member of an unlawful assembly which is not committed in prosecution of common abject of that assembly, in that case other members of unlawful assembly will not be responsible for the offence committed by that particular member. We fully agree with the submissions of learned counsel for the appellants because all the prosecution witnesses who have claimed themselves to be eye-witnesses to the occurrence, to the second part of occurrence, in their evidence, have said that deceased Bido Yadav was at the time of occurrence going towards west from eastern side meaning thereby that he was a passerby and when co-accused Raghunandan Murmu scolded him and he turned back, co-accused Raghunandan shot an arrow on his abdomen causing his death. Their evidence clearly establishes that deceased was not with the persons who had gone to adiwasis for pacifying the matter and he was a simple passerby. In view of this evidence, we find that action of co-accused Raghu-nandan Murmu in shooting an arrow on the abdomen of deceased was quite a separate act and it was not committed in prosecution of common object of the so-called unlawful assembly. 9. Besides the conviction and sentence of appellants under Sec. 302 read with Sec. 149, Indian Penal Code, the appellants have been convic-ted and sentenced under Sec. 147, Indian Penal Code also holding them as members of unlawful assembly. In this regard, we find that the informant, in his fardbeyan, has not stated the name of appellant Rasik Marandi among the persons who started throwing arrows when the informant and other villagers went to appellants and their compa-nions for pacifying the matter. He has specifically named eight persons who according to him alongwith some unknown persons started throwing arrows. Appellant Rasik Marandi was known to him that is also clear from the fardbeyan in which it is alleged that Rasik Marandi had taken part in the first part of occurrence. PW 2, in his evidence, has said that when adiwasis, after setting fire to their own huts, started running away, he identified some of them but he has not named appellant Rasik Marandi among those persons. About appellant Munsi Hasda, he has said that he identified him among the persons who, after setting fire to their own huts, fled away but has not said that he was among the persons who started shooting arrows. Charitar Mandal (PW 4), in his evidence, has said that among the miscreants, he identi-fied Raghu Murmu and Ramji Murmu. So far the present appellants are concerned, he identfied them for the first time in Court when he was examined. Charitar Mandal (PW 4), in his evidence, has said that among the miscreants, he identi-fied Raghu Murmu and Ramji Murmu. So far the present appellants are concerned, he identfied them for the first time in Court when he was examined. In cross-examination, he has stated that he does not know whether Santhals adiwasis had received any parcha for the land on which they had constructed their huts. He has further said that when they had constructed huts on his land, a police case in the year, 1990 was lodged and there was a proceeding under Sec. 144, Code of Criminal Procedure but he does not know what was the result of that proceeding. About the persons who were shooting arrows, he has said that their number was about 85-100. Similarly, Shyamlal Mandal (PW 5) has said that he identified co-accused Raghu Murmu and Ramji Murmu who were shooting arrows and so far the appellants are concerned, he identified them for the first time in Court (PW 2), in his cross-examination, has said that at the time of occurrence, he alongwith Krishna Kumar Mandal (PW 7), informant Arjun Mandal (PW 15), Dasrath Mandal (PW 1), Laxmi Ram (PW 3), Umesh Ram (PW 6), Chulhai Ram (PW 11) had hided in the courtyard of the house of Umesh Ram. Although in para-4 of his evi-dence, he has said that he saw hitting the arrow to deceased Bido Yadav from the road but again in the same breath, he has said that after his hiding in the courtyard of Umesh Ram, the arrow was inflicted to Bido Ram Yadav. PW 4, in his examination-in-chief, has said that when Santhals started shooting arrows, he went in the house of Laxmi Ram in Harijan Tola for hiding. PW 5, in his crossexamination, has also said that when Santhals started shooting arrows, he went in a house where he hided and came out after the death of Bido Yadav and after that the appellants and their companions left the place of occurrence. PW 9, in cross-examination, has said that when Santhals started shooting arrows, he and others ran away for hiding and he remained hiding for half an hour. Yogendra Ram (PW 10) has also said that he also went for hiding and similar is the evidence of Suresh Prasad Mandal (PW 13) and informant (PW 15). PW 9, in cross-examination, has said that when Santhals started shooting arrows, he and others ran away for hiding and he remained hiding for half an hour. Yogendra Ram (PW 10) has also said that he also went for hiding and similar is the evidence of Suresh Prasad Mandal (PW 13) and informant (PW 15). The Investigating Officer (PW 17), in his evidence, has said that Suresh Mandal (PW 13) had not stated before him that he had seen appellant Munsi Hasda shooting arrows. From the evidence of aforesaid witnesses, it is clear that at the time of occurrence of second part, they all had ran away from the place of occurrence for hiding and in this view of the matter, their evidence that they identified the appellants among persons, who were 85-100 in number, does not inspire confidence. Apart from this, both these appellants have been charged under Sec. 147, Indian Penal Code for being members of an unlawful assembly and there is no charge that at the time of occurrence, they were armed with arrows or any deadly weapon. The evidence of prose-cution witnesses, who have deposed about the second part of occurrence, does not show that besides the persons, who were armed with arrows, there were other persons also with them. So, we find that charge under Sec. 147, Indian Penal Code against the appell-ants is also not proved beyond all reasonable doubts. 10. Both the appellants have been further convicted and sentenced under Sec. 323, Indian Penal Code and charge under this head was framed for voluntary causing hurt to informant, Krishna Mandal PW 7 and Vibhishan Mandal (PW 8) although in the charge, in place of Vibhishan Mandal, the name of Dharikshan Mandal has been stated. In the fardbeyan, the informant stated that both these appellants assaulted Vibhishan Mandal with fists, slaps and phatta. Vibhishan Mandal (PW 8), in his evidence, has said that he was assaulted by both the appellants by lathi, fists and kicks and these appe-llants also assaulted Umesh Ram with fists and slaps. Umesh Ram (PW 6) and Vibhishan Mandal (PW 8) both have said that they were assaulted by both the appellants by phatta, fists and slaps but in the fardbeyan, there is no allega-tion against these appellants that they assaulted Umesh Ram also alongwith Vibhishan Mandal. Umesh Ram (PW 6) and Vibhishan Mandal (PW 8) both have said that they were assaulted by both the appellants by phatta, fists and slaps but in the fardbeyan, there is no allega-tion against these appellants that they assaulted Umesh Ram also alongwith Vibhishan Mandal. In the charge under Sec. 323, Indian Penal Code framed against both the appellants, there is no mention that they voluntarily caused any hurt to Umesh Ram. So far the assault on Vibhishan Mandal (PW 8) is concerned, it is true that Investigating Officer Rameshwar Prasad (PW 17) has proved an injury certificate prepared by him (Exhibit 5/A) and has also proved an injury certificate granted by Dr. B.P. Mandal (Exhibit 6/A) but then the Court below has not considered the injury certficate (Exhibit 6/A) granted by doctor in absence of his examination as a witness but then relying oral evidence found charge under Sec. 323, Indian Penal Code framed against both the appellants proved. We find that Investigating Officer, in para 14 of his evidence, has said that Vibhishan Mandal (PW 8) had not stated before him that he was assaulted by Phatta by both the appellants. In view of this evidence, the charge under Sec. 323, Indian Penal Code framed against the appellants for voluntarily causing hurt to Vibhishan Mandal (PW 8) also does not stand proved. 11. Considering the entire evi-dence on record, we find that the prose-cution has not been able to prove the charges framed against the appellants beyond all reasonable doubts and their conviction cannot be sustained. In the result, this appeal is allowed and the judgment and order of Court below, so far it relates to conviction and sentence of both the appellants, is hereby set-aside and both the appellants are acquitted. 12. Appellant Rasik Marandi is in jail custody. Issue release order for release of appellant Rasik Marandi from jail forthwith if he is not required in any case. B.K.Jha, J. 13 I agree.