JUDGMENT : B. Panigrahi, J. - This appeal has assailed the order dated 20.1.1996 passed by the learned 1st Additional Sessions Judge, Puri in S.T. Case No. 40/274 of 1993 whereby the trial Court has convicted and sentenced the Appellants and stated hereinbelow: 2. Appellants No. 1 to 4 have been convicted under Sections 148/302, Indian Penal Code read with Section 149, Indian Penal Code and sentenced to undergo imprisonment for life. They have further been convicted under Sections 148/325, read with Section 149, Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years; the sentences to run concurrently. Appellant No. 6 has been convicted under Sections 148/325, read with Section 149; Indian Penal Code and sentenced to undergo rigorous imprisonment for 2 years and 5 years respectively; the sentences to run concurrently. Appellant Nos. 5 and 7 to 11 have been convicted u/s 148, Indian Penal Code and Sentenced to undergo rigorous imprisonment for 2 years. 3. The skeletal picture of the prosecution story as presented in course of trial is as follows: This unfortunate incident had taken place on account of a family feud over a coconut garden situated in village Bagulapari on 13.10.1992 at about 10.00 A.M. The Appellants had proceeded to the coconut garden being armed with deadly weapons like lathi, Bhali, Tenta, Crowbar, etc. The deceased Achhaba Jena after having learnt that the Appellants had proceeded for plucking coconut to the garden also followed them in the same direction notwithstanding the objection of his wife and other relations. The Appellants returned from the garden after they knew that the deceased Achhaba was proceeding in that direction and obstructed him from going further to the coconut garden on the village road in front of the house of one Iswar Sukari. Appellant No. 1, Chhaila Jena and Appellant No. 2, Nabakishore Jena assaulted the deceased on his head by means of a crowbar. After the first blow, Achhaba fell down on the ground. At that juncture, Appellant No. 2 dealt a severe blow again on his head by a crowbar. Appellants No. 3 and 4, namely, Swadhin Jena and Sudarshan Jena, caused injuries on the chest and neck of the deceased by means of a frying stick and a bamboo splint. As a result of the blows inflicted on him, Achhaba was seriously injured. Appellants No. 3 and 4, namely, Swadhin Jena and Sudarshan Jena, caused injuries on the chest and neck of the deceased by means of a frying stick and a bamboo splint. As a result of the blows inflicted on him, Achhaba was seriously injured. When Tapoi - P.W. 1, the wife of Achhaba, ran to rescue her husband, Appellant No. 1 Chhaila assaulted on her head by a crowbar as a reason whereof she sustained severe injury. The other relations of Achhaba who proceeded to separate the Appellants from assaulting him and his wife were also assaulted by Appellant Nos. 1 to 6. When the relations of Achhaba made an attempt to remove him to Sakhigopal Hospital for treatment, the Appellants did not permit them to do so. Somehow or other, P.W. 1 sneaked away from the scene and proceeded to Sakhigopal police station and in a hurry informed the police that her husband had been assaulted. But when she could not make further utterance regarding the incident, she was immediately asked to proceed to Sakhigopal Hospital for treatment. The police people also went along with P.W. 1. After reaching the hospital, she verbally explained the incident to the O.I.C.P.W. 14 who reduced it into writing. The contents thereof were read over and explained to P.W. 1, who having understood the same, put her L.T.I., which was treated as FIR. Before the FIR was reduced into writing, since P.W. 1 had verbally reported the matter at the police station, it was diarised in the station diary vide Station Diary Entry No. 264. After receiving the report, P.W. 14 registered a case and immediately swung into action. In the meanwhile, Achhaba was brought to the hospital where he was declared dead. P.W. 14 held inquest over the deadbody of Achhaba and referred the injured to Sakhigopal Hospital for treatment whereafter they were referred to the S.C.B. Medical College and Hospital, Cuttack for better treatment. The clothings of the deceased had also been seized after post-mortem examination. During investigation, the crowbar, lathi and other weapons of offence were seized, the Appellants were arrested, the incriminating materials were sent to the S.F.S.L. for opinion of the Chemical Analyst, and on completion of investigation, charge sheet was submitted against all the Appellants under different sections of the Penal Code as stated above. 4. During investigation, the crowbar, lathi and other weapons of offence were seized, the Appellants were arrested, the incriminating materials were sent to the S.F.S.L. for opinion of the Chemical Analyst, and on completion of investigation, charge sheet was submitted against all the Appellants under different sections of the Penal Code as stated above. 4. On an elaborate evaluation of the evidence, the learned trial Judge has convicted the Appellants Chhaila Jena, Nabakishore Jena ' Minjia, Swadhin Jena and Sudarsan Jena under Sections 148 and 302 read with Section 149, Indian Penal Code for commission of murder of Achhaba Jena. Appellant No. 1, Chhaila Jena has further been convicted u/s 148, and 325 read with Section 149, Indian Penal Code for causing injury to P.W. 1 by means of a crowbar. Appellant No. 2 had also been convicted under the same Sections, i.e. Sections 148 and 325 read with Section 149, Indian Penal Code for the assault on P. Ws. 4, 6 and 10 by means of a crowbar. Appellant No. 3, Swadhin Jena has been convicted under Sections 148, and 325 read with Section 149, Indian Penal Code for causing injury to P.W. 6 by means of a lathi. Appellant No. 4 Sudarsan Jena has been convicted under Sections 148 and 325 read with Section 149, Indian Penal Code for causing assault on P.W. 10. Appellant No. 6, Giridhari Biswal has been convicted under Sections 148 and 325 read with Section 149, Indian Penal Code for the injury caused to P.W. 6 by means of a lathi. Appellant Nos. 5, 7, 8, 9, 10, and 11, namely Daitary Biswal, Sridhar Biswal, Purna Chandra Biswal, Dhaneswar Pradhan, Bula Pradhan and Tula Pradhan have been convicted u/s 148, Indian Penal Code for being the members of an unlawful assembly. 5. In all, 14 witnesses were examined on behalf of the prosecution. The prosecution mainly relied upon the evidence of the injured, who were the relations of the deceased and they have been examined as P. Ws. 1, 2, 4, 6 and 10. P. Ws. 5 and 7 are said to be independent witnesses who claimed to have seen the incident. P. Ws. 3, 8 and 9 are said to be the witnesses to the seizure and inquest. P.W. 11 was the Medical Officer who conducted autopsy over the dead body of Achhaba Jena. 1, 2, 4, 6 and 10. P. Ws. 5 and 7 are said to be independent witnesses who claimed to have seen the incident. P. Ws. 3, 8 and 9 are said to be the witnesses to the seizure and inquest. P.W. 11 was the Medical Officer who conducted autopsy over the dead body of Achhaba Jena. P.W. 12 was the Medical Officer who had examined the injured P. Ws. 1, 4, 6 and 10. P.W. 13 was another Medical Officer who had examined P.W. 6 and in his opinion P.W. 6 had received combined fractures. P.W. 14 was the I.O. 6. P.W. 1 Tapoi Jena, who is the widow of the deceased, had claimed that the Appellants in a body went to the coconut garden being armed with different lethal weapons for the purpose of plucking coconuts. No sooner did they reach the garden than her daughter Bharati came and reported that the Appellants had gone to the coconut garden which was situated on the western side of the village at a distance of 150 cubits away from her house. While her husband attempted to go to the coconut garden, she prevented him from doing so on the apprehension that the Appellants might kill him as they were inimically disposed towards him. Notwithstanding the persuation of P.W. 1, Achhaba proceeded towards the coconut garden and she followed him at a distance of 5 cubits. While they reached near the house of Iswar Sukari, the Appellants Swadhin and Sudarsan immediately emerged from "Chahali Ghar" situated to the east of their house by raising an out-cry "BAPA GALARE" Swadhin was holding a frying stick whereas Sudarsan was holding a bamboo splint. She also noticed that the Appellants Nabakishore and Chhaila were armed with crowbars, Giridhari ' Giria and Daitary with lathi, Siria with a Bhali, Punia ' Purna and Dhaneswar with lathis and Tula and Brajeswar with Bhalis. All the Appellants surrounded her husband and indiscriminately attacked him. At the beginning, Appellant Chhaila gave a blow with a crowbar on the head of her husband as a result of which he fell down on the ground. Appellant Naba thereafter gave another blow with his crowbar. Swadhin also inflicted injuries on the head and chest of her husband. Appellant Sudarsan assaulted on various parts of the body of her husband by means of a bamboo splint. Appellant Naba thereafter gave another blow with his crowbar. Swadhin also inflicted injuries on the head and chest of her husband. Appellant Sudarsan assaulted on various parts of the body of her husband by means of a bamboo splint. The other Appellants too assaulted her husband with different weapons of offence. At that juncture, she rushed to save her husband. While so doing, Appellant chhaila gave a blow on the right side of her forehead by a crowbar. P.W. 10, Jayee Jena also wanted to separate her husband from further assault, but he was also assaulted by Appellant Nos. 2, 3 and 4, as a result of which he received injuries on his head and body. Sobhamani Jena - P.W. 4, who reached the spot was assaulted too by Appellant Nabakishore by means of a crowbar as a result of which she sustained fracture injury. Radhashyam Jena (P.W. 6) was assaulted by Appellants Nabakishore and Swadhin. In course of assault, P.W. 1 stealthily escaped from the scene of occurrence and arranged a cart to shift her husband to the hospital. When the cart arrived at the spot, some of the Appellants brandished lathis as a result of which the cart-man could not dare to take her injured husband to the hospital. So, She jumped from the cart and proceeded to the Police Station, where she informed the police that her husband had been assaulted and the Appellants had prevented the injured from being shifted to the hospital. As she felt dizzy, she was advised by the police people to immediately proceed to the Sakhigopal hospital. The O.I.C. followed her and recorded her statement in the hospital. In the meantime, the injured Achhaba was shifted to the hospital. The evidence of P.W. 1 had also been substantially corroborated by her daughter P.W. 2. In the same light, P. Ws. 4, 6 and 10 had deposed by dramatically narrating the prosecution story. On a combined reading of the evidence of P. Ws. 1,2, 4, 6 and 10 who were injured in course of incident it has been established that the Appellants had gone to the coconut garden to pluck coconuts. While Achhaba went to prevent them, first he was assaulted by Appellant Nos. 1 and 2 with their crowbars on the head followed by Appellant Nos. 1,2, 4, 6 and 10 who were injured in course of incident it has been established that the Appellants had gone to the coconut garden to pluck coconuts. While Achhaba went to prevent them, first he was assaulted by Appellant Nos. 1 and 2 with their crowbars on the head followed by Appellant Nos. 3 and 4 inflicting injuries by means of frying stick and bamboo split on the chest and back. 7. Mr. Mishra, learned Counsel appearing for the Appellants, has strenuously urged that the oral statement of P.W. 1 narrating the incident to P.W. 14, the O.I.C., Sakhigopal P.S., which ought to have been registered as F.I.R., has been purposely held-up and the I.O. has cooked up a story subsequently. Therefore, the F.I.R. registered as Ext. 1 is hit by Section 162, Code of Criminal Procedure To examine such submission let us go through the statement of P.W. 1 On a brief resume of her evidence it has emerged that immediately after the incident P.W. 1 proceeded to the police station just to inform so that her husband could safely be brought to the hospital for treatment. She was also feeling dizzy on account of injury sustained on her person and was not in a position to fully narrate the prosecution story. P.W. 14 had, therefore, sent P.W. 1 to the hospital for getting treatment first. P.W. 14 also followed he to the hospital and learnt the entire prosecution story from her. He recorded the Statement of P.W. 1 and treated it as F.I.R. In this background, the cryptic statement narrated to P.W. 14 in no circumstances can be regarded as F.I.R. For such position, we rely upon a judgment of the Supreme Court in Dhananjay Chatterjee alias Dhana Vs. State of W.B., wherein it was held: ...The vague and indefinite information given on the telephone which made the investigating agency only to rush to the scene of occurrence could not be treated as a first information report u/s 154 of the Code of Criminal Procedure The unchallenged statement of the investigating officer that he commenced investigation only after recording the statement of the mother of the victim unmistakably shows that it was that statement which alone could be treated as the first information report. The cryptic telephonic message given to the police by the father of the victim was only with the object of informing the police so that it could reach the spot. Therefore, it must be held that the statement of the mother of the victim recorded by the I.O. was rightly treated as F.I.R. by the prosecution and the trial Court. 8. P.W. 11 Dr. Nityananda Parida who had conducted the post mortem examination on the deadbody of Achhaba deposed that the deceased had received the following injuries: (i) One lacerated injury extending over left ear to the vertex measuring 8" x 2" x cranial depth. The said injury was on the left side of the scalp extending from left temporal to parietal region which was not stitched. (ii) One lacerated injury lossely stitched on the right parietal region measuring 4" x 1-1/2" The margin of the said wound was rough. (iii) One bruise on the front and left side of the neck measuring 3" placed transversely x 1" and it was bluish black in colour. (iv) One bruise on the chest (sternal region) 2" x 1" bluish in colour which was mingled with injury No. III There was no ligature mark on the neck. All wounds on the scalp were widely gapped, and on palpation both tables of scalp fractured. On dissection he found the following injuries: (a) On opening the scalp there was hematoma of left temporo-parietal and right parietal region of skull. Fracture of both tables of the left parietal bone, left temporal bone was well evident. (b) On opening the cranium, a large extradural hematoma on temporo-parietal region and rupture of sagital and longitudinal sinus. (c) Dura was torn in left side; when the membrance was opened, subdural hematoma and anterior branch of middle meningeal artries were found raptured. Other membrance was intact. Dura matter was completely separated from the inner surface of the skull. (d) On opening the membrance, the cerebral hemisphere was slightly depressed in left side. The right side was normal. No intra-cerebral haemorrhage was found. (e) Hematoma of the aterior wall of the sternum and neck was evident. Lyrynx and trachea showsed collection of blood which extends from the said injury on the sternum and neck. (f) The temporal muscle of the left side on the craium was covered with hematoma and irregularly torn corresponding to external injury No. 1. No intra-cerebral haemorrhage was found. (e) Hematoma of the aterior wall of the sternum and neck was evident. Lyrynx and trachea showsed collection of blood which extends from the said injury on the sternum and neck. (f) The temporal muscle of the left side on the craium was covered with hematoma and irregularly torn corresponding to external injury No. 1. The left stronmastered muscle showed contusion corresponding to external injury No. I. Both tables of temporal bone were fractured and depressed corresponding to injury on the scalp. According to P.W. 11 the cause of death was due to haemorrhagic shock resulting out of hypovalemia resulting from severe external and internal haemorrhage from the raptured vessels of the cranium. The injuries on head were possible by a crowbar. 9. P.W. 12, Dr. Radhamohan Nanda had examined Jayee Jena (P.W. 10) and noticed one lacerated injury, 1" x 0.2" x scalp depth situated over the left side of the scalp, 1" away from midline and 5" above the root of the nose. P.W. 13-Dr. Rabi Narayan Jee who was a Lecturer of Orthopadic Surgery examined P.W. 6-Radhashyam Jena and found the following injuries. x x x We had an X-ray examination of the patient disclosed a communited fracture of the olicralyer vide X-ray plate marked Ext. 15. After the operation again X-ray was taken vide X-ray plate marked Ext. 16. Myself assisted by two P.G. students Dr. R.S. Mohanty and Dr. R.N. Dhal the affected portion was operated and we fixed the bone with tension bend wiring. The patient was discharged from the hospital on 2.11.1992. Ext. 17 is the indoor bed head ticket in two sheets and Ext. 18 is the discharge certificate. On 14.10.1992 when I examined the patient before operation the following wounds were noticed: 1.There was a stitched wound of 3" long on the scalp; and 2.Another stitch wound of 3" long on the scalp; 3.Another stitch wound of 1" long on the posterior aspect of the elbow; 4.There was fracture of right olecraly which was communicated. In my opinion injury Nos. 1 to 3 are simple in nature and injury No. 4 was grievous in nature and the age of the injury was between 24 to 48 hours of my examination. The injury No. 4 might have been caused by a blunt weapon. 10. In my opinion injury Nos. 1 to 3 are simple in nature and injury No. 4 was grievous in nature and the age of the injury was between 24 to 48 hours of my examination. The injury No. 4 might have been caused by a blunt weapon. 10. The I.O. (P.W. 14) in this case had deposed that on 13.10.1992 he had received a detailed report from the hospital which he treated as FIR vide Ext. 1. Immediately thereafter, he came to the hospital and found Achhaba dead. He held inquest over his deadbody. He had also arranged to send the deadbody to Puri Headquarters Hospital for post mortem examination. He seized a crowbar and the wearing apparels of the deceased. He arrested the Appellants Chhaila Jena and Nabakishore Jena. While in police custody, Appellant Nabakishore Jena led him to a 'Chahalighar' and gave recovery of a crowbar. After completion of investigation he placed the charge sheet before the Court. From cross-examination of P.W. 14 it has appeared that the accused Chhaila lodged a report vide P.S. Case No. 111 of 1992 alleging that the deceased Achhaba and Ors. assaulted him and the case ended in final report. From the case diary it is disclosed that Appellants Nabakishore and Chhaila had reached the P.S. with injury after which P.W. 1 reached there. Both the Appellants became unconscious at the P.S. and gained sense after water was sprinkled over their faces and they were referred to Sakhigopal Hospital. The defence had examined the doctor who opined that the Appellant Chhaila received lacerated bleeding injury of size 1" x 1/2" x 1/4" over the forehead of the middle just below the hair line. Such injury can be caused due to hard and blunt weapon. It is also noticed that he received another injury, i.e., bruise of size 2" x 1/4" x 1/2" over right buttock. He also examined Nabakishore Jena who received a lacerated bleeding injury on his forehead obliquely pierced of size "1 1/2 x 1/2 x 1/4". The age of the injury was within six hours from the time of examination. 11. It is true that Each and every injury sustained by the accused does not require to be explained by the prosecution unless it is proved by the defence that such injuries were inflicted in course of the same transaction. The age of the injury was within six hours from the time of examination. 11. It is true that Each and every injury sustained by the accused does not require to be explained by the prosecution unless it is proved by the defence that such injuries were inflicted in course of the same transaction. In this particular case, we noticed that the Appellant Nos. 1 and 2 reached the police station in injured condition before P.W. 1 arrived at the police station. They were also issued with requisitions for treatment at Sakhigopal Hospital. It is disquieting to note that the prosecution was completely silent as regards the injuries sustained by Appellant Nos. 1 and 2. True it is that the said case ended in final report. Notwithstanding the submission of the final report, the duty of explaining such injuries cast on the prosecution cannot be avoided. While determining the truth or otherwise of the prosecution story, it is gathered that the substratum of the prosecution version has not been placed in the Court in the manner in which it had happened at the place of incident. The injured and the Appellants belong to the same family. There was a quarrel for the possession of the coconut garden. The Appellants went to the coconut garden for plucking coconuts. At the time of plucking the coconuts the incident had occurred. There has been no evidence that the Appellants had common object to commit murder of Achhaba. As the deceased Achhaba proceeded towards the coconut garden, the Appellants prevented him from going further. Although the prosecution was silent as to how the Appellant Nos. 1 and 2 received such injuries on their person but, as a matter of fact, they had received such injuries and Appellants arraigned the deceased as an accused in the FIR lodged by them. According to the prosecution story, the incident had taken place on the village Danda while the deceased Achhaba was proceeding towards the coconut garden and the Appellants were returning from the said garden. Appellant Nos. 1 and 2 had sustained injuries as deposed by D.W. 1. Though injuries were inflicted at the same time and same place of occurrence, none of the prosecution witnesses had deposed as to how Appellant Nos. 1 and 2 were inflicted with such injuries. Appellant Nos. 1 and 2 had sustained injuries as deposed by D.W. 1. Though injuries were inflicted at the same time and same place of occurrence, none of the prosecution witnesses had deposed as to how Appellant Nos. 1 and 2 were inflicted with such injuries. In this regard, we rely upon the observation of the Supreme Court in Kashi Ram and Ors. v. State of M.P., AIR 2001 SC 2902 , which reads as follows: Could any of the accused persons have been held guilty of any offence for causing hurt with the aid of Section 149, Indian Penal Code ? We have already held that the accused persons had right of private defence of person of accused Prabhu available to them. The right of private defence need not necessarily be exercised for the defence of one's own person, it can be exercised for the defence of the person of another one. So long as an assembly of persons is acting in exercise of the right of private defence, it cannot be an unlawful assembly. An assembly though lawful to begin with may in the course of events become unlawful. So long as the accused persons were acting in exercise of right of private defence, their object was not unlawful and so there was no unlawful assembly but once they exceeded the right, the assembly ceased to be lawful and became an unlawful assembly. They are too only such of the members of the assembly who share the object of doing any thing in excess of the exercise of right of private defence, alone would be liable to be punished for the acts committed in prosecution of the common object or for their individual unlawful acts. The assemblage of the accused persons, five or more in number, cannot wholly be held liable to conviction with the aid of Section 149, Indian Penal Code unless the whole assembly share the common object of doing anything in excess of the exercise of the right of private defence. In the case at hand, the High Court has not arrived at a finding that any of the injuries other than the one inflicted by Ramesh were so inflicted after the members of the complainant party had taken to their heels and yet Ramesh fired at them. In the case at hand, the High Court has not arrived at a finding that any of the injuries other than the one inflicted by Ramesh were so inflicted after the members of the complainant party had taken to their heels and yet Ramesh fired at them. If they had caused any injury before the members of the prosecution party had turned their back and started running away from the scene of occurrence, there was no unlawful assembly and none could have been convicted either u/s 148 or with the aid of Section 149, Indian Penal Code. There is no finding arrived at by the High Court and there is no positive evidence available on record to hold that any accused (other than Ramesh, as to whom we dealing just hereinafter) caused any injury to any one after the right of private defence had ceased to be available. 12. The Appellants No. 5 and 7 to 11 have been acquitted of the charges u/s 307, 325 and 149, Indian Penal Code and instead have been convicted u/s 148, Indian Penal Code. The State has not challenged their acquittal. Although on a resume of the evidence of P.W. 1 it has appeared that all the Appellants had assaulted the deceased, but the learned Sessions Judge after careful evaluation of the evidence, determining the responsibility of the Appellant Nos. 5 and 7 to 11, held them guilty u/s 148, Indian Penal Code. So far as Appellant Nos. 3 and 4, namely Swadhin Jena and Sudarsan Jena are concerned, it is found that they inflicted injuries by a frying stick and bamboo splint. Both the injuries caused to the deceased were minor in nature and in no circumstance it can be said that those were responsible for the death of Achhaba. There has been no evidence that these Appellants joined the unlawful assembly with the common object of committing murder of Achhaba. After going through the judgment of the learned Sessions Judge and the reasons given by him, we find those are unreasonable. The presence of P. Ws. 1, 2, 4 and 10 who were injured at the scene of occurrence cannot be doubted. The injuries on these witnesses as well as on the deceased would go to show that quite a number of persons participated in the attack. The presence of P. Ws. 1, 2, 4 and 10 who were injured at the scene of occurrence cannot be doubted. The injuries on these witnesses as well as on the deceased would go to show that quite a number of persons participated in the attack. Therefore, it is necessary to convict the accused persons to whom specific overt act were attributed and to that extent corroborated by the medical evidence. Therefore, there is overwhelming evidence establishing the individual participation of the Appellants. 13. The most important question is whether the common object of the unlawful assembly was to commit the murder. Appellants Nos. 1 and 2 were allegedly armed with crowbars and they dealt blows on the head of the deceased, but the other Appellants Appellant Nos. 3 and 4 were armed with bamboo splint and fryng stick and the injuries caused by them were simple in nature. Thus they could not have been held guilty to have committed murder on the principle of vicarious liability by application of Section 149, Indian Penal Code. They shall be held guilty of the offence punishable u/s 325/149, Indian Penal Code. So far as the injuries said to have been caused by Appellants No. 1 and 2, who too were assaulted by the deceased Achhaba, are concerned in the case of Kashi Ram (supra) which has been quoted above, the Supreme Court had considered the individual liability of the Appellant who directly inflicted the injury on the deceased. Exception-II to Section 300, Indian Penal Code provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he has exercised such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. While deciding the said principle, the Supreme Court held, in the situation it would be appropriate to convict the accused u/s 304, Part-II/149, Indian Penal Code. Therefore, in the facts and circumstances of the present case, the Appellants Chhaila Jena and Nabakishore Jena are held guilty of the offences punishable u/s 304, Part-II, Indian Penal Code. No charge was framed against the Appellant No. 6 Giridhari Biswal for having assaulted P.W. 6. Therefore, in the facts and circumstances of the present case, the Appellants Chhaila Jena and Nabakishore Jena are held guilty of the offences punishable u/s 304, Part-II, Indian Penal Code. No charge was framed against the Appellant No. 6 Giridhari Biswal for having assaulted P.W. 6. But the learned Additional Sessions Judge has convicted him for causing injury on P.W. 6. It is noticed that P.W. 6 had not stated before the I.O. (P.W. 14) at the earliest point of time that the Appellant No. 6, Giridhari had assaulted him as is evident from the statement of P.W. 14. Hence, the conviction recorded against him u/s 148 and 325 read with Section 149, Indian Penal Code is not sustainable. In this regard, we rely upon a judgment of the Supreme Court in Suraj Pal Vs. The State of Uttar Pradesh, wherein it has been held as follows: x x x On the above statement of the course of these proceedings, one important fact which emerges is that there have been no direct and individual charges against the Appellant for the specific offences under Sections 307 and 302, Indian Penal Code. The question that arises is whether, without such direct charges the convictions and sentences for those offences can be maintained. It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is the substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge u/s 149, Indian Penal Code puts the person on notice only of two alleged facts, viz. A charge u/s 149, Indian Penal Code puts the person on notice only of two alleged facts, viz. (1) that the offence was committed by one or other of the members of the unlawful assembly of which is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or not Section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as "constructive liability" - a convenient phrase not used in the Indian Penal Code. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge of the particular offence. Such a case is not covered by Sections 236 and 237, Criminal P.C. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefore. The absence, therefore, of specific charges against the Appellant under Sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life and to death respectively, is a very serious lacuna in the proceedings in so far as it concerns him.... 14. There had been no direct and individual charge against the accused for the specific offences under Sections 307 and 302, Indian Penal Code. The absence of specific charges against the accused under Sections 307 and 302, Indian Penal Code was a very serious lacuna which has materially prejudiced the accused. Hence, the conviction and sentence under Sections 307 and 302, Indian Penal Code could not be maintained against the accused. 15. For the reasons stated above, while summing up our findings we hold the Appellants 1 and 2, namely, Chhaila Jena and Nabakishore Jena guilty to have committed the offence punishable u/s 304, Part-II/149, Indian Penal Code and sentence them to undergo rigorous imprisonment for 7 years. Similarly, the Appellants Nos. 3 and 4 are found guilty to have caused injuries on the deceased Achhaba punishable under Sections 325 and 149, Indian Penal Code and are sentenced to undergo rigorous imprisonment for 2 years. Similarly, the Appellants Nos. 3 and 4 are found guilty to have caused injuries on the deceased Achhaba punishable under Sections 325 and 149, Indian Penal Code and are sentenced to undergo rigorous imprisonment for 2 years. The Appellants Nos. 1 and 4 are also found guilty to have caused injuries on P. Ws. 1, 4, 6 and 10 punishable under Sections 148, 326 and 149, Indian Penal Code and sentenced to undergo rigorous imprisonment for 2 years. The Appellants No. 5 and 7 to 11 are found guilty to be members of the unlawful assembly for committing an offence punishable u/s 148, Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and pay a fine of Rs. 1,000/- (one thousand), in default further rigorous imprisonment for 4 months. The above sentences are directed to run concurrently. 16. In the result, the appeal is allowed in part to the extent indicated above. Final Result : Allowed