B. P. DAS, J. ( 1 ) THIS Criminal Appeal is directed against an order of the Sessions judge, Keonjhar in S. T. No. 102 of 1992 convicting the appellants for the offence under Sections 148, 302/149 and 323/149, indian Penal Code (in short the "i. P. C. ") and sentencing all of them to undergo R. I. for life under Sections 302/149,1. P. C. Learned against order of S. P. Acharya, Sessions judge, Keonjhar, D/- 14-2-1995. Sessions Judge has not passed any separate sentence for conviction under Sections 148 and 323/149, I. P. C. ( 2 ) THE brief facts as per the F. I. R. are that on 23-3-1992 at about 9 a. m. PW 1 namely, Sankhali Barik lodged an F. I. . R. before the O. I. C. , Joda Police Station disclosing therein that on the date of occurrence at about 8 a. m. while he was coming from his village Bamebari, on the way he saw his uncle's son Umakanta Barik lying dead in an open field belonging to one Pitabasa mahakud and there were several cut injuries on the head and face of deceased umakanta. He also found his uncle biswanath laying dead in a pool of blood at a little distance from the place where deceased Umakanta Barik was lying having sustained injuries on different parts of his body including head. At that time the wife and daughters of his uncle were sitting and crying near the dead bodies. He came to know that on the date of occurrence at about 7. 30 a. m. Dhaneswar Mahakud, Ganesh mahakud, Dasaratha Mahakud and Kamala mahakud of his village were digging pits in order to fix poles on the road by the side of the land of the deceased persons for construction of a house. While his uncle deceased Biswanath Barik, Kaluru Barik and brother Umakanta Barik (Biswanath's sons)objected to the said act of the accused persons the latter assaulted his uncle Biswanath and his son Umakanta by means of crow-bar and axes (Hudia), resulting instantaneous death of Umakanata Barik. Due to assault by the accused persons Biswanath barik also succumbed. The accused persons also attempted to kill Kaluru Barik and had caused several Injuries on his person. Due to assault by the accused persons Biswanath barik also succumbed. The accused persons also attempted to kill Kaluru Barik and had caused several Injuries on his person. On getting oral information the I. O. , PW 10 registered a case and proceeded with investigation, which culminated in filing charge sheet against the accused persons. ( 3 ) THE plea of the accused was one of complete denial. Accused Kamalakanta Mahakud, in his statement under Section 313, Criminal Procedure Code (in short, the "cr. P. C. ") stated that while he was engaged in digging pits to fix poles on his land, injured PW 7 being armed with deadly weapon attacked him for which accused Kamala in order to save his life whirled an axe, which he was holding, ultimately resulting in the injuries and death of the deceased persons and injuries on PW7. Accused Kamala has taken a plea of right of private defence of person and property. The other accused persons have totally denied the charge levelled against them and have stated In their statements recorded under Section 313, Cr. P. C. that they were not present at the spot at the time of occurrence. ( 4 ) THE prosecution has examined eleven witnesses in order to bring home the charges under Sections 148, 302/149 and 323/149, i. P. C. Accused persons have also examined three defence witnesses. ( 5 ) LEARNED Sessions Judge after evaluating the evidence on record, came to the conclusion that the death of the deceased persons was homicidal in nature, the authors of which were the accused persons. The plea of defence was discarded as not believable. The learned Sessions Judge ultimately held that the prosecution had proved its case beyond all reasonable doubts. ( 6 ) MR. D. P. Dhal, learned counsel for the appellants assailed the impugned judgment before us on various grounds. According to him the prosecution has not come forward with a true story and the trial Court fell into an error by disbelieving the plea of appellant No. 1 that he was working as an Attendant in the Live Stock Aid Centre, basantapur under Jumpura Veterinary Dispensary at the time of the alleged occurrence. This plea of alibi of appellant No. 1 was confirmed by the Asstt. Surgeon Dr. Lingaraj Sahoo, DW 1. So far as appellant No. 4 is concerned, according to Mr. This plea of alibi of appellant No. 1 was confirmed by the Asstt. Surgeon Dr. Lingaraj Sahoo, DW 1. So far as appellant No. 4 is concerned, according to Mr. Dhal, there is nothing on record to discard his plea of alibi, who was a student of + 3 1st year Arts in Remuli College. At the time of occurrence he stated to have been in the house of a Lecturer of the said Remuli College, who was examined as DW2. The further case of the appellants that pw 5 the alleged eye-witness to the occurrence, has admitted in paragraph 6 of his deposition that by the time the deceased persons and PW 7 reached the spot, accused ganesh Mahakud was bringing poles by means of a bullock cart; accused Dhanu was digging pit and accused Kamala Mahakud was also digging pit. According to the appellants this witness developed his evidence in chief that all the accused persons assaulted the deceased persons with deadly weapons only to bring all the accused persons within the ambit of Section 149, I. P. C. According to the appellants there was no, occasion on the part of accused-appellants 2, 3 and 4 to assault the deceased persons or cause hurt to other PWs. So far as eyewitnesses PW 7 is concerned, he was injured during the course of occurrence. According to the appellants, PW 7 tried to develop the ease to implicate all the appellants, by stating that Dhanu Mahakud appellant No. 2 and Kamala Mahakud, appellant No. 5 were, digging pits on their land when appellant no. 1 Pitabash Mahakud came to the spot on a cycle being armed with a lathi, appellant No. 4, Dasarath Mahakud was bringing poles for fixing the same in the pits dug by appellant Nos. 2 and 5. He has stated that appellant Nos. 2, 3 and 6 were also bringing poles to fix the same in the pits. The tenor of his statement, according to Mr. Dhal, learned counsel for the appellants shows that he had implicated appellants 2, 3 and 5 in material particulars. But subsequently he tried to develop the case to implicate other appellants. He has stated that appellant Nos. 2, 3 and 6 were also bringing poles to fix the same in the pits. The tenor of his statement, according to Mr. Dhal, learned counsel for the appellants shows that he had implicated appellants 2, 3 and 5 in material particulars. But subsequently he tried to develop the case to implicate other appellants. As per the learned counsel for the appellant, PW 10 who was the Investigating Officer, had stated in his statement that PW 7 had not stated before him that accused Kamala gave a stroke by means of axe on the right side face of his deceased brother and had also not stated that accused Dhanu dealt a piercing blow on the head of deceased Biswanath. Further PW 7 has not stated that all the accused persons assaulted the deceased persons by means of axe. According to PW 10, PW 7 has not stated before him that he was assaulted by all the accused persons. Taking the statements of PWs 5 and 7, Mr. Dhal submitted that on a cumulative assessment of the evidence of the aforesaid eye-witnesses, it would reveal that the purpose of the presence of the appellants at the spot was to construct a shop-room. None of these witnesses have whispered a single word that the appellants were armed with knife, sword, bhujali or any other lethal weapon except crow bars and axe, which were required in course of construction of thatched house. He submitted that under Section 149,1. P. C. the liability of the other persons for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in furtherance of the common object. According to him, law is well-settled that such knowledge may reasonably be colleted from the nature of the assembly arms and behaviour at or before the scene of occurrence. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. According to him, law is well-settled that such knowledge may reasonably be colleted from the nature of the assembly arms and behaviour at or before the scene of occurrence. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise. ( 7 ) IN this regard counsel for the appellants relied upon a decision of the Supreme court, reported in AIR 1954 SC 695 ; (1954 Cri LJ 1746) (Gajanand v. State of Uttar Pradesh) and drew our attention to several decisions of the Supreme Court as well as this Court viz. Vol. 72 (1991) 72 Cut LT 895 (Judhisthir Pradhan v. State) and AIR 1976 sc 2566 : (1976 Cri LJ 1987 (Musakhan v. State of Maharashtra ). : ( 8 ) RELYING on the aforesaid decisions, learned counsel for the appellants vehemently argued that mere presence in an unlawful assembly cannot make a person liable unless there was a common object that he was actuated by a common object; and that object was one of those set out in Section 149, IPC. Common object has to be definitely found and not by surmises or conjectures. According to the learned counsel for the appellants there had been a consistent effort by the prosecution to rope in all the accused persons and from the evidence it would be seen that appellants No. 1 and 6 were not at all present at the place of occurrence and out of the remaining appellants the name of appellant No. 4 was also not there in the initial statements of the eyewitnesses recorded under Section 161 of the Cr. P. C. ( 9 ) ONCE it is found that appellant Nos. 1 and 6 were not present at the place of occurrence, question arises whether the remaining accused persons can be held liable in aid of Section 149, IPC. P. C. ( 9 ) ONCE it is found that appellant Nos. 1 and 6 were not present at the place of occurrence, question arises whether the remaining accused persons can be held liable in aid of Section 149, IPC. In this regard learned counsel for the appellants relies on a decision of the Supreme Court, reported in AIR 1987 SC 826 : 1987 Cri LJ 706) (Amar Singh v. State of Punjab) wherein it is held that there can be no conviction under Sec tion 148 or Section 149 as the first condition to be fulfilled in designating an assembly, an "unlawful as assembly" Is that such assembly must be of five or more persons, as required under Section 141 of the IPC. When the persoris will not be liable under section 149, IPC,' their individual roles in assaulting the deceased will be taken into consideration and they will be held liable for their individual acts. ( 10 ) MR. Dhal, learned counsel for the appellants submits that P. W. 4, Dr. Bibhuti bhusan Mohanty, who conducted autopsy of the deadbody of Biswanath Barik has not whispered in the post-mortem report, Ext. 9, to the effect that the injuries inflicted on the deceased were fatal. Similarly P. W. 6, who had conducted autopsy of the deadbody of Umakanta Barik has observed that the injuries caused were sufficient in ordinary course of nature to cause the death and the same was homicidal in nature, but he has not opined but of lacerated injuries found on the deadbody which injury was fatal. ( 11 ) THE sum and substance of the submission of the learned counsel for the appellants is that considering the statements of P. Ws. 5 and 7 in that light, it appears that they were not confident which of the accused persons assaulted Umakanta Barik and how many strokes had been given to him by which accused and with which weapon. According to him, on comparison of the weapons used and the injuries received, it would be seen that the evidence of the witnesses is totally inconsistent with the medical evidence and that too, according to appellants, the evidence led by the prosecution is not clear from the very inception and the story was developed by the prosecution from stage to stage to put the innocent appellants under the rigours of law. It is submitted that a lot of contradictions being there in the evidence led by the prosecution, the basic structure of the case has collapsed, by which the appellants are also entitled to acquittal on that account. ( 12 ) HAVING heard the learned counsel for the appellants as well as the State, we are inclined to have a look at the evidence of P. W. 5, who was a most natural witness having his hotel nearby. His statement is also corroborated by P. W. 7, the eye-witness, as well as P. W. 8 Nanda Kishore Dandasena, who speak that four accused persons we're present at the place of occurrence. The evidence of P. W. 8 has not been challenged in any manner and rather finds corrobbration from the evidence of P. W. 1, the informant. P. W. 8 has stated that while he was going to attend call of nature, he found accused persons, namely Dasaratha appellant No. 4, Kamala-appellant No. 5, Dhaneswar-appellant No. 2 and Ganeswar-appellant No. 3 digging pits on the land just by the side of mangaraj Hotel. When he returned after attending call of nature, he found that there was altercation between the accused persons named above in one hand and the members of the prosecution party, namely, deceased Umakanta, deceased Biswanath and Kaluru Barik on the other. He further stated that after proceeding a little distance, he heard shouts and cries. Thereafter, he returned to the spot and found that deceased umakanta and deceased Biswanath lying dead. Nothing was brought out on his cross-examination to dislodge his statement-in-chief. ( 13 ) P. W. 1, who lodged the FIR has also stated that four persons namely, Dhanu mahakud, Ganesh Mahakud, Das Mahakud and Kamala Mahakud were digging pits in order to fix poles on road by the side of his land, for construction of a house. So there is absolutely no scope to doubt the involvement of appellant Nos. 2 to 5. Nothing has been pointed out from the evidence of P. Ws. 5 and 7 to discard their evidence with regard to the involvement of appellant Nos. 2 to 5, which finds corroboration from P. W. 8, post-occurrence witness, the informant P. W. 1 and FIR Ext. 1. So far as appellant Nos. 2 to 5. Nothing has been pointed out from the evidence of P. Ws. 5 and 7 to discard their evidence with regard to the involvement of appellant Nos. 2 to 5, which finds corroboration from P. W. 8, post-occurrence witness, the informant P. W. 1 and FIR Ext. 1. So far as appellant Nos. 1 and 6 are concerned, their implication is belated and as there is reasonable doubt as to their Involvement in the alleged occurrence, it is not safe to hold them guilty. So far as the plea of alibi is concerned, except bare testimony of P. Ws. 1 and 2, there is no other evidence in support of such plea. There is no official record to show that appellant no. 1 was to deliver a Dak in his office. So the evidence of D. W. 1 is not believable. So far as the evidence of D. W. 2 is concerned, he has stated that appellant No. 5 came to him for tuition and he was not present at the time of occurrence. But there is no cogent evidence to establish that it was not possible for appellant No. 5 to be present at the spot at the time of occurrence. In our considered opinion, the evidence of P. Ws. 1 and 2 is of that nature. ( 14 ) LOOKING into the evidence on record and considering the facts and circumstances of the case, we hold appellant Nos. 2 to 5 guilty of commission of homicidal death of deceased Blswanath and Umakanta. Their conviction under Sections 302 and 323, IPC and the sentence of Imprisonment for life passed against them by the Sessions Judge for the offence under Section 302, IPC are confirmed. They are found not guilty of the offences under Sections 148 and 149, IPC. Appellant Nos. 1 and 6 are acquitted of all the charges on benefit of doubt. They be released from custody forthwith if their detention in custody is not required in connection with any other case. The Criminal Appeal is thus partly allowed. SUJIT BARMAN ROY, C. J. : ( 15 ) I agree. Appeal partly allowed. .