A. K. PARICHHA, J. ( 1 ) THE appellants have filed this appeal challenging the order of conviction under Sections 147, 148, 307/149, IPC recorded against them by the learned Sessions Judge, Phulbani in Sessions Case No. 45 of 1988. ( 2 ) THE appellants who were accused persons in Sessions Case No. 45 of 1988 were charge-sheeted under Sections 147, 148, 307/ 149, IPC on the allegation that forming an unlawful assembly earned with lathis, they carried an attack on Ananta Biswal near Akho-bhonga nala of village Kanakpur on dated 23. 3. 1988 in furtherance of their common object to cause death to the said person. It was alleged that Ananta Biswal was not pulling on well with the appellants and some other villagers and litigations were going on between them and because of such enmity, the appellants had given threat that they would kill ananta. It is alleged that on the date of occurrence, the appellants went in a body armed with lathis and attacked Ananta who was easing himself near the Nala. Appellant Landu Meher first dealt a lathi blow on the head of Ananta and when the latter fell down, the rest appellants indiscriminately dealt lathi blows causing multiple bleeding injuries including fracture on his hand and leg. The wife of ananta, who had followed the appellants apprehending some trouble saw this occurrence and with the help of her sister, asthami took Ananta, who was in unconscious state, to Sub-divisional Hospital, boudh. She also lodged the F. I. R. before o. I. C. , Baunsuni Police Station. The police authorities of Baunsuni Police Station investigated into the case and submitted charge-sheet against the appellants for the offences indicated above. ( 3 ) THE plea of the appellants was one of complete denial. ( 4 ) TO prove the charges, the prosecution examined 7 witnesses. P. W. 1 being the wife of Ananta and informant of the case, P. W. 2 being the injured ananta, P. W. 3 being; the doctor, who examined ananta and submitted the injury report, P. W. 4 being Asthami, who saw the occurrence and helped P. W. J in removing p. W. 2 from the spot, P. Ws. P. W. 1 being the wife of Ananta and informant of the case, P. W. 2 being the injured ananta, P. W. 3 being; the doctor, who examined ananta and submitted the injury report, P. W. 4 being Asthami, who saw the occurrence and helped P. W. J in removing p. W. 2 from the spot, P. Ws. 5 and 6 being the chance witnesses to the occurrence and P. W. 7 being the I. O. Besides the oral evidence of these witnesses, prosecution relied on some documents, namely, injury report given by the doctor, report of P. W. 7, seizure lists regarding seizure of sample earth, bloodstained earth, lathis from the spot and lathis from the possession of the appellants, bhagabat Jhankar, Dambaru Meher, landa Meher. Those documents are exts. l to 7 respectively. The appellants examined one witness and relied on the allegation application of the villagers of kanakpur Ext. A and copy of the telegram of Khedu Sonda addressed to Superintendent of Police, Phulbani Ext. B. Learned sessions Judge, Phulbani after assessing the said evidences came to the conclusion that the appellants formed an unlawful assembly and attacked Ananta biswal with lathis in furtherance of their common object to cause his death, in the process causing simple and grievous injuries to that person. He accordingly convicted all the appellants for the offences indicated above and sentenced each of them to R. I. for one year for the offence under Section 148, 1pc and R. I. for two years for the offence under Section 307/149, ipc. , with direction that the sentences would run concurrently. No separate sentence was passed for the offence under Section 147, I. P. C. The said order of conviction and sentence is under challenge in this appeal. ( 5 ) MR. B. M. Patnaik, learned counsel for the appellants submitted that the alleged eye witnesses P. Ws. 5 and 6 have not supported the prosecution case, and p. W. 4 has also admitted that she did not see the occurrence of assault and as such, no corroboration is available to the statement of P. W. 2 and his wife P. W. 1. He submitted that under such situation, it was not proper on the part of the trial court to rely on the statement of P. Ws. 1 and 2 and record the conviction, particularly when the evidence of P. Ws. He submitted that under such situation, it was not proper on the part of the trial court to rely on the statement of P. Ws. 1 and 2 and record the conviction, particularly when the evidence of P. Ws. 1 and 2 is full of contradictions and previous enmity between the parties is admitted. Mr. Patnaik also argued that the prosecution evidence even if accepted in toto, does not reveal any case under Sections 307/149, ipc and therefore, the conviction of the appellants for that offence is legally unsustainable. ( 6 ) TO support his contention, learned counsel for the appellants relied on the judgments reported in Merambhai punjabhai Khachar and others v. State of gujarat, Mangal Singh and others v. State of Bihar and Narendra Meher v. State of orissa. ( 7 ) MS. C. Kasturi, learned Additional government Advocate appearing on behalf of the State while supporting the impugned judgment stated that the evidence of the victim P. W. 2 is clearly supported by the eyewitnesses, P. Ws. 1 and 4 and medical evidence and therefore, even if P. Ws. 5 and 6 became hostile to the prosecution, there are enough material to establish the charges against the appellants. She further argued that the evidence on record and conduct of the appellants clearly show that they had the common object of causing death of Ananta biswal and as such, their conviction under sections 147, 148. 307/149, IPC is perfectly justified. ( 8 ) P. W. 2 stated that on the date of occurrence at about 7. 00 A. M. when he was answering call of nature near the nala, lie saw a group of persons coming towards him from the village side and recognised the appellants among them. He said that Landa Meher came running and first dealt a lathi blow on his head causing bleeding injury and when he fell down after that lathi blow, the rest appellants dealt latin blows; on his legs, hands and other parts of the body, as a result of which he lost his sense. According to him, when he regained his sense in the hospital, he found that his left hand and legs were crippled due to fracture. According to him, when he regained his sense in the hospital, he found that his left hand and legs were crippled due to fracture. P. W. 1 stated that in the morning of the date of occurrence, her husband P. W. 2 went to the Nala to ease himself and sometime thereafter, she noticed the group of villagers including the appellants going towards the Nala armed with lathis. Since litigation was going on between her husband and some of the appellants, she apprehended danger and followed the villagers. She stated that Landa Meher first dealt a lathi blow on the head of her husband and when P. W. 2 fell down, the rest appellants dealt lathi blows on him causing multiple injuries. She stated that when P. W. 2 became unconscious, the appellants left that place thinking that p. W. 2 is dead and on moving closer she found bleeding injuries on the head and lacerations with fractures on the hands and leg of her husband. According to her with the help of P. W. 4, she gave some water to P. W. 2 and when the police arrived at the spot, she narrated the incident to them and her report was reduced into writing. She also stated that P. W. 2 was hospitalised in the Sub-divisional hospital, Boudh for five months and even after discharge from the hospital, he has remained a cripple and is unable to walk properly. P. W. 4 stated that in the morning of the date of occurrence, when she was there at the Nala to answer the call of nature, she found the appellants dealing lathi blows on P. W. 2. She also specifically stated that Landa Meher first dealt lathi blow on P. W. 2 and then the rest of the appellants dealt lathi blows on hands, leg and other parts of his body. She corroborated the statement of P. W. 1 and told that she brought water and P. W. 1 gave that water to P. W. 2. She also stated that the police arrived at the spot and report was lodged by P. W. 1. P. Ws. 5 and 6 did not support the prosecution case. P. W. 6 stated that he never saw the occurrence. She also stated that the police arrived at the spot and report was lodged by P. W. 1. P. Ws. 5 and 6 did not support the prosecution case. P. W. 6 stated that he never saw the occurrence. P. W. 5 stated that one morning while he was going from the village budhipada to Sahajpal, he found P. W. 2 lying with injuries on his person but he denied any knowledge as to how P. W. 2 sustained those injuries. ( 9 ) THE appellants extensively cross-examined P. Ws. 1, 2 and 4, in order to establish that they are the persons of loose moral and are giving false evidence against the appellants due to enmity. In cross-examination, P. Ws. 1, 2 and 4 admitted that litigations were going on between p. Ws. 1 and 2 on one hand and some of the appellants in other hand, but they categorically maintained that because of such enmity, the appellants carried the combined attack on P. W. I causing multiple injuries to him. This part of their evidence also found support from the statement of P. W. 5, who stated that he found P. W. 2 lying with multiple injuries at the spot. P. W. 3 stated that on examination he found lacerated bleeding injuries on the head, fracture on the left hand and leg and some other injuries on the person of P. W. 2. There was a suggestion by the appellants that the injuries on p. W. 2 were caused by his fall from a tamarind tree, but there was no evidence to support such plea and the appellants themselves did not state so in their statements under Section 313, Cr. P. C. The evidence of the I. O. also belie the plea of the appellants. I. O. , P. W. 7 clearly stated that on reaching the spot soon after the occurrence, he found blood-stains on the ground and three lathis lying near 'the injured, P. W. 2. The seizure lists are there regarding seizure of blood-stained earth, lathi, blood-stained cloth from the spot. So, the learned Sessions Judge, Phulbani rightly discarded the plea of the appellants and held that the P. W. 2 sustained injuries as a result of lathi blows of the appellants. ( 10 ) MR. The seizure lists are there regarding seizure of blood-stained earth, lathi, blood-stained cloth from the spot. So, the learned Sessions Judge, Phulbani rightly discarded the plea of the appellants and held that the P. W. 2 sustained injuries as a result of lathi blows of the appellants. ( 10 ) MR. Patnaik, learned counsel appearing for the appellants argued that the appellants never formed unlawful assembly with the common object of causing death P. W. 2. He pointed out that P. W. 2 named only four appellants as assailants and therefore, Sections 147 and 149, IPC were not attracted. A close reading of the evidence of P. Ws. 1, 2 and 4 would show that the appellants, who were six in number, came together armed with lathis and combinedly attacked P. W. 2. The statement of these witnesses would show that after receiving some blows, P. W. 2 became unconscious. So in that situation it was not expected of P. W. 2 to narrate as to who dealt further blows after he lost his sense. The evidence of P. Ws. 1 and 4 clearly indicate that all the appellants combinedly carried the attack although two of them were less aggressive than the rest. Considering such evidence and the circumstances learned Sessions Judge rightly observed that the appellants shared the common object and that in furtherance of their common object, they attacked p. W. 2. In the above noted background, the ratio laid down in the cases of Merambhai punjabhai Khachar and others v. State of gujarat and Mangal Singh and others (supra)will not be applicable, as the facts of the present case and the said cases are materially different from one another. ( 11 ) MR. Patnaik vehemently argued that the prosecution evidence even if accepted in its entirety, do not reveal any case under Section 307,i. P. C. According to him, if all the prosecution evidence is accepted as true and a worst view is taken, a case under Sections 323/325, ipc can at best be made out. To support his stand, Mr. Patnaik indicated the ratio in the case of Narendra Meherv. State of Orissa (supra), where this Court after considering the nature of injuries on the victim and some surrounding circumstances held that the case under Section 307, IPC is not made out and converted the conviction to one under Section 326, ipc. To support his stand, Mr. Patnaik indicated the ratio in the case of Narendra Meherv. State of Orissa (supra), where this Court after considering the nature of injuries on the victim and some surrounding circumstances held that the case under Section 307, IPC is not made out and converted the conviction to one under Section 326, ipc. In the present case, evidences show that Landu Meher dealt one lathi blow on the head of P. W. 2 causing simple lacerated injury and thereafter, all the appellants dealt lathi blows mostly on the hands and legs and even after P. W. 2 fell down, no blow was given on his head or vital part of the body. From these factors, it appears that even though the appellants had the common object of attacking p. W. 2, they never had the object of causing death to him. ( 12 ) IN view of the above noted factual aspect and the ratio in the case of narendra Meherv. State of Orissa (supra)the conviction under Section 307, I. P. C. is not sustainable against the appellants. The order of conviction and sentence passed by the learned Sessions Judge, phulbani is accordingly modified to one under Sections 148, 325/149, IPC and the sentence is modified to one year R. I. on each count. Sentences are to run concurrently. ( 13 ) WITH the above modification of conviction and sentence, the appeal is disposed of. Appeal disposed of. .