Judgment : ( 1 ) THE appellants A1, A3, a2 and A4, in that order, were arrayed before the vth Addl. Sessions Judge, Dumka. In this judgment, they will be referred as Al to A4 in the same order as they were arrayed before the trial Court. Juchhu Rajak, who, according to the prosecution, also participated along with the above accused Al to A4 and died pending trial, will be referred as deceased accused for the sake of convenience. ( 2 ) THE facts of the case are as follows :-The allegation against the accused A1 to a4 and deceased accused Juchhu Rajak is that at about 7. 00 p. m. on 14-10-1984, they committed rioting and that A4 Suraj Rajak was armed with Bhaja and that in furtherance of the common object of the unlawful assembly, Nagendra Ojha was stabbed by a4 Suraj Rajak, leading to his death. The trial Judge, while finding A1 to A3 guilty under Section 1471 P. C. , sentenced each of them to six months rigorous imprisonment and found A4 Suraj Rajak guilty under Section 148 I. P. C. , for which he was sentenced to one year rigorous imprisonment. The trial judge also found A4 Suraj Rajak guilty under Section 302 I. P. C. , for which he was sentenced to imprisonment for life, while the other three accused were convicted under section 302 read with S. 149 I. P. C. and were sentenced to imprisonment for life. The present appeal is against the aforesaid conviction and sentence. ( 3 ) THOUGH an affidavit has been filed on behalf of A4 Suraj Rajak stating that he is dead, no material has been produced before this Court to show that A4 is no more and therefore, we find it difficult to act upon a mere affidavit filed on behalf of A4 and to say that the appeal filed by A4 abates. We are, in the above circumstances, desirous of hearing the appeal filed by all the accused/appellants on merits. ( 4 ) PRAKASH Rajak and Chandu Rajak (Al and A3) are sons of A2 Sukhdeo Rajak who is the son of deceased accused Juchhu Rajak and all the accused were residents of madhuwan Diara in the district of bhagalpur. The deceased Nagendra Ojha was also residing in village Hazipur Diara in the district of Sahibganj along with his father, P. W. 1 Sudama Ojha. The deceased Nagendra Ojha was also residing in village Hazipur Diara in the district of Sahibganj along with his father, P. W. 1 Sudama Ojha. It is the case of the prosecution that P. W. 1 Sudama Ojha was cultivating the land of Arjun Ojha on lease and has raised Kalai crops in the said field. At about 7. 00 p. m. on 14-10-1984, nagendra Ojha went to the field and he saw the deceased accused Juchhu Rajak allowing bullocks to graze the crops raised by his father. The deceased Nagendra Ojha protested, as a result of which wordy quarrel ensued between them. At that time, Al to a4 were also present. The deceased accused juchhu Rajak abetted the other accused to attack the deceased and immediately A4 suraj Rajak stabbed him on the stomach, while A3 Chandu Rajak gave a blow with lathi. On seeing this, P. W. 6 Shatrughan dubey and P. W. 7 Atmanand Tiwary, who were in their respective fields nearby, went to the rescue of the deceased and the accused appellant went away. After the villagers gathered, injured Nagendra Ojha was taken to Sahibganj Mufassil Police Station, where Ext. 1, the fardbeyan, was given by p. W. 1 Sudama Ojha, on the basis of which, f. I. R. Ext. 3/1, was registered. Investigation was taken up by the Investigating Officer and after the inquest was over, the body was sent to the hospital with a requisition for conducting autopsy on the dead body. ( 5 ) ON receipt of the requisition, P. W. 2 dr. Lalit Kumar Sinha conducted autopsy on the dead body of Nagendra Ojha and found a penetrating wound measuring 1" x " x 2" on the left side of abdomen. The doctor found rupture of intestine at two places and also noticed rupture of peritonium and stomach was found to be empty. P. W. 2, the Doctor, issued Ext. 2, the post-mortem certificate, with his opinion that death is on account of shock and hemorrhage due to the above injuries and that the said injury could have been caused by some sharp cutting instrument. ( 6 ) INVESTIGATION continued and later after its completion, final report was filed against the appellants, who, when questioned under section 313, Cr. P. C. , denied all the incriminating circumstances. They did not examine any witness on their side. ( 6 ) INVESTIGATION continued and later after its completion, final report was filed against the appellants, who, when questioned under section 313, Cr. P. C. , denied all the incriminating circumstances. They did not examine any witness on their side. ( 7 ) LEARNED counsel for the appellants, who was appointed as Amicus Curiae, submits that even if the entire facts are taken to be true, there is no material to indicate that there was common object between the accused Al to A4 and deceased accused juchhu Rajak and since the case of the prosecution itself is that the deceased was stabbed by A4 Suraj Rajak during a quarrel, a4 is entitled to the benefit of Exception 4 to Section 300, I. P. C. and other accused have to be acquitted. On the above submission, we have heard Mr. R. R. Mukhopadhaya, learned counsel appearing for the State. ( 8 ) THE Doctor, P. W. 2, was examined to establish the cause of death of Nagendra ojha and in his evidence, the Doctor stated that he conducted autopsy and found injuries which he noted in the post-mortem certificate, Ext. 2. The oral evidence of Dr. Lalit kumar Sinha, who was examined as P. W. 2, and the post-mortem certificate issued by him show that the deceased died on account of homicidal violence. ( 9 ) THE prosecution before the trial Court examined two witnesses as witnesses to the occurrence and they are P. W. 6 Shatrughan dubey and P. W. 7 Atmanand Tiwary and both of them have supported the prosecution. According to them, they were in their respective fields and witnessed the occurrence. They are independent witnesses and there is no reason for them to give false evidence as they had no axis to grind for coming out with such version, on oath, before the Court. On going through their evidence, we are satisfied that their evidence is cogent and convincing and is also supported by medical evidence. We, therefore, accept their evidence and hold that the deceased suffered injuries at the hands of A4 Suraj rajak, who stabbed the deceased on the stomach. ( 10 ) THE final question that is to be decided by us is whether there was common object and the nature of offence committed by the accused. ( 11 ) THE evidence of P. Ws. ( 10 ) THE final question that is to be decided by us is whether there was common object and the nature of offence committed by the accused. ( 11 ) THE evidence of P. Ws. 6 and 7 shows that when the deceased reached the field, the deceased questioned Juchhu Rajak (since dead) for allowing the bullocks to graze the crop raised by his father Sudama Ojha and thereafter a quarrel ensued between the deceased and the deceased accused Juchhu rajak as well as A1 to A4. During the said quarrel, A4 gave one stab on the stomach. Witnesses have also stated that there was not only wordy quarrel but parties were also abusing each other, during which A4 stabbed the deceased on the stomach. It is not the case of the prosecution that the appellants were lying in wait expecting the deceased to come to the scene and, therefore, the meeting of the deceased with the accused was accidental, during which a quarrel ensued and the deceased was inflicted with one stab injury by A4. On the above facts, we find it difficult to hold that there was an unlawful assembly with the common object of causing death of Nagendra Ojha. ( 12 ) IN view of the discussions made above, we acquit Al to A3 under Sections 147 and 148, I. P. C. As we have already held that there was no common object, A1 to A3 cannot also be held guilty under Section 302 read with Section 149, i. P. C. and accordingly they are acquitted under Section 302 read with section 149, I. P. C. and the consequent sentence imposed upon Al to A3 under Section 147, I. P. C. and under section 302 read with Section 149, I. P. C. are also set aside. It is reported that they are on bail. They are discharged from their bail bonds. As regards A4 Suraj Rajak, it is crystal clear that it was he who stabbed the deceased but the said stab was given during a quarrel between the parties. The evidence also shows that the deceased was stabbed without any premeditation in the heat of passion and that A4 did not also take any undue advantage, nor did he act in a cruel manner. The evidence also shows that the deceased was stabbed without any premeditation in the heat of passion and that A4 did not also take any undue advantage, nor did he act in a cruel manner. We, therefore, set aside his conviction under section 148, I. P. C. as well as under Section 302, I. P. C. and instead find him juilty under Section 304, Part I, I. P. C. , for which he is directed to undergo rigorous imprisonment for a period of seven years. It is reported that A4 Suraj Rajak is on bail. His bail bonds are cancelled. The Sessions judge is directed to take steps to commit the A4 Suraj Rajak (appellant No. 4) to prison for serving the remaining part of the sentence, if he has not served the sentence of seven years. With the aforesaid modification in conviction and sentence, this appeal is partlyallowed. Appeal partly allowed. --- *** --- .