PRANAB KUMAR DEB, J. ( 1 ) THE criminal appeal being C. R. A. No. 339 of 2002 preferred by the appellant Lalu Dealer has been heard along with the Criminal appeal No. 354 of 2002 preferred by Tintu Sekh and others against the conviction and sentence passed by the Additional Sessions Judge in connection with sessions Trial No. 5 of December, 2000. ( 2 ) THE incident of murder had taken place more than two decades back. The prosecution case, as narrated in the FIR and unfurled during the course of the trial, was to the effect that on 21/10/82 round about 1 p. m. the appellants and few others armed with deadly weapons like spears, axes, bombs etc. launched an attack on the informant and his associates. Finding their lives at stake, the witnesses scampered through the fields. While chasing the witnesses, the miscreants namely Lalu Dealer and Salim threw bombs at regular interval. A bomb hurled by them struck a person called Tulu. As he fell into the ground, he was encircled by six persons. Finding the injured in helpless condition, the appellant Lalu struck him with a spear. Another accused called Rausan also struck him with deadly weapon. Seeing some residents of the locality crowding around, the miscreants stopped chasing the other witnesses. The informant and the other witnesses saved their lives, hiding in the paddy fields. With the injured succumbing to his injury, the matter was reported to the local police station. ( 3 ) A specific case of murder was instituted by Bharatpur Police Station on receipt of the FIR. Having conducted the inquest over the deadbody, the investigating Officer sent the deadbody to the hospital for post-mortem examination. He also prepared a sketch map with index. Some of the incriminating articles found at the spot were also seized. Those were also sent for chemical examination. Meanwhile, the available witnesses were examined by the Investigating Officer. Finally, on examination of all available witnesses and collection of the post-mortem report, injury report and analyst's report, the chargesheet was submitted. ( 4 ) FOLLOWING the commitment of the case to the Court of Sessions, charges under sections 148 and 302/149 IPC were framed against as many as 42 accused persons. Finally, on examination of all available witnesses and collection of the post-mortem report, injury report and analyst's report, the chargesheet was submitted. ( 4 ) FOLLOWING the commitment of the case to the Court of Sessions, charges under sections 148 and 302/149 IPC were framed against as many as 42 accused persons. The accused persons having pleaded innoncence, the prosecution side examined as many as 16 witnesses including the informant, the three other witnesses of the occurrence, some of the witnesses of the seizure of the articles, the doctor conducting the post-mortem examination and the police officer who conducted the investigation. Relying heavily on the statements of the eyewitnesses and the post-mortem report, the learned Trial Judge convicted the twelve accused persons under sections 148 and 302/149 IPC. They were sentenced to rigorous imprisonment for life and fine of Rs. 4,000/- each, in default, rigorous imprisonment for four months for commission of offence under section 302/149 IPC. They were also sentenced to rigorous imprisonment for two years and fine of Rs. 1,000/- each, in default, rigorous imprisonment for two months for commission of offence under section 148 IPC. ( 5 ) SINCE there was not sufficient material against others, the remaining thirty accused persons were acquitted of both the charges. ( 6 ) AGGRIEVED by the conviction and sentence, the appellant filed two separate appeals-one preferred by the appellant Lalu Dealer and other filed by the rest of the convicts. ( 7 ) APPEARING on behalf of the appellants Tintu Sekh and others in C. R. A. No. 354 of 2002, Mr. Sekhar Basu has submitted that the learned Trial Judge did not take into account the various infirmities that crept into the evidence during the trial. New facts were introduced at the time of trial. What P. W. 7 stated at the time of trial was not in consonance with what was stated in the fir. The so called eye-witnesses P. W. 7 and P. W. 8 claimed to have sustained injury in the incident. No paper, however, could be placed to satisfy the Court that they had been hospitalized for treatment. ( 8 ) COMMENTING on the possibility of the alleged eye-witnesses witnessing the incident from close, Mr. Basu contends that it was not possible for P. W. 7 to see the incident from a long distance. No paper, however, could be placed to satisfy the Court that they had been hospitalized for treatment. ( 8 ) COMMENTING on the possibility of the alleged eye-witnesses witnessing the incident from close, Mr. Basu contends that it was not possible for P. W. 7 to see the incident from a long distance. Since he was running ahead at the time of fleeing, it was not possible for him to look back to see what had been going on behind his back. It was not possible for P. W. 8 to see the incident either, as he had acknowledged in cross-examination that he had seen the incident for a second or two. Similarly, since P. W. 9 was in the roof of the house, it was not possible for him to see the incident from a distance. ( 9 ) THE statement of P. W. 12, it is contended, cannot be accepted either. Had he been present at the place of occurrence, the inmates of the locality would have noticed him. No other witness ever spoke of his presence at the place of occurrence. The aforesaid witness mentioned about the witnesses running side by side, which was contrary to what the other witnesses had stated during the trial. His narration of the incident further strengthens the conviction that he was not at all present at the place of occurrence. ( 10 ) MR. Basu argues that there was no point in entangling of the accused persons with the aid of provision of section 149 IPC. Mr. Basu contends that persons having no role to play cannot be entangled simply because of the inclusions of their names in the FIR. What was their role was not clarified during the trial. The witnesses P. W. 2 and P. W. 3 simply mentioned about the chase of Tulu, Khunnu Master and Abdullah. The witnesses did not elaborate it further. Furthermore, the FIR was absolutely silent about the role of Tintu, robu, Serun, Motor, Abu Siddiki and Harai. They were later implicated. Had they really been involved in the incident, their names ought to have been at least mentioned in the written complaint. There being disjointed and incoherent evidence against the appellants, the conviction and sentence, as urged by Mr. Basu, were totally uncalled for. Referring to the motive behind the murder, mr. They were later implicated. Had they really been involved in the incident, their names ought to have been at least mentioned in the written complaint. There being disjointed and incoherent evidence against the appellants, the conviction and sentence, as urged by Mr. Basu, were totally uncalled for. Referring to the motive behind the murder, mr. Basu has submitted that what sparked off the troubled was not divulged by the prosecution witnesses. Mr. Basu submits that it is not believable that all on a sudden a group of people started chasing few persons. The story as presented by the prosecution cannot be accepted as true, as submitted by mr. Basu. ( 11 ) APPEARING on behalf of the appellant Lalu Dealer in C. R. A. No. 339 of 2002, Mr. Mukherjee has submitted that there should not be any conviction and sentence on disjointed and scrappy evidence. It is argued that the Trial court convicted the appellant without noticing the inherent infirmities in the statements. It is contended that one of the so called eye-witnesses P. W. 12 did not specifically state that only Lalu Dealer delivered a blow with 'ballam'. What he stated was that Lalu Dealer and eleven other persons struck Abdul Hasib with 'lathi', 'pathtangi' and 'ballam'. The statement of one such witness substantially differed from that of P. W. 7, P. W. 8 and P. W. 9. Singling out the appellant Lalu Dealer was not a prudent act on the part of the Trial Judge, as contended by Mr. Mukherjee. ( 12 ) REGARDING the allegation of commission of rioting and murder by the members of unlawful assembly, Mr. Mukherjee submits that the Trial Court did not accept the version of the prosecution that as many as forty two persons formed an unlawful assembly with deadly weapons and they actually committed the murder to accomplish their common object. The role of the forty two accused persons in the commission of rioting and murder not having been accepted, the same evidence should not have been relied on to convict the appellant Lalu dealer. Some of the witnesses did not make emphatic statements against the appellant Lalu Dealer. P. W. 2 and P. W. 3, who had the occasion to see the incident, did not make any direct allegations the appellant Lalu Delaer. Some of the witnesses did not make emphatic statements against the appellant Lalu Dealer. P. W. 2 and P. W. 3, who had the occasion to see the incident, did not make any direct allegations the appellant Lalu Delaer. There being some doubt as to who actually participated in the commission of crime, the conviction and sentence of the appellant under sections 148 and 302/149 were unwarranted, as argued by Mr. Mukherjee. ( 13 ) MR. Kazi Safiullah, the learned Public Prosecutor, has strongly defended the conviction and sentence against all the appellants. Mr. Safiullah has argued that since the eye-witnesses have given vivid account of the whole incident, there should not be any justification for discarding their evidence. The statements of the eye-witnesses being consistent and coherent, the Trial Judge rightly banked on their statements for arriving at the truth. Never there was any vacillating stand on their part. What they stated during the investigation was reaffirmed during the trial. Furthermore, the narration of the assault as told by the eye-witnesses finds due support from the post-mortem report. In the backdrop of presentation of such overwhelming material before the Court, the Trial Judge had no other option but to convict and sentence the appellants for their direct role in the commission of offence of rioting and murder with common object. ( 14 ) AS indicated in the record, the prosecution side heavily relied on the direct evidence to substantiate the charge under sections 148 and 302/149 IPC p. W. 7, P. W. 8, P. W. 9 and P. W. 12 were cited as eye-witnesses of the occurrence. They were said to be present at the spot right from its beginning till its end. The incident as witnessed by them was narrated by them in detail. The Trial court placed much reliance on their detailed narration of the incident. As claimed by P. W. 7 Golam Ahammed, the appellants namely Lalu Dealer, Rausan sekh, Salim Sekh, Ibrahim Sekh, Abu Siddiki, Motor Sekh, Mantu Sekh and many other chased him and his associates on finding them near the Talsouri tank. Frightened by their aggressive outlook, the witnesses started fleeing towards the field. He was followed by Tulu @ Abul Hasib and Abu Taher. While fleeing, they stared back. The witnesses noticed Lalu Dealer and Salim Sekh hurling bombs towards them. Frightened by their aggressive outlook, the witnesses started fleeing towards the field. He was followed by Tulu @ Abul Hasib and Abu Taher. While fleeing, they stared back. The witnesses noticed Lalu Dealer and Salim Sekh hurling bombs towards them. One such bomb struck Hasib, with the result he fell down on ground in the field of Abu Bakkar. The injured was then encircled by the appellants Lalu Dealer, Salim Sekh, Rausan Sekh, Sukchand Sekh, ibrahim Sekh and Mantu Sekh. As the injured lay precariously on the field surrounded by some of the appellants, the accused Lalu Dealer struck him with a 'pathtangi'. The other accused persons namely Motor, Serun, Robu, Harai and Abu Siddiki also assaulted him with 'lathi', 'henso' and 'ballam'. ( 15 ) AS told by P. W. 8 Abu Taher, Lalu Dealer, Rausan, Salim Dafadar, Robu sekh, Motor Sekh, Sukchand Sekh, Ibrahim Sekh, Abu Siddiki, Mantu Sekh and Harai proceeded towards them in a belligerent mood, uttering threatening words. Seeing the miscreants, the witnesses started fleeing towards the southern side. He was followed by Khannu Master and Abdul Hasib. They escaped through the paddy field. While fleeing, they looked back from time to time. As the witness was on the move, he saw accused Lalu Dealer and Salim Dafadar hurling bombs towards Abdul Hasib. The witness stated that Abdul Hasib collapsed on the ground on being struck with the bomb. The injured was encircled by Lalu Dealer, Salim Dafadar, Rausan, Sukchand, Ibrahim Sekh and Mantu. Lalu Dealer and Rausan went a little further. While Lalu struck Abdul Hasib with a spear, Rausan delivered a blow on him with a 'pathtangi'. The witnesses also alleged that Serun, Robu, Motor, Abu Siddiki, Harai and Sukchand also assaulted Abdul Hasib. ( 16 ) ANOTHER witness who came to the forefront during the trial was P. W. 9 golam Kibria. As told by the witness, accused Lalu Dealer, Salim Dafadar, robu Sekh, Rausan Sekh, Ibrahim Sekh, Mantu Sekh and Harai Sekh armed with 'lathi', 'pathtangi' and 'ballam' chased them. He testified that one of the persons fleeing away from the spot fell down into the ground after the blast. The unfortunate person was encircled by ten to twelve persons, as stated by him. After a while he saw some of the accused persons carrying the deadbody of Abdul Hasib. He testified that one of the persons fleeing away from the spot fell down into the ground after the blast. The unfortunate person was encircled by ten to twelve persons, as stated by him. After a while he saw some of the accused persons carrying the deadbody of Abdul Hasib. ( 17 ) ANOTHER witness on whom the prosecution relied on much was P. W. 12 rejaul Haque. He was at the spot right from its beginning. The witness testified that on being chased by the accused persons, they started fleeing out of fear. While they were doing so, they heard the explosion of bomb. The witness found lalu Dealer, Salim Dafadar, Sukchand, Motor, Robu, Serun, Tintu, Rausan, ibrahim, Abu Siddiki, Mantu, Harai and many others assaulting Abdul Hasib with 'lathi', 'pathtangi' and 'ballam' after encircling him. The narration of the incident as told by P. W. 7, P. W. 8, P. W. 9 and P. W. 12 is more or less uniform and consistent. There is hardly any deviation from what was stated earlier. Their narration of the incident also substantially tallies with what has been stated in the FIR. There is nothing on record to show that they were out to settle old score against the appellants. Whether P. W. 7 and P. W. 8 sustained injuries or not was not the crucial question in the trial. Non-production of their medical reports cannot, as such, be the ground for entertaining the idea that they were not present at the spot. As indicated, P. W. 7, P. W. 8, P. W. 9 and P. W. 12 were also targeted. They escaped through the paddy fields and the 'ails'. While they succeeded in scampering off, their associate. Tulu could not do so. Unfortunately, he was struck with the bombs hurled at them. Since all the witnesses and the victim were following each other, they had the occasion to see how the incident occurred. It was quite possible for them to see the incident that happened just near them. The role of some of the appellants is clearly discernible from their statements. ( 18 ) MR. Mukherjee representing the appellant Lalu Dealer has submitted that the Trial Court did not at all consider the plea of alibi taken by the appellant. Mr. It was quite possible for them to see the incident that happened just near them. The role of some of the appellants is clearly discernible from their statements. ( 18 ) MR. Mukherjee representing the appellant Lalu Dealer has submitted that the Trial Court did not at all consider the plea of alibi taken by the appellant. Mr. Mukherjee has argued that when two views are possible, the view going in favour of the accused is to be accepted. Total disregard of the evidence of the defence witnesses had vitiated the whole trial, as contended by mr. Mukherjee. Here at this juncture, we would like to observe that there is nothing on record to show that the appellant was admitted in the hospital on the very date of the incident. Alleged admission in the hospital afterwards will thus have no effect. Original admission register not having been produced, the trial Court had every reason to discard the plea of alibi. As observed by the apex Court in Binay Kr. Singh vs. State of Bihar, reported in 1997 SCC (Cri)333, it is basic law that prosecution is to prove that the accused was present at the scene and had participated in the crime. The burden would be lessened by the mere. fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden, it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. Strict proof, however, is required for establishing the plea of alibi. Strict proof, however, is required for establishing the plea of alibi. ( 19 ) IN the instant case, we find overwhelming evidence indicating the presence of the appellant Lalu Dealer at the scene of occurrence. He was not just a mere spectator. The fatal blow with spear was delivered by him. The defence witnesses failed to establish that he stayed elsewhere. The Admission registers of Tenya S. H. C. and Katwa S. D. H. were not produced. From the bare prescription (Ext. C) and Advice (Ext. D) issued by D. W. 6 the factum of the appellant receiving treatment in between 20/12/1982 to 22/12/1982 cannot be established. There is nothing on record to show that the appellant was under the direct treatment of D. W. 9 at Katwa S. D. H. The statements of D. W. 6 and d. W. 9 are far from convincing. Judging all these aspects, the Trial Court rightly disbelieved the plea of the alibi. ( 20 ) THE learned Public Prosecutor representing the State has made strong plea for affirmation of conviction and sentence against the other appellant as well. It is contended that all of them launched a vigorous assault on the victim. There is evidence to the effect that they chased the unfortunate person with deadly weapons in their hands. There is also evidence that they struck him with 'lathi', 'pathtangi', and 'ballam'. Since they actively participated in the commission of crime, all of them should be rightly pulled up for doing an illegal act to fulfil their common object. Mr. Safiullah in this connection has referred to the case of Sunil Kumar and Anr. vs. State of Rajasthan, reported in 2005 scc (Cri)1230, to substantiate his view that where a group of assailants who were members of an unlawful assembly proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for witnesses to describe the actual part played by each one of them and when several persons armed with weapons assault the intended victim, all of them may not take part in the actual assault. Therefore, it was not necessary for the prosecution to establish as to the specific overt act done by each accused. Therefore, it was not necessary for the prosecution to establish as to the specific overt act done by each accused. ( 21 ) WE do accept that overt act of all the accused persons need not be established when an illegal act is done by members of an unlawful assembly in pursuance of their common object. The same principle is applied in common intention. However, there is no denying the fact that there must be consistent, trustworthy and convincing evidence for establishing the two elements i. e. 'common object' - 'common intention'. The names of several persons have been incorporated in the FIR. The witnesses have mentioned about the specific role of Lalu Dealer, Rausan Sekh and Salim Sekh. There were vague statements as to the involvement of other accused persons. The informant in the FIR has mentioned the names of some of the persons who chased the witnesses, whereas the witnesses have mentioned the names of some of the appellants who were alleged to have chased the witnesses with arms. There are also vague statements as to some of the appellants causing hurt by 'lathi', 'pathtangi' and 'ballam'. From the FIR and the statements of the eye-witnesses, the role of Lalu Dealer, rausan Sekh and Salim Sekh has surfaced. It is on record that Lalu Dealer and Salim Sekh hurled bombs at Abdul Hasib. There are consisting statements to the effect that Lalu Dealer and Rausan Sekh struck Abdul Hasib with 'ballam' and 'pathtangi'. They were helped and assisted by several persons achieve their common object. Who were the other associates who took part in the commission of murder and rioting cannot be precisely ascertained from rather vague statements. In view of such position, the other appellants, save and accept lalu, Rausan Sekh and Salim Sekh, would be entitled to the benefit of doubt. ( 22 ) IN the result, the C. R. A. No. 339 of 2002 preferred by Lalu Dealer is dismissed by affirming the conviction and sentence against him and C. R. A. No. 354 of 2002 is allowed in part. While confirming the conviction and sentence of Rausan Sekh and Salim Sekh in C. R. A. No. 354 of 2002, we do hereby set aside the conviction and sentence against other appellants. ( 23 ) SEND the LCR to the Trial Court with a copy of the judgment for information. While confirming the conviction and sentence of Rausan Sekh and Salim Sekh in C. R. A. No. 354 of 2002, we do hereby set aside the conviction and sentence against other appellants. ( 23 ) SEND the LCR to the Trial Court with a copy of the judgment for information. ( 24 ) LET another copy of the judgment be sent down to the Superintendent of jail/correctional Home where the appellants are detained with the direction to release Tintu Sekh, Serun Sekh, Robu Sekh, Motor Sekh, Sukchand Sekh, ibrahim Sekh, Abu Siddiki Sekh and Harai Sekh @ Samsuddin Sekh forthwith if they are not detained with any other case. ( 25 ) LALU Dealer @ Moniruddin Ahammed, Rausan Sekh and Salim Sekh are to serve out the sentence. CRA No. 339 / 02 dismissed. CRA No. 354 / 02 allowed in part.