Judgment C.K.Prasad and Abhijit Sinha JJ. 1. All the appellants, aggrieved by the judgment and order dated 18th December, 1987 passed by the 1st Additional Sessions Judge, Saharsa in Sessions Case No. 108 of 1980, have preferred this appeal. 2. By the said judgment and order, all the appellants excepting appellant no. 2, Sk. Matin, and appellant no. 8, Sk. Moti, have been held guilty of offence under Sections 147, 447 and 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two years for offence under Sec. 147 of the Indian Penal Code, three months for offence under Sec. 447 of the Indian Penal Code and rigorous imprisonment for life for offence under Section 302/149 of the Indian Penal Code. Appellant No. 2 Sk. Matin has been found guilty of offence under Sections 148, 447 and 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years, three months and life imprisonment respectively. Appellant no. 8 Sk. Moti besides his conviction and sentence under Sections 148 and 447 of the Indian Penal Code like appellant Sk. Matin, in addition has been held guilty of offence under Sec. 324 of the Indian Penal Code and Sec. 302 of the Indian Penal Code simplicitor and sentenced to undergo rigorous imprisonment for two years and life respectively. 3. Prosecution started on the basis of a report given by P.W. 11 Md. Hasim before the Sub-Inspector of Chhatapur Police Station on 12.11.1979 at 2 P.M. According to the informant, a meeting of Anjuman Committee of village Mohanpur was held on 11.11.1979 at about 7 P.M. at the village in which appellants Sk. Hoda, Sk. Azim, accused Sk. Suleman (now deceased) and others were present. It is alleged that Sk. Tasruddin (deceased), the father of the informant Md. Hasim (P.W. 11) was called by appellant Sk. Azim and in the said meeting he and Sk. Suleman were told to pay Rs. 30/- each to the Panches so that they go to Saharsa and look into the papers in regard to the title and possession of land over which they had dispute. Deceased Sk. Tasruddin pleaded his poverty and stated that he is not in a position to pay Rs. 30/- to village Anjuman Committee which caused annoyance to the members of the Anjuman Committee. 4. Deceased Sk. Tasruddin pleaded his poverty and stated that he is not in a position to pay Rs. 30/- to village Anjuman Committee which caused annoyance to the members of the Anjuman Committee. 4. It is further alleged that on 12.11.1979 at about 10 A.M. informant, Md. Hasim, and his father Sk. Tasruddin (deceased) were sitting in the courtyard and at that time Md. Suleman came and started ploughing the Bari (Homestead land) situated east to the house of the informant. At this the informant and Sk. Tasruddin protested in presence of witnesses, namely, P.W. 10 Md. Israil, P.W. 3 Md. Jaffiruddin @ Sk. Jaffir and attempted to dissuade Sk. Suleman from ploughing the Bari. According to the prosecution, on protest made by Sk. Tasruddin, Sk. Suleman asked the accused persons to come (Aa jao re), whereupon appellant Sk. Moti having bow and arrow and appellant Sk. Matin having a bhala and other appellants armed with lathi came there. It has been further alleged that Sk. Suleman ordered for assault, whereupon appellant Sk. Moti shot arrow aiming Sk. Tasruddin which struck his left Panjara. Sustaining the injury Sk. Tasruddin fell down and became unconscious. Informant Md. Hashim then raised alarm and went towards the place of occurrence. Appellant Sk. Moti shot another arrow which struck the informant below the left knee. On the alarm raised by Md. Hashim, P.W. 2 Sk. Jaffiruddin, P.W. 8 Sk. Kari, P.W. 1 Md. Shamru and P.W. 4 Md. Kalim came there and the appellants fled away from the place of occurrence. 5. It was stated that movement of the arrow stuck on the left Panjara (lower area of the chest) caused severe pain to Sk. Tasruddin and hence the wooden portion of the arrow was cut of. Thereafter the informant and the witnesses carried the injured Sk. Tasruddin to Chhatapur Police Station, but he succumbed to the injury on the way. On the basis of the aforesaid information, Chhatapur P.S. case No. 9 of 1979 was registered under Sections 147, 148, 149, 324, 307/34 and 302/34 of the Indian Penal Code and the investigation was entrusted to P.W. 3 Binod Prasad Yadav. 6. After usual investigation, police submitted charge sheet and after the learned Magistrate took cognizance of the offence, the case was committed to the Court of Sessions, where all the appellants excepting appellants Sk.Moti and Sk. 6. After usual investigation, police submitted charge sheet and after the learned Magistrate took cognizance of the offence, the case was committed to the Court of Sessions, where all the appellants excepting appellants Sk.Moti and Sk. Matin were charged for committing the offences punishable under Sections 147 and 447 of the Indian Penal Code and appellants Sk. Moti and Sk. Matin, apart of charge under Section 447 of the Indian Penal Code were also charged for offence under Sec. 148 of the Indian Penal Code. All the appellants, excepting Sk. Moti were charged for causing the death of Sk. Tasaruddin in prosecution of their common object punishable under Sec. 302/149 of the Indian Penal Code, whereas appellant Sk. Matin was charged for causing the death of Tasruddin punishable under Sec. 302 of the Indian Penal Code simplicitor. 7. Appellants denied to have committed any offence and claimed to be tried. 8. Prosecution in support of its case had altogether examined 13 witnesses. Out of whom, P.W. 2 Sk. Jaffiruddin, P.W. 3 Md. Jaffiruddin @ Sk. Jaffir, P.W. 4 Md. Kaiim, P.W. 5 Watoolan, P.W. 10 Md. Israil and P.W. 11 Md. Hasim claim to be the eyewitnesses to the occurrence. P.W. 1 Sk. Samrul and P.W. 7 Sk. Navi Hussain have been examined to corroborate the case of the prosecution. P.W. 9 Dr. H.M. Santhalia is a Medical Officer, who had conducted the postmortem examination on the dead body of deceased Sk. Tasruddin. P.W. 12, Dr. Umeshwar Jha, is another Medical Officer, who had examined injured P.W.11, Md. Hasim, P.W. 13 Binod Prasad Yadav is the Investigating Officer of the case. 9. The case of the appellants is of false implication and denial simplicitor. Although they have not pleaded right of private defence of their property but from the trend of the cross-examination it appears that Sk. Suleman claims to be the owner of the Bari over which the dispute had arisen. In support of their case they have altogether examined four witnesses. 10. The Court below on appreciation of the evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and, accordingly convicted and sentenced the appellants as above. 11. in order to appreciate the case of the prosecution first we will refer to the evidence of such witnesses, who claim to be the eye-witness to the occurrence. 12. 11. in order to appreciate the case of the prosecution first we will refer to the evidence of such witnesses, who claim to be the eye-witness to the occurrence. 12. P.W. 2 Sk. Jaffiruddin happens to be the nephew of the deceased and he is also related to other accused persons. According to him, while he was returning from her sisters place he heard hulla and when he went there he saw that Bari of the deceased was being forcibly ploughed by Sk. Suleman (since deceased) and despite resistance by Sk. Tasruddin, Sk. Suleman did not stop and called other accused persons to come. At this, according to this witness, all the appellants came armed with lathi, excepting appellants Sk. Moti, who was armed with bow and arrow and Sk.Matin with bhala. Sk. Suleman ordered to kill Sk. Tasruddin, whereupon appellant Sk. Moti shot arrow which hit Sk. Tasruddin on his Panjara and sustaining the injury he fell down and became unconscious. Informant raised alarm, whereupon appellant Sk. Moti shot another arrow causing injury on his left leg. In paragraph 22 of the cross- examination he had stated that Sk. Suleman was asserting that it is his land whereas deceased was claiming that the land belonged to him. In paragraph 29 of the cross-examination he had stated that earlier no dispute existed in respect of the Bari. 13. P.W. 3 Md. Jaffiruddin @ Sk. Jafir is another eye-witness to the occurrence and is the neighbour of the deceased. According to him, on hearing hulla he came out from his house and saw accused Sk. Suleman ploughing Bari of Sk. Tasruddin and the deceased and the informant resisting him. Thereafter Sk. Suleman gave call, whereupon all the appellants excepting appellants Sk. Moti and Sk. Matin came armed with lathi, whereas appellant Sk. Moti and Sk. Matin came armed with bow and arrow and bhala respectively. After their arrival Sk. Suleman ordered to kill, whereupon appellant Sk. Moti shot arrow aiming at the deceased which struck on his left Panjara. Sustaining the injury Sk. Tasruddin fell down. Informant Md. Hashim raised alarm, whereupon appellant Sk. Moti shot another arrow causing injury on his left leg. Thereafter the witnesses arrived and the injured was taken to his house in unconscious condition and though water was sprinkled, so that he gain sense but he did not succeed. Thereafter, Sk. Sustaining the injury Sk. Tasruddin fell down. Informant Md. Hashim raised alarm, whereupon appellant Sk. Moti shot another arrow causing injury on his left leg. Thereafter the witnesses arrived and the injured was taken to his house in unconscious condition and though water was sprinkled, so that he gain sense but he did not succeed. Thereafter, Sk. Tasruddin was being taken to the Police Station but he died in the way. He has specifically stated that Bari was in possession of Sk. Tasruddin and the appellants had no concern with that. In the cross-examination he has stated that name of his grand-father was entered in the khatiyan who had sold the same. In paragraph 16 of the cross-examination he had further stated that dispute was going on between Sk. Suleman, the informant and the deceased. 14. P.W. 4 Md. Kalim, similar to P.W. 3 Md. Jaffiruddin had given the details of the occurrence and identified all the appellants, excepting no.6 Sk. Hoda and appellant no. 7 Sk. Azim and, therefore, he was declared hostile by the prosecution. 15. P.W. 5 Watoolan is the wife of the deceased and according to her evidence Sk. Suleman was ploughing her Ban which was objected to by her husband and son Sk. Hashim, whereupon he called the other appellants, who came there armed with lathi excepting appellant Sk. Moti and Sk. Matin who came armed with bow and arrow and bhala. 16. P.W. 10 Md. Israil is another witness, who claims to be the eye-witness to the occurrence. According to him, he alongwith his brother P.W. 2 Jafiruddin had come to her sisters place as she was unwell. On hearing nulla, he went to the Bari of Sk. Tasruddin and saw altercation going on between the deceased and Sk. Suleman. Suleman was ploughing the Bah, which was resisted by deceased Sk. Tasruddin. Thereafter Sk. Suleman called the appellants, whereupon all the appellants came armed with lathi excepting appellant Sk. Moti who was armed with bow and arrow and appellant Sk. Matin with bhala. Sk. Suleman ordered to kill, whereupon appellant Sk. Moti shot arrow at Sk. Tasruddin, which hit on his Panjara. Sustaining the same he fell down and became unconscious. Md. Hashim raised alarm, whereupon appellant Sk. Moti shot another arrow causing injury on his left leg. He has specifically stated in paragraph 3 of his examination-in-chief that Bah belonged to Sk. Sk. Suleman ordered to kill, whereupon appellant Sk. Moti shot arrow at Sk. Tasruddin, which hit on his Panjara. Sustaining the same he fell down and became unconscious. Md. Hashim raised alarm, whereupon appellant Sk. Moti shot another arrow causing injury on his left leg. He has specifically stated in paragraph 3 of his examination-in-chief that Bah belonged to Sk. Tasruddin and he was in cultivating possession thereof. He had also stated that arrow had struck in the body of Sk. Tasruddin and its movement caused severe pain to him and, therefore, same was cut and handed over to the Sub-Inspector of Police at the Police Station. He had also stated that during the course of investigation, house of appellant Sk. Moti was searched and bow was recovered and seized in presence of the witnesses. 17. P.W. 11 Md. Hasim is the son of the deceased and according to his evidence on the date and time of the occurrence while he alongwith his parents and sisters were in the courtyard saw Sk. Suleman ploughing their Ban" which is adjacant east to their courtyard. According to him, he and his father asked him not to plough the Bari. Thereafter Sk. Suleman raised alarm and called the appellants, whereupon all the appellants, excepting appellants Sk. Moti and Sk. Matin, came armed with lathi, whereas Sk. Moti came armed with bow and arrow and Sk. Matin with bhala. Suleman ordered to kill, whereupon appellant Sk. Moti shot arrow on his father, which hit on his left Panjara. Sustaining the injury his father fell down and became unconscious. At this, according to this witness, he raised alarm, whereupon Sk. Moti shot another arrow which caused injury on his left leg. In the meanwhile villagers collected and thereafter all the appellants fled away. According to this witness, he lifted his father, brought him in his house and sprinkled water so that he regains consciousness but failed. Thereafter he was put on a cot and while being taken to the Police Station, the movement of arrow which had stuck in his body caused severe pain and as such, it was cut and handed over to the Sub-Inspector of Police of Chhatapur Police Station. He gave the fard beyan at Chhatapur Police Station and thereafter he was sent to the Hospital by the Sub-Inspector of Police for examination. He gave the fard beyan at Chhatapur Police Station and thereafter he was sent to the Hospital by the Sub-Inspector of Police for examination. He had further stated that they are living in the land since time of his grand-father and used to give rent to Jinat and Asmat. According to him, 25-30 years earlier survey had taken place in his village in which Bari in question has been recorded in the name of his father as basgit. He had also stated that during the consolidation operation basgit parcha was given in the name of his father. In paragraph 13 of the cross-examination he had admitted that Sk. Suleman used to claim the Bah on the basis of a sale deed. In paragraph 18 of the cross-examination, he had admitted that while he and his father was resisting Sk. Suleman from ploughing, no other appellant was present nearby. 18. Now we refer to the evidence of P.W. 1 Md. Samrul and P.W. 7 Sk. Navi Hussain, who although not claiming to be the eye-witnesses to the occurrence but have been examined to corroborate the case of the prosecution. P.W. 1 is Md. Samrul, who happens to be the son-in-law of the deceased Tasruddin, and according to him while he was coming to his Sasural and reached near the house of his father-in-law, he heard about the murder. When he reached near the place of occurrence he saw all the appellants excepting Sk. Moti and Sk. Matin fleeing away from there armed with lathi and appellant Sk. Moti and Sk. Matin with bow and arrow and bhala respectively. According to him, he saw the informant P.W. 11 Md. Hashim as also Tasruddin in injured condition besides the witnesses, namely, P.W. 2 Sk. daffiruddin, P.W. 10 Md. Israil, P.W. 3 Md. Jaffiruddin, P.W. 4 Md. Kalim and P.W. 8 Sk. Kari there. According to him, informant Sk. Hashim disclosed to him that Sk. Suleman was forcibly ploughing the Bari and he alongwith his father had gone there to stop him, whereupon Sk. Suleman called other appellants and appellant Sk. Moti shot arrow causing injury to his father. The deceased died on way to the Hospital. P.W. 7 Sk. Navi Hussain has stated in his evidence that after he came to know that Sk. Tasruddin had sustained arrow-injury, he went to his house and saw informant in injured condition. He also saw Sk. Suleman called other appellants and appellant Sk. Moti shot arrow causing injury to his father. The deceased died on way to the Hospital. P.W. 7 Sk. Navi Hussain has stated in his evidence that after he came to know that Sk. Tasruddin had sustained arrow-injury, he went to his house and saw informant in injured condition. He also saw Sk. Tasruddin lying unconscious on the Verandah of his house with arrow stuck on his Panjara. According to him, informant Md. Hashim disclosed to him that Bari was being ploughed by Sk. Suleman which was objected to by him and his father and on account thereof Sk. Suleman got him killed. He has stated that at the order of Sk. Suleman, the appellant Sk. Moti shot arrow on Sk. Tasruddin causing injury to him. He has also stated that Md. Hashim disclosed the names of other appellants. He had also stated that wooden portion of the arrow was cut as its movement caused severe pain to Sk. Tasruddin and the cut portion was handed over to the Sub-Inspector of Police at the Police Station. He had also stated about the seizure of blood-stained earth from the Verandah of Sk. Tasruddin as also recovery and seizure of bow from the house of appellant Sk. Moti. 19. P.W. 9 Dr. H.M. Santhalia, at the relevant time, was posted as Civil Assistant Surgeon at Sub-Divisional Hospital, Supaul and according to him on 13.11.1979 he conducted postmortem examination on the dead body of Sk. Tasruddin and found following ante-mortem injury on his body : (i) An arrow entered into abdomen in the left hypo-chondrium. Size of wound of entry was 1 1/4" x 1/2" x abdominal cavity tearing the peritoneum 2", outer surface of spleen was lacerated 2 1/2" x 1/4" and the iron part of the arrow found entered in the stomach 1 1/4" x 1/2". He found about 3 1/2 pints of blood and blood clots in the abdominal cavity. 20. The doctor also found the arrow entered in the stomach. He removed the same and sent the same to the Investigating officer. According to him, Sk. Tasruddin died due to shock and haemorrhage caused by the injury found on his person which had occurred within 24 to 36 hours of his examination. 21. P.W. 12 Dr. Umeshwar Jha had examined the informant Md. He removed the same and sent the same to the Investigating officer. According to him, Sk. Tasruddin died due to shock and haemorrhage caused by the injury found on his person which had occurred within 24 to 36 hours of his examination. 21. P.W. 12 Dr. Umeshwar Jha had examined the informant Md. Hasim and found i one incised injury on the front of the left knee of the size of 1" x 1/6" x skin deep. According to him, the injury has been caused by sharp cutting weapon, such as, arrow and its nature was simple. 22. P.W. 13 Binod Prasad Yadav, at the relevant time, was the Officer-lncharge of the Chhatapur Police Station. He has recorded the statement of informant Md. Hasim (P.W. 11) and drew up the formal first information report. He had recorded the statement of the witnesses during the course of investigation, seized and prepared the seizure list of upper portion of the arrow and on inspection found a portion of the Bari ploughed. He also found blood at the darwaja of the house of the deceased and seized the same. During the course of investigation he had also recovered bow from the house of appellant Sk. Moti in presence of the witnesses. After investigation he had submitted the charge sheet. 23. Mrs. Pallavi Mishra, appears on behalf of the appellants, whereas the State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor. 24. While assailing the conviction of the appellants other than appellant Sk. Moti, Mrs. Mishra contends that they cannot be said to be the members of unlawful assembly sharing the common object with that of Sk. Moti and in prosecution thereof caused the death of Sk. Tasruddin. She points out that mere presence of these persons itself shall not make them the members of unlawful assembly. 25. Mr. Prasad, however, contends that according to the prosecution at the call of Sk. Suieman all these appellants came armed with lathi and bhala and appellant Sk. Moti with bow and arrow which clearly show that they were members of unlawful assembly and shared the common object. Once it is so, they come within the mischier or Sec. 149 of the Indian Penal Code, and, as such, have been rightly convicted under Sec. 302/149 of the indian Penal code, contends Mr. Prasad. Moti with bow and arrow which clearly show that they were members of unlawful assembly and shared the common object. Once it is so, they come within the mischier or Sec. 149 of the Indian Penal Code, and, as such, have been rightly convicted under Sec. 302/149 of the indian Penal code, contends Mr. Prasad. In support of the submission he has placed reliance on a judgment of the Supreme Court in the case of Lalji and others vs. State of U.P., AIR 1989 Supreme Court 754 and our attention has been drawn to the following passage from paragraph 9 of the judgment, which reads as follows : "Sec. 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this Section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the Section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object." 26. Another decision on which Mr. Prasad placed reliance is the judgment of the Supreme Court in the case of Chittarmal vs. State of Rajasthan, 2003 (2) PLJR 1 and our attention has been drawn to paragraph 15 of the judgment, which reads as follows : "Applying these principles of the facts of this case, we find no difficulty in convicting the appellants under Section 302 read with Sec. 34 IPC, even though the charge framed was one under Sec. 302 read with Sec. 149 IPC. On the facts proved, it must be held that the appellants came together armed with lethal weapons and simultaneously started the assault on Ram Narain and Bhura, who succumbed to their injuries. When Lai Chand, P.W. 1 woke up, he was also mercilessly assaulted by both of them inflicting as many as 24 injuries. The remaining accused, apart from* the appellants, have been acquitted on a finding that they did not come with the appellants duly armed, they did not share the common object, nor did they take part in the assault on the two deceased or P.W. 1. Thus the charge under Sec. 302 read with Sec. 149 could not stand, the number of participants in the crime being less than five." 27. Having appreciated the rival submissions, we find substance in the submission of Mrs. Mishra. It is well settled that mere presence of the persons in assembly will not itself make them the members of unlawful assembly. It is further well settled that common object of the assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of assembly prior and after the occurrence. Here is the present case, all these appellants are the resident of nearby house. According to the prosecution, at the call of Sk. Suleman, all these appellants went there but excepting appellant Sk. Moti nothing has been attributed to all these appellants so as to infer their participation in action in any form. These appellants being the resident of nearby house, their presence merely as onlookers cannot be ruled out. We are of the opinion that from the evidence on record it cannot be said beyond all reasonable doubt that these appellants were the members of the unlawful assembly and in prosecution of their common object Sk. Tasruddin was done to death. Hence we are of the opinion that they deserve to be given the benefit of doubt and we grant that to them accordingly. 28. While assailing the conviction of Sk. Moti, Mrs. Mishra contends that Sk. Suleman, according to the prosecution, was suffering from tuberculosis and, as such, it was not possible for him to do the manual work and plough the field and, as such, the genesis of occurrence is false. 29. We do not have the slightest hesitation in rejecting this submission of Mrs. Mishra. Moti, Mrs. Mishra contends that Sk. Suleman, according to the prosecution, was suffering from tuberculosis and, as such, it was not possible for him to do the manual work and plough the field and, as such, the genesis of occurrence is false. 29. We do not have the slightest hesitation in rejecting this submission of Mrs. Mishra. There is nothing on record about the physical condition of Sk. Suleman. All the witnesses have consistently deposed that he was ploughing the field which was resisted by the deceased and informant Sk. Hasim. In the face of it the prosecution story that Sk. Suleman was ploughing the field cannot be disbelieved only on the ground that he was suffering from tuberculosis. 30. Mrs. Mishra then submits that all the important witnesses, who claim to be the eye-witnesses to the occurrence, are related witnesses and, as such, their evidence deserve to be rejected. 31. We do not find any substance in this submission of Mrs. Mishra. Merely the fact that the witnesses are related, their evidence cannot be discarded on that ground. It is well settled that their evidence is to be tested with care and caution. It is worth mentioning here that many of the witnesses are related to the appellants also. 32. Mrs. Mishra lastly submits that in fact Sk. Suleman was the owner of the property and in fact the prosecution party attempted to dispossess him and in that the occurrence had taken place. Hence he cannot be held guilty of the offence. 33. True it is that the defence witnesses examined in the case, namely, D.W. 1 Basudeo Singh has produced the sale deed and D.W. 2 Sk. Matin had proved the rent receipt supporting to claim of Sk. Suleman further. D.W. 3 Abdul Hakim had also stated about the execution of sale deed in favour of Md. Suleman and had also proved the said sale deed. Similarly D.W. 4 Md. Yusuf had proved the rent receipt. However from the evidence led on behalf of the prosecution it is clear that the Bari in question belonged to Sk. Tasruddin and he was in possession thereof. None of the defence witnesses have stated that in fact Sk. Suleman was in possession of the Bari in question. P.W. 2 Sk. Jaffiruddin in paragraph 4 has clearly stated that Bari in question was in possession of Tasruddin. Similarly P.W. 3 Md. Tasruddin and he was in possession thereof. None of the defence witnesses have stated that in fact Sk. Suleman was in possession of the Bari in question. P.W. 2 Sk. Jaffiruddin in paragraph 4 has clearly stated that Bari in question was in possession of Tasruddin. Similarly P.W. 3 Md. Jaffiruddin @ Sk. Jaffir in paragraph 5, P.W. 4 Md. Kalim in paragraph 2, P.W. 5 Watoolan in paragraph 1, P.W. 10 Md. Israil in paragraph 1 and P.W. 11 Md. Hasim in paragraph 17 have clearly stated that in fact the Bari in question was in possession of Sk. Tasruddin. In the face of its the plea put forth by the appellants that the Bari was in possession of Sk. Suleman is not fit to be accepted. 34. It is relevant here to state that the weapon of crime is the bow and arrow and from the evidence of P.W. 7 Sk. Navi Hussain, P.W. 10 Md. Israil and P.W. 13 Binod Prasad Yadav, the Investigating Officer, it is clear that the bow was recovered from the house of appellant Sk. Moti. The case of the prosecution so far as appellant Sk. Moti is concerned is also proved by the objective finding of the Investigating Officer who had found copious blood at the veranda of the deceased where he was brought after he sustained injury in the Bari. The Investigating Officer had also found a part of the Bari ploughed which is also in conformity with the case of the prosecution. The arrow stuck on the body of the deceased was removed by the doctor and a portion of that which was cut was given to the Investigating Officer and same were seized and produced as Material Exhibit. 35. The case of the prosecution so far as Sk. Moti is concerned is further corroborated by the evidence of P.W. 1 Md. Samrul and P.W. 7 Sk. Navi Hussain who had reached the place of occurrence immediately thereafter and saw this appellant fleeing away from there and informant disclosing the role attributed to him. P.W. 9 Dr. H.M. Santhalia, who had conducted the postmortem examination on the dead body of the deceased, had found injury which is possible to be caused by arrow and in fact he removed arrow from the body of the deceased. P.W. 9 Dr. H.M. Santhalia, who had conducted the postmortem examination on the dead body of the deceased, had found injury which is possible to be caused by arrow and in fact he removed arrow from the body of the deceased. Thus the evidence of the prosecution witnesses so far as this appellant is concerned is corroborated by the evidence of the doctor conducting the post mortem examination. As we have found that all the appellants except appellant Sk. Moti were not the members of unlawful assembly and further they seem to be only sight-seers, their conviction under Sections 147, 148 and 447 of the Indian Penal Code are also fit to be set aside. 36. Accordingly, this appeal partly succeeds, conviction and sentence of all the appellants excepting appellant Sk. Moti is set aside. They are on bail, they shall be discharged from the liabilities of their respective bail bonds. However conviction and sentence of appellant Sk. Moti is maintained. He is on bail, his bail bonds are cancelled and he is directed to surrender in the Court below and serve out the sentence.