JUDGMENT Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) These appeals have been directed against the judgment and order dated 8th of August, 2007 passed in Sessions Trial No. 155/2006 by the Sessions Judge, Kanker, North Bastar (C.G.), whereby the appellants have been convicted and sentenced in the following manner with a further direction to run the sentences concurrently:- Conviction Sentence u/s 148 IPC R.I. for 2 years u/s 323 read with R.I. for 6 months Section 149 IPC (in four counts) u/s 436 read with R.I. for 10 years and Section 149 IPC fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for 3 months u/s 302 read with Imprisonment for life Section 149 IPC. (2) The facts, briefly stated, are as under:- Complainant Budhiyar Jain (P.W.4) has a shop at Pushwada Chowk in village Bevarti. His residence is also near the shop. Appellants Brijwati Bai and Dev Prasad Nishad had encroached upon the government land which was in front of the house of the complainant. On 2.12.2005, the said encroachment was removed by the Revenue Authorities. The allegations are that on the pretext that the encroachment was removed on the instance of the complainant, on 2.12.2005 at about 8.30 p.m., the appellants, armed with deadly weapons, formed an unlawful assembly, participated in rioting and thereafter in prosecution of the common object of that assembly they assaulted complainant Budhiyar Jain (P.W.4), Ramchandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8) and then they put the shop of the complainant on fire and they also caused death of one Mahavir S/o Sagnu Ram by putting him in fire in the said shop. It is also alleged that at the same time, the appellants put on fire 2 other nearby shops, one belonging to Prakash Sen and the other belonging to Alakhniranjan, which are the subject matters of 2 different Sessions Trial being Sessions Trial No. 42/2006 and 43/2006. On the instance of complainant Budhiyar (P.W.4), a Dehatinalishi to this effect, Ex.-P/36, was recorded and the investigation commenced. The Investigating Officer gave notice (Ex.-P/38) to the Panchas and prepared inquest (Ex.-P/39) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Government K.D. Hospital, Kanker under Ex.-P/32, where the post-mortem examination was conducted by Dr. Mohd. Abdul Naseem (P.W.2), who prepared his report Ex.P/-33. The Investigating Officer gave notice (Ex.-P/38) to the Panchas and prepared inquest (Ex.-P/39) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Government K.D. Hospital, Kanker under Ex.-P/32, where the post-mortem examination was conducted by Dr. Mohd. Abdul Naseem (P.W.2), who prepared his report Ex.P/-33. The Autopsy Surgeon opined that the cause of death was asphyxia due to 100% deep burns all over the body of the deceased and it was homicidal in nature. In further investigation, a Panchnama showing the loss in the shop to the extent of Rs.60,000/- was prepared under Ex.-P/42. 2 Nos. of bicycle, 3 Nos. of C.D. and many other articles (in burn condition) were seized from the place of occurrence under Ex.- P/44. After taking the accused/appellants into custody, their memorandum statements (Ex.-P/1, P/3, P/5, P/7, P/9, P/11, P/13, P/15, P/17 & P/19) were recorded u/s 27 of the Evidence Act and articles like rod, knife, tangia, danda, sword and crow-bar etc. were seized at the instance of the appellants under Ex.-P/2, P/4, P/6, P/8, P/10, P/12, P/14, P/16, P/18 & P/20. The injured witnesses namely Budhiyar Jain (P.W.4), Ramchandra (P.W.6) and Geeta Bai (P.W.8) were sent for their medical examination under Ex.-P/45, P/46 & P/47 and their injury reports Ex.-P/53, P/54 & P/55 respectively were collected. According to their injury reports, they had sustained simple injuries caused by hard and blunt object. A Dehati-Merg intimation was recorded under Ex.-P/48, regular Merg intimation was recorded under Ex.-P/49 and the First Information Report (F.I.R.) was recorded under Ex.- P/37. After completion of usual investigation in this matter as also in the other matters, in all 3 charge- sheets were filed in the Court of Chief Judicial Magistrate, Kanker, who in turn committed the matters to the Court of Sessions Judge, Kanker, where 3 separate trials were conducted. In the present case, the learned Sessions Judge convicted and sentenced the accused/appellants as aforementioned. In other 2 cases also i.e. S.T. No. 42/2006 & S.T. No. 43/2006 the appellants were held guilty and were convicted and sentenced accordingly which are the subject matters of other criminal appeals. (3) In case on hand, the conviction of the appellants is based on the testimonies of 4 eye witnesses namely Budhiyar Jain (P.W.4), Ramchandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8). (4) Mr. V.C. Ottalwar and Mr. (3) In case on hand, the conviction of the appellants is based on the testimonies of 4 eye witnesses namely Budhiyar Jain (P.W.4), Ramchandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8). (4) Mr. V.C. Ottalwar and Mr. Rajeev Shrivastava, learned counsel appearing on behalf of the appellants, argued that the formation of an unlawful assembly and the appellants being the members of the unlawful assembly was not established. It was also not established as to what was the common object of unlawful assembly. They argued that if common object of unlawful assembly was not to put the shop on fire or to commit murder of deceased Mahavir or to give the assaults to the injured persons, and someone on his own, commit the above acts, that would be an act committed on the part of that individual and no one else can be convicted with the aid of Section 149 IPC. They also argued that there was absolutely no evidence to show that who set the shop on fire and who caused the murder of the deceased. Therefore the learned Sessions Judge erred in law in convicting the appellants under the aforementioned Sections of the IPC. Besides the above, they also argued that all the eye witnesses, referred to above, are wholly unreliable and the conviction based on the testimonies of these witnesses cannot be sustained. In fact, from a mob of many persons somebody put the shop on fire without noticing that the deceased was inside the shop, whose body was later recovered after the incident. (5) On the other hand, learned Dy. Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) Firstly, we shall consider whether there was an unlawful assembly and the appellants were the members of the said assembly ? If so, what was the common object of that assembly ? (8) Section 141 IPC defines an unlawful assembly. It provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in section 141. If so, what was the common object of that assembly ? (8) Section 141 IPC defines an unlawful assembly. It provides that an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is one or more of the 5 objects mentioned in section 141. It further provides by an Explanation that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. This makes very clear that an assembly of not less than 5 persons having an unlawful common object which must be of the nature of one of the 5 objects specified in section 141 would primarily constitute an unlawful assembly and an assembly which was not unlawful when it assembled may also subsequently become an unlawful assembly for the purpose of section 149 IPC which provides that every member of the unlawful assembly would be guilty of offence committed in prosecution of common object. The words figured as "common object" in sections 149 and 141 IPC have great significance. It has to be understood in contradistinction with common intention. Therefore, with a view to look into the implications of section 149 IPC, mere presence of a person in an unlawful assembly would do nothing unless there was a common object, he was actuated by that common object and that object was one or more than one of those provided in section 141. Therefore, unless a common object of an unlawful assembly is proved, one cannot be convicted with the aid of section 149 and the common object of an unlawful assembly may be more than one. To ascertain that a person has shared the alleged common object of the unlawful assembly, it shall have to be determined that he was well aware that the assembly, of which, he was one of the members, was to commit or likely to commit the act or the acts provided in section 141. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. The common object may be formed at any stage. A common object formed at a particular stage may be left and a different object may be formed later. To put it differently, if an unlawful assembly was formed for killing `A' which it did or which it did not do, thereafter that assembly also continued by immediately forming another common object of killing `B' and there was evidence to this effect, than it would not be entertained that the initial object of the unlawful assembly was not to kill `B', and for all purposes of Section 149 IPC the assembly at all did not possess the common object of killing `B'. One has to determine all this in the given facts and circumstances of each case, and then, the provisions of section 149 has to be applied for convicting every member of the unlawful assembly, that is what the legislature intended by engrafting the words like "in prosecution of common object" in section 149 IPC. Equally, in the facts and circumstances of each case, where there were sequence of acts committed, one has to determine on evidence that whether the common object of the unlawful assembly existed only upto commission of the first act and thereafter whether the assembly was disbursed or any member of the unlawful assembly or disbursed assembly committed the subsequent act and if it be so whether it would be his own act or it shall be held to be an act committed in furtherance of the common object of the assembly which was unlawful at a particular time. If it is found on evidence that the common object of an unlawful assembly was only to commit a particular act which was committed in the first instance and thereafter any member of the initial unlawful assembly commits a subsequent act which was not in furtherance of the common object, it would certainly be an individual act and not that of assembly and in such a case, no liability can be fastened with the aid of section 149. (9) Before appreciating the evidence, we would like to quote Dehatinalishi (Ex.-P/36), which was lodged by complainant Budhiyar Jain (P.W.4) and which was the first hand information given by him to the police. (9) Before appreciating the evidence, we would like to quote Dehatinalishi (Ex.-P/36), which was lodged by complainant Budhiyar Jain (P.W.4) and which was the first hand information given by him to the police. "nsgkrh izFke lwpuki= Fkkuk dkadsj vi0dz0 0105 /kkjk 147@148@149@436@342@323@307@302 Hkk0n0fo0 Ukke izkFkhZ% cqf/k;kj firk f'kopj.k tSu tkfr dykj mez 45 lky lk0 iqlokM+k pkSd cscjrh Fkkuk dkadsj A fn0 le; ?kVuk 02@12@05 ds 8@15 cts jkf= ?kVuk LFky & iqlokM+k pkSd cscjrh izkFkhZ dh nqdku nwjh ,oa fn'kk 9 fd0eh0 iwoZ fnukad lee lwpuk 02@12@05 ds 21@30 cts LFkku tgka lwpuk nh xbZ & xzke cscjrh Ukke vijk/kh & ,1+ nso izlkn fu"kkn] ,2+ cztyky fu"kkn] ,3+ lwjtyky] ,4+ nsopan] ,5+ `kadj] ,6+ eukst fu"kkn] ,7+ cztorh ckbZ fu"kkn] ,8+ ccyw fu"kkn] ,9+ xtsUnz fu"kkn ,10+ nsoyky o vU; fuoklh iVksn A fooj.k eSa iqlokM+k pkSd cscjrh es jgrk gWaw A esjh pk; uk'rk o lh0Mh dSlsV dh nqdku o iku Bsyk gS] esjs ?kj ds IYkkV ds lkeus `kkldh; Hkwfe ij nsoizlkn fu"kkn o cztorh ckbZ fu"kkn vfrdze.k dj nqdku cuk;s Fks ftls vkt fn0 2@12@05 dks jktLo foHkkx }kjk rksM+QksM+ dj vfrdze.k gVk;k x;k A tks mlh jaft'k o cnys dh Hkkouk dks ysdj vkt fnukad 2@12@05 dks jkf= 8@15 cts ,d jk; gksdj nsoizlkn fu"kkn] nsopUn fu"kkn] cztyky fu"kkn] lwjtyky fu"kkn] nsoyky fu"kkn] nsopUn] `kadj fu"kkn] eukst] xtsUnz fu"kkn] ccyw fu"kkn] c`torh fu"kkn o vU; yksx ykBh] MUMk] lCcy jkM] dqYgkM+h ysdj vk;s vkSj esjh nqdku es rksM+ QksM+ dj ekjihV djus yxs] ml le; nqdku es esjs vykok] iRuh xhrk ckbZ] jkepUn o yM+dk jkds'k Fks egkohj xks.M] bZ'oj xks.M Hkh Fks A eq>s ykBh ls ekjihV fd;s ftLkls ihB es ck;sa rjQ] nkfgus iSj es] ?kqVus es o ck;sa gkFk dh Hkqtk es pksaVs vkbZ gS A jkepUn dks Hkh pksaVss vkbZ gS A ekjihV rksM+ QksM+ ds ckn esjh dSlsV lh- Mh- nqdku es vkx yxk fn;s] eS tku cpkdj nqdku ds Hkhrj Hkkxk tks ckgj ls `kVj can tku ls ekjus dh fu;r ls dj fn;s Fks A esjh iRuh xhrk ,oa yM+dk Hkkxdj viuh tku cpk;s A bl rksM+ QksM+ o vkxtuh ekjihV dh ?kVuk iM+ksl es jgus okys] Hkkoflag xks.M] dUgS;k uk;d] y[ku yky lkgw ns[ks lqus gS A ckn es Qk;j fczxsM o iqfyl igqapus ij vkx cq>kus ij irk pyk ,d vKkr vkneh tydj nqdku vUnj [kre gks x;k gS A ml vkxtuh ?kVuk es esjk djhc 50&60 gtkj :i;s dk uqdlku gqvk gS A fjiksVZ i<+kdj lquk dgs eqrkfcd fy[kk x;k gS A fjiksVZ nsgkrh izFke lwpuk i= ys[k ekSds ij fd;k tkdj izd.k iatc) dj foos0 es fy;k x;k A lgh@& vLi"V gLrk0 lwpukdrkZ 02@12@05" (10) Budhiyar Jain (P.W.4) is the complainant whose C.D. Shop was put on fire. He deposed that "On 02nd of December, 2005, the revenue authorities had removed the encroachment made by the appellants. In the evening, the appellants, armed with lathi, rod and stones came to his shop. They attacked over them. Ramchanra (P.W.6), his wife Geeta Bai (P.W.8), Ramesh (P.W.5), Rakesh, Eeshwar, Surendra and Mahavir were also there. The appellants started assaulting them. He received injury on his left shoulder and right leg. Ramchandra received injury on his head, Geeta Bai (P.W.8) was assaulted by Devlal, Devprasad, Brijwati (appellants herein) and daughter of Brijwati. When he saw this, he sent Ramchand inside the house/shop. By that time Geeta Bai ran away from the scene of occurrence. Thereafter, he went inside his house/shop and shut down the shutters of the house". He further deposed that "The appellants set his C.D.shop on fire. Mahavir had received burn injuries, due to which, he died." In the cross examination, he admitted vide para 5 that it is true to say that after the `marpit' he took his father in law Ramchand inside the house and closed the doors of the house which was opened only after the police arrived at the scene of occurrence. He further admitted that when the incident of fire took place at that time he was also inside his house and he categorically admitted that he could not see that who set the shop on fire. He was also confronted with his police case diary statements (Ex.D-1) on the point of acts committed by the appellants at the time of assault but the fact remains that after the assault given by the assailants, Ramchand (P.W.5) and Budhiyar Jain (P.W.4) both went inside their house which is different than their shop and they shut down the shutters of the house and he was unable to see as to who put his shop on fire and also that the shutter was opened when after the entire incidence, the police party reached there. (11) Ramesh Chand (P.W.5) has turned hostile. He has not supported the version given by Budhiyar Jain (P.W.4) who deposed that Ramesh was also present there and he had witnessed the occurrence. (12) Ramchandra (P.W.6) is the father in law of Budhiyar Jain (P.W.4). He deposed that on 2nd of December, 2005 at about 8 p.m., he was present in the shop of his daughter Geeta Bai. He has not supported the version given by Budhiyar Jain (P.W.4) who deposed that Ramesh was also present there and he had witnessed the occurrence. (12) Ramchandra (P.W.6) is the father in law of Budhiyar Jain (P.W.4). He deposed that on 2nd of December, 2005 at about 8 p.m., he was present in the shop of his daughter Geeta Bai. Rakesh, Budhiyar and 2-3 persons of the village were also there. The appellants attacked on them. They were having knife, Katari, containers of Kerosene oil and Petrol in their hands. After assaulting them, the appellants set on fire the C.D. shop of the complainant. In para-2 he deposed that he knew deceased Mahavir. He was thrown alive in the burning fire. He very specifically deposed that when Mahavir was trying to escape he was caught by Dev Prasad and thereafter all the appellants threw him in the burning fire, due to which, he died. In the cross examination, in para 7, he was confronted with his police case diary statements (Ex.D-3). He deposed that he had stated to the Police that the appellants were carrying petrol and kerosene oil with them. If it is not mentioned in the case diary statements, he cannot tell the reason. He also deposed that he stated to the police that when Mahavir came out of the shop, he was caught by the appellants and thereafter he was thrown in the burning fire by them. If this is not mentioned in the case diary statement, he cannot tell the reasons for this also. He also stated that he had told to the police that Geeta Bai was dragged by the appellants and if the same is also not there, he cannot give the reason. In para 8 of the cross examination, he very categorically admitted that when the incident of fire took place, at that time, he was taken inside the house by his son-in-law Budhiyar Jain and he came out when the police party reached there, therefore, it is true to say that he was inside the shop (house or other shop) at the time of incident of fire. In appreciation, we find that the facts in relation to throwing the deceased in burning fire of the C.D. shop was an omission in the diary statements of this witness and he categorically admitted that after the incident of marpit, he was taken inside a different shop/house and the shutter of the shop was shut down and he came out of the shop when the police party reached there. This shows that he had not seen as to who put the shop to fire and how the deceased died and he is making false allegations against the appellants regarding putting the shop on fire as also throwing the deceased alive in burning fire. We may also note that it was not the case of the prosecution at all that the appellants after putting the C.D. shop on fire, threw Mahavir alive in side the shop in burning fire. On the contrary, it comes that when after the incident the police party reached to the village and started inspecting the spot, a dead body was seen inside the CD shop which was later on identified to be the body of Mahavir. If the theory of throwing Mahavir alive in burning fire of the shop, which was an exaggeration in the evidence of P.W.6 Ram Chandra Jain, is kept out of consideration it would be clear that no body could notice as to how the deceased got fire and how he remained in side the shop when every body has gone out after the attack made by the appellants. (13) Rakesh Nayak (P.W.7) is also an eye witness. He is son of Geeta Bai through her first husband. He deposed that "At about 8 p.m., his mother, father (Budhiyar Jain) and maternal grand father (Ramchandra) were present in his C.D. shop. The appellants came there and assaulted his maternal grand father, mother and father. They also assaulted him. Mahavir was caught by the appellants. The appellants were armed with knife, sword etc. and they had come to assault them. Appellant Brijwati and her daughter had caught her mother and they had assaulted here. He deposed in the examination-in-chief itself that he did not see as to who put the C.D. shop on fire. On the said date, two other shops one belongings to Mr. Sen and other belonging to Mr. Niranjan Tailor were also set on fire. Appellant Brijwati and her daughter had caught her mother and they had assaulted here. He deposed in the examination-in-chief itself that he did not see as to who put the C.D. shop on fire. On the said date, two other shops one belongings to Mr. Sen and other belonging to Mr. Niranjan Tailor were also set on fire. On the next day, he could come to know that Mahavir has died of burn injuries". In the cross examination, he admitted that he was not present at the scene of occurrence when the incident of fire took place. He categorically admitted that he could not see as to who set the fire on shop, but he strongly deposed that appellant Brijlal had assaulted him with danda on his left hand. (14) The other eye-witness is Geeta Bai (P.W.8), wife of Budhiyar. She deposed that "She was present at the time of incident, she was attacked by the appellants. Bablu was carrying a "Katari". Devchand came to her and said that he will kill her because she got the shop of her sister demolished. She was assaulted by Devchand on her head by a hammer. She was also assaulted by Bablu by means of Katari. She was also assaulted by Shankar by Hammer. After the attack, she ran away from the scene of occurrence. From some distance, she saw that appellant Devchand, Jage, Bablu, went to the house of Master and started shouting to send her out. Thereafter, the appellants went to the house of Bhav Singh. There also they made a search of her. After this Brijwati, her daughter Gudiya were shouting. Brijwati had brought kerosene oil or petrol in a container. They took the waste material from near the hotel and put it in the shop. By that time, appellant Devprasad had caught a tribal boy. Brijwati shouted to put the shop on fire and it was Brijwati, who put the shop on fire by using a match stick. Thereafter, Dev Prasad threw that boy in burning fire. She further stated that they were Devchand, Devprasad and Bablu who threw the boy in fire. She deposed that her husband and father were in side the house, therefore, she went to village Satlor, from where she made contact with the police and said that they are being beaten, fire has been inflicted, please come soon". She further stated that they were Devchand, Devprasad and Bablu who threw the boy in fire. She deposed that her husband and father were in side the house, therefore, she went to village Satlor, from where she made contact with the police and said that they are being beaten, fire has been inflicted, please come soon". She was confronted with her police case diary statements (Ex.D-4) in which there are vital omissions like, it does not contain that Brijwati and her daughter had come to the scene of occurrence carrying Petrol/Kerosene oil; waste material was thrown inside the shop and thereafter Brijwati put the shop on fire; Mahavir was caught by Devprasad, Devchand & Bablu and he was thrown alive in burning fire by these appellants; Bablu was holding a Katari and she was attacked by Katari by Bablu; she was attacked by a hammer by Devchand; and she was also attacked by hammer by Shankar on her back, waist and abdomen. In view of the above omissions, we do not trust on that part of the evidence of this witness which relates to the incident took place after the marpit in the shop. She has categorically admitted vide para 7 that some litigation was also pending between the appellants and their family in the court of concerned Sub-Divisional Magistrate. In fact, it was a land dispute. She has also admitted that at the time of putting the shop on fire, her father and husband were inside the house. Therefore, we are unable to accept the version of this witness regarding the alleged incident of putting the shop on fire by the appellants and throwing deceased Mahavir in burning fire by them. (15) In appreciation of evidence of the above eye- witnesses, we find that the story to the extent of coming of the appellants with deadly weapons in the shop of Budhiyar Jain (P.W.4) was established. It was also established that the appellants or some of them had assaulted the complainant party particularly Budhiyar Jain (P.W.4), Ram Chandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8) but it was not at all established that who put the shop on fire. It was also established that the appellants or some of them had assaulted the complainant party particularly Budhiyar Jain (P.W.4), Ram Chandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8) but it was not at all established that who put the shop on fire. It was further not established that in fact deceased Mahavir was put on fire by the appellants or any one of them either by throwing him in burning fire of the shop as stated by some of the prosecution witnesses at trial or the appellants caused his death by fire or by any other means. (16) Therefore, on the above evidence, the formation of an unlawful assembly and the appellants being the members of unlawful assembly was fully established by the prosecution. About the common object of the unlawful assembly, we may gather from the evidence on record that the common object of the said assembly was to make assaults to the injured persons. It was with this common object, the said unlawful assembly proceeded to the shop of the complainant at about 8 p.m. where all the injured persons were present. The evidence on record would also show that the members of the unlawful assembly had assembled with weapons like lathi, rod and sword etc., as the same have been recovered from their possession on discoveries. Had the assembly possessed a common object of putting shop on fire, the evidence of carrying petrol or kerosene oil would have been there. The theory of carrying petrol or kerosene oil comes in the court evidence of witnesses which are the omissions in their 161 statements and we disbelieve that part of the statements of those witnesses. Therefore, the common object of the assembly was not to put the shop on fire and also not to commit the murder of deceased by throwing him in fire or by causing burn injuries to him. In the above facts and circumstances, we are unable to accept the case of prosecution that the appellants were liable for punishment u/ss 436 and 302 with the aid of section 149 IPC. If we also go to examine as to whether a common object for putting the shop on fire and killing the deceased had subsequently developed, there is hardly any material to hold like this. If we also go to examine as to whether a common object for putting the shop on fire and killing the deceased had subsequently developed, there is hardly any material to hold like this. This we are saying on the basis of entire material on record on which it was never established that any such common object was subsequently formed after the attack on the shop of the complainant or at a later point of time. We have also examined the case to find out the evidence of individual act of each appellant which may establish that either he/she participated in putting the shop on fire or he/she committing any such act to cause death of the deceased. The prosecution has completely failed to establish as to who set the shop on fire and who caused the death of the deceased. The evidence of Budhiyar (P.W.4) and Ramchandra (P.W.6) would show that they were inside their shop/house and had shut down the shutter and they did not see as to who caused the fire and how the deceased died. The evidence of Geeta Bai (P.W.8) is also unreliable on these points as there are vital contradictions by omissions in her evidence which go to suggest that she has tried to create a case of putting the shop on fire and causing the death of the deceased in a particular manner. The other eye witness namely Rakesh Nayak (P.W.7) deposed that just after the incident of marpit, he went away from the scene of occurrence and he did not say as to who put the shop on fire. Regarding death of the deceased, he deposed that on the next day, he came to know that a dead body has been recovered from the shop which was in burnt condition and it was the body of deceased Mahavir. (17) In the facts and circumstances of the cases, we hold that it was not established by the prosecution that the appellants, in furtherance of the common object, put the shop of the complainant on fire or they caused death of deceased by putting him on fire. The prosecution has also not established the individual acts of the appellants for the above offence. However, it was established that the appellants had participated in rioting and they were armed with deadly weapons. The prosecution has also not established the individual acts of the appellants for the above offence. However, it was established that the appellants had participated in rioting and they were armed with deadly weapons. They have formed an unlawful assembly with a common object to assault the above persons and in furtherance of the common object of the unlawful assembly, they assaulted Budhiyar Jain (P.W.4), Ram Chandra (P.W.6), Rakesh Nayak (P.W.7) and Geeta Bai (P.W.8) who received simple injuries. (18) In Muthu Naicker and others etc., Vs. State of Tamil Nadu, AIR 1978 SC 1647 while dealing the matter in relation to unlawful assembly, the Apex Court held that where there is melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. The Apex Court held that in a faction ridden society where an occurrence takes place in a village involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. Reference was also made to an earlier decision of the Apex Court rendered in case of Masalti -vs- The State of Uttar Pradesh, AIR 1965 S.C. 202. Referring to the above decisions, Mr. V.C. Ottalwar, learned counsel for the appellants then argued that looking to the back ground of the families and that there were two groups in the village, there was a possibility of false implication by the complainant party. Referring to the above decisions, Mr. V.C. Ottalwar, learned counsel for the appellants then argued that looking to the back ground of the families and that there were two groups in the village, there was a possibility of false implication by the complainant party. We do not accept this argument on the face of evidence of the above eye witnesses as also the contents of Dehatinalishi which was the first hand report given by the complainant to the police. This contains the names of almost all the appellants. The above witnesses are injured witnesses and they have explained as to how they received the injuries. Their version to that extent was also supported by medical evidence. The entire version of those witnesses cannot be brushed aside. We have already held that they were reliable to the extent of incident of marpit which version of theirs appear to be natural and trustworthy. Therefore, we accept their version to the said extent holding them to be partly reliable. (19) Lastly, Mr. Sudhir Bajpai, learned counsel appearing on behalf of the State, referring to the decision rendered in the matter of Mahmood & another -vs- State of U.P. AIR 2008 SCC 515, argued that common object for all the offences was there and the learned Sessions Judge was fully justified in convicting the appellants for all the offences with the aid of section 149 IPC. The reliance on the said judgment for the purpose of this case is totally misconceived. In the said case, the accused persons had assaulted the deceased with fire arms and lathi. The son of the deceased was present near the scene of occurrence. He gave a detailed version as to the manner of assault and the role played by each of the accused. The Supreme Court held that the common object of the unlawful assembly of the accused in the said case was evident from the fact that some of them were armed with deadly weapons and it was a case in which the death took place on account of gunshots. The said matter is distinguishable from the present case. In the present case, there are no allegations that the appellants were carrying any fire arms nor it is the case in which the death occurred on account of gun shot injuries. The said matter is distinguishable from the present case. In the present case, there are no allegations that the appellants were carrying any fire arms nor it is the case in which the death occurred on account of gun shot injuries. If the members of unlawful assembly were holding a fire arm and the death occurred on account of fire arm injuries, the common object was very clear which the Supreme Court said. But in the present case, since the implication of fire arm is missing and the death was also not on account of gun shot injuries therefore the said principle cannot be applied. (20) For the foregoing reasons, the conviction and sentences awarded to the appellants under section 436 read with section 149 IPC and section 302 read with section 149 IPC cannot be sustained and the same deserve to be set aside. (21) Accordingly, all the appeals are partly allowed. The conviction and sentences awarded to the appellants u/s 436 read with 149 IPC and section 302 read with 149 IPC are set aide. The appellants are acquitted of the aforesaid charges framed against them. However, the conviction and sentences of the appellants awarded u/ss 148 & 323/149 IPC are maintained. (22) Simultaneously, we have also disposed of Criminal Appeals No. 855/2007; 856/2007; 857/2007; 858/2007; 859/2007; 860/2007 & 863/2007 arising out of S.T. No. 42/2006 and another set of Criminal Appeals No. 861/2007; 862/2007; 864/2007; 865/2007; 866/2007; 867/2007 & 868/2007 arising out of S.T. No. 43/2006 and have also maintained the conviction of the appellants in Criminal Appeals arising out of S.T. No. 42/2006 for the offence punishable u/ss 148 & 325 read with Section 149 IPC, therefore we direct that the sentences awarded to the appellants in these 2 sets of Appeals, one arising out of S.T. No. 155/2006 and the other arising out of S.T. No. 42/2006 shall run concurrently. (23) It is stated that appellants Devchand Nishad & Jageshwar @ Jage Nishad are in jail since 6.12.2005 & 23.12.2005 respectively and the other appellants Dev Prasad Nishad, Ranjit Nishad, Shankar Nishad & Brijwati are in jail since 3.12.2005. They be released forthwith, if not required in any other case. Appellants Brijlal Nishad, Manoj Kumar, Surajlal & Devlal were taken into custody on 3.12.2005 but their jail sentences were suspended vide order dated 15.4.2008 passed in the respective appeals. They be released forthwith, if not required in any other case. Appellants Brijlal Nishad, Manoj Kumar, Surajlal & Devlal were taken into custody on 3.12.2005 but their jail sentences were suspended vide order dated 15.4.2008 passed in the respective appeals. They have also completed their jail sentences. Therefore, their bail bonds are discharged.