JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 14th November. 1990 passed in Sessions Trial No. 136/88, by the Third Additional Sessions Judge, Raipur, Camp- Blaoda Bazar. 2. By the impugned judgment, the Appellants & co-accused Anjor Das have been convicted Under Sections 148, 302/149 (in two counts) & 307/149 IPC and sentenced to undergo R.I. for two years, Imprisonment for life & fine of Rs. 100/-(in two counts) and R.I. for 7 years & fine of Rs. 100/- with a further direction to run the sentences concurrently. 3. Co-accused- Anjor Das filed a separate appeal challenging his conviction and sentence which came to be registered as Criminal Appeal No. 38/91. During the pendency of his appeal, Anjor Das was released from Central Jail, Raipur on 18.12.2002, on the eve of "Guru Ghasidas Jayanti" upon special remission being granted to him after undergoing for about 14 years. Therefore, the appeal filed by co-accused - Anjor Das was dismissed as not pressed on 20.7.2005. 4. The present appeal was filed in the High Court of Madhya Pradesh. After the re-organization of the State of Madhya Pradesh, it was transferred to the High Court of Chhatttsgarh. When nobody appeared on behalf of the Appellants, notices were issued to them from this Court. The Appellants, in spite of notices, did not make any arrangement for their representation in this appeal. Therefore, this Court vide order dated 26.8.2010 appointed Mr. Subhash Yadav, Advocate as counsel for the Appellants to defend and represent the Appellants in this appeal and it was directed that his appointment in the appeal shall be treated as appointment by the High Court Legal Services Committee. A copy of the paper-book was supplied to Mr. Subhash Yadav, Advocate on 26.8.2010. He sought adjournment for preparation, which was granted to him and ultimately the appeal was finally heard on 1.9.2010. 5. The facts, briefly stated, are as under: The two deceased persons namely Sameydas and Hushan Lal were father and son. Romnath (PW-1) is another son of Sameydas. On 30.1.88 at about 7-7.30 a.m. they had gone to prepare kothar (a place for threshing crops). For this purpose, they stalled cleaning a government land. This land was adjacent to the kothar of Appellant- Ramayan. Accused persons-Ramayan, Prem Das, Umedi, Rajkumar, Manohar, Anjor Das & Suraj Bai were present in their kothar. Romnath (PW-1) is another son of Sameydas. On 30.1.88 at about 7-7.30 a.m. they had gone to prepare kothar (a place for threshing crops). For this purpose, they stalled cleaning a government land. This land was adjacent to the kothar of Appellant- Ramayan. Accused persons-Ramayan, Prem Das, Umedi, Rajkumar, Manohar, Anjor Das & Suraj Bai were present in their kothar. Ramayan and Anjor Das obstructed the complainant party to use the said land. Romnath (PW-1) said that it was a government land and they will vacate it after threshing their crops. On this, Appellants Ramayan and Anjor Das started abusing them and returned towards their kothar. The allegations are that thereafter all the accused persons came there with lathi, danda & tabbal and they started assaulting Romnath (PW-1), Sameydas and Hushan Lal. According to the prosecution, Anjor Das was armed with tabbal, Suraj Bai was armed with kalari and other accused persons were armed with lathi. Sameydas and Hushan Lal lost their lives on account of injuries sustained by them. Romnath (PW-1) also received serious injuries which were endangerous to the life. The prosecution came with a case that the accused persons formed an unlawful assembly; participated in rioting with deadly weapons and in prosecution of the common object of the said assembly committed murder of Sameydas and Hushan Lal and they also attempted the life of Romnath (PW-1). The First Information Report (Ex.-P/l) was lodged by Romnath (PW-1). Romnath was examined by Dr. M.C. Patela (PW-12). The injury report of Romnath (PW-1) is Ex.-P/31. He received following injuries: (i) One incised wound 2 inch x % inch x % inch on the upper left side of the skull & (ii) Incised wound 3 inch x 1 inch on the left shoulder. The Doctor opined that both the injuries were simple injuries. On a query being made, the Doctor further opined that the above injuries could be caused by tabbal and in case of excessive blood lost, the injuries would have caused the death. The query report is Ex.-P/32. The post-mortem examinations of the deceased persons were conducted by Dr. R.P. Pandey (PW-19). Post-mortem report of Hushan Lal is Ex.-P/43. On a query being made, the Doctor further opined that the above injuries could be caused by tabbal and in case of excessive blood lost, the injuries would have caused the death. The query report is Ex.-P/32. The post-mortem examinations of the deceased persons were conducted by Dr. R.P. Pandey (PW-19). Post-mortem report of Hushan Lal is Ex.-P/43. Hushan Lal received following external injuries: (i) Incised wound 1 inch x 1/2 inch x 1/4 inch on the right portion of skull; Contusion 3 inch x 3 inch on the mastoid region behind left ear & Bruises of 3 inch to 5 inch on the back and abdominal region. On internal examination, there was fracture of left temporal bone. The bone was depressed. There was blood clot beneath the temporal bone. The Autopsy Surgeon opined that the cause of death was injury to the skull and it was homicidal in nature. Post-mortem report of Sameydas is Ex.-P/44. Sameydas received following external injuries: (i) Incised wound 6 inch x 1 inch x 1/2 inch on the middle of the skull. Brain matter was coming out. (ii) Incised would 5 inch x 1/2 inch x 1/4 inch on the left thigh & (iii) Contusion and abrasion of the front portion of the waist. On internal examination, it was found that there was fracture of parietal bone through which the brain matter was coming out. The above injuries were caused by hard and sharp object. The injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. 6. The conviction of the Appellants is based upon the testimonies of Romnath (PW-1) supported by Mudughin (PW-9), Shatrughan (PW-10) and GeetaBai(PW-ll). 7. According to the above eye-witnesses particularly, the injured eyewitness Romnath (PW-1), accused- Anjor Das was armed with tabbed and the other accused persons were armed with lathi. He very specifically deposed that Anjor Das assaulted Sameydas on his head by tabbal. Anjor Das also assaulted his brother i.e. Hushan Lal by tabbal and Prem Das assaulted them by lathi. The other accused persons have been convicted with the aid of Section 149 IPC because there was omnibus statement against them. 8. Mr. Subhash Yadav, learned Counsel appearing on behalf of the Appellants, argued that the main allegations are against Anjor Das and Prem Das and the allegations against the other accused persons are vague and general. The other accused persons have been convicted with the aid of Section 149 IPC because there was omnibus statement against them. 8. Mr. Subhash Yadav, learned Counsel appearing on behalf of the Appellants, argued that the main allegations are against Anjor Das and Prem Das and the allegations against the other accused persons are vague and general. All the accused persons are members of the same family; they were present in their bayara (threshing place); no specific allegation or overt acts have been attributed to them; there is no positive evidence to hold that they were members of an "unlawful assembly", therefore, their conviction with the aid of Section 149 IPC was not justified. 9. On the other hand, Mr. J.A. Lohani, learned Panel Lawyerappearing on behalf of the State, referring to the evidence of Romnath (PW-1), epposed these arguments and supported the judgment passed by the Sessions court. 10. We have heard the learned Counsel for the parties at lenerd and have also perused the records of the sessions case. 11. We shall firstly examine the contention raised by Mr. Subhash Yadav, as to whether all the Appellants can be convicted Under Section 302 with the aid of Section 149 IPC? 12. In Masalti v. State of U.P. AIR 1965 SC 202 the Supreme Court held in Para-17 that "What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly." 13. Taking note of the above judgment and many other judgments, the Supreme Court held in Pandurang Chandrakant Mhatre and Ors. v. State of Maharashtra, (2009) 10 SCC 773 that the two ingredients of Section 149 are (i) commission of offence by members of unlawful assembly; and (ii) such offence must be in prosecution of common object of that assembly, or must be such as members of that assembly knew it to be likely to be committed. For determining common object the conduct of each member of unlawful assembly before and at the time of attack is relevant consideration; object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behaviour of members at or near scene of incident. 14. In Sikandar Singh and Ors. v. State of Bihar AIR 2010 SCW 4426 the Supreme Court held that the common object does not require a prior concert and a common meeting of minds before attack. It is enough if each member has same object and all act in assembly to achieve that object. Common object has to be ascertained from acts and language of members and from consideration of all surrounding circumstances. For determination of the common object, conduct of each member of unlawful assembly, before and at the time of attack and motive of crime are some of the relevant considerations. 15. It is on these principles, we are to scrutinize the case of the Appellants, particularly Appellant No. 1,3,4 & 5 for maintaining their conviction with the aid of Section 149 IPC. According to Romnath (PW-1), the Appellants were threshing their paddy crops in their bayara. When Romnath, his father Sameydas and his brother-Hushan Lal came there and they started cleaning a nearby government land, the Appellants obstructed them. Romnath said them that they will leave possession of the said land after threshing their crops. According to Romnath (PW-1), the Appellants were threshing their paddy crops in their bayara. When Romnath, his father Sameydas and his brother-Hushan Lal came there and they started cleaning a nearby government land, the Appellants obstructed them. Romnath said them that they will leave possession of the said land after threshing their crops. On this, the accused persons came there with lathi, tabbal and kalari (an agriculture equipment), and Anjor Das assaulted Sameydas by tabbal. He also assaulted Hushan Lal by tabbal. Anjor Das also assaulted him. Prem Das also assaulted him. Then, he immediately went to the Sarpanch and narrated the story to him. Thereafter Kotwar Ramdayal (PW-4), Sarpanch-Sukhnandan (PW-3), Sukhiram (PW-2), Dhanaram (PW-6) came there and they found that the main assailant namely Anjor Das and Prem Das had fled away from the place of occurrence and the other accused persons were working in their bayara. Kotwar Ramdayal (PW-4) deposed that on the fateful day at about 7-8.00 a.m. Romnath came to his house in injured condition. When he asked him as to what happened, he stated that Anjor Das and Prem Das have committed murder of his father and brother. Sukhnandan (PW-3), to whom Romnath (PW-1) made first disclosure, also admitted in his cross-examination that when Romnath came to him he only stated that accused Anjor Das and Prem Das have participated in assault, therefore, he should accompany him to go for lodging the report as he was frightened. Another witness Dhanaram (PW-6) also deposed that in the morning, Romnath came to his house; he was in injured condition; he stated that Anjor Das has assaulted him by tabbal and he also stated that Anjor Das and Prem Das have committed murder of his father and brother. 16. In appreciation of the evidence of these witnesses, we find that Anjor Das and Prem Das only participated in commission of murder of the deceased persons and in assaulting the injured-Romnath. Had there been any participation by the other Appellants, Romnath would have stated about it to the above three witnesses to whom he had gone for reporting the matter, as they were village Sarpanch and Kotwar. Romnath even did not make whisper about presence of the other Appellants to these witnesses at the time of occurrence. 17. Had there been any participation by the other Appellants, Romnath would have stated about it to the above three witnesses to whom he had gone for reporting the matter, as they were village Sarpanch and Kotwar. Romnath even did not make whisper about presence of the other Appellants to these witnesses at the time of occurrence. 17. An assembly of five or more persons shall be said to be an "unlawful assembly" in law, if the common object of the persons composing that assembly would be one or more described in Section 141 IPC. In case on hand, the Appellants were working in their bayara since morning. They were threshing their paddy crops and the complainant party reached there later on. If we consider their acts and language and all of surrounding circumstances, it cannot be said that they at all formed an unlawful assembly. Their behaviour would show that they were threshing their paddy crops in bayara and overall picture comes that when the complainant party tried to clean government land, the two members of the accused party i.e. Anjor Das and Prem Das indulged into assault and they assaulted the deceased persons and Romnath (PW-1). Therefore, in our considered view, the learned Sessions Judge erred in law in holding that an unlawful assembly was formed by the accused persons and the accused persons participated in rioting and murder of the deceased persons and assaulted the injured witness in furtherance of the common object of the unlawful assembly. It was a case in which the family members of the accused party were present at the place of occurrence since back and on an altercation with the complainant party two of them indulged into fight with the complainant party and the above incident took place. Mere presence of the other persons, who were working in their bayara, would not make them a member of the unlawful assembly. Therefore, the conviction of Appellant No. 1,3,4 & 5 cannot be sustained with the aid of Section 149 IPC. 18. As far as case of Appellant Prem Das is concerned, there is ample evidence to show that he along with Anjor Das participated in commission of murder of Sameydas and Hushan Lal. They also assaulted Romnath (PW-1). Therefore, they would be liable for punishment Under Section 302/34 IPC (in two counts). 19. 18. As far as case of Appellant Prem Das is concerned, there is ample evidence to show that he along with Anjor Das participated in commission of murder of Sameydas and Hushan Lal. They also assaulted Romnath (PW-1). Therefore, they would be liable for punishment Under Section 302/34 IPC (in two counts). 19. As far as conviction Under Section 307/34 IPC is concerned, that cannot be sustained in light of the injury report of Romnath (PW-1) in which it has been clearly mentioned by the Doctor that Romnath sustained simple injuries. Therefore, their conviction Under Section 307 149 IPC has to be set-aside and they would be liable for conviction Under Section 323/34 IPC. 20. For the foregoing reasons, the appeal is partly allowed. The conviction and sentences awarded to Appellant No. 1-Ramayan, No. 3- Umedi, No. 4-Rajkumar alias Pantha Satnami & No. 5- Manohar Under Sections 148, 302/149 IPC (in two counts) and 307/149 IPC are set-aside. They are acquitted of the charges framed against them. 21. The conviction and sentences awarded to Appellant No. 2 -Prem Das Under Sections 148, 302/149 (in two counts) and 307/149 are also set-aside. Instead thereof, Appellant No. 2- Prem Das is convicted Under Section 302/34 IPC (in two counts) and 323/34 IPC and sentenced to undergo imprisonment for life (in two counts) and imprisonment for one year. It is further directed that the above sentences awarded to Appellant No. 2- Prem Das shall run concurrently and he shall be entitled to setoff the period already undergone by him. It is stated that the Appellants are on bail. Their bail bonds are cancelled and sureties stand discharge. Appellant No. 2 is directed to surrender immediately to undergo the sentences imposed upon him.