JUDGMENT Sushil Harkauli, J,-We have heard learned counsel for the appellants and the learned counsel for the State at length. 2. By the impugned judgment Nine appellants which includes three ladies have been convicted under Sections 302/149 to life imprisonment without the mandatory sentence of fine and to six months' R.I. under Sections 148/323/324 I.P.C. 3. The prosection case, as narrated in the F.I.R. recorded at 7 p.m. on 27.7.1998 at Govt. Hospital, Petarwar, District-Bokaro, is that the informant, namely, Mohan Mahto, his wife Binda Devi, his brother Bhuneshwar Yadav @ Jhupar Mahto and two labourers, namely, Kunja Singh and Andu Karmali were working in their field. At about 4 p.m. on 27.7.1998, the appellant Kanchan Yadav and his co-brother (who has not been named in the F.I.R.) came to field of the informant and started making drain over the field which was objected to by the informant, resulting into hot words and abuse between two parties. After that the accused Kanchan Yadav and his co-brother went to the village from where they came back after one hour at about 5 p.m. alongwith other appellants variously armed. Of them, Bhuneshwar Yadav was carrying Bhala and Kori, Binod Yadav and Heeralal Yadav came with sword and tangi respectively and Kanchan Yadav and his co-brother were carrying tangi and kori respectively. 4. According to F.I.R. all these accused persons immediately after reaching at the spot started abusing and chasing the persons of the side of the informant whereupon both the labourers working there ran away. The deceased Bhuneshwar Yadav @ Jhupar Mahto was assaulted by Bhuneshwar Yadav (accused) with Kori and Bhala. Because of which the deceased fell down. The accused Kanchan, Faguni and Heera Lal Yadav assaulted the informant and the three ladies assaulted the wife of the informant. The co-brother of Kanchan Yadav was instigating remaining accused. The accused Bhuneshwar Yadav throttled the neck of the deceased, because of which deceased died on the spot. Accused Binod is also said to have assaulted informant's wife with sword under right elbow. Thereafter, the accused ran away. 5. The Investigation Officer was not examined in the matter. Two injured witnesses have been examined as P.W.1 and P.W.5. P.W.1 is informant and P.W. 5 is the wife of the informant. P.W.6 is the doctor who examined injuries of P.W.1 and P.W.5. P.W.7 is the doctor who conducted postmortem. Thereafter, the accused ran away. 5. The Investigation Officer was not examined in the matter. Two injured witnesses have been examined as P.W.1 and P.W.5. P.W.1 is informant and P.W. 5 is the wife of the informant. P.W.6 is the doctor who examined injuries of P.W.1 and P.W.5. P.W.7 is the doctor who conducted postmortem. P.W.2 and P.W. 3 are the two labourers who are alleged to have been working in the field with the informant, his wife and the deceased and they ran away when the accused came to the spot in a group. P.W.4 is the witness to the inquest and P.W.8 has proved the F.I.R. etc. 6. Learned counsel for the appellants i invited our attention on the statement of P.W. 1 i.e. informant who has stated in (paragraph nos. 14 and 15 of his cross-examination that after the incident, he went to the police station from where he was sent to the hospital. At the police station, according to the said statement of P.W.1, his statement was recorded and his signature was also obtained. The names of the accused were asked and after that her was sent to the hospital, where his Fardbeyan was recorded on the basis of which F.I.R. was lodged and as such, it was argued that the Fardbeyan recorded at Hospital cannot be treated as F.I.R. which in the background of the facts stated above becomes quite doubtful. 7. Very strictly speaking, this argument would have been very attractive but considering the nature of investigation taking place in the State of Jharkhand, we would be more inclined to rely upon the fact that incident took place at about 5 p.m. and the F.I.R. in the hospital was recorded at 7 p.m. and, therefore, not much time has elapsed which would lead to the possibility to a conclusion that F.I.R. has been lodged after due deliberation. In these circumstances, we would be more inclined to treat the F.I.R. as reasonable and prompt. 8. Having regard to the background of nature and manner of dispute, some arguments have been raised on the basis of injuries which have been caused to the deceased as well as two injured witnesses, but these are minor discrepancies. Considering the time gap and the village background of all the witnesses much importance cannot be attached to these minor discrepancies. Having regard to the background of nature and manner of dispute, some arguments have been raised on the basis of injuries which have been caused to the deceased as well as two injured witnesses, but these are minor discrepancies. Considering the time gap and the village background of all the witnesses much importance cannot be attached to these minor discrepancies. The basic fact remains that there has been an assault, the accused have out numbered the victim, there is no injury to any person on the side of the accused and on the other hand, there are three persons injured on the side of the informant and the injuries are multiple. The incident has taken place in the month of July at about 5 p.m. which means in broad daylight. The time of incident is corroborated by F.I.R. recorded at 7 p.m. in the hospital. There are two injured witnesses whose presence at the spot appears to be natural. The nature of injuries could not be said to be self-inflicted or manufactured. Both the injured witnesses have been consistent in narrating the incident. The part of the incident up to the stage of the fight which started at 5 p.m. in the second round has also been corroborted by the two labourers P.W.2 and P.W. 3. 9. Learned counsel for the appellants has argued that the murder which took" place could not be said to be in prosecution of common object of the alleged unlawful assembly, but was a straight departure wherein only one person of unlawful assembly strangulated the deceased after assaulting him. According to him, common object of assembly was to ensure the availability of water even by using some criminal force, if necessary. He has also argued that murder was not an offence which any member of unlawful assembly knew that it is likely to be committed and, therefore, Section 149 I.P.C. cannot be applied in the present case alongwith Section 302 I.P.C. He has submitted that even at all Section 149 I.P.C. is applicable it can only be with regard to Sections 323 and 324 I.P.C. We have considered the submissions. 10. 10. What has to be proved against a person, who is alleged to be a member of unlawful assembly, is that he was one of the persons constituting the assembly and he entertained alongwith other members of the assembly the common object as defined by Section 141 of the Indian Penal Code. Section 142 of the Indian Penal Code provides that whoever, being aware of the facts which render any assembly, an unlawful assembly, intentionally joins that assembly or continues in which, is said to be a member of an unlawful assembly. Therefore, it is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the explanation to Section 141 of Indian Penal Code, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. Keeping in view the said postulation, Hon'ble Supreme Court in a case of Musa Khan vs. State of Maharashtra, [ (1977)1 SCC 733 ] has laid down a proposition which is as follows:- "5....Thus, a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all these stages." Again Hon'ble Supreme Court in a case of Maranadu vs. State [(2008)16 SCC 529] spelt out legal position as given herein under for determination of common object of unlawful assembly: "...For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attach and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti." A similar proposition was reiterated recently in a case of Pandurang Chandrakant Mhatre Vs. State of Maharashtra [ (2009) 10 SCC 773 ], wherein it has been held as under: "It is well known that for determination of common object of the unlawlul assembly, the conduct of each of the members of the unlawful assembly before and at the time of attack is of relevant consideration. At a particular stage of the incident, what is object of the unlawful assembly is a question of fact and that has to be determined keeping in view the nature of the assembly, the arms carried by the members and the behaviour of the members at or near the scene of incident." 11. Keeping in view the said proposition, it needs to be considered as to whether all the persons, who were convicted under Section 302 IPC with an aid of Section 149 IPC, were sharing common object to commit murder particularly when it is the case of the prosecution that it was appellant no.1-Bhuneshwar Yadav, who assaulted the deceased with the weapon which he was holding, proving to be fatal. In order to have the picture clear, we may reiterate the prosecution case that while the informant (P.W.1), the deceased and the informant's wife-Binda Devi (P.W. 5) were working in their field, appellant 'no. 2-Kanchan Yadav and appellant no. In order to have the picture clear, we may reiterate the prosecution case that while the informant (P.W.1), the deceased and the informant's wife-Binda Devi (P.W. 5) were working in their field, appellant 'no. 2-Kanchan Yadav and appellant no. 9-Phutuk Chand Yadav came over there and started making drain over their field so that they may get water in their field which was objected to as a result of which, there was exchange of hot words. Thereupon, both appellants went away and came back after an hour with the other appellants who were variously armed. Thereafter, as per the evidence of P.W. 1, appellant-Bhuneshwar Yadav, who was having spade and spear, assaulted on the head of the deceased with spade. When he fell down, appellant-Bhuneshwar Yadav strangulated the neck of the deceased as a result of which, he died. Similar is the testimony of P.W. 5, an injured witness. None of the aforesaid witnesses (P.Ws. 1 and 5) has said anything about the other appellants that they did assault the deceased or did any act in the commission of murder of the deceased, though according to the prosecution, all the accused persons came at the scene of occurrence variously armed but this fact in absence of any overt act on the part of the rest of the accused persons in commission of murder of the deceased hardly suggests that they were having common object to commit murder rather the circumstances go to suggest that the appellants came variously armed so as to force the prosecution party to allow them to have drain over their field. Thus, it is quite evident that the deceased was never done to death in furtherance of common object to commit his murder. 12. However, from the evidences of P.Ws. 1 and 5, it does appear that it is appellant-Bhuneshwar Yadav who is responsible for causing death to the deceased. According to P.W. 1 and P.W. 5, appellant-Bhuneshwar Yadav came to the scene of occurrence having spade and spear with him alongwith other appellants but it was he who assaulted on the head of the deceased with spade and when the deceased fell down, appellant-Bhuneshwar Yadav strangulated his neck and this fact gets corroboration from the evidence of the doctor-P.W.7 who in course of autopsy did find lacerated wound on the left side of the skull of the dimension of 2" x 1" x brain deep. At the same time, neck was also found swollen. That apart one injury was found over the chest (intercostal space) which, according to the doctor, may be caused by spear or sword. Though the prosecution is silent as to how this injury was caused, but it never affects the case of the prosecution adversely, as it is quite possible that P.Ws. 1 and 5 may not have seen the accused inflicting that injury, as number of persons were there and at the same time P.W. 1 was attacked by the other accused persons, when he tried to save the deceased. Thus, there remains no doubt that it is appellant-Bhuneshwar Yadav who caused injury to the deceased which proved to be fatal and hence, we do find appellant Bhuneshwar Yadav guilty for the offence under Section 302 IPC. Accordingly, appellant-Bhuneshwar Yadav is convicted under Section 302 IPC instead of 302/149 IPC. However, sentence imposed of life imprisonment by the trial court against him is affirmed. So far as rest of the appellants are concerned, they are acquitted of the charge under Section 302/149. 13. Coming to the other aspect of the prosecution case so far it relates to the conviction of other appellants under Sections 148, 323 and 324 IPC, we do find that P.W. 1 in his evidence has deposed that out of nine accused persons, six accused persons, namely, Bhuneshwar Yadav, Kanchan Yadav, Fagu Yadav, Hiralal Yadav, Binod Yadav and Phutuk Chand Yadav came variously armed and of them, Kanchan yadav assaulted on both sides of his head by tangi, whereas appellant-Fagu Yadav assaulted with tangi on his left forearm which fact also finds corroboration not only from the evidence of P.W. 5 but also from the doctor-P.W. 6 who found lacerated wounds on both sides of skull and also found lacerated wounds apart from other injuries on the left forearm. 14. Apart from the aforesaid injuries, P.W.1, according to Doctor (P.W. 5) has also sustained an injury on the shoulder and multiple abrasions on the back which must have been caused by the accused person, carrying weapons with them, but P.W.1 seems to be silent on the point as to who caused those injuries though P.W.5 has stated that apart from the accused Kanchan Yadav and Fagu Yadav and other accused, namely, Hira Lal Yadav and Vimal Yadav also assaulted P.W.1. Keeping silence over the overt act committed by the other accused hardly makes any difference as it is quite difficult to point out about the role played by each and ever member of unlawful assembly which consist large number of people. Further, we do find that two injuries caused by hard and blunt substance sustained by P .W.5 must have been caused by some of the members of unlawful assembly common object of whom was to use force against the members of the prosecution party for forcing him to allow them to make drain over their land and in prosecution of the common object of the accused persons assaulted P.W.1 and P.W. 5 and as such, all the accused persons except three ladies accused, who were not carrying any weapon with them are being convicted under Sections 148, 323 and 324 read with Section 149 of the I.P.C. instead of Sections 148, 323 and 324 and are sentenced for the period already undergone. 15. So far three ladies appellants are concerned they though came to the place of occurrence alongwith other accused persons, but certainly they were not carrying any weapon with them and have also not been alleged to have assaulted P .W.1 though they are said to have assaulted P.W.5 by fist and slap, but the injury which P.W.5 has suffered have been caused according to Doctor by hard and blunt substance. Thus, version of P.W.5 does not find corroboration from the medical evidence. That apart the fact that these appellants coming to the place of occurrence were bare-handed not participating in any manner in assaulting P.W.1 goes to show that they were never members of the unlawful assembly and hence the learned trial court committed illegality in convicting them under Sections 148, 323 and 324 of the Indian Penal Code. Consequently, they are acquitted of from all the charges. In the result they are discharged from their liabilities of their bail bonds. 16. In the result, this appeal is partly allowed.