JUDGMENT Navaniti Prasad Singh, J.-The present appeal preferred by the eight appellants is directed against the judgment and order of conviction dated 30th March. 1989 passed by the learned Sessions Judge, Sitamarhi in Sessions Trial No. 154 of 1986 (G.R Case No. 187 of 1986 arising out of Pupri P.S. Case No. 31 of 1986 dated 21.10.1986). By the said judgment appellant Nos. 1 & 2, being Rajendra Thakur and Ram Briksha Thakur, have been found guilty for offences punishable under Sections-302 and 148 of the Indian Penal Code and have been sentenced to life imprisonment and imprisonment of 3 years respectively for the two offences. Sentences are to run concurrently. Appellant No.3, Kameshwar Thakur has been sentenced for life under Section 302/149. IPC and 3 years for each count for offence under Section 324 and 148. IPC. Appellant No.4, Bijan Thakur, appellant No.5. Naresh Mandal, appellant No.6, Ram Shrestha Thakur, appellant No.7, Padarath Mandal @ Ram Padarath Mandal and appellant No.8, Kailash Thakur have been sentenced for life under Section 302/149, IPC, 1 year under Section 323, IPC and 2 years under Section 147, IPC, All sentences are to run concurrently. 2. The prosecution case is based upon the fardbeyan (Ext. 3) of one Ram Vriksh Rai, PW 11, son of Ram Swarath Rai, the deceased, made before the Sub-Inspector of Pupri Police Station at Government Hospital, Pupri at about 10:45 a.m. on 31.3.1986. The said fardbeyan is witnessed by Jagdish Rai. PW 1 who also happens to be the son of Jai Narain Rai, PW 7, who is the brother of the decease and Jeetu Rai, PW 5, who is the son of Yugeshwar Rai, PW 8 who is a.1so the brother of the deceased. 3. In the fardbeyan, it is alleged by Ram Vriksh Rai, PW 11 that in the morning of 31.3.1986 at about 7 a.m. his father Ram Swarath Rai was going to the field to ease himself. On way Rajendra Thakur, appellant No. 1 who was standing in his agricultural land with a 'lathe stopped him and asked him why he was going through his land to ease himself, Rajendra Thakur, appellant No. 1 then assaulted Ram Swarath Rai with ‘lathe’. Ram Swarath Rai fell down in the field and cried for help. On way Rajendra Thakur, appellant No. 1 who was standing in his agricultural land with a 'lathe stopped him and asked him why he was going through his land to ease himself, Rajendra Thakur, appellant No. 1 then assaulted Ram Swarath Rai with ‘lathe’. Ram Swarath Rai fell down in the field and cried for help. On hearing the cry for help Jagdish Rai, PW 1, Shiv Chandra Rai, PW 2, Jeetu Rai, PW 5, Ram Ekbal Rai, PW 6, Yugeshwar Rai, PW 8 and Chando Rai, PW 9 came running for the rescue of the fallen Ram Swarath Rai from their houses nearby. Immediately following them came Ram Briksha Thakur, appellant No.2, Kameshwar Thakur, appellant No.3, Bijan Thakur, appellant No.4, Naresh Mandal, appellant No.5, Ram Shreshtha Thakur, appellant No.6, Padarath Mandal @ Ram Padarath Mandal, appellant No.7, Kailash Thakur, appellant No. 8 variously armed with ‘bhala’ ‘farsa' and 'gandsa'. They started assaulting the prosecution party. Rajendra Thakur, appellant No. 1 who was armed with 'gandsa' and Ram Briksha Thakur, appellant No.2, who was armed with ‘farsa’ assaulted the father of the informant Ram Swarath Rai on his head who fell to the ground and the rest of the accused persons started assaulting the other prosecution parties causing various injuries. Thereafter, the accused persons escaped. Ram Swarath Rai was then carried by 'Tyrecart' to Pupri Government Hospital where the fardbeyan was recorded and subsequently based thereon Pupri P.S. Case No. 31 of 1986 was instituted and investigation was taken up by Laxman Prasad Singh, PW 12, the Investigating Officer of Pupri Police Station. 4. As the injuries to Ram Swarath Rai was grievous, he was referred to Darbhanga Medical College & Hospital, Darbhanga and, as such, was taken by train but on way he died. His dead body was brought back to Pupri Police Station in a Jeep where inquest report. Ext.1 was prepared. Upon investigation police submitted charge sheet against the appellants and one Prabodh Mandal, who later died in course of trial and proceedings against him abated. Upon case being committed to Court of Sessions and the appellant pleading not guilty charges were framed and trial commenced. 5. In order to prove the charges 13 witnesses were examined. PW 1, Jagdish Rai, as noted above, was examined as an eye-witness is also witness to the fardbeyan, being son of PW 7, who is the brother of the deceased. 5. In order to prove the charges 13 witnesses were examined. PW 1, Jagdish Rai, as noted above, was examined as an eye-witness is also witness to the fardbeyan, being son of PW 7, who is the brother of the deceased. PW 2, Shiv Chandra Rai is examined as an eye-witness, who is the son of the deceased. PW 3, Mahendra Rai is the nephew of the deceased and is also examined as an eye-witness, PW 4, Satya Narain Chaudhary is also examined as an eye-witness and is a witness to the inquest as well, PW 5, Jeetu Rai is also the nephew of the deceased and son of PW 8. He is also examined as eye-witness and is also witnessed to the fardbeyan. PW 6, Ram Ekbal Rai is also nephew of the deceased and son of PW 8, Yugeshwar Rai and is examined as an eye witness. PW 7, Jai Narain Rai and PW 8, Yugeshwar Rai are brothers of the deceased and have been tendered. PW 9, Chando Rai who is also the one of the son of PW 8 has also tendered. PW 10, Kameshwar Chaudhary is a witness to the inquest and has been tendered. PW 11, Ram Briksh Rai is the son of the deceased and is the informant and has been examined as an eye witness. PW 12, Laxman Prasad Singh is the Investigating Officer of Pupri Police Station who investigated the case and submitted the chargesheet. PW 13, Dr. Laxman Jha is the Civil Assistant Surgeon of Sadar Hospital, Sitamarhi who conducted the postmortem examination on 1.4.1986 at about 11:30 a.m. and submitted the postmortem report which is Ext.8. 6. The case of the defence as appears is that in fact the deceased Ram Swarath Rai was earlier found uprooting the gram crops from the field of Rajendra Thakur, appellant No. 1 and chased away. Later on 31.3.1986 in the morning he was again found trying to uproot the same and was chased by Rajendra Thakur upon which the prosecution party variously armed assaulted Rajendra Thakur, appellant No. 1 and his cousin appellant No.2. Ram Briksha Thakur who has come, to save him. In the fight that ensued appellant Nos. 1, 2&3 were also injured and taken to Pupari Hospital for treatment at about 11:30 a.m. on 31.3.1986 itself where upon the statement of Rajendra Thakur, appellant No. 1 (Ext. Ram Briksha Thakur who has come, to save him. In the fight that ensued appellant Nos. 1, 2&3 were also injured and taken to Pupari Hospital for treatment at about 11:30 a.m. on 31.3.1986 itself where upon the statement of Rajendra Thakur, appellant No. 1 (Ext. C) Pupri P.S. Case No. 32 of 1986 dated 31.3.1986 was instituted as a counter case against the prosecution party for assault on the defence. 7. It may be noted here that apart from fatal injury having been inflicted on Ram Swarath Rai various members of prosecution party were also variously injured and were also examined immediately by the Government doctor and the injury reports of both the sides are on record. 8. Upon evidence being led the learned trial Court recorded conviction and passed sentences as against the appellants as noted earlier. We have heard Mr. Vishwanath Prasad Sinha, learned Senior Counsel in support of the appeal at length and Ms. Shashi Bala Verma, learned A.P.P. 9. On perusal of the evidence of the prosecution witnesses, we find that there are seven eye witnesses apart from four other witnesses who have been tendered. Upon going through their depositions they are all consistent with regard to the time, place and manner of occurrence. They are all consistent that it was appellant No.1, Rajendra Thakur who first assaulted the deceased. Ram Briksha Rai. Upon hearing his cry for help the other prosecution witnesses who are close relations living nearby ran for his rescue then came the rest of the appellants variously armed. Then Rajendra Thakur, appellant No. 1 and Ram Briksha Thakur, appellant No. 2 assaulted with 'gandsa' and 'farsa' on the head of the falling Ram Swarath Rai causing fatal injury. The rest of the appellants assaulted various other members of the prosecution party but from the depositions we clearly find that apart from appellant Nos. 1 & 2 there is no direct allegation against any other appellants of having assaulted the deceased. Various members of the prosecution party have been found injured. 10. As noted above, the two appellants also later turned up at the hospital with the injury where the counter case was also recorded. The prosecution has admitted the counter case. The injuries caused on appellant Nos. Various members of the prosecution party have been found injured. 10. As noted above, the two appellants also later turned up at the hospital with the injury where the counter case was also recorded. The prosecution has admitted the counter case. The injuries caused on appellant Nos. 1&2 do not appear to be grievous injuries, whereas if we look to the Injuries caused to Ram Swarath Rai some of them are grievous. In all about 8 persons from the prosecution side have been injured as against two of the appellants' side. In the cross-examination of the prosecution witnesses primarily the eye witnesses' effort to establish without success the counter case has been made but nothing has shaken the testimony of the prosecution witnesses with regard to the time, place and manner of occurrence. 11. The Investigating Officer upon proper investigation in his deposition in the Court has established that blood was found on the place of occurrence in close proximity of the houses of the prosecution party. He has also established that the prosecution party and the defence are all neighbours. So far as the injury reports are concerned, he has clearly stated that the injury reports, being Ext.7 to Ext. 7/7, was prepared by Dr. Rajendra Prasad Jaiswal, who has since died. The defence has not been able to elicit any material contradiction in the evidence of the prosecution case from the Investigating Officer. The postmortem report which is proved by the PW 13, Dr. Laxman Jha clearly shows injury on the deceased, Ram Swarath Rai on the legs and on the head. The later two injuries on the head were by sharp cutting weapons fracturing the skull, the weapons being 'farsa' and 'gandsa'. 12. Thus, the prosecution has been able to establish that once Ram Swarath Rai fell down having been assaulted by ‘lathi’ by appellant No.1. Appellant Nos. 1&2 gave fatal head injuries on the deceased in the fallen state. 13. In view of this consistent and unshaken testimony, we are of the view that so far as appellant Nos. 1&2 are concerned, they are .liable to be convicted under Section 302/34. IPC and have been rightly sentenced to life imprisonment. But, when we come to the rest of the accused persons, that is, appellant Nos. 3 to 8 the matter is slightly different and we do not agree with the findings of the trial Court. 14. 1&2 are concerned, they are .liable to be convicted under Section 302/34. IPC and have been rightly sentenced to life imprisonment. But, when we come to the rest of the accused persons, that is, appellant Nos. 3 to 8 the matter is slightly different and we do not agree with the findings of the trial Court. 14. As noted above, the prosecution evidence is consistent in so far as these appellants, that is, appellant Nos. 3 to 8 are concerned. They did not even touch the body of the deceased. They assaulted the prosecution party injuring them in various manners. From this it cannot be inferred that they were there with the common object of killing Ram Swarath Rai or even having intention to kill any other person. 15. Learned counsel for the appellants submits that the evidence of the prosecution ought not to be relied upon inasmuch as all material prosecution witnesses are close relations of the deceased. They are interested witnesses. We are not impressed. The Investigating Officer has established that they are all neighbours along with the accused persons. Their presence has been established. They have withstood with cross-examination. They have been variously injured. The injuries have been proved. Except for the son of the deceased, they do not tend to gain anything from the conviction of the appellants extenso sensu. They cannot be termed as highly interested witnesses and their evidence cannot be discarded in these circumstances. It was then urged that the injuries on the appellant Nos. 1 &2 have not been explained by the prosecution. We may notice that appellant Nos. 1&2 turned up at the hospital sometime after the fardbeyan of this case is recorded. Their injuries are not such which would show that it was the prosecution party that was the aggressors. If what is alleged by the defence is to be accepted, then it is not explainable as to why the two appellants escaped with such minor injuries at the hands of 7 or 8 prosecution witnesses. whereas the prosecution side suffered fatal and serious injuries. Thus, there is no substance in these defence submissions. 16. If what is alleged by the defence is to be accepted, then it is not explainable as to why the two appellants escaped with such minor injuries at the hands of 7 or 8 prosecution witnesses. whereas the prosecution side suffered fatal and serious injuries. Thus, there is no substance in these defence submissions. 16. In our view, learned counsel for the defence has rightly relied on two recent judgments of the Apex Court in the case of Kuldip Yadav and others v. The State of Bihar, since reported in (2011), 5 SCC 324, and Shaji and others v. State of Kerala, since reported in 2011 (3) East; Cr C, 55 (SC): (2011) 5 SCC 423 for submitting that for convicting an accused 'with the aid of Section 149 the Court has to give a clear finding regarding nature of unlawful common object, mere fact that they were armed is not sufficient to prove common object. There must be cogent evidence to show their incriminating acts done to accomplish common object. 17. In our view, from the sequence of events as established by the prosecution, we do not feel persuaded to hold that there was a common object of forming an unlawful assembly for killing Ram Swarath Rai. In absence of such material pointing to any incriminating act done to accomplish common object of the unlawful assembly, it is difficult to uphold the conviction of the rest of the appellants for offence punishable under Section 302, IPC with aid of Section 149, IPC. Thus, appellant Nos. 3 to 8 are acquitted of the charge under Section 302/l49. IPC However, the fact remains that the prosecution evidence establishes the rest of the appellants that is, appellant Nos. 3 to 8 having formed an unlawful assembly and indulged in rioting, they cannot escape, the punishment under Sections323/324 and 147. IPC 18. Thus, the appeal so far appellant Nos.1 and 2 are concerned stands dismissed. They are on bail. Their bail bond is cancelled. They are directed to surrender immediately before the Court below to serve out remaining sentence. Although appellant No. 3 was charged for the offence under Section 148, IPC he is held guilty for the offences under Sections 323, 324 and 147, IPC together with appellant Nos. 4 to 8 who were charged under Sections 323, 324 and 147, IPC. 19. They are directed to surrender immediately before the Court below to serve out remaining sentence. Although appellant No. 3 was charged for the offence under Section 148, IPC he is held guilty for the offences under Sections 323, 324 and 147, IPC together with appellant Nos. 4 to 8 who were charged under Sections 323, 324 and 147, IPC. 19. Coming to the question of sentence, so far as appellant Nos. 1&2 are concerned, we are not interfering with the conviction and sentence awarded to them by the trial Court, but so far as the rest of the appellants are concerned, that is, appellant Nos. 3 to 8, in view of the fact that it was a spontaneous action, we feel that the interest of justice would be served by ordering their sentence for the offence for which their conviction has been upheld to be the period of imprisonment already suffered by them in course of investigation, trial and after trial before the judgment. 20. With the above modification, the appeal is dismissed. Ashwani Kumar Singh, J.-I agree. Appeal dismissed.