JUDGMENT SURINDER SINGH, J. The appellants aforesaid were charge-sheeted and tried for the offences punishable under Sections 302, 341, 342, 382, 323, 147 148, 149, 504 Indian Penal Code by the learned Additional Sessions Judge in Sessions trial No. 14 of 2010 and vide its judgment dated 27.10.2010, they were acquitted of the offence punishable under Section 302 read with Section 149 Indian Penal Code, but sentenced to undergo imprisonment for other offences as follows:- Sl. No. Offence Under Section Sentence 1. 341/149 I.P.C. Simple Imprisonment for a period of one month and to pay fine of `500/- in default, to further undergo simple imprisonment for seven days. 2, 342/149 I.P.C. Rigorous Imprisonment for a period of six months and to pay fine of `1000/- in default, to further undergo simple imprisonment for one month. 3. 323/149 I.P.C. Simple Imprisonment for a period of six months and to pay fine of `1000/- in default, to further undergo simple imprisonment for one month. 4. 382/149 I.P.C. Rigorous Imprisonment for a period of five years and to pay fine of `5000/- in default, to further undergo simple imprisonment for three months. 2. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, appellants, hereinafter referred to as the “accused persons” have filed their separate appeals, which are taken up together for its decision having arisen out of the common judgment. 3. The prosecution story in brief as emerges from the evidence on record can be stated thus. Santosh Kumar (deceased) was the brother of PW2 Virender Singh. In the year 2010 both of them were running a mobile-shop in main Bazar at Nadaun. PW3 Manoj Kumar, PW4 Santosh Kumar and Vinod Kumar were their employees. PW1 Ajay Kumar, the friend of deceased Santosh Kumar, was also running an electric goods shop at village Badaran (Hamirpur). (ii) On 31.12.2009 in the evening at about 5/6 p.m. PW1 Ajay Kumar had come to visit Nadaun Bazar to purchase some articles. Manoj Kumar and Santosh Kumar aforesaid were related to him. Around 7 p.m., he visited their shop. After closing their shop, Santosh Kumar and Manoj Kumar were to visit village Kudiana. Ajay Kumar aforesaid also requested them to give a lift on their motor cycle to their village. Manoj Kumar drove the motor cycle bearing registration No.HP-55-6040, whereas Santosh Kumar and Ajay Kumar were pillion riders. Around 7 p.m., he visited their shop. After closing their shop, Santosh Kumar and Manoj Kumar were to visit village Kudiana. Ajay Kumar aforesaid also requested them to give a lift on their motor cycle to their village. Manoj Kumar drove the motor cycle bearing registration No.HP-55-6040, whereas Santosh Kumar and Ajay Kumar were pillion riders. When they were passing through village Jhallan in front of Dhaba owned by accused Ashwani Kumar, they saw all the accused persons present there, dancing on the road to celebrate the New Year eve. Accused Ashwani Kumar stopped the motorcycle. All other accused persons flanked the complainant party. They hurled filthy abuses to them and asked them to get down from the motor cycle and enjoy drinks with them. On having been defied by the complainant party, accused persons felt annoyed and started dragging them from the motorcycle. Santosh Kumar was caught by Ashwani Kumar, Vijay Kumar and Ajay Kumar. Virender Kumar accused caught hold of Ajay Kumar. Accused Sunil Kumar @ Sheelu dragged PW3 Manoj Kumar which resulted into tilting of the motor cycle on the road. Santosh Kumar (deceased) and Ajay Kumar were fisticuffed and given kick blows by them. (iii) PW4 Santosh Kumar was engaged by accused Ashwani Kumar to prepare feast on hearing commotion, he fled away. Accused Vijay Kumar hit Ajay Kumar (PW1) with iron rod Ext. P8. PW3 Manoj Kumar picked up his helmet in his hand but it was snatched by accused Sunil Kumar @ Sheelu. But Manoj Kumar made an escape from the spot and concealed himself behind the bushes at some distance and heard the accused persons saying as to why PW1 Ajay Kumar did not provide DJ music system to them. He also saw that Vijay Kumar accused had hit Santosh Kumar with an iron rod Ext. P8 and Ashwani Kumar dealt a grip blow on his face and head. PW Ajay Kumar took to his heels from the spot. Manoj Kumar had seen the entire incident while concealing himself in the bushes in the electricity lights of the Dhaba of accused Ashwani Kumar which was electrified by 4/5 electric bulbs outside. Someone from the accused persons informed the police. (iv) H.C. Bir Bhagwan Dass was present on the spot, who allegedly sided with the accused persons and gave kick blow to Santosh Kumar. Someone from the accused persons informed the police. (iv) H.C. Bir Bhagwan Dass was present on the spot, who allegedly sided with the accused persons and gave kick blow to Santosh Kumar. Apprehending danger to his life, even at the hands of police, PW3 aforesaid remained concealed in the bushes and heard HC Bir Bhagwan Dass saying that Santosh Kumar sustained injuries because of motor vehicular accident and he took Santosh Kumar injured away from that spot. Manoj Kumar came out of his hide-out and tried to contact PW2 Virender Singh brother of the deceased Santosh Kumar but his phone was missing. Thereafter Virender Kumar contacted Manoj Kumar on his mobile, it was then, he narrated the entire incident to him. Thereafter Virender Singh had tried to contact his brother Santosh Kumar (deceased) on his mobile, it was picked up by H.C. Bir Bbhagwan Dass who was posted in police station Nadaun. He informed him that his brother Santosh Kumar had met with an accident and was taken to CHC Nadaun where he was medically examined by PW10 Dr. Resham Singh. The doctor noticed as much as five injuries on his person. The deceased was also subjected to X-ray but no fracture was seen. In his opinion, all the injuries were simple in nature but injury No. 5 could be caused by sharp weapon. He issued the medico legal certificate Ext. PW10/B. According to him, the police had given the history of fall from motorcycle, however, as per the clinical examination, injures did not correspond to the history of fall narrated. He also opined that injury No. 3, i.e., multiple bruise was apparently caused by beating. (v) On 2.1.2010, he found said Shri Santosh Kumar fit to make statement and gave his opinion Ext. PW10/C. It was thereafter the statement of Santosh Kumar deceased was recorded under Section 161 of the Code of Criminal Procedure. On 3.1.2010 he was discharged from the hospital. (vi) Later Santosh Kumar aforesaid was admitted in RPGMC Tanda On 9.1.2010. PW23 Dr. Goldee around 3.45 p.m was given the history of assault on 31.12.2009. Santosh Kumar had sustained multiple injuries on his back, forehead, eyes and abdomen. There was an active problem of shortness of breath. The injured was seen by SR surgery chest and TB. (vi) Later Santosh Kumar aforesaid was admitted in RPGMC Tanda On 9.1.2010. PW23 Dr. Goldee around 3.45 p.m was given the history of assault on 31.12.2009. Santosh Kumar had sustained multiple injuries on his back, forehead, eyes and abdomen. There was an active problem of shortness of breath. The injured was seen by SR surgery chest and TB. They were of the view that there was no active problem from their side except fracture of rib which was not found in his earlier medical examination. But, his investigation revealed 353 mg% urea 18.4% creatiniene. Ultra sound of abdomen was showing decreased CMD with minimum fluid in paracolic gutters. Finally due to lack of dialysis facility in RPGMC Tanda, the injured was referred to PGI, Chandigarh. The case summery is Ext. PW23/A. (vii) Thereafter, PW2 Virender Singh and Anil Kumar rushed to CHC Nadaun on their bike. On reaching CHC, he noticed that his brother Santosh Kumar was having some injuries on his different parts of body and was unconscious. (viii) PW3 Manoj Kumar in the morning of 1.1.2010 visited CHC Nadaun and found Virender Singh present there. He received telephonic message from PW1 Ajay Kumar. According to him, in his presence, accused also robbed ` 34,000/-from deceased Santosh Kumar along with a gold ring. (ix) During the intervening night of 31.12.2009 and 1.1.2010 around 1.00 am PW1 informed Ajay Kumar brother of the deceased about the incident. In the morning around 8.30 a.m., Ajay Kumar reached CHC Nadaun where he met Virender Kumar and Anil Kumar and narrated the entire incident to him. Thereafter PW1 and PW2 went to the Police Station to lodge the FIR. At Nadaun H.C. Bir Bbhagwan Dass met them and recorded his statement Ext. PW1/A. Since Ajay Kumar was having injury on his forehead, he was taken for his medical examination to CHC Nadaun. PW21 on the receipt of the Ruka Ext. PW1/A formally recorded the FIR Ext. PW21/A. (x) Police visited the place of the alleged incident and recovered one grip Ext.P2 and mobile Ext.P2 which were found lying there. These articles were made in a separate parcel and sealed and taken into possession vide memo Ext. PW1/B. Police also prepared the site plan of the place of incident. PW1/A formally recorded the FIR Ext. PW21/A. (x) Police visited the place of the alleged incident and recovered one grip Ext.P2 and mobile Ext.P2 which were found lying there. These articles were made in a separate parcel and sealed and taken into possession vide memo Ext. PW1/B. Police also prepared the site plan of the place of incident. (xi) It is alleged that on 2.1.2010 when PW1 revisited CHC Nadaun and met Santosh Kumar, he was in his senses and told him that he was compelled by the accused persons to take liquor and that they poured chilly powder on his body and took away the sale proceeds of that day which were with him along with a gold ring. Police also took into possession blood stained jacket Ext.P5 one sweater Ext.P6 and pants Ext. P7 pertaining to deceased Santosh vide seizure memo Ext. PW1/C. (xii) On 6.1.2010 PW Ajay Kumar aforesaid was called at the spot by the police. Accused Virender Singh @ Monu was in the custody of the police. In his presence he got recovered one iron rod Ext. P8 from the roof of Dhaba of Ashwani Kumar vide memo Ext. PW1/D. (xiii) On 13.1.2010 Santosh Kumar (deceased) was taken to PGI Chandigarh where he died allegedly on account of the injuries received by him during the incident, as such police converted the case under Section 302 Indian Penal Code and the accused persons were arrested. (xiv) The autopsy of the dead body was conducted by PW20 Dr. S.P. Mandal. The report is Ext. PW20/A. He found right 6 ribs fractured and adherent muscles had shown extraversion of blood. There was also subaponeurotic haemotoma 14x8x0.2 cm present on frontal, right parietal and righttemporal regions of the scalp. Subdural subarachnoid haemorrhages were found present all over the brain. Brain was congested and oedematous. The tonsils and oncliae were grooved. Till the receipt of the surgical histo, pathology reports and postmortem examination, the final cause of the death was kept pending. (xv) PW19 Dr. Ashim Dass, Additional Professor Department of Histopathology, PGI Chandigarh, had conducted the examination of kidneys, spleen, liver heart, lungs. All the tissues show extensive autolytic changes. The kidneys showed a mild lymphoplasmachtic cell in the interstitial with dialated tubules showing features of acute tubular necrosis. The heart had shown no interstitial Iedema. (xv) PW19 Dr. Ashim Dass, Additional Professor Department of Histopathology, PGI Chandigarh, had conducted the examination of kidneys, spleen, liver heart, lungs. All the tissues show extensive autolytic changes. The kidneys showed a mild lymphoplasmachtic cell in the interstitial with dialated tubules showing features of acute tubular necrosis. The heart had shown no interstitial Iedema. The lungs were having changes of bronchopneumonia with hyaline membrane formation indicating acute respiratory distress syndrome. The report is Ext. PW19/A. In the opinion of Doctor PW10 Dr. Resham Singh, the death of deceased Santosh Kumar was caused due to injuries described in the postmortem report. (xvi) On 22.1.2010 police interrogated Ajay Kumar. In his presence, Sunil Kumar @ Sheelu who was in the police custody, produced helmet Ext. P9 belonging to Manoj Kumar (PW3) which was taken into possession vide memo Ext. PW1/E (xvii) PW21 Inspector Bahadur Singh during the investigation on 22.1.2010 recovered brake-wire Ext. P14 on the demarcation of accused Sunil Kumar @ Sheelu which was taken into possession vide memo Ext. PW11/A. Police also took into possession the license (Ext. PW21/D) of the dhaba of accused Ashwani Kumar vide seizure memo Ext. PW21/C. During the investigation, police also found that HC Bhagwan Dass had wrongly prepared the report regarding motor vehicle accident qua the deceased which was false, to shield the accused persons, as such a separate FIR against him was registered under Section 218 of the Penal Code which was investigated separately. 4. After completing investigation, in the present case, challan under the aforesaid Sections was presented in the court for the trial of the accused persons. 5. Accused persons were accordingly charge- sheeted for the offences aforesaid to which they pleaded not guilty and claimed trial. 6. To prove its case, prosecution examined its witnesses and accused persons were also examined under Section 313 of the code of Criminal Procedure. The circumstances which were found attendant upon each of them were put but they denied their involvement in the alleged offences. 7. When called upon to enter into their defence no evidence in defence was led. 8. At the end of the trial, accused persons were acquitted of the charge under Section 302 read with Section 149 of the Indian Penal Code as in the opinion of doctor PW3 Dr. 7. When called upon to enter into their defence no evidence in defence was led. 8. At the end of the trial, accused persons were acquitted of the charge under Section 302 read with Section 149 of the Indian Penal Code as in the opinion of doctor PW3 Dr. Goldee, it was a case of renal failure, that is why, the patient was referred to PGI Chandigarh having the involvement of kidney. But they were convicted under various other Sections of Indian Penal Code, as aforesaid, thus finding seven FIRs against accused Ashwani, five FIRS against accused Vijay Kumar, two against Ajay Kumar, the learned trial Court sentenced each of accused persons as aforesaid. 9. The learned counsel appearing for the accused persons vehemently argued that it was a case of accident and the accused persons were roped in a false case. Further that there is no evidence to convict and sentence the accused persons for the offence punishable under Section 382 of the Indian Penal Code. In addition, Shri Anup Chitkara, learned counsel for accused Ajay Kumar and Vijay Kumar forcefully argued that their names neither find mentioned in FIR nor there is cogent evidence to connect them with the alleged offences. 10. Contra Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and argued that recovery reveals that accused persons had formed a gang and were involved in various criminal activities in and around the area. Thus, they are habitual offenders. Therefore, the sentence may not be interfered with. 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously gone through the evidence on record. 12. As already stated above, the Head Constable Bir Bhagwan Dass was booked for framing incorrect record for the offences aforesaid. Initially during the prosecution case, he had tried to give a different colour to the actual incident and the learned trial Court aptly observed that the criminal justice should not be made a causality for the wrong committed by the Investigating Officer. Otherwise also, the theory of accident, as initially propounded was neither put in defence in the statement of the witnesses of the prosecution nor it was a case of accused persons that Santosh Kumar aforesaid and pillion riders had sustained injuries in some vehicular accident. Otherwise also, the theory of accident, as initially propounded was neither put in defence in the statement of the witnesses of the prosecution nor it was a case of accused persons that Santosh Kumar aforesaid and pillion riders had sustained injuries in some vehicular accident. It is evident from the evidence on record that in the evening on 31.1.2009 accused persons had gathered to celebrate the eve of new year day and engaged the services of PW4 to prepare the feast for them in the newly constructed kiosk of Ashwani Kumar accused. When the complainant party had been crossing through the place of celebration on the motorcycle, they were stopped as PW1 had failed to provide DJ music system to them and scolded him and his other companions to which the complainant party objected to, it was then accused persons hurled abuses and dragged them from the motorcycle, fisticuffed each of them and gave kick blows. Manoj Kumar (PW3) aforesaid had managed to escape. The helmet Ext. P1 of Manoj Kumar was got recovered from accused Ajay Kumar. He did not explain as to how he had acquired its possession. PW1 Ajay Kumar was given the blow of iron rod (Ext. P8) which was also recovered at the behest of accused Virender Kumar. 13. PW10 Dr. Resham Singh categorically stated that Santosh Kumar (deceased) had sustained lacerated wound over the forehead, clotted blood was found present around the wound with blood clots and swelling. A lacerated wound over the left eyebrow, clotted with blood. There were multiple bruises six in number, red in colour, extending from back to abdomen right side, swelling around the bruise positive, tenderness positive. He was advised X-rays but no fracture was detected. The multiple abrasions curved shape and red in colour, 5 in number, over the right iliac region was present. The MLR report is Ext. PW10/B. He was categoric in his opinion that these injuries could not be caused in a motor vehicle accident, but did not rule out the possibility of causing these injuries on account of beatings. 14. PW1 Ajay Kumar was also medically examined by PW17 Dr. Kiran Kumar on the history of having been beaten by some persons and found contusion with swelling over postero superior region of scalp central part. It was reddish in colour, tender in nature 5 cm x 3 cm in size. 14. PW1 Ajay Kumar was also medically examined by PW17 Dr. Kiran Kumar on the history of having been beaten by some persons and found contusion with swelling over postero superior region of scalp central part. It was reddish in colour, tender in nature 5 cm x 3 cm in size. The probable duration of injury was 0 to 10 hours. The MLR of Ajay Kumar is Ext.PW17/B. 15. PW4 Santosh Kumar, PW5 Raj Kumar, a drum-beater, PW6 Gulshan Kumar were the witnesses to the recovery of iron pipe. PW9 Vijay Kumar the witness to the disclosure statement of accused Sunil Kumar @ Sheelu, PW11 Raj Kumar, the witnesses of wire Ext. P14 turned hostile as they did not support the prosecution case. However, complainant PW1 Ajay Kumar and PW3 Manoj Kumar categorically stated about the involvement of each of the accused persons in the said incident. Both of them corroborated the prosecution story verbatim in material particulars. They also stated that accused persons had asked them to join the party but on having been refused, accused started hurling abuses to them and also confronted PW1 Ajay Kumar as to why he did not provide DJ music system to them. The place of alleged incident was well electrified and lit, accused persons were well known to the complainant party and there was no question of mistaken identify of any of them. They specified the role of each and every accused, as stated above. PW1 also stated that he along with Santosh Kumar were taken towards the dhaba by the accused persons. Accused Virender Kumar had hit him with iron rod (Ext. P8) and Ashwani Kumar gave a grip blow on the head which fact is corroborated by the medical evidence aforesaid. PW1 Ajay Kumar had managed to escape from the clutches of the accused persons. Though he was followed by accused Sunil Kumar @ Sheelu, but he could not lay-hands. He allegedly threatened him that he would be picked up and killed on finding the opportunity but did not know as to what had happened to Santosh Kumar (deceased). Thereafter he had informed Anil Kumar brother of PW3 Manoj Kumar. He telephonically contacted Virender Kumar. All of them went to CHC Nadaun next day to see the deceased. It was then PW1 Ajay Kumar and Virender Kumar made the statement to H.C. Bir Bahadur which culminated into the FIR. Thereafter he had informed Anil Kumar brother of PW3 Manoj Kumar. He telephonically contacted Virender Kumar. All of them went to CHC Nadaun next day to see the deceased. It was then PW1 Ajay Kumar and Virender Kumar made the statement to H.C. Bir Bahadur which culminated into the FIR. While recording the statement of the complainant H.C. Bir Bahadur did not confront them that it was a case of motor vehicular accident. Both these witnesses were subjected to lengthy cross examination but nothing relevant and material could be extracted from their statements. They also proved the recovery of the rod and grip, as aforesaid, from the spot as also the helmet from the possession of accused Sunil Kumar who failed to explain how he acquired the possession of the same. Though these witnesses were confronted with their earlier statements recorded under Section 161 of the Code of Criminal procedure with respect to the recoveries and also with some of the facts, as deposed by them during the trial but perusal thereof shows that these are very minor contradictions which are bound to occur and it is not possible to have photographic memory of the incident. The accused persons were celebrating the new year which ran into high temper resulting into ugly scene to the shock of the complainant, more specifically, when some of them had criminal history to their credit. The complainant party, because of the criminal background of the accused persons aforesaid, got frightened and tried to run here and there for shelter. The hostility of other witnesses, who are none else than the friends of the accused persons, does not go to the root of the case, in any manner. 16. Further, the non-mentioning of the names of accused persons at Sr. No. 5 and 6 in the FIR is also not fatal to the prosecution, as during the trial aforesaid witnesses have clearly testified about their presence and involvement attributing specific roles to them, which remained unshaken. Admittedly, initially it was not an unlawful assembly but on reaching the complainant party on the spot, accused persons formed an unlawful assembly in prosecution of their common object, i.e., to give beatings to them. Thus, they had waylaid the complainant party, gave threshing to them with the object like grip, iron rod and brake-wire. Admittedly, initially it was not an unlawful assembly but on reaching the complainant party on the spot, accused persons formed an unlawful assembly in prosecution of their common object, i.e., to give beatings to them. Thus, they had waylaid the complainant party, gave threshing to them with the object like grip, iron rod and brake-wire. They used force against them and in that incident, in order to ward-off the assailants the accused persons must have also sustained minor injuries which also establishes their presence. Thus, each accused persons are liable under Section 149 Indian Penal Code being the member of an unlawful assembly with a common object even with or without active participation. 17. In my opinion, the evidence on record clearly proves the involvement of the accused persons for the offences punishable under Section 341, 342, 323, read with Section 149 Indian Penal Code. 18. It is not established that the accused persons have committed the offence punishable under Section 382 Indian Penal Code, for the reasons that there is no cogent evidence on record that any of the accused persons had any dishonest intention to commit theft and/or had made preparation for causing death, hurt and restraint while committing alleged theft and that they did so in order to commit such theft or to effect escape after having committed such theft or to retain property taken by such theft. There is also no evidence that deceased Santosh Kumar had ` 34000/- with him with respect to the sale proceeds of that day and further that the accused persons had intention to take this amount dishonestly from him without his consent. 19. To prove the case under Section 382 of the Indian Penal Code, prosecution is obliged to prove the following essentials:- (i) An intention to take some moveable property (ii) The taking must be dishonest; (iii) It must be from the possession of another; (iv) Without his consent; and (v) In pursuance of it the property must be moved. Further That: (vi) The accused removed any moveable property from out of possession of another person; (vii) That he did so with dishonest intention; and (viii) He did so with preparations to cause death (hurt or restraint) or fear of death (hurt or restraint) while committing theft. 20. Further That: (vi) The accused removed any moveable property from out of possession of another person; (vii) That he did so with dishonest intention; and (viii) He did so with preparations to cause death (hurt or restraint) or fear of death (hurt or restraint) while committing theft. 20. In the instant case the recovery of currency notes of `34000/- allegedly at the behest of accused Ashwani Kumar from the dhaba is neither connected with the theft property nor it is claimed by the accused persons. There is also no explanation with respect to gold ring of deceased Santosh Kumar. It is also neither proved to have been stolen nor recovered. The memo Ext. PW6/A with respect to the disclosure statement is disputed by PW6 Gulshan Kumar, its attesting witness, and pursuant to it, its recovery vide memo Ext. PW6/D dated 6.1.2010 is absolutely denied. There is no reference even in the FIR with respect to carrying of currency notes by Santosh Kumar and this story also did not find mentioned any where when Santosh Kumar was hospitalized. Raj Kumar another witness was not examined. According to PW6, police had obtained his signatures on the pretext that accused persons were released on bail. 21. Thus, in the above circumstances, the ingredients of offence under Section 382 of the Indian Penal code are not proved. Therefore, the accused persons deserve to be acquitted by giving them the benefit of doubt for the offence punishable under Section 382 Indian Penal Code. Thus while affirming the conviction and sentence under Sections 341, 342, 323 read with Section 149 Indian Penal Code, the conviction of accused persons under Section 382 Indian Penal Code is set aside. Accordingly, the appeal is partly allowed. 22. Since the accused persons are stated to be in jail with effect from their arrest during the investigation of this case and have undergone the sentence more than what is awarded for the offences aforesaid, therefore they are ordered to be released forthwith, if not required in any other case. The Registry of this Court to take appropriate steps to issue the release warrants in conformity with this judgment.