JUDGMENT D.N. Upadhyay, J. The above criminal appeals have been preferred against the judgment of conviction and sentence dated 12th July, 2007, passed by 1st Additional Sessions Judge, Godda in connection with Sessions Trial No.5 of 2005 / 26 of 2006, arising out of Boarijore (Lalmatia) P.S. Case No. 135/2003 corresponding to G.R. Case No. 1273/2003 whereby and whereunder the appellants have been held guilty for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and Section 27 of the Arms Act and accordingly sentenced to undergo R.I. for life under Section 302/149 of the Indian Penal Code and R.I. for three years under Section 27 of the Arms Act. Both the sentences were directed to run concurrently. 2. The facts emerging from the record available before us is that on 17.12.2003 at about 3.00 p.m. Hakim Murmu (deceased) and Surya Narayan Hansda were working in their potato fields situated near their house. In the mean time the appellants, with their associates armed with pistol and musket (kind of country made fire arm), appeared and chased Hakim and Surya Narayan with intention to kill them. The duo in order to save their lives ran from the place but after covering distance up to one kilometer, at a place near village New Bhoraitola Hakim Murmu was overpowered but Surya Narayan somehow escaped. Hakim Murmu was shot at by one of the accused Kloud Kisku as a result he died at the spot. The occurrence was witnessed by the informant Beta Ram Murmu who happens to be brother of the deceased and his fardbeyan was recorded on 17.12.2001 at 16.00 hours at the place of occurrence on the basis of which Boarijor (Lalmatia) P.S. Case No.135 of 2003 under Section 302/34 I.P.C. and Section 27 of the Arms Act was registered against the appellants, other named accused and 2-3 unknown persons. During investigation these appellants were apprehended whereas other accused remained absconding and therefore, the appellants were chargesheeted to face trial for the offences punishable under Sections 147, 148, 149 & 302 of the Indian Penal Code and Section 27 of the Arms Act. 3. The appellants had denied the charges framed under Section 302/149 I.P.C. and Section 27 of the Arms Act and hence put on trial. 3. The appellants had denied the charges framed under Section 302/149 I.P.C. and Section 27 of the Arms Act and hence put on trial. The prosecution has examined altogether 10 witnesses and proved documents and material exhibits to substantiate the charges whereas 3 witnesses have been examined on behalf of defence. The prosecution witnesses are Mangal Murmu PW-1, Janjin Hansda PW-2, Kisto Pandit PW-3, Dr. Dilip Kumar Choudhary PW-4, Pakku Kisku PW-5, Stifan Murmu PW-6, Nilmani Murmu PW-7, Beta Ram Murmu (informant) PW-8, Bishnu Rajan (I.O.) PW-9 and Vijay Bhushan Minj (formal witness) PW-10. The material witnesses on the facts are PW-1, PW-2 PW-5, PW-7 and informant PW-8. Kisto Pandit PW-3 has been declared hostile and Vijay Bhushan Minj PW-10 is a formal witness. 4. The sum and substance of the evidences adduced by aforesaid material witnesses is that on 17.12.2003 in the afternoon while Hakim Murmu and Surya Narayan Hansda were working in their potato field, they were chased by the appellants and their associates who were armed with pistol and musket. Both of them ran towards village New Bhodaitola to save their lives but Hakim Murmu was overpowered on the road near New Bhodaitola whereas Surya Narayan Hansda escaped. The appellants and their associates had surrounded Hakim Murmu and a shot from close range was fired by accused Kloud causing a wound of entry and wound of exit near the temporal region and Hakim Murmu died at the spot. 5. Dr. Dilip Kumar Choudhary PW-4 had conducted post mortem examination on 18.12.2003 at 12.45 p.m. and the had Doctor noticed a circular wound (lacerated) on the right temporal region of the skull with powder mark black in colour around 2” above the root of the ear and one lacerated wound 1” above the left ear, ear root in the left temporal region of the scalp measuring 3” x 4 ½” with expose wound having a circular hole in the same. These injuries were ante mortem and caused by fire arm. The wound on the right temporal region was being the wound of entry whereas the wound on the left temporal region was being the wound of exit. The death was caused due to said fire arm injury and the time elapsed since death till post mortem examination was 12-24 hours. The post mortem report has been proved and marked exhibit-1. 6. The death was caused due to said fire arm injury and the time elapsed since death till post mortem examination was 12-24 hours. The post mortem report has been proved and marked exhibit-1. 6. Bishnu Rajak PW-9 was the Investigating Officer and according to his evidence on 17.12.2003 at about 15.30 hours he heard rumour that Kloud Kisku along with his associates has been chasing family members of Mahendra Hansda in order to kill them. Accordingly Station Diary entry No.296 dated 17.12.2003 was made and this witness proceeded from police station to the place of occurrence. The fardbeyan of Beta Ram Murmu was recorded on the basis of which this case was registered and he has proved the fardbeyan (exhibit-4). He had inspected the place of occurrence and seized the projectile from the place of occurrence where the dead body was lying. The first place of occurrence i.e. the potato field where the deceased was working was also examined and has been described in para 3 of his deposition. The inquest report (exhibit-5) was also prepared at the place of occurrence. The projectile was produced before the Court during trial which has been marked material exhibit-1. The I.O. had recorded the statement of witnesses and submitted chargesheet after completion of the investigation against the appellants and the remaining accused were shown absconder. 7. Before reproducing the evidence of material witnesses, we feel it desirable to name the remaining witnesses – either formal or hostile. Keshav Pandit (P.W.-3) has stated that he had seen the dead body of Hakim Murmu, who was killed by some person known as Paswan. On 'Hulla' he had gone to the place of occurrence. He did not support part of his statement and declared hostile. Stephen Murmu (P.W.-6) is a hearsay witness, who also went to the place of occurrence and seen the dead body of Hakim Murmu. He had had talk with Beta Ram Murmu (informant – P.W.-8) who disclosed before him names of assailants including names of these appellants. He has further said in his gross examination that many villagers had reached to the place but he could not name all of them. Vijay Bhushan Minz (P.W.-10) happens to be Police Officer and he is a formal witness who has proved writing of Vishnu Rajak, which has been marked as Exts. -5 and 5/1. He has further said in his gross examination that many villagers had reached to the place but he could not name all of them. Vijay Bhushan Minz (P.W.-10) happens to be Police Officer and he is a formal witness who has proved writing of Vishnu Rajak, which has been marked as Exts. -5 and 5/1. Now the evidence of Mangal Murmu (P.W.-1), Janjin Hansda (P.W.-2), Pakku Kisku (P.W.-5), Nilmuni Murmu (P.W.-7), Beta Ram Murmu (P.W.-8 – Informant) are left to be discussed. 8. The informant has fully supported the prosecution case as made out by him in his Fardbayan. He has deposed that on 17.12.2003, at about 3:00 p.m. while he was sitting in front of the door of his house, he had seen all the eight accused persons who are named in the F.I.R. alongwith their 2 – 3 unknown associates coming towards the potato field and they all were armed with pistol and Musket. No sooner they reached to the place, John Hansda told to kill whereafter Hakim Murmu and Surya Narayan Hansda to save their life, ran towards North to the direction of village Bhodai. The accused persons chased their target. This witness along with P.Ws.-1, 2, 5 and 7, followed the miscreants. It is disclosed that on a road near Bhadoi Tola, the accused persons succeeded to over power one of the target Hakim Murmu but Surya Narayan somehow escaped. The appellants and their associates scuffled with the deceased and after pulling him down, one of the accused Cloud Kisku caused injury to the deceased on his temporal region by means of fire arm from a close range. Thereafter the miscreants took to their heels whereas other witnesses and villagers assembled at the place. The Police party also arrived at and recorded Fardbayan of informant. The Fardbayan was attested by Mangal Murmu (P.W.-1). The investigation commenced at the place of occurrence itself after which the blood stained earth and projectile lying near the dead body were seized. The inquest report was also prepared. 9. We think that reproduction of the statement of remaining witnesses i.e. P.Ws.-1, 2, 5 and 7 are not very much essential at this point of time and the same may be referred at the later stage whenever reference is required. But it is necessary to mention that the said witnesses have more or less corroborated the evidence of P.W.-8. 10. We think that reproduction of the statement of remaining witnesses i.e. P.Ws.-1, 2, 5 and 7 are not very much essential at this point of time and the same may be referred at the later stage whenever reference is required. But it is necessary to mention that the said witnesses have more or less corroborated the evidence of P.W.-8. 10. The appellants have also examined three witnesses in order to show that John Hansda was not present at the place of occurrence and he was busy in attending his duty. A further step was taken to bring on record that Beta Ram Murmu, who is the informant, was also not present at the time of incidence at the place. 11. The learned counsel appearing for the appellants has assailed the judgment on various grounds. The main contention on behalf of appellants is that the evidence of material witnesses is highly contradictory, untrustworthy and it was exaggerated by them at the time of their deposition in Court. In this regard it was pointed out that the witnesses who have claimed themselves to be the eye witness had never stated about the specific overt act committed by any of the appellants in their statement recorded under Section 161 of the Cr.P.C. but in Court they have gone to the extent of saying that the deceased was caught by them at the time he was shot at by accused Kloud. The informant in para 2 has stated that Kloud caused injury to Hakim on his left temporal region from a close range by means of a musket but the doctor has found wound of entry on right temporal region meaning thereby the shot was fired at right side of the head. The findings of the doctor is also contradictory to the ocular evidence. The witnesses have stated that fire was shot from close range but the post mortem report does not contain necessary findings which requires if the shot was fired from such range. The next contradiction pointed out is holding of respective weapon by the respective accused whose name finds mentioned in the fardbeyan and the deposition of witnesses. It is not very consistent as to who was carrying pistol and who was having musket in his hand. The next contradiction pointed out is holding of respective weapon by the respective accused whose name finds mentioned in the fardbeyan and the deposition of witnesses. It is not very consistent as to who was carrying pistol and who was having musket in his hand. The learned counsel for the appellants has also tried to bring to our notice that no incident had taken place at the place identified by the witnesses and the I.O. Some of the witnesses have admitted that there were houses near the place of occurrence but some of them have denied it. It is admitted case of the prosecution that the place where the deceased was shot at is situated at New Bhodaitola. 12. It was vehemently argued that none of the appellants participated in assault and it was only accused Cloud Kisku who shot at. Simply presence of the appellants at the spot, is not sufficient to hold them guilty with the aid of Section 149 of the Indian Penal Code. Furthermore, all the witnesses are closely related to the deceased and, therefore, all of them are highly interested witnesses. The aforesaid witnesses have admitted in their deposition that many villagers had assembled but no independent witness has come forward to support the prosecution evidence as brought on record by so called eye witnesses. 13. Learned counsel appearing for the State has supported the impugned Judgment and submitted that all the appellants were seen chasing the deceased and they were having fire arm in their possession. After they overpowered the deceased, one of the members of the said unlawful assembly caused gun shot injury. On the basis of the evidence available on record, learned Sessions Judge has rightly held the appellants guilty under Section 302/149 of the Indian Penal Code and the impugned Judgment needs no interference. 14. We have carefully gone through the evidence on record and the documents proved. It is admitted case of the prosecution that no appellant before us in these appeals had caused injury to the deceased by the respective weapons which they had been carrying. Therefore, we have to consider whether the appellants were members of an un-lawful assembly? Whether the common object of the said unlawful assembly was to commit the murder of Hakim Murmu? Whether the members of that assembly knew it to be likely to be committed in prosecution of that common object? Therefore, we have to consider whether the appellants were members of an un-lawful assembly? Whether the common object of the said unlawful assembly was to commit the murder of Hakim Murmu? Whether the members of that assembly knew it to be likely to be committed in prosecution of that common object? Before answering to above questions, we feel inclined to reproduce Section 141 and 142 of the Indian Penal Code, which are as under : Section 141 Unlawful Assembly. An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is First – To overawe by criminal force, or show of criminal force, or any public servant in the exercise of the lawful power of such public servant; or Second -To resist the execution of any law, or of any legal process; or Third-To commit any mischief or criminal tresspass, or other offence; or fourth-By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. Section 142 Being member of unlawful assembly 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. 15. It is evident from the deposition of the informant – P.W.-8 that on the date of incident, Hakim Murmu and Surya Narayan Hansda were working in their potato field situated near their house. In the mean time, at about 3:00 p.m., these appellants with their associates, armed with fire arms like Musket and pistol, jointly appeared. The appellant John Hansda ordered his associates pointing towards deceased and his companion to kill them. The deceased and his companion apprehending danger of their lives, ran towards North to the direction of village New Bhudai Tola. In the mean time, at about 3:00 p.m., these appellants with their associates, armed with fire arms like Musket and pistol, jointly appeared. The appellant John Hansda ordered his associates pointing towards deceased and his companion to kill them. The deceased and his companion apprehending danger of their lives, ran towards North to the direction of village New Bhudai Tola. They were chased by the appellants with their associates and after covering distance of about 1:00 kms. on the road at a place near Bhodai Tola, Hakim Murmu was overpowered whereas Surya Narayan escaped. The deceased was surrounded by the miscreants and one of their associates namely Cloud Kisku opened fire from Musket from a close range on the temporal region of the deceased. In the result, he died at the spot. This version of the informant find support from the evidence of P.Ws.-1, 2, 5 and 7, who were also following the deceased and the appellants. P.W.-7 is none else but the mother of another target Surya Narayan Hansda, who could not be apprehended. The remaining witnesses are admittedly relatives having their respective residence near the first place of occurrence, had occasion to notice the alarm raised and the hue and cry occurred at the first place of occurrence, which was the potato field. 16. When we go through the evidence of the investigating officer where he has described the first place of occurrence, we find that the Investigating Officer had noticed the potato crop crushed by foot steps at the place. This indicates that the accused persons had tried to targed the deceased at the potato field itself and, therefore, the evidence on record conclusively suggests that the deceased and his associates were chased from that potato field, which was the first place occurrence. 17. Now coming to the second place of occurrence where the dead body of Hakim Murmu was noticed not only by the relative witnesses but also by the villagers. This place of occurrence could also not be denied because the projectile was detected lying near the dead body and it was seized by the Police. The seized projectile was duly produced before the court during trial and marked M.Ext.-I and seizure list has also been proved. Blood stained earth were also seized from the second place of occurrence. 18. This place of occurrence could also not be denied because the projectile was detected lying near the dead body and it was seized by the Police. The seized projectile was duly produced before the court during trial and marked M.Ext.-I and seizure list has also been proved. Blood stained earth were also seized from the second place of occurrence. 18. In a case where eye witnesses are available and their evidence appear to be convincing and trustworthy, non sending of blood stained earth for serological test or non sending of the regular bullet/ projectile to the Forensic Science Laboratory, will not falsify the place of occurrence or the manner of incident. It is true that the witnesses in the deposition in Court have exaggerated their version by saying the specific overt act committed by the appellants and other accused. In this context, it is required to visualise the occurrence in the backdrop of evidence available on record. The scene was that the deceased and his companion were running to save their lives because 8 – 12 accused, armed with pistol and musket, were chasing them and the chase continued about 1 kms.. After seeing such situation, the witnesses, who are related to the deceased, also followed them. Before the witnesses could make them in a position to provide any help to the deceased, he was overpowered and shot at. In such situation, to describe the actual role played by each of the accused was quite impossible. 19. The prosecution has relied on the Judgment in the case of Masalti Vs. State of U.P. and other analogous cases [ AIR 1965 SC 202 ]. The relevant paragraphs of the said Judgment, would also answer the application of Section 149 of the Indian Penal Code. Relevant para-15 and 16 of the said Judgment is being quoted as under: “15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. This criticism again is not well founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapon carried by the me mbers of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not. In the present case, the High Court has in fact refused to act upon the evidence of Bahoran and Prabhu Dayal, because it appeared to the high Court that the evidence of these two witnesses suffered from serious infirmities. 16. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses, who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidences that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.” The principle laid down by the Apex Court in the case of Masalti (Supra) has again been relied upon by the Apex Court in the case of Dharnidhar Vs. State of Uttar Pradesh and others and other analogous cases [ (2010) 7 SCC 759 ]. Relevant para 45 of the said Judgment is being quoted hereunder:- “45. The principles controlling the application of provisions of Section 149 have been quite well settled by now. Years back, the Bench of this Court in Masalti v. State of U.P. Declared the dictum of law that the prosecution has to prove against a person, who is alleged to be a member of an unlawful assembly, that the person constitutes the assembly and has entertained along with the other members of the assembly, the common object, as defined by Section 141 IPC. The crucial question to be determined 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. For determination of the common object of the unlawful assembly, the conduct of each of the members of the said assembly before the attack, at the time of attack and thereafter, as well as the motive for the crime are some of the relevant considerations. However, the time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. However, the time of forming an unlawful intent is not material because it is possible that in a given case an assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot eo instanti.” 20. The ratio decided in the Judgment cited above are quite applicable in the case at hand. The evidence on record conclusively proves that the assemblage of the appellants and their associates was more than five and they all appeared at the scene of occurrence, having fire arm in their possession. One of the appellants John Hansda pointed out the target whereafter the appellants with their associates chased the deceased and his companion followed by the witnesses. The deceased was overpowered by the appellants and their associates at a place near Bhadoi Tola and finally he was shot at. The aforesaid facts clearly attract the ingredients enumerated under Section 141 and 142 of the Indian Penal Code. The common object of the said unlawful assembly was to kill the deceased which could well be gathered from the conduct of the appellants and other accused, therefore, even if we exclude that part of the evidence of prosecution witnesses in which they have described the role played by the appellants, the facts remain that the appellants were having fire arm in their possession, they appeared together, chased the deceased and one of the members of said assembly caused gun-shot injury to the deceased. 21. We are also of the same opinion as formed by the learned Sessions Judge that the plea of alibi taken by one of the appellants John Hansda has not successfully been proved and the presence of informant has not been disbelieved by examining the defence witnesses. 22. After having careful consideration of the facts and evidence available on record and related law, we find no merit in these appeals and the same stands dismissed. Consequently, the Judgment of conviction and sentence dated 12th July, 2007, passed by st Additional Sessions Judge, Godda in connection with Sessions Trial No.5 of 2005 / 26 of 2006, is hereby affirmed and these appeals are dismissed.