JUDGMENT (ORAL) Per Shyam Kishore Sharma, J.- Both the above appeals have been f1led by the appellants named above against the judgment of conviction and order of sentence dated 02.12.1988 passed by 2nd Additional Sessions Judge. Saran at Chapra in Sessions Trial No. 177 of 1983/86 of 1988 by which all the appellants namely, Laloo Roy. Mahesh Roy. Munshi Roy. Bishwanath Roy. Paltu Roy, Ragho Roy (Cr.Appeal (DB) No. 14 of 1989), Ramreet Rcy and Sanchit Roy (Cr. Appeal (DB) No. 40 of 1989) have been convicted under Section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Appellants Ramreet Roy and Sanchit Roy have further been convicted under Section 302 of the Indian Penal Code and have been further sentenced to undergo rigorous imprisonment for life. Appellant Paltu Roy has further been convicted under Section 324 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for two years. The sentences of appellants Ramreet Roy, Sanchit Roy and Paltu Roy have been ordered to run concurrently. 2. On 30th June. 1978 two of the accused-appellants namely Laloo Roy and Paltu Roy were ploughing the field bearing Plot No. 416 having an area of 9 kathas 3 dhurs. The informant (PW 6) reached at the field along with the deceased and others and forbade Laloo Roy and Paltu Roy against ploughing and they informed them that the delivery of possession of the land has been taken by them, Laloo Roy got infuriated and shouted and called upon the group members who were hidden themselves in the orchard of Singhasan Roy, Accused persons namely, Mahesh Roy. Ragho Roy. Sanchit Roy. Munshi Roy. Bishwanath Roy and Ramreet Roy who were carrying traditional weapons came. Paltu Roy was having boola and Laloo Roy was having farsa. Munshi Roy. Bishwanath Roy and Ragho Roy were having lathis. Paltu Roy. Ramreet Roy and Sanchit Roy were having bhalas. Laloo Roy assaulted the informant with farsa and Paltu Roy gave a bhala blow upon the palm of the informant. Ragho Roy and Munshi Roy gave lathi blows. Paltu Roy was having boola and Laloo Roy was having farsa. Munshi Roy. Bishwanath Roy and Ragho Roy were having lathis. Paltu Roy. Ramreet Roy and Sanchit Roy were having bhalas. Laloo Roy assaulted the informant with farsa and Paltu Roy gave a bhala blow upon the palm of the informant. Ragho Roy and Munshi Roy gave lathi blows. Mter seeing injuries upon the informant, Raniayan Roy and Nayak Roy started escaping towards north east but they were chased by the accused persons and after some distance they were encircled and Ramayan Roy was assaulted in the field of Mathura Roy by Sanchit by bhala upon paryra and after receiving injury, he fell down on the earth after covering some distance. Ramreet Roy gave bhala blow to Nayak Roy who sustained injury and after covering some distance he fell down in the field of Chandrika Roy. The accused persons escaped and thereafter the informant was carried to Dariyapur Government Hospital by Chandeshwar Roy (not examined) by motorcycle. The informant knew about the death of Ramayan Roy and Nayak Roy. The occurrence was witnessed by Ram Asharfi Roy (PW 7), Rama Roy (PW 4), Ram Sakal Roy (PW 5), Ram Naresh Roy (not examined) and others. The fardbeyan was witnessed by Sipahi Roy and Jai Mangal Roy (both not examined). The fardbeyan resulted into formal F.I.R against eight named accused persons vide Dariyapur P.S. Case No. 10(6)1978 (G.R Case No. 1290 of 1978). The allegations were investigated into and after completion of investigation charge-sheet was Submitted, Cognizance was taken and the case was committed to the Court of Sessions where charges were framed and explained to the accused persons. They pleaded innocence and preferred to face the trial. Their further defence was that the prosecution party were aggressors and actual version of assault has been concealed. 3. In order to prove its case the prosecution examined altogether sixteen witnesses. They are PW 1 Ramashankar Paswan, PW 2 Sheo Pujan Rai, PW 3 Ramjee Prasad, PW 4 Rama Roy, F.I.R named eye witness PW 5 Ram Sakal Rai, F.I.R. named eye witness, PW 6 Ramjee Prasad Roy, informant of the case, PW 7 Ram Asharafi Roy, F.I.R. named eye witness, PW 8 Dr. Gauri Shankar Pd. Sinha who was posted as Civil Assistant Surgeon in Sadar Hospital. Chapra on 01.07.1978, and conducted post mortem over the dead body of deceased Nayak Roy. Gauri Shankar Pd. Sinha who was posted as Civil Assistant Surgeon in Sadar Hospital. Chapra on 01.07.1978, and conducted post mortem over the dead body of deceased Nayak Roy. PW 9 Dr. N.K.P. Sinha who was also posted as Civil Assistant Surgeon in Sadar Hospital, Chapra on 01.07.1978 and conducted post mortem over the dead body of deceased Narayan Roy, PW 10 Ram Swaroop Singh. PW 11 Dr. Rajendra Prasad Singh who was posted as Medical Officer, Dariyapur State Dispensary on 30.06.1978 and treated injured Ramjee Roy. PW 12 Bihari Prasad Bhagat, PW 13 Asharf! Chaudhary, PW 14 Basudeo Kuer. PW 15 Tebaran Oraon, an ASI of Police and PW 16 Sant Kumar Verma whereas defence examined Bumilal Roy as D.W.1 and Ram Prakash Singh as D.W.2. 4. The trial Court after hearing learned counsel for the parties and after considering the evidences on record came to the conclusion that the prosecution has been able to prove the charges against the accused persons beyond the shadow of all reasonable doubts and hence convicted •and sentenced them as stated above. 5. This Court is required to reappraise the evidences on record/and to see as to whether the prosecution was able to prove the charges beyond the shadow of all reasonable doubts against the appellants. 6. First of all, it is appropriate to discuss the evidences of the doctors who conducted post mortem over the dead bodies of the deceases. 7. PW 8 Gauri Shankar Prasad Sinha, on 01.07.1978 at 12 noon conducted post mortem examination over the dead body of Nayak Roy and found following ante-mortem injury on his persons: One punctured wound 21/4" 3/4" x chest cavity on the left side chest about I" distal to clavicle. On dissection, on opening the chest, 2nd and 3rd ribs were found cut and the theoric cavity was full of dark fluid blood and there was penetrating wound on the left lung on its upper part. The above injuries were ante-mortem and were caused by sharp pointed cutting weapon such as bhala. Injury No.1 was sufficient to cause death in the ordinary course of nature. Time elapsed since death was within 24 hours. 8. PW 9 Dr. The above injuries were ante-mortem and were caused by sharp pointed cutting weapon such as bhala. Injury No.1 was sufficient to cause death in the ordinary course of nature. Time elapsed since death was within 24 hours. 8. PW 9 Dr. N.K.P. Sinha on 01.07.1978 held post mortem examination over the dead body of Ramayan Roy and found following ante-mortem injury on his person: One incised wound 2" x 1" x abdominal cavity deep with omentum protruding out of the wound in the posterior auxiliary line on the left side lower part of the chest incising the 9th left rib. The wound is directed downwards and medially. On dissecting open the chest cavity, a little of fluid blood was found in its cavity on the left side. The diaphragm was also, found incised corresponding to the above wound, On dissecting open the abdominal cavity it was found full of dark-red fluid blood. The spleen was found incised 2" x 1/2" x thickness of the spleen. The above injury was caused by sharp cutting pointed object such as bhala. The death was due to shock and haemorrhage. The time elapsed since death was within 24 hours of the post mortem examination. 9. Therefore in the opinion of the doctors, Ramayan. Roy and Nayak Roy died on account of the injuries received on the" vital part of their bodies caused by sharp pointed cutting weapons as bha1a. The injuries have been attributed to accused Ramreet Roy and Sanchit Roy. 10. PW 6 informant Ramjee Prasad Roy is an injured witness who has been treated by Dr. Rajendra Prasad Singh PW 11 at Dariyapur State Dispensary on 30.06.1978. This witness has stated that on 30th June, 1978 at about 1.00 p.m. Laloo Roy and Paltu Roy were ploughing the informants land bearing plot No. 416 khata No. 49 having an area 4 kathas and 11-1/2 dhurs. The informant has stated that the delivery of possession of the land was given in favour of his father Ram Asharafi Roy through auction from the Munsifs Court. The said delivery of possession was given on 01.05.1978 by two employees of the Court. At the time of delivery the drum was beaten by Mantoo Ram After taking delivery the land was ploughed on 01.05.1978. At the time of delivery of possession accused Laloo Roy. The said delivery of possession was given on 01.05.1978 by two employees of the Court. At the time of delivery the drum was beaten by Mantoo Ram After taking delivery the land was ploughed on 01.05.1978. At the time of delivery of possession accused Laloo Roy. Sanchit Roy and others were also there Plot No. 416 was situated at a distance about 150 or 200 yards from South of the informants house and it was visible from his house. When the informant went out of his house for urinating then he found the land being ploughed. The informant went there along with his uncle Nayak Roy and Chaukidar Ramayan Roy and they asked Laloo Roy and Paltu Roy against ploughing of the land 'because this land has come in his possession by way of delivery of possession but Laloo stated that step has been taken for annulling the delivery of possession and delivery of possession was to be annulled. Thereafter altercation ensued, In the meanwhile. Ram Sakal Roy. Ram Naresh Roy. Rama Roy, Shiv Pujan Roy and informants father arrived at plot No. 416, At that very time. Laloo Roy called the members of his group who came out from the orchard of Singhasan Roy, Sanchit Roy and Ramreet Roy were having bhala in their hands. Mahesh Roy was having farsa whereas Mushi Roy. Ragho Roy and Bishwanath Roy were having la this in their hands. Laloo Roy and Paltu Roy who had concealed farsa and bhala respectively in plot No. 412 took out the said weapons and at the behest of Mahesh Roy and Laloo Roy, Paltu Roy gave a bhala blow upon the chest of the informant but he received injury upon his palm. Thereafter the informant was assaulted by Ragho Roy and Munshi Roy by means of la this, The assault of Munshi caused injury upon the left arm of the informant. The assault of Ragho Roy caused injury in thigh. Thereafter the informant was assaulted by Ragho Roy and Munshi Roy by means of la this, The assault of Munshi caused injury upon the left arm of the informant. The assault of Ragho Roy caused injury in thigh. After receiving in juries the informant and others started escaping but Sheo Pujan Roy was as saulted by Munshi Roy and Bishwanath Roy, The specific evidence of this witness is that Ramayan Roy was restrained from the front and was assaulted by Sanchit Roy by means of bhala who fell down in the field of Mathura Roy, Nayak Roy in the similar manner was assaulted by Ramreet Roy who fell down in the field of Chandrtka Roy. After committing assault, the accused persons escaped. Thereafter this witness (informant) was carried by his younger brother Chandeshwar Roy to Dartyapur Hospital where treatment started but Ramayan Roy and Nayak Roy died on account of assault attributed to Sanchit Roy and Ramreet Roy respectively. The furdbeyan (Ext.3) of this witness was recorded at Dartyapur State Dispensary by Sri A. Choudhary (PW 13). In cross-examination this witness has admitted that delivery of possession of 4 kathas 1-1/2 dhurs was given to him through the process of the Court which was the western side of Plot No. 416. A case was filed before the Munsif Chapra against delivery of possession and in that case the informant has deposed in favour of his father. The case was for annulment of delivery of possession. This case was lodged against the father of this witness and at the time of deposition the appeal was pending. 11. The factum of assault-with some variations have been supported by other eye witnesses who are either injured or not injured but there is no vartation at all when all the witnesses have stated that the bhala given by Ramreet Roy proved fatal to Nayak Roy and similarly bhala given by Sanchit Roy caused death of Ramayan Roy. 12. Learned counsel appearing for the appellants has argued that the real fact has been concealed and the prosecution has given incorrect version of the occurrence, In fact two persons were killed not in the manner as detailed by the prosecution rather they were killed in different manner and taking advantage of this unfortunate incident the accused persons were falsely roped in because they have long standing enmity with the prosecution party. The delivery of possession has also been challenged and it has been submitted that it was fake and furzy and this fact was later on found correct vide judgment dated 21.09.1981 in Misc. Case No. 13 of 1978 (Ext. G). It has further heen submitted that the plot in question had not fallen in the field of Ram Ashrafi Roy and it continued falling up to the place where Ramji Prasad .Ropy was standing. The prosecution has suppressed the fact of assault to Laloo Roy and others by the prosecution party for which Dariyapur P.S. Case No. 11 of 1978 was instituted on the same day and the place of occurrence has been changed. The blood was found by the Investigating Officer in the field of Mathura Roy at a distance of 40 yard north west of plot No. 416 and in the field of Chandrika at a distance of 94 yards towards North from plot No. 416. The place of occurrence has also been challenged. It has been submitted that the eye witnesses are interested and when the occurrence was near the field, then the presence of independent witnesses can be perceived but independent witnesses have been concealed. On the other hand, it has been submitted that the prosecution has concocted the story. 13. The first information repot in the present case was drawn within two hours of occurrence. It has come that two accused persons Laloo Roy and Paltu Roy were ploughing the field of the informant which had come to informants father in the delivery of possession by the Civil Court and the area was 4 kathas 11-1/2 dhurs within plot No. 416 towards West. PW 10 Ram Swaroop Singh, a process server of the Civil Court was examined to support the delivery of possession of the disputed land, In support of the possession, Exts. 6 and 7 as well as some rent receipt Exts. 11 and 11/1 and sale certificate Ext. 12 have been exhibited on behalf the prosecution. The place of occurrence was found to be 4 kathas and 11-1/2 dhurs by the Investigating Officer and it was west of plot No. 416 in which trace of ploughing was found and trampling mark at the place of occurrence was also noticed by the Investigating Officer. 12 have been exhibited on behalf the prosecution. The place of occurrence was found to be 4 kathas and 11-1/2 dhurs by the Investigating Officer and it was west of plot No. 416 in which trace of ploughing was found and trampling mark at the place of occurrence was also noticed by the Investigating Officer. Therefore, the prosecution was able to prove that the land was in possession of the prosecution on the date and time of occurrence. This fact has been supported by none-else but the process server of the Court who had been there on the occasion of delivery of possession. 14. No doubt. a counter case was med by Laloo Roy vide Dariyapur P.S. Case No. 11 of 1978 but in that counter case the police had submitted final report. Learned Additional Public Prosecutor appearing for the State submits that the counter case med by Laloo Roy was disbelieved and final report was submitted. The filing of the case by Laloo Roy supports the assertion of the prosecution about the occurrence. 15. It was the assertion of the accused persons that the appeal against the order annulment of the order of delivery of possession was moo by the father of the informant before the Honble High Court, As the appeal was pending before this Court the appellants were not entitled to take law into their hands and the better option for the accused persons was to wait for the outcome of the appeal, Therefore the place of occurrence and manner of occurrence have also been proved. It has also been proved that the delivery of possession was effected prior to the occurrence. The informant and his persons were in possession of the land. The accused persons have intruded there and they had attacked which caused death of two persons. The filing of the case by Laloo Roy strengthens the case of the prosecution and not the case of the defence. The injured witnesses have also supported the manner of assault which led to killing of two persons at the instance of appellants by Ramreet Roy and Sanchit Roy. 16. The accused persons in the present appeal can be safely categorized into two parts, In one category the appellants of Cr. Appeal (DB) No. 40 of 1989 namely, Ramreet Roy and Sanchit Roy can be considered. 16. The accused persons in the present appeal can be safely categorized into two parts, In one category the appellants of Cr. Appeal (DB) No. 40 of 1989 namely, Ramreet Roy and Sanchit Roy can be considered. There is ample evidence both oral as welt as medical that bhala given by Ramreet Roy proved fatal to Nayak Roy and bhala blow given by appellant Sanchit Roy proved fatal to Ramayan Roy. These two appellants are the assailants of the two persons. Therefore their cases are on different footing to that of other appellants of Cr. Appeal (DB) No. 14 of 1989 who are not the assailants of the deceased Nayak Roy and Ramayan Roy. Therefore they in any manner cannot be said to be associated with the killing of two persons. No doubt. every member of unlawful assembly is guilty of offence committed in prosecution of common object and is liable for conviction in the same manner but for that the prosecution has to establish that such members must have knowledge that their assemblage was for the purpose of causing such offence and only in that circumstances, it can be said that the members of unlawful assembly were having knowledge of commission of offence in prosecution of that object. In the present case, none of the appellants of Cr. Appeal (DB) No. 14 of 1989 have even touched the deceased persons or tried to commit any overt act which could lead to cause death of Ramayan Roy and Nayak Roy. Not even one witness has given such role to Laloo Roy. Mahesh Roy. Munshi Roy. Bishwanath Roy, Paltu Roy and Ragho Roy (appellants in Cr. Appeal (DB) No. 14 of 1989), Therefore their cases are quite distinguishable from the cases of the appellants Ramreet Roy and Sanchit Roy of Cr. Appeal (DB) No. 40 of 1989, In that circumstances, it can be said that the prosecution has not been able to prove that the appellants of Cr. Appeal (DB) No. 14 of 1989 namely. Laloo Roy. Mahesh Roy Munshi Roy. Bishwanath Roy. Paltu Roy and Ragho Roy had common intention or knowledge for causing death to Nayak Roy and Ramayan Roy. 17. In view of the aforesaid discussions, it is apparent that the charge under Section 302/149 of the Indian Penal Code has not been proved against Laloo Roy. Mahesh Roy. Munshi Roy. Bishwanath Roy. Mahesh Roy Munshi Roy. Bishwanath Roy. Paltu Roy and Ragho Roy had common intention or knowledge for causing death to Nayak Roy and Ramayan Roy. 17. In view of the aforesaid discussions, it is apparent that the charge under Section 302/149 of the Indian Penal Code has not been proved against Laloo Roy. Mahesh Roy. Munshi Roy. Bishwanath Roy. Paltu Roy and Ragho Roy, Charge under Section 324 of the Indian Penal Code has also not been proved against appellant Paltu Roy as such they cannot be said to be guilty of causing death to Nayak Roy and Ramayan Roy. Thus these appellants deserve to be acquitted, However the prosecution has been able to prove the charge under Section 302 of the Indian Penal Code against the appellants of Cr. Appeal (DB) No. 40 of 1989 namely, Ramreet Roy and Sanchit Roy who have caused death to Nayak Roy and Ramayan Roy. 18. In the result Cr. Appeal (DB) No. 14 of 1989 is allowed and the judgment of conviction and order of sentel1ce against appellants namely, Laloo Roy. Mahesh Roy. Munshi Roy. Bishwanath Roy. Paltu Roy and Ragho Roy is set aside, They are acquitted of the charges and they are discharged from the liabilities of their respective bail bonds. Cr. Appeal (DB) No. 40 of 1989 is dismissed. The judgment of conviction and order of sentence against appellants Ramreet Roy and Sanchit Roy is upheld, They are on bail. Their bail bonds are cancelled and they are directed to surrender in the Court below to serve out the sentences. The trial Court is also directed to take coercive step to take these two appellants into custody. 19. As none was appearing on behalf of the appellants, Mr. Arun Kumar Tripathi. Advocate was appointed as amicus curiae to assist the Court on behalf of the appellants and he has argued well. We appreciate the assistance given by Mr. Arun Kumar Tripathi. Advocate. 20. Let copy of first page and last page of the judgment be given to Mr. Tripathi, so that he may get his prescribed fee from the High Court Legal Services Committee, Patna. Amaresh Kumar Lal. J.- I agree. Cr. App. No. 14 of 1989 allowed. Cr. App. No. 40 of 1989 dismissed.