JUDGMENT : The appellants were put on trial on the accusation of having formed an unlawful assembly committed murder of Basudeo Sundi and also on the charge of causing injuries to seven persons. However, the trial court having found the appellants guilty for committing murder of said Basudeo Sundi convicted all of them for the offence punishable under Section 302/149 of the Indian Penal Code only, vide its judgment dated 25.3.2004 and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs.10,000/-and in default to undergo simple imprisonment for one year. 2. Before proceeding with the matter, it would be pertinent to mention that this case as well as Cr. App.(S.J) No.664 of 2004 preferred by the persons, who were witnesses to the case which has given rise to this appeal were heard together simultaneously as in the same transaction the occurrence which is subject matter of this appeal and the occurrence which is subject matter of Cr.App.(S.J) No.664 of 2004 had occurred. However, the judgments are being delivered separately. 3. The case of the prosecution as has been made out in the FIR is that on 5.5.1991 at about 5 a.m. while Bishun Sindi was on the road in front of his house, the appellants, nine in number as well as Ashok Thakur and Punit Thakur (cases of both the persons were separated) came variously armed and started assaulting him. When he raised alarm, Basudeo Sundi (deceased), Cholo Sundi (P.W.6), Sahdeo Prasad (P.W.7), Nandlal Prasad @ Nandlal Sundi (P.W.2), Sukri Devi (P.W.3), Yasoda Devi (P.W.4) came to rescue him but they were also assaulted by lathi, spade and sword, as a result of which, they received severe injuries . The appellants after assaulting them, fled away. Thereupon the informant Bishun Sundi (P.W.5) and other injured including Basudeo Sundi came to Koderma Hospital where in course of treatment Basudeo Sundi died. 4. On getting such information, Ram Prakash Tiwari (P.W.10), Sub-Inspector of Police posted at Koderma Police Station came to the Hospital where he recorded the Fardbeyan (Ext.4) of the informant, who narrated about the incident as has been stated above. He further stated that the accused persons did commit offence as the land dispute was going on in between them and the accused persons. 5. He further stated that the accused persons did commit offence as the land dispute was going on in between them and the accused persons. 5. On the basis of the said Fardbeyan (Ext.4), a formal FIR (Ext.4/1) was drawn and a case was registered against 11 accused persons. Ram Prakash Tiwari (P.W.10) himself took up he investigation during which he held inquest on the dead body of the deceased Basudeo Sundi and prepared an Inquest Report (Ext.6). Thereafter the dead body was sent for post mortem examination which was conducted by Dr. Imram Ahmad Sah (P.W.11), who on holding autopsy on the dead body did find following injuries. 1. An Incised wound on the back of head 2” x 1’ x ½ “ 2.An incised wound on right leg below knee with fracture of right leg ( compound fracture 4” x 2” x 3’). 6. Doctor issued post mortem examination report (Ext.1) with an opinion that death was caused due to shock and stopping of function of vital organ of the body resulting in cardio respiratory failure. The injuries were caused by sharp cutting weapon such as, sword and farsa. 7. At the same time, Investigating Officer having noticed the injuries on the persons of the injured Sukri Devi (P.W.3), Yasoda Devi (P.W.4), Cholo Sundi (P.W.6), Nand Lal Sundi @ Nand Lal Prasad (P.W.2), Bisun Sundi (P.W.5) and Sahdeo Prasad (P.W.7) reduced in writing under Exts.7 to 7/6 and referred them for their medical examination. Accordingly, Dr.Ramanand Sharma (P.W.12) examined them. Upon examining Sukri Devi following injuries were found on her person. 1. A sharp cut injury on the dorsum of left portion 3”x ¼ “ x ¼ “ 2. Sharp cut injury on left forearm external surface 3” x ¼ “ x 1/3 “ 3. Sharp cut injury on left forearm 2” x 2- ½” 4. Sharp cut injury on the left arm 3” x ¼ “ x ¼ “ 5. Sharp cut injury on the left side of temporal region 2- ½ “ x ¼ “ 6. Swelling with red bruise on back of chest 4” x ½ “ 8. Doctor issued injury report (Ext.2) with an opinion that injury nos.1 to 5 were caused by sharp cutting weapon such as Sword and injury no.6 may be caused by lathi. Sharp cut injury on the left side of temporal region 2- ½ “ x ¼ “ 6. Swelling with red bruise on back of chest 4” x ½ “ 8. Doctor issued injury report (Ext.2) with an opinion that injury nos.1 to 5 were caused by sharp cutting weapon such as Sword and injury no.6 may be caused by lathi. Injuries 1 to 4 and 6 were found to be simple whereas injury no.5 was found to be grievous. 9. On the same day, he also examined Yasoda Devi (P.W.4) and found the following injuries. 1. Sharp cut injury on scalp frontal region 3” x ¼ “ x skin deep. 2. Swelling with red bruise 4” x 1/3 “ 3. Swelling with red bruise 2” x ¼ “ According to doctor, all the injuries were simple in nature. Upon Cholo Sundi (P.W.6), doctor did find following injuries. 1. Sharp cut injury on mid of scalp 3” x ½ “ x bone deep with excessive bleeding. 2. Sharp cut injury on right temporal region 2-½ “ x ¼ “ x bone deep. 3. Swelling with red bruise on the back of right side of chest 5” x ½ “ 4. Swelling with red bruise on the back of right shoulder 3” x ½ “ 5. Lacerated cut injury on the back of right leg. Injury nos. 1 and 2 were found to be grievous caused by tangi and rest by lathi. 10. On the person of Nandlal Prasad, following injures were found. 1. Lacerated cut injury on the right middle and ring finger 1”x ¼ “ x skin deep. 2. Swelling with red bruise on right arm 2- ½ “ x ½ “ 3. Swelling cut injury on left arm 1-½ “ x ¼ “ x ¼ “ 4. Swelling with red bruise on right thigh 6” x ½ “ 5. Swelling cut injury on left arm 1” x ¼ “ x ½ “ All the injuries were found to be simple in nature caused by hard and blunt substance and sharp cutting weapon. 11. On the person of Bisun Sundi (P.W.5) following injures were found. (i) Sharp cut injuries on the right side of temporo frontal region of scalp 3” x ¼ “ x skin deep with blood clot. 11. On the person of Bisun Sundi (P.W.5) following injures were found. (i) Sharp cut injuries on the right side of temporo frontal region of scalp 3” x ¼ “ x skin deep with blood clot. (ii)Sharp cut injuries on right pinna upper part ¼ “ x ¼ “ x ½ “ (iii)Sharp cut injury on left forearm external 2” x ½ “ x ¼ “ (iv) Sharp cut injury on the dorsum of left palm in between thumb and middle finger 2-½ “ x ¼ “ x ½ “ (v) Swelling on the external surface of left arm 3-½ “ x 1- ½” (vi) Penetrating wound on the right arm 1” x ½ “ x 1- ¼ “ (vii) Swelling on the dorsum of right palm 2- ½ “ x 1 – ½ “ Injuries no. 1 to 4 were found to have been caused by sharp cutting weapon and injury no.6 was caused by sharp penetrating weapon. Among them injuries no. 5 and 7 were found to be grievous. 12. On the person of Shahdeo Prasad (P.W.7) following injures were found. 1. Sharp cut injuries on the Dorsum of right palm in between thumb and index finger 2” x ¼ “ x ½ “ 2. Swelling on external surface of left forearm 3” x 1- ½ “ 3. Swelling with red bruise 4” x ½ “ 4. Lacerated cut injury on the left palm 1” x ½ “ x ¼ “ Injuries were found simple in nature caused by sharp cutting weapon and hard blunt substance. Doctor had also examined Basudeo Sundi (deceased) and had found following injuries. 1. Lacerated cut injury on the scalp 2 – ½ “ x ½ “ x skin deep. 2.Sharp cut injury on the right leg upper third. Tibia and fibula are cut across and separated from each other. Injury no.1 was found to be simple caused by hard and blunt substance whereas injury no.2 was found to be grievous. 13. Dr.Ramanand Sharma (P.W.12) on the same day had examined appellants, Tulsi Thakur, Rupan Thakur, Mathura Thakur, Dhaneshwar Thakur and Ramu Thakur which would be dealt with later on. In the meantime, Investigating Officer made inspection of the place of occurrence and seized earth smeared with blood under seizure list (Ext.5). He also recorded the statements of the witnesses. 14. 13. Dr.Ramanand Sharma (P.W.12) on the same day had examined appellants, Tulsi Thakur, Rupan Thakur, Mathura Thakur, Dhaneshwar Thakur and Ramu Thakur which would be dealt with later on. In the meantime, Investigating Officer made inspection of the place of occurrence and seized earth smeared with blood under seizure list (Ext.5). He also recorded the statements of the witnesses. 14. On completion of investigation, charge sheet was submitted, upon which cognizance of the offence was taken against the appellants, who were put on trial upon the case being committed to the court of sessions. 15. During trial, the prosecution examined as many as 12 witnesses. Of them, P.W.1, Nirmal Sundi, P.W.2, Nand Lal Sundi @ Nand Lal Prasad, son of the informant, P.W.3, Sukri Devi, wife of Bishun Sundi, P.W.4, Yasoda Devi, widow of the deceased, P.W.5, Bishun sundi, the informant, P.W.6, Cholo Sundi, brother of the deceased, P.W.7, Sahdeo Prasad, another brother of the deceased are the injured eye witnesses, who have testified that as soon as Basudeo Sundi, son of the informant Bishun Sundi (P.W.5) came out of the house for easing himself, he raised distress alarm. On hearing, all of them came out and saw that all the appellants and also two persons, Ashok Thakur and Punit Thakur were assaulting Basudeo Sundi. The appellant Rupan Thakur and Tulsi Thakur were having sword with them and of them Rupan thakur cut the right leg whereas Tulsi Thakur inflicted injury over the skull. The appellants, Dhaneshwar Thakur @ Dhania and Mathura Thakur assaulted him with Farsa and rest assaulted him with lathi. When they (all the witnesses) came to rescue him, they were also assaulted by sword, farsa and lathi and thereafter they fled away. All the injured including Basudeo Sundi came to Koderma Hospital where they were treated by the doctor but Basudeo Sundi in course of treatment died. P.W.8,Subhash Sundi was tendered for cross-examaination. P.W.9, Dasrath Sharma, has proved X-ray plates of Bishun Sundi which has been marked as Exts.3 to 3/1. This witness has also proved X-ray report of the appellant Tulsi Thakur as Exts. A to A/2. The Investigating Officer, Ram Prakash Tiwari was examined as P.W.10, who also proved the Fardbeyan and charge sheet of the counter case as Exts.B and C. 16. This witness has also proved X-ray report of the appellant Tulsi Thakur as Exts. A to A/2. The Investigating Officer, Ram Prakash Tiwari was examined as P.W.10, who also proved the Fardbeyan and charge sheet of the counter case as Exts.B and C. 16. On closure of the prosecution case, when the appellants were questioned under Section 313 of the Code of Criminal Procedure over the incriminating evidences appearing against them, they denied. 17. Thereupon the trial court by placing reliance on the testimonies of the eye witnesses found all the appellants guilty for the offence punishable under Section 302/149 of the Indian Penal Code and recorded the order of conviction and sentence which is under challenge. However, the trial court did not record the order of conviction and sentence for the charge which had been framed under Sections 323/147 of the Indian Penal Code. 18. Mr.B.M.Tripathy, learned Sr. counsel appearing for the appellants submits that though the prosecution through eye witnesses has come forward with the case that when Basudeo Sundi came out of the house for easing himself, he was surrounded and assaulted by the appellants, who were variously armed but they have not uttered a single word in their examination-in-chief regarding injuries being there on the person of the appellants, namely, Tulsi Thakur, Rupan Thakur, Mathura Thakur, Dhaneshwar Thakur and Ramu Thakur upon whom the same doctor, Dr. Ramanand Sharma (P.W.12), who had examined the injured had also examined them and had found injuries being caused by sharp cutting weapon and also by hard and blunt substance and thereby it is evidently clear that the prosecution has not come up with true state of affairs. 19. Ramanand Sharma (P.W.12), who had examined the injured had also examined them and had found injuries being caused by sharp cutting weapon and also by hard and blunt substance and thereby it is evidently clear that the prosecution has not come up with true state of affairs. 19. In this regard it was further submitted that on the same day and at the same time and also at the same place of occurrence, the appellants named above were assaulted by the deceased and other witnesses and had received injuries for which a case was registered as Koderma P.S. case no.123 of 191 at earlier point of time against the witnesses and the deceased and that the Investigating Officer has also admitted that place of occurrence of both the cases were the same and thereby it is apparent that it was a case of free fight in which persons of both sides received injuries and thereby each of the appellants cannot be convicted on the principle of constructive liability, rather each one would be responsible for the act committed by them and thereby the appellants other than Rupan Thakur, who in view of the medical evidence cannot be said to have inflicted any injury on the person of the deceased cannot be held liable for the offence under Section 302/149 of the Indian Penal Code. 20. Further it was submitted that keeping in view the evidence of the Doctor, who had never stated that the injury no.2, which has been attributed to Rupan Thakur, was sufficient to cause death and thereby the conviction of the appellant Rupan Thakur under Section 302/149 is certainly bad. 21. As against this, learned counsel appearing for the State and also learned counsel for the informant submits that all the witnesses have testified that when the deceased Basudeo Sundi came out of the house for easing himself, he was surrounded by the appellants, who were variously armed like sword, farsa and lathi and then assaulted the deceased causing injuries resulting into his death. They also assaulted the witnesses, P.Ws 1 to 7 which finds corroboration from the medical evidence and thereby the testimonies of those witnesses cannot be discarded. 22. They also assaulted the witnesses, P.Ws 1 to 7 which finds corroboration from the medical evidence and thereby the testimonies of those witnesses cannot be discarded. 22. Further submission which was made is that it is true that the prosecution did not come with the case that some of the appellants received injuries but since those injuries were found to be simple, the prosecution was never obliged to explain the injuries which were appearing on the person of the appellants and thereby the trial court was absolutely justified in recording the order of conviction and sentence which needs no interference. 23. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that when the appeal was taken up for hearing, counsel appearing for the appellants did submit that the case needs to be heard along with Cr. App.(S.J) No.664 of 2004 on the plea that the occurrences which have given rise to the aforesaid two appeals had occurred in the same transaction. On his submission, following order was passed on 30.6.2015 which reads as under: “This appeal is arising out of Koderma P.S. Case No.124 of 1991 in which nine persons, who are the appellants, have been convicted for the offences punishable under Sections 302/149 of the Indian Penal Code on the allegation that they in furtherance of their common object committed murder of one Basudeo Sundi and caused injury to several persons on 5.5.1991 at 5.00 a.m. but the prosecution did not come forward with the case that in the in the same transaction some of the appellants were also assaulted by the prosecution side with a view to kill them. However, the case was lodged from the side of the appellants which was registered as Koderma P.S. case no. 123 of 1991 alleging therein that on the same day and at the same time, the informant’s side in furtherance of their common object did assault some of the appellants with a view to kill them. Since both the occurrences took place in the same transaction, the trial of both the cases should have been taken together but both the cases have been tried differently. Since both the occurrences took place in the same transaction, the trial of both the cases should have been taken together but both the cases have been tried differently. However, the appellants on being convicted for the offence punishable under Sections 302/149 of Indian Penal Code has preferred this appeal, whereas in the case, which was lodged from th side of the appellants, the accused persons were convicted for the offence punishable under Sections 302/149 of the Indian Penal Code and they have also preferred an appeal bearing Cr.Appeal (S.J) No.664 of 2004 and under the circumstances, both the cases be heard together. However, Mr.R.A.Choubey, learned counsel appearing for the informant submits that the matter be adjourned for two weeks so that in the meantime, he may take instruction in this regard. As prayed for, let this appeal be listed on 14.7.2015 along with the case records of Cr. Appeal (S.J) No.664 of 2004, under the same heading.” 24. On the next date after hearing counsel appearing for the appellants in Cr. App.(S.J) No.664 of 2004 as well as for the informant in Cr.App.(D.B) No.675 of 2004 both the cases were ordered to be heard simultaneously. 25. Coming to the merit of the case, we have already noted that the prosecution came with the case as has been testified by the witnesses, P.Ws.1 to 7 all injured, that as soon as Basudeo Sundi came out of the house for easing himself, he was surrounded by these appellants and two others, who were variously armed and assaulted the deceased, Basudeo Sundi with sword, farsa, spade and lathi. The appellants, Rupan Thakur and Tulsi Thakur have been attributed with the allegation to have cut the leg and other persons assaulted with farsa, bhala and lathi. When the witnesses came to rescue him, they were also assaulted causing injuries which injuries were found on their persons by Dr.Ramanand Sharma (P.W.12). However, there appears to be inconsistency in the testimonies of the witnesses so far it relates to the accusation of assault being made upon the deceased. 26. When the witnesses came to rescue him, they were also assaulted causing injuries which injuries were found on their persons by Dr.Ramanand Sharma (P.W.12). However, there appears to be inconsistency in the testimonies of the witnesses so far it relates to the accusation of assault being made upon the deceased. 26. In this regard it be noted that P.W.1, P.W.3, P.W.4, P.W.6 and P.W.7 have testified that the appellants Rupan Thakur and also Tulsi Thakur had inflicted injuries over the leg of the deceased by sword whereas P.W.5 has testified that it was Rupan Thakur who had inflicted injury over the leg whereas Tulsi Thakur had inflicted over the head by sword but according to the doctor only two injuries were found, one over the right leg and other over the head but the injury according to Doctor (P.W.12) which was there over the skull was caused by hard and blunt substance whereas the injury found over the right leg was caused by sword. 27. It be further recorded that other appellants have also been attributed with the allegations that they assaulted the deceased either with farsa or lathi but no such corresponding injuries have been found on the person of the deceased and thereby only the appellant Rupan Thakur can be said to be responsible for causing injury over the right leg. 28. Now the question does arise as to whether all the appellants can be held responsible for causing death under the principle of constructive liability? 29. It be reiterated that the appellants while putting forth its case has come forward with the plea that in the same transaction some of the appellants, namely, Tulsi Thakur, Rupan Thakur, Mathura Thakur, Dhaneshwar Thakur, Ramu Thakur had been assaulted, as a result of which they had sustained injuries, for which a case bearing Koderma P.S. case no.123 of 1991 was lodged at earlier point of time than the case registered as Koderma P.S. case no.124 of 1991 which is evident from the Fardbeyan and the charge sheet (Exts. B and C). From perusal of those documents, it would appear that the time of occurrence and the place of occurrence was the same as that of the case which has given rise to this appeal. B and C). From perusal of those documents, it would appear that the time of occurrence and the place of occurrence was the same as that of the case which has given rise to this appeal. Not only that the Investigating Officer, who had also occasion to investigate the case bearing Koderma P.S. case no.123 of 1991 has testified in this case that the place of occurrence of both the cases was the same. Some of the witnesses have also admitted that counter case was lodged against them by Rupan Thakur. Some of them even has testified in the cross-examination that they had seen injuries on the persons of accused. Thus, there has been no hesitation in coming to the conclusion that both the cases did occur in the same transaction during which the appellants, Tulsi Thakur, Rupan Thakur, Dhaneshwar Thakur, Ramu Thakur and Mathura Thakur had sustained injuries. They had been examined by the same doctor, Dr.Ramanand Sharma (P.W.12) who had examined the injured witnesses of this case. The doctor on examining these appellants did find injuries. On the person of Tulsi Thakur, he did find following injuries. 1. Sharp cut injury on the left side of the neck 2- ¼ “ x ¼” 2. Lacerated cut injury on the left temporal region on the scalp 1” x ¼“ x skin deep with blood clot. 3.Swelling on the left forearm 2 – ½ “ x 1” 4.Swelling on the left index finger 2” x ½ “ 5.Swelling on the left side of upper part of the chest 6” x 3”. According to the Doctor, injury no.1 was caused by sharp cutting weapon whereas other injuries were caused by hard and blunt substance. On the person of Rupan Thakur, he found following injuries. 1. Lacerated cut injury on the right temporal region of scalp 1- ½ “ x ½ “ x skin deep. 2. Abrasion on the right shoulder joint 1” x ½ “ 3. Swelling with red bruise on the back of chest 6” x 1” 4. Swelling on the left elbow 2” All the injuries were found to be simple caused by hard and blunt substance. On the person of Mathura Thakur following injuries were found. 1. Swelling with red bruise on the right elbow 3” x 2” 2. Swelling with red bruise on the left forearm 2 – ½ “ x 1” 3. Swelling on the left elbow 2” All the injuries were found to be simple caused by hard and blunt substance. On the person of Mathura Thakur following injuries were found. 1. Swelling with red bruise on the right elbow 3” x 2” 2. Swelling with red bruise on the left forearm 2 – ½ “ x 1” 3. Swelling on left side of elbow. Injuries were found to be simple in nature caused by hard and blunt substance. On the person of Dhaneshwar Thakur, following injuries were found. 1.Lacerated cut injury on theleft forearm 1- ½ “ x ½ “ x ¼ “ 2. Swelling with red bruise on the back of right side of elbow 3” x ½” 3. Swelling with red bruise on the right arm 2” x ½ “ Injuries were found to be simple in nature caused by hard and blunt substance. On the person of Ramu Thakur, following injuries were found. 1. Sharp cut injury on the mid of scalp 2- ½ “ x ¼ “ x skin deep 2. Swelling with red bruise on back of elbow 2” x ½ “ Injuries were found to be simple caused by hard and blunt substance. The aforesaid injuries found on the person of some of the appellants are simple in nature but it does depict, keeping in view the evidence of Investigating Officer that the place of occurrence was the same and also the date and time of occurrence as is there in the Fardbeyan and the charge sheet, that there was free fighting in between the parties during which these appellants did receive injuries and at the same time, the witnesses and also the deceased did receive injuries. In that event, when occurrence took place during free fight, principle of constructive liability as has been enshrined either under Section 149 or under Section 34 of the Indian Penal Code would not be applicable and thereby the trial court committed illegality in convicting the appellants other than Rupan Thakur for the offence under Sections 302/149 of the Indian Penal Code and hence, it is hereby set aside. 30. Consequently, all the appellants other than Rupan Thakur is acquitted of the charge. 31. 30. Consequently, all the appellants other than Rupan Thakur is acquitted of the charge. 31. Now coming to the case of Rupan Thakur it be stated that he has been attributed with the allegation to have cut the leg of the deceased but the injuries caused by him have never been found to be responsible for causing death by the Doctor. According to the doctor, the death occurred due to profuse bleeding leading to shock and stopping of function of vital organs resulting into cardiac respiratory failure. In that event, the trial court committed illegality in recording the order of conviction and sentence for the offence under Section 302/149 of the Indian Penal Code and thereby instead of convicting him for the offence under Section 302/149 the appellant Rupan Thakur is convicted for the offence under Section 304 Part II of the Indian Penal Code and is sentenced for the period already undergone by him. 32. Consequently, the appellant no.1, Rupan Thakur, appellant no.3, Tori Thakur and appellant no.5, Mathura Thakur, who are in custody, are directed to be released forthwith, if not wanted in any other case. Rest of the appellants are discharged from the liability of their bail bonds. 33. Thus, this appeal is allowed but in part.