JUDGMENT : D. N. UPADHYAY, J.: 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 22nd September, 2003 passed by learned 9th Additional Sessions Judge, Hazaribagh in connection with Sessions Trial No.204 of 1999, corresponding to G.R. No.2133 of 1997, T.R. No.815 of 1999, arising out of Gola P.S. Case No.75 of 1997, whereby the appellants have been held guilty for the offence punishable under Sections 302/149, 325 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/-each and in default of payment of fine further simple imprisonment for two months under Section 302/149 IPC, rigorous imprisonment for three years under Section 325 IPC and rigorous imprisonment for one year under Section 148 IPC and sentences so passed were directed to run concurrently. One of the co-convict Kamaldeo Mahto was also put on trial along with the appellant, but he has been held guilty under Section 148 IPC and Section 323 IPC and sentenced to undergo rigorous imprisonment for one year under Section 148 IPC and six months under Section 323 IPC. It is not evident from the record, whether said co-convict Kamaldeo Mahto has preferred any appeal or not. 2. The facts emerging from the Fardbeyan of Barun Mahto @ Barun Kumar, recorded on 28th December, 1997, at 8:30 hours, at Gola Hospital, are as follows:- On 28th December, 1997, at about 6:00 a.m., the informant with his father-Ram Pado Mahto (deceased) and brother-Girdhari Mahto (deceased) had been uprooting radish in their field. At about 6:30 a.m., the appellants reached to the place and started cutting and demolishing bushes by which the field of the informant was fenced. They were also armed with axe, Lathi, iron rod etc. When father and brother of the informant raised objection, the appellants made an attack and caused injuries to Ram Pado Mahto and Girdhari Mahto, as a result they fell down and became unconscious. The informant and his another brother-Narayan Mahto when intervened, they were also assaulted by accused Kamaldeo Mahto. On the basis of the Fardbeyan of Barun Mahto, Ramgarh, Gola P.S. Case No.75 of 1997 dated 28th December, 1997 under Sections 147, 148, 323, 324 and 307 of the Indian Penal Code was registered. The informant and his another brother-Narayan Mahto when intervened, they were also assaulted by accused Kamaldeo Mahto. On the basis of the Fardbeyan of Barun Mahto, Ramgarh, Gola P.S. Case No.75 of 1997 dated 28th December, 1997 under Sections 147, 148, 323, 324 and 307 of the Indian Penal Code was registered. Ram Pado Mahto and Girdhari Mahto were removed to R.M.C.H., Ranchi for better treatment, but they succumbed to their injuries on the very next day i.e. on 29th December, 1997. After death of Ram Pado Mahto and Girdhari Mahto Section 302 of the Indian Penal Code was added. The police after due investigation submitted charge sheet against all the accused persons named in the first information report under Sections 147, 148, 149, 323, 324, 325, 307 and 302 of the Indian Penal Code. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Sessions Trial No.204 of 1999. 3. Charges under Sections 148, 323, 302 and 149 of the Indian Penal Code were framed to which the appellants pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether sixteen witnesses, including the informant, Dr. Ram Sevak Sahu, who had conducted postmortem examination on the dead body of Ram Pado Mahto and Girdhari Mahto and Dr. Ajit Kumar Agarwal, who had examined the injured, including deceased, and the Investigating Officer. Ghanshyam Mahto-P.W.1, Narayan Mahto-P.W.2, Barun Mahto (informant injured)-P.W.3, Thakmani-P.W.4 and Ashok Prasad-P.W.5 are eyewitnesses and they have supported the prosecution case as made out by the informant in the Fardbeyan. Ghanshyam Mahto-P.W.1 and Ashok Prasad-P.W.5 are independent witnesses and they have said that on Halla they went to the place of occurrence and had seen the occurrence which took place on 28th December, 1997 in the morning at about 6:30 a.m. These two witnesses have stated that the accused were armed with Lathi and iron rod and they caused assault to Ram Pado Mahto and Girdhari Mahto. It is disclosed that Illu Mahto and Hemlal Mahto were having iron rod in their hands, whereas rest of the appellants were having Lathi. They have further described the overt act committed by each of the appellant. P.W.1 has further stated that the injured were brought to the hospital and after some treatment Ram Pado Mahto and Girdhari Mahto were referred to Ranchi for better treatment. They have further described the overt act committed by each of the appellant. P.W.1 has further stated that the injured were brought to the hospital and after some treatment Ram Pado Mahto and Girdhari Mahto were referred to Ranchi for better treatment. Narayan Mahto-P.W.2 and Barun Mahto-P.W.3 are the sons of the deceased Ram Pado Mahto and they have narrated the same story that on 28th December, 1997 in the morning at about 6:30 a.m. they were engaged in their field in uprooting radish. In the meantime the appellants armed with iron rod, Lathi etc. appeared and started cutting and removing bushes by which the aforesaid field was fenced. Ram Pado Mahto and Girdhari Mahto raised objection and they were assaulted by the appellants by means of iron rod and Lathi. After sustaining injuries, Ram Pado and Girdhari fell down. When these two witnesses tried to intervene, they were also subjected to assault. They have also described the role played by the appellants. P.W.3 has specifically stated, when he tried to save his brother, he was assaulted by means of Lathi by one of the co-convicts, namely, Kamaldeo Mahto. Thakmani-P.W.4 is wife of deceased-Ram Pado Mahto and she has also repeated the same story, narrated by her two sons, namely, Narayan Mahto-P.W.2 and Barun Mahto-P.W.3. Mathura Rajwar-P.W.6 has stated that the occurrence took place on 28th December, 1997 at 6:30 a.m. in the field of Ram Pado Mahto. He was attracted towards the place of occurrence after hearing the voice “BACHAO BACHAO”. He ran to the place of occurrence and saw Ram Pado Mahto and Girdhari Mahto were lying unconscious in their field. Barun Mahto-P.W.3, Thakmani-P.W.4 and Narayan Mahto-P.W.2 were crying at the spot. He had seen injury on the right leg of Barun Mahto. He was informed that appellant-Illu Mahto and his associates have caused assault to Ram Pado and Girdhari. Radha Mahto-P.W.7, Jagarnath Mahto-P.W.8 and Suresh Mahto-P.W.9 have introduced another story by saying that the deceased-Ram Pado Mahto with his sons had been uprooting and destroying radish and potato crops grown by the appellant-Illu Mahto. When Illu Mahto made protest, he was assaulted by means of Lathi by Ram Pado Mahto. Thereafter, they fought with each other. Radha Mahto-P.W.7, Jagarnath Mahto-P.W.8 and Suresh Mahto-P.W.9 have introduced another story by saying that the deceased-Ram Pado Mahto with his sons had been uprooting and destroying radish and potato crops grown by the appellant-Illu Mahto. When Illu Mahto made protest, he was assaulted by means of Lathi by Ram Pado Mahto. Thereafter, they fought with each other. Out of these three witnesses, Suresh Mahto-P.W.9 has been declared hostile, but remaining two witnesses, namely, Radha Mahto-P.W.7 and Jagarnath Mahto-P.W.8 were cross-examined and they were not declared hostile by the prosecution. Ram Sundar Mahto-P.W.11, Bigan Mahto-P.W.12, Rathu Mahto-P.W.13 and Ruplal Mahto-P.W.14 are the witnesses, who reached to the place of occurrence and had seen the injured lying in the field. They may be considered as hearsay witnesses. Dr. Ram Sevak Sahu-P.W.10 had conducted postmortem examination on the dead body of Ram Pado Mahto and Girdhari Mahto and proved the postmortem reports as Exts.2 and 3, respectively. The injuries found on the person of the deceased have been described. Dr. Ajit Kumar Agarwal-P.W.15 had examined Ram Pado Mahto, Girdhari Mahto and Barun Mahto when they were brought to Gola Hospital in injured condition and provided them required treatment. P.W.15 has proved the injury report as Exts.4, 4/1 and 4/2, respectively. Devendra Prasad-P.W.16 is the Investigating Officer. He has supported the investigation done by him and proved Fardbeyan as Ext.5, signature appearing on the Fardbeyan-Ext.1/1, endorsement made thereunder-Ext.1/2 and signature on formal first information report-Ext.1/3. Injury slips issued for medical examination of Ram Pado Mahto (deceased), Girdhari Mahto (deceased) and informant-Barun Mahto (injured) have been proved and marked as Exts.6, 6/1 and 6/2. Learned Trial Judge, placing reliance on the documents and evidences available on record, held the appellants guilty for the offence alleged and inflicted sentence as indicated above. 4. Learned counsel for the appellants has assailed the impugned judgment on the ground that the family members, namely, Narayan Mahto, Barun Mahto and Thakmani were not present in the field at the time of occurrence and they had not seen the assault caused to Ram Pado Mahto and Girdhari Mahto. Being the close relative of the deceased, they are highly interested witnesses and they have cooked up a story, befitting to their wish and lodged this case. Being the close relative of the deceased, they are highly interested witnesses and they have cooked up a story, befitting to their wish and lodged this case. It is contended that the aforesaid witnesses have stated that Tangi was also used for causing injury to the deceased, but in their depositions in court they did not stick to their statements and said that Lathi and iron rod were used for causing assault to deceased. These witnesses have deposed a lie before the Court and that would reveal from the evidence of Dr. Ram Sevak Sahu-P.W.10, who conducted postmortem examination on the dead body of deceased-Ram Pado Mahto. P.W.10 found one stitched would ununited 14 cm. long on right fronto parietal region of head underneath there was a bony gap 9 cm. x 8 cm. area in right fronto parietal bone. On internal examination, there was defused contusion of fore scalp and crack fracture of parietal bone and right temporal bone starting from left and right margin of said bone gap. This witness has not given opinion regarding this injury and has said that opinion regarding that wound could be obtained from surgeon, who attended and treated the patient. In this context, learned counsel has further referred the evidence of Dr. Ajit Kumar Agarwal-P.W.15 and submitted that this doctor had found one incised wound with clean margin size about 1” x ½” into scalp deep with cutting of underneath parietal bone on the person of deceased-Girdhari Mahto. It was vehemently argued that the injuries found on the person of the deceased, as noticed by the doctors-P.Ws.10 and 15, clearly suggest that sharp cutting weapon was used, but none of the prosecution witnesses in their depositions in court have stated about use of any sharp cutting weapon for causing injuries to the deceased. 5. Learned counsel for the appellants has further submitted that Radha Mahto-P.W.7 and Jagarnath Mahto-P.W.8 have not been declared hostile and according to their depositions the occurrence took place in the field of appellant-Illu Mahto. The deceased were destroying radish and potato crops grown by Illu Mahto. When the appellant-Illu Mahto raised objection he was assaulted by the deceased-Ram Pado Mahto and Girdhari Mahto by means of Lathi. In course of scuffle, Illu Mahto snatched away Lathi from the hand of Girdhari and to save himself inflicted blows on the person of the deceased. The deceased were destroying radish and potato crops grown by Illu Mahto. When the appellant-Illu Mahto raised objection he was assaulted by the deceased-Ram Pado Mahto and Girdhari Mahto by means of Lathi. In course of scuffle, Illu Mahto snatched away Lathi from the hand of Girdhari and to save himself inflicted blows on the person of the deceased. There is no reason as to why the facts brought on record by these two witnesses should be discarded. Learned Trial Judge has not assigned valid reason for discarding the testimony of these two witnesses. At this juncture, it was also submitted that the parties were claiming their right, title and possession over the land in dispute. As per the evidence of P.W.7 and P.W.9, there was free fight between the appellants and the deceased and if it was so the appellants’ conviction with the aid of Section 149 of the Indian Penal Code is unwarranted and illegal. He has also relied upon the judgment of the Hon’ble Supreme Court reported in AIR 1981 SC 1219 [Bhudeo Mandal & Ors. Vs. State of Bihar] and submitted that all the appellants should not be liable to be punished under Section 302 with the aid of Section 149 of the Indian Penal Code. There was neither unlawful assembly nor the appellants had committed any offence in prosecution of common object of any unlawful assembly. The appellants were having every right to protect their lives and properties, which they did, but they have been held guilty on unsound reasoning. 6. Learned APP has opposed the argument and submitted that P.Ws.1 to 5 are eyewitnesses and they have fully supported the prosecution case. The presence of the informant and other eyewitnesses at the place of occurrence should not be disbelieved in view of the fact that the informant (P.W.3) is an injured eyewitness. The prosecution case finds support from the evidence of independent witnesses, namely, Ghanshyam Mahto-P.W.1 and Ashok Prasad-P.W.5. The injury caused to the deceased and the injury sustained by the informant find support from the evidence of P.Ws.10 and 15. It was submitted that due to negligence committed on the part of learned APP in the court below, the witnesses, namely, Radha Mahto-P.W.7 and Jagarnath Mahto-P.W.8 could not be declared hostile. The injury caused to the deceased and the injury sustained by the informant find support from the evidence of P.Ws.10 and 15. It was submitted that due to negligence committed on the part of learned APP in the court below, the witnesses, namely, Radha Mahto-P.W.7 and Jagarnath Mahto-P.W.8 could not be declared hostile. The story brought by them stood unsubstantiated because the appellants did not examine any witness to corroborate the version of P.Ws.7 to 9 and no medical evidence has been proved by them. Even the appellants in their statements under Section 313 Cr.P.C. have not admitted the aforesaid fact brought by P.Ws.7 to 9. The case of the prosecution is well proved from the evidence and documents available on record and the Trial Court has rightly held them guilty for the offence alleged and the impugned judgment need no interference. 7. We have considered the rival submissions and perused the records. First of all, we would like to discuss the evidence brought on record by P.Ws.7 to 9. These three witnesses have given a different story and according to them the occurrence took place in the field of appellant-Illu Mahto. It were the deceased and their family members, who were destroying radish and potato crops grown by Illu Mahto in the said field. When Illu Mahto and his sons made protest, the deceased Ram Pado Mahto and Girdhari Mahto inflicted blows by means of Lathi and later Lathi was snatched by Illu Mahto and it was used for causing injury to deceased by Illu Mahto. It is true that P.Ws.7 and 8 were not declared hostile for the reason best known to the conducting APP. It was vehemently argued that the evidence of these three witnesses should not be discarded without valid and sound reasonings and the reasonings assigned by the Trial court are neither sound nor tenable. 8. To answer the question raised by the counsel for the appellants, we have carefully gone through the evidence of remaining prosecution witnesses as also the case record. Needless to mention that the appellants in their statements recorded under Section 313 Cr.P.C. have not taken this plea. They did not say that the deceased were trying to destroy radish and potato crops. Needless to mention that the appellants in their statements recorded under Section 313 Cr.P.C. have not taken this plea. They did not say that the deceased were trying to destroy radish and potato crops. They have not said that altercation took place when they raised objection; what we mean to say is that the story brought on record by P.Ws.7 to 9 is not supported by the appellants in their statements recorded under Section 313 Cr.P.C. The appellants have not adduced any evidence in support of such contention that radish and potato crops were grown by them in that very field, the deceased and their companions had been destroying the crops, when they raised objection they were assaulted and there was free fight between them. No medical report has been brought on record to show that any of the appellant had sustained injury in the incident. In view of the above, story of free fight, as argued by the learned counsel, does not find support and the point so raised stands rejected. The story narrated by P.Ws.7 to 9 is liable to be rejected for further reason that the Investigating Officer-P.W.16 did not find either radish or potato crops destroyed at the place of occurrence. The appellants and the deceased, according to the evidences available on record, are Gotias. The land in question is nearer to their houses. It is disclosed by P.Ws.7 to 9 that radish and potato crops were grown by the appellants, but the same has not be substantiated by further evidence. On the other hand, Barun Mahto-P.W.3, who is informant (injured), has clearly stated that his father and brother were indulged in uprooting radish from the field. In the meantime, the appellants appeared and tried to demolish the fence of bush. When objection was raised, the deceased were subjected to assault by means of Lathi and iron rod. The occurrence took place on 28th December, 1997 at 6:30 a.m. and the Fardbeyan of the informant was recorded within two hours at Gola Hospital. The informant had sustained injury caused to him by one of the accused, which finds support from the evidence of P.W.15 and the injury report. The evidence of informant finds support from the evidence of P.Ws.1, 3, 4 and 5. Out of them, P.Ws.1 and 5 are independent eyewitnesses and they have corroborated the prosecution case. The informant had sustained injury caused to him by one of the accused, which finds support from the evidence of P.W.15 and the injury report. The evidence of informant finds support from the evidence of P.Ws.1, 3, 4 and 5. Out of them, P.Ws.1 and 5 are independent eyewitnesses and they have corroborated the prosecution case. Mathura Rajwar-P.W.6 had reached to the place after assault was over, but he had seen Ram Pado Mahto and Girdhari Mahto lying in the field unconscious after sustaining injuries. He had also seen Barun Mahto-P.W.3 having injury on his leg. Narayan Mahto-P.W.2 was also present. This witness in his cross-examination has said that Ashok Prasad-P.W.5 had already reached to the place of occurrence prior to reaching of this witness. Therefore, we find, the evidences of P.Ws.1 to 6 are consistent regarding place of occurrence, time of occurrence, manner of assault and the weapon used. 9. It was argued on behalf of the appellants that manner of occurrence and the weapons used, as described by the eyewitnesses, do not find support from medical evidence. To find out the answer, we have carefully examined the evidence of Dr. Ram Sevak Sahu-P.W.10, who had conducted postmortem on the dead body of Ram Pado Mahto and Girdhari Mahto. In his cross-examination, he has ruled out the use of any sharp cutting weapon against injuries sustained by them (deceased). The eyewitnesses have stated that iron rod and Lathi were used for causing injuries and the injuries were caused on the scapular region of the deceased. The blows caused to them were so severe that it caused fracture of parietal bone. It is often seen that if any hard and blunt object is used with great force to cause injury on the head, the nature of injury sometimes noticed by the doctors is defined as lacerated wound and sometime if they are not very careful in examining the grievousness of the injuries, they mislead themselves and describe it as incised wound. Be that as it may the prosecution has adduced as many as five eyewitnesses, who have clearly stated that Lathi and iron rod were used for causing injuries to the deceased. Suggestions were given to the eyewitnesses during cross-examination and their attention was also drawn to their earlier statements in order to bring it on record that they had stated about the use of Tangi (axe). Suggestions were given to the eyewitnesses during cross-examination and their attention was also drawn to their earlier statements in order to bring it on record that they had stated about the use of Tangi (axe). We do not find any reason as to why the eyewitnesses will tell lie about the weapons used. Had there been any intention to exaggerate the occurrence, they could have easily stated regarding use of Tangi, but they did not do so and have spoken truth about the weapons used. Considering all these aspects of the matter, we do not find that contradictions regarding weapons used are fatal and that is sufficient to disbelieve the testimony of as many as five-six eyewitnesses. 10. On the point of application of Section 149 of the Indian Penal Code, the appellants have placed reliance on the judgment of the Hon’ble Supreme Court in the case of Bhudeo Mandal (Supra). In this context, the ratio decided by the Apex Court in so many cases appears to be relevant. Where a question is raised regarding application and aid of Section 149 of the Indian Penal Code is concerned, the judgments of the Hon’ble Supreme Court, rendered in the cases of Masalti Vs. State of Uttar Pradesh, reported in AIR 1965 SC 202 , and Baladin & Ors. Vs. State of Uttar Pradesh, reported in AIR 1956 SC 181 , are being referred. The aforesaid two judgments have again been referred by their Lordships in the judgment rendered in the case of Rattiram & Ors. Vs. State of Madhya Pradesh, reported in (2013)12 SCC 316 . By referring aforesaid two judgments in Paragraph-18, it has been observed that the dictum in the aforesaid case was considered by Four Judges Bench in the case of Masalti (Supra), wherein the Bench has distinguished the observations made in the case of Baladin (Supra) on the ground that the said decision must be read in the context of special facts of that case and cannot be treated as laying down and unqualified proposition of law. The Four Judges Bench after explaining the said decision laid down as follows:- “17.....it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.” 11. In the case of Rattiram (Supra) other relevant judgments of the Apex court have also been referred. The sum and substance is that before holding a person guilty with the aid of Section 149 of the Indian Penal Code, we have to see, whether the assemblage was unlawful or not and ingredients of Section 141 of the Indian Penal Code are attracted or not. It is further necessary to consider each individual case distinctly for deciding the issue. Here in the case at hand, the deceased with their family members were indulged in uprooting radish crop. In the meantime, the appellants appeared and caused hindrance by removing fencing of bushes. They were armed with iron rod and Lathi. When the deceased raised objection, they were indiscriminately assaulted with active participation of all the appellants. The definition of unlawful assembly is given in Section 141 of the Indian Penal Code and the common object as indicated in third and fourth of definition are well attracted from the evidence available in the case at hand. The appellants had assembled to have forcible possession over the land in question and they were armed with Lathi, iron rod etc. When protest was made by the deceased, they were subjected to assault in which all the appellants had taken active part. The appellants had assembled to have forcible possession over the land in question and they were armed with Lathi, iron rod etc. When protest was made by the deceased, they were subjected to assault in which all the appellants had taken active part. All the appellants were members of said unlawful assembly and they were knowing fully well in prosecution of the common object of that assembly that the offence is likely to be committed. Here in the case at hand, all the appellants have taken part in the assault and, therefore, they have rightly been held guilty for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code. 12. Ocular evidence brought on record by the eyewitnesses finds support from the medical evidence brought on record by P.Ws.10 and 15. The offence was immediately reported to the police within two hours and that too Fardbeyan was recorded in the hospital while the deceased and the informant were under treatment. The Fardbeyan has well been proved by the Investigating Officer-P.W.16. After institution of the case the investigation was carried out, which finds support from the evidence of the Investigating Officer-P.W.16, and, therefore, we do not find any reason to interfere with the findings of the Trial Court. 13. In the result, we do not feel inclined to interfere with the findings of the Trial Court. Accordingly, the judgment of conviction and order of sentence recorded against the appellants under Sections 302/149, 325 and 148 of the Indian Penal Code in connection with Sessions Trial No.204 of 1999, corresponding to G.R. No.2133 of 1997, T.R. No.815 of 1999, arising out of Gola P.S. Case No.75 of 1997, is hereby upheld. The bail bond of appellant-Illu Mahto is hereby cancelled. He (Illu Mahto) is directed to surrender before the Trial Court within three weeks to serve out the sentence so awarded. If the appellant-Illu Mahto did not surrender within the time, the Trial Court shall take all coercive steps against him to secure his attendance. 14. Accordingly, this appeal stands dismissed Appeal dismissed.