JUDGMENT S.PANDA, J. - Both these Criminal Appeals are directed against the judgment dated 14.12.1999 passed by the 1st Addl. Sessions Judge, Puri in Sessions Trial Case No.63/411 of 1996 in convicting the appellants for commission of offence under Section 148 I.P.C. and sentencing them to undergo Rigorous Imprisonment for three years and for commission of offence under Sections 302/149 I.P.C. and sentencing them to under Rigorous Imprisonment for life. It was also directed that both the sentences are to run concurrently and the period of detention in custody by the convicts, if any, be set off. 2. The prosecution case, in brief is that on 31.08.1994, the deceased Sukanta Panda along with P.W. 3 Kalia Swain, alias Naba Kishore Swain, Panchu Jena and Hari Swain had gone to Puri and at about 6.00 P.M. on the same day they left Puri for their village. At Sakhigopal, all of them got down from the bus. Panchu Jena stayed at Sakhigopal and the deceased, P.W. 3 and Hari Swain went to their village in their way, Hari Swain left them near a bridge at village Majhikera about thereafter the deceased along with P.W. 3 went to village Dihapur. While they were going as such, the accused persons being armed with Farsa, Bhujali, Lathies, etc. surrounded the deceased and P.W. 3. At that time, P.W. 3 ran out of fear, but on his way, he was assaulted by the accused Sagar Dash by lathi. In between 10.30 to 11.00 P.M., P.W. 8 Indramani Pradhan had been to the village Dihapur to the house of the deceased to collect the sale proceeds of green coconuts, which he had given to Padmalav Mahapatra, the elder brother of the deceased. There, P.W.8- Indramani Pradhan, P.W.9-Padmalav Mahapatra and P.W. 10-Radhamani Panda, heard the cry of the deceased “MOTE HANI PAKEILE’. Hearing such shout, P.Ws. 8, 9 and 10 went to the spot and found that the deceased Sukanta Panda was lying with severe bleeding injuries on his person. The accused persons were also present there on the spot. There, P.W.8- Indramani Pradhan, P.W.9-Padmalav Mahapatra and P.W. 10-Radhamani Panda, heard the cry of the deceased “MOTE HANI PAKEILE’. Hearing such shout, P.Ws. 8, 9 and 10 went to the spot and found that the deceased Sukanta Panda was lying with severe bleeding injuries on his person. The accused persons were also present there on the spot. The deceased Sukanta was nourished and on being asked the deceased told that accused Iswar Pradhan, Narayan Pradhan, Ananta Pradhan, Balakrishna Mahapatra and Kumar Mahapatra caught of him and thereafter the accused Kumar Mahapatra dealt a Farsa blow on his left leg near the knee, accused Susanta Padhan assaulted him by Farsa on his right wrist, as a result of which the right wrist with fingers were detached from his body, accused Jaya Das assaulted him by a Farsa on his right leg, accused Parasuram Sahu assaulted him by a Farsa on his left palm, accused Rabi Sahu assaulted him on his right leg with Farsa giving two blows and accused Mahia gave a Farsa blow on his left leg. The other accused persons also assaulted him by fist blows, kicks and iron rods. Thereafter, injured-Sukanta Panda was taken in a bullock cart to Sakhigopal hospital, but on the way, he succumbed to the injuries. P.W.10, the mother of the deceased lodged the F.I.R. Accordingly the O.I.C. Satyabadi Police Station went to the spot on 01.09.1994, seized the bloodstained earth and held inquest over the dead body. He despatched the dead body for post-mortem examination. After completion of investigation, charge-sheet was submitted finding sufficient evidence against the appellants and other accused persons to have committed offence under Sections 148, 302 and 149 I.P.C. 3. The appellants’ defence plea was one of complete denial. 4. In order to bring home the charge, during trial the prosecution examined as many as 12 witnesses and exhibited 11 documents, which were marked as Exts. 1 to 11. On the other hand, the defence had neither examined any witness nor exhibited any document. The prosecution also proved Material Objects from M.O.I. to M.O. I/5. 5. The learned Addl. 4. In order to bring home the charge, during trial the prosecution examined as many as 12 witnesses and exhibited 11 documents, which were marked as Exts. 1 to 11. On the other hand, the defence had neither examined any witness nor exhibited any document. The prosecution also proved Material Objects from M.O.I. to M.O. I/5. 5. The learned Addl. Sessions Judge after threadbare discussion of the materials available on record and on consideration of evidences found the appellants guilty of the charges for commission of the offence punishable under Section 148 I.P.C. and sentenced them to undergo Rigorous Imprisonment for three years and for commission of offence under Section 302/149 I.P.C. and sentenced them to undergo Rigorous Imprisonment for life. It was also directed that both the sentences are to run concurrently and the period of detention in custody by the convicts, if any, be set off. 6. Learned Counsel for the appellant in Criminal Appeal No.3 of 2000 submits that the impugned judgment is against the weight of evidence on record. There has been long delay in lodging the F.I.R., which was not explained. The prosecution has not proved that the appellant was a member of the unlawful assembly armed with deadly weapons. Due to previous enmity with the deceased and his father, he has been implicated in the crime. 7. Learned Counsel for the appellants in Criminal Appeal No.40 of 2000 submits that the Court below has passed the order basing on the evidence of P.Ws.3, 8, 9 and 10 who are not at all the eyewitness to the occurrence and they are all post occurrence witnesses. The impugned judgment of conviction and sentence is based on surmises and conjectures. The appellants have been implicated due to previous animosity. He further submits that P.Ws. 9 and 10 being interested witnesses, their evidence is not to be relied. Hence the impugned order is liable to be set aside and the appellants are entitled for acquittal. 8. Learned Additional Government strongly contended that the appellants had common motive to kill the deceased and they had come with deadly weapons. The deceased had made the dying declaration before P.Ws. 8, 9 and 10 about the assault. The evidence of such witnesses corroborates with each other. 8. Learned Additional Government strongly contended that the appellants had common motive to kill the deceased and they had come with deadly weapons. The deceased had made the dying declaration before P.Ws. 8, 9 and 10 about the assault. The evidence of such witnesses corroborates with each other. The Doctor (P.W.6), who conducted the autopsy, found that the death was due to hemorrhage and shock resulting multiple injuries, cutting of veins of forearm and leg. He further opined that the death was within 12 hours from the time of examination, i.e. 4.00 P.M. on 01.09.1994. Therefore, the sentence imposed on the appellants has been property assessed by the Trial Court and as such, the same calls for no interference by this Court. 9. Perused the L.C.R. and went through the evidence on record carefully. It appears that the prosecution has basically founded its case on the basis of the statements of the witnesses, i.e. P.Ws.3,8, 9 and 10, so also the statements of the P.W.6, the Doctor, who conducted the post-mortem examination. The Court below found that the appellants have come with a common object to kill the deceased and accordingly passed the impugned order. Let us examine the evidence of the witnesses basing on which the Trial Court has passed the impugned order. 10. The Trial Court had convicted the appellants under Section 148 IPC. Section 148 refers to rioting armed with deadly weapons. Consequently for punishment under any or all these sections an unlawful assembly is sine qua non, which was defined in Section 141 IPC. Possession of the deadly weapon is an essential ingredient of the offence punishable under Section 148 IPC. Meaning of Words – “Whoever.... being armed,” i.e. only the person so armed can be convicted under this section. Applicability of Section 148 can be attracted only when a rioter is armed with a deadly weapon or with a weapon of offence likely to clause death. In the instant case, the evidence was clear that the accused persons were armed with Farsa and Bhujali, which were deadly/dangerous weapons. Rightly the charges were framed under Section 148 IPC against the accused persons so armed with deadly weapons and the order of conviction was passed accordingly. 11. In the instant case, the evidence was clear that the accused persons were armed with Farsa and Bhujali, which were deadly/dangerous weapons. Rightly the charges were framed under Section 148 IPC against the accused persons so armed with deadly weapons and the order of conviction was passed accordingly. 11. Section 149 primarily requires that a person should be a member of unlawful assembly, that in prosecution of common object of that assembly, as offence should be committed by a member of that unlawful assembly, and that the offence should be of such a nature that the member of the assembly knew the offence likely to be committed in of their common object. The Court has to see the accused persons are members of the unlawful assembly with a common object with particular reference to the part played by each of the accused persons who consulted the unlawful assembly. In dealing with applicability of Section 149 IPC, “it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves that charge against all of them, that is very clear case where Section 149 can be invoked. It is, however, not necessary that five or more persons must be convicted before a charge under Section 149 can be successfully brought home to any members of the unlawful assembly. It may be that less than five persons may be charged and convicted under Section 302/149 if the charge is that the person before the Court along with others named constituted an unlawful assembly. (See Mohan Singh v. State of Punjab (1962) 3 S.C.R. 848). 12. P.Ws. 9 and 10 termed as interested witnesses. The law is well settled that evidence of interested witnesses is not necessarily unreliable by itself as such evidence should be subjected to careful scrutiny with caution. The Court is to find out as to whether the presence of the witness at the sense of the crime is probable and if so, as to whether the story narrated by such persons would carry conviction with a prudent person. If the evidence of witnesses appears to the Court to be flawless and free from suspicious, it may accept it. If the evidence of witnesses appears to the Court to be flawless and free from suspicious, it may accept it. With the above touch stone we examined the evidence of the witnesses. 13. P.W. 3, Kalia @ Naba Kishore Swain, the witness to the occurrence has stated in his Examination-in-Chief that the occurrence took place at about 11.00 P.M. at the outskirt of the village Dihapur near the village road. On the date of occurrence, he along with deceased, Hari Swain, and Panchu Jena were coming from Puri. After getting down from the bus at Sakhigopal, they proceeded to Chandapokhari. The deceased went by scooter to village Jayarampur Chhak. At that place, he, Hari Swain met the deceased and they left for their village through the village Majhikera. Hari Swain left near the bridge to go to his village Patana. He along with the deceased while coming, the accused Susanta Padhan, Jai Das, Parsu Sahu, Rabindra Sahu, Mahia Das surrounded the deceased. At that time, he ran away from the place leaving the cycle. While he was running from the spot, he saw accused Kalia Padhan and Bharat Padhan were proceeding towards the spot from the opposite direction. He heard the cry of the deceased to the effect “MOTE HANI PAKAILE AND MARI PAKAILE”. He concealed himself out of fear in a Bagayata and thereafter he went to his village Kosala. It reveals from his evidence that he had seen the above named accused persons surrounding the deceased on the spot. He could identify the accused persons from their voice as he is a local man. Nothing has been brought out from his cross examination disbelieving his presence at the spot. The prosecution has explained the delay in examination of P.W. 3 and it is quite possible that a person in the dead of the night saw the brutal assault of deceased with deadly weapons while coming with him to the village. He fled away from the spot out of fear and concealed himself in a distance village. He has no occasion to disclose the facts immediately. 14. P.W. 8, an independent witness had deposed in his examination-in-chief that on the evening of the date of occurrence, he had been to the house of deceased to collect the sale proceeds of the green coconuts. However, he was told to wait till the arrival of the deceased. He has no occasion to disclose the facts immediately. 14. P.W. 8, an independent witness had deposed in his examination-in-chief that on the evening of the date of occurrence, he had been to the house of deceased to collect the sale proceeds of the green coconuts. However, he was told to wait till the arrival of the deceased. While waiting there, he heard hullah from the side of the road. Hearing that hullah, he along with Padmalav Mohapatra ( P.W.9) and Radhamani Panda ( P.W.10) proceeded towards the spot with a torch light and one chargeable torch light. The torchlight was held by P.W. 9 and the chargeable or light was held by P.W. 10. While going towards the spot, they heard as ‘HANIPAKILE BOUKILO MARIGALI’. They saw that the deceased was lying there with severe bleeding injuries on his person. On being asked by P.Ws. 9 and 10, he narrated the details of assault by the accused persons. P.W. 8 could able to see the accused persons on the focus of the torch. Thereafter, the deceased was taken to the hospital. He accompanied the deceased to the hospital. On the way to hospital, the deceased could not talk near the rice mill of Panu Sahu of Village Jayaramp;ur. In the hospital the deceased was declared to be dead by the doctor. 15. P.W.9, the elder brother of the deceased, in his examination-in-chief has deposed that on the date of occurrence at about 11 P.M. when he was sitting in front of his house, he heard a hullah” MOTE HANIPAIKELA DAUDI ASSA’. Thereafter, he along with informant (P.W.10) and one Indramani Padhan ( P.W.8) went to the spot. They found that the deceased Sukanta Panda was lying on the road side and the accused persons were standing nearby armed with Farsa, Bhujali etc. Seeing them, the accused persons fled away and he nourished the injured Sukanta and he regained sense. On being asked by him, the said injured Sukanta Panda told that accused Balakrishna Mahapatra, Kumar Mahapatra, Naran Padhan and Ananta Padhan caught hold of the deceased and accused Kumar assaulted his brother by a Farsa which stuck on his left leg. Seeing them, the accused persons fled away and he nourished the injured Sukanta and he regained sense. On being asked by him, the said injured Sukanta Panda told that accused Balakrishna Mahapatra, Kumar Mahapatra, Naran Padhan and Ananta Padhan caught hold of the deceased and accused Kumar assaulted his brother by a Farsa which stuck on his left leg. Accused Balakrishna Mahapatra assaulted his brother Sukanta by a Farsa to his right leg and accused Susanta Padhan assaulted his brother by a Farsa on his right wrist and accused Parasuram Sahu assaulted his brother by a Farsa on his left palm. Accused Jayakrishna Das assaulted his brother by a Farsa on his right thigh. Accused Rabi Sahu and Mahia Das assaulted his brother by a Farsa to both of his legs. Thereafter, when his brother Sukanta wanted water the accused persons Kalia Padhan, Sagar Das and Surendra Barik threw him in a field. In his Cross-examination his statement in chief was not demolished regarding the overt act of accused persons. However, as to the suggestion given regarding death of deceased while, he came to the spot, he denied the same. 16. P.W.10, mother of the deceased is the informant and she has corroborated the time and place of occurrence. After herring the hulla of her son Patia (deceased), she along with P.Ws. 9 and 8 ran to the spot. In the focus of the torch, she saw the accused persons standing nearby whereas her son Patia was lying being unconscious. The accused persons were armed with Farsa, etc. When they focused the torch, the accused persons fled away from the spot. Thereafter, her son Padmalav Mahapatra ( P.W.9) nourished the deceased by giving water. The deceased regained his sense. She put her son on her lap and on being asked her son told that accused Iswar Padhan, Narayan Padhan, Ananta Padhan, Balakrishna Mahapatra and Kumar Mahapatra caught hold of him and accused Kumar Mahapatra dealt a Farsa blow on the left leg knee of her son. Accused Susant Padhan assaulted her deceased son by Farsa on his right wrist as a result of which the right wrist with fingers was detached from the body. Accused Jaya Das thereafter assaulted her son by a Farsa on his right leg. Accused Parasu Sahu assaulted her son by a Farsa on his left palm. Accused Susant Padhan assaulted her deceased son by Farsa on his right wrist as a result of which the right wrist with fingers was detached from the body. Accused Jaya Das thereafter assaulted her son by a Farsa on his right leg. Accused Parasu Sahu assaulted her son by a Farsa on his left palm. Accused Rabi Sahu assaulted her son on his right leg with a Farsa giving two blows and accused Mahia Das gave a Farsa blow on his left leg. The accused persons also assaulted her son by fist blows, kicks and iron rods. Accused Padu Das, was having bomb with him kept in a bag. Her injured son was taken to Sakhigopal Hospital in a bullock cart and on the way he died. 17. P.W. 6, the Doctor who conducted autopsy over the dead body of the deceased at about 4 P.M. on 01.09.1994 found the injuries as follows : (1) on external examination, the body built is stout, completion fair, food particles on the right angle of the mouth and right nostrils. Rigour notice present. I noticed one incised wound at the level of the right wrist joint. Cut through separating the right hand completely the cutting part of the hand, also skin cut margin suggestive of incised wound. Both the parts brought into apposition found to be of same person after comparison of the skin muscles and bone. (2) One incised wound 31/2" x 1" on the middle 1 ½ depth. Under lateral aspect of the right ankle joint, which caused muscles, vessels and under lined bones. Right fibula and upper part of calcareous and fibula. (3) One incised wound size 3 ½” x 1" on the middle into half inch depth 2" above the right knee joint. (4) One incised wound of size length 1" x ½” x ½” depth on the lateral aspect of the right foot on the dorsal aspect. (5) One incised wound 3" x ½” x 1/1/2" present on the web space between the left thumb and index finger. Cutting between the left thumb and index finger. Cutting the underlined skin and muscles and vessels, including the second and third metacarpal bone. (6) One incised wound 1" x 1"2" x ½” on the promimal phalanx of the left thumb. Cutting between the left thumb and index finger. Cutting the underlined skin and muscles and vessels, including the second and third metacarpal bone. (6) One incised wound 1" x 1"2" x ½” on the promimal phalanx of the left thumb. (7) One incised wound 1" x ½” x ½” on the mid part of the left forearm 3" below the left elbow joint. It cuts skin muscles and superficial vessels. (8) One incised wound 4" x 1"x 2" placed over the lateral aspect of the left ankle joint. It cuts skin, muscles and vessels and underlines bones left fibula at this lower and lateral calneous bones. (9) One incised wound 4 ½” x 1" x 1" over the left leg 2" above the left ankle joint. According to him, the cause of death is due to haemorrhage and shock resulted from multiple injuries cutting vessels of the forearm and legs, which is homicidal in nature. 18. On close scrutiny of the aforesaid evidences, it is evident that that P.W. 3 was coming with the deceased when all the accused persons surrounded the deceased being armed with deadly weapons like Farsa and Bhujali. The motive of the accused persons to kill the deceased is apparent. P.Ws. 3, 8, 9 and 10 deposed the overt act by each of appellants of Criminal Appeal No.40 of 2000. Such statements are corroborated with each other. P.W. 3 was witness to occurrence. His evidence is consistent. The materials available on record discloses the presence of P.W. 8, the independent witness at the spot when deceased disclosed the assault made by each of the appellants with deadly weapons to his mother and brother ( P.Ws. 10 and 9 respectively). P.W. 8 had gone to obtain the sale proceeds from P.W. 9. There is no discrepancy in the evidences of all such witnesses. All such indicate that the appellants had formed unlawful assembly in prosecution of common object. The statements of the eye witnesses with regard to assault made by each of the appellants get ample corroboration from the medical evidence of the doctor (P.W.7). 19. In view of the above, we hold that the Criminal Appeal No.40 of 2000 filed by the accused persons is devoid of merit. The statements of the eye witnesses with regard to assault made by each of the appellants get ample corroboration from the medical evidence of the doctor (P.W.7). 19. In view of the above, we hold that the Criminal Appeal No.40 of 2000 filed by the accused persons is devoid of merit. We accordingly up-hold the finding of the guilty as against those accused persons as recorded by the Trial Court and also the sentence imposed in respect of the offence committed by them. Hence the appeal fails. The same is accordingly dismissed. The accused persons since are on bail, their bail bond be cancelled and they are be directed to surrender before the Trial Court to undergo the remaining period of sentence. 20. So far as the appellant in Criminal Appeal No.3 of 2000 is concerned, the witnesses have not seen him with deadly weapons, except the evidence of P.W. 10, who stated that Padu was having bomb kept in a bag. It is not possible for a person to say whether a bomb is their in the bag or not. There is no specific evidence with regard to the overt act performed by the said appellant, nor any incriminating material was recovered from him. 21. In such view of the matter, this Court sets aside the order of conviction and sentence imposed in the impugned judgment dated 14.12.1999 so far as the appellant in Criminal Appeal No.3 of 2000, i.e. Padmanav Das is concerned and allows Criminal Appeal No.3 of 2000. Accordingly his bail bond be cancelled and he shall be discharged from criminal liability. S.N. PRASAD, J. I agree. Ordered accordingly.