JUDGMENT : Shree Chandrashekhar, J. Thirteen persons were named as accused by Diwakar Mahto, father of the deceased, namely, Satish Mahto @ Shanichar Mahto in his fardbeyan which was recorded on 31.05.2007 at about 4:30 hrs. at Sadar Hospital, Godda, for causing death of Satish Mahto. On the basis of his fardbeyan, Godda (T) P.S. Case No. 146 of 2007 was registered against Kailu Mahto alias Rajendra Mahto, Thakur Mahto, Shankar Mahto, Ganesh Mahto, Manikant Mahto, Guru Prasad Mahato, Nakul Mahto, Prahlad alias Hari Pd. Mahto, Muni Lal Mahto, Gopi Mahto, Krishna Mahto, Munna Mahto and Prahlad Mahto under sections 302/120-B/452/34 IPC. 2. The above-named accused persons have faced the trial on the charges under sections 148, 302/149, 460, 120-B IPC and under section 27 of the Arms Act. 3. All of them have been found guilty under section 320/149 IPC and under section 460 IPC. The charges under section 148 IPC and under section 27 of the Arms Act have been found proved against Kailu Mahto, Guru Prasad Mahto, Manikant Mahto and Thakur Mahto. The other eight accused persons have been found guilty under section 147 IPC. 4. In S.T. No. 156 of 2007/T.R. No. 25 of 2011, the appellants have been sentenced to undergo RI for life with fine of Rs. 3000/- each under section 302/149 IPC and for the offence punishable under section 460 IPC they have been sentenced to undergo RI for life with fine of Rs. 2000/- each. For the offences under sections 147 and 148 IPC and under section 27 of the Arms Act, the appellants have suffered their respective orders of sentence. 5. All these criminal appeals; Cr. Appeal (DB) No. 8 of 2013 by Kailu Mahto alias Rajendra Mahto, Cr. Appeal (DB) No. 177 of 2014 by Thakur Mahto alias Thakur Pd. Mahto, Cr. Appeal (DB) No. 34 of 2012 by Shankar Mahto and Ganesh Mahto, Cr. Appeal (DB) No. 345 of 2014 by Manikant Mahto , Cr. Appeal (DB) No. 411 of 2012 by Guru Prasad Mahato, Cr. Appeal (DB) No. 4 of 2012 by Nakul Mahto, Cr. Appeal (DB) No. 5 of 2012 by Prahlad alias Hari Pd. Mahto and Muni Lal Mahto and Cr. Appeal (DB) No. 8 of 2012 by Gopi Mahto , Krishna Mahto @ Krishna Pd. Appeal (DB) No. 411 of 2012 by Guru Prasad Mahato, Cr. Appeal (DB) No. 4 of 2012 by Nakul Mahto, Cr. Appeal (DB) No. 5 of 2012 by Prahlad alias Hari Pd. Mahto and Muni Lal Mahto and Cr. Appeal (DB) No. 8 of 2012 by Gopi Mahto , Krishna Mahto @ Krishna Pd. Mahto and Munna Mahto, have been preferred against the common judgment of conviction dated 05.12.2011 and the order of sentence dated 16.12.2011 passed by the 1st Additional District & Sessions Judge, Godda and, therefore, these appeals have been heard together and disposed of by this common judgment. 6. The appellants are represented through Ms. Sunita Kumari, Mrs. Dr. Amita Shrivastava, Mr. Purnendu Kumar Jha, the learned Advocates and Mr. Abhilash Kumar, the learned Amicus. 7. The learned counsels appearing for the appellants have submitted that: (i) the manner of occurrence as disclosed by the prosecution is unbelievable, (ii) the prosecution witnesses are related witnesses and in the absence of any independent witness their testimony is not trustworthy, (iii) the identification of the appellants in the night is highly doubtful, and (iv) injury to Satish Mahto only and failure of the Investigating Officer to collect other material evidences regarding the incident would create serious doubt on the prosecution’s story. 8. Sri Purnendu Kumar Jha, the learned counsel for the appellants, namely Nakul Mahto, Prahlad Mahto and Muni Lal Mahto has contended that the conviction of these appellants with the aid of section 149 IPC is not sustainable. To fortify his submission, Sri Purnendu Kumar Jha, the learned counsel has relied on the decision in “Joseph Vs. State Rep. by Inspector of Police” AIR 2018 SC 93 . 9. The informant of the case is the father of the deceased. PW-1, PW-2, PW-5, PW-6, PW-7, PW-8, PW-9 and PW-10 have been projected as the eye-witnesses. These witnesses are related to Satish Mahto, the deceased. In the fateful night, that is, in the intervening night of 30/31.05.2007 they were present in their house. In his fardbeyan, the informant has stated that in the mid-night, at about 3 a.m., he heard sound of breaking of his boundary wall on the eastern side. His son, namely, Satish Mahto and other family members woke up and in the torch light they saw Kailu Mahto alias Rajendra Mahto, Thakur Mahto alias Thakur Pd. In his fardbeyan, the informant has stated that in the mid-night, at about 3 a.m., he heard sound of breaking of his boundary wall on the eastern side. His son, namely, Satish Mahto and other family members woke up and in the torch light they saw Kailu Mahto alias Rajendra Mahto, Thakur Mahto alias Thakur Pd. Mahto, Shankar Mahto, Ganesh Mahto, Manikant Mahto, Guru Prasad Mahato, Nakul Mahto, Prahlad alias Hari Pd. Mahto, Muni Lal Mahto, Gopi Mahto, Krishna Mahto @ Krishna Pd. Mahto, Munna Mahto with 10-12 unknown persons who were variously armed with pistol, musket, lathi and spears. They all encircled them and Kailu Mahto fired shot at Satish Mahto with intention to kill him. The shot fired by him hit Satish Mahto on his chest due to which he fell on the ground. He has said that Thakur Mahto and Manikant Mahto also have fired shots on Satish Mahto from point-blank distance. When they raised hulla, the villagers started coming there and the accused persons left the place. The informant has made allegation of blank firing in the air by Guru Prasad Mahato when the accused persons were leaving the place of occurrence. Satish Mahto was taken to the district hospital at Godda on a tractor and in the meantime Chotu Mahto informed the police. The reason for the occurrence has been disclosed by the informant a long-standing land dispute between the parties. The informant has alleged that he had come to know that on the previous night a plan was hatched by the accused persons in the hotel of Prahlad Mahto where they had taken meal and drinks together. 10. In the court, the informant has narrated a similar story of the incident as has been described by him in his fardbeyan. He has made specific allegation of firing on Satish Mahto by Kailu Mahto, Thakur Mahto and Manikant Mahto. He has stated that in the night he heard the sound of breaking of his boundary wall and saw all the accused persons trying to trespass his house. He has also spoken about Guru Pd. Mahato threatening him by firing a blank shot in the air, while the accused persons were leaving the place of occurrence. He has identified his signature on his fardbeyan which has been marked as Ext.-2. He has stated about the police collecting the blood-stained soil and preparing a site-plan. He has also spoken about Guru Pd. Mahato threatening him by firing a blank shot in the air, while the accused persons were leaving the place of occurrence. He has identified his signature on his fardbeyan which has been marked as Ext.-2. He has stated about the police collecting the blood-stained soil and preparing a site-plan. During his cross-examination, he has firmly stood his ground. Nothing material could be elicited by the prosecution in his cross-examination which may substantially affect his testimony. 11. The prosecution witness, namely, Ganak Lal Mahto PW-1 has deposed in the court that at about 3:00 a.m. he has seen the accused persons in the torch light. They were variously armed with fire-arm and other deadly weapons. He has stated about Kailu Mahto firing a shot from fire-arm on the chest of Satish Mahto and other two accused persons, namely, Thakur Mahto and Manikant Mahto firing on Satish Mahto from a close distance. Bablu Mahto-PW-2 is cousin of the deceased. He has also stated about the accused persons jumping the boundary, firing at the deceased, dragging out of the deceased and while leaving the place of occurrence firing in the air. He says that face of the appellants was not covered and he has identified them in the torch light. Another cousin of the deceased, namely, Sunil Mahto-PW-5 is an eye-witness. He has also claimed that he has seen the accused persons in the torch light. They were trying to jump over the boundary wall. This witness has stated about firing by Kailu Mahto, Thakur Mahto and Manikant Mahto on Satish Mahto and dragging the body of Satish Mahto out of the boundary wall. 12. The brother of the deceased, namely, Chhedi Mahto-PW-6, uncle of the deceased, namely, Sukhdeo Mahto-PW-8 and Gahnoo Mahto-PW-7 are other eye-witnesses. These witnesses have also stated about the role played by Kailu Mahto, Thakur Mahto and Manikant Mahto in causing firearm injuries to Satish Mahto. 13. Dr. Soban Murmu-PW-14, who has conducted the postmortem examination, has observed thus: rigor mortis was present in both extremities and a bullet was lodged in the right side of the back of Satish Mahto which was removed and preserved. PW-14 has found partially digested food, about 250 gms, in the stomach of the deceased. 13. Dr. Soban Murmu-PW-14, who has conducted the postmortem examination, has observed thus: rigor mortis was present in both extremities and a bullet was lodged in the right side of the back of Satish Mahto which was removed and preserved. PW-14 has found partially digested food, about 250 gms, in the stomach of the deceased. According to him, the injuries found on Satish Mahto were caused by firearm and the time elapsed since death was 42 hours. 14. The daughter-in-law of the informant, namely, Siya Devi-PW-3 and Khela Hembrum-PW-4 are hearsay witnesses. PW-12 and PW-13 have turned hostile and PW-10 is a hearsay witness. 15. The Investigating Officer has examined himself as PW-15. He has stated that on receiving an information about the incident he reached the Godda District Hospital at about 4:30 a.m. and recorded the statement of Diwakar Mahto. He has prepared the inquest report and visited the place of occurrence. He has prepared the site-plan and seized blood-stained soil, three empty cartridges and broken wood of the firearm from the place of occurrence. The Investigating Officer has stated that he has recorded the confessional statement of Prahlad Mahto and recovered a pistol from his hotel. 16. The accused persons have tendered in evidence a certified copy of the judgment dated 20.12.1998 passed in G.R. No. 581 of 2007, to contend that due to land dispute and old enmity they have been falsely implicated in this case. 17. On appreciation of the evidence on record, we find that the death of Satish Mahto has not been challenged by the appellants. The postmortem examination report corroborates the eye-witness account of the prosecution witnesses. The incident has happened in the mid-night and this fact stands corroborated from the observation of PW-14 who has found semi- digested food in the stomach of Satish Mahto. The evidence against the appellants, namely, Kailu Mahto, Thakur Mahto and Manikant Mahto, who according to the prosecution have fired shots from pistol, is consistent and during cross-examination of the prosecution witnesses this part of their evidences has remained unshaken. The medical evidence laid by the prosecution through PW-14 and the evidence of the Investigating Officer who has found three empty cartridges amply corroborate the other evidences led by the prosecution against these three appellants. But, case of the other appellants stands on a different footing. 18. The medical evidence laid by the prosecution through PW-14 and the evidence of the Investigating Officer who has found three empty cartridges amply corroborate the other evidences led by the prosecution against these three appellants. But, case of the other appellants stands on a different footing. 18. Section 149 of the Indian Penal Code is a substantive offence which talks of constructive liability of every member of the unlawful assembly. Section 141 of the Indian Penal Code makes an assembly of five or more persons “unlawful assembly” if the common object of the persons composing that assembly is to commit any one of the offences under five clauses of section 141 IPC. Section 149 IPC provides 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 member who at the time of the committing of that offence is a member of the assembly, is guilty of that offence. In “Joseph Vs. State Rep. by Inspector of Police” AIR 2018 SC 93 , it has been held that section 149 IPC consists of two parts: “9. Before we consider the testimony of the witnesses, let us consider the requirements of invoking the vicarious liability under Section 149, IPC. Section 149, IPC consists of two parts: The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed.” The Hon’ble Supreme court has further held that: “What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the Court finds that the ingredients of Section 149, IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the Court to see as to who actually did the offensive act nor would it be open to the Court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149, IPC, the essential ingredients of Section 141, IPC must be established.” 19. In “Rajendra Shantaram Todankar V. State of Maharashtra and others” reported in (2003) 2 SCC 257 , explaining the scope of section 149 IPC the Supreme Court has held thus:- “14. Section 149 of the Indian Penal Code provides 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplate the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behavior of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149- either clause- is attracted and the Court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149, IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act…” [underlining added] 20. On a careful scrutiny of the testimony of the prosecution witnesses, we find that as many as six witnesses -PW-1, PW-2, PW-3, PW-5, PW-6 and PW-9 have not named the appellant, namely, Muni Lal Mahto in their examination-in-chief. Besides that, there is no specific allegation of any overt act stated by the other prosecution witnesses against Muni Lal Mahto. The appellant, namely, Prahlad Mahto has not been named as part of the assembly, allegedly the unlawful assembly, by PW-1, PW-2, PW-3 and PW-5. Prahlad Mahto is the person in whose hotel a conspiracy was hatched by the accused persons, but then, the charge under section 120B IPC has failed. His confessional statement recorded by the Investigating Officer has been discarded by the learned Sessions Judge. Against Nakul Mahto, the allegation by the prosecution witnesses is that he was part of the assembly which was dismantling the boundary wall of the informant. However, three prosecution witnesses-PW-1, PW-2 and PW-5, have not named him in their examination-in-chief. His confessional statement recorded by the Investigating Officer has been discarded by the learned Sessions Judge. Against Nakul Mahto, the allegation by the prosecution witnesses is that he was part of the assembly which was dismantling the boundary wall of the informant. However, three prosecution witnesses-PW-1, PW-2 and PW-5, have not named him in their examination-in-chief. Against the appellant, namely, Guru Prasad Mahato the allegation is of firing a blank shot from his pistol when the accused persons were leaving the place of occurrence. PW-2 and PW-3 have not named the appellant-Shankar Mahto as part of the unlawful assembly. We further find that there is no specific allegation against the appellants, namely, Krishna Mahto @ Krishna Pd. Mahto, Gopi Mahto, Ganesh Mahto and Munna Mahto in causing death of Satish Mahto. They were part of the unlawful assembly which was trying to break the boundary wall of the informant. However, none of the prosecution witnesses has stated that they have also assaulted Satish Mahto. In fact, they have not even touched the body of Satish Mahto in the incident in which he has died. At this juncture, when the appellants were breaking the boundary wall and trying to trespass the house of the informant, from the prosecution’s evidence it cannot be inferred that they have shared a common object to cause death of Satish Mahto. Though it is not necessary that every member of the unlawful assembly must have done something in furtherance of the common object which has resulted in death of Satish Mahto, but the prosecution must establish that his death has been caused in furtherance of the common object of all or every member of the unlawful assembly knew that death may be caused in furtherance of the common object. No such evidence has been laid by the prosecution against the appellants, except Kailu Mahto, Thakur Mahto and Manikant Mahto. No such evidence has been laid by the prosecution against the appellants, except Kailu Mahto, Thakur Mahto and Manikant Mahto. It is also true that section 34 IPC and section 149 IPC which embody constructive liability come into play in a situation where it is not possible for the prosecution to say with mathematical precision who amongst the accused persons has played what role, but in the present case in the second stage of the occurrence in which death of Satish Mahto has been caused the prosecution has failed to lead any evidence on the role played by Shankar Mahto, Ganesh Mahto, Guru Prasad Mahato, Nakul Mahto, Prahlad alias Hari Pd. Mahto, Muni Lal Mahto, Gopi Mahto, Krishna Mahto @ Krishna Pd. Mahto and Munna Mahto. 21. In the aforesaid state of affairs, in our opinion, conviction of the above-named, nine appellants under section 302/149 IPC is not sustainable and, therefore, conviction of the appellants, namely, Shankar Mahto and Ganesh Mahto in Cr. Appeal (DB) No. 34 of 2012, Guru Prasad Mahato in Cr. Appeal (DB) No. 411 of 2012, Nakul Mahto in Cr. Appeal (DB) No. 4 of 2012, Prahlad alias Hari Pd. Mahto and Muni Lal Mahto in Cr. Appeal (DB) No. 5 of 2012 and Gopi Mahto, Krishna Mahto @ Krishna Pd. Mahto and Munna Mahto in Cr. Appeal (DB) No. 8 of 2012 passed by the 1st Additional District & Sessions Judge, Godda in S.T. No. 156 of 2007 under section 302/149 IPC is set-aside. 22. Next, the learned counsels for the appellants have contended that conviction of the appellants under section 460 of the Indian Penal Code is unsustainable. 23. Section 441 IPC provides that whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, commits "criminal trespass". Section 442 IPC provides that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, commits "house-trespass". Section 442 IPC provides that whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, commits "house-trespass". And, if house-trespass is committed by taking precautions to conceal himself, the trespasser commits lurking house-trespass and if it is committed after sunset and before sunrise, the offence is lurking house-trespass by night. The offence of lurking house-trespass is defined under section 444 IPC. The offence of house-breaking is defined under section 445 IPC and if the offence of house-breaking is committed after sunset and before sunrise, the offender commits “house-breaking by night”. 24. Under section 460 IPC, if, at the time of the committing of lurking house-trespass by night or house-breaking by night, any person voluntarily causes or attempts to cause death or grievous hurt to any person, all persons jointly concerned in committing lurking house-trespass by night or house-breaking by night shall be liable. 25. From the evidences led by the prosecution, it is not established that death of Satish Mahto was caused at the time of the committing of lurking house-trespass by night or house-breaking by night. All that the prosecution has been able to establish is that all the appellants have committed lurking house-trespass by night or house-breaking by night in order to committing of an offence. There was a long standing land dispute between the parties and, therefore, it can be inferred that the appellants have in order to committing of an offence had committed lurking house-trespass by night or house-breaking by night. There is a world of difference between the offence punishable under section 457 IPC and the offence under section 460 IPC. 26. The prosecution has laid sufficient evidence against the above-named nine appellants, namely, Shankar Mahto, Ganesh Mahto, Guru Prasad Mahato, Nakul Mahto, Prahlad alias Hari Pd. Mahto, Muni Lal Mahto, Gopi Mahto, Krishna Mahto @ Krishna Pd. Mahto, Munna Mahto that they had intended to commit an offence punishable with imprisonment and they had committed house-breaking by night and therefore, they are liable to be convicted under section 457 IPC. Accordingly, conviction of the nine appellants, namely, Shankar Mahto and Ganesh Mahto in Cr. Appeal (DB) No. 34 of 2012, Guru Prasad Mahato in Cr. Appeal (DB) No. 411 of 2012, Nakul Mahto in Cr. Accordingly, conviction of the nine appellants, namely, Shankar Mahto and Ganesh Mahto in Cr. Appeal (DB) No. 34 of 2012, Guru Prasad Mahato in Cr. Appeal (DB) No. 411 of 2012, Nakul Mahto in Cr. Appeal (DB) No. 4 of 2012, Prahlad alias Hari Pd. Mahto and Muni Lal Mahto in Cr. Appeal (DB) No. 5 of 2012 and Gopi Mahto, Krishna Mahto @ Krishna Pd. Mahto and Munna Mahto in Cr. Appeal (DB) No. 8 of 2012 passed by the 1st Additional District & Sessions Judge, Godda in S.T. No. 156 of 2007 under section 460 IPC is set-aside and they are convicted under section 457 IPC and sentenced to undergo RI for five years and fine of Rs. 2000/ each under section 457 IPC. The bail bonds furnished by the appellants, namely, Ganesh Mahto, Guru Prasad Mahato, Nakul Mahto, Prahlad alias Hari Pd. Mahto, Muni Lal Mahto, Gopi Mahto, Krishna Mahto @ Krishna Pd. Mahto and Munna Mahto are cancelled. They shall surrender before the court-below to serve their respective remaining sentences. 27. The conviction and sentence inflicted upon these appellants under section 460 IPC are set-aside. 28. The learned APP states that the appellant, namely, Shankar Mahto has served sentences for more than 7 years. Accordingly, he is discharged from liability of the bail-bonds furnished by him. 29. Cr. Appeal (DB) No. 34 of 2012, Cr. Appeal (DB) No. 411 of 2012, Cr. Appeal (DB) No. 4 of 2012, Cr. Appeal (DB) No. 5 of 2012 and Cr. Appeal (DB) No. 8 of 2012 are partly allowed. 30. Conviction of the appellants, namely, Kailu Mahto alias Rajendra Mahto in Cr. Appeal (DB) No. 8 of 2013, Thakur Mahto alias Thakur Pd. Mahto in Cr. Appeal (DB) No. 177 of 2014 and Manikant Mahto in Cr. Appeal (DB) No. 345 of 2014 passed under section 302/149 IPC and under section 460 IPC by the 1st Additional District & Sessions Judge, Godda in S.T. No. 156 of 2007 are affirmed. Accordingly, Cr. Appeal (DB) No. 8 of 2013, Cr. Appeal (DB) No. 177 of 2014 and Cr. Appeal (DB) No. 345 of 2014 are dismissed. 31. Let lower court records be transmitted to the court concerned, forthwith. 32. Let a copy of the judgment be communicated to the trial court through FAX.