JUDGMENT : Shree Chandrashekhar, J. Two persons, namely, Mehi Lal Manjhi and Amir Lal Manjhi, both sons of Somra Manjhi, alongwith 20-25 persons came inside the school searching for Mahesh Turi and assaulted three persons; Uday Pratap Soy, Salvason Murmu and thereafter Mahesh Turi. On the basis of written report of Uday Pratap Soy given at about 13.30 hrs. on 24.04.2008, Mahuatand P.S. Case No.16 of 2008 was registered under sections 147, 148, 149, 341, 323, 324, 326, 307, 337, 338 and 379 IPC. After the investigation, a charge-sheet was submitted against Mehi Lal Manjhi, Amir Lal Manjhi and Chhote Lal Manjhi and common charges under section 302/149 IPC for committing murder of Mahesh Turi; under section 307/149 IPC for attempting to cause death of Mahesh Turi, Uday Pratap Soy and Salvason Murmu were framed against them. Charges under section 326/149 IPC for causing grievous hurt to Mahesh Turi, Uday Pratap Soy and Salvason Murmu and under section 338/149 IPC, section 147 IPC and section 148 IPC were also framed against Mehi Lal Manjhi and Chhote Lal Manjhi. Separate charges under section 302/149 IPC and section 307/149 IPC were framed against Amir Lal Manjhi and under section 379 IPC against Mehi Lal Manjhi. 2. The appellants have suffered conviction and sentence of R.I for life and fine of Rs.20,000/-under section 302/149 IPC and R.I for 7 years under section 307/149 IPC. The appellants, namely, Mehi Lal Manjhi and Chhote Lal Manjhi are convicted and sentenced to R.I for 3 years both under section 147 IPC and section 148 IPC, R.I for 5 years under section 326/149 IPC and R.I for 2 years under section 338/149 IPC. 3. In his written report dated 24.04.2008, the informant has stated that on that day the school children had gone back home after the school hours and he was finishing pending work in his office; he is the Principal of A.G. Church Mission School. At that time, wife of Mahesh Turi came and asked him to stop her husband from coming to the school as several persons of Manjhi community have surrounded the school; amongst them were Mehi Lal Manjhi and Amir Lal Manjhi, and they were searching for him. However, in a short while Mahesh Turi came to the school and 20-25 persons of Manjhi community scaling boundary of the school came there and enquired about Mahesh Turi. However, in a short while Mahesh Turi came to the school and 20-25 persons of Manjhi community scaling boundary of the school came there and enquired about Mahesh Turi. They were agitated and saying how some people have constructed the school on a grabbed land and all this work was done by Mahesh Turi. The informant has stated that when he did not disclose the whereabouts of Mahesh Turi, Mehi Lal Manjhi and Amir Lal Manjhi caught hold of him and both started assaulting him with lathi and danda. The other persons who had accompanied them also started throwing bricks and stones. Mehi Lal Manjhi has assaulted him with danda on his head due to which he suffered injury on the right side of his head and fell on the ground. Thereafter, they left his office, caught Mahesh Turi and started assaulting him with lathi, danda and hoe. Mahesh Turi was crying for help. In the meantime, Salvason Murmu, who is a school staff, came there and tried to help him whereupon the accused persons assaulted him also. Due to assault on him, Mahesh Turi had become unconscious and after the accused persons fled away, the police came there and took them to the hospital. 4. Both of them and Mahesh Turi were sent to TTPS Hospital, Lalpania for treatment, however, on observing the serious condition of Mahesh Turi he was referred to Apollo Hospital, Ranchi where he died on 28.04.2008. 5. The prosecution witness, namely, Arjun Manjhi-P.W.5 has turned hostile and Baburam Manjhi-P.W.6 was tendered for cross-examination by the prosecution. Ramesh Sao-P.W.9 has identified Mehi Lal Manjhi, Amir Lal Manjhi and Chhote Lal Manjhi amongst the mob. 6. The prosecution has projected P.W.2, P.W.4, P.W.7 and P.W.10 as eye-witnesses. 7. The informant has been examined in the court as P.W.4. In his examination-in-chief, he has narrated a similar story of assault by the appellants in the forenoon of 24.04.2008. He is the Principal of the school and all the prosecution witnesses have spoken about his presence in the school at the time of the incident. It was about 11 a.m in the morning and the students had gone back home after the school hours. He has deposed that he was finishing pending work in his office when wife of Mahesh Turi came there and informed that several persons of Manjhi community have surrounded the school. It was about 11 a.m in the morning and the students had gone back home after the school hours. He has deposed that he was finishing pending work in his office when wife of Mahesh Turi came there and informed that several persons of Manjhi community have surrounded the school. They were searching for her husband and, therefore, she requested him to stop her husband from coming to the school. He has spoken about the assault on him as well as on Mahesh Turi and Salvason Murmu. He has made a specific allegation of assault on the back of his head by Mehi Lal Manjhi. Dr. Krishna Murari Sinha-P.W.3, who has examined Uday Pratap Soy on 24.04.2008, has found the following injuries on him: (i) a lacerated wound over the back of left ear measuring 3” X skin deep. (ii) complain of pain over shoulder joint left. (iii) pain all over the body. 8. P.W.2-Salvason Murmu is another eye-witness. He is a teacher in the school and his presence on 24.04.2008 in the school, even after the school hours, is supported by the informant and other prosecution witnesses. He has stated that 20-25 persons; amongst whom he has recognised Mehi Lal Manjhi, Amir Lal Manjhi and Chhote Lal Manjhi, scaled boundary wall of the school and came inside the office of the Principal. When Uday Pratap Soy did not disclose the whereabout of Mahesh Turi they assaulted him. He has further stated that they assaulted him on his left hand and back. 9. P.W.3 has examined Salvason Murmu on the same day and observed scratches over his left forearm. He has complained of pain over his body which is recorded by P.W.3 in the injury report. 10. Shanti Devi, the wife of the deceased, namely, Mahesh Turi has been examined as P.W.1. In her examination-in-chief, she has claimed that she has seen the appellants assaulting her husband. She says that Amir Lal Manjhi and Chhote Lal Manjhi assaulted her husband with lathi and Mehi Lal Manjhi hit him with hoe on his head. In her cross-examination, presumably on a suggestion by the defence that she has not seen the occurrence, she admits that she has not stated before the police that she has seen the occurrence from the school gate. In her cross-examination, presumably on a suggestion by the defence that she has not seen the occurrence, she admits that she has not stated before the police that she has seen the occurrence from the school gate. She has also stated that distance between the school gate, which is the first place of occurrence, and the office is 30-40 yards and there is only one door in the office. In paragraph no.12 of her cross-examination, she has stated that by the time she entered the school her husband had fallen on the ground. P.W.10 is son of the deceased. In his examination-in-chief, he has stated that by 11.30 a.m when he came back home, his mother, grand-mother and uncle informed him that his father has been assaulted. On his own saying P.W.10 is not an eye-witness. The statement of P.W.1 in her cross-examination that she did not state before the police that she has seen the incident from the school gate coupled with the distance between the school gate and the place of occurrence and her son deposing in the court that when he came back home his mother was at home and she informed him about the assault on his father create serious doubt on presence of P.W.1 at the place of occurrence. 11. Though, presence of both P.W.2 and P.W.4 at the place of occurrence and at the time of the occurrence is established, on the point of assault their evidence is not consistent. P.W.4 does not say that when he was assaulted by the appellants P.W.2 was present in his office and P.W.2 has also not stated that when he was being assaulted by the accused persons P.W.4 was present there; assault on both of them has taken place in different rooms. The other prosecution witnesses have also narrated a different story about assault on the informant; some says P.W.4 was assaulted by hoe whereas others have made allegation of assault on him by lathi, danda, bricks and stones. But, P.W.4 himself has stated in his examination-in-chief that he was assaulted by Mehi Lal Manjhi on the back of his head by a danda. From the testimony of P.W.2 and P.W.4, it would appear that both of them have admitted in their cross-examination that after the assault they became unconscious. 12. But, P.W.4 himself has stated in his examination-in-chief that he was assaulted by Mehi Lal Manjhi on the back of his head by a danda. From the testimony of P.W.2 and P.W.4, it would appear that both of them have admitted in their cross-examination that after the assault they became unconscious. 12. The informant has given a written report to the police on 24.04.2008 on the basis of which a First Information Report was lodged. The appellants are known to him from before. They are the co-villagers, however, in the written report which gives a detailed description of the incident the appellant, namely, Chhote Lal Manjhi is not named by him as part of the mob which had scaled the school boundary and committed marpit. He has not made any allegation of assault by Chhote Lal Manjhi. A First Information Report may not recite every minute detail about the incident but omission to name a person known from before who has been named by the witnesses as part of the mob in their evidence in the court and, that too, when he is the brother of other two appellants may amount to contradiction. If his active participation in the incident is not clearly brought out, in our opinion, he must be extended the benefit of doubt. 13. In view of the evidence led by the prosecution, we are of the opinion that presence and participation of the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi in the incident are proved, but there is serious doubt on complicity of the appellant, namely, Chhote Lal Manjhi in the crime. Not only the prosecution has failed to disclose any specific role played by him, it has also failed to establish presence of Chhote Lal Manjhi at the place of occurrence and at the time of occurrence and, therefore, we are inclined to hold that the prosecution has failed to prove the charge against him. 14. Accordingly, conviction of Chhote Lal Manjhi under sections 302/149, 147, 148, 307/149, 326/149 and 338/149 IPC is set-aside. He is acquitted of the charges framed against him. 15. Now, the question is whether conviction of the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi with the aid of section 149 IPC is proper. 16. The prosecution has proved that Mehi Lal Manjhi and Amir Lal Manjhi were part of the mob which was searching Mahesh Turi. He is acquitted of the charges framed against him. 15. Now, the question is whether conviction of the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi with the aid of section 149 IPC is proper. 16. The prosecution has proved that Mehi Lal Manjhi and Amir Lal Manjhi were part of the mob which was searching Mahesh Turi. They came together and surrounded the school. Mahesh Turi and two other persons were assaulted by them. The active participation of several other persons, not less than five in number, has been proved by the prosecution. In “Ram Dular Rai Vs. State of Bihar” (2003) 12 SCC 352 , the Hon'ble Supreme Court has observed as under: 6. “Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four are identified, Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing an act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC.” 17. 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. In “Joseph Vs. State Rep. by Inspector of Police” AIR 2018 SC 93 , it has been held: “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. 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.” 18. The above being the position in law, we hold that the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi have rightly been convicted with the aid of section 149 IPC, but the question is what was the common object of the unlawful assembly. 19. On conviction of the appellants under section 302/149 IPC, it is necessary to record that the prosecution has failed to establish specific injury caused to Mahesh Turi by Mehi Lal Manjhi and Amir Lal Manjhi. The case set-up by the prosecution is that about 20-25 persons; P.W.7 says 40-45 persons, have made assault on Mahesh Turi, however, only 4 injuries were found on his person. Dr. Tulsi Mahto-P.W.8, who has conducted the post-mortem examination on 29.04.2008 at about 13.45 hrs., has found the following injuries on Mahesh Turi: (i) abrasion with scab measuring 2cm X 3cm over the left cheek. (ii) lacerated wounds which are partially united and are stitched: (a) 4 cm X 1/2cm X scalp deep with four stitches in position on left parietal region of head. (b) 1cm X 1/2cm X scalp deep with one stitch in position and 3cm X 1/2cm X scalp deep with four stitches in position situated close to each other over the left temporal region of head (c) 10 cm X 1/2cm X bone deep with 14 stitched in position on left parietal region of head (d) 3 cm X 1/2cm X scalp deep with two stitches in position situated on the vault of head in the mid line. 20. In the opinion of the doctor, injuries on Mahesh Turi were ante-mortem in nature and caused by hard and blunt substance. 21. 20. In the opinion of the doctor, injuries on Mahesh Turi were ante-mortem in nature and caused by hard and blunt substance. 21. The initial case projected by the informant is that he was assaulted by the appellants by lathi and danda and while so, it can be safely inferred that the appellants have assaulted Mahesh Turi with lathi and danda. The injuries found on Mahesh Turi on the parietal and temporal region of his head are grievous in nature. It was not a sudden fight, rather the unlawful assembly of the people of Manjhi community were agitated on construction of the building on a grabbed land. They came searching for Mahesh Turi, but it has not come in the evidence that they were armed with deadly weapon. In such facts, we hold that though the prosecution has established that the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi have caused grievous injury in furtherance of common object of the unlawful assembly, it has failed to establish that they shared common object to murder Mahesh Turi. Accordingly, conviction of Mehi Lal Manjhi and Amir Lal Manjhi under section 302/149 IPC is set-aside. They are convicted and sentenced to R.I for Ten years under section 326/149 IPC [refer, “Dhanna Chaudhry & Ors. Vs. State of Bihar” (1985) 3 SCC 680 ]. 22. The conviction of the appellant, namely, Mehi Lal Manjhi under section 147 IPC is affirmed and since we have found that Amir Lal Manjhi has also assaulted with lathi, he is convicted and sentenced to R.I for one year under section 147 IPC. 23. Both the appellants have been convicted under section 307/149 IPC. 24. The essential distinction between the offence punishable under section 307 IPC and Section 302 IPC is that the offence under section 307 IPC is not culpable homicide; the victim finally survives. What is required by the prosecution to establish is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “State of Maharashtra Vs. Kashirao” reported in (2003) 10 SCC 434 , the Supreme Court has observed as under; 20. ....... What is required by the prosecution to establish is that the accused had requisite intention or knowledge that if successfully executed the alleged act would have caused death. In “State of Maharashtra Vs. Kashirao” reported in (2003) 10 SCC 434 , the Supreme Court has observed as under; 20. ....... “The essential ingredients required to be proved in the case of an offence under section 307 are: (i) that the death of a human being was attempted; (ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and (iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.” 25. P.W.3 has found one lacerated wound on the back of left ear of P.W.4 and he has complained of pain all over his body, however, in his cross-examination the doctor has stated that he has not mentioned the exact time of examination of P.W.2 and P.W.4. In his report, he has also not written colour of the injury and age of the injury. He admits that injuries found on P.W.2 and P.W.4 are possible from fall on a hard substance. The injuries on P.W.2 and P.W.4 were neither grievous in nature nor they are likely to cause death and, therefore, conviction of the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi under section 307/149 IPC is set-aside. They are convicted and sentenced to R.I for Two years under section 324/34 IPC and R.I for One year under section 147 IPC. 26. But, since Mehi Lal Manjhi has already been convicted under section 326/149 IPC and his conviction under section 307/149 IPC is set-aside, conviction of the appellant, namely, Mehi Lal Manjhi under section 338/149 IPC is set-aside. 27. Mr. 26. But, since Mehi Lal Manjhi has already been convicted under section 326/149 IPC and his conviction under section 307/149 IPC is set-aside, conviction of the appellant, namely, Mehi Lal Manjhi under section 338/149 IPC is set-aside. 27. Mr. S.K. Srivastava, the learned APP, states that the appellants, namely, Mehi Lal Manjhi and Amir Lal Manjhi have undergone more than Eleven years of imprisonment. 28. Accordingly, the appellants, namely, Chhote Lal Manjhi in Criminal Appeal (D.B.) No. 472 of 2012, Mehi Lal Manjhi in Criminal Appeal (D.B.) No. 613 of 2012 and Amir Lal Manjhi in Criminal Appeal (D.B.) No. 615 of 2012 shall be set free forthwith, if not wanted in connection to any other criminal case. 29. In the result, Criminal Appeal (D.B.) No. 472 of 2012 is allowed. Criminal Appeal (D.B.) No. 613 of 2012 and Criminal Appeal (D.B.) No. 615 of 2012 are partly allowed. I.A. No.9317 of 2019 in Criminal Appeal (D.B.) No. 472 of 2012 and I.A. No.9331 of 2019 in Criminal Appeal (D.B.) No. 613 of 2012 stand disposed of. 30. Let the lower-court records be transmitted to the court concerned, forthwith.