JUDGMENT : Per Kailash Prasad Deo, J. Heard learned Senior Counsel for the appellants Mr. A.K. Kashyap assisted by Mr. Sudhir Kumar in Cr. Appeal (DB) No. 161 of 1996 and learned counsel for the appellants Ms. Sunita Kumari in Cr. Appeal (DB) No.169 of 1996 and learned counsel for the State Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor in both criminal appeals. 2. Both appeals are arising out of common judgment of conviction dated 28.09.1996 and order of sentence dated 30.09.1996, passed by learned Additional Sessions Judge, Gumla, in Sessions Trial No. 510 of 1983, whereby altogether eight accused persons have been convicted for the offence committed and punishable under Sections 302/149 and 149 of the Indian Penal Code. The trial court has awarded rigorous imprisonment for life for the offence committed under Section 302/149 of the Indian Penal Code and rigorous imprisonment for three years for the offence committed under Section 149 of the Indian Penal Code. Both sentences are directed to run concurrently. During pendency of the criminal appeal before this Court, Maikel Oraon alias Maikel Xaxa, Jorgo Oraon alias Jargo Xaxa, Martin Oraon alias Martin Lakra and Bolo Oraon (in Cr. Appeal D.B. No.169 of 1996R) have died and their appeals stands abated. 3. The prosecution case is based upon the fardbayen of Tohan Lohra (P.W.-2), recorded by Sub-Inspector of police in presence of mother of the informant Gujri Loharain (P.W.-1) and mukhiya of the village Girja Prasad Sharma (P.W.-5) at police station on 26.05.1983 at 09:30 A.M. The informant has alleged that in the morning he alongwith his father Bandhan Lohra (deceased) and his elder brother Sohan Lohra (deceased) and wife of his another elder brother Mohan Lohra namely Gansi Devi (P.W.-4) were ploughing their field at Tetar Don by means of ox and plough. It is alleged that informant was taking help of Vakil Lohra and Ranthu Lohra, both resident of village Brinda Nayak Toli in ploughing his field. It is alleged that informant was taking help of Vakil Lohra and Ranthu Lohra, both resident of village Brinda Nayak Toli in ploughing his field. It is further alleged that at around 08:00 A.M. co-villager (1) Fransis Lakra (2) Rafail Xaxa (3) Jargo Oraon (4) Bolo Oraon (5) Rupas Oraon (6) Mikhail Oraon (7) Antony Oraon (8) Martin Oraon (9) Alphosh Oraon (10) Patras Oraon (11) Vincent Oraon and several other persons came to the field of informant with baluwa (sharp cut weapon), Tangi (axe), arrow bow and other lethal weapon and asked them not to plough and cultivate the field. Thereafter the informant and his brother Sohan Lohra and his father Bandhan Lohra were surrounded by the accused persons from all the sides and were assaulted by means of lathi, tangi, baluwa etc., due to which father of informant Bandhan Lohra and brother of informant Sohan Lohra died at the spot. The informant has also sustained injuries on his back, head, left temple and left leg. The accused persons while assaulting the prosecution parties were saying that they will not leave them today. The informant has stated that occurrence has been witnessed by his sister-in-law Gansi Devi, Vakil Lohra, Ranthu Lohra and others. The informant has further stated that dead body of his father and brother are lying at the place of occurrence, as such necessary action be taken against them. 4. On the basis of the fardbeyan recorded in presence of Girja Prasad Sharma (P.W.-5) the police has instituted, Gumla P.S. case no. 66 of 1983 dated 26.05.1983 under Sections 147, 148, 149, 302/34 of the Indian Penal Code. Subsequently Section 307 of the Indian Penal Code has been added against eleven accused persons namely, (1) Fransis Lakra (2) Rafail Xaxa (3) Jargo Oraon (4) Bolo Oraon (5) Rupas Oraon (6) Mikhail Oraon (7) Antony Oraon (8) Martin Oraon (9) Alphosh Oraon (10) Patras Oraon and (11) Vincent Oraon. 5. After completion of investigation, the police submitted charge sheet vide charge sheet no.77 of 1983 dated 30.07.1983 under Sections 147, 148, 149, 307, 302, 323 and 324 of the Indian Penal Code against eleven accused persons out of which nine have been sent up for trial and two namely, Bhim sen Oraon and Patras Oraon have been shown as absconder. After completion of investigation, the police submitted charge sheet vide charge sheet no.77 of 1983 dated 30.07.1983 under Sections 147, 148, 149, 307, 302, 323 and 324 of the Indian Penal Code against eleven accused persons out of which nine have been sent up for trial and two namely, Bhim sen Oraon and Patras Oraon have been shown as absconder. The cognizance of offence has been taken on 02.08.1983 and the case has been committed to the court of sessions vide order dated 01.10.1983. 6. The charge has been framed against all eleven accused persons under Sections 148, 302, 302/149 and 307 of the Indian Penal Code on 14.04.1988 and the charge were read over and explained to the accused persons in Hindi to which they have pleaded not guilty and claimed to be tried. During pendency of trial Fransis Lakra, Rupus Lakra and Rafail Xaxa died and their cases have been dropped by the learned trial court. 7. The prosecution has examined altogether eleven witnesses and also exhibited a number of document up to exhibit-7. Gujri Devi, mother of the informant and wife of Bandhan Lohra has been examined as P.W.-1. She is hearsay witness and was been disclosed about the occurrence by Tohan Lohra (P.W.-2). Tohan Lohra, informant and injured eye witness has been examined as P.W.-2, Punit Sahu a formal witness, has been examined as P.W.-3, Gansi Devi wife of Mohan Lohra has been examined as P.W.-4 who is an eye witness to the occurrence, Girja Prasad Sharma, mukhiya of the village has been examined as P.W.-5. He is hearsay witness and signatory to the fardbeyan of the informant, Rameshwar Prasad Sahu another formal witness has been examined as P.W.-6, Dr. Basant Lal, Medical Officer has been examined as P.W.-7, Ranthu Lohra (P.W.-8) and Vakil Lohra (P.W.-9) are eye witnesses to the occurrence but have been declared hostile by the prosecution. Ashok Kumar Gupta, investigating officer, who has submitted chargesheet has been examined as P.W.-10, Sibanus Beck formal witness being an Advocate Clerk has been examined as P.W.-11. Basant Lal, Medical Officer has been examined as P.W.-7, Ranthu Lohra (P.W.-8) and Vakil Lohra (P.W.-9) are eye witnesses to the occurrence but have been declared hostile by the prosecution. Ashok Kumar Gupta, investigating officer, who has submitted chargesheet has been examined as P.W.-10, Sibanus Beck formal witness being an Advocate Clerk has been examined as P.W.-11. Signature of Tohan Lohra, informant, on the fardbeyan has been proved by Tohan Lohra (P.W.-2) and marked as exhibit-1, signature of Girja Prasad Sharma on fardbeyan has been proved by Tohan Lohra (P.W.-2) marked as exhibit-1/1, signature of Rameshwar Prasad Sahu on seizure list has been proved by Rameshwar Prasad Sahu (P.W.-6) and marked as exhibit-1/2, signature of Tija Bhagat on seizure list has been proved by Rameshwar Prasad Sahu (P.W.-6) and marked as exhibit-1/3, signature of Rameshwar Prasad Sahu on inquest report of Bandhan Lohra has been proved by P.W.-6, Rameshwar Prasad Sahu and marked as exhibit-1/4, signature of Rameshwar Prasad Sahu on the inquest report of Sohan Lohra has been proved by P.W.-6 and marked as exhibit-1/5, First Information Report has been proved by Punit Sahu (P.W.-3) in the handwriting and signature of Sri Ram Kishor Prasad Singh, Sub-Inspector of police and marked as exhibit-2, inquest report of Bandhan Lohra has been proved by Rameshwar Prasad Sahu (P.W.-6) and marked as exhibit-3, inquest report of Sohan Lohra has been proved by Rameshwar Prasad Sahu (P.W.-6) and marked as exhibit-3/1, postmortem reports of deceased Bandhan Lohra and Sohan Lohra have been proved by Dr. Basant Lal (P.W.-7) and marked as exhibits-4 and 4/1 respectively, seizure list in the handwriting and signature of sub-inspector Ram Sarekhan Singh has been proved by Ashok Kumar Gupta (P.W.-10) and marked as exhibit-5, inquest reports in the handwriting and signature of sub-inspector Ram Sarekhan Singh, have been proved and marked as exhibits-6 and 6/1, case diary from page no.1 to 28 has been proved by Silbanus Beck (P.W.-11) an Advocate Clerk and marked as exhibit-7. 8. After closure of prosecution evidence, the appellants have been examined under section 313 Cr.P.C. On 03.07.1991, to which they have pleaded that they have been falsely implicated in this case and has also denied their involvement in the alleged offence. 8. After closure of prosecution evidence, the appellants have been examined under section 313 Cr.P.C. On 03.07.1991, to which they have pleaded that they have been falsely implicated in this case and has also denied their involvement in the alleged offence. Defence has also examined two witnesses, Jawakim Oraon as D.W.-1, who has proved the handwriting and signature of karamchari Amar Sao, Raji Mohan and Sanjay Tuti on the rent receipts, which have been marked as exhibits-A to A/2 and A/3 to A/4 and Jalha Johan Oraon as D.W.-2, who has proved the certificate in the handwriting and signature of Sabastiani Bakhla, teacher of R.C. Primary School dated 26.03.1992, which has been marked as exhibit-B, signature and handwriting of Trisla Barla on the notice dated 20.05.1992 has been marked as exhibit-C, Khatiyan has been marked as exhibit-D and order sheets of case No. 4R8/1965-66 marked as exhibits-E to E/2. These two exhibits D and E series have been marked as exhibit considering it to be a public document vide order dated 19.09.1996. Trial court has exhibited the khatiyan as exhibit-D and order sheets as exhibit-E to E/2 without any formal proof. 9. After hearing learned counsel for the parties and on the basis of the materials available on record learned trial court has passed the impugned judgment of conviction against eight accused persons under Sections 302/149 and 149 of the Indian Penal Code. 10. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the aforesaid two appeals have been preferred before this Court. Cr. Appeal (D.B.) No.161 of 1996, by appellants, Vincent Oraon and Antoni Xaxa and Cr. Appeal (D.B.) No.169 of 1996 by appellants, Patras Oraon, Maikel Oraon alias Maikel Xaxa, Jorgo Oraon alias Jargo Xaxa, Alphosh Oraon alias Alphos Lakra, Martin Oraon alias Martin Lakra and Bolo Oraon. During pendency of the appeal four of the appellants of Cr. Appeal (DB) No.169 of 1996 namely, Maikel Oraon alias Maikel Xaxa, Jorgo Oraon alias Jargo Xaxa, Martin Oraon alias Martin Lakra and Bolo Oraon have died and their appeal stand abated. 11. Heard, learned Senior Counsel for the appellants Mr. A.K. Kashyap assisted by Mr. Sudhir Kumar, Advocate in Cr. Appeal (DB) No. 161 of 1996 and learned counsel for the appellants Ms. Sunita Kumari in Cr. Appeal (DB) No.169 of 1996. 11. Heard, learned Senior Counsel for the appellants Mr. A.K. Kashyap assisted by Mr. Sudhir Kumar, Advocate in Cr. Appeal (DB) No. 161 of 1996 and learned counsel for the appellants Ms. Sunita Kumari in Cr. Appeal (DB) No.169 of 1996. Learned Senior counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Senior counsel for the appellants has submitted that appellants have been convicted by the learned trial court under Section 302 of the Indian Penal Code with the aid of Section 149 of the Indian Penal Code. Learned Senior counsel for the appellants has further submitted that informant, Tohan Lohra, has been examined as P.W.-2, who has claimed himself to be an injured eye witness to the occurrence but injury report of Tohan Lohra (P.W.-2) has not been brought on record and the evidence adduced by Tohan Lohra is contradictory to his fardbeyan, which is the basis of initiation of the present criminal proceeding. Learned Senior counsel for the appellants has submitted that admittedly two persons have died during the occurrence but without having any specific role against these appellants, the learned trial court has convicted these appellants without scrutinizing the evidence and separating the grains from chaff. Learned Senior counsel for the appellants has submitted that two of the eye witnesses, who are independent witnesses namely Ranthu Lohra and Vakil Lohra who have been examined as P.W.-8 and P.W-9, but have not supported the case of prosecution and thus, they have been declared hostile by the prosecution. Learned Senior counsel for the appellants has further submitted that investigating officer of the case, Ram Sarekhan Singh has not been examined in this case and Ashok Kumar Gupta, investigating officer, who has only submitted chargesheet has been examined as P.W.-10 though entire investigation has been concluded by Ram Sarekhan Singh, Sub-inspector. Learned Senior counsel for the appellants has further submitted that Gujri Devi, mother of the informant and wife of one of the deceased Bandhan Lohra has been examined as P.W.-1 and she is a hearsay witness, who has been informed about the occurrence by informant Tohan Lohra (P.W.-2). Punit Sahu being a formal witness has been examined as P.W.-3. Gansi Devi wife of Mohan Lohra being an eye witness to the occurrence has been examined as P.W.-4. Punit Sahu being a formal witness has been examined as P.W.-3. Gansi Devi wife of Mohan Lohra being an eye witness to the occurrence has been examined as P.W.-4. Girja Prasad Sharma, mukhiya of the village has been examined as P.W.-5, in whose presence fardbeyan of the informant has been recorded. Rameshwar Prasad Sahu, being a formal witness has been examined as P.W.-6. Silbanus Beck, an Advocate Clerk being a formal witness has been examined as P.W.-11. Dr. Basant Lal, Medical Officer, who has conducted the autopsy on the dead bodies of both deceased namely, Bandhan Lohra and Sohan Lohra, has been examined as P.W.-7. Ashok Kumar Gupta, investigating officer, who has submitted the chargesheet has been examined as P.W.-10. Learned Senior counsel for the appellants has submitted that even the evidence of P.W.-2 informant, Tohan Lohra of the case is not trustworthy to uphold the conviction of appellants passed by learned trial court. To buttress his argument, the learned Senior counsel has drawn attention of this Court towards paragraph-14 of the cross-examination of P.W.-2 wherein this witness has categorically stated that he has studied with one of the accused to whom he called Pora Oraon and today he came to know about his name as Anthony Xaxa. Learned Senior counsel for the appellants has further submitted that if this statement of the informant is taken as true, then name of Anthony Xaxa in the fardbeyan of the informant is highly suspicious. Learned Senior counsel for the appellants has submitted that even in the evidence of Tohan Lohra (P.W.-2) there is no specific allegation against these appellants. Learned Senior counsel for the appellants has further submitted that from perusal of the evidence of informant, it appears that omnibus allegation has been made against all the accused persons of assaulting the farther of the informant Bandhan Lohra and brother of the informant Sohan Lohra, but no specific allegation has been alleged. Learned Senior counsel for the appellants has further submitted that this witness has admitted that he has been referred to Gumla Hospital by the Sub-inspector of police for treatment but the medical paper has not been brought on record to substantiate that the informant is an injured eye witness to the occurrence. Learned Senior counsel for the appellants has further submitted that this witness has admitted that he has been referred to Gumla Hospital by the Sub-inspector of police for treatment but the medical paper has not been brought on record to substantiate that the informant is an injured eye witness to the occurrence. Learned Senior counsel for the appellants has further submitted that from perusal of the evidence at paragraph 12 of Tohan Lohra (P.W.-2), it appears that the accused persons came to the field and demanded all the weapons from the prosecution party and thereafter the prosecution party has handed over all the weapons to the accused persons. Learned Senior counsel for the appellants has further submitted that from the evidence brought on record, it appears that prosecution parties have assembled at the place of occurrence with lethal weapons, as such they are the aggressors. Learned Senior counsel for the appellants has further submitted that from perusal of the materials brought on record, it appears that informant, Tohan Lohra (P.W.-2) has taken name of eleven accused persons in the First Information Report but while examining in the court as P.W.-2, he has not disclosed the specific role played by these eleven accused nor the informant has described the manner of occurrence in his evidence to substantiate the same. Learned Senior counsel for the appellants has further submitted that the testimony of informant (P.W.-2) with regard to the involvement of eleven accused persons is not substantiated by any of the prosecution witnesses. To buttress his argument learned Senior counsel has relied upon a judgment in the case of Inder Singh & others versus State of Rajasthan reported in (2015) 2 SCC 734 paragraph 21. Learned Senior counsel for the appellants has further submitted that for convicting the appellants where large number of accused persons are alleged to have committed offence, test laid down by Hon'ble Apex Court in the case of Masalti Vrs. State of U.P. reported in AIR 1965 SC 202 is required to be followed as a safety valve, so as to implicate the person who are real culprit and perpetrators of the crime and exonerate persons who have been falsely implicated. State of U.P. reported in AIR 1965 SC 202 is required to be followed as a safety valve, so as to implicate the person who are real culprit and perpetrators of the crime and exonerate persons who have been falsely implicated. All the persons who are present at the place of occurrence cannot be fastend with the liability under Section 149 of the Indian Penal Code unless and until their common object is proved and their presence is found at the place of occurrence. Learned Senior counsel has thus submitted that in the present case from the evidence of the prosecution witnesses, it appears that three persons can be made liable. Learned Senior counsel for the appellants has buttressed his argument after referring the postmortem report of Bandhan Lohra who has sustained following injuries:- (1) (a) Incised injury 3 ¼” x 1 ½” x 1 ½” on the left side of the head. (b) Lacerated injury 2 ¾” x 1 ¾” x 1 ¼ ” on the right side of head. Injury No.1 (a) On dissection the injury was found to have cut through the scalp, skull bone, meninges and portion of the brain matter. Blood clots were found present on the brain substance. Injury No.1 (b) On dissection was found to have fracture of skull bone beneath it brain matter was found lacerated. Blood clots found present. (2) Bruise 3 ½” x 2 ½” on the back. (3) Abrasion 2 ¼” x 2” on the front of left knee. (4) Bruise-1 ¾” x 1 ½” on the right foot. (5) Bruise – 2 ¼” x 1 ¼” on right forearm. (6) Bruise 5 ¾” x 4 ½” on the front of chest-right side. On dissection ribs no. 4, 5 and 6 of right side front of chest were found fractured. Lacerated on right side right pleural cavity contains nearly 30 cc of blood. Doctor has opined injury no.1 was caused by sharp cutting weapon and all other injuries caused by hard and blunt substances. All injuries were ante mortem in nature. Injury no.1 (a) and 1 (b) grievous in nature and sufficient to cause death in normal circumstances singly or jointly. Injury no.4 is grievous but not sufficient to cause death. Injury nos. 2, 3, 4 and 5 are simple in nature. Time Elapsed since death-within one day nearly. Cause of death-shock & haemorrhage. All injuries were ante mortem in nature. Injury no.1 (a) and 1 (b) grievous in nature and sufficient to cause death in normal circumstances singly or jointly. Injury no.4 is grievous but not sufficient to cause death. Injury nos. 2, 3, 4 and 5 are simple in nature. Time Elapsed since death-within one day nearly. Cause of death-shock & haemorrhage. Learned counsel for the appellants has also referred the postmortem report of Sohan Lohra who has sustained following injuries:- (1) Incised injury-3 in number (a) 1 ½” x ½” x ¼” on right side of head, (b) 1 ¾” x ½” x 1/5” on left side of head, (c) 1 ½” x ¾” x 1/5” on the middle portion of head in the frontal portion. (2) Incised Injury 3 ¾” x 1 ½” x 1 ¾” on the right side of neck. The injury was found to have cut through the skin, fascia, muscles, vessels of right side, wind pipe & food pipe 14th inter cervical vertebral space & spinal cord partly. (3) Incised injury 2 ¾” x 1 ½” x 1 ¼” on the right side of upper & front portion of chest. On dissection, the collar bone of right side (clavicle) was found cut. (4) Incised injury 2 ¼” x 1 ¼” x 1 ½”-on the right side of face. On dissection right mandible was found to have been cut. (5) Incised injury 1 ¾” x 1/2” x 1/2” on the front of right thigh above knee. (6) Bruises four in number- (a) 4 ¼” x 1 ½” (b) 3”x 1 ½” on the right side of chest, (c) 3 ¾” x 1 ¾” and (d) 5 ¼” x 1 ½” on the left side of front of chest part. Doctor has opined injury no. 1 (a), (b) and (c), 2, 4, 5 and 6 (a), (b), (c) and (d) all caused within one day nearly and are ante mortem in nature. Injury No. 1 (a), (b), 1 (c) 2, 3, 4 and 5 caused by sharp cutting weapon and all others 4 (a), 4 (b), 4(c) and 4 (d) caused by hard blunt substances. Injury no. 2, 3 and 4 grievous in nature. Injury no.2 was sufficient to cause death in ordinary course of nature. All other injuries are simple in nature. Time elapsed since death-within one day nearly. Cause of death-shock & haemorrhage. 12. Injury no. 2, 3 and 4 grievous in nature. Injury no.2 was sufficient to cause death in ordinary course of nature. All other injuries are simple in nature. Time elapsed since death-within one day nearly. Cause of death-shock & haemorrhage. 12. Learned Senior counsel appearing for the appellants has submitted that these injuries cannot be attributed against all the eleven accused persons and the prosecution has not come with clean evidence that which of the appellants has assaulted which part of the deceased by which means of weapon. 13. Under the aforesaid circumstances, learned Senior counsel appearing for the appellants has thus, submitted that the appellants may be acquitted from the charge and conviction under Section 302/149 I.P.C., as other eye-witnesses to the occurrence, namely, Gansi Devi (P.W.4) has not stated any role against these appellants and other eyewitnesses, namely, Ranthu Lohra (P.W.8) and Vakil Lohra (P.W.9), who were ploughing the field have not supported the prosecution case and thus, they have been declared hostile by the prosecution. 14. Learned Senior counsel appearing for the appellants has submitted that under the aforesaid circumstances where no specific role against the appellants have been attributed with respect to assault made upon the deceased, the appellants cannot be convicted under Section 302/149 I.P.C., as such, they may be acquitted from the charge and conviction under Section 302/149 I.P.C. 15. Heard Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record. Learned counsel for the State has submitted that in the present case two persons have died, one is father of the informant, Bandhan Lohra and another is brother of the informant, Sohan Lohra, who have been killed by these accused persons on the spot because of the assault made by lethal weapons. Learned counsel for the State has submitted that in the present case two persons have died, one is father of the informant, Bandhan Lohra and another is brother of the informant, Sohan Lohra, who have been killed by these accused persons on the spot because of the assault made by lethal weapons. Learned counsel for the State has submitted that both the deceased have sustained injuries caused by sharp-cutting weapon and hard and blunt substance, as such, learned trial court has rightly convicted the appellants under Section 302/149 I.P.C. Learned counsel for the State has submitted that the occurrence has been committed by more than five persons, after forming unlawful assembly, as defined under Section 141 I.P.C. Learned counsel for the State has submitted that learned trial court has rightly convicted the appellants under Section 302/149 I.P.C., as these accused persons, after forming unlawful assembly, have committed such heinous crime, in which the informant (Tohan Lohra-P.W.2) has also sustained injury and was referred by the Sub Inspector of Police, before the Medical Officer for examination. Learned counsel for the State has further submitted that though the medical evidence of the injured-informant has not been brought on record and that cannot be a ground that his presence, at the place of occurrence can be doubted, as such, learned trial court has rightly convicted the appellants, as the accused persons after having common intention and after forming unlawful assembly, assaulted the prosecution parties, who were in peaceful possession of the land and were ploughing their land and after surrounding them, these accused persons have assaulted, resulting into death of two persons and as such, learned trial court has rightly convicted the appellants and this Court may not interfere with the finding recorded by the learned trial court in the impugned judgment of conviction and order of sentence. Heard, Mr. A. K. Kashyap, learned Senior Counsel appearing for the appellants assisted by Mr. Sudhir Kumar, Advocate in Cr. Appeal (DB) No.161 of 1996 and Ms. Sunita Kumari, learned counsel for the appellants in Cr. Appeal (DB) No.169 of 1996 and learned counsel for the State, Mr. Heard, Mr. A. K. Kashyap, learned Senior Counsel appearing for the appellants assisted by Mr. Sudhir Kumar, Advocate in Cr. Appeal (DB) No.161 of 1996 and Ms. Sunita Kumari, learned counsel for the appellants in Cr. Appeal (DB) No.169 of 1996 and learned counsel for the State, Mr. Sanjay Kumar Srivastava, learned Additional Public Prosecutor (in both the Criminal Appeals) and perused the materials available on record, including the First Information Report, framing of the charge, evidence of eleven prosecution witnesses, seven prosecution exhibits and statement of accused persons under Section 313 Cr.P.C, two defence witnesses and defence documents up-to Exhibits-E Series as well as impugned judgment of conviction and order of sentence. 16. On scrutiny of the materials brought on record, it appears that altogether eleven prosecution witnesses have been examined by the prosecution, but except Tohan Lohra (P.W.2), informant of the case, Gansi Devi (P.W.4) -sister-in-law of the informant, P.W.8 (Ranthu Lohra) and P.W.-9 (Vakil Lohra), none of the prosecution witnesses are eyewitnesses to the occurrence. Ranthu Lohra and Vakil Lohra, who have been examined as P.W.8 and P.W.9, have not supported the case of prosecution and thus, they have been declared hostile by the prosecution. These two prosecution witnesses are the independent witnesses, who were engaged for ploughing the field of the informant, though they have not supported the case of the prosecution. The other prosecution-witnesses, namely, Gujri Devi (P.W.1) is a hearsay witness, who has been informed about the occurrence by informant Tohan Lohra (P.W.2). Punit Sahu (P.W.3), Girja Prasad Sharma (P.W.5), Rameshwar Prasad Sahu (P.W.6) and Silbanus Beck (P.W.11) are formal witnesses, who have not adduced any evidence, so far culpability of the offence against the appellants is concerned. Dr. Basant Lal (P.W.7), Medical officer has conducted the autopsy on the dead bodies of the deceased, Bandhan Lohra and Sohan Lohra and proved the same as Exhibits-4 and 4/1. Ashok Kumar Gupta (P.W.10) is the Police Officer, who has submitted the charge-sheet though investigation was conducted by Ram Sarekhan Singh, Sub Inspector of Police but he has not been examined in this case. 17. Ashok Kumar Gupta (P.W.10) is the Police Officer, who has submitted the charge-sheet though investigation was conducted by Ram Sarekhan Singh, Sub Inspector of Police but he has not been examined in this case. 17. From perusal of the evidence of informant, (P.W.2 -Tohan Lohra), it appears that, he has taken name of eleven accused persons in his examination-in-chief and except P.W.2 (Tohan Lohra), none of the prosecution witnesses have disclosed the names of all eleven accused persons in the case and their presence at the place of occurrence. The same has also not been proved by other prosecution witnesses. Since the entire prosecution case is based on testimony of Tohan Lohra (P.W.-2), so the evidence of Tohan Lohra (P.W.2) has to be scrutinized with care and caution. From perusal of the evidence of informant, (P.W.2) particularly at Para-14 of his cross-examination, this witness has stated that he has studied with accused, Anthony in Class-1, but he is not knowing his name as Anthony rather he knows him as Pora Oraon and subsequently stated that today he could know about the name of Anthony Oraon. 18. This evidence of the informant suggests that the credential of the informant is not reliable so as to uphold conviction of the appellants under Section 302/149 I.P.C. because of the reason that this witness being the informant of the case has taken name of Anthony Oraon in the fardbeyan though he was not knowing it. If the evidence of this witness is taken, as it has been mentioned in Para-14 of his cross-examination, it appears that name of Anthony Oraon, mentioned in the fardbeyan seems to be the result of conjecture and surmises. Gujri Devi (P.W.1), mother of the informant being a hearsay witness, has disclosed that Tohan Lohra (P.W.2) has disclosed before her that his father and brother have been assaulted by Jorgo Oraon @ Jargo Xaxa, Francis and Rafail and they have killed them and both have died. Gansi Devi (P.W.4) has disclosed the name of accused, Francis and Jorgo only and further she has categorically stated in Para-3 that her statement has not been recorded by the Police and subsequently in Para-4 of her cross-examination she has stated that she has not given statement before the Police, as the accused persons belong to different Tola and she is not known to them nor she could identify them. Therefore, at best, from the evidence of informant, Tohan Lohra (P.W.2), Gujri Devi (P.W.1) and Gansi Devi (P.W.4) three accused persons, namely, Jargo Oraon, Francis Lakra and Rafail Xaxa can be said to be the perpetrators of the crime, though out of these three names, P.W.4 (Gansi Devi) has only taken names of two accused namely Francis and Jorgo. She has not taken name of Rafail Xaxa. 19. While dealing with the aforesaid contentions, we are inclined to quote the provisions of Section 141 under chapter VIII of the Indian Penal Code which defines unlawful assembly as under: “141. Unlawful assembly. – An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is – First.-To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or Second. – To resist the execution of any law, or of any legal process; or Third.- To commit any mischief or criminal trespass, or other offence; or Fourth. – By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” Section 149 IPC defines that every member of unlawful assembly is guilty of the offence committed in prosecution of common object, it reads as under: “149. Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” Section 149 IPC defines that every member of unlawful assembly is guilty of the offence committed in prosecution of common object, it reads as under: “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object-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.” A plain reading of the aforesaid provisions show that if the offence is committed by a member of 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 the prosecution of that object, every person, who, at the time of committing of the offence, is a member of the same assembly is guilty of the same offence. Reliance is placed upon the judgment of the Hon'ble Apex Court in the case of Lalji and others vs. State of U.P. as reported in (1989) 1 SCC 437 . The opinion of Apex Court in para-9, 10 & 11 are quoted hereunder:- “9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. 10. Thus, once the Court holds that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is 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 or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. 11. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. 11. In the instant case after having held that the appellants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence (as described in the charge) it was not open to the High Court to acquit some of the members on the ground that they themselves did not perform any violent act, or that there was no corroboration of their participation. In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of section 149 I.P.C., the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the Court, did not so participate. Doing so would amount to forgetting the very nature and essence of the offence created by section 149 I.P.C. The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.” 20. The prosecution witnesses while deposing in the Court, has not taken name of all eleven accused persons to show their presence, participation, use of weapon and overt-act against them except, the informant (P.W.2-Tohan Lohra), who has only taken name of eleven persons, as members of the unlawful assembly without specifying any role rather in an omnibus manner, but the same has also not been supported by P.W.1 (Gujri) and P.W.4 (Gansi Devi), as such, applying the test approved in the case of Masalti Vrs. State of U.P., as reported in AIR 1965 SC 202 as also followed in case of Inder Singh & others Vrs. State of Rajasthan, reported in (2015) 2 SCC 734 , so far the principle of caution is concerned, when the Criminal Court has to deal with evidence pertaining to commission of offence involving large number of offenders, it is usual to adopt the test that conviction can be sustained only if it is supported by two or three or more witnesses, who give consistent account of incidence in question. 21. 21. From perusal of the materials brought on record, there is no clear and cogent evidence of three witnesses against the aforesaid accused persons. No doubt the name of three accused persons, namely, Francis Lakra, Jorgo Oraon and Rafail Xaxa have been taken by P.W.2 (Tohan Lohra), but without specifying role, they have played. Since all those three accused persons, namely, Francis Lakra, Jorgo Oraon and Rafail Xaxa have died during pendency of the trial/appeal, their case has been dropped/abated. We are not required to decide their case, as such, in absence of any legal material against these four appellants, they cannot be held guilty under Section 302/149 I.P.C. 22. In view of the discussions, as made here-in-above, the appellants, namely, Vincent Oraon and Antoni Xaxa in Criminal Appeal (DB) No.161 of 1996 and appellants, namely, Patras Oraon and Alphosh Oraon @ Alphos Lakra in Criminal Appeal (DB) No.169 of 1996, are acquitted by extending the benefit of doubt with regard to their presence at the place of occurrence, as the prosecution has not been able prove the charges against all these four appellants beyond shadow of all reasonable doubt. 23. In the result, both the Criminal Appeals stand allowed. 24. Consequently, all the four appellants, namely, Vincent Oraon and Antoni Xaxa in Criminal Appeal (DB) No.161 of 1996 and appellants, namely, Patras Oraon and Alphosh Oraon @ Alphos Lakra in Criminal Appeal (DB) No.169 of 1996, who are on bail, as such, they are discharged from the liability of their bail bonds. 25. Let the L.C.R. along with a copy of this judgment be sent to the concerned Trial Court forthwith.