JUDGMENT : Per Kailash Prasad Deo, J. Both criminal appeals are arising out of common judgment of conviction dated 31.08.1996 and order of sentence dated 03.09.1996 passed in Sessions Case No.147 of 1993 arising out of Sonaraitharhi -Sarwan P.S. Case No.50 of 1989 passed by learned Sessions Judge, Deoghar whereby seven appellants namely, (1) Alam Mian, (2) Kadir Mian, (3) Hasim Miyan, (4) Vahid Miyan, (5) Bahadur Mian, (6) Charku Miyan and (7) Vasir Miyan have been convicted for the offence committed and punishable under Section 302 of the Indian Penal Code. Alam Mian, Vahid Mian and Vasir Miyan have further been convicted for the offence committed and punishable under section 379 of the Indian Penal Code and all of them have preferred criminal appeal (DB) No.420 of 1996. Kaila Miyan has been convicted only for the offence committed and punishable under section 379 of the Indian Penal Code and has preferred Criminal Appeal (DB) No.541 of 1996. The learned trial court has awarded rigorous imprisonment for life to the appellants, who have been held guilty and convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for two years to the appellants who have been held guilty and convicted for the offence committed and punishable under section 379 of the Indian Penal Code. All the sentences were directed to run con-currently. 2. The prosecution case is based upon fardbyan of Laskari Mian (victim/deceased) son of Wakil Mian of village-Binjhakurwa, P.S.-Sonaraitharhi (Sarwan), District-Deoghar recorded by Sub-Inspector B. K. Singh of Police Station-Sonaraitharhi on 30.06.1989 at 19.30 Hours at Binjhakurwa, whereby the informant has stated that at around 3.30 P.M. he was going to village Binjhakurwa Hatia on bicycle having rice in sack approximately one quintal. The informant has further stated that as soon as he reached near the house of Alam Mian, he was caught hold with his bicycle by Alam Mian and Kadir Mian and Bahadur Mian and Vahid Mian assaulted him by means of sabbal. The informant has further stated that as soon as he reached near the house of Alam Mian, he was caught hold with his bicycle by Alam Mian and Kadir Mian and Bahadur Mian and Vahid Mian assaulted him by means of sabbal. Thereafter Hasim Miyan son of Pahlu Mian, Vasir Miyan son of late Sakil Mian, Sabir Mian son of Vasir Miyan, Sahruddin Mian son of Sagar Mian, Kamruddin Mian son of Sagar Mian, Katu Mian @ Jiyauddin Mian son of Rasul Mian, Tahir Mian son of Rohan Mian, Badruddin Mian son of Habib Mian, Kaila Miyan son of Hablu Mian, Samsuddin Mian son of Nausad Mian, Charku Miyan son of Chuti Mian, Rasid Mian son of Chuti Mian, Fodi Mian son of Wudan Mian, Naso Mian son of Rafi Mian, Ibrahim Mian son of Gambhir Mian, Fakruddin Mian son of Ibrahim Mian, Chuto Mian son of Wudan Mian, Alam Mian son of Rohan Mian, Vahid Mian son of Rasul Mian, Bahadur Mian son of late Raso Mian all resident of Binjhakurwa, P.S.-Sonaraitharhi, District-Deoghar came out of house and dragged him inside the house of Alam Mian. Thereafter Vahid Mian having sabbal, Hasim Miyan having rod, Alam Mian having danda, Kadir Mian having bhujali and other accused persons having danda in their hand assaulted the informant on his body causing grievous injuries. It is also alleged that rice kept on the bicycle in the sack and the bicycle have been taken away by Alam Mian, Vasir Miyan, Vahid Mian and Kaila Miyan and Rs.200/-has been taken out from the pocket of informant by Kaila Miyan. The Fardbeyan of the informant was recorded in presence of the witnesses Nasir Mian(P.W.3) and Gho Gho Mian(P.W.1). 3. On the basis of fardbeyan of the informant, police has registered Sonaraitharhi (Sarwan) P. S. Case No. 50 of 1989 dated 01.07.1989 under Sections 147/148/149/323/324/307/379 of the Indian Penal Code against above twenty one (21) named accused persons namely, (1) Alam Mian, (2) Wahid Mian (3) Bahadur Mian (4) Hatim Mian (5) Vasir Miyan (6) Sabir Mian (7) Sahruddin Mian (8) Kamruddin Mian (9) Katu Mian @ Jiyauddin Mian (10) Tahir Mian (11) Badruddin Mian (12) Kaila Miyan (13) Samsuddin Mian (14) Charku Miyan(15) Rasid Mian (16) Fodi Mian (17) Naso Mian (18) Ibrahim Mian (19) Fakruddin Mian (20) Choto Mian (21) Sahruddin Mian. 4. 4. During investigation the victim died subsequently and section 302 of the Indian Penal Code has been added vide order dated 03.07.1989. 5. On completion of the investigation, the Police has submitted charge sheet vide charge sheet no.11 of 1989 dated 30.09.1989 under Section 147, 148, 149, 341, 342, 379, 302 of the Indian Penal Code against altogether 25 accused persons namely (1) Alam Mian (2) Vasir Miyan (3) Hasim Mian (4) Wasir Mian (5) Sabir Mian (6) Sahru Mian (7) Kamruddin Mian (8) Katu Mian @ Jamalludin Mian (9) Kadir Mian (10) Tahir Mian (11) Badruddin Mian (12) Kaila Miyan (13) Samsuddin Mian (14) Bahadur Mian (15) Charku Miyan (16) Rasid Mian (17) Fodi Mian (18) Naso Mian (19) Ibrahim Mian (20) Fakruddin Mian (21) Choto Mian (22) Hasruddin Mian (23) Pirali Ali Mian (24) Khalil Mian and (25) Abdin Mian. 6. The cognizance of the offence has been taken vide order dated 05.10.1989 and the case has been committed to the Court of Sessions vide order dated 28.04.1993. 7. The charge has been framed on 30.08.1994 against all twenty five accused persons, under Sections 149 and 302 of the Indian Penal Code and against Vahid Mian, Hasim Miyan and Kadir Mian under Section 148 IPC, against 22 accused Alam Mian and Kadir Mian under Section 342 IPC, against Alam Mian, Vasir Miyan, Sabir Mian, Sahruddin Mian, Kamruddin Mian, Katu Mian @ Jamalludin Mian, Tahir Mian, Badruddin Mian, Kaila Miyan, Samsuddin Mian, Charku Miyan, Rasid Mian, Fodi Mian, Naro Mian, Ibrahim Mian, Fakruddin Mian, Choto Mian, Hasruddin Mian, Pirali Mian, Khalil Mian and Abdin Mian under Sections 147, 323 and 324 of the IPC and against Alam Mian, Vasir Miyan, Vahid Mian and Kaila Miyan under section 379 IPC. The charge has been read over and explained to the accused persons, to which they have pleaded not guilty and claimed to be tried. During trial one of the accused Fodi Mian died and his case has been dropped vide order dated 21.07.1995. 8. The prosecution, in order to prove its case, has examined altogether eight prosecution witnesses and also exhibited a number of documents up to exhibits-5. Ghogho Mian, elder brother of the deceased and eye witness to the occurrence has been examined as P.W.1. He has proved his signature on the fardbeyan of the informant, which has been marked as exhibit-1. 8. The prosecution, in order to prove its case, has examined altogether eight prosecution witnesses and also exhibited a number of documents up to exhibits-5. Ghogho Mian, elder brother of the deceased and eye witness to the occurrence has been examined as P.W.1. He has proved his signature on the fardbeyan of the informant, which has been marked as exhibit-1. Abdul Miyan son of the deceased has been examined as P.W.2, Nasir Miyan, Mukiya of the village, has been examined as P.W.3. He has also proved his signature on the fardbeyan of the informant, which has been marked as exhibit-1/1 and also proved inquest report, which has been marked as exhibit-2. Jamir Miyan, an independent witness has been examined as P.W.4. Punit Deo, a formal witness has been examined as P.W.5 and has proved formal F.I.R., which has been marked as exhibit-3. Dr. M. A. Sattar, Civil Assistant Surgeon, Deoghar, who has conducted the postmortem examination of deadbody of Laskari Mian has been examined as P.W.6. He has proved the postmortem report in his pen and signature, which has been marked as exhibit-4. Mariyan Khatoon wife of the deceased has been examined as P.W.7. Ashok Kumar Mishra an advocate clerk being a formal witness has been examined as P.W.8. He has proved the fardbeyan in the handwriting and signature of A.S.I. B. K. Singh, which has been marked as exhibit-5. 9. After closure of prosecution evidence, statement of accused/appellants have been recorded under Section 313 Cr.P.C. on 28.02.1996, where they have claimed themselves to be innocent and have adduced one documentary evidence in support of their case. The certified copy of charge-sheet of Sarwan (Sonaraitharhi) P.S. Case No.27 of 1989, in Sessions Case No.31 of 1993 has been proved and marked as exhibit-A without objection. 10. The certified copy of charge-sheet of Sarwan (Sonaraitharhi) P.S. Case No.27 of 1989, in Sessions Case No.31 of 1993 has been proved and marked as exhibit-A without objection. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has held guilty seven accused persons namely, Alam Mian, Kadir Mian, Hasim Miyan, Vahid Miyan, Bahadur Mian, Charku Miyan and Vasir Miyan and convicted them for the offence committed and punishable under Section 302 of the Indian Penal Code and further held guilty Alam Mian, Vahid Miyan, Vasir Miyan and Kaila Miyan and convicted them for the offence committed and punishable under section 379 of the Indian Penal Code but acquitted rest of the sixteen accused persons facing trial from the above charge and awarded rigorous imprisonment for life for the offence committed and punishable under Section 302 of the Indian Penal Code and awarded rigorous imprisonment for two years for the offence committed and punishable under section 379 of the Indian Penal Code. Both the sentences were directed to run con-currently. Other accused persons have not been convicted by the learned trial Court in absence of any corroborative evidence and materials against them. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence the seven accused persons, have preferred Criminal Appeal(DB) No.420 of 1996 and Kaila Miyan, who has only been convicted under section 379 of the Indian Penal Code has preferred Criminal Appeal (DB) No.541 of 1996. But no acquittal appeal has been preferred by the State or informant or aggrieved persons. Both the criminal appeals are being heard together and disposed of by this common judgment. 11. Heard, learned counsel for the appellants, Mr. Aashish Kumar, Advocate. But no acquittal appeal has been preferred by the State or informant or aggrieved persons. Both the criminal appeals are being heard together and disposed of by this common judgment. 11. Heard, learned counsel for the appellants, Mr. Aashish Kumar, Advocate. Learned 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 as altogether 25 accused persons have been named in the First Information Report but they have no common intention and object to kill the deceased as none of them have been alleged to have assaulted the victim, Laskari Mian on vital part of his body such as head though the informant has alleged in the First Information Report that the accused persons were having Baluwa, sabbal, Iron Rod and lathi in their hand but from perusal of the postmortem report none of the injury found by the doctor is on vital part of the body rather those injuries may be caused because of fall on hard substance. Learned counsel for the appellants has submitted that half of the prosecution case has been disbelieved by the learned trial Court as learned trial Court has acquitted sixteen named accused persons from the charge framed against them and no acquittal appeal has been preferred against the said judgment of acquittal of those accused persons either by the state or by the aggrieved persons. Learned counsel for the appellants has further submitted that witnesses are interested witnesses and non-examination of the investigating officer has caused serious prejudice to the appellants as they could not get an opportunity to cross-examine the investigating officer so as to prove their innocence. Learned counsel for the appellants has submitted that at best even if the evidence of the interested witnesses are taken to be true then also the appellants cannot be convicted under Section 302 of the Indian Penal Code as the injured has not sustained any injuries on vital part of body and was not provided any medical treatment soon after the alleged occurrence, rather he died because of negligence of the informant/prosecution party and as such, appellants may be convicted under Section 326 of the Indian Penal Code. Learned counsel for the appellants has further submitted that only on the basis statement of the informant, that Kaila Miyan has taken Rs.200/-from his pocket, without any evidence by any of the prosecution witnesses, he has been held guilty under Section 379 of the Indian Penal Code. As such, the same is not sustainable in the eye of law in absence of any corroboration by the prosecution witnesses. Learned counsel for the appellants has further submitted that the weapon of assault has not been seized from the place of occurrence nor the police officer has tried to apprehend any of the accused persons in the same night, though the person died in the night itself and it was only on the basis of cooked up story in connivance with the police officer, who has not been examined in this case, appellants have been wrongly convicted by the learned trial court. Though victim has died because of fall on hard object. Learned counsel for the appellants has relied upon a judgment in the case of Joseph vs. State represented by Inspector of Police and Anr. reiterating the views of the case of State of Punjab vs. Sanjiv Kumar @ Sanju and Others as reported in (2007) 9 SCC 791 , para-11 of which is quoted hereunder: “11. creation of vicarious liability under section 149 of the IPC is well elucidated in the case of Alauddin Mian and Others. Sharif Mian & Anr. vs. State of Bihar as reported in (1989) 3 SCC 5 , this court held: 8. ........Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly......" The same principles were reiterated in the case of Daya Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav and Ors. v. State of Bihar (2011) 5 SCC 324 . Learned counsel for the appellants has further submitted that in absence of any motive the appellants cannot be convicted under section 302 of the Indian Penal Code as the doctor has only found injury on dissection, which is pale chest (a) left side of the chest cavity was full of blood clots and puncture of the left lung and 4th and 5th ribs broken. He has opined that the said injury has been caused by hard and blunt substances, which has been brought on record as exhibit-4. The doctor has categorically submitted that no external injury on chest was seen by him, lungs may be punctured due to stoppage of breathing. External injury has not been found on any vital part of the body. Learned counsel for the appellants has thus submitted that in absence of any specific allegation of causing this injury against any of the appellants, conviction of the appellants under Section 302 of the IPC cannot sustain in the eyes of law. As such, the impugned judgment of conviction and order of sentence may be set aside by acquitting the appellants from the charge and conviction. 12. Learned Additional Public Prosecutor Mr. Ravi Prakash assisted by learned counsel for the aggrieved party i.e. son of the deceased, Mr. As such, the impugned judgment of conviction and order of sentence may be set aside by acquitting the appellants from the charge and conviction. 12. Learned Additional Public Prosecutor Mr. Ravi Prakash assisted by learned counsel for the aggrieved party i.e. son of the deceased, Mr. Deepak Kumar assisted by Mr. Arvind Kumar Choudhary, Advocates has submitted that this is a cold blooded murder of the victim, who was going towards Hatia on his bicycle to sale rice. The accused persons surrounded him and accused Alam Mian and Kadir Mian caught hold of his bicycle and Bahadur Mian and Vahid Miyan assaulted him by means of sabbal (iron rod). Hasim Miyan, Vasir Miyan, Sabir Mian, Sahruddin Mian, Kamruddin Mian, Katu Mian @ Jiyauddin Mian, Tahir Mian, Badruddin Mian, Kaila Miyan, Samsuddin Mian, Charku Miyan, Rasid Mian, Fodi Mian, Naso Mian, Ibrahim Mian, Fakruddin Mian, Chuto Mian, Alam Mian, Vahid Miyan and Bahadur Mian have assaulted him and informant has died after recording his fardbeyan on the same day on the way to the hospital. Since prosecution witnesses have not stated the specific role played by other accused persons, they have been acquitted by the learned trial court but the evidence is consistent so far the present appellants Alam Mian, Kadir Mian, Hasim Miyan, Vahid Miyan, Bahadur Mian, Charku Miyan and Vasir Miyan are concerned. Learned counsel for the State assisted by learned counsel for the aggrieved party has drawn attention of this Court towards the evidence of P.W.1, Ghogho Mian, who is an eye-witness to the occurrence and a signatory to the fardbeyan of the informant/deceased Laskari Mian. Learned State counsel has submitted that Ghogho Mian is the elder brother of the deceased and has seen the occurrence where the accused persons 20-25 in numbers have assaulted the victim by dragging him inside the house of Alam Mian. Specific assertion has been made by P.W.1 Ghogho Mian against Alam Mian and Kadir Mian that they have caught hold of his bicycle and Vahid Mian, Bahadur Mian have assaulted him by means of sabbal, Hasim Miyan assaulted him by means of rod. As such, the accused persons have been rightly convicted by the learned trial court. Specific assertion has been made by P.W.1 Ghogho Mian against Alam Mian and Kadir Mian that they have caught hold of his bicycle and Vahid Mian, Bahadur Mian have assaulted him by means of sabbal, Hasim Miyan assaulted him by means of rod. As such, the accused persons have been rightly convicted by the learned trial court. Learned counsel for the State has further drawn attention towards the statement of son of the victim namely Abdul Mian (P.W.2), who is also an eyewitness to the occurrence and has categorically stated that as soon as his father reached near the house of Alam Mian accused, Alam Mian and Vahid Miyan has caught hold of his bicycle. Vahid Mian and Bahadur Mian thereafter assaulted his father due to which his father (victim) fell down and thereafter Alam Mian, Kadir Mian, Vahid Miyan, Bahadur Mian, Basir Mian, Charku Miyan have dragged his father inside the house of Alam Mian and they have also taken cycle and the rice of the victim. Thereafter the victim was taken to the door of Nasir Mian (Mukhiya) and at that time police also came there while performing their patrolling at 7-7.30 P.M. where fardbeyan of Laskari Mian was taken on which he has also put his LTI. Learned counsel for the State has further submitted that though the victim has not sustained injury on vital part of the body but the injury which has been caused by these accused persons are coming under clause 3rdly of Section 300 IPC which reads as follows: “3rdly.-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death” Learned counsel for the State has thus submitted that the appellants have been rightly convicted by the learned trial court. Learned counsel for the State has further referred to the evidence of Nasir Mian. He is also one of the witnesses to the fardbeyan of the informant and has been examined as P.W.3. He is also an eyewitness to the occurrence and supported the prosecution case and has proved his signature on the fardbeyan which has been marked as Exhibit-1/1 and the inquest report which has been marked as Exhibit-2. He is also one of the witnesses to the fardbeyan of the informant and has been examined as P.W.3. He is also an eyewitness to the occurrence and supported the prosecution case and has proved his signature on the fardbeyan which has been marked as Exhibit-1/1 and the inquest report which has been marked as Exhibit-2. Learned State Counsel has further submitted that these prosecution witnesses have been examined by the appellants but nothing has been elucidated to disbelieve the prosecution case and their evidence remain consistent to the evidence of other prosecution witnesses. Learned counsel for the State has further submitted that Jamir Mian is an independent witness, who has stated that he refused to load the rice of the victim on the vehicle as there was no space and has seen the victim Laskari Mian going on his bicycle alongwith sack of rice and as soon as he reached near the door of Alam Mian, the accused persons namely Alam Mian, Vahid Mian, Kadir Mian, Vasir Miyan, Hasim Miyan, Charku Miyan have stopped him and have taken away his bicycle at the door of Alam Mian and Alam Mian assaulted Laskari Mian by means of danda. He has also stated that blood has fallen there at the place of occurrence. Punit Deo (P.W.5) is a formal witness being an Advocate clerk has proved the for formal F.I.R. in the hand-writing and signature of Officer-in-Charge, which has been marked as Exhibit-3 though he has admitted that the same has not been written in his presence. Dr. M.A. Sattar (P.W.6), the Medical Officer who has conducted the postmortem examination of the deadbody of Laskari Mian has found altogether 11 injuries which are mentioned hereunder: “(i) Sharp cut injury above right elbow with blood clots. Size 2” x 1/3” x bone deep. (ii) Cut injury over right forearm at lateral aspect with blood clots 2” x 1/2” x bone deep. (iii) Cut injuries over right forearm on post aspect with blood clots 1 ½” x 1/2” x bone deep. (iv) Lacerated injury over back of the palm right with blood clots 1” x 1” x bone deep. (v) Right Leg: Cut injury over right leg anteriorly with blood clots 1 ½” x 1/2” x bone deep. (vi) Abrasion over right knee with blood clots. (iv) Lacerated injury over back of the palm right with blood clots 1” x 1” x bone deep. (v) Right Leg: Cut injury over right leg anteriorly with blood clots 1 ½” x 1/2” x bone deep. (vi) Abrasion over right knee with blood clots. (vii) Lacerated injury over medial aspect of right foot below medial malleolus with blood clots 2” x 1/2” x bone deep. (viii) Left arm-Cut injury over lateral aspect of forearm below two-third with blood clots 1 ½” x 1/2” x bone deep. (ix) Left thigh – cut injury over front of the thigh at two-third below with blood clots 2” x 1” x bone deep. (x) Lacerated injury over lateral aspect of tibia with blood clots 1 ½” x 1 ¼” x bone deep. (xi) Abrasion over the left tibia upper and over the knee with blood clots. On dissection skull-Meninges & brain matter-pale chest (a) left side of the chest cavity was full of blood clots with puncture of the left lung and 4th and 5th ribs broken. Heart empty. Right lung-pale abdomen-stomach about 10 oz. Of juice, liver-pale, kidneys and spleen-pale, large intestine-a little faecal matter present, urinary bladder-empty, (b) After dissection of ankle jts.-both were fractured. (c) After dissection left wrist jt.-both bones of left forearm in lower and fractured. External genitals- NAD. The doctor has opined that death was due to haemorrhage and shock due to above noted injuries specially injury no. (a) in dissection caused by hard and blunt substance and proved the postmortem report in his pen and signature which has been marked as Exhibit-4.” Learned counsel for the State has submitted that though the doctor has not found any injury on the chest externally but he has found the puncture of lungs which has been explained by the doctor in injury no. (a) i.e. fracture of 4th and 5th ribs broken, which punctured the left lungs. Learned counsel for the State has further submitted that wife of the deceased Mariyan Khatoon (P.W.7) has also supported the case of prosecution being an eye-witness to the occurrence and nothing has been elucidated by the appellants during her cross-examination. Ashok Kumar Mishra (P.W.8) being an advocate clerk has proved the fardbeyan in the hand writing and signature of A.S.I. B.K. Singh, who has recorded the fardbeyan of the informant which has been marked as Exhibit-5. Ashok Kumar Mishra (P.W.8) being an advocate clerk has proved the fardbeyan in the hand writing and signature of A.S.I. B.K. Singh, who has recorded the fardbeyan of the informant which has been marked as Exhibit-5. Though, in his cross-examination he has admitted that the fardbeyan has not been written in his presence nor he has any personal knowledge of the occurrence. Learned State counsel assisted by learned counsel for the aggrieved party has thus submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court after scanning the evidence and holding the accused persons guilty against whom there is specific proof of assault. Thus, the impugned judgment of conviction passed against the appellants under sections 302/379 IPC and Kaila Miyan under section 379 IPC does not warrant any interference of this Court at this appellant stage as the case come under clause 3rdly of section 300 IPC as such the offence of murder has been committed the criminal appeals preferred by the appellants may be dismissed being devoid of any merit. 13. Heard, learned counsel for the appellants Mr. Aashish Kumar and learned Additional Public Prosecutor for the State, Mr. Ravi Prakash assisted by learned counsel for the aggrieved party i.e. son of the deceased, Mr. Deepak Kumar assisted by Mr. Arvind Kumar Choudhary, Advocates and perused the entire materials on record including the fardbeyan, framing of charge, deposition of eight prosecution witnesses, five prosecution exhibits, the statement of the accused/appellants under Section 313 of the Cr.P.C., defence exhibit-A and the impugned judgment of conviction and order of sentence. From perusal of the materials brought on record and careful scanning of the evidence of the prosecution witnesses, it appears that the case has been instituted on the basis of fardbeyan of the victim Laskari Mian, who subsequently died on the same day and thereafter section 302 IPC has been added. He has categorically stated name of the assailants, who have assaulted him by means of iron rod, sabbal, lathi, bhujali. Kadir Mian has assaulted by means of bhujali. The victim has also stated that they have taken the rice and the bicycle which he has specifically alleged against Alam Mian, Vasir Miyan, Vahid Mian and Kaila Miyan and Rs. 200/-has been taken from his pocket by Kaila Miyan. Kadir Mian has assaulted by means of bhujali. The victim has also stated that they have taken the rice and the bicycle which he has specifically alleged against Alam Mian, Vasir Miyan, Vahid Mian and Kaila Miyan and Rs. 200/-has been taken from his pocket by Kaila Miyan. The evidence of P.W.1 Ghagho Mian, P.W.2 Abdul Mian, P.W.3 Nasir Mian, P.W.4 Jamir Mian, P.W.7 Mariyan Khatoon establishes that they are eye-witnesses to the occurrence. Though they have been cross-examined at length but nothing has been brought on record to contradict the evidence of other prosecution witnesses, rather the evidence of the prosecution witnesses are corroborative and consistent to each other. There is nothing on record to suggest that they have not seen the occurrence rather they eye-witnesses to the occurrence. From perusal of the postmortem report which has been brought on record as Exhibit-4, we are of the opinion that though the injured has sustained sharp cut injury and lacerated injury on non-vital part of the body, on dissection the doctor has found pale chest, left side of the chest cavity full of blood clots and puncture of left lung and fracture of 4th and 5th ribs which was caused by hard and blunt substances and that is the cause for death of the deceased. The doctor has categorically stated that no injury externally on chest was seen by him but lungs had punctured due to stoppage of breathing. External injury has not been found on any vital part of the body but injuries which has been mentioned on dissection as injury no. (a) is sufficient to cause death of the person. We are of the opinion that the accused persons intended to cause bodily injury on the victim which were such as to cause death in the ordinary circumstances, as such their case comes under clause 3rdly of section 300 IPC. There is nothing on record to suggest that injured was not in a position to give his re-statement to the police rather the injured has survived for some hours and after recording his fardbeyan he died. As such, there is enough corroboration with regard to the fardbeyan of the victim by eye-witnesses of the occurrence. 14. We have perused the evidence of entire prosecution witnesses. As such, there is enough corroboration with regard to the fardbeyan of the victim by eye-witnesses of the occurrence. 14. We have perused the evidence of entire prosecution witnesses. P.W.1 Ghagho Mian, P.W. 2 Abdul Mian, P.W.3 Nasir Mian, P.W.4 Jamir Mian and P.W.7 Mariyan Khatoon have specifically taken the name of these appellants having weapon in their hands. In the case of Masalti vs. State of Uttar Pradesh as reported in AIR 1965 SC 202 at para-17 where the case of Baladin vs. State of Uttar Pradesh (S) AIR 1956 SC 181 has been relied and observed: “it is well settled that mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142 IPC. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of S. 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said personal entertained one or more of the common objects as specified by S. 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by the Court in the case of Baladin, (Supra) AIR 1956 SC 181 assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly in fact, S. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the member of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly; is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.” In a case where there are allegations of assault by several accused persons, who are charged under Section 149 of the IPC, the test of caution advised in the case of Masalti Vs. State of Utter Pradesh; AIR 1965 SCC 202 should be applied to see whether the allegations are supported by evidence of at least two or more witnesses. In that light, on re-appreciation of the evidence of the prosecution witnesses, it appears that P.W.1, Ghogho Mian has seen the accused Alam and Kadir catching the cycle of the victim and accused Vahid and Bahadur giving sabbal blows upon the deceased while Hasim assaulted by means of rod and other accused persons dragged him. From the deposition of P.W.2, Abdul Miyan, it appears that when his father reached near the house of Alam Mian, accused Alam and Vahid caught hold of his cycle and Vahid and Bahadur assaulted him by means of Sabbal. From the deposition of P.W.2, Abdul Miyan, it appears that when his father reached near the house of Alam Mian, accused Alam and Vahid caught hold of his cycle and Vahid and Bahadur assaulted him by means of Sabbal. Accused Alam, Kadir, Vahid, Saharuddin, Vasir and Charku dragged him in the house of Alam and they also snatched cycle and the rice. He has further stated that Alam Mian assaulted the deceased by ‘danda’, Kadir by ‘Bhujali’. Vahid and Bahadur assaulted by ‘Sabbal’, Wasir and Charku assaulted by ‘Danda’. Further, from deposition of P.W.3, it appears that he saw accused Alam and Kadir snatched the cycle of the deceased and thereafter assault upon the victim started. He has further deposed that accused person Vahid and Bahadur were armed with sabbal, Wasir with rod and others with lathi. P.W.4 has stated that as soon as the victim reached to the Darwaja of Alam, accused Alam, Kadir, Vahid, Vasir, Hasim and Charku stopped the deceased and brought the cycle at the Darwaja (door) of Alam. Alam gave a danda blow upon the deceased and other assaulted him by means of rod and barchi. P.W.7, Mariyan Khatoon has stated that as soon as the victim reached near the house of accused Alam, this accused caught hold of cycle of her husband and Alam, Bahadur, Charku and Kadir started assaulting her husband. Alam gave a blow by means of lathi, Kadir by Bhujali, Bahadur and Vahid with Sabbal and Charku with lathi upon her husband. From the deposition of these witnesses, it appears that presence of all the accused/appellants as member of the unlawful assembly is made out. It further appears from deposition that the allegations made in the First Information Report that these accused persons by forming common unlawful assembly in furtherance of their common object committed an assault upon the victim Laskari Mian, which caused eleven ante-mortem injuries, which were sharp cutting in nature and also cut injuries over arms, legs as also lacerated injuries and abrasions over different part of the body have been proved. On dissection, the Medical Officer (P.W.6) found the left side of chest cavity full of blood clots with puncture of the left lung and 4th and 5th ribs broken. As per opinion of the doctor death was caused due to haemorrhage and shock by the aforesaid injuries and specially injury no. On dissection, the Medical Officer (P.W.6) found the left side of chest cavity full of blood clots with puncture of the left lung and 4th and 5th ribs broken. As per opinion of the doctor death was caused due to haemorrhage and shock by the aforesaid injuries and specially injury no. (a) which was found on dissection, caused by hard and blunt substances. The evidence brought on record by the prosecution clearly shows presence of these accused persons as part of unlawful assembly, who acted in furtherance of their common intention in causing assault upon the victim Laskari Mian through various weapons like danda, bhujali, sabbal and rod, which resulted the serious injuries upon the victim which caused his death. As such the accused persons are liable for the offence of murder committed in prosecution of their common object under Section 149 of the I.P.C. This view has been reiterated in the case of Inder Singh & Ors. vs. State of Rajasthan as reported in 2015 (2) SCC 734 and in the present case we have found that these appellants Alam Mian, Kadir Mian, Hasim Miyan, Vahid Miyan, Bahadur Mian, Charku Miyan and Vasir Miyan guilty under section 302/149 of the Indian Penal Code as there is sufficient material against them. They have assaulted the deceased causing 11 external injuries and one internal fracture of 4th and 5th ribs which punctured the left lungs and ultimately the person died because of such injury. As such, the conviction of the appellants under section 302/149 of the IPC. The conviction is upheld and affirmed by this Court under Section 302/149 of the IPC as there is no perversity. Since Kaila Miyan has not been found sharing any common object with the other accused/appellants in killing the deceased Laskari Mian in view of the judgment in the case of Masalti (supra) as discussed above, he has been rightly acquitted by the learned trial court under section 302 or 302/149 of the IPC but in view of the evidence that Kaila Miyan was along with other appellants namely Alam Mian, Vahid Miyan, Vasir Miyan and specific against Kaila Miyan of taking Rs. 200/-from the pocket of Laskari Mian, he has been rightly convicted under section 379 of the IPC. 15. 200/-from the pocket of Laskari Mian, he has been rightly convicted under section 379 of the IPC. 15. Considering the evidence in totality, we are of the opinion that the impugned judgment of conviction dated 31.08.1996 and order of sentence dated 03.09.1996, passed by learned Sessions Judge, Deoghar, in Sessions Case No. 147 of 1993 arising out of Sonaraitharihi (Sarwan) P.S. Case No. 50 of 1989 does not require any interference by this Court. 16. Accordingly, both the appeals are hereby dismissed. 17. The appellants, who are on bail, their bail bonds are cancelled and they are directed to surrender before the court below to serve out rest of the sentence. 18. Let the lower court record be sent down along with a copy of this judgment at once for necessary action.