JUDGMENT : S. Chandrashekhar, J. 1. The members of the family of Karam Chand Mahto have been made accused by the informant in his fardbeyan which was recorded on 25.10.1993 at about 13:15 p.m. at Rajhara O.P. On the basis of his fardbeyan, Patan P.S. Case No. 137 of 1993 has been lodged against Karam Chand Mahto, Narad Mahto, Dasrath Mahto and Moti Devi under section 341/447/307/324/323 of the Indian Penal Code. The informant who has suffered injuries in the occurrence has died on 27.10.1993 and, accordingly, the offence under section 302 of the Indian Penal Code was added in the report. After the investigation a charge-sheet was filed against Karam Chand Mahto, Narad Mahto, Dasrath Mahto, Moti Devi and Anita Devi. On 29.08.1995, charges under sections 148, 302 and 307/34 of the Indian Penal Code were framed against the accused Karam Chand Mahto and charges under sections 147, 302/149 and 307/34 of the Indian Penal Code were framed against the appellants. 2. In Sessions Trial No. 106/94 the appellants have been convicted and sentenced to R.I. for life under section 302/149 of the Indian Penal Code. A separate sentence of R.I. for 3 years under section 148 of the Indian Penal Code and R.I. for life under section 302 of the Indian Penal Code has been inflicted upon the appellant, namely, Karam Chand Mahto. 3. During pendency of this criminal appeal, the appellant, namely, Karam Chand Mahto has passed away and vide order dated 25.11.2019 this criminal appeal qua the appellant, namely, Karam Chand Mahto has abated. 4. During the trial, the prosecution has examined 9 witnesses and Dr. Panna Lal Pandey who has prepared the autopsy report of Ram Nandan Mahto has been examined as a court witness. P.W. 5, P.W. 7 and P.W. 8 have been tendered for cross-examination, P.W. 9 has been declared hostile and P.W. 6 is a hearsay witness. 5. The prosecution has projected Rajmati Devi-P.W. 1, Bishwanath Mahto-P.W. 2 and Basant Mahto-P.W. 3 as eye-witness. 6. The independent witnesses have not supported the prosecution's case but from the stand taken by the parties during the trial the occurrence which has happened on 25.10.1993 stands admitted by them, although both parties have projected their own version of the manner of the occurrence. 6. The independent witnesses have not supported the prosecution's case but from the stand taken by the parties during the trial the occurrence which has happened on 25.10.1993 stands admitted by them, although both parties have projected their own version of the manner of the occurrence. The testimony of P.W. 1, P.W. 2, P.W. 3 and P.W. 4 on the point of the incident which has happened in the fore-noon of 25.10.1993 is consistent. There are minor inconsistencies in their evidence but on the point of assault by Karam Chand Mahto on the husband of the informant they are consistent. They have remained unshaken during the cross-examination and nothing material could be elicited by the prosecution during their cross-examination. Their evidence is sufficiently corroborated by the medical evidence. The wife of the deceased who has been examined as P.W. 1 has stated that on the date of occurrence she was at home. On hearing hullah when she came out she has seen the accused persons assaulting her husband. P.W. 2 and P.W. 3 who were working in a nearby field have also claimed that they have seen the accused persons assaulting Ram Nandan Mahto. P.W. 2 is cousin of Ram Nandan Mahto and P.W. 3 is his nephew. P.W. 4 who is son of the informant has also supported the prosecution on the point of participation of the appellants in the occurrence. He has deposed that on hearing hullah when he reached the place of occurrence he has seen his father lying on the ground in the injured condition. He has stated that Karam Chand Mahto assaulted his father with spade and the other accused persons with lathi. He tried to intervene but Moti Devi assaulted him and his mother with lathi and Karam Chand Mahto has also assaulted his mother with lathi. 7. Ram Nandan Mahto has suffered injuries in the occurrence is reflected in the evidence of Dr. Panna Lal Pandey, who has been examined as a court witness. He tried to intervene but Moti Devi assaulted him and his mother with lathi and Karam Chand Mahto has also assaulted his mother with lathi. 7. Ram Nandan Mahto has suffered injuries in the occurrence is reflected in the evidence of Dr. Panna Lal Pandey, who has been examined as a court witness. He has conducted the post-mortem examination on 27.10.1993 and found the following injuries on Ram Nandan Mahto: (i) Bruise 3" x 1" on the middle of right side of the back placed vertically (ii) Bruise 3" x 1" below the left scapula on the back (iii) Bruise 2" x 1" on the lower part of left side of back (iv) Bruise 1" x 1" on the left flank of abdomen (v) Abrasion 1" x ½" on the right side of scrotum (vi) Abrasion 1" x ½" on the right elbow (viii) Bandaged wound on the scalp 8. On the basis of the above evidence, the prosecution has proved assault by Karam Chand Mahto on Ram Nandan Mahto. The presence and participation of Narad Mahto and Dasrath Mahto in the occurrence also stand proved. 9. However, the prosecution's evidence on participation of Moti Devi and Anita Devi in the occurrence is inconsistent and lacks foundational facts. 10. One of the contentions raised by Mr. H.K. Shikarwar, the learned counsel for the appellants is that the prosecution has suppressed the real version of the occurrence and failure on the part of the prosecution to explain the injuries on Karam Chand Mahto, Dasrath Mahto and Moti Devi has created substantial doubt on veracity of the prosecution's case. 11. The defence set-up by the accused persons is that it was the informant party which has initiated maar-peet and in the occurrence Karam Chand Mahto, Dasrath Mahto and Moti Devi have suffered injuries at the hands of the informant party. To establish their defence, the accused persons have produced a copy of the First Information Report lodged by Karam Chand Mahto vide Exhibit-A, injury report vide Exhibit-B, injury report of Moti Devi vide Exhibit-B/1 and injury report of Karam Chand Mahto vide Exhibit-B/2. 12. The accused-appellants have not examined any witness and the aforesaid documents have not been duly proved during the trial and therefore the content of these documents cannot be read in evidence. 12. The accused-appellants have not examined any witness and the aforesaid documents have not been duly proved during the trial and therefore the content of these documents cannot be read in evidence. But in view of admission of P.W. 1, P.W. 2 and P.W. 3 that Karam Chand Mahto has lodged a report with the police in respect of the same occurrence, the report lodged by him was prior in time and they have found the accused persons being treated in the hospital, this fact can be read in evidence that a complaint was filed by Karam Chand Mahto and the accused persons have also suffered injuries. 13. Anita Devi has not been named as an accused in the fardbeyan and except stating that Moti Devi has also participated no specific allegation of any overt act has been made against her. In the court, P.W. 1, P.W. 2, P.W. 3 and P.W. 4 have made allegation of assault by Moti Devi and Anita Devi also and normally the evidence in the court should be accepted, but then, it has also to be kept in mind that at the first instance the informant has failed to allege any overt act by them. Moti Devi who is wife of Dasrath Mahto and Anita Devi who is wife of Narad Mahto were known to the informant but he has not named Anita Devi as an accused and made allegation of any specific overt act against Moti Devi in his fardbeyan and, therefore, this omission would create a doubt that they have been roped in on account of enmity, particularly, because the prosecution witnesses have admitted enmity between the parties. P.W. 1, P.W. 2, P.W. 3 and P.W. 4 are close relatives of Ram Nandan Mahto is also a relevant fact, which, while scrutinizing their testimony has to be kept in mind and as observed by the Supreme Court in "Raju v. State of T.N." reported in (2012) 12 SCC 701 , their testimony needs to be tested with more care and caution. 14. In his fardbeyan the informant has stated that when he reached the place of occurrence Karam Chand Mahto, Narad Mahto and Dasrath Mahto were digging earth and dumping it in their field. This has led to a quarrel between him and these three accused-appellants. At that juncture, Moti Devi is not in the picture. 14. In his fardbeyan the informant has stated that when he reached the place of occurrence Karam Chand Mahto, Narad Mahto and Dasrath Mahto were digging earth and dumping it in their field. This has led to a quarrel between him and these three accused-appellants. At that juncture, Moti Devi is not in the picture. She was not present at the place of occurrence in the beginning. Later on, the matter has escalated and maar-peet has happened between the parties and in course of maar-peet both sides have suffered injuries. 15. In the aforesaid state of affairs, we are inclined to hold that presence and participation of Moti Devi and Anita Devi in the occurrence have not been proved by the prosecution and, therefore, their conviction under section 302/149 of the Indian Penal Code is set-aside. 16. The appellants, namely, Moti Devi and Anita Devi are acquitted of the criminal charges framed against them in Sessions Trial No. 106 of 1994. 17. The appellants, namely, Moti Devi and Anita Devi are on bail and, accordingly, they shall stand discharged of liability of the bail-bonds furnished by them. 18. Section 141 of the Indian Penal Code defines unlawful assembly as assembly of five or more persons if the common object of the persons composing assembly is to commit any one of the five acts mentioned under section 141. Section 149 of the Indian Penal Code incorporates constructive liability of all the persons forming part of the unlawful assembly. Section 149 consists of two parts. The first part of section 149 of the Indian Penal Code refers to offence committed by one or more persons in furtherance of common object of the unlawful assembly, whereas the second part of section 149 of the Indian Penal Code provides that if it is known to the members of the unlawful assembly that an offence may be committed in furtherance of the common object, every member of the unlawful assembly is liable for such offence. 19. In "Joseph Vs. State Rep. by Inspector of Police" reported in AIR 2018 SC 93 , the Supreme Court has held as under: "9. … ......... Section 149, IPC consists of two parts: *The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. 19. In "Joseph Vs. State Rep. by Inspector of Police" reported in AIR 2018 SC 93 , the Supreme Court has held as under: "9. … ......... Section 149, IPC consists of two parts: *The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. *The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149, if it can be shown that the offence was such as the members knew was likely to be committed." ------------------------------------------------- ------------------------------------------------- "What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the Court finds that the ingredients of Section 149, IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the Court to see as to who actually did the offensive act nor would it be open to the Court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149, IPC, the essential ingredients of Section 141, IPC must be established." 20. The accused-appellants have raised a defence that they have resisted Ram Nandan Mahto while exercising their right of private defence. They were present at the place of occurrence before the prosecution party has arrived there and it was the prosecution party which has raised objection to dumping earth in their field and this has led to a quarrel between them. In "State of Bihar Vs. Nathu Pandey and others" reported in AIR 1970 SC 27 , it has been held that the act of a group of persons in exercising right of private defence would not fall under section 141 of the Indian Penal Code. In "State of Bihar Vs. Nathu Pandey and others" reported in AIR 1970 SC 27 , it has been held that the act of a group of persons in exercising right of private defence would not fall under section 141 of the Indian Penal Code. From the materials on record, it can be gathered that it was a free fight between the prosecution and the accused party. In "Kashi Rai v. State of Bihar" reported in 1994 Supp (1) SCC 551, the Supreme Court has observed as under: "7. In such a situation though it can be held that there was an unlawful assembly to the extent of committing rioting but the common object of every member of the unlawful assembly cannot be said to commit murder. In a case of free fight of such nature, the assailants should be liable for their individual acts and it may be unsafe to convict all of them by applying Section 149 for the offence of murder. ……" 21. The above being the factual scenario, the appellants can be made liable for their individual acts. 22. The medical evidence reflects bruises and abrasions, six in number, mostly on the back and abdomen of Ram Nandan Mahto and the prosecution has not been able to prove which injury has been caused by whom. In view of the nature of injuries-except the head injury which has been caused by Karam Chand Mahto-the appellants, namely, Narad Mahto and Dasrath Mahto are liable to be convicted under section 324 of the Indian Penal Code. 23. Accordingly, conviction of the appellants, namely, Narad Mahto and Dasrath Mahto under section 302/149 of the Indian Penal Code is set-aside. 24. Their conviction under section 147 of the Indian Penal Code is confirmed but the order of sentence for the said offence is set-aside. On the question of sentence we find that the incident has happened in the year 1993 and the appellants, namely, Narad Mahto and Dasrath Mahto have remained in custody for more than one year. Accordingly, they are convicted and sentenced to R.I. for one year both under section 147 and section 324 of the Indian Penal Code. 25. Mrs. Priya Shrestha, the learned A.P.P. states that the appellants, namely, Narad Mahto and Dasrath Mahto are on bail and, accordingly, they shall stand discharged of liability of the bail-bonds furnished by them. 26. Accordingly, they are convicted and sentenced to R.I. for one year both under section 147 and section 324 of the Indian Penal Code. 25. Mrs. Priya Shrestha, the learned A.P.P. states that the appellants, namely, Narad Mahto and Dasrath Mahto are on bail and, accordingly, they shall stand discharged of liability of the bail-bonds furnished by them. 26. In the result, Criminal Appeal (D.B.) No. 130 of 2002 is partly allowed, in the aforesaid terms. 27. Let lower-court records be sent to the court concerned forthwith.