JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. In Sessions Trial No. 09 of 2009, Arjun Soren and Raghunath Soren @ Sukra Munda were convicted and sentenced to R.I for life and a fine of Rs. 5,000/- under section 302/149 of the Indian Penal Code with a default stipulation to undergo S.I. for three months. They were further convicted and sentenced to R.I. for three months under section 17 of CLA Act. Both the sentences were ordered to run concurrently. 2. Gurabanda P.S. Case No. 19 of 2008 was lodged on the basis of the fardbeyan of Dularam Murmu which was recorded early morning, about 06:10 AM on 24.05.2008 at his house in village Muchrisole. About 19 persons including Arjun Soren and Raghunath Soren along with 40-45 unknown criminals came in the midnight of 23.05.2008 to the house of the informant and captured Soken Murmu, his brother. The informant has stated that 5 criminals including one woman member entered the house and dragged him and his brother out. He has identified Kanhu Munda, Puttu Munda, Shankar Munda, Sukra Munda, Boda Munda, Kana Munda, Akash, Kamal, Shalu, Arjun Hembram, Karan Hansda, Mohan and Sabita, some dressed in fatigues, along with 40-50 persons outside his house. They surrounded the informant and his brother and on the direction of Kanhu Munda they kept his brother in confinement while other family members were locked inside the house. According to the informant, Arjun Soren was a resident of Mahespur and he was amongst the extremists who has assaulted informant, his sister, mother and other family members and locked them inside a room. While confined inside a room the informant and his family members heard sound of maarpit and somehow they escaped from their house and saw the extremists assaulting Soken Murmu by butt of gun and danda - Kanhu Munda was the extremist who assaulted Soken Murmu on his head with an axe. After the extremists left the informant and his family members came and saw that Soken Murmu was bleeding from head and he had already died. Several villagers had by that time assembled there. According to the informant a quarrel between his brother with the villagers took place for cutting of blackberry tree and in the Panchayati convened by village headman the villagers threatened to drive away Santhal families from the village. 3. Several villagers had by that time assembled there. According to the informant a quarrel between his brother with the villagers took place for cutting of blackberry tree and in the Panchayati convened by village headman the villagers threatened to drive away Santhal families from the village. 3. From the records, we gather that a charge-sheet was submitted against Arjun Soren and Raghunath Soren, the appellants, vide Charge-Sheet No. 09/2008 dated 15.07.2008 and after the learned Magistrate took cognizance of the offence the case was committed to the Court of Sessions. It further appears that some of the accused were put on trial subsequently, one sessions case was numbered Sessions Trial No. 291 of 2015. We find a reference of Sessions Trial No. 291 of 2015 in the order dated 22.08.2016 passed in the present criminal appeal. By this order original records of this case (Sessions Trial No. 09 of 2009) were sent back for the split-up case vide Sessions Trial No. 291 of 2015. Mr. Manoj Kumar Mishra, the learned APP informs us that another Sessions Trial No. 291-A of 2015 which was against Kanhu Ram Munda and Shankar Munda was finally disposed of on 18.07.2019. Since evidence of the witnesses was recorded separately in Sessions Trial No. 09 of 2009, we are not required to ascertain and hear other appeals if filed by the aggrieved party. 4. In the present case, the prosecution has examined three witnesses during the trial to prove charges against the appellants; the informant is PW-2. Dr. Kumar Manoranjan who conducted the postmortem examination on 24.05.2008 has found seven injuries on the dead-body of Soken Murmu and in his opinion the injuries were ante-mortem in nature, death was caused due to shock and hemorrhage and time elapsed since death was 24 hours. 5. The appellants faced the trial on the charge under sections 148, 341/149, 302/149, 323/149 and 120B of the Indian Penal Code as well as section 17 of CLA Act. The learned District and Sessions Judge, Ghatsila has held that PW-1 and PW-2 were reliable and trustworthy witnesses and from their evidence it is established that the appellants were part of unlawful assembly. The learned trial Judge has further found that the medical evidence corroborates the prosecution story that Soken Murmu was assaulted by hard and blunt substance. The learned District and Sessions Judge, Ghatsila has held that PW-1 and PW-2 were reliable and trustworthy witnesses and from their evidence it is established that the appellants were part of unlawful assembly. The learned trial Judge has further found that the medical evidence corroborates the prosecution story that Soken Murmu was assaulted by hard and blunt substance. The appellants were convicted and sentenced for the offences under section 302/149 of the Indian Penal Code and section 17 of CLA Act. 6. Mrs. Pragati Prasad, the learned Amicus has assailed the judgment passed in Sessions Trial No. 09 of 2009 on the grounds that both the eyewitnesses are not reliable and, moreover, without corroboration by independent evidence testimony of PW-1 and PW-2 who arc intimately related to the deceased cannot be the basis for conviction. It is further contended that the prosecution evidence is insufficient and highly unsatisfactory and non-examination of the investigating officer has caused serious prejudice to the accused and, therefore, conviction of the appellants is not sustainable. 7. The materials on records reflect a sorry state of criminal trials in the State. The occurrence took place in the year 2008 and the trial Judge has delivered judgment in December, 2011. So, it was not that the trial against the appellants was conducted during formative years of the State. During the trial, the learned Public Prosecutor has made a statement before the Sessions Court which is recorded in the judgment that not many witnesses were ready to give evidence in the case because extremists were involved in the occurrence. It appears that inspite of notices issued to the investigating officer and letters written by the Court to the superior police officers presence of the investigating officer could not be ensured for his evidence during the trial. The learned Sessions Judge, the Public Prosecutor and the investigating agency all have contributed their bit to make the trial messy and did not discharge their duties as enjoined upon them by the law. 8. In a sessions trial it is very important that the investigating officer remains present during the trial. Lord Jenkins, C.J. in Ram Ranjan Roy vs. Emperor, (1915) ILR 42 Cal. 422 has observed that it is the duty of the prosecution to examine all material witnesses. 8. In a sessions trial it is very important that the investigating officer remains present during the trial. Lord Jenkins, C.J. in Ram Ranjan Roy vs. Emperor, (1915) ILR 42 Cal. 422 has observed that it is the duty of the prosecution to examine all material witnesses. The investigating officer must remain present during the trial and it is his duty to keep the witnesses present during the trial on the date when the case is fixed for evidence. The Hon'ble Supreme Court has observed in Shailendra Kumar vs. State of Bihar, (2002) 1 SCC 655 , thus: “9......It was the duty of the Sessions Judge to issue summons to the investigating officer if he failed to remain present at the time of trial of the case. The presence investigating officer at the time of trial is must. It is his duty to keep the witnesses present. If there is failure on the part of any witness to remain present, it is the duty of the court to take appropriate action including issuance of bailable/non-bailable warrants, as the case may be. It should be well understood that the prosecution cannot be frustrated by such methods and victims of the crime cannot be left in a lurch.” 9. In Ram Chander vs. State of Haryana, (1981) 3 SCC 191 the Hon'ble Supreme Court has observed that if a criminal Court is to be an effective instrument in dispensing justice the presiding Judge must cease to be a spectator and mere recording machine. In T.C. Mathai vs. District and Sessions Judge, Thiruvananthapuram, (1999) 3 SCC 614 the Hon'ble Supreme Court has observed, thus: “8. The work in a court of law is a serious and responsible function. The primary duty of a criminal court is to administer criminal justice. Any lax or wayward approach, if adopted towards the issues involved in the case, can cause serious consequences for the parties concerned.....” 10. The witnesses were not offered protection under Witness Protection Programme; the investigating officer did not carry investigation with sincerity and promptitude the Public Prosecutor did not care to take recourse to law to examine other witnesses and the learned trial Judge did not bestow his attention for proper conduct of sessions trial. 11. PW-1, Gulabi Murmu, is the wife and PW-2 is brother of the deceased. 11. PW-1, Gulabi Murmu, is the wife and PW-2 is brother of the deceased. Both have deposed in the Court that in the night of 23.05.2008 (intervening night of 23/24.05.2008) at about 12:30 A.M. Arjun Soren and Raghunath Soren along with 17 known and 40-50 unknown extremists stormed their house and committed maarpit with Soken Murmu. Presence of the wife and the brother in the night of the occurrence in the house cannot be doubted unless the defence was able to elicit such facts from them which may challenge their stand that they were at home. PW-1 has deposed in the Court that four armed men entered the house and made her younger and elder brother-in-law both captive and took away outside the house. They released her younger brother-in-law and her family members escaped from the back door of the house. She saw assault on her husband with gun and danda. She has identified the appellants and claimed that she can identify few criminals. PW-2 who is the informant has narrated the story of the fateful night in a similar manner as described by him in his fardbeyan. He has provided an important information to the Court that the extremists were suspecting that his brother was a police informer. He has stated that Arjun Soren, Sukra Munda, Tanti Singh and Chaudhary Singh were carrying gun and lathi and they are the persons who assaulted his brother. He has identified the appellants in the Court. 12. In her cross-examination, PW-1 has stated that she has disclosed involvement of Arjun (refers to Arjun Soren) and Sukra (refers to Raghunath Soren @ Sukra Munda) in the case. She has identified them and it was not that she had named them as accused at the instance of her elder brother-in-law. She has further stated that Arjun Soren belongs to a different village at the distance of about 1/2 kilometer. She has further admitted that she never visited the village of Arjun Soren nor has she ever gone to his shop, but she has asserted that she had previous acquaintances with him. In his cross-examination, PW-2 has stated that he was dragged outside the house by 8-9 criminals and their face was not covered. He has further stated that Arjun Soren and Sukra Munda were amongst those four criminals who had dragged him out. In his cross-examination, PW-2 has stated that he was dragged outside the house by 8-9 criminals and their face was not covered. He has further stated that Arjun Soren and Sukra Munda were amongst those four criminals who had dragged him out. He has stated that he identified Ujjwal Sarkar in the Test Identification Parade on the pressure of the police. 13. Both the witnesses have stated in the Court that it was a dark night but at the same time they have also claimed that there was sufficient visibility to identify a person from a short distance. 14. Mrs. Pragati Prasad, the learned Amicus has contended that according to the witnesses the family members of Soken Murmu were locked inside the house including PW-1 and PW-2 and therefore their claim that they have seen maarpit with Soken Murmu is not true. 15. From the testimony of these witnesses, it is apparent that when the criminals came to their house they had sufficient opportunity to observe and identify them. PW-1 has stated that the criminals stayed there for about two hours and maarpit continued for about one hour. Even assuming that there is some exaggeration in her testimony, her evidence is reliable. She appears to be a truthful witness who has stated the happenings of the night of 23/24.05.2008 truthfully. Her cross-examination gives an impression that the defence questioned her on identification of the individual accused. The pattern of cross- examination of PW-2 would also reveal a similar strategy of the defence. However, there are ample materials in their evidence to believe that these witnesses have identified the appellants as part of the unlawful assembly. PW-2 has made a specific allegation of assault by the appellants but even ignoring the evidence of PW-2 on this point because PW-1 has not disclosed role played by the appellants, presence of the appellants is established at the place of occurrence. It was dead of the night when about 70 persons had gathered at the house of Soken Murmu. Few of them entered the house and brought the male members outside. It is ease of the prosecution that due to some dispute regarding cutting of blackberry tree a quarrel took place between the family of the deceased and other villagers and that was the reason the villagers had sought for help of the extremists. But this part of the prosecution case is not proved. It is ease of the prosecution that due to some dispute regarding cutting of blackberry tree a quarrel took place between the family of the deceased and other villagers and that was the reason the villagers had sought for help of the extremists. But this part of the prosecution case is not proved. In the evidence of PW-2 another reason for attack by a large number of persons at the house of Soken Murmu has appeared - the extremists suspected him as informer of the police. Whatever may be the reason, from the evidence of PW-1 and PW-2 it is proved that several known and unknown extremists forming unlawful assembly had gathered at the house of Soken Murmu, male members were dragged outside the house and Soken Murmu was assaulted. In the aforesaid circumstances, the appellants were not onlookers or bystanders who had gone near the house of Soken Murmu to see what happened there. They were part of the unlawful assembly object of which was to commit crime. 16. Mrs. Pragati Prasad, the learned Amicus would contend that conviction of two persons with the aid of section 149 of the Indian Penal Code is not proper. 17. In Ramdular Rai vs. State of Bihar, (2003) 12 SCC 352 the Hon'ble Supreme Court has observed as under: “6. Coming to the question whether Section 149 has application when presence of more than five persons is established, but only four are identified. Section 149 does not require that all the five persons must be identified. What is required to be established is the presence of five persons with a common intention of doing on act. If that is established merely because the other persons present are not identified that does not in any way affect applicability of Section 149 IPC.” 18. The issue is no longer res integra. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. 19. 19. In Joseph vs. State, (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11.3 What is important in each case is to find out if the defence 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. In the aforesaid background, we hold that the appellants were rightly convicted with the aid of section 149 of the Indian Penal Code. 21. However, the question is whether they can be convicted for causing death of Soken Murmu. In our opinion, the answer to this question seems to be in negative the reasons for which we would now delineate. 22. PW-3, Dr. Kumar Manoranjan who has conducted the post-mortem examination has found the following injuries on the dead-body of Soken Murmu: (i) Lacerated injury just above right eye brow 2” x 1/2” x 1/2.” (ii) Haematoma over right eye lid and just above the right eye brow. (iii) Bruise over right maxillary region (cheek). (iv) Linier multiple abrasion over left side of back (scapular region). (v) Fracture of the lower end of the left arm (fractum hemorrhage). (vi) Back rounded Haematoma 2” x 1/2” over left lateral chest wall. (vii) (a) Lacerated injuries over left occipital region with facture skull bone 2” x 1” x 1.” (b) Lacerated injury just above the wound 3” x 1” x 1.” 23. A glance at the aforesaid injury would reveal that the injury no. (ii) is the corresponding injury of injury no. (i). Two of the injuries were bruise over right maxillary region and abrasion over back of scapular region, another injury seems to be sign of assault on chest. The aforesaid injuries and fracture of the left arm are not dangerous to life. (ii) is the corresponding injury of injury no. (i). Two of the injuries were bruise over right maxillary region and abrasion over back of scapular region, another injury seems to be sign of assault on chest. The aforesaid injuries and fracture of the left arm are not dangerous to life. There are two other injuries both around occipital region, one of the size of 2” x 1” x 1” and another or the size of 3” x 1” x 1.” In a large crowd of about 70 persons many of whom were extremists the number or nature of the injuries caused to Soken Murmu do not indicate that common object of unlawful assembly was to cause his death. It is also not established that the appellants had knowledge that death would probably be caused in the occurrence. It is the prosecution evidence that several persons were carrying gun and we find force in submission of the learned Amicus that the injury no. (vii) was caused by butt of the gun but no one has used the gun in the occurrence. Accordingly, we hold that conviction of the appellants, though this criminal appeal qua the appellant no. 2, namely, Raghunath Soren @ Sukra Munda has not been pressed on merits, under section 302/149 of the Indian Penal Code is not sustainable and, accordingly, it is set-aside. 24. From the prosecution evidence all that we gather is that common object of the unlawful assembly was to thrash Soken Murmu. In the occurrence Soken Murmu has suffered grievous injuries and, therefore, the appellants were liable to be convicted under section 325 of the Indian Penal Code. 25. During the trial the appellants have suffered serious prejudice on account of non-examination of the investigating officer. In Lahu Kamlakar Patil vs. State of Maharashtra, (2013) 6 SCC 417 the Hon'ble Supreme Court has observed that non-examination of the investigating officer by itself would not cause prejudice to the accused, but there are circumstances in which non-examination of the investigating officer becomes vital. In a case of this nature with which we arc presently dealing with, the defence could not elicit from the investigating officer the reasons why other witnesses were not examined in the case, crime weapon could not be recovered, antecedent of the appellants were not disclosed to the Court etc. 26. In a case of this nature with which we arc presently dealing with, the defence could not elicit from the investigating officer the reasons why other witnesses were not examined in the case, crime weapon could not be recovered, antecedent of the appellants were not disclosed to the Court etc. 26. In the circumstances, we are of the opinion that Arjun Soren is liable to be sentenced to R.I. for five years under section 325 of the Indian Penal Code. 27. Though there is no material on record to establish that the appellants were extremists, in the occurrence participation of the extremists/Maoists is well established and, therefore, conviction and sentence of Arjun Soren under section 17 of CLA Act are affirmed. 28. Mr. Manoj Kumar Mishra, the learned APP states that Arjun Soren was released on bail by virtue of order dated 19.04.2017 passed by a co-ordinate Bench of this Court. 29. Accordingly, the appellant, namely, Arjun Soren shall be discharged of liability of the bail-bonds furnished by him. 30. Criminal Appeal (D.B.) No. 453 of 2012 is partly allowed, in the aforesaid terms and to the extent indicated hereinabove. 31. We record our appreciation for the able assistance rendered by Mrs. Pragati Prasad, the learned Amicus who has meticulously prepared short synopsis, list of dates and notes on arguments. 32. We appreciate efforts of Mr. Manoj Kumar Mishra, the learned APP for providing valuable information about other sessions trials. 33. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 34. Let the lower Court records be sent to the Court concerned forthwith. 35. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through Fax.