JUDGMENT : (Shree Chandrashekhar, J. ) : The appellants have challenged the judgment of conviction and the order of sentence of imprisonment for life with a fine of Rs.20,000/- each under section 302/149 of the Indian Penal Code; RI for 7 years under section 307 of the Indian Penal Code and RI for 2 years under section 148 of the Indian Penal Code as also RI for 5 years under section 27 of the Arms Act, passed by the learned Addl. Sessions Judge I, Bermo at Tenughat in S.T No. 200 of 1998. 2. Kamakhya Narayan Giri, Murli Giri, Om Prakash Giri, Mahendra Giri, Arun Giri, Sudama Giri and Gullu @ Gulab Chand Giri were named in Nawadih PS Case No. 63 of 1996 which was registered on 22nd August 1996 on the basis of the written report of Munshi Singh who is the brother of the deceased Tulsi Singh. 3. In his written statement which was given by Munshi Singh to the officer-in-charge of Nawadih PS, he has made specific allegations of carrying Pistol, Tangi, Lathi etc. against the above-named accused persons who according to him formed an unlawful assembly and committed murderous attacks on his brother. Accordingly, Nawadih PS Case No. 63 of 1996 was registered under sections 147, 148, 149, 323, 324, 326 and 307 of the Indian Penal Code (in short, IPC) and under section 27 of the Arms Act. 4. Later on, the offence under section 302 of the Indian Penal Code was added in the report vide order dated 29th August 1996. After the investigation, a charge-sheet was laid in the Court against all the accused persons for committing murder of Tulsi Singh in furtherance of common object of the unlawful assembly formed by them on 22nd August 1996. It has come on record that the trial in respect of Gullu @ Gulab Chand Giri was separated vide order dated 22nd August 2002 as he was found a juvenile on the date of the occurrence. It has also come on record that the trial against Sudama Giri did not continue as he passed away in the meantime. 5. To prove the charge under sections 148, 307 and 302/149 IPC and section 27 of the Arms Act as framed against the appellants, the prosecution has produced 8 witnesses amongst whom Munshi Singh is examined as PW5. 6. 5. To prove the charge under sections 148, 307 and 302/149 IPC and section 27 of the Arms Act as framed against the appellants, the prosecution has produced 8 witnesses amongst whom Munshi Singh is examined as PW5. 6. PW1 Lakhan Singh and PW5 Munshi Singh are close relatives of Tulsi Singh. PW1 who is the son of Tulsi Singh has deposed in the Court that he was present in the field which was being ploughed by Mahendra Giri and Kamakhya Narayan Giri in the morning of 22nd August 1996. His father therefore objected to ploughing of the field by Mahendra Giri and Kamakhya Narayan Giri whereupon all the accused persons surrounded him. According to this witness, Om Prakash Giri was the person who assaulted his father with sword and Tangi. He has made a similar allegation of assault upon his father with sword and Tangi by Arun Giri. He has also stated that Mahendra Giri assaulted his father with Farsa on his hand. 7. PW1, PW2 and PW5 have made allegations of firing upon Tulsi Singh with a Pistol against Kamakhya Narayan Giri. PW1 has also made allegation of firing upon Raju Singh against this accused. PW2 has also made a similar allegation against him of firing at Raju Singh. But, at the same time, he has also stated that Mahendra Giri fired Pistol shot at Tulsi Singh which hit him around his navel area. However, the most inconsistent part of the testimony of PW1 and PW2 is that they have made allegations of firing at Tulsi Singh by Pistol by two persons, Kamakhya Narayan Giri and Mahendra Giri. 8. Therefore, there is inconsistency in the prosecution's evidence of causing firearm injury to Tulsi Singh because Dr. Rajendra Prasad Singh who tendered evidence as PW7 has found only one gun-shot injury on his left inguinal region with an exit wound on his left side of 3rd lumbar vertebra. 9. Against Om Prakash Giri and Arun Giri, PW1 has made allegations of causing injuries with sword and Tangi. PW1 has stated that Om Prakash Giri attacked Tulsi Singh with sword and also caused head injury with a Tangi. This witness has also stated that Arun Giri caused shoulder injury to Tulsi Singh with a sword and has assaulted him with a Tangi on his head. PW1 has stated that Om Prakash Giri attacked Tulsi Singh with sword and also caused head injury with a Tangi. This witness has also stated that Arun Giri caused shoulder injury to Tulsi Singh with a sword and has assaulted him with a Tangi on his head. The further evidence of PW1 is that Mahendra Giri had also assaulted Tulsi Singh with a Farsa on his hand. 10. PW7 has found incised injury over left temporal region of Tulsi Singh of the size of 2½'' x ¼'', scalp deep, and incised wound over his left elbow joint. 11. These injuries are corresponding to the assault made by Om Prakash Giri, Arun Giri and Mahendra Giri. 12. PW2 has made a specific allegation against Om Prakash Giri of causing sword injury over hand of Tulsi Singh. However, PW5 has not made any allegation of assault upon Tulsi Singh by Om Prakash Giri, Mahendra Giri and Arun Giri. 13. This is also the prosecution evidence coming through PW1, PW2 and PW5 that Murli Giri has caused Lathi injury upon Shamu Singh @ Shambhu Singh. However, Shambhu Singh has not been examined in the Court nor has the injury report establishing Lathi injury upon his person been produced. And, against Arun Giri, the only evidence produced by the prosecution is through PW1 who has stated that Arun Giri has caused shoulder injury with a sword and head injury with a Tangi upon Tulsi Singh. 14. The trial Judge has held as under: “27. It is argued that none of the witnesses has supported to the prosecution case in toto and whole prosecution case comes under shadow of suspicion and it is argued that prosecution has thrown it's own case and has failed to prove it and his prayer is to apply the principle of ''Falsus in uno falsus in omnibus'' i.e. false in one thing false in all. From perusal of the record I find that it is correctly argued that this is counter case of Nawadih P.S. Case No. 64/96. It is correctly argued that P.W.3 Barhan Mahto and P.W.6 Mahabir Mahto have been declared hostile and they have not supported to the prosecution case and P.W.4 Chaita Mahto has deposed in para-6 that he has not identified to the accused. It is correctly argued that P.W.3 Barhan Mahto and P.W.6 Mahabir Mahto have been declared hostile and they have not supported to the prosecution case and P.W.4 Chaita Mahto has deposed in para-6 that he has not identified to the accused. As regard the place of occurrence, as per prosecution case occurrence has been take place in the field while as per P.W.1 and P.W.2 Tulsi Singh was assaulted at his “Hethbari' or on the way i.e. Pagdandi. I am of the view that this make no contradiction. It never came in the category of major contradiction. P.W.2 has deposed in para-13 that the field is near to his home so there was no remarkable differences in between the places of occurrence. I find no force in the contention of the learned defence lawyer that there is major contradiction regarding the place of occurrence. From the perusal of the prosecution witnesses and defence evidence it is crystal clear that the motive behind the occurrence is land dispute. Regarding manner of occurrence, as per prosecution case Arun Giri had assaulted to Tulsi Singh by means of sword. P.W.1 has supported this fact. P.W.1 has also deposed that Murli Giri assaulted to Shambhu Singh by means of lathi and Sudama Giri had assaulted to Munshi Singh by means of arrow which pierce in his neck. P.W.2 has also supported this fact that Sudama Giri assaulted to Munshi Singh by means of arrow and Murli Giri had assaulted to Shambhu Singh by means of lathi. P.W.5 has deposed that Sudama Giri had assaulted him by means of arrow and Murli Giri had assaulted to Shambhu Singh by means of lathi. Apart from it as per prosecution case, Tulsi Singh had received cut injury in his hand and sword injury at his shoulder. According to the prosecution, this injury was caused by Arun Giri and Kamakhya Giri. P.W.1 has deposed that Arun Singh had caused sword injury on Tulsi Singh and other accused Arun Giri and Om Prakash Giri had also caused injuries on Tulsi Singh by means of Tangi while Kamahya Giri had fired from the pistol on Tulsi Singh. P.W.7 Dr. Rajendra Prasad Singh who had conducted postmortem on the dead body of Tulsi Singh found antemortem injury on the left tomporal region of the skull. P.W.7 Dr. Rajendra Prasad Singh who had conducted postmortem on the dead body of Tulsi Singh found antemortem injury on the left tomporal region of the skull. Incised injury about 2½ '' x ¼'' x scalp deep and his left elbow joint was cut completely due to incised wound leaving only skin on the dorsal surface. There was also gun shot injury on his left enjoinal region with an exit wound. Skull injury was fatal in nature and might have been caused by a sharp cutting weapon. The cause of death is due to shock and haemourrhage. P.W.5 has deposed that Kamakhya Giri had caused bullet injury on Tulsi Singh by means of pistol. While P.W.2 has deposed Mahendra Giri caused bullet injury on Tulsi Singh by pistol. The defence has taken the plea that accused have not committed such injuries to deceased Tulsi Singh and others and whatever they have acted in their self defence. From perusal of the record it appears that Nawadih P.S. Case No. 64/96 has been registered U/S 147, 148, 149, 307, 323, 324 I.P.C while Nawadih P.S. Case No. 63 of 96 charge sheet was submitted U/S 147, 148, 149, 323, 324, 307, 302 I.P.C. It shows that on the said date and time of the offence, occurrence has occurred in between the parties. There is no doubt regarding the death of deceased Tulsi Singh and as per P.W.7 death was caused due to shock and haemorrhage and deceased had received fatal injury on his skull and gun shot injury. The prosecution witnesses have clearly deposed that all the accused persons came there and surrounded to the informant, deceased Tulsi Singh and Shambhu Singh. Under such circumstances I am of the view that the principle of ''Falsus in uno falsus in imnibus'' will not apply. It is untenable even if major portion of the evidence is often to be deficient in case residue evidence is sufficient to the guilt of the accused. Relationship is not a factor of credibility of witness while counter case itself proved that occurrence has taken place. I find that the judgments cited by the defence lawyer i.e. 2011 Cr.L.J. 237. 2011 (2) East. Cr.C.136 (Pat) and 2012 East. Relationship is not a factor of credibility of witness while counter case itself proved that occurrence has taken place. I find that the judgments cited by the defence lawyer i.e. 2011 Cr.L.J. 237. 2011 (2) East. Cr.C.136 (Pat) and 2012 East. Cr.C. 35 have no application in this case as the fact and evidence cited in the judgments of Hon'ble Courts are not same of the fact and evidence adduced in the present case. Considering the aforesaid discussions I came to the conclusion that prosecution has successfully proved the charges against the accused persons U/S 148, 307, 302/149 I.P.C. and Section 27 of the Arms Act. 28. In the result, I find and hold that the accused persons namely Kamakhya Narayan Giri, Murli Giri, Om Prakash Giri, Mahendra Giri and Arun Giri are guilty under the charges framed U/S 148, 307, 302/149 I.P.C. and U/S 27 of the Arms Act and they are convicted under said sections. They are on bail. Their bail bonds are hereby cancelled and they are taken into custody. Fix 9.8.2012 for hearing on sentences.” 15. Section 149 IPC which envisages vicarious liability of an accused for the act(s) committed by other accused persons(s) contemplates two situations viz. (i) participation of the accused to achieve common object of the unlawful assembly and (ii) knowledge of the accused that an offence may be committed in prosecution of common object of the unlawful assembly. 16. In “Joseph v. State Rep. by Inspector of Police” (2018) 12 SCC 283 the Hon'ble Supreme Court has held as under: “11. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts: 11.1. 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. 11.2. 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. 11.3. 11.2. 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. 11.3. 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.” 17. Therefore, before the appellants can be roped in with the aid of section 149 of the Indian Penal Code it is necessary for the prosecution to establish that (i) the accused participated in the occurrence the common object of which was to commit murder of Tulsi Singh and attempt to commit murder of PW1 Lakhan Singh and PW5 Munshi Singh, or (ii) the appellants had knowledge that in prosecution of common object of the unlawful assembly death may be caused. However, the prosecution evidence laid during the trial of S.T No. 200 of 1998 is not consistent as regards common object of the unlawful assembly to commit murder of Tulsi Singh. 18. As noticed above, the allegation of firing upon Tulsi Singh has been made against Kamakhya Narayan Giri by PW1 and Mahendra Giri by PW2, whereas only one firearm injury has been found on the person of Tulsi Singh. But Mahendra Giri against whom the allegation of firing upon Tulsi Singh has been made has died during pendency of the present criminal appeal. Raju Singh was not produced during the trial and there is allegation of holding Lathi and firing Arrow against few others. But Mahendra Giri against whom the allegation of firing upon Tulsi Singh has been made has died during pendency of the present criminal appeal. Raju Singh was not produced during the trial and there is allegation of holding Lathi and firing Arrow against few others. In the aforesaid state of affairs, it is difficult to hold that the appellants have participated in the occurrence with common object of committing murder of Tulsi Singh. 19. This is the prosecution's case that the accused persons had formed an unlawful assembly as envisaged under section 141 IPC and committed maarpit. However, the appellants have produced several sale-deeds to demonstrate that the subject-property was owned by them and it was the prosecution party which started the quarrel in the morning of 22nd August 1996. This is also a matter of record that a counter-case vide Nawadih PS Case No. 64 of 1996 was lodged by Om Prakash Giri alleging assault upon atleast three persons by the prosecution party of the present case. 20. Dr. Dinesh Kumar who tendered evidence as DW4 has stated in the Court that he examined Om Prakash Giri, Kamakhya Narayan Giri and Murli Giri who were brought before him on 22nd August 2006 in injured condition – DW4 has proved the injury reports. 21. The trial Judge has referred to the defence evidence in paragraph no. 24 of the judgment under challenge. The trial Judge has noticed that two lacerated injuries were found on the person of Kamakhya Narayan Giri; both injuries were simple in nature and caused by hard and blunt object. DW4 has also observed two lacerated wound over lateral side of right thigh and on the right arm and one incised wound over front of scalp of Om Prakash Giri – all injuries were simple in nature. 22. On 22nd August 1996, DW4 has also examined Murli Giri and found one punctured wound on his left thigh and wound of exit over lateral side of middle of his left thigh. 23. DW4 has rendered an opinion that injuries caused to Murli Giri were grievous in nature. 24. In “State of Haryana v. Chandvir” (1996) 8 SCC 678 the Hon’ble Supreme Court has held that in a case of free fight, section 149 IPC cannot be applied. 25. 23. DW4 has rendered an opinion that injuries caused to Murli Giri were grievous in nature. 24. In “State of Haryana v. Chandvir” (1996) 8 SCC 678 the Hon’ble Supreme Court has held that in a case of free fight, section 149 IPC cannot be applied. 25. In “Kashi Rai v. State of Bihar” 1994 Supp (1) SCC 551 the Hon’ble Supreme Court has observed as under : “6. ... But taking into consideration all the facts and surrounding circumstances of the case to us it looks as though it was a free fight where both the parties collected into groups with the determination to fight. In such a situation as to who started the fight is not very material. 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. ...” 26. For the aforesaid reasons, we hold that the prosecution has failed to establish that the appellants were part of an unlawful assembly the common object of which was to commit murder of Tulsi Singh and attempt to murder Munshi Singh and other two persons. Therefore, we are of the opinion that the prosecution has failed to establish the charge under section 302/149 IPC and section 27 of the Arms Act against the appellants and, accordingly, conviction of the appellants for committing the said offences is set-aside. The conviction of the appellants under section 148 IPC is also set-aside. 27. The gist of the offence under section 307 IPC is that the victim finally survives. To prove the offence under section 307 IPC, the prosecution is required to produce such evidence which would establish that had the act committed with intention or knowledge been accomplished the accused would be guilty of murder. However, there is absolutely no evidence produced by the prosecution that the appellants assaulted PW5 and other two with such an intention or knowledge as envisaged under section 307 IPC. 28. Accordingly, conviction of the appellants under section 307 IPC is set-aside. 29. However, there is absolutely no evidence produced by the prosecution that the appellants assaulted PW5 and other two with such an intention or knowledge as envisaged under section 307 IPC. 28. Accordingly, conviction of the appellants under section 307 IPC is set-aside. 29. Having regard to the manner of occurrence and allegation of firing made against him, Kamakhya Narayan Giri is convicted and sentenced to RI for 10 years under section 304 Part-I IPC. 30. Criminal Appeal (DB) No. 1007 of 2012 qua Kamakhya Narayan Giri who is the appellant no.1 is partly allowed to the aforesaid extent. 31. Against Om Prakash Giri, PW1 and PW2 have stated that he has caused sword and Tangi injuries to Tulsi Singh. At the same time, PW1 has levelled a similar allegation of causing sword and Tangi injuries to Tulsi Singh by Arun Giri. The injury no. (i) which is scalp deep on the left temporal region of the skull and injury no.(ii) which is on the left elbow joint of Tulsi Singh are grievous injuries. Interestingly, PW1 has levelled allegation of causing Farsa injury on the hand of Tulsi Singh by Mahendra Giri also. Since there are allegations against three persons of causing injuries upon Tulsi Singh, no definite finding can be recorded about the accused who has caused such injuries to Tulsi Singh. However, the prosecution has established their presence at the time of occurrence and participation in the occurrence in which grievous injuries were caused to Tulsi Singh. 32. PW7 has not rendered an opinion in the Court that the injury nos. (i) and (ii) were likely to cause death and while so, the appellant nos. 3 and 5, namely, Om Prakash Giri and Arun Giri are held guilty for committing the offence under section 325 IPC. 33. Therefore, Om Prakash Giri and Arun Giri both are convicted and sentenced to RI for 5 years under section 325 IPC. 34. As regards the appellant no.2, namely, Murli Giri there is no legally admissible evidence produced by the prosecution except omnibus statements made by PW1, PW2 and PW5 that he was holding Lathi and assaulted Shambhu Singh, who never came in the dock. 35. Therefore, the appellant no.2, namely, Murli Giri is acquitted of all the charges framed against him. 36. Mr. 35. Therefore, the appellant no.2, namely, Murli Giri is acquitted of all the charges framed against him. 36. Mr. Bhola Nath Ojha, the learned APP informs the Court that all the appellants have remained in custody for more than 10 years. 37. Accordingly, the appellants, namely, Kamakhya Narayan Giri, Murli Giri, Om Prakash Giri and Arun Giri shall be set free forthwith, if not wanted in connection to any other case. 38. In the result, Criminal Appeal (DB) No. 1007 of 2012 is partly allowed qua the appellants, namely, Kamakhya Narayan Giri, Om Prakash Giri and Arun Giri to the aforesaid extent, and is allowed qua the appellant, namely, Murli Giri. 39. This Court appreciates the assistance rendered by Mr. Mukesh Kumar, the learned Amicus. The learned Amicus shall be paid Rs.5,500/- for each date of hearing. The fee for the learned Amicus shall be paid by the Department of Home, Government of Jharkhand. 40. Let the lower Court records be transmitted to the Court concerned, forthwith. 41. Let a copy of the Judgment be transmitted to the Court concerned through FAX.