JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. We have already heard Mr. Amitabh, learned amicus curiae appearing for the appellants and Mr. Pankaj Kumar, learned P.P. appearing for the State. 2. Instant criminal appeal was preferred by 14 appellants out of them appellant No.6 Mahendra Koeri, appellant No.8 Krishna Koeri, appellant No.9 Godhu Koeri and appellant No.12 Chandi Charan Singh @ Chandi Prasad Singh have been died and their appeal have been abated. The name of surviving appellants have been renumbered and this appeal is heard on behalf of the aforesaid alive appellants. 3. The appellants have challenged the judgment of conviction and sentence dated 07.02.2003 passed by learned Additional Judicial Commissioner-II, Khunti in S.T. Case No.107 of 1991, whereby and whereunder the appellants have been held guilty for the offences under Sections 148, 302/149 and 324 of the Indian Penal Code and sentenced to undergo imprisonment for life for the offence under Section 302/149 of the I.P.C. Further, sentenced to undergo R.I. of two years for the offence under Section 148 of the I.P.C. and R.I. of two years for the offence under Section 324 of the I.P.C. All the sentences are directed to run concurrently. FACTUAL MATRIX 4. Factual matrix giving rise to this appeal is that on 05.11.1990 at about 10:00 a.m., the informant, Dinesh Prasad Koeri, along with his brother, uncle and other family members were harvesting paddy crops in their field, meanwhile, 10 to 15 accused persons came from the South of the village and 10 to 15 persons from the Eastern side armed with bow, arrow, spade, tabla and tangi etc. It is alleged that when the informant party with a view to save themselves started running, they met with the present appellants who were protesting the harvesting of paddy crops. It is further alleged that Anant Bhusan Singh (Manki) (not appellant in this case) assaulted the father of the informant by farsa, Chandi Prasad Singh (since deceased) and Mangal Singh @ Tej Narayan Singh (not appellant in this case) assaulted the uncle of informant by tabla, Mahiram Koeri was assaulted by Madhu Koeri (appellant No.6), Godhu Koeri (since deceased) and Sona Ram Koeri (appellant No.7). It is further alleged that the informant was also assaulted by Mahendra Koeri (since deceased) and Gurupodo Koeri (appellant No.10) by tabla due to which he sustained injury on his neck, head, right hand and on both leg. It is further alleged that the informant was also assaulted by Mahendra Koeri (since deceased) and Gurupodo Koeri (appellant No.10) by tabla due to which he sustained injury on his neck, head, right hand and on both leg. Anyhow, the informant managed to flee away raising halla then Madan Koeri and Govind Koeri also ran to save their life when other villagers assembled then accused persons fled away. It is further alleged that the father and uncle of the informant died on the spot. The informant and Mahiram were seriously injured and got their treatment at Sonahatu hospital. The motive behind the occurrence is alleged that the paddy field belongs to the informant party being their ancestral property for which a proceeding under Section 144 of the Code of Criminal Procedure was also initiated between the parties in the year 1988 and decision was made in favour of informant. Mahendra Koeri had earlier also caused mischief in the house of the informant. On the basis of above information, Sonahatu P.S. Case No.59 of 1990 dated 05.11.1990 was registered for the offences under Sections 147, 148, 149, 302, 448, 427 and 379 of the I.P.C. against the 17 accused persons. 5. After completion of investigation, charge-sheet was submitted against 17 accused persons and one Mangal Singh Munda was declared juvenile. The accused persons Anant Singh Munda, Funny Singh Munda died during pendency of trial, hence, the proceedings against them were dropped. 6. The above named appellants denied the charges and claimed to be tried. 7. In the course of trial, altogether 12 witnesses were examined by the prosecution. Apart from oral testimony of witnesses, following documentary evidence have been adduced :- Exhibit 1 : Seizure list Exhibit 2 & 2/1 : Carbon copy of Inquest Report. Exhibit 3 & 3/1 : Postmortem Report of the deceased Exhibit 4 : Signature of witness on fardbeyan Exhibit 5 : Injury report of informant Dinesh Prasad Koeri 8. The case of defence is denial from occurrence and false implication due to land dispute and previous enmity and criminal cases between the parties. The defence has examined one witness Banwari Lal Jaiswal who has proved certified copy of F.I.R. in connection with Sonahatu P.S. Case No.60 of 1990 as Ext.A, and Fardbeyan of the above F.I.R. as Ext.B; Deposition of Godhu Koeri in S.T. Case No.35 of 1993 marked as Ext.C and deposition of Dr. The defence has examined one witness Banwari Lal Jaiswal who has proved certified copy of F.I.R. in connection with Sonahatu P.S. Case No.60 of 1990 as Ext.A, and Fardbeyan of the above F.I.R. as Ext.B; Deposition of Godhu Koeri in S.T. Case No.35 of 1993 marked as Ext.C and deposition of Dr. Narendra Kumar Sinha in S.T. Case No.35 of 1993 marked as Ext.C/1. 9. The learned trial court after apprising and appreciating the evidence of the respective parties arrived at conclusion of guilt of the appellants. Accordingly, held the appellants guilty and sentenced them as stated above, which has been assailed in this appeal. 10. Learned amicus curiae has vehemently argued that the place of occurrence is alleged to be Kopelongbad field where the informant parties were harvesting paddy crops with sickles but from the place of occurrence, no sickles were seized neither blood mark nor any paddy plants stained with blood have been seized during investigation. The Investigating Officer of the case has also not been examined to exactly prove the place of occurrence. The prosecution witnesses themselves namely P.W.8, Jitu Mahto, and P.W.9, Govind Mahto, have admitted that at the time of alleged occurrence accused Anant Singh Munda was not present rather he was at his house. It is further submitted that the eye witnesses mentioned in the F.I.R. namely Madan Koeri and Gobind Koeri and other family members of the informant have also not supported the prosecution story as regards manner and place of occurrence. P.W.1, Baby Devi and P.W.2, Pramila Devi, were not named in the F.I.R. as an eye witness of the occurrence and they have given altogether different story. The postmortem report of two deceased persons also does not correspond with the manner of assault as alleged against the named appellants. It is further submitted that in the F.I.R. itself, the informant (P.W.6) has attributed specific allegation against Anant Bhushan Singh Munda, Funny Singh, Mangal Singh, Mahendra Koeri, Krishna Koeri, Godhu Koeri, Chandi Charan Singh, Ganesh Modak, Madhu Koeri, Gurupodo Koeri and Sona Ram Koeri, out of them Anant Singh Munda and Funny Singh Munda died during pendency of trial, Mangal Singh Munda was declared juvenile and Chandi Prasad Singh @ Chandi Charan Singh, Mahendra Koeri, Krishna Koeri, Godhu Koeri have been died, against whom there was specific allegation. The informant has levelled general and omnibus allegation against other appellants without attributing any specific overt act. The learned trial court has failed to discuss any "common object" of the appellants in prosecution of which, all have committed the offence as alleged. It is not discussed at all as to how the alive appellants named above were member of an unlawful assembly armed with deadly weapon. Therefore, above named appellants have been held guilty in mechanical manner ignoring the important admissions/oral testimonies of the prosecution witnesses without appreciating their credibility as regards the involvement of above named appellants in the alleged offence. The learned trial court has further failed to take into notice that there was no evidence about any common object as defined in Section 141 of the I.P.C. Therefore, all the appellants cannot be convicted with the aid of Section 149 of the I.P.C. As such, impugned judgment of conviction and sentence of the appellants is absolutely illegal and liable to be set aside. This appeal is fit to be allowed. 11. On the other hand, Mr. Pankaj Kumar, learned P.P. appearing for the State defending the impugned judgment of conviction of appellants has submitted that there is specific allegation against all the appellants that they were armed with deadly weapons and forming an unlawful assembly protested against harvesting the paddy crops by the informant party on their land by using force and violence. In the course of occurrence, two persons have been died due to brutal assault given by the members of unlawful assembly. Some injuries were also caused to the opponents/appellants and they have also brought on record the copy of F.I.R. and fardbeyan etc. as Ext.A and Ext.B which also fortifies that the occurrence took place and place of occurrence also cannot be disputed. Under such circumstances, non- examination of Investigating Officer does not make any difference or in any manner prejudice the defence. The appellants have got all opportunities to rebut the prosecution evidence and setup their own defence. The learned trial court has very wisely and aptly analyzed, scanned and appreciated oral as well as documentary evidence of respective parties and rightly recorded the findings of guilt of the appellants which suffers from no illegality or infirmity calling for any interference by way of this appeal which is fit to be dismissed. The learned trial court has very wisely and aptly analyzed, scanned and appreciated oral as well as documentary evidence of respective parties and rightly recorded the findings of guilt of the appellants which suffers from no illegality or infirmity calling for any interference by way of this appeal which is fit to be dismissed. In support of his aforesaid argument, learned Public Prosecutor for State has placed reliance upon reported judgment of Hon'ble Apex Court in the case of Lalji and Ors. vs. State of U.P. , (1989) 1 SCC 437 . 12. The only point for determination in this appeal is that as to whether the impugned judgment of conviction and sentence of the appellants suffers from any error of law calling for any interference by way of this appeal and not legally sustainable? 13. We have gone through the record of the case along with impugned judgment and order in light of contentions raised on behalf of both side. 14. It appears that in the course of trial altogether 12 witnesses were examined by the prosecution out of them P.W.4 Haripado Mahto is not an eye witness, P.W.8 Jitu Mahto and P.W.9 Govind Mahto are hearsay witnesses and both of them have not seen the incident. P.W.5 Raj Kishore Munda is a witness of inquest report of deceased. The sterling witnesses are P.W.6 Dinesh Prasad Koeri, who is informant-cum-injured eye witness, P.W.1 Baby Devi, P.W.2 Pramila Devi, P.W.3 Mahiram Koeri and P.W.11 Rajendra Prasad Koeri are the eye witnesses. P.W.7 Dr. Ajit Kumar Choudhary conducted the post-mortem of deceased persons and P.W.12 Dr. Narendra Kumar Sinha has examined the injured Dinesh Koeri. 15. P.W.-6 Dinesh Prasad Koeri is informant-cum-injured eye witness. He has corroborated the version contained in the F.I.R. According to him, occurrence took place on 05.11.1990 at about 9-10 a.m., when he along with other family members namely his uncle Pusu Koeri, father Koka Koeri, brother Rejendra Koeri, mother Pramila Devi, aunt Baby Devi, Mahiram Koeri, Govind Koeri and Madan Koeri etc. had gone to harvest paddy crops, meanwhile, 10 to 15 persons arrived towards southern side and 10 to 15 persons from east side armed with various weapons and surrounded the informant party. had gone to harvest paddy crops, meanwhile, 10 to 15 persons arrived towards southern side and 10 to 15 persons from east side armed with various weapons and surrounded the informant party. Out of several accused persons, he identified (1) Anant Bhusan Singh, (2) Mangal Singh @ Tej Narayan Singh, (3) Chandi Singh, (4) Funny Singh, (5) Ganesh Modak, (6) Ghasu Koeri, (7) Krishna Koeri, (8) Chutku Koeri, (9) Madhu Koeri, (10) Maghua Koeri, (11) Godhu Koeri, (12) Mahendra Koeri, (13) Gurupodo Koeri, (14) Neil Mohan, (15) Srikant, (16) Balram and (17) Sona Ram. He also saw Ganesh Modak armed with gun, Funny with tangi and other accused persons were bearing tabla and some miscreants were standing at a distance with bow and arrow to whom he could not identify. He has specifically stated that Anant Bhusan Singh assaulted to his father by tabla who started fleeing then he was chased and killed in the field of Bavri Koeri. He has further stated that his uncle Pusu Koeri was assaulted by Mangal Singh and Chandi Singh Munda by tabla causing several sharp cutting injuries, who also died on the spot. Mahiram was assaulted by Godhu Koeri, Madhu Koeri and Sona Ram Koeri by tabla who also fell down in the field sustaining injuries (no injury report of Mahiram has been brought on record). This witness has further stated that Mahendra and Gurupodo Koeri surrounded him and started assaulting by tabla causing injuries on head, right hand, both legs, fingers, forehead and neck but any how he managed to flee away raising alarm. He was brought to Sonahatu hospital in unconscious state and after regaining consciousness, his fardbeyan/statement was recorded by police at the hospital. Due to injury on right hand, he put his L.T.I. over his statement. He got his treatment about one month in the Sonahatu hospital. He has further stated that the place of occurrence is ancestral land of this witness and in connection with this land, litigation was also ended in his favour which was fought with Ghasu Devi. Due to injury on right hand, he put his L.T.I. over his statement. He got his treatment about one month in the Sonahatu hospital. He has further stated that the place of occurrence is ancestral land of this witness and in connection with this land, litigation was also ended in his favour which was fought with Ghasu Devi. In his cross-examination, this witness has also admitted that paddy crop field involved in this case, was sold by wife of Jitu namely Savitri in favour of one Jaleshwari in the year 1950, which was cancelled by the Savitri Devi and again in the year 1970, the said land was sold to Fagu but he has not seen the said deed of 1970. This witness also admits in his cross-examination that in his statement before Police, he has stated that Jitu Koeri died issueless and after his death, maternal grandmother of Ghasu Koeri gifted the lands of her share in favour of her daughter Jaleshwari Devi which was got cancelled by father and uncle of this witness and the possession of land was recovered. He also admits that partition suit No.15 of 1989 has been filed by Jaleshwari Devi against informant party. He also admits that a cross-case, in respect of the same day occurrence, has been filed against him and other 15 family members by Godhu and Krishna for the offence under Section 307 of the I.P.C., i.e., S.T. Case No.35 of 1993 pending in this Court itself. He further admits that he along with other family members had gone to harvest paddy crops, hence, all family members were bearing (sickle) but he cannot tell what happened of those (sickles) . He also admits that Chandi Charan is resident of Village Banta which is situated at distance of 5 k.m. from the village of this witness. This witness has denied the suggestion of defence that this witness along with his family members assaulted to Godhu Koeri and Krishna by sharp cutting weapon who were working in their filed adjacent to the place of occurrence. This witness has denied the suggestion of defence that this witness along with his family members assaulted to Godhu Koeri and Krishna by sharp cutting weapon who were working in their filed adjacent to the place of occurrence. It is also denied that Pusu Koeri assaulted to Godhu Koeri at his field wherein chilli crop was growing and he was irrigating the same and this witness assaulted to him by danda on left leg, Pusu Koeri assaulted on neck by tabla with intention to kill and Krishna Koeri was also intercepted and assaulted by Madan Koeri by tabla. P.W.-1 Baby Devi is an eye witness of this case. According to her evidence about four years ago on Monday morning around 9– 10 a.m., she with her husband, brother-in-law and other family members had gone to harvest paddy crops in Kopelongbad field. While she along with family members were harvesting, around 17 persons including Anant Bhushan, Mangal Singh, Chandi Sahu, Mahendra, Ghasu Kisto, Madhu, Godhu, Sona Ram, Gurupodo and others arrived armed with deadly weapons. Anant Bhushan, Mangal Singh and Chandi carried tabla (sharp weapon), while the others had bows, arrows and stones. It is further deposed that Anant Bhushan struck Koka Koeri (brother-in-law) on the waist with a tabla due to which he fell down in a nearby field of Bavri Koeri. When this witness tried to intervene, Pusu Koeri went and assaulted him in the said field. Thereafter, Chandi and Mangal Singh attacked her husband and cut him with tabla on his thigh and leg in the same field. In this attack, Dinesh and Mohi Koeri were also injured. When villagers arrived, the assailants fled away. She identified Mahendra as the one who instigated the fight and she also claimed to recognize the other accused persons involved in the assault. In her cross-examination, she has specifically admitted that she does not know directions like east or west, but she regularly sees the field where the incident occurred which is near her house about 100 -150 yards from the road. She has further stated that Ganesh was carrying a gun. She has further stated that Dinesh was assaulted by Mahendra on his head, neck and right hand with tabla. She has further stated that Ganesh was carrying a gun. She has further stated that Dinesh was assaulted by Mahendra on his head, neck and right hand with tabla. She reaffirmed that the field where the incident took place is her ancestral property recorded in the name of her father-in-law Kola’s. She has denied that the disputed field ever belonged to Krishna or Ghasu. P.W.2 Pramila Devi is another eye witness of this case. According to her evidence, she along with her family members went to the field at Kopelongbad to harvest paddy. While harvesting paddy, accused persons namely Anant Bhusan, Mangal Singh, Chandi, Ghasu, Kisno, Godhu, Madhu, Madhuwa, Chitku, Sonaram, Baliram, Shrikant, Leelu, Mahendra, Gurupodo, Funny and Ganesh came there. Anant Bhushan, Mangal and Chandi were armed with tabla (sharp weapon), Ganesh was armed with gun and others were armed with bows, arrows and sticks etc. After they entered her field, one Anant Bhushan assaulted her husband with a tabla on his back due to which he fell down in Bavri Koeri’s field where Anant Bhushan again attacked and cut him. It is further stated that her brother-in-law, Pusu Koeri, was also attacked in the same field by Mangal Singh and Chandi with tabla where he died. In that incident, Dinesh (informant) was also attacked by Gurupodo and Mahendra and sustained injuries on his right hand, shoulder and forehead but he, managed to escape. After attacking her husband, her devar and Dinesh, all the accused fled away from the spot. It is further stated that Mahendra still threatens that he will continue to attack and kill her family. In her cross-examination, she has specifically deposed that she is not educated and could not describe the boundaries, but around the land where the incident took place, there are fields of Bauri, Giri, Gholtu Koeri and Sonaram. It is further deposed that she did not tell to the Police that: “On hearing of the murder, she ran to the field and saw that her husband and devar had already been killed.” It is further deposed that at the time of the incident, nobody attacked Godhu. My devar Pusu’s wife, Baby, was present with me at the spot. It is further stated that Kopelongbad where the occurrence took place does not belong to Rohit, Sukharam, Dukhu and Darji. P.W.3 Mahiram Koeri is another eye witness of this case. My devar Pusu’s wife, Baby, was present with me at the spot. It is further stated that Kopelongbad where the occurrence took place does not belong to Rohit, Sukharam, Dukhu and Darji. P.W.3 Mahiram Koeri is another eye witness of this case. According to his evidence, about 4½ years ago, on Monday morning around 10:00 A.M., he along with others (Koka, Pusu, Dinesh, Rajesh, Omila Devi, Bibi Bala, Govind, and Madan) had gone to the Kopelongbad field to harvest paddy. While they were harvesting, the accused persons armed with deadly weapons arrived and surrounded them. It is further stated that Anant Singh attacked Koka with a tabla (sharp weapon) on his waist. Koka tried to run but fell into Bavri’s field, where Anant Singh assaulted him again, causing his death. This witness also stated that Pusu Koeri was attacked by Mangal Singh and Chandi with a tabala, and Pusu also died in the same Kopelongbad field. It is further stated that Dinesh was assaulted by Gurupodo and Mahendra by tabla though wounded Dinesh managed to escape. In his cross-examination, he has deposed that the place of occurrence is in south of his house, which is only two fields away from his house. He has further deposed that the place of occurrence is about 150–200 gaj from the house of Koka. He has further clarified that Kopelongbad has around 15–16 fields, all situated together. To the north of this land, the land of Koka and Pusu, on the south, the plot of Giri Mahto, on the east side, the plot of Dholtu Koeri and on the west, the plot of Sonaram Koeri and Bajrangi is situated. This witness has firmly denied the defence suggestion that he was not present at the place of occurrence at the time of the incident. P.W.7 Dr. Ajit Kumar Choudhary who conducted postmortem on the dead body of Koka Koeri, aged about 50 years, on 06.11.1990 at about 12:30 hours had found following injuries:- Abrasion (i) 2 x 1 cm over the right cheek (ii) 2 x 2 cm over the soft scapular region (iii) 3 x 1 cm over the right scapular region Lacerated wound (i) 2 x 1 cm x scalp deep on the right occipital region with contusion of the scalp underneath. Incised wound (i) 22 x 4 cm x bone deep over the back of abdomen lower part situated transversely cutting the underlying soft tissues, blood vessels and 4th lumber vertebrae completely. (ii) 8 x 1 cm x ½ cm over left thigh lower part of lateral side. (iii) 6 x ½ x ½ cm and 3 x ½ x ¼ cm over left arm lateral side upper part. All the injuries were ante mortem. Abrasions and lacerated wound were caused by hard and blunt substance may be lathi and incised wounds were caused by heavy sharp cutting weapon. Cause of death is opined to be due to aforesaid injuries and especially due to incised wound No.(i). This witness has also conducted postmortem on the dead body of Pusu Koeri on the same day and found following injuries :- Abrasion (i) 5 x 1 cm over left infra scapular region. (ii) 6 x 1 cm on back of left abdomen. (iii) 4 x 1 cm over upper part of right glutial region. Incised wound (i) 6 x 2 cm x 5 cm over the right arm lateral side lower part cutting the underlying soft tissues and blood vessels. (ii) 1.1/2 x 1/2 x 1/2 cm lateral side upper part of right arm. (iii) 7 x 1.1 / 2 x bone deep over the left arm lateral side upper part cutting the under lying soft tissues blood vessels and bone partially with laying 4cm long from the middle end of the wound downwards. (iv) 3 x 1 x 18 / 2 cm situated 2 cm below the preceding injury. (v) 7 x 3 x 2 cm on the middle and front part of the left thigh. (vi) 10 x 3cm x bone deep over the lateral side of right thigh middle part cutting the underlying soft tissues, blood vessels and bone partially. (vii) 7 x 2cm x soft tissues over back and upper part of right leg. (viii) 4 x 1 x 1 cm over left scapular region. (ix) 5 x 1 x 1.1 / 2cm back and upper part of right thigh upper part of right thigh there was infiltration of blood and blood clot at the side of injury. All the injuries were ante mortem. Abrasions caused by hard and blunt substance and incised wounds were caused by heavy sharp cutting weapon. (ix) 5 x 1 x 1.1 / 2cm back and upper part of right thigh upper part of right thigh there was infiltration of blood and blood clot at the side of injury. All the injuries were ante mortem. Abrasions caused by hard and blunt substance and incised wounds were caused by heavy sharp cutting weapon. Cause of death is opined to be due to aforesaid injuries. Time elapsed since death 18 to 38 hours. P.W.10 Madan Mohan Koeri has proved the fardbeyan (Ext.4) and has stated that Dinesh (informant) gave his statement before the police in his presence and had put his thumb impression on it. In his cross-examination, he has mentioned that the land of Daharbad is located in Village Tetla towards the south, about half a kilometer from the village and it is ploughed by Godhu Koeri. He has further stated that at the time of the occurrence, chilli crops were sown by Madhu Koeri and Godhu Koeri was irrigating the chilli field. He has clarified that the incident occurred in Kopelongbad, which lies just before Daharbad (separated by 1–2 fields). This witness has also stated that while Godhu was irrigating the crop, Pusu, Mahiram Koeri, Rajan Koeri and Koka Koeri had gone to the field. A quarrel took place in Kopelongbad near the chilli field, during which Godhu assaulted Pusu with a kudal (spade). P.W.11 Rajendra Prasad Koeri has stated that on 05.12.1990, at about 9–10 A.M., he along with his elder brother Dinesh Prasad Koeri (informant) and other family members including Koka Koeri (father), Pusu Koeri, Mahiram, Baby Devi, Pramila Devi, Taronji Devi, Manju Kumari went to Kopelongbad to harvest paddy. While they were harvesting, the accused persons arrived, surrounded them and raised alarm. It is further stated that Anant assaulted Koka Koeri with a tabala (sharp weapon) on his waist in his field. Thereafter, Koka was then chased and murdered in the field of Bavri Koeri. It is further stated that Pusu Koeri was attacked by Mangal and Chandi with tabla and farsa in the same land and he died due to the assault. In his cross-examination, he has deposed that before the accused came, they had already harvested about four bhojhas (bundles) of paddy, but he could not say in whose name the land stood recorded. In his cross-examination, he has deposed that before the accused came, they had already harvested about four bhojhas (bundles) of paddy, but he could not say in whose name the land stood recorded. This witness has denied the defence suggestion that the land (place of occurrence) belonged to Ghasu and Jaleshwari. The witness has further denied the suggestions that the case which is filed by accused is true. P.W.12 Dr. Narendra Kumar Sinha who had examined the injured-cum-informant Dinesh Koeri on 05.11.1990 had found following injuries:- (i) One sharp cut wound over mid portion of head transversely placed 5" x 1/4" x 1/4", 4" above both ears with fresh bleeding. (ii) One sharp cut wound 1.5" x 1/2" x 1/2" over the anterior portion just above the forehead with fresh bleeding. (iii) One lacerated wound 3" x .2" x skin deep over the right anterior portion of shoulder joint. (iv) One lacerated wound posterior aspect of right wrist joint of 1.5" x .5" x .3" with compound fracture of lower end of radius. (v) One abrasion over the lower 1/3rd of anterior bone of right lower leg size 2 cm x .2 cm. (vi) One abrasion over inner aspect of left foot 4" back to the tip of the toe size 2 cm x .2 cm. (vii) One abrasion over the right side neck obliquely placed size 4 cm x .2 cm. Nature: Injury No. (iv) grievous and rests are simple. Injury Nos. (i) & (ii) caused by sharp weapon like farsa. Injury Nos. (iii), (iv), (v), (vi) caused by hard and blunt substance like lathi. In his cross-examination, he has stated that he had also examined Godhu Koeri and Krishna Koeri of same village on same day with certain injuries on them. Some of their injuries were on neck which is vital part of the body and found sharp cut and lacerated injuries on both of them. On Krishna Koeri, he found two lacerated injuries. 16. On the other hand, the case of defence is denial from occurrence and false implication due to land dispute. Some of their injuries were on neck which is vital part of the body and found sharp cut and lacerated injuries on both of them. On Krishna Koeri, he found two lacerated injuries. 16. On the other hand, the case of defence is denial from occurrence and false implication due to land dispute. It has also come from the evidence of witnesses that for the occurrence of same day Sonahatu P.S. Case No.60 of 1990 dated 06.11.1990 was also instituted by the Godhu Koeri registered for the offences under Sections 147, 148, 149, 324, 323, 307/34 of the I.P.C. in which charge-sheet was submitted and S.T. Case No.35 of 1993 was registered and simultaneously, tried by the same Additional Sessions Judge. 17. The defence has examined one witness namely Banwari Lal Jaiswal who has proved the formal F.I.R. of Sonahatu P.S. Case No.60 of 1990 and fardbeyan which is marked as Ext.A and Ext.B respectively dated 06.11.1990. From perusal, it appears that fardbeyan of one Godhu Koeri was recorded on 06.11.1990 at 11:00 a.m. and on the basis of which Sonahatu P.S. Case No.60 of 1990 was registered on 06.11.1990 at 14:00 hours under Sections 147, 148, 149, 324, 323, 307/34 of the I.P.C. The defence has also adduced documentary evidence Ext.C, deposition of Godhu Koeri in S.T. Case No.35 of 1993 arising out of Sonahatu P.S. Case No.60 of 1990, Ext.C/1 is deposition of P.W.12, Dr. Narendra Kumar Sinha, who has examined the person of Godhu Koeri (informant of Sonahatu P.S. Case No.60 of 1990) and proved his injury report. P.W.12 has proved the injury report of Godhu Koeri and Krishna Koeri in S.T. Case No.35 of 1993. 18. From perusal of Ext.B relied upon by defence which is fardbeyan of Godhu Koeri of Sonahatu P.S. Case No.60 of 1990 recorded by Officer In-Charge G. Pathak of Sonahatu Police Station Camp Tetla on 06.11.1990 stating inter alia that on 05.11.1990 at about 09:00 to 10:00 a.m. in the field of Daharbad, informant was irrigating his chilli field, meanwhile, (1) Pusu Koeri, (2) Dinesh Koeri, (3) Madan Koeri, (4) Bikha Koeri, (5) Mahi Koeri, (6) Yadav Koeri and (7) Nagen Koeri armed with deadly weapons surrounded the informant from four corners and Pusu Koeri gave a tabla blow on his neck due to which he fell down then Dinesh Koeri assaulted by danda causing injury on left leg. Krishna Koeri was also assaulted by Madan Koeri by tabla. Other accused persons namely Bavri Koeri, Gora Koeri, Dhodha Koeri, Sohrai Koeri, Baka Koeri, Ishwar Koeri and Bhola Koeri were also assisting to the above accused persons. He has also admitted land dispute with Ghasu Koeri and Pusu Koeri due to that reason forming an unlawful assembly, the accused persons have assaulted to informant party in a concerted manner. Since, informant was injured and no other male members were present in the house, hence, there was delay in lodging the report. Ext.C/1, the deposition of Dr. Narendra Kumar Sinha (P.W.12) who has examined the injured persons of both parties of this case, has examined Godhu Koeri on 06.11.1990 and found following injuries :- (i) One sharp cut wound 4" x 2" x skin deep over the posterio lateral aspect of right side neck just 1" below the ear with serum and PHs formation. (ii) One sharp cut wound encircling right side neck 3 ½" x ½" x 1" just below injury No.(i). (iii) One lacerated wound over pinna of right year with pus formation of size ½" x 1/4 " x skin deep. (iv) One sharp cut wound cutting left interior portion of thumb with pus formation ½" x 1" x 1/4". (v) The defuse swelling and pain over medial left aspect of knee. He has opined that all injuries are simple in nature. Injury Nos.(i), (ii) and (iv) caused by sharp edged weapon such as farsa and injury Nos.(iii) and (v) by hard blunt object like lathi. Time elapsed within 36 hours. On the same day, he has also examined Krishna Koeri and found following injuries :- (i) One lacerated wound posterior aspect of mid portion of right forearm size 2.5cm x 5" x .5" with pus formation. (ii) One lacerated wound just 1" above the injury No.(i)size 2.5cm x .3cm x .2cm. (iii) One sharp cut wound over posterior aspect of root of left thumb of size 2.5cm x .3cm x .5cm with pus formation. All injuries are opined to be simple in nature. Injury No.(iii) caused by sharp cut weapon and rest injuries by hard and blunt object. 19. (iii) One sharp cut wound over posterior aspect of root of left thumb of size 2.5cm x .3cm x .5cm with pus formation. All injuries are opined to be simple in nature. Injury No.(iii) caused by sharp cut weapon and rest injuries by hard and blunt object. 19. We find that the learned trial court has not discussed in its judgment as to whether any unlawful assembly was formed and as to what was its common object and whether all the accused persons have acted in prosecution of common object of all. 20. In the above context, it appears necessary to deal with the relevant provisions of law as under :- 141. Unlawful assembly.-An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is: First- To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second- To resist the execution of any law, or of any legal process; or Third- To commit any mischief or criminal trespass, or other offence; or Fourth- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. Section 142. Being member of unlawful assembly. - Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Section 143. Punishment. -Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. Section 144. Section 143. Punishment. -Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both. Section 144. Joining unlawful assembly armed with deadly weapon.-Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 146. Rioting. - Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Section 147. Punishment for rioting.-Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 148. Rioting, armed with deadly weapon.- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. - If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same me assembly, is guilty of that offence. 21. In the instant case, the charges were framed against the appellants wherein common object of unlawful assembly is shown to commit murder and attempt to commit murder of the members of informant party while they were working on their field, i.e., harvesting paddy crops. As per trend of cross-examination and suggestions to the prosecution witnesses, the accused persons/appellants are also claiming their right over the disputed land. As per trend of cross-examination and suggestions to the prosecution witnesses, the accused persons/appellants are also claiming their right over the disputed land. The ocular testimony of eye witnesses, i.e., P.W.1, P.W.2, P.W.3, P.W.6 and P.W.11 clearly goes to show that the prosecution has built up a case of unlawful assembly having common object to protest the harvesting of crops due to bonafide dispute and nothing else as defined under Section 141 of the I.P.C. The prosecution has further proved causing of injury with various deadly weapons attributed to some of the accused persons only. The cross case, i.e., Sonahatu P.S. Case No.60 of 1990 has been registered against 14 accused persons of the informant party and witnesses of this case also establish the presence of both parties at the place of occurrence and admittedly adjacent to the paddy field, the appellants also own some land wherein chilli crop was planted and they were irrigating the same. Therefore, mere presence of other persons on spot, ipso facto not sufficient to warrant their culpability. 22. It is a case wherein two persons have been murdered from the informant side and informant also got sharp cut injuries in the said incident. From the defence side also Godhu Koeri and Krishna Koeri were injured and later on died. The whole story suggests the exchange of assault from both side without any premeditation. The learned trial court has not specifically mentioned in its judgment as to the nature of common object of the appellants and whether the present appellants were member of unlawful assembly but on the basis of evidence, have convicted all the appellants for the offence under Section 148 of the I.P.C. as well as 302 read with Section 149 of the I.P.C. 23. As regards applicability of Section 149 of the I.P.C. which enunciates principle of joint liability. The Hon'ble Apex Court in the case of Lalji (supra) has held that :- "There are two essential ingredients of Section 149 viz. (1) com-mission of an offence by any member of an unlawful assembly and (2) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. (1) com-mission of an offence by any member of an unlawful assembly and (2) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Once the court finds that these two ingredients are fulfilled, every person who at the time of committing of that offence was a member of the assembly is to be held guilty of that offence. After such a finding it would not be open to the court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it. Section 149 created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. In an appeal by persons convicted under Section 302 with the aid of Section 149 IPC, the question whether a particular person was a member of that unlawful assembly at the relevant time has to be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of Section 149. The question to be examined by the court is not whether there was enough corroboration for their individual participation in the commission of the offence, but whether the accused persons were members of the unlawful assembly at the relevant time. The question to be examined by the court is not whether there was enough corroboration for their individual participation in the commission of the offence, but whether the accused persons were members of the unlawful assembly at the relevant time. From the evidence on record, it could not be held in this case that the appellants were not members of the unlawful assembly at the relevant time. Whether any specific injury could individually be attributed to them or not would not at all be material. The submission that the appellants be acquitted on ground of lack of corroboration has, therefore, to be rejected." 24. In the background of above principles of law, oral as well as documentary evidence, the role of present appellants in the alleged occurrence may be determined. Admittedly, there was counter case for the same occurrence between the parties as is revealed from Ext.A and Ext.B adduced by the defence. The genesis of occurrence is alleged to be dispute about harvesting of paddy crops from the disputed land allegedly belonging to the informant party but no documentary evidence has been adduced showing ownership or possession over the disputed land of either of the parties. It is admitted fact that when the informant parties were harvesting the paddy crops then they say 10 to 15 accused persons coming from Southern side and 10 to 15 from Eastern side armed with bow, arrow, spade, tabla, tangi etc. but who started protesting against the harvesting of paddy crops by the informant party, has not been specifically asserted whereas it is said in general manner that seeing the accused persons armed with deadly weapons, the informant party started fleeing away, then some of the miscreants started assaulting to them by their respective arms. Therefore, the main genesis of occurrence and formation of unlawful assembly with one of the common object as mentioned in Section 141 of the I.P.C. as discussed above has to be proved by the prosecution but nothing has been brought on record. The prosecution has straightforward began with allegations of assault on informant party by some of the accused persons who might have develop their common intention to assault the informant party while protesting against harvesting of paddy crops. The prosecution has straightforward began with allegations of assault on informant party by some of the accused persons who might have develop their common intention to assault the informant party while protesting against harvesting of paddy crops. Therefore, individual participation of the accused persons and possibility of their having any common object with other co-accused persons becomes a question of fact in this particular case to be dealt with in accordance with evidence of eye witnesses of the occurrence. 25. In the instant case, the most important eye witness is informant-cum-injured who has been examined as P.W.6 Dinesh Prasad Koeri. According to him, out of 30 accused persons, he identified only 17 including the present appellants and no particular arm is attributed to any of the appellants except Ganesh Modak who is alleged to bearing a gun but no gun shot is fired, is also admitted fact. As regards, main occurrence of assault, P.W.6 has stated in specific terms that his father was assaulted by Anant Bhusan Singh by tabla, who was chased up to the field of Bavri Koeri and killed. His uncle Pusu Koeri was assaulted by Mangal Singh and Chandi Singh Munda by tabla who also died on the spot. It is apparent that Anant Bhusan Singh, Mangal Singh and Chandi Singh Munda are not appellant in this appeal. Further, evidence of P.W.6 is that he himself was assaulted by Mahendra (died) and Gurupodo Koeri (appellant No.10) who assaulted him by tabla causing injuries on both legs, fingers, forehead and neck. The injury report of this witness shows that he has sustained simple injuries caused by sharp cutting weapon and grievous injuries caused by lathi i.e. hard and blunt object. There are general and omnibus allegations about assailants in the evidence of P.W.6. Another injured Mahiram Koeri has been examined as P.W.3. According to his evidence also, Anant Singh assaulted to Koka (deceased) by tabla resulting in his instantaneous death. Pusu Koeri was attacked by Mangal Singh and Chandi by tabla who also died and Dinesh was assaulted by Gurupodo and Mahendra. He has stated nothing about his own injuries and as to who was his assailant. According to his evidence also, Anant Singh assaulted to Koka (deceased) by tabla resulting in his instantaneous death. Pusu Koeri was attacked by Mangal Singh and Chandi by tabla who also died and Dinesh was assaulted by Gurupodo and Mahendra. He has stated nothing about his own injuries and as to who was his assailant. Other witnesses of facts namely P.W.1 Baby Devi and P.W.2 Pramila Devi are not mentioned in the F.I.R. as an eye witness but have been examined as eye witnesses and they have stated in the same line as P.W.6 as regards involvement of accused persons in assaulting the deceased and the informant. P.W.11 Rajendra Prasad Koeri is the brother of informant who also states the involvement of Anant Bhusan Singh in assaulting Koka Koeri who died on the spot and Pusu Koeri was assaulted by Mangal and Chandi. Although, he has also claimed to be present at the spot but sustained no injuries. 26. In the above scenario, the formation of unlawful assembly by the appellant with particular object as stipulated under Section 141 of the I.P.C. is absolutely lacking in this case. The prosecution has been able to attribute specific overt act against (i) Anant Bhusan Singh who caused death of Koka Koeri (ii) Mangal and (iii) Chandi who assaulted to Pusu Koeri by tabla causing his death and (iv) Gurupodo (appellant No.10) who assaulted to informant by tabla along with co-accused person (v) Mahendra and nothing has been whispered against appellants Nil Mohan Koeri, Bali Ram Koeri, Srikant Koeri, Chutku Koeri, Ghasu Koeri, Ganesh Modak and Maghua Koeri. They appear to have been dragged in this case only because they are family members of the defence party and without any cogent and reliable evidence have been held guilty with the aid of Section 149 of the I.P.C. for the offence of murder punishable under Section 302 of the I.P.C. Therefore, conviction and sentence of above appellants appear to be not justified under law. It further transpires that against appellant No.10 Gurupodo Koeri there is general and omnibus allegation of causing injuries to informant by sharp cut weapon, which has been proved to be simple in nature caused by sharp cutting weapon. 27. It further transpires that against appellant No.10 Gurupodo Koeri there is general and omnibus allegation of causing injuries to informant by sharp cut weapon, which has been proved to be simple in nature caused by sharp cutting weapon. 27. In view of the above discussions and reasons, we are of the definite view that the learned trial court has not properly appreciated the overall aspects of the case and the materials as brought on record by the prosecution witnesses and also failed to properly apply the relevant law as provided under Sections 141 and 149 of the I.P.C., therefore, arrived at wrong conclusion about the guilt of the appellants. 28. Accordingly, impugned judgment of conviction and sentence of the present appellants is hereby set aside. 29. This appeal is allowed. Appellants are on bail, they are discharged from the liability of their bail bonds and sureties are also discharged. 30. Pending I.A., if any, stands disposed of. 31. Let a copy of this judgment along with trial court record be sent back to concerned trial court for information and needful. 32. We take this opportunity to appreciate the assistance rendered by Mr. Amitabh, learned amicus curiae and direct the Member Secretary, High Court Legal Services Committee to process fee of Rs.7,500/- (Seven Thousand and Five Hundred only) to Mr. Amitabh within a period of four weeks from the date of receipt/production of a copy of this order. 33. Office is directed to ensure that a copy of this order is served upon Member Secretary, High Court Legal Services Committee.