IMPORTANT POINT
In a case of fight between two groups who are armed with weapons, common of object of the unlawful assembly is to be inferred from the attack on the deceased persons and the nature of injuries inflicted.

ORDER

K. Jayachandra Reddy, J. There are 14 appellants. They along with 25 others were tried for offences punishable under Sections 302, 302/ 34, 302/149, 232, 324 and 324/149, I.P.C. The trial court convicted l6 of them and acquitted the rest. On appeal, the High Court acquitted two of them namely A-2 and A-7 and convicted the rest. The 14 convicted accused have preferred this appeal.

2. The prosecution case is as follows.

The accused, two deceased persons and the material witnesses belong to Villages Khejuria and Dimirisena. There was a longstanding dispute between the two parties regarding possession of the lands belonging to the deity installed at Village Dimirisena. The deity owns 150 acres of lands out of which 100 acres were in possession of the tenants and the remaining 50 acres were being let out for being cultivation annually. The prosecution party claims that 40 families belonging to their party were in possession of those 50 acres of lands. Indra Kumar Patnaik, a trustee, entrusted the management of the affairs of the deity and its properties to the villagers of Dimirisena to which the prosecution party mainly belongs. There were Section 145, Cr. P.C. proceedings and a compromise and since then the prosecution party has been in possession of the land. The present dispute relates to the lands of the deity which are locally known as Panchamania lands, an area of 2.04 acres, In one of the plots, paddy was cut and just before the present occurrence, a proclamation under Section 144, Cr. P.C. was issued and both parties were restrained from going to the fields. The order under Section 144 was served on some of the accused and a notice under Section 107, Cr. P.C. also was served on the accused as to why they would not be called upon the execute bond for keeping peace. On 28.11.1974, P.W. 5 A.S.I. went to Village Dimirisena for serving the order under Section, 144 and the notice under Section 107 on some of the other accused persons. When P.W. 5 read out and explained the contents of the order to the members of the prosecution party and wanted to serve the notice, but they refused to accept the same. The members of the accused party also refused. After refusing to receive the notice, a group of about 20 to 30 members of the prosecution party went to cut paddy from the Panchamania lands. Subsequently a group of about 15 persons of the prosecution party went towards the said lands for carrying the paddy sheaves. While the second group had proceeded upto the Kalapatriri burial ground, they found that a group of 25 persons of the accused party going there with lathis, bhalis, tentas and other deadly weapons. The party was led by Mahant Gobinda Das. At the same time another group of 50 persons of the accused party came armed with various deadly weapons. The members of the accused party surrounded the members of the prosecution party. Mahant Gobinda Das fired a shot from the gun which hit Kulamani Behara (Deceased No. 1), a member of the prosecution party and he fell down on the ground. Then Gobinda. Das snatched away a tenta from the hand of acquitted accused- Chhaila Samal and stabbed Deceased No. 1. Thereafter other. persons assaulted him with deadly weapons as a result of which he died on the spot. When Kunja Samal (Deceased No. 2), came to the rescue of Deceased No. 1, he was stabbed by A-16 as a result of which he fell down on the ground. Some of the other accused persons also assaulted Deceased No. 2 as a result of which he became unconscious and subsequently died. In the course of the same incident. P. Ws. 2, 3, 4, 6, 7,8 and 9 also received several injuries. P.W.5, A.S.I. of Police, who was present on the spot, sent a report through a village servant on the basis of which a case was registered. All the injured persons were brought to Btahmagiri Hospital and the Medical Officer P.W. 11 gave first aid and sent all of them to District Headquarters Hospital at Puri. P.W. 11 recorded Ex. P-4, the dying declaration of Kunj