The mere presence of individuals at the scene of an altercation does not necessarily establish the formation of an unlawful assembly with the common object of committing murder. The prosecution must prove the requisite common object or knowledge among the individuals to commit murder.

1. There are four appellants in this appeal, out of whom, Asharfi Yadav has been found guilty of the offence under Section 302, IPC and sentenced to undergo rigorous imprisonment for life. The remaining three appellants have been found guilty of the offence under Sections 302/149, IPC, and have also been sentenced to undergo rigorous imprisonment for life. Though they have been found guilty of the offence under Section 147, IPC, no separate sentence has been passed. These appellants along with one Mahadevi were put up for trial before the Sessions judge, Begusarai, in Sessions Case No. 14 of 1986. The trial Court by its judgment and order dated 22nd June, 1989 found the appellants guilty as aforesaid.

2. Appellant No. 1 Asharfi Yadav who has been convicted of the offence under Section 302, IPC has died and, therefore, his appeal abates.

3. The occurrence is said to have taken place on 16.4.1983 at about 9 p.m. in the common angan of the Informant and the appellants in which, according to the prosecution, as many as 12 persons took part in assaulting the deceased Garbhu Yadav. On sustaining injuries he breathed his last soon after the assault.

The prosecution case is that the appellants and others were variously armed with lathis, Lodhi (grinding stone) and brick bats.

4. At about 11 p.m. on the date of occurrence, the Investigating Officer came to the place of occurrence, and recorded the fardbeyan of Ramadhar Yadav, PW 4, the son of the deceased. In his fardbeyan, the Informant, stated that at about 9 p.m. appellant No. 2 Ram Bilash Yadav came to his handpump to take water. On account of family dispute, his father Garbhu Yadav, deceased, objected to Ram Bilash Yadav taking water from his handpump. Ram Bilash Yadav was enraged and he dismantled the handle of the handpump and was taking it away. Seeing this, his father Garbhu, deceased, objected saying that the handpump belonged to him and, therefore, he should not take away the handle. Thereafter, Ram Bilash Yadav abused his father, and his father also abused Ram Bilash Yadav. Ram Bilash Yadav called other members of the family 11 in number whose names have been mentioned in the fardbeyan. Those persons came armed with lathies, brick bats and Lodhia and started assaulting his father. The specific role assigned in the fardbeyan is to appellant No. 2 Ram Bilash Yadav who is said to have assaulted his father with stone hitting him on his chest. The others assaulted his father with lathis. His father Garbhu Yadav, deceased, fell down and was writhing in pain. The Informant and his wife raised an alarm and 3 villagers, whose names are mentioned in the fardbeyan and others came running to the place of occurrence and witnessed the assault on his father and also intervened to save him. However, his father died.

5. It may here be stated that none of the witnesses who are said to have arrived on alarm being raised by the Informant and his wife, have been examined as witnesses in this case. The Investigating Officer has also not been examined. Out of 12 persons named in the fardbeyan, only four were put up for trial. The fifth accused put up for trial was Mahadevi, who was not named in the First Information Report. Apparently, the Investigating Officer found no case against the remaining persons named in the fardbeyan.

6. At the trial, 7 witnesses were examined, out of whom, PWs 1 to 5 are the witnesses of the occurrence while PW 6 is the doctor who conducted the postmortem examination on the dead-body of the deceased. PW 7 is a formal witness who has proved the handwriting of the Investigating Officer who had recorded the fardbeyan and the inquest report.

7. PW 1 Ram Swarath Yadav was the son of the deceased, but he stated that he had not seen the occurrence. PW 2 Shanti Devi in her examination in-chief appeared to be an eye-witness, but in her cross-examination admitted that she came to the place of occurrence after Garbhu Yadav had been assaulted, whose body she found lying in