The prosecution must prove the formation of an unlawful assembly with a common object to commit an offense in order to establish the guilt of the accused under Section 149, I. P. C.

V. GOPALASWAMY, J.

( 1 ) THIS appeal is preferred against the judgement of the learned Additional Sessions Judge, Sambalpur in S. T. No. 13/1 of 1982 convicting the five appellants under Sections 148, 325/149 and 323, I. P. C. and sentencing each of them thereunder to undergo R. I. for two years on each of the first two counts and to undergo R. I. for one year on the 3rd count, with a direction that the sentences so imposed should run concurrently.

( 2 ) THE prosecution case, briefly stated, is as follows : on 13-8-80 at about noon-time the accused persons placed a 'dhair' (an instrument for catching fish) on the water channel leading from the, Village tank to the Land of deceased Mandhata Patel. As a result of the placing of the 'dhair' the flow of the water in the channel was obstructed and water overflowed into the land of the deceased resulting in the deposit of sand in his land. On coming to know about it the deceased came to the place where the 'dhair' was kept and raising objection about it, carried away the 'dhair' despite protests of the accused parsons, stating that he would place the matter before the Panchayat and show them the 'dhair'. Sometime thereafter as the deceased and his wife came out of their house to dry boiled paddy, the six accused persons dragged deceased Mandhata to a place in front of their house and assaulted him there with a Bhar stick and lathis causing fatal injuries on his person. When Banamali Patel (P. W. 14) the brother of the deceased, and Shanti Patel (P. W. 11), the wife of the deceased, intervened to rescue the deceased from being further assaulted, the accused persons assaulted there also and pelted stones them. The deceased was taken to Burla hospital for better treatment and there he died on 15-8-80. Banamali Patel reported about the occurrence to the police and on the basis of his report, the police proceeded with the investigation of the case and after completion of the investigation filed the charge-sheet against the appellants and one Pandaba Patel, since acquitted.

( 3 ) THE accused persons pleaded that the occurrence had not taken place in the manner alleged by the prosecution. According to the defence the deceased and his brother P. W. 14 forcibly entered into the house of the accused persons by breaking open the door and attempted to assault accused Chinu and his son Parricide Patel when they shouted and on hearing their shouts, accused Shankar, Mandhata and Jaga, the three other sons of Chinu arrived there each holding a stick and thereafter Banamali and the deceased assaulted the accused persons and in the course of such assault, as P. W. 14 attempted to assault accused Jaga, the latter sat down, when the blow given by P. W. 14 hit the hedge of the deceased. The defence examined D. Ws. 1, 2 and 3 in support of their plea.

( 4 ) THE appellants and one Pandaba Patel stood their trial in the Court of Session under Sections 302/149, 323/149 and 148, I. P. C. On a consideration of the evidence, the learned Sessions Judge, while acquitting all the accused persons of the charge under S. 302/149, I. P. C. , convicted the present five accused-appellants under Ss. 325/149, 323/149 and 148, I. P. C. The sixth accused Pandaba Patel was acquitted of all the charges leveled against him So the scope of the present appeal is confined to it assessment of the evidence placed on record to find out if the prosecution could successfully prove the charges under Sections 325/149, 323/149 and 148. I. P. C. against the appellants.

( 5 ) THE prosecution has examined in all 15 P. Ws. to prove its case. P. W 1 is I. P. Pujari who conducted the post-mortem examination over the dead body of the deceased. P. W. 1 is Dr. Manorama Satapathy who examined P. Ws. 11 and 14 and accused Mandhata, Jagadish and Parsadi regarding their injuries. P. W. 3 is a rickshaw puller who does not state anything material. P. W. 4 witnessed the inquest and he was also a seizure witness. P. Ws. 5 and 13 were examined to pro