JUDGMENT R.K. Shukla, J. - This Government Appeal, filed on behalf of the State of U.P. u/s 378 Code of Criminal Procedure against the ten accused-Respondents, namely, Kallu Lal, Har Jiwan, Bachan, Dwarka, Hari Prasad, Ram Kishan, Jia Lal, Mewa Lal, Om Prakash and Mithu, is directed against the judgment and order dated 4-12-1976 passed by the VIIth Additional District and Sessions Judge, Allahabad whereby he has acquitted all the accused of the charges levelled against them. 2. Brief facts of the case are that the complainant Santosh Kumar PW 2 and all the aforesaid accused persons are residents of the same village Janka, Police Station Puramufti, District Allahabad. The complainant is Ahir and accused are Paasi by caste. Accused Mithu was the real brother of Garib Das. Kallu, Har Jiwan, Bachan and Dwarika are the sons of accused Mithu. Accused Hari Prasad, Ram Kishan and Jia Lal are the sons of Garib Das. Accused Mewa Lal admitted himself to be the uncle and accused Om Prakash admitted himself to be the cousin of accused Kallu. Complainant Santosh Kumar PW 2 is the son of Mahadeo, deceased, who had two wives, namely, Smt. Chameli and Smt. Nanki, Santosh Kumar PW 2 and his elder sister Smt. Sarojini PW 1 were born from Smt. Chameli, Deshraj and Ram Kishun are uncles of the complainant. 3. It is alleged that Ram Kishun and Deshraj were accused in a dacoity case which took place some months before the present incident. The fact that Ram Kishun and Deshraj were involved in the dacoity case was felt by Mahadeo, deceased who had asked Deshraj in the presence of Garib Das to leave the company of Passees. Garib Das asked Mahadeo not to utter such words. On this Mahabir rebuked Garib Das, called him fool and threatened that he would be ruined by him. Two or three months after this altercation, in the month of January 1974, a dacoity took place in the grove of accused Har Jiwan in which Garibdas was murdered. The accused-Respondents suspected that the murber of Garibdas was planned by Mahaoeo. 4. On this Mahabir rebuked Garib Das, called him fool and threatened that he would be ruined by him. Two or three months after this altercation, in the month of January 1974, a dacoity took place in the grove of accused Har Jiwan in which Garibdas was murdered. The accused-Respondents suspected that the murber of Garibdas was planned by Mahaoeo. 4. On 5-4-1974 at about 2 P.M., while Santosh Kumar PW 2 and his father Mahadeo, deceased were sitting and talking on their Chabutra adjacent to their house on the western side in front of their southern door, Ram Kishun accused armed with Farsha and the remaining 9 accused armed with lathees came there. Accused Mithu and Har Jiwan exhorted that Mahadeo should suffer the consequences of getting the dacoity committed. On this exhortation, accused, Respondents started showering lathis and Pharsa blows on Mahadeo. On alarm being raised by Santosh Kumar PW 2 Smt. Sarujini Devi PW 1, her mother Smt. Chameli and step mother Smt. Nanki came out and all of them rushed to save Mahadeo. Ram Kishun accused caused a pharsa injury on the palm of right hand of Santosh Kumar PW 2 while he was defending his father. Other accused gave lathi blows to Smt. Sarojini PW 1, Smt. Chameli and Smt. Nanki. This mar-peet was witnessed by Sheo Mangal PW 3 and Ram Pratap. When the mar-peet was over, ail the accused ran away towards south. Mahadeo died on the spot due to above injuries. 5. Immediately after the mar-peet, Santosh Kumar PW 2 and his injured sister Smt. Sarojini PW 1 went to the Police Station Puramufti and lodged the FIR at 3.10 P.M. Ex. Ka-1. Case was registered u/s 147/148/149/302/323/324 IPC against the accused-Respondents and Santosh Kumar as well as Smt, Sarojini were sent to T.B. Sapru Hospital, Allahabad for the medical examinations of their injuries. The investigation of the case was entrusted to Sri Om Prakash Yadav PW 10 who examined Smt. Sarojini and Santosh Kumar at the Police Station. Thereafter he left for the place of occurrence and reached there at about 4.15 P.M. After completing the formalities, he sent the body of Mahadeo to the mortuary for post-mortem examination through Brij Kishore constable PW 5. On completion of the investigation, charge-sheet was submitted against all the accused. Thereafter he left for the place of occurrence and reached there at about 4.15 P.M. After completing the formalities, he sent the body of Mahadeo to the mortuary for post-mortem examination through Brij Kishore constable PW 5. On completion of the investigation, charge-sheet was submitted against all the accused. Ram Kishun accused was charged under Sections 148, 324, 302/149 and on three counts u/s 323/149 IPC and the remaining 9 accused-Respondents were charged under Sections 147/302/149, 324/149 and on three counts u/s 323/149 IPC. 6. Dr. S.N. Purwar PW 6 Medical Officer, T.B. Sapru Hospital, Allahabad examined Santosh Kumar PW 2 and Smt. Sarojini PW 1 on 5-4-74 at 5 and 5.15 P.M. respectively and prepared injury report Ex. Ka-4 and Ka-3. The doctor found one clean lacerated wound 3"x 1/2" x muscle deep on middle of back of right hand (dorsum) of Santosh Kumar. Bleeding was also noticed present. The same doctor found 6 contusions on different parts of the body of Smt. Sarojini. Smt. Chameli and Smt. Nanki were also examined by Dr. Purwar at 7.10 and 7.20 P.M. on the same day. The doctor found 5 lacerated wounds and 2 contusions on the body of Smt. Chameli vide injury report Ex. Ka-6 whereas two lacerated wounds and one contusion on the body of Smt. Nanki vide injury report Ex. Ka-7. 7. Dr. B.K. Jain PW 4 Medicial Officer, T.B. Sapru Hospital, Allahabad conducted the post-mortem examination on the body of Mahadeo on 6-4-1974 and found the following ten ante-mortem injuries on his body: 1. Lacerated wound 2" x 1/2" v Brain cavity deep on the left side of head 31/2" above and behind left side, Bone felt fractured underneath and brain matter coming out of the wound. 2. Lacerated wound 21/2 " x 1/2 " x Brain Cavity deep on the left side head 41/2 " behind and above left ear posterior to the left of hair, bone felt fractured underneath. Brain matter coming out of the wound. 3. Lacerated wound 1/2 " x skin on the back of left ear clotted blood present on left ear. 4. Lacerated wound 1/2 " x skin on the left side of fall near angle of mandible fracture. 5. Traumatic swelling with haemotoma 2 " x 11/2 " on the right side head 2" above right ear. 6. Contusion 4" x 1/2" on the left side abdomen in axillary line. 4. Lacerated wound 1/2 " x skin on the left side of fall near angle of mandible fracture. 5. Traumatic swelling with haemotoma 2 " x 11/2 " on the right side head 2" above right ear. 6. Contusion 4" x 1/2" on the left side abdomen in axillary line. 7. Contusion 6" x 3/4" on the back left thigh on the front and outer aspect. 8. Contusion 10 " x 3/4 " on the back left side from shoulder down-wards in scapular region. 9. Contusion abraised 4" x 11/2 " on the back of left shoulder. 10. Contusion 1 " x 3/4 " on the front of chest below the middle of clavide left side. 8. On internal examination, the doctor found the following three injuries: 1. Multiple depressed fracture in an area of 4" x 3" on the left side skull in left temporal and left pareatal bone. 2. Multiple depressed fracture in an area of 3 " x 2 " in the pareatal bones and occipital bone. 3. Linear fracture 4 " long in the right pareatal bone started from the depressed fracture above and going forward. 9. The doctor also found that both the sides of heart of the deceased and abdomen were empty but in both the intestines gas and faceal matter were present. In the opinion of the doctor, the death was caused due to coma as a result of head injury. 10. The prosecution has examined in all 13 witnesses in support of its case out of whom Smt. Sarojini PW 1 Santosh Kumar PW 2 and Sheo Mangal PW 3 are the eye-witnesses. Rest of the witnesses are aforesaid two doctors, investigating officer and other Police personnel, who are formal in nature. 11. All the accused Respondents pleaded not guilty. Kallu-accused stated that his brother Har Jiwan had been doing Halwahi of Mahadeo deceased. Mahadeo did not pay Har Jiwan his full labour charges. On account of that, Har Jiwan left the Halwahi of Mahadeo. Mahadeo and Santosh Kumar complainant forcibly asked the accused persons to plough their field which the accused persons refused. On this, Mahadeo and Santosh Kumar threatened the Respondents that they would suffer the consequences. It was also alleged that Mahadeo was a bad-character and notorious man. He had large number of enemies. Mahadeo and Santosh Kumar complainant forcibly asked the accused persons to plough their field which the accused persons refused. On this, Mahadeo and Santosh Kumar threatened the Respondents that they would suffer the consequences. It was also alleged that Mahadeo was a bad-character and notorious man. He had large number of enemies. The accused-Respondents did not examine any witnesses in support of their defence nor they filed any documentary evidence. 12. The trial court has acquitted all the accused Respondents on the grounds that (i) all the eye-witnesses are highly interested and they have failed to establish that the occurrence took place at the time, at the place and in the manner as alleged by the prosecution. No independent witness has been produced to corroborate them. (ii) the prosecution has failed to establish beyond reasonable doubt that occurrence took place either on the Chabutra or in the Rasta (iii) injuries of Smt. Sarojini PW 1, Santosh Kumar PW 2, Smt. Chameli and Smt. Nanki were self-inflicted, (iv) due to enmity, all the ten accused persons have falsely implicated in this case and (v) prosecution has not come with clean hands before the Court and, therefore, the accused are entitled to acquittal. 13. Having heard the learned Counsel for the parties, and going through the evidence on the record, we find that the learned Sessions Judge has lost himself in caste, in the details of family relationships of the witnesses with the accused and other imaginary collateral circumstances. He did not care to even discuss eye-witness account of Marpeet given by three aforesaid eye-witnesses on oath which really matters. In such circumstances, in the case of Sher Singh and Others Vs. State of Uttar Pradesh, AIR 1967 SC 1412 his Lordship Hon'ble Hidayatullah, speeking for the bench of the Supreme Court observed as under: We have had the evidence of the eye-witnesses read to us and after careful consideration we are satisfied that it is consistent, convincing and credible. The Sessions Judge lost sight of the main issue, namely, whether what the eye-witnesses said was credible, in an attempt to examine the interrelation of the witnesses. The Sessions Judge lost sight of the main issue, namely, whether what the eye-witnesses said was credible, in an attempt to examine the interrelation of the witnesses. This is an inquiry of value up to a point but is not conclusive because there is no crime proved in small village communities where some kind of relationship cannot be established between witnesses and the victim and some petty quarrel shown to have taken place in the past between some of the witnesses and the accused. To decide a case on the basis of such circumstances, unless they are of great or significant magnitude, is to place reliance on collateral circumstances at the expense of direct evidence of guilt which really matters. The first serves as a check upon the latter but no more. The evidence of the eye-witnesses here is clear. We accept the findings of the High Court which are supported by evidence of sufficient probative force to satisfy us. The appeal fails and will be dismissed. 14. In the instant case, the aforesaid prosecution story is fully supported by three above mentioned eye-witnesses out of whom Smt. Sarojini PW 1 and Santosh Kumar PW 2 are injured witnesses. Their presence at the time of occurrence cannot be doubted. The third eye-witness Sheo Mangal PW 3 is the next-door neighbour of the deceased and an independent witness. His house is quite close to the place of occurrence. At the time of occurrence, he was looking after his house and Khalihan by sitting along with Ram Pratap in the later's bungalow, quite close to the place of occurrence. His presence cannot be doubted. There is no doubt that Smt. Sarojini PW 1 is the daughter of the deceased and Santosh Kumar PW 2 complainant is the son of the deceased. But they were injured in this very incident and we find difficult to hold that their injuries are self-inflicted for the success of this case. There is only one pharsa injury on the dorsum of right hand of Santosh Kumar and 6 contusions on different parts of the body of Smt. Sarojini PW 1. If they were manufacturing false injuries, they could have manufactured some more injuries on the body of Santosh Kumar and some other male members, who could come in the witness box. There is only one pharsa injury on the dorsum of right hand of Santosh Kumar and 6 contusions on different parts of the body of Smt. Sarojini PW 1. If they were manufacturing false injuries, they could have manufactured some more injuries on the body of Santosh Kumar and some other male members, who could come in the witness box. There was no use for causing 5 lacerated wounds and 2 contusions on lips, fingers, knees, right shoulder just above right scapula and left knee joint of Smt. Chameli and two lacerated wounds and 1 contusion on the left nostril, left cheek and 1 contusion on the scapular region of Smt. Nanki. No reasonable man can hold that these injuries are self-inflicted for the success of this case. Even the learned Counsel for the accused could not support this finding of the learned Sessions Judge that the injuries on the bodies of 3 aforesaid ladies and Santosh Kumar are self-inflicted. Smt. Sarojini, PW 1 was inside her house along with her two mothers and came out on the alarm of her brother and cry of her father. When she came out, the saw that all the accused were beating her father Mahadeo. Her brother as well as both the mothers were trying to defend Mahadeo. On this, Ram Kishun inflicted Pharsa injury on Santosh Kumar and other accused persons inflicted lathi injuries on Mahadeo. She has also stated that Bachan and Dwarika accused inflicted lathi injuries on her body and the accused persons also inflicted injuries on both the mothers. She could not tell the assailants who inflicted injuries to her mothers. It was not possible to do so in that mellay. 15. Santosh Kumar PW 2 (complainant) is the son of the deceased who was sitting and talking with Mahadeo on the chabutra when the assailants came. He has given all the previous history of enmity. He has stated that Ram Kishun armed with pharsa and other accused armed with lathies came there and on the exhortation of Mithu and Har Jiwan accused, all the accused persons started beating his father with lathi and pharsa. When he raised alarm, his sister Smt. Sarojini and mothers Smt. Chameli and Smt. Nanki came out. When they tried to rescue Mahadeo, Ram Kishun inflicted pharsa injury on one palm of right hand which cut his dorsum. When he raised alarm, his sister Smt. Sarojini and mothers Smt. Chameli and Smt. Nanki came out. When they tried to rescue Mahadeo, Ram Kishun inflicted pharsa injury on one palm of right hand which cut his dorsum. The remaining accused started beating his sister and two mothers. He has further stated that all the accused persons ran towards south after killing his father. Thereafter he along with his sister Smt. Sarojini PW 1 went to the Police Station Puramufti on foot and reported the matter to the Head Constable who scribed the first information report and sent them for medical examination. They were examined by the aforesaid doctors. 16. Aforesaid statements of Smt. Sarojini PW 1 and Santosh Kumar PW 2 find full corroboration from the statement of independent witness Sheo Mangal PW 3 who was sitting in the bungalow of Ram Pratap and looking after his house and Khalihan. He has stated that when Santosh Kumar and Smt. Nanki, Smt. Chameli and Smt. Sarojini rushed to save Mahadeo deceased, Ram Kishun accused caused Pharsa injury on the right palm of Santosh Kumar and other accused started beating Smt. Nanki, Smt. Chameli and Santosh Kumar with lathees. 17. There is no doubt that this witness is also Ahir by caste but he is not related in any way with the family of the deceased. He cannot be termed as interested witness because on occasions he used to go to the house of the deceased and participated in social feasts. The learned Sessions Judge has committed grave error in descarding his evidence by describing him highly interested witness. 18. The statements of the aforesaid three eye-witnesses are fully corroborated by injury-reports Ex. Ka-3, Ka-4, Ka-6 and Ka-7 of Smt. Sarojini, Santosh Kumar, Smt. Chameli and Smt. Nanki respectively as well as by postmortem report Ex. Ka-2 in respect of the deceased. Dr. B.K. Jain PW 4 performed the postmortem examination and found 10 aforesaid injuries on his body out of which 4 are lacerated wounds 4 contusions and 1 traumatic swelling. On internal examination, the doctor found 2 depressed fractures and one linear fracture on the left side skull in left temporal and left parietal bone in side the head. Dr. S.N. Purwar PW 7 and Dr. B.K. Jain PW 4 have clearly stated that these injuries were caused at the time and by weapon described by the eye-witnesses. Dr. On internal examination, the doctor found 2 depressed fractures and one linear fracture on the left side skull in left temporal and left parietal bone in side the head. Dr. S.N. Purwar PW 7 and Dr. B.K. Jain PW 4 have clearly stated that these injuries were caused at the time and by weapon described by the eye-witnesses. Dr. B.K. Jain, who performed the postmortem examination has opined that the death of Mahadeo was caused due to coma as a result of head injury. Thus the evidence of aforesaid eye witnesses find full corroboration from the medical evidence on the record. Under these circumstances, the learned Sessions Judge is entirely wrong in holding that no independent evidence has been produced to corroborate the prosecution story. 19. On the careful scruitiny of the evidence on the record, we find that the finding of the learned Sessions Judge regarding time, place and manner of Marpeet has gone to the extent of absurdity. He has doubted the time of occurrence because in the postmortem report intestines of the deceased are found empty. The occurrence took place at about 2 p.m. There is no evidence on the record that Mahadeo deceased had taken his food before the occurrence. In the cross-examination no suggestion was made to any witness that Mahadeo had taken his food. On the other hand, Sheo Mangal PW 3 has stated that there was no one at the place of occurrence. It was noon time and people had gone to take their meals. It is very well known that in the villages, people take their meals at about 2 or 3 p.m. Under these circumstances, the finding of the learned Sessions Judge regarding time of occurrence is perverse. 20. So far as the finding regarding place of occurrence is concerned, the learned Sessions Judge had played on his imagination that the deceased was killed somewhere else and his dead-body was brought in the Rasta near Chabutra by someone. The reason for this finding is that no blood was found scattered on the Chabutra or near the place of occurrence. This finding is also, in our opinion, arbitrary. The investigating officer has found blood in the Rasta where Mahadeo bad fallen. This Rasta was just near the Chabutra where marpeet started. The reason for this finding is that no blood was found scattered on the Chabutra or near the place of occurrence. This finding is also, in our opinion, arbitrary. The investigating officer has found blood in the Rasta where Mahadeo bad fallen. This Rasta was just near the Chabutra where marpeet started. There is no evidence that any of the four injured persons fell down three of the four injured are ladies who were wearing their dhoties. Only Mahadeo deceased fell down and died. The investigating officer has found blood at the place where Mahadeo had fallen down and died. In this view of the matter, we find that the learned Sessions Judge has gone wrong in coming to the conclusion that the occurrence had taken place somewhere else. 21. As regards manner of marpeet, it has been fully described by the eye-witnesses, which has not been even discussed by the learned Sessions Judge. The statements of the eye-witnesses regarding manner of marpeet find full corroboration from the medical evidence. There is no doubt that Smt. Sarojini, PW 1 and Santosh Kumar PW 2 are the daughter and son of the deceased but that is no ground to discard their evidence. Their evidence finds full corroboration from the evidence of Sheo Mangal, PW 3 who is an independent witness. In our opinion the learned Sessions Judge has committed grave error in not discussing the evidence of eyewitnesses regarding manner of marpeet and has gone out of his way to doubt the place, time and manner of marpeet on imaginary grounds, which is not desirable. 22. At this place, it is also necessary to discuss the defence case of the accused. The accused persons did not examine any witness nor they have filed any documentary evidence to support their statements made u/s 313 Code of Criminal Procedure. We find no force in the statement made by Kallu Lal that Mahadeo and his family members were annoyed with him because he left ploughing his fields. There is no evidence to this effect that Mahadeo and Santosh Kumar had ever threatened the accused persons that they would suffer the consequences. It was also alleged by the accused that Mahadeo was a bad-character and he had a large number of enemies. There is no evidence to this effect that Mahadeo and Santosh Kumar had ever threatened the accused persons that they would suffer the consequences. It was also alleged by the accused that Mahadeo was a bad-character and he had a large number of enemies. There is nothing on the record from which it can be inferred that he had large number of enemies and they killed him somewhere else. After going through the entire defence case, we find no merit and, therefore, we reject it. 23. Now we come to the point of motive. From the evidence of Smt. Sarojini, PW 1 and Santosh Kumar, PW 2, it appears that the accused persons suspected Mahadeo's hand in the murder of Garibdas brother of Mithu and for that reason they decided to teach a lesson to Mahadeo, and, therefore, in our opinion the prosecution has successfully established that there was sufficient motive for the accused persons to commit this crime, who are closely related to Garibdas, brother of Mithu accused. 24. Now the only question remains to be considered as to what offence has been made out against the accused-Respondents? We have no doubt in our mind that the prosecution has fully established its case against all the charges levelled against each of the accused-Respondents except u/s 302/149 IPC for which we have some reservations and we are now proceeding to discuss the same. 25. It was strenuously urged before us by the learned Deputy Government Advocate that on the facts and circumstances of the present case, all the accused-Respondents had not only common-object to kill Mahadeo but they had even common intention. In any event, the submission was that the members of the unlawful assembly knew that in prosecution of the common object of assaulting Mahadeo murder was likely to be caused. Therefore, they should be convicted u/s 302/149 in view of second limb of Section 149 IPC. 26. On the other hand, relying on five decisions namely: Raghunandan v. Emperor AIR 1935 Oudh 52 , Sidhu Gope and Others Vs. Emperor, AIR 1946 Patna 84 , Chikkarange Gowda and Others Vs. State of Mysore, AIR 1956 SC 731 , Santosh Vs. State of Madhya Pradesh, AIR 1975 SC 654 and State of Haryana Vs. Prabhu and Others, AIR 1979 SC 1019 . Mr. Emperor, AIR 1946 Patna 84 , Chikkarange Gowda and Others Vs. State of Mysore, AIR 1956 SC 731 , Santosh Vs. State of Madhya Pradesh, AIR 1975 SC 654 and State of Haryana Vs. Prabhu and Others, AIR 1979 SC 1019 . Mr. C.S. Saran, learned Counsel for the accused-Respondents vehemently contended that no witness has stated that any blow was repeated on Mahadeo nor there is any allegation that any blow was given to him after his fall. There is no pharsa injury on his body. Under these circumstances, even if one or two persons caused 3 fatal injuries in excitement to the deceased, it cannot be said that all the accused-Respondents were sharing common object with those persons nor it can be said that all the Respondents had the knowledge that death was likely to be caused in prosecution of the common object of assault. According to the learned Counsel, if the offence at all is made out, it will fall either u/s 325/149 IPC or u/s 304 Part II IPC and maximum sentence of 7 years will meet the ends of justice. 27. After careful perusal of the record, we have no doubt in our mind that the assembly of the ten accused-Respondents at the time of occurrence was unlawful. The only question left for our decision is what was the object of that unlawful assembly? The object of assembly is a question of fact and it has to be decided on the facts and circumstances of each case. When we turn to the fact of this case to ascertain the object of the assembly, we find in the FIR that Ram Kishun armed with Pharsa and rest of the accused armed with lathies came to the door of the deceased and on exhortation of Har Jiwan and Mithu accused that teach him a lesson for getting the dacoity committed (Dakati Dalwane Ka Maja Chakhwa Do saala Ko), the Respondents started beating Mahadeo with lathi and Pharsa. Santosh Kumar PW 2 who lodged the aforesaid FIR has repeated same thing in paragraph 3 of his statement. No other eye-witness has stated any thing about this exhortation. There is no doubt that 2 or 3 months before this incident Garibdas, brother of Mithu was murdered in a dacoity and according to the prosecution case, the accused suspected Mahadeo's hand in that dacoity. No other eye-witness has stated any thing about this exhortation. There is no doubt that 2 or 3 months before this incident Garibdas, brother of Mithu was murdered in a dacoity and according to the prosecution case, the accused suspected Mahadeo's hand in that dacoity. In this background, the use of words "Maja Chakha Do salle ko" is capable of two interpretations; first to kill Mahadeo and second to teach him a lesson. It is very well settled principle of law that when two interpretations are possible, the Court should prefer that interpretation which is favourable to the accused. 28. Although Ram Kishun was armed with pharas but pharos injury was found on the body of Mahadeo deceased. Dr. B.K. Jain, PW 4 has clearly stated in paragraph 8 of his statement that all the injuries on the body of the deceased are possible by lathis. No specific part has been assigned to any accused so far as the injuries of the deceased are concerned. Specific part has been assigned to Ram Kishun for causing pharsa injury to Santosh Kumar and to Dwarika and Bachan accused for causing lathi injuries to Smt. Sarojini PW 1. The members of this unlawful assembly used their lathies in assaulting Mahadeo deceased, Smt. Nanki, Smt. Chameli and Smt. Sarojini. Ram Kishun is alleged to have caused one injury to Santosh Kumar. Except injury Nos. 1, 2 and 4 of the deceased, all the other injuries appear to be simple in nature. There is no doubt that on internal examination of scalp and skull under injury Nos. 1, 2, 3, 4 and 5, aforesaid 2 depressed fractures and 1 linear fracture are found. To our mind, these head injuries are the cause of death of Mahadeo but it is not known as to who caused these injuries. We have no doubt at all that if those persons were known or any specific part was assigned to persons causing injuries on the head of the deceased then those persons would have been certainly liable for conviction for the offence of murder. In the absence of that kind of evidence and due to aforesaid uncertainty of the common object of murder, it is not safe to convict all the persons u/s 302 read with Section 149 part 1 or 2 of the IPC. In the absence of that kind of evidence and due to aforesaid uncertainty of the common object of murder, it is not safe to convict all the persons u/s 302 read with Section 149 part 1 or 2 of the IPC. The charge did not mention that the members of the unlawful assembly knew that the deceased was likely to be killed in prosecution of common object. But Mahadeo was killed by the fatal injury caused by certain member of unlawful assembly. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential element is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. 29. It has been clearly held in the case of Mizaji and Another Vs. The State of U.P., AIR 1959 SC 572 that in order that the case may fall under the first part of Section 149 IPC, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall u/s 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression "knew" does not mean a mere possibility. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case, it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed, in prosecution of the common object and falls within the second part. 30. In every case, it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed, in prosecution of the common object and falls within the second part. 30. The position of law regarding the scope of Section 149 is very well-settled by various decisions of the Supreme Court. A perusal of Chikkarange Gowda case (supra) would show that Section 149 does not ascribe every offence which might be committed by one member of an unlawful assembly while the assembly was existing, to every other member. This principle has been very well recognised since the decision in Queen v. Sabed All 20 South WR (Cr) 5 (a)which has been approved by the Supreme Court in Santosh's case (supra), wherein it has been held as under t- Every offence which may be committed by a member of an unlawful assembly will not be necessarily ascribed to or vicariously fastened upon every other member of that assembly by using Section 149. The likelihood of causing of death by the nature of the actions of the member of the assembly must be shown who is to be made vicariously liable for a death. Such knowledge may be inferred from the nature of the actions committed by others in an unlawful assembly which the member, held vicariously liable, continues to associate himself with, despite these actions seen by him or known to him. 31. In Shambhu Nath Singh and Others Vs. State of Bihar, AIR 1960 SC 725 , regarding scope of Section 149, the Supreme Court has observed as under: ... Members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their object, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at its command but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 may be different on different members of the same unlawful assembly. The above view has been further explained in the case of Sheo Mahadeo Singh v. State of Bihar 1970 SCC 401 that the emphasis is on common object. There is no question of common intention in Section 149. The act must be one which upon the evidence appears to have been done with a view to accomplishing the common object attributed to the members of the unlawful assembly. Thus every person who is engaged in prosecuting the same object, although he had no intention to commit the offence, will be guilty of an offence which fulfils or tends to fulfil the object which he is himself engaged in prosecuting in the circumstances mentioned in the section. It is in this sense that common object it is to be understood. 32. After examining all the evidence relating to participation of the accused-Respondents, we are left in grave doubt whether the assembly bad a common object of killing anyone at all, even if such was really the object of any particular member or members of the unlawful assembly. It may be that those who caused the head injuries due to which Mahadeo died could reasonably be held liable for murder. But in absence of their identity it seems to be unlikely that each member, considering the nature of the assembly and the different acts of different members of the assembly, had such an object. We also find it difficult to accept that under these circumstances, Section 304 read with Section 149 part 1 or part 2 IPC will apply. For conviction u/s 304 IPC it has to be shown that the case of the convicted persons falls within one of the exceptions found in Section 300 IPC. It is obvious that the case of the accused does not fall under any of these exceptions. If it is doubtful whether the common object of the unlawful assembly joined by the accused-Respondents was to commit any acts which were either intended to cause death, or, from which knowledge of likelihood of death could be inferred, we think that persons other than those who actually committed the acts resulting in death could not be held vicariously liable for murder, either u/s 302/149 or u/s 304/149 IPC. But we are convinced on the oasis of the evidence on record that the minimum object of the aforesaid accused-Respondents was to voluntarily cause grievous hurt. But we are convinced on the oasis of the evidence on record that the minimum object of the aforesaid accused-Respondents was to voluntarily cause grievous hurt. Therefore, all the accused-Respondents are liable to be convicted u/s 325/149 IPC and sentence of 7 year's rigorous imprisonment will meet the ends of justice. 33. In view of the above discussion, we are fully satisfied that the judgment of the learned trial Judge acquitting the accused of all the charges is against the weight of evidence on the record, illegal and perverse. Therefore, we must set aside the same and convict Ram Kishun accused under Sections 148, 323/149 (3 counts), 324 and 325/149 IPC and each of the remaining 9 accused-Respondents under Sections 147, 323/149 (3 counts), 324/149 and 325/149 IPC. 34. On the question of sentence, after hearing the learned Counsel for the accused-Respondents, we find that Mithu accused was 75 years of age when his statement was recorded on 18-11-1976 in the trial court. Now 1985 is going on and almost 9 years have elapsed. Now he is about 84 years of age. We think, no useful purpose will be served by sending him back to the jail in the fag end of his life. Therefore, we are of the opinion to sentence him to the period already undergone. Ram Kishan accused is entitled to be convicted and sentence to 11/2 years RI u/s 148, 1 year's RI u/s 323/149 (3 counts), 2 year's RI u/s 324 and 7 year's RI u/s 325/149 IPC. Remaining eight accused (sic) sentenced to 1 year's RI u/s 147, 1 year's RI under Sections 323/149, 2 year's RI u/s 324/149 and 7 year's RI u/s 325/149 IPC. 35. In the result, the appeal is allowed. The judgment and order dated 4-12-1976 passed by the VIIth Additional District and Sessions Judge, Allahabad is set aside. Mithu accused is convicted u/s 147, 323/149, 324/149 and 325/149 IPC but considering his old age, he is sentenced to the period already undergone. Ram Kishan accused is convicted under Sections 148, 323/149 (3 counts), 324 and 325/149 IPC and he is sentenced to 11/2 year's RI u/s 148, 1 years' u/s 323/149 (3 counts), 2 year's RI u/s 324 and 7 year's RI u/s 325/149 IPC. Ram Kishan accused is convicted under Sections 148, 323/149 (3 counts), 324 and 325/149 IPC and he is sentenced to 11/2 year's RI u/s 148, 1 years' u/s 323/149 (3 counts), 2 year's RI u/s 324 and 7 year's RI u/s 325/149 IPC. So far as the remaining eight accused-Respondents are concerned, they are convicted under Sections 147, 323/149, 324/149 and 325/149 IPC and sentenced to 1 year's RI u/s 147, 1 year's RI u/s 323/149, 2 year's RI u/s 324/149 and 7 year's RI u/s 325/149 IPC. All the sentences shall run concurrently. All the accused-Respondents except Mithu shall be taken into custody forthwith to serve out the sentences awarded to them, according to law. Appeal allowed.