JUDGMENT 1. - This appeal is directed against the judgment dated July 4, 1988, passed by the Sessions Judge, Bikaner, by which the learned Sessions Judge convicted and sentenced the accused-appellant Ashiq under Sections 148, 302, 323 read with Section 149 I.P.C., accused Yusuf and Alladeeta under Sections 147, 326 read with Sections 149 and 323 I.P.C., and the remaining accused-appellants Kalu, Haji Khan and Phalaksher under Sections 147, 326 read with Sections 149 and 323 read with Section 149 I.P.C. 2. The accused-appellants were tried by the learned Sessions Judge, Bikaner, for the offences under Sections 147, 148, 149 and 302 I.P.C. The prosecution case as unfolded in the First Information Report, lodged at Police Station, Chhattargarh by Lukman S/o Ajmera, is that at about one month before, Subhan's herd entered into the field of accused Ashiq, on which some quarrel took place, but ultimately the matter was compromised and the catties were not given in the cattle pond. Thereafter once or twice, Ashiq asked Subhan not to bring his catties to his field. Yesterday, in the evening, Subhan's catties were grazing near the field of Ashiq. At that time, Mange Khan was, also, there. The catties of the informant Lukman were, also, there. They all slept there in the night. In the morning, the informant, Mange and Subhan went to the Dhani of Gama and were taking tea at about 9.00 a.m. in the meanwhile, the accused-appellants Ashiq, Yusuf, Phalku, Alladeeta, Haji and Kalu came there. Ashiq was armed with Barchhi while the other accused were armed with Lathis. Ashiq abused and on hearing the abuses Subhan and Mange came out-side the house. As soon as Subhan came out-side the house, Ashiq inflicted injury by the Barchhi on the head of Subhan. On receiving the injury, Subhan became unconscious and fell on to ground. Accused Yusuf and Alladeeta inflicted injuries by Lathis to Lukman. All other accused were saying "kill him". In the meanwhile. Moda, Nayak and Gulam came there. On seeing them coming, the accused ran away. Thereafter they took Subhan injured on a camel's back to the bus stand and sent Umar to arrange for a Jonga jeep. A Jonga jeep was arranged and Subhan was taken to Government Hospital, Chhattargarh, but the doctor was not there and, therefore, he was taken to Police Station. On seeing them coming, the accused ran away. Thereafter they took Subhan injured on a camel's back to the bus stand and sent Umar to arrange for a Jonga jeep. A Jonga jeep was arranged and Subhan was taken to Government Hospital, Chhattargarh, but the doctor was not there and, therefore, he was taken to Police Station. Subhan was unconscious at that time and on the basis of information supplied by Lukman, case under Sections 147, 148, 149 and 307 I.P.C. was registered against the accused. Later on, the injured Subhan was taken from the Police Station, Chattargarh, to the Bikaner Hospital and in the way, Subhan died and thereafter the offence under Section 302 I.P.C. was added. The prosecution, in support of its case, examined 19 witnesses and, also, placed on record 12 documents. The accused, in their defence, examined DW 1 Ayasha and placed reliance over five documents. The learned Sessions Judge, after trial, convicted and sentenced the accused- appellants as under:- 1. Ashiq 148 I.P.C. Rigorous imprisonments for one year and a fine of Rs. 100/-, in default of payment of fine to further undergo one month's R.I. 302 I.P.C. Imprisonment for life and a fine of Rs. 200/-, in default of payment of fine to further undergo two months R.I. 323 read with 149 I.P.C. One month's rigorous imprisonment and a fine of Rs. 50/-, in default of payment of fine to further undergo 15 days' rigorous imprisonment. 2. Yusuf and Alladeeta 147 I.P.C. Six months' R.I. and a fine of Rs, 50/- each, in default, 15 days' rigorous imprisonment. 323 I.P.C. One month's rigorous imprisonment and a fine of Rs. 50/-each, in default, 15 days R.I. 326 read with Section 149 I.P.C. Five years' rigorous imprisonment and a fine of Rs. 100/- each, in default, one month's R.I., each. 3. Kalu Khan, Haji Khan and Phalaksher 147 I.P.C. Six months' R.I. and a fine of Rs. 50/- each, in default, 15 days' R.I. 326 read with Section 149 I.P.C. Five years' R.I. and a fine of Rs. 100/- each, in default, one month's R.I. each. 323 read with Section 149 I.P.C. One month's R.I. and a fine of Rs. 50/- each, in default, 15 days' R.I. 3. 50/- each, in default, 15 days' R.I. 326 read with Section 149 I.P.C. Five years' R.I. and a fine of Rs. 100/- each, in default, one month's R.I. each. 323 read with Section 149 I.P.C. One month's R.I. and a fine of Rs. 50/- each, in default, 15 days' R.I. 3. The learned Sessions Judge convicted and sentenced the accused on the basis of the evidence of four eye witnesses, namely, P.W. 1 Mange Khan, P.W. 2 Lukman, P.W. 3 Ms. Kamala and P.W. 4 Ms. Nihala. The learned Sessions Judge, also, placed reliance over certain recoveries made by the investigating officer P.W. 18 Pritam Singh, S.H.O. He, also, placed reliance over the evidence of motive produced by the prosecution. 4. The learned Sessions Judge, however, did not place reliance over the testimony of P.W. 12 Gulam Hussain. 5. The nature of the evidence, produced by the prosecution, contains of the evidence of six eye witnesses namely, P.W. 1 Mange Khan, P.W. 2 Lukman, P.W. 3 Ms. Kamala, P.W. 4 Ms. Nihala, P.W. 5 Moda Ram and P.W. 12 Gulam Hussain, P.W. 5 Moda Ram did not support the prosecution case and, therefore, he was declared hostile. The evidence of the eye witnesses is sought to be corroborated by the evidence of four Motbir witnesses, namely P.W. 6 Rehman, P.W. 8 Kammu, P.W, 14 Saddu Khan and P.W. 15 Kattu. P.W. 1 5 Kattu is, also, a witness of earlier occurrence, which took place before one month. According to the prosecution, it was the motive for this murder. Their evidence is further sought to be corroborated by the evidence of P.W. 7 Ami, who arranged for conveyance from the canal bridge and brought a Jonga jeep of P.W. 16 Nijamuddin, in which the injured Subhan was carried to the police station and then to the Hospital at Chhattargarh and thereafter to the P.B.M. Hospital, Bikaner. This evidence is further sought to be corroborated by the evidence of P.W. 11 Dr. Shyam Sunder and P.W. 19 Dr. M.L Khatri. There are three police witnesses, which consists of the statements of P.W. 13 Kishan Dan, who was a Constable and who accompanied the injured from Police Station, Chhattargarh to the Hospital at Bikaner and who, also, took the sealed packets for Forensic Science Laboratory, Jaipur for Examination. Shyam Sunder and P.W. 19 Dr. M.L Khatri. There are three police witnesses, which consists of the statements of P.W. 13 Kishan Dan, who was a Constable and who accompanied the injured from Police Station, Chhattargarh to the Hospital at Bikaner and who, also, took the sealed packets for Forensic Science Laboratory, Jaipur for Examination. P.W. 1 7 is Mohan Lal, H.C., who was the Malkhana Incharge at Police Station, Chhattargarh, and in whose custody, the sealed packets remained and who handed them over to P.W. 13 Kishan Dan for taking the same to the State Forensic Science Laboratory, Jaipur. P.W. 18 is Pritam Singh, Station House Officer, who conducted the investigation in the case. 6. The prosecution case, mainly, rests on the statement of five eye witnesses, and two doctors, namely P.W. 11 Dr. Shyam Sunder and P.W. 19 Dr. Mohan Lal Khatri as well as on the recoveries made and the motive. 7. P.W. 1 Mange Khan has stated that at about 8-81/2 months before, he was grazing his catties in the Rohi of Ranzewala alongwith Subhan and Lukman. In the night, they slept in the Pasture (Khod) land. In the morning, they all went to the Dhani of Gammu for taking tea. Gammu is the maternal-uncle of Subhan. They were taking tea inside the house. In the morning at about 9.00 a.m., all the six accused-appellants came there and were making abuses. On hearing the abuses, we all the three came out-side the house and Subhan came first and I and Lukman followed him. Accused Ashiq, with the sharp-side of the Gandasi, inflicted injury on the head of Subhan and Subhan fell down on the ground. Thereafter Alladeeta inflicted two/three injuries with the Lathi on him and Yusuf and Haji inflicted injuries with the Lathi on him and Yusuf and Haji inflicted injuries with the Lathi on Lukman. Kalu was only saying, "kill them". In the meanwhile, Ms. Kamala and Ms. Nihala, who were standing nearby, started weeping. On hearing their cries. Moda and Gulam Hussain came there and on seeing Moda and Gulam Hussain coming, the accused ran away leaving behind a Lohi of Ashiq and a Danda of Yusuf. Thereafter they all took cars of Subhan and carried him on the back of the camel to the bus stand, situated near Aarawala Minor, but they could not catch the bus. Moda and Gulam Hussain came there and on seeing Moda and Gulam Hussain coming, the accused ran away leaving behind a Lohi of Ashiq and a Danda of Yusuf. Thereafter they all took cars of Subhan and carried him on the back of the camel to the bus stand, situated near Aarawala Minor, but they could not catch the bus. There Ami and Umer were standing. They narrated the story to them. Thereafter they brought a Jonga jeep from Chattargarh and thereafter they took Subhan to the Government Hospital, Chhattargarh, but there the doctor was not present and thereafter they went to the police station and lodged the report and after lodging the report, the Thanedar asked them to take the injured to Bikaner Hospital. They took the injured Subhan to Bikaner, but in the way, Subhan breathed his last. The post-mortem was conducted by the doctor at Bikaner in the night. He has, also, stated that a day earlier, Subhan had informed him that one month before, his catties entered into the field of Ashiq and due to the intervention of the certain members of the Panchyat, the matter was compromised and it is only on account of that enmity that Ashiq has killed Subhan. 8. Similar is the statements of P.W. 2 Lukman as well as P.W. Ms. Kamala and P.W. 4 Ms. Nihala. A lengthy cross-examination had been done by the learned Counsel for the accused, but nothing could be elicited from the testimony of these witnesses which could make them unworthy of credence regarding the infliction of the injury by accused Ashiq on the head of Subhan. All the witnesses have categorically stated that accused Ashiq, as soon as the accused-appellants came, inflicted injury on the head of Subhan with the sharp-side of the Barchi on the head of Subhan and on receiving that injury, Subhan fell down on the ground. We, therefore, do not see any reason to disbelieve the statements of these witnesses so far as the infliction of the injury on the head of Subhan by the accused Ashiq is concerned. 9. We, therefore, do not see any reason to disbelieve the statements of these witnesses so far as the infliction of the injury on the head of Subhan by the accused Ashiq is concerned. 9. Now, so far as the evidence, produced by the prosecution regarding the participation of the appellants Yusuf, Phalku, Alladeeta, Haji and Kalu is concerned, they have been convicted by the learned lower Court for the offences under Sections 148, 323 and 326/149 I.P.C. Section 149 I.P.C. imposes a constructive penal liability and seeks to punish a member of the unlawful assembly for the offence or the offences committed by his/their associates(s) in carrying out the common object of the assembly In order to fasten a vicarious responsibility, it has to be proved by the prosecution that the act constituting an offence, was done in prosecution of the common object of the assembly or the act done is such as the member of that assembly knew to be likely to be committed in prosecution of the common object of that unlawful assembly. Vicarious liability would attach to every member of the unlawful assembly if that member of the unlawful assembly either participates in the commission of the offence by overt-act or knows that the offence which is committed was likely to be committed by any member of the unlawful assembly in prosecution of the common object of the assembly and knows or continues to remain a member of the unlawful assembly. For bringing the case within the purview of Section 149 I.P.C, it has to be proved by the prosecution that there was an unlawful assembly, the accused were the members of that unlawful assembly, that they intentionally joined and continued in such unlawful assembly, that an offence was committed by a member of such unlawful assembly and that such offence was committed in prosecution of the common object of such unlawful assembly and such any member of the assembly knew to be likely to be committed in prosecution of the common object. Therefore, it is necessary before convicting a person with the help of Section 149 I.P.C. that the prosecution has to prove that the person was the member of that unlawful assembly and he shared the common object of the assembly. Therefore, it is necessary before convicting a person with the help of Section 149 I.P.C. that the prosecution has to prove that the person was the member of that unlawful assembly and he shared the common object of the assembly. In the present case, whether the appellants Yusuf, Phalku, Alladeeta, Haji and Kalu shared the common object of the unlawful assembly with Ashiq and whether there was any common object or not, are to be seen. If we scrutinised the case of the prosecution in this light then in the F.I.R., which was lodged by Lukman, it has been stated that all the accused-appellants came there and accused Ashiq inflicted injury with Barchhi on the head of Subhan while accused Yusuf and Alladeeta inflicted injuries with Lathis to him and all the remaining accused remained standing there and were saying, "kill them". P.W. 1 Mange Khan has stated that Ashiq inflicted injury to Subhan and Alladeeta inflicted injury to him while Yusuf and Haji inflicted injuries with Lathis to Lukman. Kalu was saying, "kill him." In cross- examination, he has further stated that Kalu and Phalku did not inflict injury to any of the witnesses. P.W. 2 Lukman has stated that Ashiq inflicted injury to Subhan with the sharp-side of Barchhi on his head and Haji, Alladeeta and Phalku inflicted injuries to him and accused Alladeeta and Yusuf inflicted injuries with Lathis to Mange Khan. P.W. 3 Ms. Kamala and P.W. 4 Ms. Nihala have stated that accused Ashiq inflicted injury to Subhan and Yusuf, Alladeeta and Haji inflicted injuries oh Lukman. If we take the statements of these witnesses even to be correct even then according to these witnesses, so far as Kalu and Phalku are concerned, no over-act has been assigned to these accused. The part assigned to these two accused by the prosecution is only to the effect that these two accused- appellants came there alongwith the other accused, armed with Lathis, but they did not participate in the crime in any manner. No overt-act has been attributed to these two accused-appellants and a careful scrutiny of the evidence of these prosecution witnesses clearly shows that these two accused-appellants, namely, Phalku and Kalu, were not there. No overt-act has been attributed to these two accused-appellants and a careful scrutiny of the evidence of these prosecution witnesses clearly shows that these two accused-appellants, namely, Phalku and Kalu, were not there. If they would have been there and when they would have come armed with Lathis along with the other co-accused then it is not expected that they would not have inflicted any injury on any witness. Subhan received only one injury while P.W. 1 Mange Khan received only three injuries and P.W. 2 Lukman, also, received only two injuries. If these six accused-appellants would have been there, armed with Barchi and Lathis and if they had any intention to give beatings to them then these witnesses would not have received only six superficial injuries on their person. As no overt-act has been attributed to Phalku and Kalu and the more fact that these two appellants were armed with Lathi, would not make them liable with the aid of Section 149 I.P.C. as according to us, they did not share any common object with the other accused. Similar view was taken by the Hon'ble Supreme Court in the case of Bhudeo Mandal and Ors. v. The State of Bihar 1991 S.C.C. [Criminal) 595 , wherein it has been observed: "In the present case, there is no overt-act attributed to any of the appellants, on the deceased and the mere fact that the appellants were armed with Lathi, by itself would not proved that they shared the common object with which the main accused was inspired." In this view of the matter, we are of the opinion that these two accused, namely, Phalku and Kalu, were not present there. 10. As the number of accused, now, comes down to four and, therefore, there was no question of any unlawful assembly and, therefore, Section 149 I.P.C. is not applicable as the four persons [accused) cannot form an unlawful assembly. Therefore, the other accused Alladeeta, Yusuf and Haji, also, cannot be convicted with the aid of Section 149 I.P.C, and as such their convictions under Section 326 read with Section 149 as well as under Section 323 read with Section 149 I.P.C. are set-aside. 11. Accused Haji has been convicted with the aid of Section 149 and as there was no question of any unlawful assembly in the present case, therefore, accused Haji, also, deserves to be acquitted. 12. 11. Accused Haji has been convicted with the aid of Section 149 and as there was no question of any unlawful assembly in the present case, therefore, accused Haji, also, deserves to be acquitted. 12. Then remains the case of accused-appellants Yusuf and Alladeeta, who have been convicted under Sections 147, 326/149 and 323 I.P.C. As the number of the accused remained only three, therefore, the ingredients of Sections 149 and 147 I.P.C. are not made-out and, therefore, accused Yusuf and Alladeeta, also, deserve to be acquitted under Sections 147 and 326 read with Section 149 I.P,C. and they can be convicted only for the act which they have committed. These two accused did not share any common intention or common object with accused Ashiq and, therefore, they can be convicted only under Section 323 I.P.C. 13. Now, taking the case of accused-appellant Ashiq, we have to see that what offence has been committed by this accused? It is proved from the evidence, produced by the prosecution, that accused-appellants Ashiq inflicted injury by Barchhi on the head of Subhan, as a result of which he died. It has come in evidence of the prosecution witnesses that Subhan was taken by Mange Khan and Lukman first on the camel's back to the bus stand and thereafter a Jonga jeep was brought, in which he was carried to the Government Hospital, Chhattargarh, where the doctor was not there, and thereafter Subhan was taken to police station, Chhattargarh and there the report was lodged and from there Subhan was taken to the Hospital at Bikaner, but in the way he died. All the witnesses have stated that he was bleeding through- out. No care was taken by the prosecution witnesses to stop the blood which was coming-out from the head-injury and they carried Subhan from one place to another without stopping the oozing of blood. If they would have taken care by tying a cloth or some other thing on the head of Subhan to stop the blood, then Subhan might have been saved. P.W. 11 Dr. Shyam Sunder, in his statement, has specifically stated that the injury, found on the person of Subhan, was not sufficient in the ordinary course of nature to cause death. P.W. 11 Dr. Shyam Sunder, in his statement, has specifically stated that the injury, found on the person of Subhan, was not sufficient in the ordinary course of nature to cause death. He has stated that there was a small cut on the outer side of membranes of the brain and there was no injury on the internal brain-tissues and this injury was not sufficient in the ordinary course of nature to cause death. The cause of death, according to Dr. Shyam Sunder, was only on account of bleeding, which was the result of scalp injury and if a proper care would have been taken and the injury would have been stitched and the blood would have been stopped then there was no possibility of the death of Subhan. The totality of the established facts and the circumstances of the case do show that the appellant Ashiq caused this solitary injury and did not repeat any injury and, therefore, he could not be imputated with the intention to cause the death of the deceased or with an intention to cause the death of the deceased or with an intention to cause the death by inflicting a fatal injury. As such, the accused-appellant Ashiq, at the best, can be attributed with the knowledge that he was causing such an injury which may cause death. In the absence of any positive proof that the appellant Ashiq caused the injury to Subhan with the intention of causing the death of Subhan, or intentionally inflicted that particular injury, which was not, in the ordinary course of nature, sufficient to cause the death, neither Clause [I) nor Clause (II) of the Indian Penal Code can be attracted and the accused-appellant Ashiq can be punished only under Section 304 Part II I.P.C. We, therefore, acquit accused-appellant Ashiq of the offence under Section 302 I.P.C. and convict him for the offence under Section 304 Part II I.P.C. As there was no unlawful assembly with any unlawful object and as such acquit accused-appellant Ashiq of the offences under Sections 148 and 323 read with Section 149 I.P.C, also. 14. Further, we have, also, considered the question of motive, as stated by the prosecution. 14. Further, we have, also, considered the question of motive, as stated by the prosecution. According to the prosecution, the motive with accused Ashiq was that a month before, some quarrel took place between accused Ashiq and Subhan, as the catties of Subhan entered into the field of Ashiq, but that matter was compromised at that time due to intervention of some members of Panchayat and the catties were not sent to the cattle-pond, and, therefore, there was no motive with accused Ashiq to kill Subhan. The prosecution has failed to prove any motive against the accused-appellant Ashiq. 15. In the result, the appeal, filed by the accused-appellant Ashiq, Alladeeta and Yusuf is partly allowed. The convictions of accused-appellant Ashiq under Sections 302, 148 and 323/449 I.P.C. are set-aside and he is acquitted of all these offence, but he is convicted under Section 304 Part II, I.P.C. and is sentenced to the imprisonment already undergone by him and a fine of Rs. 100/- and in default of payment of fine further to undergo 1 5 days' rigorous imprisonment. Accused-appellant Ashiq is in jail and he may be released forthwith if he is not required in any other case. 16. We, also, acquit the accused-appellants Yusuf and Alladeeta of the offences under Sections 147 and 326 read with Section 149 I.P.C, but they are convicted under Section 323 I.P.C and are sentenced to the imprisonment already undergone by them. They are on bail and need not surrender. Their bail-bond are discharged. 17. We, however, allow the appeal of accused-appellant Phalaksher alias Phalku, Kalu and Haji, and acquit them of all offences they were charged-with. They are on bail. They need not surrender. Their bail-bonds are discharged.Appeal partly allowed. *******