I. S. MATHUR, J. ( 1 ) BY the judgment and order dated 21-12-1979, passed by the Additional Sessions Judge 8th Bareilly, appellants Ali Ahmad, Mohd. Sher, Saddiq, Meer Jadhey, Mohd. Yaseen, Chimman and Achchan have been convicted for offences under Section 302/149, I. P. C. and sentenced to life imprisonment. Appellants Ali Ahmad, Mohd. Sher, Saddiq, Meer Jadhey, Mohd. Yaseen and Chimmanhave been further convicted on three separate charges under Section 307/149, I. P. C. and sentenced to undergo three years rigorous imprisonment on each count. Appellant Achchan has been convicted on two separate charges under Sections 307/149, I. P. C. and a simpliciter charge under Section 307, I. P. C. and sentenced to undergo three years rigorous imprisonment on each count. Appellants Ali Ahmad, Mobd. Sher, Saddiq and Achchan have also been convicted for offences under Section 148, I. P. C. and sentenced two years rigorous imprisonment while Meer Jadhey, Mohd. Yaseen and Chimman have been convicted on additional charge under Section 147, I. P. C. and sentenced to undergo one year rigorous imprisonment. The sentences have been directed to run concurrently. The appellants have come in appeal against the said judgment and order, accused Asgar has been acquitted. ( 2 ) THE appellants numbers 4 and 5, namely Meer Jadhey and mohd. Yaseen died during the pendency of this appeal and the appeal stood abated against them vide order dated 6-1-1995. Usman died earlier during the pendency of trial and the trial abated against him. ( 3 ) APPELLANTS Saddiq, Meer Jadhey, and Chimman are the sons of Bashir. Ali Ahmad is the son of Saddiq, Mohd. Sher is the son of Meer Jadhey and Achchan and Mohd. Yaseen are the sons of Ali Bux and Fateh Sher respectively, who are the other two sons of Bashir. In the year 1973 a dacoity was committed in the house of Pir Bux and Sakhawat, both sons of Banne, were killed. In that case appellant Mohd. Sher was one of the accused. The case, however, ended in acquittal, about one and a half year prior to this occurrence. According to the prosecution Mohd. Sher and his other family members started nursing grudge against the family members of Pir bux. In that case appellant Mohd. Sher was one of the accused. The case, however, ended in acquittal, about one and a half year prior to this occurrence. According to the prosecution Mohd. Sher and his other family members started nursing grudge against the family members of Pir bux. After the murder of Pir Bux and Sakhavat there remained no male member in the family and, therefore, Haseena who was the widow of Phullu asked her brother Nathoo to live with her for looking after her affairs. The complainant, Chhotey, who is the brother of the deceased, Mahmood, also helped Haseena and other family members and for this reason Mohd. Sher and his family members became inimical to them. Two months prior to the incident Saddiq, uncle of Mohd. Sher, and Ali Ahmad, cousin of Mohd. Sher, had beaten Haseena on which Nathoo, Chhotey and others had reprimanded them. ( 4 ) ON 28-7-1977 at about 7 a. m. Mohd. Sher and Ali Ahrnad armed with guns, Achchan armed with a pistol, Meer Jadhey, Usman, Mohd. Yaseen and Chimman armed with lathis and Siddiq and Asgar armed with spears surrounded Nathoo in front of the house of the complainant Chhotey, Usman, Mohd. Yaseen, Meer Jadhey, Saddiq, Chimman and Asgar started assaulting Nathu with lathis and spears. On alarm being raised by Nathu his sister Haseena and Dilwar came to his help and Achchan fired at them from his pistol causing injuries to them. In the meanwhile Nathu succeeded in escaping from there and hiding himself in the house of Chhotey. The appellants Mohd. Sher and Ali Ahmad followed him and Mahmood, brother of Chhotey scolded them for assaulting Nathu. At that time Jameelan, wife of Mohmood along with their infant child of one year, Nanhey, was also standing there. On being scolded Mohd. Sher and Ali Ahmad fired at them from their gun hitting Mahmood, his wife Jameelan and son Nanhey. Mahmood died as a result of this firing. ( 5 ) A report Ex. Ka. 6 regarding this occurrence was lodged by Chhotey at P. S. Faridpur the same day i. e. on 28-7-1977 at 8 a. m. on the basis of this report a case under Sections 147/148/302/149/307/, I. P. C. was registered against the appellants. Investigating Officer prepared inquest report Ex. Ka. 9, performed other formalities and sent the body for post mortem. 6 regarding this occurrence was lodged by Chhotey at P. S. Faridpur the same day i. e. on 28-7-1977 at 8 a. m. on the basis of this report a case under Sections 147/148/302/149/307/, I. P. C. was registered against the appellants. Investigating Officer prepared inquest report Ex. Ka. 9, performed other formalities and sent the body for post mortem. The post mortem examination was conducted by Dr. K. S. Tiwari on 29-7-1977 and the following antemortem injuries were found on the person of the deceased Mahmood :-ANTE-MORTEM Injuries :-1. 7 Gun shot wounds of entry in an area of 19 cm x 18 cm on the left side chest upper part. No blackening, no tatooing. Average size 0. 4 cm. x 0. 4 cm x chest cavity deep and skin deep. 2. Contusion 3 cm x 1 cm on the front of the left shoulder upper part. 3. Four (4) Gun shot Wounds of entry in an area of 10 cm x 6 cm on the lateral side chest left side 3 cm below arm joint. Average side 0. 4 cm x 0. 4 cm x chest cavity and skin deep. 4. One gun shot wound of entry 0. 4 cm x 0. 4 cm x skin deep on the back of left arm 7 cms below elbow joint. One shot recovered. 5. Gun shot wound of entry 0. 4 cm x 0. 4 cm x chest cavity deep 13 cms below right nipple. 6. Gun shot wound of entry 0. 4 cm x 0. 4 cm x abdomen cavity deep on the right side abdomen 12 cm below injury No. 5. 7. Gun shot wound of entry 0. 4 cm x 0. 4 cm x skin deep, on the back of right elbow joint. One shot recovered. "on internal examination pleura, left lung pericardium and heart found punctured. ( 6 ) THE injured namely Nathoo, Dilawar, Smt. Jameelan, Nanhey and Haseena were examined by Dr. R. P. Goel, P. W. 1. The following injuries were found on their person :- nathoo :-"1. Lacerated wound 3 cm x 1 cm. x scalp deep on the right side head 7 cm above the right ear. 2. Lacerated wound 2 cm x 1/2 cm x scalp deep on back side head 3 cm behind left ear. 3. Lacerated wound 2. The following injuries were found on their person :- nathoo :-"1. Lacerated wound 3 cm x 1 cm. x scalp deep on the right side head 7 cm above the right ear. 2. Lacerated wound 2 cm x 1/2 cm x scalp deep on back side head 3 cm behind left ear. 3. Lacerated wound 2. 5 cm x 1 cm x scalp deep on the back and middle of head. 4. Abraded contusion 11 cm x 5 cm on the left shoulder blade in vertical position. 5. Contusion 18 cm x 4 cm. on left back 8 cm away and 15 cm below injury No. 4. 6. Contusion 24 cm x 5 cm on left to right side back in oblique direction at the level of umbilicus. 7. Contusion 8 cm x 2 cm in middle of lower 1/3rd back in Horizontal position. 8. Contusion 11 cm x 2 cm on the right shoulder blade. 9. Contusion 12 cm x 4 cm on outer back side of left forearm. 10. Punctured wound 1. 5 cm x 1 cm x 2 cm deep on left 3 cm below and at Oclock position from anterior superior iliac spine. dilawar :-"1. Gun shot wound of entry. 2 cm x. 3 cm x skin deep on right side head 9 cm above at 12 Oclock position from right ear. 2. Gun shot wound. 2 cm x. 2 cm x skin deep on right upper arm back side. 3. Abrasion. 2 cm x. 3 cm in oblique direction 4 cm away from injury No. 2 Oclock position. 4. Gun shot wound of entry. 2 cm x. 2 cm on middle of (Airposed on position) anterior axillary fold of right side. 5. Gun shot wound of entry. 2 cm x. 2 cm x skin deep on right side chest at 2 O clock position and 7 cm from injury No. 4. 6. Gun shot wound. 2 cm x. 2 cm and skin deep on back side of right forearm 11 cm above wrist joint. 7. Gun shot wound. 2 cm x. 2 cm x skin deep of entry just above the right iliac crest outer side. " jameelan :-"1. Gun shot wound of entry. 2 cm x. 2 cm x not measured with marked swelling 3 cm x 3 cm area right temporal side. Ad. X-ray head. 2. Bleeding from right ear seen. 7. Gun shot wound. 2 cm x. 2 cm x skin deep of entry just above the right iliac crest outer side. " jameelan :-"1. Gun shot wound of entry. 2 cm x. 2 cm x not measured with marked swelling 3 cm x 3 cm area right temporal side. Ad. X-ray head. 2. Bleeding from right ear seen. " haseena :-1. Gun shot wound of entry. 2. cm x. 2 cm x skin deep right middle of forearm back side. 2. Gun shot wound of entry. 2 cm. x. 2 cm x muscle. deep on outer upper 1/3rd of right thigh. X-ray advised. 3. Contusion 4 cm x 4 cm on the left hand back side. 4. Complaints of pain in left buttock. " ( 7 ) AFTER completing investigation, charge sheet was submitted against the appellants. ( 8 ) ACCUSED denied the allegations and stated that they have been falsely implicated. In their statements they admitted that the dacoity was committed in the house of Pir Bux in which Mohd. Sher and Usman were accused and that ended in acquittal. The defence taken was that another dacoity had taken place in the house of Chhotey and it was during that dacoity the injured of this case received injuries. ( 9 ) WE have heard Sri P. N. Misra, learned counsel for the appellants and Shri R. C. Deepak, learned A. G. A. at length. So far as the factum of the incident is concerned we are fully satisfied that it was established by the prosecution satisfactorily. The prosecution examined four eye witnesses name Nathu, P. W. 3 Dilawar, P. W. 4 Nanhey, son of Mahmood and P. W. 5 Jameelan. Except P. W. 4 Nanhey the other three are injured witnesses. We agree with the learned Sessions Judge that the factum of injury, as corroborated by medical evidence, is an added guarantee to the presence of the eye witnesses nathu, Dilawar and Jameelan and their statements in regard to the occurrence cannot be disbelieved unless compelling reasons are shown for taking a contrary view. No such reasons have been shown. All the eye witnesses have made consistent statements regarding the place of occurrence and manner of assault and have supported the prosecution version as given in the first information report. No such reasons have been shown. All the eye witnesses have made consistent statements regarding the place of occurrence and manner of assault and have supported the prosecution version as given in the first information report. We have gone through the statements of these witnesses thoroughly and in our opinion they are truthful witnesses, nothing could be elicited in the cross-examination which could cast doubt on their veracity. ( 10 ) LEARNED counsel for the appellants, however, sought to challenge these statements on the ground that their statements under Section 161, Cr. P. C. were recorded after one and a half month. Further ground of challenge was with reference to the defence of the appellants in the trial court to the effect that, in fact, a dacoity had taken place in the house of Chhotey and it was during that dacoity the injured got the injuries. We are unable to accept any of these submissions. So far as the statements under Section 161, Cr. P. C. are concerned it will appear that the statement of P. W. 4 Nanhey was recorded on 28-7-1977 itself. It is true that the statements of the other alleged eye witnesses were recorded after much delay but, in the fact and circumstances of the case, we do not think it to be material. Delay in examination of witnesses under Section 161, Cr. P. C. may not, by itself, amount to serious infirmity in the prosecution case. It may be so, if, in the facts and circumstances of a case, the explanation given for delay is found to be unjustified. No such explanation was asked from the investigating officer Mahavir Prasad (P. W. 8 ). The witnesses in this case P. W. 2 Nathu, P. W. 3 Delawar and P. W. 5 Jameelan were injured and were examined medically on 28-7-1977 itself from 10. 15 a. m. to 11. 30 a. m. This is also a circumstance against the inference sought to be drawn. ( 11 ) THE submission regarding the occurrence of the dacoity and the witnesses getting injuries during the course of that dacoity is equally untenable. According to the defence version, as disclosed in the statement of Ali Ahmad under Section 313, Cr. P. C. , dacoity had taken place in the house of Chhotey. ( 11 ) THE submission regarding the occurrence of the dacoity and the witnesses getting injuries during the course of that dacoity is equally untenable. According to the defence version, as disclosed in the statement of Ali Ahmad under Section 313, Cr. P. C. , dacoity had taken place in the house of Chhotey. If that were so, there is hardly any explanation as to how Nathu, Dilawar and Haseena who lived separately got these injuries. No report of the alleged dacoity appears to have been made. None has been filed. Nor there is any positive evidence to that effect. The presence of blood stains Tikli, Pellet and two cartridges near the scene of occurrence, in fact support the prosecution version regarding the place of occurrence and the factum thereof. The version of the defence is further negatived by the medical reports and the post mortem report indicating the possible time of occurrence. ( 12 ) MUCH stress was laid by the learned counsel for the appellant on the statement of P. W. 5 Jamelan. Jameelan was declared hostile at the instance of the prosecution. It is true that at one place, Jameelan admitted the commission of dacoity at her house but perusal of her entire statement leaves no doubt that even according to her the dacoity did not take place at or about the time when this occurrence took place. In view of the positive statements of the prosecution witnesses and the other facts and circumstances, indicated above, it is not possible to accept the vague suggestion of the appellants regarding dacoity. ( 13 ) IN this connection it may be observed that merely a suggestion to the witnesses cannot be sufficient to establish a defence. A suggestion in cross examination can only be indicative of the case put forward or the stand taken by the party on whose behalf the cross-examination is being conducted - To no extent whatsoever can it be a substitute for evidence if it is clearly repudiated by the witness to whom it is made, (Birkesh v. State, 1969 AWR 369 p. 370 ). In the present case, as already indicated above, the statement of P. W. 5 Jameelan cannot be of any help to the appellants. On overall consideration of her statement, it appears that she has repudiated the suggestion of commission of dacoity on that day. In the present case, as already indicated above, the statement of P. W. 5 Jameelan cannot be of any help to the appellants. On overall consideration of her statement, it appears that she has repudiated the suggestion of commission of dacoity on that day. The other witnesses have denied this suggestion categorically. There is no other evidence on record indicating far less proving the commission of the dacoity in the house of Chhotey on or immediately before the date of occurrence. We accordingly reject the submission of the learned counsel for the appellant in regard to the defence version. ( 14 ) WE do not also find any force in the submission of the learned counsel for the appellant to the effect that the first information report is antetimed. The photo lash Ex. Ka. 10, Chalan lash Ex. Ka. 11 and sample sealed Ex. Ka. 12 do contain the crime number. This shows that the FIR had already come into existence earlier. In this connection it may also be observed that the injured had already, been examined by Dr. R. P. Goel P. W. 1 from 10. 15 a. m. to 11. 30 a. m. on 28-7-1977 itself. We have already indicated above that the statements of the witnesses of the prosecution are trustworthy and considering the over all facts and circumstances of the case we cannot give much weight to the discrepancy indicated by the learned counsel. In this connection it may be observed that no such circumstance has been put to the investigating officer and his explanation has not been obtained in regard to the alleged discrepancy. It is settled law that, unless witness is cross-examined on a particular matter the Court cannot presume something adverse to the witness or to the prosecution version. It is necessary to draw his attention to the alleged discrepancy before any adverse circumstances can be taken into consideration. In State of U. P. v. Anil Singh, 1988 All Cri R 621, it was contended before the Honble Supreme Court that non-mentioning of the time of despatch of FIR to the Court would lend support to the submission that F. I. R. was prepared after the inquest. The Honble Supreme Court rejected this submission and observed :-"we carefully examined the material on record. In the first place, P. W. 1 was not specifically cross examined on this matter. The Honble Supreme Court rejected this submission and observed :-"we carefully examined the material on record. In the first place, P. W. 1 was not specifically cross examined on this matter. The Court cannot, therefore, presume something adverse to the witness unless his attention is specifically drawn to it. " ( 15 ) NOTHING to the contrary would appear to have been laid down in the decisions relied upon by the learned counsel and, in our opinion, in the facts and circumstances of the case, those decisions will not be of any help to the appellants. In Manohar v. State, 1983 All Cri C 64, there was some discrepancy between the distance of police station in the First Information report and inquest report. It will appear from the perusal of the facts that the attention of the investigating officer was specifically drawn towards this discrepancy and his explanation was not found to be satisfactory. It was on account of these facts that the Division Bench of this Court hold that if a copy of the first information report were in existence there was no reason why the same distance between the place of occurrence and the police station should not have been mentioned. The Division Bench found the case of the prosecution doubtful on the ground that the time mentioned in the Chalan lash and the F. I. R. was different. As noted above the attention of the investigating officer was also drawn towards this discrepancy and his explanation was found to be unsatisfactory. In the present case the relevant facts are mentioned in the Chalan lash and Photo lash and as stated above, the attention of the investigating officer was not drawn towards any alleged discrepancy. That being so this decision can be of no help to the appellants. ( 16 ) IN Shyama Charan v. State, 1985 ACJ 8 (sic) : (1984 All LJ 1303), another Division Bench of this Court noticed the discrepancy between the time mentioned in the FIR and the inquest report. The Bench further noticed some manipulation in the inquest report, for which explanation was asked from the Sub-Inspector and his explanation was not found satisfactory. In this circumstances the Division Bench held that the F. I. R. was antetimed. The Bench further noticed some manipulation in the inquest report, for which explanation was asked from the Sub-Inspector and his explanation was not found satisfactory. In this circumstances the Division Bench held that the F. I. R. was antetimed. It is not clear from this report as to whether the discrepancy in regard to the distance was put to the investigating officer and his explanation was obtained. In view of what Honble Supreme Court has held, such an alleged adverse circumstance cannot be read against the prosecution unless the matter was put to the witness and his explanation is obtained. For these reasons, we do not think that this decision could be of any help to the appellant either. ( 17 ) WE may not be understood to be holding that discrepancies of the kind, pointed out by the learned counsel, namely a difference in the distance in the FIR and the inquest report or a failure to mention other relevant particulars in any such papers cannot, in any circumstances, be taken to be an adverse circumstance against the prosecution version. What we do hold is, that no such circumstance can he read against the prosecution unless it is put to the concerned witness and his explanation is obtained. We will also like to observe that mere discrepancy of this nature will not be conclusive of the fact that FIR is antetimed but that could be only one of the circumstances to be taken into consideration in the background of the entire facts and circumstances of the case and not insulation. If, on such consideration, the statements of the prosecution witness are found to be trustworthy, mere discrepancy may not be material. However, if there is some doubt about the statement of the witnesses in this regard and explanation given by the concerned witness relating to the discrepancies is not found to be satisfactory, the discrepancy may be held to be material, adversely affecting the prosecution case. Accordingly, the submission of the learned counsel for the appellants, based on the discrepancy in the FIR and the inquest report as to the distance of the police station must be rejected. ( 18 ) HOWEVER, there appears to be much force in the submission of the learned counsel for the appellants that, even if it is held that Mohd. Accordingly, the submission of the learned counsel for the appellants, based on the discrepancy in the FIR and the inquest report as to the distance of the police station must be rejected. ( 18 ) HOWEVER, there appears to be much force in the submission of the learned counsel for the appellants that, even if it is held that Mohd. Sher and Ali Ahmad fired at and killed Mahmood and also injured Jameelan and Nanhey that was an individual act of those two persons and other appellants cannot be held responsible. The submission of the learned counsel for was that, the common object of the unlawful assembly was chastisement of Nathu and not his murder and further that the appellants, other than Mohd. Sher and Ali Ahmad, stopped at the place where Nathu was first surrounded and not accompany these two persons to the house of Mahmood. Since the common object of the alleged unlawful assembly was not to murder Nathu, they cannot be held vicariously liable under Section 149, I. P. C. for the murder of Mahmood. Before entering into the discussion of the facts we may remind ourself of the legal position in regard to Section 149, I. P. C. According to Section 149, I. P. C. , every member of unlawful assembly will be liable for :-1. Offences committed by a member of unlawful assembly in prosecution of the common assembly knew. 2. Offences which members of that assembly know to be likely to be committed in prosecution of the common object. It has to be further noticed that in order to find accused guilty with the aid of Section 149, I. P. C. , the following ingredients must be established :-1. There should be unlawful assembly having common object as mentioned in Section 141, I. P. C. , 2. The common object of the unlawful assembly must be known to the member of the assembly or be such as the members of that assembly known to be likely to be committed in prosecution of that object. 3. An overt act, as mentioned in Section 141, must be committed by one or more members of the assembly. 4. A person who is to be made liable with the aid of Section 149, I. P. C. must be shown to have been a member of that unlawful assembly at the time when the offence was committed. 3. An overt act, as mentioned in Section 141, must be committed by one or more members of the assembly. 4. A person who is to be made liable with the aid of Section 149, I. P. C. must be shown to have been a member of that unlawful assembly at the time when the offence was committed. The explanation to Section 149, I. P. C. further indicates that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. The common object may develop at any subsequent stage and the persons who shared the common object at that point of time will be held responsible. The expression "at the time of committing that offence" will also mean that, even if the persons concerned was a member of unlawful assembly, having common object along with the other members of the assembly he may at any later stage cease to be a member of the unlawful assembly. No specific declaration may be necessary for indicating that he ceased to be a member of that unlawful assembly. That will have to be inferred from the facts and circumstances of each case. An overt act by such a person will, no doubt, establish his membership of an unlawful assembly and would lend full assurance to such a charge. However, it is not necessary that he must necessarily commit an overt act for being liable under Section 149, I. P. C. ( 19 ) IN this connection it may also be observed that the common object of the Assembly may be less grave than the offence which may be ultimately committed by one or more members of the assembly. If that graver offence was likely to be committed in pursuance of the common object of the assembly, the members of the assembly will be responsible. However, if it is found that the graver offence that was actually committed by one or more members of the assembly had no nexus with the common object of the assembly, it may then be a matter for consideration whether or not that person who did not commit that graver offence himself should or should not be held liable. That will again depend upon the particular facts and circumstances of the case. That will again depend upon the particular facts and circumstances of the case. In Allauddin Mian v. State of Bihar, 1989 All Cri C 400, the common object of the unlawful assembly was to commit murder of P. W. 6 Bahrain Main. However, he managed to place himself beyond the reach of the members of the unlawful assembly. He wanted to come out of his house but his wife prevented him from doing so. When the plan of the unlawful assembly stood frustrated, some of the members of the assembly attacked and killed two innocent girls who were playing outside. In these circumstances Honble Supreme Court held that the other members of the assembly could not he convicted under Section 302, I. P. C. with the aid of Section 149, I. P. C. The Honble Supreme Court has observed :- "since this Section imposes a constructive penal liability it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members new to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. " honble Supreme Court further observed :-"it is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. " after narrating the relevant facts, Honble Supreme Court observed as follows :- "it was not necessary to kill these girls to accomplish their object of killing P. W. 6 as these two girls had not prevented them from reaching P. W. 6 The learned counsel for the accused, therefore, rightly submitted that while accused Nos. 1 and 2 can be punished for their individual acts committed after the common object stood frustrated and abandoned on P. W. 6 placing himself beyond their reach, the other members of the unlawful assembly could not be punished for the acts of accused Nos. 1 and 2 as the killing of the girls was no part of the common object of the assembly. Once P. W. 6 was beyond the reach of his two tormenters, the common object to kill him stood frustrated and whatever the individual members did hereafter could not be said to have been done in prosecution of the common object of the assembly. " (Emphasis supplied ). ( 20 ) IN the present case, the evidence disclosed that the accused had animus against Nathu, when he was coming from the fields towards his house he was surrounded and assaulted by the persons who were armed with lathis, Mohd. Sher and Ali Ahmad, who were armed with guns, stood aloof and did not fire at Nathu. The person who allegedly had spear did not also attack Nathu at that point of time. When Nathu was attacked with lathis he tried to escape and then only he was attacked with spear. These injuries, relating to spear, were kept under observation but it does not appear that any supplementary report was obtained. The other injuries, as reported by the doctor, are simple. If it were the intention of the unlawful assembly to murder Nathu, there was no reason why Mohd. Sher and Ali Ahmad would not have fired at him or the person wielding spear did not attack him initially. ( 21 ) LEARNED Additional Government Advocate referred to the statements of Nathu and other witnesses, to effect that the appellant Ali Ahmad and Chimman had exhorted others to kill him. Sher and Ali Ahmad would not have fired at him or the person wielding spear did not attack him initially. ( 21 ) LEARNED Additional Government Advocate referred to the statements of Nathu and other witnesses, to effect that the appellant Ali Ahmad and Chimman had exhorted others to kill him. We are convinced that this statement is quite an after-thought. No such averment has been made in the F. I. R. and the investigating officer deposed that no such statement was made by the witnesses in the statements under Section 161, Cr. P. C. We have indicated above that the object of the unlawful assembly may have to be gathered from, the particular facts and circumstances. As has been noticed above, if the intention were to murder Nathu. There was no reason why the persons who had firearms should not have fired at him. Accordingly, we agree with the learned counsel for the appellant that the common object to the unlawful assembly was not to commit the murder of Nathu. ( 22 ) NATHU escaped from the place he was assaulted and hid himself inside the house of Mahmood. According to the prosecution it was at the house of Mahmood that the two of the appellants Mohd. Sher and Ali Ahmad fired at and killed him when he scolded them. The question is whether the other accused could be said to have shared the common object of murdering Mahmood or they knew this to be likely in prosecution of the common object of the unlawful assembly. We do not think so. It is in the statement of P. W. 3 Dilawar that on being asked by Mahmood the accused, who were assaulting Nathu, left him, in his cross-examination he has admitted that those persons who were assaulting Nathu did not follow him and remained at the place where they were first assaulting him. That place is admittedly at some distance from the house of Mahmood. ( 23 ) WE do not know and there is no indication in the evidence as to what transpired between Mahmood and Mohd. Sher and Ali Ahmad but what we do find from the evidence on record is that the appellants other than Mohd. That place is admittedly at some distance from the house of Mahmood. ( 23 ) WE do not know and there is no indication in the evidence as to what transpired between Mahmood and Mohd. Sher and Ali Ahmad but what we do find from the evidence on record is that the appellants other than Mohd. Sher and Ali Ahmad did not follow Nathu any further and stopped just at the place where they were first assaulting him Nathu having escaped and the other appellants having not followed him. The common object of the assembly would appear to have come to an end. We have noticed above that it was not the common object of the assembly to murder Mahmood nor there is any reliable evidence to the effect that Mohd. Sher and Ali Ahmad fired at and killed Mahmood in furtherance of common object of the unlawful assembly. ( 24 ) THE facts of the present case would appear to be similar to the facts of the aforesaid case of Honble Supreme Court. The person who was intended to be assaulted had escaped and it was no part of the common object of the assembly to cause the murder of Mahmood. Besides the facts, as noted above, it may also be indicated that if it were really necessary to commit the murder of Mahmood in order to reach nathu, the other member of the assembly must have made attempt to reach him as he was allegedly hidingb himself inside the house but no such attempt would appear to have been made. Therefore, it is reasonable to hold that committing the murder of mahmood was an individual act of Mohd. Sher and Ali Ahmad. That being so, other appellants cannot be held responsible with the aid of Section 149, I. P. C. and their conviction and sentence under Sections 302/149, I. P. C. cannot be sustained. For the same reason, their conviction and sentence under Section 307/149, I. P. C. in respect of Jameelan and Nanhey also cannot be sustained. ( 25 ) SO far as Mohd. Sher and Ali Ahmad are concerned the statement of all the prosecution witnesses, including injured witnesses, conclusively prove that they fired at and killed Mahmood. Their statements are fully corroborated by the post mortem report and the other facts and circumstances noted above. ( 25 ) SO far as Mohd. Sher and Ali Ahmad are concerned the statement of all the prosecution witnesses, including injured witnesses, conclusively prove that they fired at and killed Mahmood. Their statements are fully corroborated by the post mortem report and the other facts and circumstances noted above. Therefore, it will be just and proper that the conviction of these two appellants alone be maintained under Section 302/34 I. P. C. for committing the murder of Mahmood. For the same reason these two appellants only should be held guilty of offence under Section 307/34, I. P. C. relating to Jameelan and Nanhey. There is no legal impediment in convicting these appellants only with the aid of Section 34, I. P. C. . ( 26 ) IN view of the facts and the reasons indicated in the earlier part of the judgment, the conviction of the appellants under Section 307/49, I. P. C. , in respect of Nathu, can also be not maintained and instead they should be convicted under Section 324/149, I. P. C. ( 27 ) FOR the aforesaid reasons, the appeal had to be and is partly allowed. The conviction and sentence of Saddiq, Chimman and Achchan under Section 302/149, I. P. C. and 307/149, I. P. C. (in respect of Jameelan and Nanhey) are set aside. The conviction of these appellants under Section 307/149, I. P. C. , in respect of Nathu, is also set aside and, instead, they are convicted under Section 324/149, I. P. C. and sentenced to three years rigorous imprisonment. Their conviction and sentence on other counts is maintained. ( 28 ) THE conviction and sentence of Mohammad Sher and Ali Ahmad under Section 302/149, I. P. C. is set aside and, instead, they are convicted under Section 302/34, I. P. C. and sentenced to imprisonment for life. Their conviction under Section 307/149, I. P. C. (in respect of Jameelan and Nanhey) is set aside and, instead they are convicted under Section 307/34, I. P. C. and sentenced to three years rigorous imprisonment. The conviction of these appellants under Section 307/149, I. P. C. , in respect of Nathu, is set aside and, instead they are convicted under Section 324/149, I. P. C. and sentenced to three years regorous imprisonment. The conviction and sentence of these appellants on other counts is maintained. The conviction of these appellants under Section 307/149, I. P. C. , in respect of Nathu, is set aside and, instead they are convicted under Section 324/149, I. P. C. and sentenced to three years regorous imprisonment. The conviction and sentence of these appellants on other counts is maintained. ( 29 ) THE sentences, as modified herein, shall run concurrently as directed by the Sessions Judge. The appeal for the rest part is dismissed. ( 30 ) THE appellants are on bail. Their bail bonds are cancelled. They shall surrender and shall be taken into custody to undergo the sentences awarded to them. ( 31 ) THE appeal of Meer Jadhey and Mohd. Yaseen, who died during the pendency of appeal, stands abated as already directed. Appeal partly allowed. .