JUDGMENT R.M. Lodha, J. - The correctness of the conviction and sentence awarded to the accused/ appellants by the Additional Sessions Judge, Chandrapur in Sessions Case No. 29 of 1.990 vide judgment dated 31.1.1991 for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and also under Sections 147 and 148 of the Indian Penal Code is questioned in this appeal. The Additional Sessions Judge, Chandrapur has awarded sentence to suffer life imprisonment to the accused/appellants for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentence to suffer rigorous imprisonment for one year on each count for the offences punishable under Sections 147 and 148 of the Indian Penal Code. The above sentences have been ordered to run concurrently. 2. Accused/appellants Bhurya @ Sulshan (A1), Malhari (A2) and Shripati (A3) along with Babu Waghu Darjode, Bandu Malhari Shende and Kashiram Pirappa Daokate were charged that they along with two other absconding accused in the intervening night of 16.9.1989 and 17.9.1989 at mouza Sorakasa Shiwar formed unlawful assembly and in prosecution of common object, did commit murder by intentionally or knowingly cousin the death of Vitthal Narayan Mane and thereby committed an offence punishable under Section 302 read with Section 149 of the Indian Penal Code. All the accused persons were also charged that they were the members of unlawful assembly with the common object of stabbing, cutting and killing Vitthal Mane and at that time, they were armed with deadly weapon to be used as a weapon of an offence likely to cause death and thereby committed offences punishable under Sections 147 and 148 of the Indian Penal Code. 3. According to the prosecution case unfolded during trial, in the intervening night of 16.9.1989 and 17.9.1989 Vitthal Mane was sleeping on the cot in the cattle shed and at some distance in Mala, Tukaram (P.W. 3) and Ranba (P.W. 9) were sleeping. Both, P.W. 3 Tukaram and P.W. 9 Ranba heard the noise and voice of Bhurya and they got up. They saw 8-9 persons running to Mala where they were sleeping. They identified AI Bhurya, A2 Malhari and A3 Shripati amongst those 8-9 persons. P.W. 3 Tukaram and P.W. 9 Ranba conceased themselves and those 8-9 persons went away. Both, P.W. 3 Tukaram and P.W. 9 Ranba heard the noise and voice of Bhurya and they got up. They saw 8-9 persons running to Mala where they were sleeping. They identified AI Bhurya, A2 Malhari and A3 Shripati amongst those 8-9 persons. P.W. 3 Tukaram and P.W. 9 Ranba conceased themselves and those 8-9 persons went away. Thereafter P.W. 3 Tukaram and P.W.9 Ranba went to cattle shed where Vithal was sleeping and found him lying outside the cattle shed and he was already dead having bleeding injuries on his neck, stomach and other parts of the body. P.W. 3 Tukaram went to Police Out-post, Teka Mandwa and from there wireless message of the incident was given to Rajura Police and on the basis of the wireless message, First Information Report (Exhibit 64) was lodged. M.B. Chate, Police Inspector (P.W. 10) started investigation. Inquest Panchanama (Exhibit 65) in presence of Mehboob Sahab Allaudin and Sambhaji Ramrao Gandhiji was prepared. The Investigating Officer also prepared spot panchanama. The dead body of Vithal was sent for post mortem and Dr P.N. Swami conducted post-mortem and the post mortem report is at Exhibit 39 on record. On the body of the deceased, four incised wounds were found. One incised wound was found on the left parielate region of head while another incised wound was found in front of neck above cricoid cartilage. Third incised wound was found on the little finger of the left hand of the deceased and fourth injury was found on the left lateral side of waist above iliacrest on the body of deceased. According to the medical opinion, Vithal died due to shock and injury to Trachea which was a corresponding injury to external injury No.2 and that was sufficient in ordinary course of nature to cause death and could be caused by sham object. The Investigating Officer recorded statements of various witnesses including the statements of Tukaram (P.W. 3) and Ranba (P.W. 9) and also recovered stick, axe, arc knife, in presence of panchas along with other articles. On conclusion of investigation, the Investigating Officer challaned the accused/appellants and four others for the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and all the seven accused persons were charged for the aforesaid offences. 4. On conclusion of investigation, the Investigating Officer challaned the accused/appellants and four others for the offences punishable under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code and all the seven accused persons were charged for the aforesaid offences. 4. The prosecution in support of its case in trial examined Saiyyad Mehboob Sahab s/o AIlauddin (P.W. l), Dr. Pundlik s/o Narayan Swami (P.W.2), Tukaram s/o Vithal Mane (P.W.3), Deorao s/o Maroti Bangir (P.W.4), Sambha s/o Venkati Saigar (P.W.5), Kisan s/o Budha Rathod (P.W.6), Ramesh s/o Gopal Tak (P.W. 7), Lobeshwar s/o Vithal Jhulme (P.W. 8), Ranba s/o Ithoba Dukre (P.W. 9) and Manikrao s/o Baburao Chate (P.W. 10), and also exhibited various documents. 5. Statements of accused persons under Section 313 Cr. P.C. were recorded and their defence was of total denial. 6. The Additional Sessions Judge, Chandrapur after hearing the Public Prosecutor and the learned counsel for accused persons, found that prosecution was successful in proving the case against accused/appellants (A1 to A3) for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code as also under Sections 147 and 148 of the Indian Penal Code. The leaned Additional Sessions Judge concluded that the said accused persons (A1 to A3) took the help of another assailants and formed unlawful assembly to cause the death of Vithal Mane intentionally. The other accused persons were given benefit of doubt by the learned Additional Sessions Judge. 7. We have heard Mr. M.R. Daga, the learned counsel for. accused/appellants and Mr. D.N. Kukdey, A.P.P. for State and perused record of the case. 8. Mr. Daga, the learned counsel appearing on behalf of the accused/appellants strenuously urged that the prosecution has not been able to establish any case against the accused/appellants, Mr. Daga submitted that the prosecution his suppressed report lodged by Tukaram (P.W. 3) at the Police Out-Post, Teka Mandwa. In this connection, Mr. Daga submitted that P.W. 3 Tukaram has admitted that he lodged report with Police Out-post, Teka Mandwa and the police reduced his report in writing and obtained his thumb impression. Mr. Daga further submitted that though the accused persons were alleged to be carrying sticks, the injuries sustained by deceased Vithal were incised wounds and the said injuries could not be caused by sticks and that also negatives the involvement of the accused/appellants in the crime. Mr. Mr. Daga further submitted that though the accused persons were alleged to be carrying sticks, the injuries sustained by deceased Vithal were incised wounds and the said injuries could not be caused by sticks and that also negatives the involvement of the accused/appellants in the crime. Mr. Daga vehemently contended that P.W. 3 Tukaram has deposed that he heard voice of accused Bhurya uttering "Anna Kaapu Nako Re" and that showed that deceased Vithal was done to-death by naxalites and then according to P.W.3 Tukaram, he thought that nexalites might be assaulting his father. The learned counsel for the accused/appellants also urged that intervening night of 16.9.1989 and 17.9.1989 was dark night and, therefore, the statements of P.W.3 Tukaram and P.W.9 Ranba could not be believed that they identified Al Bhurya, A2 Malhari and A3 Shripati amongst 8-9 persons. Mr. Daga also submitted that there were material contradictions in the deposition of P.W. 3 Tukaram, P.W. 4 Deorao and P.W. 9 Ranba and, therefore, their testimony was not reliable and in the facts and circumstances of the case, benefit of doubt should go to the accused persons. It was also urged by the learned counsel for appellants that since the Additional Sessions Judge has acquitted the other accused persons except the appellants (A1 to A3), no case for convicting the appellants for the offences punishable under Section 302 read with Section 149 and Sections 147 and 148 of the Indian Penal Code could be said to have been proved. 9. Mr. Kukdey, the learned A.P.P. in opposition to the submissions made by the learned counsel for the accused/appellants, supported the reasons given by the Additional Sessions Judge, Chandrapur in the impugned judgment. The learned A.P.P. submitted that on the face of testimony of P.W. 3 Tukaram and P.W. 9 Ranba and the other incriminating circumstances which have been duly established by prosecution, it cannot be said that the Trial Court committed any error in convicting the accused/appellants for the offences punishable under Section 302 read with Section 149 and Sections 147 and 148 of the Indian Penal Code. The learned A.P.P. also submitted that the Trial Court has found as a fact that the number of persons who formed the unlawful assembly was more than 5 and the said finding was duly based on the evidence on record and, therefore, merely because only three persons have been convicted for killing of Vithal in prosecution of common object of the unlawful assembly, it cannot be said that any illegality or material irregularity has been committed by the Trial Court. In support of his contention, the learned A.P.P. relied upon Bharwad Mepa Dana anr. v. The State of Bombay1. 10. We have bestowed our anxious consideration to the rival contentions of the learned counsel for parties and examined the record in the light of the submissions made by them. 11. There is no challenge to the finding recorded by the Additional Sessions Judge that death of Vithal Narayan Mane was homicidal. 12. P.W. 3 Tukaram is son of deceased Vithal, Al Bhurya is elder brother of deceased Vithal and A2 Malhari is son of Al Bhurya. P.W. 3 Tukaram has deposed that during the night of 16.9.1989, he, his father, and uncle Ranba (P.W. 9) took meals together. Vithal was sleeping in the cattle shed of the field and at some distance in the Mala, he (P.W. 3 Tukaram) and Ranba (P.W. 9) were sleeping. While he was sleeping, he heard the noise and words "Anna Kaapu Nako Re" and the voice was of Al Bhurya. His uncle Ranba (P.W. 9) also got up from the sleep and he saw 8-9 persons came running to Mala where they were sleeping and those persons were having sticks. He identified Al Bhurya, A2 Malhari and A3 Shripati amongst those 8-9 persons. He and his uncle concealed their presence in the crops of Jawar and when 8-9 persons went away, P.W. 3 Tukaram and his uncle Ranba went to cattle shed where his father was sleeping and he saw, his father lying outside the cattle shed and he was already dead. He saw bleeding injuries on the neck, stomach and head of his father. His uncle went near the body of his father and he went to his house, narrated the incident to his mother and went alone to Police Out-post, Teka Mandwa and lodged report there. He saw bleeding injuries on the neck, stomach and head of his father. His uncle went near the body of his father and he went to his house, narrated the incident to his mother and went alone to Police Out-post, Teka Mandwa and lodged report there. According to him, police reduced his report in writing and obtained his thumb impression and Rajura Police were informed by wireless. He has also deposed that there was dispute about partition of field between his father and Al Bhurya. He also testified .that his father used to call A I Bhurya 'ANNA' being his elder brother'arid eight days prior to the incident, A2 Malhari had threatened him saying that he would kill him and his father. In cross-examination, P.W. 3 Tukaram has deposed that it was the night of full moon. He also deposed in cross-examination that he thought that nexalites might be assaulting his father and, therefore, he and his uncle did not get down from Mala. He has denied the suggestion that he did not hear noise of Al Bhurya or that he could not identify Al to A3 in the moon. He has also deposed in cross-examination that A3 Shripati resided at Shengaon and his father had never quarreled with said Shripati. 13. P.WA Deorao has deposed that on the day of incident during night he was with Vithal in the cattle shed. He further deposed that 5-7 persons had entered the field with axe and sticks and one of the assailants gave a stick blow on his back. According to him, A2 Malhari assaulted him with the stick and he identified Al to A3 amongst assailants. He also deposed that one Deorao Langge was also sleeping with him in the cattle shed. In cross-examination, he testified that it was dark night and his statement was recorded by police after four days. He also deposed that Tukaram (P.W.3) could not see him and he had not met Tukaram after incident. 14. P.W. 9 Ranba whose wife is real sister of wife of deceased Vithal, has deposed that on that fateful night he and Tukaram after having meals, went to sleep on the Mala and deceased Vithal was sleeping near the door of cattle shed in the field he has also deposed that while he was sleeping, he heard, (x x x.x) and those words were spoken by deceased Vithal. According to him, he also heard Bhurya uttering (x x x x) and that was the voice of Bhurya. According to him, 8-9 persons came to that Mala where they were sleeping and they concealed themselves in the crops of Jawar. He identified Al Bhurya, A2 Malhari and A3 Shripati and the assailants came near Mala and went away. Thereafter he and Tukaram (P.W. 3) went near cattle shed and found Vithal lying on the ground with bleeding injuries on his head, neck and waist and Vithal was already dead. He also deposed that it was a moon night. In cross-examination, he has denied that nexalites had threatened the deceased to kill him. He also denied the suggestion that it was not true that he had not seen the assailants near Kotha from Mala. In crosse-xamination he has also deposed that he had no occasion to meet A3 Shripati during the last six months prior to incident and he had not seen him in the last six months. 15. Presence of P.W. 4 Deorao along with deceased Vithal in the cattle shed is highly doubtful. P.W. 3 Tukaram does not say that P.W. 4 Deorao was present in the cattle shed where deceased Vithal was sleeping. P.W. 9 Ranba also has not deposed about the presence of P .W. 4 Deorao in the cattle shed at the time of incident. In this view of the matter, no reliance can be placed on the testimony of P.W.4 Deorao and he has rightly been discarded by the Trial Court. 16. However, a careful and close scrutiny of the testimony of P.W. 3 Tukaram and P.W. 9 Ranba would show that on material aspects their testimony is consistent. It is established from their testimony that there were 8-9 assailants. Both of them have seen those assailants coming towards Mala and due to fear, P.W. 3 Tukaram and P.W.9 Ranba concealed themselves. It is also established from their testimony that the fateful night was of full moon and they could not have any difficulty in identifying Al Bhurya and A2 Malhari. Al Bhurya was real brother of deceased Vithal and, thus, real uncle of P.W. 3 Tukaram and A2 Maltari is son of Al Bhurya and thus, cousin of P.W. 3 Tilaram. It is also established from their testimony that the fateful night was of full moon and they could not have any difficulty in identifying Al Bhurya and A2 Malhari. Al Bhurya was real brother of deceased Vithal and, thus, real uncle of P.W. 3 Tukaram and A2 Maltari is son of Al Bhurya and thus, cousin of P.W. 3 Tilaram. Though P.W. 3 Tukaram has deposed that he heard the noise and words (x x x x) and said voice was of Al Bhurya, this appears to be a slip of tongue when his further deposition is considered to the effect that deceased Vithal used to call (x x x x) to AI Bhurya. AI Bhurya and A2 Malhari, thus, are close' relatives of P.W. 3 Tukaram and they were not strangers. The testimony of P.W. 3 Tukaram, therefore, could be safely relied upon that he identified AI Bhurya and A2 Malhari amongst 8-9 assailants. As regards A3 Shripati, however, it would not be safe to rely upon the testimony of P.W. 3 Tukaram and P.W. 9 Ranba. Shripati is neither related to Tukaram nor he is resident of that village. His name also did not find place in the First Information Report. In their police statements (Exhibits 70 and 71) also, P.W. 3 Tukaram and P.W. 9 Ranba have not named said Shripati. Therefore, so far as A3 Shripati is concerned, he deserves to be given benefit of doubt and merely on the basis of discovery of Article-1 Dagger and seizure of Torch at his instance, it would not be safe to convict A3 Shripati. Case of A3 Shripati therefore, can net be said to be better than those accused persons who have been acquitted by the Additional Sessions Judge: 17. After considering the deposition of P.I. Manikrao Chate (P.W. 10), we do not find any merit in the contention of the learned counsel for appellants that the prosecution has suppressed the report lodged by P.W. 3 Tukaram at Police Out-Post, Teka Mandwa. He has deposed that he was informed from Teka Mandwa Police Out-post that Vithal Mane, resident of Raipelli Kd. was murdered. He then immediately asked on wireless to Police Out-post, Teka Mandwa to give him information as to how Vithal Mane was murdered and who caused the death. He has deposed that he was informed from Teka Mandwa Police Out-post that Vithal Mane, resident of Raipelli Kd. was murdered. He then immediately asked on wireless to Police Out-post, Teka Mandwa to give him information as to how Vithal Mane was murdered and who caused the death. He deposed that Head Constable Janardhan (B/No. 363) conveyed wireless message to him which was reduced into writing by wireless constable and the said wireless message is Exhibit 63 on record. On the basis of wireless message (Exhibit 63), he registered the offence under Sections 149 and 302 of the Indian Penal Code vide Crime No. 201/89. A perusal of wireless message (Exhibit 63) does not show that the report given by P.W. 3 Tukaram was reduced in writing. In this view of the matter, it cannot be said that prosecution has suppressed the report lodged by P.W. 3 Tukaram at Police Out-post, Teka Mandwa. 18. There is also no merit in the contention of the learned counsel for the accused that the accused/appellants were alleged to be armed with sticks while the injuries sustained buy the victims were incised wounds and the said injuries could only be caused by sharp weapon. Axe has been recovered from A2 Malhari and according to Chemical Analyser's report it was found to have moderate number of blood stains ranging from about 0.1 cm to 1 cm in diameter situated mostly of front portion and blood was of group ‘A’. Since on the basis of the evidence on record, it is established that Al Bhurya and A2 Malhari were member of unlawful assembly, armed with deadly weapons having common object to murder Vithai Mane, Al Bhurya cannot escape from the constructive and vicarious liability merely because he was armed with stick and all injuries found on the person of deceased Vithal were incised wounds. Each and every member of unlawful assembly with common object, is guilty for the unlawful acts committed by any member of the unlawful assembly pursuant to common object and, therefore, once it is held that certain members were fou'1d to have formed unlawful assembly and an offence was committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly in prosecution of the common object of that object knew to the likely to be committed, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. There is no infirmity in the finding recorded by the Trial Court that Al Bhurya and A2 Malhari were members of the unlawful assembly and, therefore, Al Bhurya and A2 Malhari could not escape the liability of the offence punishable under Section 302 read with Section 149 and Sections 147 and 143 of the Indian Penal Code. 19. Section 149 of the Indian Penal Code makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Section 149 creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of the constructive guilt under Section 149 of the Indian Penal Code is mere membership of the unlawful assembly with the requisite common object or knowledge. Some overt act is neither necessary nor sine qua non to bring home charge under Section 149 of the Indian Penal Code. Once it has been found that accused/appellants Al Bhurya and A2 Malhari were members of unlawful assembly with the common object to commit murder of deceased Vithal, it is not required to see who was author of the injury/injuries nor did it require the prosecution to prove who of the members did which of the offensive acts. It is well settled that the fact that the other accused had been acquitted and the remaining accused who have been convicted, are less than five, cannot vitiate the conviction under Section 149 read with the substantive offence if there are other persons who may not have been identified but were party to the crime and together constituted the requisite number. In this background, therefore, the contention, of the learned counsel for the accused/appellants is devoid of any merit that since the other accused persons have been acquitted conviction of the accused during less than five for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code, cannot be maintained. 20. We are convinced that the Additional Sessions Judge, Chandrapur has not committed any error in convicting Al Bhurya and A2 Malhari for the offences punishable under Section 302 read with Section 149 of the Indian Penal Code and under Sections 147, 148 of the Indian Penal Code and the conviction and sentence awarded against these two accused persons do not warrant any interference by this Court. However, as regards A3 Shripati, he deserves to be given benefit of doubt for the reasons already stated above and, therefore, his conviction and sentence awarded by the Additional Sessions Judge, Chandrapur is liable to be set aside. 21. In the result, this criminal appeal is partly allowed. Accused Shripati s/o Hanumantu Kotgil is acquitted of the offences punishable under Section 302 read with Section 149 of the Indian Penal Code and Sections 147, 148 of the Indian Penal Code and sentence awarded to him is also set aside. He is ordered to be released forthwith if not required in any other case. However, as regards accused/appellants Bhurya @ Subhan s/o Narayan Mane and MalharL s/o Bhurya Mane, there is no merit in their appeal and conviction and sentence awarded by the Additional Sessions Judge, Chandrapur by the judgment dated 31.1.1991 is maintained. Criminal Appeal partly allowed. A3 acquitted. Conviction of Al and A2 confirmed. 1. AIR 1960 SC 289 .