JUDGMENT 1. - All the six appellants have preferred this joint appeal being aggrieved against the judgment and order dated, February 24, 1993 of Additional Sessions Judge, Kotputli, in Sessions Case No. 3/92 (Old No. 47/85) whereby they were convicted and sentenced as under:- Under Section 302/149 I.P.C. Imprisonment for life and to pay a fine of Rs. 1000/- each. In default of payment of fine, to undergo three months simple imprisonment. Under Section 325/149 I.P.C. Two years simple imprisonment and to pay a fine of Rs. 250/- each. In default of payment of fine, to undergo simple imprisonment for one month. Under Section 323/149 I.P.C. Three months simple imprisonment. Under Section 448 I.P.C. Three months simple imprisonment. The Court further directed that out of the fine Rs. 5000/- be paid to the legal heirs of deceased Parta and Rs. 1100/- each to the injured Smt. Bhoomi and Smt, Santo and Rs. 150/- to injured Sri Ram. 2. The facts of the case have been extensively described in the impugned judgment of the trial Court, as such, we need not repeat them in extension except to give necessary facts, in brief, which are thus:- That houses of the complainant party and the accused persons are situated adjoining to each other in `Dhani Sirsodhi' near village Datil. It appears that some dispute about a piece of land was going on between the parties and the land stood attached in a proceeding under section 145/146 Cr.PC. about 12-13 years prior to the present occurrence. In the year 1977, 1978, 1979, 1980 and 1984 some criminal cases were also initiated against members of the accused party on reports of the complainant party for the offences under sections 447, 379, 324, 323 and 325 I.P.C. etc. However, the immediate and proximate cause of the occurrence is stated that a cow belonging to the complainant party entered in `Guwadi' of the accused and the appellant Ram Karan drove it out, but it ensued some scuffle between him and RW. 7 - Jai Ram and his Bhabhi. This incident is alleged to have taken place at about 3 RM. on the day of occurrence. The prosecution story further goes that, thereafter, at about 7 PM. 7 - Jai Ram and his Bhabhi. This incident is alleged to have taken place at about 3 RM. on the day of occurrence. The prosecution story further goes that, thereafter, at about 7 PM. all the appellants and co-accused Malkhan came in Guwadi of the complainant party with weapons like farsa, axe and lathies and assaulted Sri Ram, Smt. Ghuma, Smt. Santo and the deceased Party who succumbed to the injuries sustained by him. A report of the incident was made by PW. 14 Sri Ram at Police Station, Pragpura and crime No. 12/85 was registered under Section 147, 148, 149, 323, 452 and 302 I.P.C. P.W. 20 Dr. Vinod Rai Vineet examined the injuries of Sri Ram, Smt. Santo wife of Sri Ram and Smt. Ghuma wife of Rameshwar vide injury reports Ex.P 41, P. 42 and P. 43. As per the injury reports, Sri Ram sustained 8 simple injuries by blunt object; Smt. Santo sustained three simple injuries by blunt object and Smt. Ghuma sustained five injuries, out of which four were opined to be simple and for one injury X-Ray was advised. PW. 19 Dr. Ajay Kumar, on X-Ray examination of Smt. Ghuma, detected a fracture of the ulna bone of her right hand.The post-mortem of the dead body of Part a was also conducted by PW. 20 Dr. Vinod Rai Vineeth and he found 12 injuries on his person. All the injuries except injury No. 12 were caused by blunt object. Injuries No. 1 and 2 were found on the scalp. For the sake of convenience Injury Nos. 1, 2 and 12 are reproduced as under: 1. Lacerated wound 4 cm x 1 cm x scalp deep over the occipital parietal region. There is fracture of occipita parietal bone. 2. Lacerated wound 3 cm x 1 cm x scalp deep over the right frontal region. On cut there is fracture of right frontal bone. 12. There is separation of 2 cm x 11/2 cm of the upper portion of left external ear pinna. Thus, the doctor found fracture of occipita parietal bone and fracture of right frontal bone of the deceased Parta. The cause of death was opined to be `coma' as a result of brain injury and multiple injuries all over the body. 3. After usual completion of investigation, a charge-sheet came to be filed against the appellants. Thus, the doctor found fracture of occipita parietal bone and fracture of right frontal bone of the deceased Parta. The cause of death was opined to be `coma' as a result of brain injury and multiple injuries all over the body. 3. After usual completion of investigation, a charge-sheet came to be filed against the appellants. Accused `Malkhan' could not be charge-sheeted as he was absconding. After committal, the accused were, tried before the Addl. Sessions Judge, Kotputli, under Sections 148, 302 or 302/149, 325 or 325/149, 448 and 323/149 I.P.C. 4. During trial, prosecution examined 20 witnesses. Out of them, PW. 1 Prabhat, P.W. 2 - Nanchha, P.W. 3 - Mst. Santo, P.W. 4 - Mst. Ghuma, PW. 5 - Surja, P.W. 6 - Mst. Prabhati, P.W, 7 - Sheo Narain and P.W. 14 - Sri Ram are eye-witnesses of the occurrence. P.W. 3 Mst. Santo, P.W. 4 - Mst. Ghuma and P.W. 14 - Sri Ram are injured eye-witnesses. The trial Court, placing reliance on the testimony eye-witnesses and corroborative evidence in the shape of F.I.R. and medical evidence convicted and sentenced the appellants as aforesaid.Learned counsel, appearing for the appellants, vehemently argued that even accepting the prosecution story in toto, the offence under section 302 I.P.C. is not made out against any of the appellants. Learned counsel contended that in the facts and circumstances of the case, the common object of the assembly was only to cause simple and grievous injuries to the members of the complainant party. It was also contended that occurrence was an off-shoot of an insignificant or trivial incident which is alleged to have been taken place on the day of incident between the appellant Ram Karan and P.W. 7 Jai Ram and that incident could hardly be a ground to form an unlawful assembly with a common object of committing murder of Parta. With regard to previous litigations between the parties, it was pointed out that they were going on for the last so many years and they were not of such serious nature so as to make a ground to form an unlawful assembly. With regard to previous litigations between the parties, it was pointed out that they were going on for the last so many years and they were not of such serious nature so as to make a ground to form an unlawful assembly. Learned counsel also pointed out that as per the prosecution case, the accused persons were armed with sharp edged weapons like axe, farsa etc., and the very fact that they did not use sharp side goes to show that they did not intend to commit murder of Parta or any other member of the complainant party. For the appellants, Smt. Bhanwari and Smt. Jhooti it was urged that they are ladies and possibility cannot be ruled out of their being falsely implicated on account of previous enmity and in any case, it was contended, they did not share the common object of committing murder or causing injuries to Parta. On the other hand, learned Public Prosecutor, assisted by the learned counsel for the complainant, with the same vehemence contended that there is strong motive on the record for forming an unlawful assembly to commit murder of Parta and other members of the complainant party. It was further contended that both the lady-accused actively participated in the assault, as such, they are equally liable with the aid of Sec. 149 I.P.C. 5. We carefully considered the above submissions. The precise and crucial question to be decided in this appeal, therefore, is whether common object of the assembly was to commit murder of Parta and whether all the appellants shared with the common object of the assembly. If the answer is given in negative, then, what offence is made out against the appellants and the sentence to be awarded?At the out-set, it may be stated that It is not disputed before us that the occurrence took place at the time and place as stated by the prosecution. It is also not in dispute that in the said incident P.W. 14 - Sri Ram sustained 6 simple injuries on his person which were caused by blunt object, P.W. 13 Smt. Santo wife of Sri Ram sustained three simple injures by blunt object, out of which one was grievous in nature being fracture of her ulna bone. It is also not in dispute that in the said incident P.W. 14 - Sri Ram sustained 6 simple injuries on his person which were caused by blunt object, P.W. 13 Smt. Santo wife of Sri Ram sustained three simple injures by blunt object, out of which one was grievous in nature being fracture of her ulna bone. It is also not disputed that the deceased Parta also sustained injuries in the same occurrence and he died due to the injuries sustained by him. 6. Section 149 I.P.C. creates a specific and distinct offence. In other words, it creates a constructive or vicarious liability of the members of an unlawful assembly for unlawful acts committed pursuant to the common object by any other member of the assembly. However, vicarious liability of the members of an unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly or to such-offence as the members of that unlawful assembly knew to be likely committed in pursuance of the object. It is true that once the case of a person falls within the ingredients of the Section, the question that he committed nothing with his own, would be immaterial. He cannot take the defence that he did not cause any injury to the deceased. It is also not necessary for him to do some overt-act. In a case of unlawful assembly, the prosecution is also not required to prove which specific overt-act was done by which of the accused. The section makes a member of the assembly responsible for the acts of each and all, merely because, he is a member of the unlawful assembly. However, from the evidence an accused can show that he/she shared the common object to a particular incident to be liable to the acts done in pursuance to the common object of the unlawful assembly to a particular extent only. 7. The first and the fore-most question that falls for consideration in this appeal is, whether the accused persons formed an unlawful assembly and if so, what was the common object of the assembly? So far the first part is concerned, the fact that all the accused persons entered in the Guwadi of the complainant party with weapons undoubtedly makes it clear that they formed an unlawful assembly. So far the first part is concerned, the fact that all the accused persons entered in the Guwadi of the complainant party with weapons undoubtedly makes it clear that they formed an unlawful assembly. The question as to the common object of the unlawful assembly is essentially a question of fact which has to be determined on the facts and in the circumstances of each case. Motive plays an important role for determining the common object of an unlawful assembly. Besides, the weapon used in the attack, the conduct of the assailants both before and at the time of attack are also relevant consideration for determining common object of unlawful assembly. In the instant case, though there was some old enmity between members of both the parties, but it was not of that serious nature to form an unlawful assembly with a common object to commit murder of Parta or any other member of the complainant party. The immediate cause of the incident is so insignificant that it could hardly be a motive to form an unlawful assembly with a common object to commit murder. Another striking feature of the case is that as per the prosecution case, appellants Hanuman and Gokul were having formidable sharp edged weapons like Farsi, while Ram Karan was having an axe and Banwari was having a sharp edged weapon meant for cutting fodder, but, still they did not use the sharp side of their respective weapons. At the trial stage, the prosecution witnesses have come with a definite case that they used reverse side of their respective weapons. The post-mortem report also shows that the injuries to the deceased were not caused by sharp weapon. This fact is very much significant and relevant to eliminate the common object of the assembly-to be to commit murder of Parta or any other member of the complainant party. The nature of injuries sustained by members of the complainant party, including the deceased Parta do not suggest that a meritless beating was given to them so that a member of such assembly could know that the offence under section 302 I.P.C. was likely to be committed in prosecution of the object of the assembly. The nature of injuries sustained by members of the complainant party, including the deceased Parta do not suggest that a meritless beating was given to them so that a member of such assembly could know that the offence under section 302 I.P.C. was likely to be committed in prosecution of the object of the assembly. Further, if common object of the assembly had been to commit murder, appellants would not have left Sri Ram, who was a young man in the complainant party, by inflicting only simple injuries to him. Thus, taking into consideration the totality of the circumstances i.e. absence of strong motive, the fact that sharp side of weapon was not used by the appellants and all other attending circumstances, it cannot be said or inferred that the common object of the assembly was to commit murder of Parta or any other remember of the complainant party. However, taking into consideration that some of the members chose to inflict injuries to Parta on his head, the members of the assembly should have the knowledge that offence under section 304 Part-II was likely to be caused. There is no evidence on record to disclose any person to be the author of the fatal injury. Hence, the accused persons who participated in the assault to the deceased Parta, could be convicted for the offence under section 304 Part-II, I.P.C. read with section 149 I.P.C. instead of 302 I.P.C. 8. Next connected question may also be considered as to whether two ladies shared the common object in the assault to Parta deceased. The law is well settled that a member of an un lawful assembly may have a common object only upto certain extent and he may differ in his object thereafter. The knowledge possessed by each member as to what offence is likely to be committed in prosecution of their common object will vary, not only according to the information at his command, but also according to the extent to which he shares to the community of object and as a consequence of this offence may be different for different members of the same unlawful assembly. In the instant case, RW. 1-Prabhat and PW. In the instant case, RW. 1-Prabhat and PW. 2 - Manchha have not stated that the ladies, namely, Smt. Jhoothi and Smt. Bhanwari infilicted any lathi blow to the deceased on the other hand, they state that injuries were caused to the deceased from blunt side of sharp edged weapons-possessed by other accused persons. P.W. 4 - Smt. Ghuma, on the other hand, comes with a case that Smt. Bhanwari and Jhoothi were exhorting to kill Parta which was not the prosecution case at any stage and no other witness has supported his version. P.W. 6 - Mst. Prabhati, in her police statement has stated that Smt. Jhoothi and Smt. Bhanwari were empty handed and she was confronted from her police statement, portion A to B of Ex.D. 6. Similarly Pw. 9 - Sheo Narain has named the appellants, Hanuman, Gokul, Bhanwari, Ram Karan and co-accused Malkhan to be the assailants of Parta. In his police statement, his case was that the ladies were abusing and exhorting. Similar is the statement of PW. 11 - Hanuman S/o Sheo Lal who has specifically stated that the male accused were assaulting and Smt. Bhanwari and Jhunthi were abusing. 9. Thus, taking into consideration the complicating evidence on the record, it becomes doubtful that the two ladies gave any beating to the deceased Parta. The statement of some prosecution witnesses that they were abusing or exhorting at the time of assault by the male accused is grossly conflicting and it is difficult to believe this part of their evidence. On account of previous litigation between the parties, the possibility cannot be ruled out that the part assigned to the ladies was exaggerated. From the evidence on record, we are not convinced that the two ladies also shared the common object with other accused so far the assault to the deceased Parta is concerned and they can be held liable for causing simple and grievous injuries to Smt. Santo, Smt. Ghuma and Sri Ram injured. Thus, the appellants Hanuman, Gokul, Bhanwari and Ram Karan could be convicted under section 304 Part-II read with section 149 I.P.C. for the death of Parta. The 5th accused Makkhan is still absconding. They are also liable under section 325/149 I.P.C. for causing grievous injury to Smt. Ghuma and under section 323/149 for causing simple injuries to Smt. Santo and Sri Ram. The 5th accused Makkhan is still absconding. They are also liable under section 325/149 I.P.C. for causing grievous injury to Smt. Ghuma and under section 323/149 for causing simple injuries to Smt. Santo and Sri Ram. Their conviction under section 448 I.P.C. is also maintained. The conviction of the appellants Smt. Bhanwari and Smt. Jhunthi for causing simple and grievous hurt to Smt. Santo, Smt. Ghuma and Sri Ram is maintained. Their conviction under section 448 I.P.C. is also maintained. However, they are not convicted for the death of Parta deceased. 10. On the question of sentence, we are of the opinion that the offence under section 304 Part-II read with section 149 I.P.C. sentence of imprisonment for a term of five years and a fine of Rs. 10,000/- will meet the ends of justice. Under sections 325/149, 323/149 and 448 I.P.C. the sentence of imprisonment already undergone by each of the appellants will meet the ends of justice. 11. In the result, we allow the appeal in part. The conviction and sentence of all the appellants under section 302 read with section 149 I.P.C. for causing murder of Parta are set aside, instead, the appellants Hanuman, Gokul, Banwari and Ram Karan are convicted under section 304 Part-II read with section 149 I.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- each. In default of payment of fine to undergo further rigorous imprisonment for one year. The conviction of all the appellants under section 325 read with section 149, 323 read with section 149 and 448 I.P.C. is maintained and they are sentenced to the period of imprisonment already undergone by them under each count. In other words, they shall not be required to undergo separate sentence of imprisonment for the offence under sections 325/149, 323/149 and 448 I.P.C. If the fine is realised, the whole of it shall be paid to legal heirs of the deceased Parta. The appellants Gokul and Ram karan are on bail and they will surrender for undergoing remaining part of the sentence awarded to them. If they fail to surrender, the trial Court shall take steps for their arrest. The appellants Smt. Bhanwari and Smt. Jhunthi are on bail and they need not surrender to their bail bonds.Appeal partly allowed. *******