JUDGMENT : K.C. Sood, J. – 1. This appeal arises out of the judgment of learned Sessions Judge, Una dated February 2, 1998 whereby the appellants herein were convicted for the offences punishable under Sections 147, 323, 451 read with Section 149 of the Penal Code and sentenced as follows: Name of Accused. Sentence imposed. Niranjan Singh To undergo imprisonment for a period of one year under Section 147 Mangal Singh To undergo imprisonment for three months under section 323 Indian Penal Code read with Section 149 Indian Penal Code and to pay a fine 1000/-. In default of payment of fine Parkash Singh Balbir Singh Kashmir Singh Gurmel Singh Satpal alias Kalu Charana Jagtar Singh To undergo imprisonment for three months and to pay a of rupees 2000/- under section 147 Indian Penal Code. They shall further undergo imprisonment for two months each in case they failed to pay the fine. They were further sentenced to pay a fine of rupees 3000/- and 2000/- for committing offences punishable under Sections 451/149 Indian Penal Code and 323/149 Indian Penal Code respectively. In case of default of payment of fine each accused shall further undergo imprisonment for three months and two months respectively. All the sentences imposed on the accused for various offences were directed to run concurrently. Aggrieved by their conviction, the accused, appellants herein are in this appeal. Prosecution case 2. Mukhtiar Kaur (PW4) was married to one Sher Singh of village Dhugge. Sher Singh, husband of Mukhtiar Kaur died few years before the occurrence. Mukhtiar Kaur after the death of her husband was denigrated and looked down upon by the inhabitants of village Dhugge. On this continuous harassment, she left village Dhugge and started living with her sister Taro in village Mukho Majra Deodan. Her sister died and she married Gurnam Singh, husband of Taro, her deceased sister, and started living with him in village Deodan. This marriage was disapproved by the residents of village Dhugge. 3. On the evening of October 23, 1994 at about 8.00 P.M. Al Naranjan Singh accompanied by Santokh Singh, Kehar Singh Sucha Singh (Vice President of the Panchayat) and Gogi came to the house of Gurnam Singh. They met Babu Ram, father of Gurnam Singh and father-in-law of Mukhtiar Kaur. Niranjan Singh demanded to talk to Mukhtiar Kaur regarding her marriage with his son Gurnam Singh. They met Babu Ram, father of Gurnam Singh and father-in-law of Mukhtiar Kaur. Niranjan Singh demanded to talk to Mukhtiar Kaur regarding her marriage with his son Gurnam Singh. Babu Ram did not permit Naranjan Singh to speak to Mukhtiar Kaur and demanded where he was when Mukhtiar Kaur during all these years was humiliated and denigrated by the villagers of village Dhugge. Naranjan Singh returned back along with the persons accompanying him. Santokh Singh and Kehar Singh went to the house of one Sucha Singh. 4. Naranjan Singh after some time returned back to the house of Gurnam Singh with large number of people including the accused herein. All of them collected out side the house of Gurnam Singh and started abusing Mukhtiar Kaur, father in law Babu Ram and husband Gurnam Singh. Naranjan Singh started kicking the outer gate. Neither Babu Ram nor any member of his family opened the gate. Mangal Singh (A2) jumped over the boundary wall and started pelting stones. One of the stone hit the forehead of Asha Rani (PW2). Naranjan Singh (Al), Mangal Singh (A2) and other accused started intimidating Babu Ram and other family members. They proclaimed that Mukhtiar Kaur would be taken away forcibly by them to their village Dhugge. They also proclaimed their disapproval of the second marriage of Mukhtiar Kaur with Gurnam Singh. On hearing this commotion in the house of Babu Ram, several persons of village Deodan gathered. On seeing them, accused fled away. When they were returning back, they set a cattle shed of Babu Rain, on fire. They also threatened Babu Ram and his family members with their lives. 5. The incident was reported to the Police Post Haroli by Sucha Singh (PW7). Assistant Sub Inspector Narotam Singh (PW 11) reached the house of Gurnam Singh, recorded the statement of Harpal brother of Gurnam Singh which was sent to the Police Station, Una. On the basis of this statement, First Information Report came to be lodged. The Investigating Agency after investigation of the case, sent the accused for trial for the offences noticed above. 6. Learned Sessions Judge on appreciation of the evidence, concluded that the accused had assembled at village Deodan with the object to forcibly take away Mukhtiar Kaur daughter-in-law of Babu Ram. The Investigating Agency after investigation of the case, sent the accused for trial for the offences noticed above. 6. Learned Sessions Judge on appreciation of the evidence, concluded that the accused had assembled at village Deodan with the object to forcibly take away Mukhtiar Kaur daughter-in-law of Babu Ram. The crowd pelted stones and one of the brick piece thrown by Mangal Singh caused simple hurt to Kumari Asha daughter of Babu Ram. All of them committed house tress-pass by entering into the house of Harpal Singh. All the accused were responsible for the offences noticed above as the accused constituted unlawful assembly. Learned Sessions Judge held that neither the allegation that the accused set the cattle shed of Babu Ram on fire was proved nor any criminal intimidation was proved. Learned Sessions Judge convicted the accused accordingly. 7. It is admitted position that Mukhtiar Kaur (PW4) was married to Sher Singh of village Dhugge. Sher Singh expired about seven years prior to the occurrence.. Mukhtiar Kaur had three children two sons and a daughter from Sher Singh. She was taunted and derided by the, villagers of village Dhugge. She, to save herself from humiliation, left village Dhugge and started living with her sister Taro in village Makho Majra. On the death of Taro, Mukhtiar Kaur contracted second marriage with Gurnam Singh (PW6), husband of Taro and started living in village Deodan. All the accused, except Naranjan Singh, are residents of village Dhugge. The villagers of Dhugge disapproved the second marriage of Mukhtiar Kaur with Gurnam Singh. 8. It is noticed that Naranjan Singh (Al) is distant cousin of Mukhtiar Kaur. Mangal Singh (A2) is cousin of the first husband of Mukhtiar Kaur. A3 to A9 are residents of village Dhugge. 9. I have heard Mr. Ashwani Sharma, Id. Counsel for the appellants and Mr. Ashok Chaudhari, learned Additional Advocate General for the respondent. I was also taken through the evidence by the learned counsel for the appellants and learned Additional Advocate General. Whether Section 149 of the Penal Code is invokable in the Present case. 10. The first question which arises for consideration is whether the accused formed unlawful assembly outside the house of Gurnam Singh as alleged. Section 141 of the Penal Code defines "unlawful assembly". Section 141 reads: "141. Unlawful assembly. Whether Section 149 of the Penal Code is invokable in the Present case. 10. The first question which arises for consideration is whether the accused formed unlawful assembly outside the house of Gurnam Singh as alleged. Section 141 of the Penal Code defines "unlawful assembly". Section 141 reads: "141. Unlawful assembly. An assembly of five or more persons is designated as "unlawful assembly", if the common object of the persons composing that assembly is- First -To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or Second. - To resist the execution of any law, or of any legal process; or Third. - To commit any mischief or criminal trespass, or other offence; or Fourth. - By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the user of water or other incorporeal right of which he is in possession of enjoyment, or to enforce any right or supposed right; or Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 11. A reading of above provision shows that if more than five persons assemble for any of the purposes as stipulated in this Section, it would constitute an unlawful assembly. The essence of the offence in constituting unlawful assembly is the community of object of the assembly of five or more persons to do an unlawful act as indicated in Section 141 of the Penal Code. In other words, to constitute an "unlawful assembly", there has to be: (a) an assembly of five or more persons; (b) those present must have a common object and (c) the common object must be one of the five specified in the Section. 12. In other words, to constitute an "unlawful assembly", there has to be: (a) an assembly of five or more persons; (b) those present must have a common object and (c) the common object must be one of the five specified in the Section. 12. It is well settled that mere presence in an assembly does not make such a person a member of unlawful assembly unless it is shown that he did something or omitted to do something which would make him a member of an unlawful assembly or unless the case falls under Section 142 of the Penal Code. Persons present by accident without taking any part in the proceedings of such an assembly cannot be said to be member of unlawful assembly. 13. Now it is the case of the prosecution that about 500 people including the accused gathered out side the house of Babu Ram in village Deodan on October 23, 1994. The prosecution has failed to establish that A3 to A9 were members of this crowd. It is the evidence of Harpal Singh (PW 1) brother of Gurnam Singh that when his father did not permit Naranjan Singh to speak to Mukhtiar Kaur, Naranjan Singh and his companions left their house. Naranjan Singh returned back at about 8.00 P.M. He was alone. He started pushing and kicking the door of his house. Door was locked from inside and it was after sometime that the accused came there. He candidly admits in his cross-examination that he could not see any of the accused. In his own words, "I could not see the accused or any one of then: setting on fire the cattle shed": To a similar effect is the evidence of Asha Rani (PW2) sister of Gurnam Singh. It is the evidence of Asha Rani that at about 8.00 p.m., Naranjan Singh alone returned to their house and the other accused came later but she does not say a word how she identified any of the remaining accused except Mangal Singh. Mukhtiar Kaur (PW4) is categorical that crowd of about 500 people had collected there. In her own words, "Naranjan Singh had returned back with Kehar Singh, Santokh Singh and Gogi": None of them is accused except Naranjan Singh. In her own words, "S/Shri Naranjan Singh, Kehar Singh, Santokh Singh, Gogi had come to our house at 7.00 p. m. They wanted to see me. In her own words, "Naranjan Singh had returned back with Kehar Singh, Santokh Singh and Gogi": None of them is accused except Naranjan Singh. In her own words, "S/Shri Naranjan Singh, Kehar Singh, Santokh Singh, Gogi had come to our house at 7.00 p. m. They wanted to see me. My father-in-law told them that why they had not taken care of me during the preceding four years. On hearing the curt reply from my father-in-law they left the house. They went to the house of Up-Pradhan Sucha Singh. They returned at about 8 p.m. On seeing them we had bolted the door from inside': She does not name that any of the accused except Naranjan Singh who returned back to their house when the occurrence took place. She goes on to say that Naranjan Singh accompanied by 500 persons including women came to the spot. In her own words, "They were accompanied by 500 persons including women': 14. It is her further evidence that all the persons who had come there started throwing stones on the house. It is significant to note that she does not identify any of the accused individually. She does not even say that any accused except Naranjan Singh had returned back. What she stated was that the persons who had earlier accompanied Naranjan Singh had come back. This is not the case of the prosecution. This apart they are not named accused in this case. 15. It is interesting to note that Mukhtiar Kaur named Bhillo, Mangal Singh, Sat Pal and Bhola who entered their house but neither Bhillo nor Bhola are the accused. Kuldip Singh (PW5), another eye witness, did not support the prosecution case at all. He is categorical that he did not see any of the accused in his village near the house of Gurnam Singh. Gurnam Singh appearing as PW6 though named, in his examination-in-chief, Mangal Singh, Balbir Singh, Kalu, Jagtar Singh and Shiri who had returned back to their house but surprisingly, neither Kalu nor Shiri are the accused in this case. He does not name the other accused. In his cross- examination, he admits that it was a dark night and he saw the persons collected from a distance of 40 yards. None of the witness says even by implication that there was any light under which the persons assembled could be recognized. He does not name the other accused. In his cross- examination, he admits that it was a dark night and he saw the persons collected from a distance of 40 yards. None of the witness says even by implication that there was any light under which the persons assembled could be recognized. It is true, that Gurnam Singh mentioned that there was electrical light but he said so in the context of the accused having lit the cow shed on fire while leaving the place. The only evidence produced by the prosecution is that Mangal Singh scaled the boundary wall which was three feet in height and threw stones and Naranjan Singh kicked the outer gate of the house of Gurnam Singh. 16. Otherwise also, it is the own case of the prosecution that when Naranjan Singh started banging the outer gate of the house of Mangal Singh, Babu Ram and all other family members went to the roof of the house. They probably could not have seen and identify eight persons out of a crowd of 500 people. Sucha Singh (PW7) is from the village of Naranjan Singh. He had accompanied Naranjan Singh to the house of Gurnam Singh on the same day when Naranjan Singh wanted to talk to Mukhtiar Kaur and Babu Ram refused permission. It is his evidence that when they were returning back from the house of Gurnam Singh, he advised them to call the meeting of their own Panchayat and that he will also try to get the matter settled. It is his further evidence that after sometime, he heard commotion outside the house of Gurnam Singh. He saw brick bats being exchanged between the two groups. He, however, did not identify any of the accused. In his own words, "I cannot say that whether the accused or any one of them were present there at the house of Gurnam Singh. I cannot say how many persons had come at the house of Gurnam Singh." 17. This is the only evidence on record so far the identify of the accused is concerned. The evidence discussed above is neither sufficient nor acceptable to prove that the accused, apart from Naranjan Singh and Mangal Singh, were part of the crowd which had collected outside the house of Gurnam Singh. 18. This is the only evidence on record so far the identify of the accused is concerned. The evidence discussed above is neither sufficient nor acceptable to prove that the accused, apart from Naranjan Singh and Mangal Singh, were part of the crowd which had collected outside the house of Gurnam Singh. 18. This apart, Mukhtiar Kaur and her husband Gurnam Singh, as noticed earlier, are categorical that about 500 people, including women, had collected out side their house and all the 500 people hurled stones at their house. Thus, identity of the accused except Naranjan Singh and Mangal Singh being member of the assembly of 500 people is not proved and it cannot be said that accused constituted unlawful assembly. 19. The next question which arises for consideration is whether the assemblage outside the gate of the house of Gurnam Singh constituted unlawful assembly. In the present case, the case of the prosecution is that common object of the accused which constituted unlawful assembly outside the house of Gurnam Singh was to forcibly take away Mukhtiar Kaur from the house of her husband Gurnam Singh. However, there is no evidence which may suggest even by implication that there was any community of object between the crowd which had collected outside the house of Gurnam Singh. As noticed earlier, mere presence in assemblage of more than five people is not sufficient to prove common unlawful object. 20. A common unlawful object is sine qua non for unlawful assembly. Without a proof of an agreement amongst the persons to do anything or plan to carry out a design to do any of the five objects as provided under Section 141 of the Code, it cannot be said that such assemblage constitute unlawful assembly but such object can reasonably be inferred from the acts and conduct of the persons assembled. Mere presence of the persons in a crowd of more than five will not ipse dixit constitute unlawful assembly. To prove common object, it is necessary to establish by acceptable evidence that there was a connection between those who took active part in the commission of offence and those who merely stood there. 21. It is well settled that mere assemblage of five or more persons would not constitute assemblage as unlawful assembly unless common objects of the persons consisting that assembly is proved. 21. It is well settled that mere assemblage of five or more persons would not constitute assemblage as unlawful assembly unless common objects of the persons consisting that assembly is proved. In Dalip Singh and others v. State of Punjab A.I.R. 1953 S.C. 364, the Supreme Court held that before Section 149 can be applied, the court must be satisfied that there were at least five persons sharing the common object. 22. In a rural Society where community is faction ridden if something unusual occurs, people in large number collect or, the scene not with a view to participate in the occurrence but as spectators. In this background, mere presence in the unlawful assembly, if any, would not ipso facto lead to the conclusion that such persons were members of the unlawful assembly. 23. There is nothing in the evidence or conduct of the accused from which it may be inferred that they were members of unlawful assembly. 24. In the present case, there is no evidence that who, amongst the 500 persons collected at the spot, pelted stones. The Apex Court in Sudhir Samanta v. State of West Bengal and another, (1998) 1 Supreme Court Cases 581, in some what similar circumstances, observed: "14. While it is true that before a person could be held to be a member of an unlawful assembly, it is not necessary that he should have done some overt act or been guilty of some omission in pursuance of the common object of the unlawful assembly, it is well settled that first, it must be established that he was a member of the unlawful assembly. When, as in this case, a large number of villagers were present at the scene of the offence and common object and specific acts were attributed only to a few among the nine accused and there was nothing so far A-4, A-9 and A-5 were concerned as regards the common objector overt acts or motive, the question arises whether they were only members of the general crowd or whether there was proof that A-4, A-9 and A-5 went there with the same common object as those accused to whom overt acts were attributed. It has been held that in such a context, and with a view to guard against convicting persons who were not part of the unlawful assembly, it is permissible to consider the nature of the gathering, how they assembled and what weapons they were armed with, how they proceeded and further the part played by them". 25. In the present case, it is not the case of the prosecution that anyone of the crowd were armed. They had not brought stones or brick bats with them. In these circumstances, it is difficult to say that 500 persons collected at the spot formed unlawful assembly with the common object to take away Mukhtiar Kaur forcibly from the house of Gurnam Singh. In fact, from the evidence on record, no common object of the crowd is discernable. As already noticed, the identity of A3 to A7 being members of the crowed is not established. 26. This apart, otherwise too, the evidence on which the prosecution rely is highly interested and it is difficult to place any reliance on this evidence particularly in view of the glaring contradictions in their evidence. Harpal Singh (PW1), the author of the F.I.R. merely states that all the accused came to their house and some of them tried to enter the house by the roof of adjoining house but the owner of the adjoining house Kuldip Singh (PW5) does not corroborate him. It is his evidence that his house is situate adjacent to the house of Gurnam Singh but no body climbed kotha of his house to reach the house of Gurnam Singh. He was cross-examined by the learned Public Prosecutor but without any tangible result. He reiterated in cross-examination that he did not see any person on the Kotha of the house of Gurnam Singh, his brother. Though Harpal Singh deposed that it were accused alone who had collected in front of their house but Mukhtiar Kaur (PW4) and Gurnam Singh (PW6) are categorical that about 500 persons including accused had collected outside their house. It is the evidence of Harpal Singh that when accused were running away on the arrival of the villagers, he chased them and caught hold of Mangal Singh and in the process, Mangal Singh left his parna and shoes. It is the evidence of Harpal Singh that when accused were running away on the arrival of the villagers, he chased them and caught hold of Mangal Singh and in the process, Mangal Singh left his parna and shoes. He took them in possession but Mukhtiar Kaur in her evidence states that Mangal Singh left the shoes and pana inside their house. According to her, these things were dropped when he entered the room of their house by scaling the wall. In view of the contradictions in the evidence and the fact that they are highly interested being members of the same family, it is not possible to place reliance on the evidence of either Mukhtiar Kaur or her husband Gurnam Singh or Asha Rani his sister or Harpal Singh brother of Gurnam Singh. The false implication of accused A3 to A9 cannot be entirely ruled out. The prosecution has failed to establish beyond reasonable doubt that accused were members of unlawful assembly within the meaning of Section 141 and 149 of the Penal Code. 27. The prosecution having failed to prove unlawful assembly of the accused, the accused would be responsible for their individual acts. 28. As noticed earlier, no criminal act is attributable to A3 to A9 nor are they proved to be the members of the unlawful assembly with an object to commit any offence. Their conviction is unsustainable. They are liable to be acquitted. 29. Sofar Al Naranjan Singh is concerned, it is proved from the evidence of Harpal Singh (PW 1), Asha Rani (PW2), Mukhtiar Kaur (PW4) and Gurnam Singh (PW6) that he tried to force upon the door, pelted stones on the house of Gurnam Singh but there is no charge against Naranjan Singh for such acts. None of the offence for which he was charged, is proved and he cannot be convicted for an offence for which he was not charged. He in the circumstances is liable to be acquitted for the offences he was charged. 30. So far accused Mangal Singh is concerned, it is proved from the evidence of Harpal Singh, Asha Rani, Mukhtiar Kaur and Gurnam Singh that he scaled the outer wall of the house and entered into the compound of the house of Gurnam Singh and thereby, committed an offence punishable under Section 448 of the Indian Penal Code. 31. 30. So far accused Mangal Singh is concerned, it is proved from the evidence of Harpal Singh, Asha Rani, Mukhtiar Kaur and Gurnam Singh that he scaled the outer wall of the house and entered into the compound of the house of Gurnam Singh and thereby, committed an offence punishable under Section 448 of the Indian Penal Code. 31. So far causing injury to Asha Rani by throwing stones at her is concerned; it is not proved that the stone or piece of brick hurled by Mangal Singh caused the injury on the forehead of Asha Rani. Doctor G.S. Deedhra, (PW3) who medically examined Asha Rani on October 24, 1994 found an injury on left upper part of the forehead. The wound was clean but gaping. Though he states that the injury could be sustained by a stone like Exhibit P5 which was taken into possession by the Police at the instance of Asha Rani yet in cross-examination he is unequivocal that the injury could have been caused by a fall. This apart, it is the own evidence of Asha Rani that all the 500 people were throwing stones. It is her further evidence, "we were exchanging the throwing stones': It is not, in view of this, possible to hold that it was stone thrown by Mangal Singh which hit her fore-head. It is her evidence in cross-examination that she was sent by her mother to bring water from the room down below and when she was coming down the stairs case, a stone hit her. This stone was thrown by Mangal Singh. The case of the prosecution is that the house was bolted from inside and if Mangal Singh had thrown the stone from the court yard after scaling the boundary wall, it could not have hit her while she was coming down the stairs. It is not the case of the prosecution that there was any window which was open in front of the stairs case. Mukhtiar Kaur does not say how Asha Rani sustained the injury. Gurnam Singh (PW6) has his own version. According to him, a brick bat blow was given by Mangal Singh on the head of Asha Rani. In his own words, "he gave blow of brick bat on the head of my sister Asha. Asha's head was wounded and started bleeding". Mukhtiar Kaur does not say how Asha Rani sustained the injury. Gurnam Singh (PW6) has his own version. According to him, a brick bat blow was given by Mangal Singh on the head of Asha Rani. In his own words, "he gave blow of brick bat on the head of my sister Asha. Asha's head was wounded and started bleeding". The evidence led by the prosecution on this aspect of the case is neither reliable nor inspires confidence and is contradictory. It does not lead to the conclusion that it was the stone thrown by Mangal Singh which hit Asha on her forehead causing a simple injury. Mangal Singh is entitled to acquittal so far causing of simple hurt to Asha Devi is concerned. 32. In result, the appeal is allowed. The impugned judgment of the learned Sessions Judge is set aside. All the accused, except accused Mangal Singh, are acquitted. Their bail bonds shall stand discharged. Mangal Singh, is convicted for an offence punishable under Section 448 of the Indian Penal Code. He is sentenced to suffer rigorous imprisonment for eight months and to pay a fine of rupees 500/-. In case of default in the payment of fine, Mangal Singh shall suffer further imprisonment for one month. 33. Needless to say that the period of detention, if any, undergone by the convict during the investigation or trial of the case shall be set off against the term of imprisonment imposed upon him as provided under Section 428 of the Code of Criminal Procedure. The convict shall surrender to his bail bonds immediately to undergo the sentence imposed upon him.