JUDGMENT P.G. Agarwal, J. 1. Heard Mr. J.M. Choudhury, learned senior Counsel assisted by Mr. Talukdar and learned Public Prosecutor. 2. This appeal has been directed against the judgment and order dated 20.12.96 passed by learned Sessions Judge, Cachar, Silchar wherein the accused Appellants were convicted Under Section 304 Part II /149 Indian Penal Code. 3. It was an unfortunate incident on the night of Kalipuja, in the year 1994. According to Hindu mythology Kali, means triumph over the evils. However, in the name of Puja two groups of young men stated a quarrel as a result of which one young life was lost. The deceased Sanjay Kumar Roy, a young boy aged about 26 years, sustained fatal injuries and died. Post mortem examination was conducted by Dr. K.K. Chakravorty, PW 13 who found the following injuries : Injuries : 1. One stitched wound on the right parietal accused/Appellant of the scalp measuring 2 cm in length. Stitch removed and found breadth 1/2 cm and depth upto the bone. Margins of the wound are found irregular with inflammatory changes. 2. 2 cm below the injury No. 1 found Anr. stitched wound measuring 4 cm in length. Stitches removed and found breadth 1/2 cm and depth upto the bone. Margins of the wound was irregular and inflammatory changes present. 3. Abrasion over an area of 2 x 1 cm of right side of the forehead 1 cm laterally and lateral end of right eye brow covered with reddish scab. 4. Abrasion on the middle of the two eye brows covered by reddish scab measuring 1x 1/4 cm. 5. Conclusion of left arm and forearm medially over an area of 25 x 8 cm blue in colour with fracture of head of radius underneath. 6. Abrasion on the right wrist medially measuring 2*1/2 x1*1/2 cm covered by reddish scab. 7. Abrasion on the right wrist in front measuring 2x1 cm covered by reddish scab. 8. Abrasion on left ankle medially measuring 2 x 1/4 cm covered by reddish scab. 9. Abrasion on right side of back and medially 11 cm above the iliac crest of ilium measuring 1 1/2 x 1/4 cm. All the injuries were ante mortem and about 1 to 2 days caused by blunt object except injury Nos. 1 and 2 which were caused by here by blunt object except injury Nos. 9. Abrasion on right side of back and medially 11 cm above the iliac crest of ilium measuring 1 1/2 x 1/4 cm. All the injuries were ante mortem and about 1 to 2 days caused by blunt object except injury Nos. 1 and 2 which were caused by here by blunt object except injury Nos. 1 and 2 which were caused by heavy blunt object. Thorax : Pleura, both lungs congested Other healthy. Muscles, bones and joints : Fracture as described Others nil Abdomen : Lever, spleen, and kidneys congested. Others all healthy. Stomach healthy and empty. Cranium and spinal Canal : Scalp confusion under the scalp on the whole of right side with haematoma. Skull-fracture of the skull bone under injury No. 1 on parietal bone which was extended by the side of sagittal suture to parieto occipital suture. Vertebrae healthy. Membrane-contused under the fractured bone. Subdural haemorrhage present on both sides of the brain. Brain congeste. Spinal cord not opened. In the opinion of the doctor, the death was due to comma wherein antemortem intracranial haemorrhage caused by blunt force impact and it was homicidal in nature. 4. There is overwhelming oral evidence as regards the death of the deceased. In view of the medical evidence on record, the trial Court rightly held this to be a case of homicide. Six accused Appellant were convicted under Section 304 Part II Indian Penal Code read with Section 149 PC and sentenced to imprisonment for a period of 7 years and to pay a fine of Rs. 500/- each, in default to, further imprisonment for one month. From the evidence of prosecution witnesses numbering 14, we find that the initial incident took place between the accused Appellant Dilip Sonar (A6) and deceased Sanjay Kumar. Dilip Sonar (A6) was in drunken condition and he gave fist blows to Sanjay. After some time Sanjay came back with an iron rod in his hand. PW6 Mona Goswami has deposed that Sanjay was gheraoed by the accused Appellant Mintu Das (A2) Amit Bardhan @ Kabul (Al) PW 7 Pintu has been declared hostile. Santosh Das PW 11 saw accused Appellant Kabul and Mintu was sitting in the puja mondop and the deceased Sanjay having altercation with them and thereafter Sanjay was chased by the accused Mintu and Kabul. 5. Santosh Das PW 11 saw accused Appellant Kabul and Mintu was sitting in the puja mondop and the deceased Sanjay having altercation with them and thereafter Sanjay was chased by the accused Mintu and Kabul. 5. In this case there is no eye witness to show that the deceased has been assaulted but the evidence of witnesses shows that quarrel took place between the deceased and the accused Appellants Mintu (A2) and Kabul (A1) Prosecution also relied upon the oral dying declaration of the deceased. PW 8 Pratap Roy has deposed that while the deceased was lying in injured condition, the police came there and in presence of police the deceased reported that he was assaulted with iron rod by accused Appellant Kabul (A1 and Mintu (A2) PW 10 Loknath Debroy is Anr. witness. He has deposed that he was informed by the deceased about the assault on his persons by accused Kabul and Mintu PW. 14, Someswar Boro is the investigating police Officer who recorded the statement of the deceased. Ext. 8 is the said statement. As the deceased died subsequently. Ext. 8 can be heated as dying declaration Under Section 32 of the Evidence Act,. PW 14 has categorically stated that he did not arrange recording of dying declaration as he was on the impression that Sanjay is going to be survived but Sanjay succumbed to his injuries. The relevant portion of Ext. 8 reads as follows : After sometime we went to Sivbari puja Mandap and found Kabul (A1) Mintu (A2) Sibu (A3) Amrit (A5) and Anju (A4). I asked them to settle up and forget about the previous incident. Thereafter, accused Kabul and Mintu (A1 and A2) assaulted me with iron rod and chased me. Out of fear I prayed them but accused Kabul (A1) and Mintu (A2) chased me and assaulted me as a result of which I fell down unconscious. 6. The written dying declaration (Ext. 8) clearly shows that it was the accused Appellants Kabul and Mintu who assaulted the deceased. The above dying declaration has been supported by the oral testimony of other witnesses. As quoted above, dying declaration so furnished, has been supported by the medical Evidence as regards the weapon of assault. The dying declaration (Ext. 8) has been recorded by the police, though the investigating police officer could have called Magistrate. The above dying declaration has been supported by the oral testimony of other witnesses. As quoted above, dying declaration so furnished, has been supported by the medical Evidence as regards the weapon of assault. The dying declaration (Ext. 8) has been recorded by the police, though the investigating police officer could have called Magistrate. The investigating officer in his quest categorically stated that he recorded the statement of the victim/injured Under Section 161 Code of Criminal Procedure and he was of the view that injured was not going to die. It has been held by the Apex Court in the case of State of Karnataka v. Shariff reported in (2003) 2 SCC 473 that dying declaration recorded by police under such circumstances cannot be discarded. Hence, relying upon the oral and written dying declaration (Ext. 8) and oral testimony of the witnesses we hold that accused Appellant Amit Bardhan @ Kabul and Mintu Das (A1 and A2) did assault the deceased which caused death of Sanjay Roy. So far the other four accused-Appellants are concerned, the trial Court held them guilty for the act committed by the accused Kabul and Mintu (A1 and A2) with the help of Section 149 Indian Penal Code In the case of Gangadhar Behera v. State of Orissa reported in (2002) 8 SCC 381 . The Apex Court has laid down the requirements to establish the ingradation of common object Under Section 149 Indian Penal Code : 23. "Common object" is different from a "common intention" as ill does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot eo instanti. 24. Section 149 Indian Penal Code consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (see Chikkarange Gowda v. State of Mysore). 7. In the present case, the witnesses have categorically stated that the assault was made by the two accused persons only, i.e. Kabul (A1) and Mintu (A2). (see Chikkarange Gowda v. State of Mysore). 7. In the present case, the witnesses have categorically stated that the assault was made by the two accused persons only, i.e. Kabul (A1) and Mintu (A2). The other accused Appellant before us were also present at the place i.e. Sivbari Puja Mandap. So far the Appellant Dilip Sonar (A6) is concerned, we find that he had assaulted the deceased in earlier incident and thereafter said Dilip Sonar took no further part. So far other accused are concerned, they were also present in the Puja Mandap but did not assault the deceased nor even chase him. The law is well settled that mere presence at the place of occurrence without taking any part whatsoever, in the incident does not amount to sharing common object. There must be some overt or covert act on the part of the accused to rope them with the help of Section 149 Indian Penal Code. In the present case, we find absolutely no Under Section 141 or 149 Indian Penal Code to held that accused Appellants Sibu Das. Anju Chakraborty, Amit Debnath and Dilip Sonar (A3, A4, A5, A6) were member of unlawful assembly or that they are liable for the death of the deceased, Under Section 149 Indian Penal Code. 8. In the result, the conviction and sentence entered into by the trial Court in respect of Sibu Das, Anju Chakraborty, Dilip Sonar and Amit Debnath is set aside and they are acquitted and set at liberty forthwith. They need not surrender to their bail bond. 9. So far the accused Appellant Amit Bardhan @ Kabul and Mintu Das are concerned, we hold them guilty of the offence committed Under Section 304 Part II Indian Penal Code. The learned Counsel for the Appellant submitted that the accused Appellants are young boys and the occurrence took place in the year 1994 while they were celebrating Kalipuja wherein, assault took place and unfortunately the deceased died. 10. Considering the facts and circumstances of the case, the sentence in respect of Kabul and Mintu, is reduced to imprisonment for 4 years and to pay a fine of Rs. 500/ - each, in default to, further imprisonment for 1 month. 11. With the above modification in the sentence the appeal stands disposed of. 10. Considering the facts and circumstances of the case, the sentence in respect of Kabul and Mintu, is reduced to imprisonment for 4 years and to pay a fine of Rs. 500/ - each, in default to, further imprisonment for 1 month. 11. With the above modification in the sentence the appeal stands disposed of. The two accused Appellant Kabul and Mintu are directed to surrender forthwith before the learned CJM, Cachar, Silchar to serve out the sentence and to pay the fine. Send down the records to the Court of CJM, to take necessary action.