Judgment :- Koshy, J. Accused five in number were charge sheeted for the offences under Sections 143, 147, 148, 323, 201 and 302 read with Section 149 I.P.C. Accused 2 and 5 were absconding. Case against them was split up and accused 1, 3 and 4 faced trial and they were found guilty and they were convicted and sentenced with imprisonment for life for the offence under Section 302 read with Section 149 I.P.C. they were also sentenced to undergo rigorous imprisonment for three months under Section 143 read with 149 I.P.C., rigorous imprisonment for six months under Section 147 read with 149 I.P.C., rigorous imprisonment for one year under Section 148 read with 149 I.P.C., rigorous imprisonment for one year under section 323 read with 149 and rigorous imprisonment for one year under Section 201 read with 149 I.P.C. The sentence was ordered to run concurrently. They were also given the right of set off in case of commutation of the sentence of life imprisonment. PW1 gave first information report. He deposed that on 18-1-1998 at about 5. p.m. While he was walking through the side road of railway track he saw six person. Accused and deceased Babu were walking through the railway track quarrelling with each other. Next day morning at 7.30 a.m. he heard the news about death of Babu and he informed the matter to the police. He did not see the incident. PW2 is an attenstor to Ext.P2 inquest report. 2. PW3 is stated to be an eye witness. He is engaged in concreting work. According to him while he and PW7 were going to Ambi sami's house he saw the incident. He deposed that he saw all accused along with the deceased walking through the railway track and there was quarrel regarding money. Deceased Babu caught hold of the collar of the shirt of second accused Biju. Shirt of Biju was torn and it was thrown at railway track. Immediately Biju took a stone and hit the deceased. Babu sat down as his head was broken. Four persons took him into an autorickshaw and brought to a compound. Next day he knew that Babu died. He also identified Mo.1 dhothi, Mo.2 Baniyan, MO.3 chappals of the deceased and MO.4 stone used by second accused. During cross examination he stated that he was accused in two criminal cases. Babu sat down as his head was broken. Four persons took him into an autorickshaw and brought to a compound. Next day he knew that Babu died. He also identified Mo.1 dhothi, Mo.2 Baniyan, MO.3 chappals of the deceased and MO.4 stone used by second accused. During cross examination he stated that he was accused in two criminal cases. He further stated that when he saw the incident deceased was tearing the shirt of A2. He was hit by a small stone. He is not aware why shirt was torn. Again he stated that MO.4 granite piece was taken from railway track. He further stated nobody expected that A2 will hit the deceased with the stone. All of them had taken liquor. 3. PW6 was a railway gate-man. He is also examined as occurrence witness. He saw the deceased, A2 and other accused walking through railway track and they were having an altercation. The deceased and A2 were assaulting each other. Initially, Babu the deceased caught hold of A2 and tore his shirt. He stated as follow: He later stated that the accused separated A2 and deceased and he did not know the rest of the incident. PW7 who is a butcher by profession gave similar evidence as that of PW3. He also identified MOs.1, 3 and 4. 4. P.W.2 is the doctor who conducted post-mortem and issued Ext.P7 certificate and identified following injuries: 1. Contused abrasion on front of head on midline 1.5 x 0.5 cm, transverse, 2.5 cm above root of nose. 2. Contused abrasion on left side of front of head 0.5 x 0.5 cm, 1 cm above outer end of the left eyebrow. 3. Contused abrasion on outer aspect of left eyebrow 0.5 cm outer to outer end of the left eyebrow measuring 1 x 1 cm. 4. Contused abrasion on left cheek 6 x 2.5 cm transverse. 5. Contused abrasion on left side of chin 1.5 x 1.5 cm. 6. Linear abrasion on under surface of chin 0.5 cm. long transverse, 0.5 cm. below chin 1.5 cm outer to midline. 7. Linear abrasion on under surface of chin 2.2 cm below chin, 0.5 cm long, transverse 0.7 cm below injury No.6. 8. Linear abrasion 1 x 0.2 cm vertical, seen over the right end of the chin. 9. Contused abrasion on tip of nose 0.5 x 0.5 cm. 10. long transverse, 0.5 cm. below chin 1.5 cm outer to midline. 7. Linear abrasion on under surface of chin 2.2 cm below chin, 0.5 cm long, transverse 0.7 cm below injury No.6. 8. Linear abrasion 1 x 0.2 cm vertical, seen over the right end of the chin. 9. Contused abrasion on tip of nose 0.5 x 0.5 cm. 10. Contused abrasion on left parietal eminence 1 x 1 cm with underlying scalp contusion 3 x 3 cm. 11. Contused abrasion on top of right shoulder 0.5 x 0.5 cm. 12. Contused abrasion on back of right shoulder 1.5 x 1 cm vertical, 17 cm below top of shoulder. 13. Contused abrasion on left flank 3 x 1 cm, vertical, 22 cm below armpit. 14. Contused abrasion on back of right knee 0.5 x 0.5 cm. 15. Contused abrasion on back of right elbow 4 x 4 cm. 16. Contused abrasion on right flank 3 x 3 cm, 3.5 cm above top of hip bone. 17. Contused abrasion on outer aspect of right thigh 2 x 2 cm, 19 cm below top of hip bone. 18. Contused abrasion on front of right knee 3 x 3 cm. 19. Contused abrasion on outer aspect of right ankle 4 x 4 cm. 20. Contused abrasion on outer aspect of left knee 4 x 2 cm, transverse. 21. Scalp contusion on right parietal eminence 3 x 3 cm and scalp contusion on right temporal region 6 x 6 cm. The skull showed a fissured fracture running from the foraman magnum towards the superior nuchal line, through the left side of midline for a length of 8.5 cm. A subdural clot 9 x 9 x 0.8 cm over the frontal and parietal lobes of brain. Laceration of the undersurface of left frontal lobe of brain 2.5 x 2.5 cm and laceration of the under surface of right frontal lobe of brain 3 x 3 cm. Subarchanoid haemorrhage seen on front half of cerebral hemishpheres. The brain congested and oedematous. He stated that the deceased died due to head injury. Injury No.21 is a serious injury. He did not say that it is sufficient in the ordinary course of nature to cause death. 5. Accused No.1 also suffered injuries in the incident. He was taken by the C.I. of police to PW11 after arrest on the next day. He stated that the deceased died due to head injury. Injury No.21 is a serious injury. He did not say that it is sufficient in the ordinary course of nature to cause death. 5. Accused No.1 also suffered injuries in the incident. He was taken by the C.I. of police to PW11 after arrest on the next day. As per Ext.P8 wound certificate when Babu (deceased) and Biju (A2) were quarrelling A1 tried to separate them and while trying to separate them injuries were cased. Injuries caused to A1 are as follows: 1. Curved abrasion on the left side of neck 3 cm long with a tapering end laterally. 2. Another curved abrasion just above the first one. 3. Black scab present over the injury. 4. Scratch mark over the anterior aspect of right shoulder 1 cm long. 5. Abrasion over the right side of lower lip 0.5 cm x .5 cm. 6. Small haematoma over the lateral aspect of left shoulder 2 x 1 cm. 7. Very small abrasion over the abdomen end of left cravicle. 8. Multiple scratch marks over the posterior chest wall 8 in number small. Injuries were found on A2 also 1. Miled abrasion over the middle of right scapula. 2. A curved abrasion over the left loin 10 cm long. 3. Abrasion on the left side of the face in front of left ear 2 x 1 cm. 4. Cut injury anterior aspect of right ankle joint 3 x 1 cm. 5. Cut injury over the posterior aspect of left knee 1 x 2 cm. Cause of injury stated by A2 was that it occurred while he was having struggle with the deceased. Ext.P9 is the certificate. The certificate is in tune with the evidence of PW.6 that other accused tried to prevent the altercation between the deceased and A2. Totality of the evidence in this case shows that while all the accused and the deceased who were friends were walking together, some dispute arose between A2 and deceased. Deceased tore the shirt of A2 and A2 beat him even though other accused tried to prevent the dispute, A2 unexpectedly took a small granite stone from the ground and hit the deceased. Deceased fell down with bleeding injuries on the head. Accused thought that he was dead. Deceased tore the shirt of A2 and A2 beat him even though other accused tried to prevent the dispute, A2 unexpectedly took a small granite stone from the ground and hit the deceased. Deceased fell down with bleeding injuries on the head. Accused thought that he was dead. They had taken Babu who was lying on the railway track in an autorickshaw and put him in the nearest compound where the body was later found. As correctly held by the trial Judge lawful assembly can turn into unlawful assembly during the course of subsequent events. As held by the Apex Court in Gangadhar Behera and Others vs. State of Orissa (2002 AIR SCW 4271), "the time of forming an unlawful intention is not material. An assembly when 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". If the common object was achieved, it is also not necessary that each member of the assembly has to do any overt act. If the offence is committed in furtherance of the common object of the unlawful assembly, all members of the assembly are liable for conviction and sentence. As held by apex Court in Dami Sigh vs. State of Bihar (AIR 2004 SC 3719) definite roles need not be assigned to the accused persons. (See also Sumer Vs. State of Uthar Pradesh (2005 (7) SCC 220)). It is also true that direct evidence may not be available to prove 'common object'. The same has to be gathered from attendant circumstances, the act committed and results thereof etc. as held by the apex court in Charan Singh v. State of U.P. (2004 (4) SCC 205). To attract Section 149 the following points have to be proved. (1) that there was an unlawful assembly; (2) that the accused was a member thereof at the time of committing of the offence; (3) that he intentionally joined or continued in that assembly; (4) that he knew of the common object of the assembly; (5) that an offence was committed by a member of such assembly; (6) that it was either committed (a) in prosecution of the common object of the assembly, or (b) was such, as the members of the assembly knew to be likely to be committed in prosecution of their common unlawful object. Apex Court in Pundalik Mahadu Bhane and others vs. State of Maharashtra (1998 SCC (Crl.) 202) held that in the case of sudden and free fight, each of the persons involved therein can be liable for his individual act and not vicariously liable for the acts of others. To convict a person under Section 149, he must know the common object and share the common object or at least he must have knowledge of likelihood of the commission of that offence in prosecution of the common object. If such knowledge cannot reasonably be attributed, he cannot be convicted with the aid of section 149. ([Gajanand and others vs. State of Uttar Pradesh (AIR 1954 SC 695)]. Every offence which may be committed by a member of the assembly will not necessarily be vicariously fasten upon the liability under Section 149 unless he shared the common object or he had at least reasonable knowledge of the common object. (Santhosh vs. State of Madhya Pradesh (AIR 1975 SC 654)). Even if, PW3 and PW7 are believed as such they only deposed that all the accused were beating the deceased with hands. They were not having any weapon with them. So, it cannot be stated that there was a common object to murder the deceased at any point of time. According to independent witness PW.6 Railway Gateman, A2 and deceased were fighting and others were trying to separate them. PW.3 very clearly stated that second accused suddenly took MO.4 stone from the railway track and beat the deceased and it was an unexpected act. So none of other accused were aware of intention of A2. None of other accused had knowledge or likelihood of knowledge that A2 will pick the stone and will hit the deceased. More over, all the accused and the deceased were friends and the quarrel developed during the course of events. All of them were drunk and they were walking through the railway track and there was a quarrel and the deceased torn the shirt of Biju (A2) and immediately A2 had taken a stone from the track and hit him. There was no such object for the assembly and A2 did the same as his own. Thereafter nobody assaulted him. Thereafter, when serious fatal injuries were caused to deceased and he was lying motionless with the common object of destroying the evidence, he was taken to a compound. There was no such object for the assembly and A2 did the same as his own. Thereafter nobody assaulted him. Thereafter, when serious fatal injuries were caused to deceased and he was lying motionless with the common object of destroying the evidence, he was taken to a compound. Therefore, even if prosecution evidence is accepted accused 1, 3 and 4 are not liable to be convicted under Section 302 read with Section 149. Common object of these accused was not to murder the deceased. They may be guilty for offences punishable under Sections 143, 147, 148, 323 and 201 read with Section 149 of I.P.C. The Sessions Court sentenced the accused to undergo imprisonment for the period below one year for these offences with a direction to suffer the sentence concurrently. All the three accused had suffered imprisonment for more than two years already. 6. There is no evidence in this case to show that appellants shared a common object with A2 for murdering the deceased by hitting the deceased with MO.4 on his head. Therefore, conviction and sentence of the appellants (accused 1, 3 and 4) under Section 302 read with Section 149 of I.P.C. are set aside and they are acquitted of those charges. Since the accused has already suffered sentence as imposed by the trial court for other offences, they are entitled to be released from prison. In the above circumstances, all the appellants (A1, A3 and A4) should be set free forthwith if they are not required in any other cases.