JUDGMENT S.L. Kochar, J. By this appeal, the appellants abovenamed have assailed the judgment dated 7-6-2000 passed by the learned Addl. Sessions Judge, Jobat District Jhabua in Sessions Trial No. 460/97, thereby finding the appellants guilty of the offences punishable under sections 148, 450, 302/149, 323/149 (on four counts) and section 324/149, Indian Penal Code and sentenced them each to suffer R.I. for two years, five years with fine of Rs. 500/- , in default of payment of fine to suffer additional R.I. for six months, imprisonment for life with fine of Rs. 2,000/- , in default of payment of fine to suffer additional R.I. for one year, R.I. for one year (on four counts) and R.I. for one year respectively. The prosecution case as unfurled before the trial Court is that on 9-3-1997 in the night at 10.15 PM, the complainant Gumansingh lodged a report at P.S. Ambua to the effect that he resides in village Patel Falia. At about 8.30 PM he himself and Shankar were in a room of his house near Courtyard and Raju and Antarsingh were taking their meals there. At that juncture, Mohansingh armed with a bow and arrow, Jagesingh with falia, Bherusingh with bow and arrow and Vesta Versingh and Keramsingh armed with Denga (Wooden log) came there and made war cry and started beating them. Mohansingh assaulted him by means of a bow on his head, nose and waist and Bherusingh assaulted by means of a bow at the chest and abdomen of Antarsingh. When his son came to rescue them he too was assaulted by Mohansingh on his back by means of a bow. His son Shankar was surrounded by Keramsingh, Versingh and Vestiya and Jagesingh cried that their adversary has come in their trap and he should not be spared and saying like that Keramsingh, Versingh, Vestiya caught hold of him and Jagesingh assaulted him by falia on his neck as a result of which Shankar fell down on the ground in the Courtyard and succumbed to the injury. When Sajanbai cried for help, she too was assaulted by Mohansingh and Bherusigh. Thereafter the accused persons concealed themselves at nearby place. Karambai, Sharambai and Bhangadia had also witnessed the incident. It is said that the incident took place on account of a dispute of partition of agricultural land. The FIR is Ex. P. 1 recorded by J.S. Yadav, SHO. When Sajanbai cried for help, she too was assaulted by Mohansingh and Bherusigh. Thereafter the accused persons concealed themselves at nearby place. Karambai, Sharambai and Bhangadia had also witnessed the incident. It is said that the incident took place on account of a dispute of partition of agricultural land. The FIR is Ex. P. 1 recorded by J.S. Yadav, SHO. After preparing the inquest, he sent the dead body of Shankar for post-mortem examination, which was performed by Dr. R. Mandal (PW-7). The post-mortem Examination Report is Ex. P/2. On examination, the doctor found the following external injury: An incised wound on right side of neck 6?" x 3" x verticle column deep because of which external and internal jugular carotid bundle partially cut, esophagus were half cut. The vertebra C-5 fractured and the right clavicle bone was fractured. Superior lobe of right lung was also injured admeasuring 3" x 3" x ?" oblique in direction. On internal examination, the doctor found that the organs were pale and there was cut of right pleura. About two litres blood was found present in the right haemo thorax. Undigested food was also found in the stomach. Blood was also present in the mouth. Into the opinion of Dr. Mandal, Shankar died because of shock due to excessive bleeding from the injuries within 36 hours from the date and time of post-mortem examination i.e. on 10-3-1997 at 12.05 PM. This witness also examined the complainant Gumansingh (PW-1), Bhangadiya (PW-3), Raju (PW-4), Antarsingh (PW-6) and one Sajanbai wife of PW-1 Gumansingh. Their MLC reports are from Ex. P/3 to P/7. The Investigating Officer (PW-10) Sub Inspector Jainarayan Yadav also arrested the accused persons and on their disclosure statements u/s 27 of the Evidence Act effected seizure of weapons of offence. The seized articles were sent for Chemical Examination and its report is Ex. P/31. After completion of investigation, the accused persons were charge-sheeted for the aforementioned offences. The appellants have refuted the charges and their defence was that of false implication due to land dispute and they have examined DW-1 Sardarsingh and Ratansingh (DW-2) on the point that Gumansingh (PW-1) disclosed to them that deceased Shankar was done to death by the thieves in the field when he was keeping a watch of the crop in the night. The learned trial Court, finding the appellants guilty of the offences charged, convicted and sentenced them as indicated hereinabove. Learned Counsel for the appellants has put forth before for consideration the only legal proposition that the deceased suffered one injury caused by appellant No. 2 Jagesingh. There is no evidence that the other appellants also caused any injury to the deceased. Therefore, Jagesingh would only be responsible for commission of murder of deceased Shankar and rest of the appellants would be liable for the offences under sections 323/149 and 324/149, Indian Penal Code. According to him, there was no common object of unlawful assembly to commit murder of Shankar. It was the individual act of the appellants. On the other hand, learned Dy. Advocate General Shri Desai appearing for the State has supported the judgment and finding arrived at by the learned trial Court and submitted that all the appellants, on account of land dispute armed with deadly weapons in the night hours committed house-trespass and thereafter assaulted the witnesses/inmates of the house and also committed murder of Shankar, the son of Gumansingh (PW-1) The prosecution has examined five eye witnesses out of whom, four are the injured witnesses along with fifth injured Sajanbai (not examined). The first Information Report Ex. P/1 was lodged by PW-1 Gumansingh in the same night on 9-3-1997 at 10.15 PM. The distance of Police Station was 8 Kms. from the place of incident. The incident occurred on 9-3-1997 at 8.30 PM, therefore the report was lodged at the earliest. The say of PW-1 Guman Singh is that he along with Shankar, witness PW-2 Saydabai, PW-3 Bhangdiya, PW-4 Raju, PW-5 Sorambai, PW-6 Antarsingh and injured Sajanbai and Karambai was sitting in the verandah of their house and children were taking their meals. At that juncture, Mohan, Jegesingh, Bherusingh who were having bow and arrow Falia and bow and arrow respectively and the appellants Vesta, Versingh and Keramsingh having wooden logs with them reached over there. Appellants Versingh and Vesta caught hold of deceased Shankar and appellant Jagcsingh dealt a blow by Falia (Heavy and sharp iron object) which fell on the neck of Shankar. The appellants Versingh and Vesta left their palm impressions of blood at the house of the deceased. The appellant Mohansingh assaulted by bow and on his head, causing lacerated injury, his wife Sajanbai was also assaulted by Mohansingh. The appellants Versingh and Vesta left their palm impressions of blood at the house of the deceased. The appellant Mohansingh assaulted by bow and on his head, causing lacerated injury, his wife Sajanbai was also assaulted by Mohansingh. Appellant Bheru caused injury by bow to witness Raju and appellant Versingh caused injury on the finger of witness Bhangadiya by Falia. Witness Antarsaingh was assaulted by appellant Bherusingh by means of bow. The further say of this witness is that after the assault, the appellant ran away and they assaulted them because of land dispute. The Shankar died on the spot and he (Gumansingh) lodged the report Ex. P/1 at the Police Station. In cross-examination, this witness was confronted with his report Ex. P/1 and the case diary statement Ex. D/1 about absence of the names of Sayarabai in the FIR Ex. P/1 as well as putting of palm impressions from blood of Shankar on the house and some specific overt act of the accused persons. According to this witness, he mentioned every thing in his report Ex. P/1 and the case diary statement Ex. D/1, but if there was omission of these facts, he could not assign any reason therefor. In para 12, the defence suggestion was that some miscreants committed dacoity in the house of village Patel Ganpat. They also entered inside the house of this witness and beaten him as also the inmates of the house. This witness replied that the incident of dacoity took place at the house of Village Patel Ganpat after the incident committed by the appellants and rest of the suggestion has been denied by this witness. More or less, same are the statements of all the eye-witnesses i.e. PW-2 Sayarabai, PW-3 Bhangadiya, PW-4 Raju, PW-5 Sorambai and PW-6 Antarasingh. Except some omissions and contradictions on minor particulars, there is no substantive material available in their statements to cause dent to the basic prosecution case. Out of these eye witnesses PW-1 Gumansingh, PW-3 Bhangadiya, PW-4 Raju, PW-6 Antarsingh sustained injuries on their persons in the same incident. PW-7 Dr. Mandal found three contusions on the person of PW-4 Raju. His MLC report is Ex. P/3 two contusions on the person of Sajanbai not examined by the prosecution, her MLC report is Ex. P/4, two contusions on the person of PW-6 Antarsingh, his MLC report is Ex. PW-7 Dr. Mandal found three contusions on the person of PW-4 Raju. His MLC report is Ex. P/3 two contusions on the person of Sajanbai not examined by the prosecution, her MLC report is Ex. P/4, two contusions on the person of PW-6 Antarsingh, his MLC report is Ex. P/5, one incised wound on the right index finger of Bhangadiya (PW-3), his MLC Report is Ex. P/6, and one lacerated wound and one bruise on the person of Gumansingh (PW-1). His MLC report is Ex. P/7. In cross-examination of the medical expert PW-7 D.R. Mandal, he admitted possibility of sustaining injury by witness Raju, Antarsingh, Gumansingh and Sajanbai by fall. Witness Bhangadiya sustained injury on his finger by catching hold of a sharp edged weapon and the injury of deceased Shankar could be caused by an axe. But, existence of injuries on these persons have not been established by the defence either in cross-examination of the eye witnesses or in any other relevant evidence available on record. Mere admission of possibility of sustaining injury by other weapons or in the circumstances would not be sufficient to help the defence and discard the prosecution assertion about causing injury by the appellants to the deceased and injured witnesses as also other persons. We have been taken through the statements of all the prosecution witnesses by the Learned Counsel for the parties as well as the impugned judgment and we are of the considered opinion that all the appellants committed house trespass, having deadly weapons and assaulted the witnesses and committed murder of Shankar. We fully concur with the judgment and finding of the trial Court in this regard. The only question for consideration canvassed before us by learned defence counsel that all the appellants cannot be held responsible for commission of murder of Shankar with the help of section 149 of the Indian Penal Code. We fully concur with the judgment and finding of the trial Court in this regard. The only question for consideration canvassed before us by learned defence counsel that all the appellants cannot be held responsible for commission of murder of Shankar with the help of section 149 of the Indian Penal Code. To examine and decide this argument we have to see whether appellants were the members of unlawful assembly as defined u/s 141 of the Indian Penal Code and whether the common object of the unlawful assembly formed by the appellants was to commit rioting as defined u/s 146 of the Indian Penal Code with deadly weapons, punishable u/s 148 of the Indian Penal Code and application of section 149 of the Indian Penal Code, whether every member of unlawful assembly is guilty of the offence committed in prosecution of the common object. There is no doubt that the appellants formed unlawful assembly. They were six in number and for forming unlawful assembly, minimum requirement is of assemblage of fiver persons whose common object was to use criminal force and to commit illegal act as defined u/s 141 of the Indian Penal Code. In the instant case, the prosecution has successfully proved by adducing cogent and reliable evidence as discussed hereinabove that the appellants were six in number, committed house trespass of the complainant having dangerous weapons in their possession i.e. bow and arrows, falia (heavy sharp edged iron made weapon) and Denga (Wooden log) and they assaulted the inmates of the house and the appellant Jagesingh dealt a severe blow by means of falia causing injury on the neck of deceased Shankar as mentioned hereinabove. The deceased Shankar suffered only one injury and according to the eye witnesses account he was caught hold by Vesta and were seen respectively by appellants No. 4 and 5. The other appellants did not cause any injury to the deceased although they were having deadly weapons. They caused simple injuries to the witnesses and inmates of the house i.e. Sajanbai. For bringing the act of the appellants within the mischief of section 149 of the Indian Penal Code the prosecution is required to prove objectively that the appellants were members of unlawful assembly and committed the offence by all or any member of an unlawful assembly. They caused simple injuries to the witnesses and inmates of the house i.e. Sajanbai. For bringing the act of the appellants within the mischief of section 149 of the Indian Penal Code the prosecution is required to prove objectively that the appellants were members of unlawful assembly and committed the offence by all or any member of an unlawful assembly. The second essential part is that the offence must be committed in prosecution of common object of the unlawful assembly or must be such as the member of unlawful assembly knew to be likely to be committed in prosecution of the common object. In inferring the common object of unlawful assembly various factors depending upon the facts and circumstances of each case have to be taken into consideration [See Amarjit Singh and others Vs. State of Punjab, , Rudrappa Ramappa Jainpur and Others Vs. State of Karnataka, , Parsuram Pandey and Others Vs. The State of Bihar, , Charan Singh and Others Vs. State of Uttar Pradesh, , Chanda and Others Vs. State of U.P. and Another, . In the case in hand, the eye witnesses account discloses that all the appellants came together in the house of the complainant Gumansingh (PW-1) and on account of land dispute they assaulted the witnesses and inmates of the house. Except appellant Jagesingh, all other appellants though having deadly weapons, but caused simple injuries to the witnesses by hard and blunt object as well as sharp edged weapon and the appellant Vesta and Versingh during the course of this assault caught hold of deceased Shankar, thereafter appellant Jagesingh dealt a solitary blow by Falia which landed on the vulnerable part like neck of the deceased resulting into his death. The appellant and the complainant PW-1 Gumansingh are the real brothers. So both the parties belong to two families. If all the appellants were having common object of commission of murder of deceased Shankar, they all could have assaulted him, but except appellant Jagesingh, none had caused any injury or blow on his person, They started beating indiscriminately to the inmates of the house by blunt object. The two appellants were having bow and arrow and could cause injury by arrow shot, but, they did not cause any injury by arrow shot. The two appellants were having bow and arrow and could cause injury by arrow shot, but, they did not cause any injury by arrow shot. This circumstance is an important one and because of this it would be very difficult to discern beyond all reasonable doubt that common object of the unlawful assembly was to commit murder of deceased Shankar and in prosecution of the said common object they committed murder of Shankar. But at the same time it could be very well inferred looking to the nature of weapons they possessed and surrounding circumstances that the members of unlawful assembly knew that there was likelihood of causing grievous injuries. The appellant Jagesingh one of the members of unlawful assembly dealt a severe blow which resulted into death of Shankar. Therefore, in our considered view he alone would be responsible for commission of murder of Shankar and other accused persons would be responsible for commission of offences punishable u/s 326 read with 149 of the Indian Penal Code. In support of this we may profitably rely on the Supreme Court judgment passed in the case of Chanda and Others Vs. State of U.P. and Another, , para 8, which provides as under: A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of section 149, Indian Penal Code may be different on different members of the same assembly. In the wake of the aforesaid legal and factual discussion, this appeal deserves to be allowed in part. In the wake of the aforesaid legal and factual discussion, this appeal deserves to be allowed in part. The conviction and sentence of the appellants under sections 148, 450, 323/149 and 324/149 of the Indian Penal Code are hereby maintained. The conviction and sentence of the appellants under sections 302, 149 of the Indian Penal Code are hereby set aside instead the appellants No. 1, 3, 4, 5 and 6 are convicted under sections 326 read with 149 of the Indian Penal Code and sentenced to RI for five years and fine of Rs. 2,000/- , in default of payment of fine to suffer RI for one year. Appellant No. 2 Jegesingh is convicted u/s 302 of the Indian Penal Code and is sentenced to RI for life and fine of Rs. 2000/- , in default of payment of fine to suffer additional RI for two years. All the substantive sentences are directed to run concurrently. The appellants No. 1, 3, 4, 5 and 6 are on bail. They shall surrender to their bail bonds before the trial Court on 19-10-2006 for undergoing the remainder part of their sentence, if any. On failure to surrender as directed, the trial Court is directed to take appropriate legal steps against them under intimation to this Court. Let a copy of this judgment along with the record be transmitted to the trial Court. The appeal is allowed in part on the terms indicated hereinabove. Final Result : Allowed