JUDGMENT Arijit Pasayat, J.—These two appeals are directed against the common judgment of a Division Bench of the Delhi High Court. By the impugned judgment the High Court disposed of two writ petitions CW No. 3063 of 1995 filed by respondent-Ranbir Singh Rathaur and CW No. 4082 of 1995 filed by Ashok Kumar Rana. Alongwith these two writ petitions seven Letter Patent Appeals were also disposed of. These LPAs. are the subject matter of challenge in Civil Appeal Nos. 2951-57 of 2001 which were de-linked from the present two appeals by order dated 14.2.2006. The LPAs. and these writ petitions filed before the High Court were linked in the sense that in all these cases concerned writ petitioners were dismissed from service by the present appellants. They were all working at the relevant point of time in 168 Infantry Brigade, deployed in a place called Samba in the border areas. By the impugned judgment the High Court held that the proceedings initiated against the writ petitioners forming subject matter of the present appeals were void in law and the orders passed against these and the other officers who were appellants in the LPAs were vitiated being without any material and being a camouflage. The relevant portion of the High Court’s order reads as follows: ”Accordingly we declare that the proceedings initiated against the petitioners in the two writ petitions are void in law and the orders passed against the other officers, the appellants in L.P.As are vitiated being without any material and being camouflage. Having dropped the idea not to conclude Court Martial proceedings knowing fully well that the officers were likely to be acquitted, without producing relevant record before the concerned authority orders of termination were passed flouting all norms. The appellants in the LPAs and the petitioners in the two writ petitions are entitled to all the consequential benefits. We also hereby declare that the orders passed against the appellants in the LPAs are void in law and the conviction and sentence by the GOMs against the writ petitioners are void in law. Consequently, the judgment of the learned Single Judge which are set aside and the writ petitions in those are allowed and the Latent Patent Appeals stand allowed and the two writ petitions also stand allowed. Consequently, the judgment of the learned Single Judge which are set aside and the writ petitions in those are allowed and the Latent Patent Appeals stand allowed and the two writ petitions also stand allowed. All the writ petitions stand allowed to the above extent indicated and other reliefs prayed for cannot be considered by this Court and it is for the law makers to attend to the same. There shall be no order as to costs. The respondents shall grant consequential reliefs to all the officers including all monetary benefits within a period of four months from today.” 2. Factual background as highlighted by the appellants is essentially as follows: In February 1971 Gunner Sarwan Dass was cultivated by Pakistan Intelligence. In 1972 Capt. Ghalwat & Gnr. Sarwan Dass crossed the international border. In 1973 Cap. Ghalwat Gnr. Sarwan Dass were posted in Babina (MP). In 1974 Gnr. Aya Singh was cultivated by Gnr. Sarwan Dass for Pak intelligence. Capt. Nagial was then cultivated by Aya Singh for Pak intelligence. In 1975 for the first time the espionage racket came to be noticed. Aya Singh and Sarwan Dass were arrested. In 1976-1977 pursuant to the investigation 3 more Jawans were arrested. They corroborated the involvement of Sarwan Dass. Sarwan Dass and Aya Singh on further interrogation disclosed the names of Capt. Ghalwat & Capt. Nagial. In 1976-77 Capt. Ghalwat & Capt. Nagial were tried by General Court Martial and were convicted. Ghalwat was cashiered and given 14 years RI. Nagial was given 7 years RI and was also cashiered. In addition, 12 jawans were tried and they were given RI for various descriptions and were dismissed from services. Aya Singh and Sarwan Dass were also among the 12 jawans tried and held guilty. Later in 1978 it was discovered that Aya Singh was holding back certain relevant information relating to espionage activities under certain alleged threat and pressure. Wife of Aya Singh came to be killed. Reeling under the shock of the circumstances, he made further disclosures wherein he named Capt. Rathaur and Capt. A.K. Rana the respondents in these appeals and he disclosed that he was receiving threats that if he disclosed anything his wife would be killed. Accordingly, in 1978 Capt. Rathaur and Capt. A.K. Rana were interrogated. As a result, 42 Army personnel were arrested. Rathaur and Capt. A.K. Rana the respondents in these appeals and he disclosed that he was receiving threats that if he disclosed anything his wife would be killed. Accordingly, in 1978 Capt. Rathaur and Capt. A.K. Rana were interrogated. As a result, 42 Army personnel were arrested. The 42 Army personnel included 19 officers, 4 junior commissioned officers (JCOs) and 19 Others Ranks (ORs.) 3. Out of the 19 officers, 3 officers were tried by General Court Martial, two were convicted, namely, Capt. Ranbir Singh Rathaur and Capt. A.K. Rana and one was acquitted. Capt. Ranbir Singh Rathaur and Capt. A.K. Rana were sentenced to RI for 14 years each and were cashiered. Against 13 officers, disciplinary actions were initiated. However, a decision was taken not to try them and administrative order under Section 18 of Army Act, 1950 (in short the ‘Act’) was passed terminating their services. 4. Present appeals relate to the 2 officers punished by General Court Martial and the de-linked appeals relate to 7 officers out of 13 officers whose services were terminated under Section 18 of the Act. The remaining 3 officers were not found blameworthy and no action was taken against them and they continued in the Army. Out of 4 JCOs services of (3 JCOs) were terminated administratively and against 1 officer no action was taken. Out of 19 others, 6 were tried by General Court Martial and were convicted and sentenced for various descriptions of imprisonment. Services of 9 others were terminated by administrative order and the rest 4 were let off and no action was taken against them. 5. At this juncture it would be appropriate to take note of previous litigations. 6. On 22.10.1980 Criminal Writ Petition No. 90 of 1980 was filed by Ex. Captain Rana. On 4.6.1981 Criminal Writ Petition No. 90 of 1981 came to be dismissed by the Division Bench of Delhi High Court. It was observed that a number of points were raised on the points of law and jurisdiction. It did not want these matters to be left undecided, therefore, arguments were heard on these points and were dealt with. 7. On 19.2.1982, SLP (Crl.) No. 2320 of 1981 filed by Capt. A.K. Rana against the order dated 4.6.1981 came to be dismissed. 8. On 17.10.1995 CWP No. 4082 of 1995 was filed by Capt. AK Rana before the Delhi High Court. 7. On 19.2.1982, SLP (Crl.) No. 2320 of 1981 filed by Capt. A.K. Rana against the order dated 4.6.1981 came to be dismissed. 8. On 17.10.1995 CWP No. 4082 of 1995 was filed by Capt. AK Rana before the Delhi High Court. On 21.12.2000 the impugned judgment was passed. 9. On 24.8.1978 Capt. Ranbir Singh Rathaur was arrested and taken into custody on the basis of information collected by the Military Intelligence that Ranbir Singh Rathaur had been indulging in acts of espionage by passing secret and classified military information to agents of a foreign country. On 28.3.1979 Smt. Swaran Rathaur, wife of Capt. Ranbir Singh Rathaur filed a Habeas Corpus Petition under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution’) in this Court being Criminal Writ Petition No. 294/79, inter alia, seeking the following reliefs: (a)That Ranbir Singh Rathaur be forthwith produced before this Hon’ble Court. (b)That the Petitioner in the said writ petition, her lawyers and medical advisors be permitted to interview the said Capt. Rathaur in conditions controlled by this Hon’ble Court and proper medical care and facilities may be furnished to him. 10. On 12.4.1979 General Court Martial was convened against Capt. Rathaur. On 17.4.1979 two charges were framed against Capt. R.S. Rathaur for offences under Section 69 of the Act, read with Section 3(1)(c) of the Official Secrets Act, 1923 (in short ‘Secrets Act’). 11. The Union of India filed a Counter Affidavit in Crl. WP No. 294 of 1979, inter alia, pointing out that detenu was being tried by a General Court Martial and that sanction to the detention was given by the Chief of Army Staff and the Government. On 27.4.1979 this Court vide Order dated 27.4.1979 dismissed the Writ Petition No. 294/1979 as infructuous. This Court observed that: “It has also not been disputed that the proceedings of the Court Martial have started and the detenu has been allowed to appoint a counsel of his own choice who is at the moment representing the detenu. In these circumstances, therefore, the Habeas Corpus petition had become infructuous and does not merit any interference by this Court.” 12. As regards the allegations of torture it was recorded that the Additional Solicitor General produced before the Court a record of the doctor who had examined the detenu thoroughly and found that the complaints made by him were without substance. 13. As regards the allegations of torture it was recorded that the Additional Solicitor General produced before the Court a record of the doctor who had examined the detenu thoroughly and found that the complaints made by him were without substance. 13. However, the petitioner was given liberty to make an application before the Military authorities for examination by the Principal of the Medical College, Jammu. Such examination by a civil doctor was not to be taken as casting any reflection or aspersion on the impartiality or incompetence of the doctor of the Military Department. With these observations the petition was dismissed. 14. On 2.8.1979 Rathaur was convicted and sentenced to 14 years rigorous imprisonment. In 1981 Rathaur filed a Criminal Writ Petition being Crl. W.P.No. 9 of 1981 in the Delhi High Court challenging the Court Martial proceedings. On 23.3.1982 the High Court vide its order dated 23.3.1982 dismissed the petition of Rathaur relying upon its earlier decision in Criminal Writ No. 90 of 1980 dated 4.6.1981. In 1985 SLP (Crl.) 3573/85 against the Order dated 23.3.1982 of the High Court in Crl. W.P. No. 9 of 1981 was filed by RS Rathaur. In 1985 Rathaur filed a Writ Petition in this Court being Criminal Writ Petition No. 1577 of 1985 again challenging the legality of the court martial proceedings, the sentence passed and the confirmation thereof. It was alleged that the court martial proceedings and sentence passed were arbitrary, illegal and that the procedure followed was in violation of the Act and the rules made thereunder. 15. Prayer (B) of the Writ Petition reads as under: “Issue a writ order or directions in the nature of certiorari calling for the entire proceedings of the General Court Martial and quash the conviction and sentence of the Petitioner and the order of COAS confirming the said conviction and sentence.” 16. On 10.2.1986 the Special leave Petition preferred by Capt. Rathaur to this Court being SLP (Crl.) No. 3573 of 1985 against the Order dated 23.3.1982 of the High Court in Crl. W.P. No.9 of 1981 was dismissed. On 28.4.1986 this Court dismissed the Criminal Writ Petition No. 1577 of 1985. This Court observed that the case was not a fit case for calling for the records or for re-opening the matter and hearing it. W.P. No.9 of 1981 was dismissed. On 28.4.1986 this Court dismissed the Criminal Writ Petition No. 1577 of 1985. This Court observed that the case was not a fit case for calling for the records or for re-opening the matter and hearing it. On the prayer of the Counsel for Rathaur, this Court directed that the records be preserved for one more year. 17. On 23.1.1987 the Review Petition filed by Rathaur in respect of the order of this Court dated 10.2.1986 in SLP (Crl.) No. 3573 of 1986 and the order dated 28.4.1986 in Criminal Writ Petition No. 1577 of 1985 (Review Petition Nos. 493 of 1986 and 463 of 1986 respectively) were dismissed. 18. The order reads as under: “We have gone through the Review Petitions and connected papers. We find no merit in the Review Petitions which are accordingly dismissed.” 19. In May 1989 Rathaur was released from custody. In 1995 Rathaur again challenged the validity of the Court Martial proceedings which had been conclusively decided by this Court, by filing a fresh Writ Petition being CWP No. 3063 of 1995. Rathaur, inter alia, prayed for quashing of the same General Court Martial proceedings. Prayer (1) of Writ Petition is extracted below: “(1) To issue a Writ of Mandamus and any other appropriate Writ, Order or direction, inter alia commanding the Respondent Nos. 1 and 2 in accordance with Section 165 of the Army Act, 1950 to annul the proceedings of the General Court Martial affecting the petitioner as they are malafide, irrational, unjust and illegal and there has been a failure of justice.” 20. On 17.10.1996 the present appellants filed an affidavit taking the preliminary objection relating to the maintainability of the Writ Petition in view of the fact that the earlier Writ Petition of Rathaur had already been dismissed by the High Court on 23.3.1982 and the Special Leave Petition as well as Review Petitions preferred against the same were also dismissed by this Court. 21. It is also pertinent to note that this Court vide order dated 28.4.1986 had dismissed Criminal Writ Petition No. 1577 of 1985 challenging the very same General Court Martial Proceedings. 22. The appellant also submitted that they would file a detailed counter affidavit on merits after the issue of maintainability is decided. 23. 21. It is also pertinent to note that this Court vide order dated 28.4.1986 had dismissed Criminal Writ Petition No. 1577 of 1985 challenging the very same General Court Martial Proceedings. 22. The appellant also submitted that they would file a detailed counter affidavit on merits after the issue of maintainability is decided. 23. On 14.8.1998 the Hon’ble High Court after hearing the matter at length was pleased to reserve the judgment. 24. On 22.3.1985 all the writ petitions challenging orders under Section 18 of the Act were dismissed. 25. In 1985, one of the writ petitioners Sri N.D. Sharma filed LPA being LPA No. 116 of 1985 against the order of dismissal. On 19.8.1986 the said LPA came to be disposed of by quashing the 5% cut, however, orders of termination of services were maintained. 26. In 1986 Sri N.D. Sharma preferred SLP (C) No. 13195 of 1986 against the order dated 19.8.1986. On 27.2.1987 SLP (C) No. 13195 of 1986 was dismissed. In 1992 Sri N.D. Sharma filed a fresh Writ Petition being Civil Writ Petition No. 3107 of 1992 before Delhi High Court. On 7.9.1992 Writ Petition No. 3107 of 1992 was dismissed on the ground of delay. In 1995 writ petition No. 4585 of 1995 was dismissed. 27. Similar petition has been dismissed by the Division Bench in the case of Subhash Juneja v. Union of India (CW 271/95) as the said petitioner tried to re-open the decision which had attained finality. In 1997, Review Petition was filed against the order of dismissal being RP No. 5897 of 1997. On 7.11.1997 RP No. 5897 was dismissed. In 1987-1994 the balance 7 officers filed LPAs. 28. It was contended by the present appellants that these LPAs were covered by the order in the case of Sri N.D. Sharma. The matter came to be referred to a Full Bench of the High Court to ascertain: “Whether the order of termination passed by and in the name of the President u/s 18 r/w Art. 310 invoking the doctrine of pleasure of the President can be challenged on the ground that it is camouflage and as such violative of principles of natural justice and the fundamental right guaranteed under Article 14?” 29. On 8.7.1994 the Full Court rendered its judgment in Ex. Maj. N.R. Ajwani & Ors. v. Union of India 55 (1994) SLT 217. On 8.7.1994 the Full Court rendered its judgment in Ex. Maj. N.R. Ajwani & Ors. v. Union of India 55 (1994) SLT 217. It was held that: (a)The concept of camouflage is a facet of judicial review and the Court would lift the veil in all cases where it appears that the power is used for collateral purposes under the cloak or garb of innocuous form of an order and determine the true character of the order under challenge. (b)Therefore, an order under Section 18 of the Army Act read with Article 310 of the Constitution invoking the doctrine of pleasure of President is subject to judicial review to ascertain whether the same is exercised lawfully and not vitiated for mala fide or based on extraneous grounds and that order can be challenged on the ground that it is a camouflage.” 30. In 1994 the Union of India preferred Special Leave Petition (Civil) Nos. 18732-36 against the order of the Full Bench of the High Court. On 17.11.1994 Special Leave Petition (Civil) Nos. 18732-36 was granted. Although the judgment of the Full Bench was not disturbed it was held that it is for the person who challenges the order passed u/s 18 on the ground of malafide to make out a prima facie case. It is only if he discharges the said burden, that the Government is called upon to show that the said order is not passed in its malafide exercise of powers. 31. On 2.5.1995 the High Court vide its order dated 2.5.1995 held that the issue of maintainability would be decided in the first instance. The High Court in this regard observed: “We are of the view that first we should decide the batch whether fresh writ petitions are maintainable, then the question of going into the privilege claimed by the respondents will have to be decided.” 32. On 8.3.1996 Division Bench of Delhi High Court dismissed similar petition. It was contended by the writ petitioner that the judgment of the Full Bench has given fresh cause of action to them to challenge the order of termination of service dated 3.3.1980 even if their challenge has been adjudicated upon till the Supreme Court. Earlier decisions were not based on lack of jurisdiction but it was not found to be a fit case of interference. Earlier decisions were not based on lack of jurisdiction but it was not found to be a fit case of interference. It was held that the petitions are barred by the principles of res judicata and are accordingly dismissed. This order has been affirmed by this Court. 33. On 6.1.1997 the present appellants filed the affidavit bringing on record this order’s dated 17.11.1994. It was submitted that it would be just and proper to decide the prima facie case, if any, in favour of the appellant/petitioners. It is only then the burden would shift to the respondent to show that the order had not been passed in malafide exercise of power. 34. On 14.8.1998 the relevant Original records pertaining to the case were shown to the Court. The order does not indicative that the records were insufficient or more papers were required to be produced. It is pertinent to note that all the LPAs and two abovesaid writ petitions were being taken up together for hearing by the High Court. 35. On 21.12.2000 the LPAs Nos. 4/87, 43/87, 139/87, 148/87, 21/88, 77/93 and 86/1994 were allowed. It was, inter alia, observed by the High Court as follows: (1)The case of the appellants and the case of the writ petitioners are interconnected and intertwined and they can be looked as a whole. (2)Instead of producing all the relevant records, the respondent had produced only three flaps. (3)Perusal of the Counter Affidavit in all cases gives the impression that the respondent had withheld material facts. (4)Respondents have not placed any material justifying the action. (5)Respondent think they are law unto themselves. (6)Respondents have chosen not to produce the entire record. (7)We may not have interfered in view of the finality reached on an adjudication by this court provided the records were produced. (8)On the consideration of all the facts and circumstances we are of the view that there is no other conclusion possible except to say that the orders are merely camouflage and have been passed for extraneous reasons under the innocuous form of orders of termination. (9)The appellants in the LPA are entitled to all consequential benefits. Orders passed against the appellants in LPA are void. 36. On 3.1.2001 the counsel for the present appellant received back the files submitted to the High Court. 37. (9)The appellants in the LPA are entitled to all consequential benefits. Orders passed against the appellants in LPA are void. 36. On 3.1.2001 the counsel for the present appellant received back the files submitted to the High Court. 37. In these appeals, it has been urged as follows:- (1)By application of the principles of res judicata, the writ petitions were not maintainable. (2)The order dated 17.11.1994 of this Court has been overlooked. (3)Onus of proof wrongly shifted to the present appellant. (4)The earlier adjudications have not been taken into account. (5)Delay in filing the writ petitions has not been considered. (6)Records were produced before the High Court; contrary to what has been recorded. 38. It was pointed out that the High Court lost sight of the factual background and on mere surmises and conjectures allowed the writ petitions; overlooking the fact that on same grounds the writ petitions had been earlier filed, were dismissed and even the writ petitions and the SLPs filed in this Court were dismissed. On clearly erroneous premises that there was no material to justify the action, the High Court came to the conclusion as noted above. It is submitted that the High Court proceeded on the basis as if no material were produced before it and this is contrary to the actual position. In fact volumes of documents were filed which the High Court unfortunately did not take note of. This presumably happened because the judgment was reserved in 1998 and the impugned judgment was delivered in December, 2000. The judgment is full of erroneous conclusions factually, which shows complete non-application of mind. An observation has been made by the High Court that though finality in law is desirable justice is of foremost importance. It has not been even indicated as to in what manner the earlier proceeding suffered from legality. The legality of the Court Marshal proceedings which was assailed were challenged earlier and were rejected right up to this Court. To substantiate the plea that original documents were shown and the original files were filed reference has been made to the receipt. Reference has also been made to the order dated 14th August, 1998, which reads as follows: “Synopsis have been placed on record. Mr. Tikky states that by 17.8.1998, photocopy of the relevant record will be made available be Court. Original have been shown to us. Judgment reserved.” 39. Reference has also been made to the order dated 14th August, 1998, which reads as follows: “Synopsis have been placed on record. Mr. Tikky states that by 17.8.1998, photocopy of the relevant record will be made available be Court. Original have been shown to us. Judgment reserved.” 39. It was pointed out that the only basis for filing the fresh writ applications as is evident from the averments made in the writ petitions is that some press reports had stated about irregularities in holding people guilty of espionage and the orders passed in the cases which formed the subject matter of challenge in the LPAs. The subject matter of the writ petitions which were under consideration in the LPAs were entirely different and had no connection with the legality of the Court Marshal proceedings. 40. In response, learned counsel for the respondent submitted that there was a great amount of manipulation and objectionable activities which subsequently came to light and on that basis the writ petitions were filed before the High Court and have been rightly allowed. In spite of opportunity as noted by the High Court, relevant documents were not produced. The stand that documents were filed before the High Court is refuted. 41. On a bare reading of the High Court’s order and the averments in the writ petitions, one thing is crystal clear that there was no definite allegation against any person who was responsible for the so called manipulation. It is also not clear as to who were the parties in the writ petitions filed. In the grounds indicated in the writ petitions it was stated that there is no bar or impediment on the High Court reviewing the petitioner’s case as also connected cases to enquire into the validity of the acts done against the writ petitioner. Therefore, it was an accepted position that the writ petitioners wanted review of the High Court’s order, which is clearly impermissible. No ground for seeking such review apparently was made out. In any event we feel that the High Court’s approach is clearly erroneous. The present appellants in the counter affidavit filed had raised a preliminary objection as regards the maintainability of the writ petitions and had requested the High Court to grant further opportunity if the necessity so arises to file a detailed counter affidavit after the preliminary objections were decided. The present appellants in the counter affidavit filed had raised a preliminary objection as regards the maintainability of the writ petitions and had requested the High Court to grant further opportunity if the necessity so arises to file a detailed counter affidavit after the preliminary objections were decided. The High Court in fact in one of the orders clearly indicated that the preliminary objections were to be decided first. But strangely it did not do so. It reserved the judgment and delivered the final judgment after about three years. There is also dispute as to whether the relevant documents were produced. What baffles us is that the High Court records with original documents were shown to it and the Bench wanted the copies to be filed. In the impugned judgment the High Court proceeded on the basis as if only a few pages of the files were shown. If that was really the case, there was no necessity for the High Court to direct the present appellants to file copies. If after perusal of the documents the High Court felt that these were not sufficient the same would have been stated. But that does not appear to have been done. The High Court also had not discussed as to how the matters which stood concluded could be reopened in the manner done. No sufficient grounds have been even indicated as to why the High Court felt it necessary to do so. To say that though finality had been achieved justice stood at a higher pedestal is not an answer to the basic question as to whether the High Court was competent to re-open the whole issue which had become concluded. The persons whom the High Court felt were responsible for alleged manipulation or persons behind false implication were not impleaded as parties. Newspaper reports are not to be considered as evidence. The authenticity of the newspaper reports was not established by the writ-petitioners. Even otherwise, this could not have been done in a writ petition, as disputed questions of fact were apparently involved. The matters which the High Court found to have been established were really not so. The conclusions were based on untested materials, and the writ-petitioners had not established them by evidence. Even otherwise, this could not have been done in a writ petition, as disputed questions of fact were apparently involved. The matters which the High Court found to have been established were really not so. The conclusions were based on untested materials, and the writ-petitioners had not established them by evidence. Since the High Court has not dealt with the matter in the proper perspective we feel it would be proper for the High Court to re-hear the matter. The High Court shall first decide the preliminary objections raised by the present appellants about the non-availability of the writ petitions. Normally such a course is not to be adopted. But in view of the peculiar facts involved, it would be the appropriate course to be adopted in the present case. Therefore, we remit the matter to the High Court for fresh hearing. We make it clear that whatever we plaint party. As per the First Information Report lodged by Harvinder Kaur at 10.30 P.M. on 23rd February, 1996, the prosecution story unfolded is, that on 23rd February 1996 at about 5.30 P.M., the complainant Harvinder Kaur (PW-1) along with Jasvinder Kaur (PW-2), wife of Jaspal Singh, were making cow-dung cakes in the Shamlat land. Harbans Singh after providing fodder to the cattle was talking to Jaspal Singh. In the meantime, Mohinder Singh (A-1) and Nasib Singh (A-3), armed with licensed 12 bore double barrel guns, Naginder Singh (A-6) armed with dang, Sukhdev Singh (A-5) armed with kassia, Beant Singh (A-2) armed with kirpan and Nirbhai Singh (A-4) armed with kassruli came to the spot. Mohinder Singh (A-1) raised lalkara that the complainant party be taught a lesson for grabbing and making addition of the land of the accused with that of the land of the complainant party. The Mohinder Singh fired shot from his licensed gun at Harbans Singh, which hit him on the left side of the chest. When the complainant (PW-1) ran towards her husband to save him, Nasib Singh (A-3) fired a shot from his double barrel 12 bore gun, which hit her on the ankle of left foot. At that time Mohinder Singh fired another shot, which hit on the interior side of the right thigh of Harbans Singh, the deceased. When the complainant (PW-1) ran towards her husband to save him, Nasib Singh (A-3) fired a shot from his double barrel 12 bore gun, which hit her on the ankle of left foot. At that time Mohinder Singh fired another shot, which hit on the interior side of the right thigh of Harbans Singh, the deceased. At the same time Naginder Singh (A-6) gave dang blows to Jaspal Singh and Nasib Singh again fired shot on the right leg of Jasvinder Kaur. An alarm was raised which attracted Gurbans Singh and Mander Singh sons of Gurdev Singh, Pritam Singh and Gurmit Singh sons of Bhag Singh, Madan Singh son of Avtar Singh and Mukhtiar Singh son of Mehar Singh, residents of Sakkanwali Village. When they tried to intervene and rescue the members of the complainant party, Mohinder Singh and Nasib Singh fired shots at them hitting the right flank of Madan Singh and left leg of Pritam Singh. Similarly, Sukhdev Singh, Beant Singh and Nirbhai Singh caused injuries to Mander Singh, Mukhtiar Singh and Gurmit Singh. After causing the aforesaid injuries, all the accused ran away with their respective weapons. Thereafter, Gurmit Singh arranged for the vehicle and took the injured to the Civil Hospital, Muktsar. However, Harbans Singh succumbed to his injuries on his way to the hospital. The remaining injured were got admitted to the Civil Hospital at Muktsar. 2. The inquest report of the dead body of Harbans Singh was prepared in the presence of Jaspal Singh and Mander Singh. The special report reached the Illaqa Magistrate at 5.00 A.M. on 24th February, 1996. After the investigation the accused persons were arrested and prosecuted. 3. Appellants Mohinder Singh, Sukhdev Singh and Naginder Singh had taken the plea of alibi stating that on the date of occurrence they along with Bachittar Singh and Harmanjit Singh had gone to the village Jharriwala to see a match for the grand daughter of Naginder Singh and had returned late in the night. As such they were not present on the date at the place of occurrence and had been falsely implicated by the complainant side. The other appellants while admitting the incident asserted that Harvinder Kaur had given wrong version of the facts, in fact, Nasbin Singh was present at his house. As such they were not present on the date at the place of occurrence and had been falsely implicated by the complainant side. The other appellants while admitting the incident asserted that Harvinder Kaur had given wrong version of the facts, in fact, Nasbin Singh was present at his house. Nirbhai Singh and Beant Singh came to know that Harbans Singh (deceased), Jaspal Singh (PW-9), Gurdev Singh, Mander Singh armed with gandasas along with some other persons were placing cow-dung cakes in their plot/land to take forceful possession of the land and when Nirbhai Singh and Beant Singh went to the spot to make enquiries, the aforesaid persons attacked them and caused injuries. Nasib Singh, Gurmail Singh and Angrez Singh intervened to save Nirbhai Singh and Beant Singh. Gurmail Singh and Angrez Singh caused injuries to the complainant’s side. It was further asserted that in the meanwhile, some other persons collected there and Nasib Singh in self-defence of his property and person fired shots which hit the complainant’s side. 4. The prosecution has mainly based its case on the eye witnesses’ account of the incient deposed by Harvinder Kaur (PW-1), Jasvinder Kaur (PW-2), Jaspal Singh (PW-9) and Pritam Singh (PW-10), the injured witnesses. The post-mortem of the deceased Harbans Singh was conducted by Dr. Kirandeep (PW-4) and she had found fire-arm injuries on the person of the deceased. In her opinion, the cause of death was shock and haemorrhage as a result of injury to pericardium and heart, which was sufficient to cause death in the ordinary course of nature. Dr. M.G. Sharma (PW-3) had examined Mukhtiar Singh and Jaspal Singh and Jaspal Singh. On 23rd February, 1996, Dr. Tarlochand Singh (PW-15) examined Harvinder Kaur (PW-1), Gurmit Singh, Pritam Singh, Jasvinder Kaur (PW-2) and Mander Singh. The doctors found the injuries on the person of the persons examined by them. Nirbhai Singh (A-4) and Beant Singh (A-2) were also examined Dr. APS Kochar (DW-1) who had found some injuries on the person of A-4 and A-2. At the instance of the accused Mohinder Singh and Nasib Singh, licensed guns were recovered from their possession. After appreciation of the evidence on record, the trial court convicted all the accused persons as under: (i)Mohinder Singh Beant Singh Nasib Singh Nirbhai Singh Sukhdev Singh Naginder Singh U/s 148 of the I.P.C. To undergo rigorous imprisonment for a period of one year, each. After appreciation of the evidence on record, the trial court convicted all the accused persons as under: (i)Mohinder Singh Beant Singh Nasib Singh Nirbhai Singh Sukhdev Singh Naginder Singh U/s 148 of the I.P.C. To undergo rigorous imprisonment for a period of one year, each. (ii)Mohinder Singh U/s 302 of the I.P.C. To undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year for committing the murder of Harbans Singh. (iii)Beant Singh Nasib Singh Nirbhai Singh Sukhdev Singh Naginder Singh U/s 302 r/w S. 149 I.P.C. To undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each for committing the murder of Harbans Singh. (iv)Nasib Singh Mohinder Singh U/s 307 I.P.C. To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- each, and in default of payment of fine to further undergo rigorous imprisonment for six months each, for attempting to murder Harvinder Kaur, Jasvinder Kaur, Modan Singh & Pritam Singh by causing gun shot injuries. (v)Beant Singh Nirbhai Singh Sukhdev Singh Naginder Singh U/s 307 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months, each for attempting to murder Harvinder Kaur, Jasvinder Singh, Modan Singh and Pritam Singh by causing fire arm injuries. (vi)Beant Singh Sukhdev Singh Sukhdev Singh U/s 326 I.P.C. To undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1500/- each and in default of payment of fine to further undergo rigorous imprisonment for 3 months each, for causing grievous hurt to Gurbans Singh & Mukhtiar Singh. (vii)Mohinder Singh Nasib Singh Nirbhai Singh Naginder Singh U/s 326 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1500/- each and in default of payment of fine to further undergo rigorous imprisonment for three months, each for causing grievous hurt to Gurbans Singh and Mukhtiar Singh. (vii)Mohinder Singh Nasib Singh Nirbhai Singh Naginder Singh U/s 326 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 1500/- each and in default of payment of fine to further undergo rigorous imprisonment for three months, each for causing grievous hurt to Gurbans Singh and Mukhtiar Singh. (viii)Naginder Singh Sukhdev Singh U/s 325 I.P.C. To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- each and in default of payment of fine to further undergo rigorous imprisonment for 3 months, each for causing grievous hurt with blunt weapon to Jaspal Singh and Mukhtiar Singh. (ix)Mohinder Singh Nasib Singh Nirbhai Singh Beant Singh U/s 325 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- each and in default of payment of fine to further undergo rigorous imprisonment for 3 months, each for causing grievous hurt with blunt weapon to Jaspal Singh and Mukhtiar Singh. (x)Beant Singh Sukhdev Singh U/s 324 I.P.C. To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- each and in default of payment of fine to further undergo rigorous imprisonment for two months each for causing simple hurt to Mander Singh & Mukhtiar Singh. (xi)Mohinder Singh Nasib Singh Nirbhai Singh Naginder Singh U/s 324 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- each and in default of payment of fine to further undergo rigorous imprisonment for 2 months, each for causing simple hurt to Mander Singh & Mukhtiar Singh. (xii)Naginder Singh Beant Singh Nirbhai Singh Sukhdev Singh U/s 323 of I.P.C. To undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 200/- each and in default of payment of fine to further undergo rigorous imprisonment for 15 days, each for causing simple hurt to Jaspal Singh, Mander Singh, Jasvinder Kaur, Gurmit Singh & Mukhtiar Singh. (xiii)Mohinder Singh Nasib Singh U/s 323 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. (xiii)Mohinder Singh Nasib Singh U/s 323 r/w S. 149 I.P.C. To undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 200/- each and in default of payment of fine to further undergo rigorous imprisonment for 15 days, each for causing simple hurt to Jaspal Singh, Mander Singh, Jasvinder Kaur, Gurmit Singh & Mukhtiar Singh. The entire sentence was directed to run concurrently. However, the period of detention already undergone by the accused convicts during investigation or trial was directed to be deducted from the period of their substantive sentences. 5. Aggrieved by the order of conviction and sentence an appeal was preferred in the High Court of Punjab and Haryana. It was urged before the High Court that there was a delay in lodging the FIR, which was lodged at 10.30 P.M. whereas the alleged incident took place at 5.30 P.M. on 23rd February, 1996 and the report to the Illaqa Magistrate had reached at 5.00 A.M. on 24th February, 1996, which goes to show that the complainant party had consumed time in coining up a story of their choice in connivance with the police. That non-explanation of the injuries on the person of Beant Singh and Nirbhai Singh, dented the prosecution case and because of non-explanation of the injuries by the witnesses on the person of the accused, it can be inferred that the complainant’s side was suppressing the genesis of fight. That there was a discrepancy between the eye-witnesses’ version and medical evidence. That the plea of alibi taken by Sukhdev Singh, Naginder and Mohinder Singh was proved by the defence and as such they could not have been convicted. It was lastly submitted that their presence at the spot was no unnatural as the houses of the appellants were adjoining to the place of occurrence and unlawful assembly with a common object to commit the murder of Harbans Singh and cause injuries to other persons, cannot be inferred. The High Court recorded the findings that in the circumstances of the case, merely because there was some delay in lodging the FIR, it cannot be said that the prosecution had manufactured a story to falsely implicate the appellants, particularly so when the occurrence was admitted by the appellants, maybe with the denial of the presence of Mohinder Singh, Sukhdev Singh and Naginder Singh at the spot. The so called delay would at best call for more care and caution while scanning the entire evidence so that there would not be chances of false implication. The element of delay in registering the complaint or sending the same to the jurisdictional Magistrate by itself would not be fatal to the prosecution, if the evidence adduced by the prosecution was worthy of credence. The High Court found the eye-witnesses’ version credible and trustworthy. As for non-explanation of the injuries on the appellants Beant Singh and Nirbhai Singh, the High Court has found that there were no injuries on their person by gandasa, which was claimed in defence. According to the High Court, the injuries were superficial in nature except one on the person of Beant Singh which was in the shape of diffused swelling and the doctor had opined that there was no visible injury mark seen, which showed that no injury was caused by the blunt side of the gandasa otherwise it would have left some mark of violence. The effect of the non-explanation of the injuries on the person of the accused had to be judged from the entire factual position, and having done so, in view of the High Court, the prosecution had not suppressed the genesis of fight. The High Court opined that the appellants in the shape of aggressors formed an unlawful assembly causing the murder of Harbans Singh and caused injuries to nine persons. As per the High Court, there was no discrepancy in the medical evidence and the eye-witnesses’ account for the injuries caused by the use of firearm. The distance between the assailants and the injured, as per the prosecution witnesses was 7-8 karams, whereas according to the medical evidence the shots fired were not from more than a distance of 4 ft. from the muzzle end of the gun. This is on account of blackening around the wound. The High Court has held that the witnesses are rustic villagers from whom accuracy about the exact distance cannot be expected. All the four injured witnesses examined have categorically stated in one voice that Mohinder Singh along with Nasib Singh armed with licensed guns came and fired at Harbans Singh, the deceased. On perusal of the site plan, it is clear that the place of occurrence is of very small in dimension. All the four injured witnesses examined have categorically stated in one voice that Mohinder Singh along with Nasib Singh armed with licensed guns came and fired at Harbans Singh, the deceased. On perusal of the site plan, it is clear that the place of occurrence is of very small in dimension. Five persons from the complainant’s side including the deceased were present on the plot, whereas the other five persons, who had received injuries, had also reached the spot after hearing the commotion. From the appellants’ side, six persons entered the said plot. Thus, in all 16 persons were present at the time of incident and in such a situation it would not be possible for the witnesses to make the correct assessment of the distance, from where the shots were fired and in these circumstances the gun fires and the resultant injuries thereof, witnessed by the witnesses present and injured, cannot be disbelieved. Coupled with the fact that the licensed guns of the accused persons were recovered at the instance of the accused and the user of the same being confirmed by Forensic Science Lab, the witnesses’ version cannot be disbelieved. It was obvious that two guns had been used in the occurrence. 6. The plea of alibi was disbelieved by the High Court on the grounds that the onus to prove the same heavily rests on the accused which they failed to discharge. On these findings, the High Court has reached an irresistible and unequivocal conclusion that the appellants’ conviction as recorded by the learned trial court on different counts deserves to be upheld and accordingly the appeal was dismissed. 7. Aggrieved by the same, the present appeal by special leave is preferred before us. It may be mentioned that the accused appellant Mohinder Singh has been released by the State considering his age and his appeal is not being pressed by the counsel for the appellant. The other accused-appellant Nasib Singh has been informed to have died, by the counsel for the appellant and as such his appeal stands abated. Thus, we are considering the appeal as regards Beant Singh, Nirbhai Singh, Sukhdev Singh and Naginder Singh. 8. The other accused-appellant Nasib Singh has been informed to have died, by the counsel for the appellant and as such his appeal stands abated. Thus, we are considering the appeal as regards Beant Singh, Nirbhai Singh, Sukhdev Singh and Naginder Singh. 8. It is contended by the learned counsel for the appellants that the prosecution has failed to explain the injuries caused to Nirbhai Singh (A-4) and Beant Singh (A-2) and, therefore, the prosecution has failed to establish the genesis of offence. The failure of the prosecution to offer any explanation regarding the injuries found on the accused would mean that the evidence led by the prosecution relating to the incident is not true or at any rate is not wholly true and thus reliance could not have been placed on that evidence to convict the accused persons. To prove the fact that Beant Singh and Nirbhai Singh have received injuries, the defence has examined Dr. APS. Kochar, District T.B. Officer, Civil Surgeon Office, Faridkot. The doctor stated that he had examined Beant Singh at 10.30 P.M. on 23rd February, 1996 at Faridkot and found four injuries on his person. The injuries were caused by a blunt weapon. Injury No.4 was declared as simple. On X-Ray examination report, injury Nos. 1 and 2 were also found as simple in nature and injury No.3 was grievous in nature. On the same day at 11.00 P.M., he examined Nirbhai Singh and found three injuries on his person. Injury No.1 was caused by a sharp weapon and rest of the injuries were caused by a blunt weapon. Injury Nos.1 and 2 were simple and after getting X-Ray examination report injury No.3 was found to be grievous in nature. On cross-examination, it was admitted by him that he attached no X-Ray report on his record. Similarly X-Ray report and skiagraph report were not on the judicial file. Injury on the person of Beant Singh could possibly by caused as a result of falling on the hard surface. Injury No.1 on the person of Nirbhai Singh could be caused with the blade of a razor. Injury No.2 could be caused if the nail struck at a hard surface. Injury No.3 on the person of Nirbhai Singh could be caused by falling on the hard surface. Injury No.1 on the person of Nirbhai Singh could be caused with the blade of a razor. Injury No.2 could be caused if the nail struck at a hard surface. Injury No.3 on the person of Nirbhai Singh could be caused by falling on the hard surface. From the evidence of (DW-1), it is apparent that the injuries were simple in nature and the grievous nature of injury could not be proved by the doctor by producing the X-Rays and skiagraph, on the basis of which he had formed the opinion of the grievous nature of the injury on Beant Singh as well as on Nirbhai Singh. 9. In the case of Lakshmi Singh and Ors. vs. State of Bihar (1976) 4 SCC 394 , it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such non-explanation may assume greater importance where the evidence consisted of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and credit-worthy and where the Court can distinguish the truth from the falsehood, the mere fact that the injuries are not explained by the prosecution, cannot itself be a sole basis to reject such evidence and consequently the whole case. 10. In Rizan and Anr. vs. State of Chhattisgarh (2003) 2 SCC 661 , this Court has held that non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstances. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to a case where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. This principle was discussed in Sekar alias Raja Sekharan vs. State represented by Inspector of Police, T.N. (2002) 8 SCC 354 and was reiterated in Anil Kumar vs. State of U.P., (2004) 13 SCC 257 . 11. All the three aforesaid judgments have approved the statement of law enunciated in Lakshmi Singh’s Case (supra). 12. This principle was discussed in Sekar alias Raja Sekharan vs. State represented by Inspector of Police, T.N. (2002) 8 SCC 354 and was reiterated in Anil Kumar vs. State of U.P., (2004) 13 SCC 257 . 11. All the three aforesaid judgments have approved the statement of law enunciated in Lakshmi Singh’s Case (supra). 12. In the present case, there is a creditworthy evidence of PW-1, PW-2, PW-9 and PW-10, viz., Harvinder Kaur, Jasvinder Kaur, Jaspal Singh and Pritam Singh, who have vividly described the incident and the part played by each of the accused-appellants. All the four witnesses are injured witnesses and their presence at the spot cannot be doubted. The evidence led by the defence at best shows minor injuries suffered by Beant Singh and Nirbhai Singh which would not dislodge the prosecution case, which is establish by the evidence of creditworthy witnesses and non-explanation of the injuries by the prosecution, if any, sustained by the accused-appellants would not result in disbelieving the prosecution version. 13. To prove the case, the prosecution has examined four eye-witnesses. Harvinder Kaur (PW-1), w/o Harbans Singh (deceased) had deposed that on the relevant day, her husband and Jaspal Singh were present at the place of incident where they were preparing cow-dung cakes. She saw the accused-appellants proceeding towards the shamlat land. Mohinder Singh and Nasib Singh were armed with licensed 12 bore guns, Naginder Singh with dang, Sukhdev Singh with Kassia, Beant Singh with Kirpan, Nirbhai Singh with Kassruli. Mohinder Singh raised a lalkara that they would teach us a lesson for adding their land with our land. Mohinder Singh accused fired from his 12 bore gun towards her husband Harbans Singh which hit him on the left side of his chest. She ran towards her husband and Nasib Singh fired at her by his gun which hit her on her left ankle. Mohinder Singh fired another shot which hit her husband on his right thigh while lying on the ground. Naginder Singh-accused gave dang blows to Jaspal Singh by hitting him but she could not tell the place of injuries on the person of Jaspal Singh. Nasib Singh then fired from his 12 bore gun hitting Jasvinder Kaur on her right leg above her right ankle on the front side. Nirbhai Singh-accused caused injuries to Jasvinder Kaur with kassruli. They raised alarm. Nasib Singh then fired from his 12 bore gun hitting Jasvinder Kaur on her right leg above her right ankle on the front side. Nirbhai Singh-accused caused injuries to Jasvinder Kaur with kassruli. They raised alarm. On hearing noise Mander Singh, Gurbans Singh, Gurmit Singh, Pritam Sikngh, Madan Singh and Mukhtiar Singh came to the spot to rescue them from the accused. At that time Mohinder Singh fired from his gun hitting on the right flank of Madan Singh and left leg of Pritam Singh. Then Naginder Singh, Beant Singh, Sukhdev Singh and Nirbhai Singh with their respective weapons caused injuries to Mander Singh, Gurbans Singh, Gurmit Singh Mukhtiar Singh. She has further stated in cross-examination that she was present at the spot 25-30 minutes prior to the occurrence and she had seen the accused at a distance of 7-8 karams. The accused persons came carrying guns with them. The other accused were also with them and they came together. Mohinder Singh accused fired with the gun from a distance of 7-8 karams at Harbans Singh. Nasib Singh was at a distance of 7-8 karams from Jasvinder Kaur when he fired. Nasib Singh and Mohinder Singh had fired from 7-8 karams at Madan Singh and Pritam Singh. 14. Further, Jasvinder Kaur (PW-2), another injured eye-witness, fully supports the version given by PW-1 of the incident. She specifically stated that Nasib Singh fired from his 12 bore gun towards her which hit her on her right leg above the ankle and the pellets hit her on abdomen and Nirbhai Singh gave kassruli blows on her left foot. 15. Jaspal Singh (PW-9) is another injured eye-witness examined by the prosecution who had described the incident and the participation of the accused persons in the incident as described by PW-1 and PW-2. He had specifically deposed that accused-Naginder Singh gave three dang blows to him, first blow hit on his shoulder and second blow was received by him on the back side at right hand. 16. Pritam Singh (PW-10), another injured eye-witness, had supported the statements of the eye-witnesses in toto. 17. The cross-examination of these witnesses could not show any contradiction or discrepancy in their version in regard to the participation of the accused-appellants in the crime and the part played by them. The ocular version of the witnesses find support from the medical evidence of Dr. 17. The cross-examination of these witnesses could not show any contradiction or discrepancy in their version in regard to the participation of the accused-appellants in the crime and the part played by them. The ocular version of the witnesses find support from the medical evidence of Dr. Kirandeep (PW-4) who has conducted the post-mortem on the deceased Harbans Singh. Statement of Dr. M.G. Sharma (PW-3), who examined Mukhtiar Singh and Jaspal Singh and statement of Dr. Tarlochan Singh (PW-15), who examined Harvinder Kaur Gurmit Singh, Pritam Singh, Jasvinder Kaur and Mander Singh, fully corroborated the ocular version of the eye-witnesses. We find that the eye-witnesses were wholly reliable and supported the case of the prosecution to the hilt. 18. The counsel then has urged before us that the appellants before us have not caused any injury to Harbans Singh, the deceased, and, therefore, they could not have been convicted under Section 302 read with Section 149 of IPC for causing homicidal death of Harbans Singh. The conviction under Section 302/149 could not be supported on the basis of the evidence led by the prosecution. 19. The scope and ambit of Section 149 of IPC was the subject of discussion in various authorities of this Court. 21. In Sukhbir Singh v. State of Haryana, (2002) 3 SCC 327 , it is held by this Court that an accused is vicariously guilty of the offence committed by other accused persons only if he is proved to be a member of an unlawful assembly sharing its common object. Once the existence of common object of unlawful assembly is proved, each member of such an assembly shall be liable for the main offence notwithstanding his actual participation in the commission of the offence. It is not necessary that each of the accused, forming the unlawful assembly, must have committed the offence with his own hands. 22. The members of the unlawful assembly can be held liable under Section 149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. 22. The members of the unlawful assembly can be held liable under Section 149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. It is true that the common object does not require prior concert and a common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence. 23. In Rajendra Shantaram Todankar v. State of Maharashtra and Ors., (2003) 2 SCC 257 , this Court has held that Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embrances within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likehood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likehood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 - either clause - is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly, every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act. 24. In State of Rajasthan v. Nathu and Ors., (2003) 5 SCC 537 , this Court has held that if death had been caused in prosecution of the common object of an unlawful assembly, it is not necessary to record a definite and specific finding as to which particular accused out of the members of the unlawful assembly caused the fatal injury. Once an unlawful assembly has come into existence, each member of the assembly becomes vicariously liable for the criminal act of any other member of the assembly committed in prosecution of the common object of the assembly. 25. It is held in Parsuram Pandey and Ors. v. State of Bihar, (2004) 13 SCC 189 that to attract Section 149 IPC the prosecution must prove that the commission of the offence was by any member of an unlawful assembly and such offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew that it was likely to be committed. Unless these three elements are satisfied by the prosecution the accused cannot be convicted with the aid of Section 149 IPC. 26. In Rabindra Mahto & Ors. v. State of Jharkhand, JT 2006(1) SC 137, this Court has held that under Section 149 IPC, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case. 27. The prosecution has established that all the accused- appellants came to the spot of incident together. All the accused-appellants were carrying deadly weapons. Two of them had carried 12 bore guns. Immediately on reaching the spot Mohinder Singh one of the accused had opened fire followed by firing by another accused-appellant Nasib Singh and in the same transaction the accused-appellants had caused several injuries to various persons, not only to the persons who were present at the spot but also to the persons who had reached the spot after hearing the commotion. The facts found in the case clearly established the common object of the assembly. The knowledge of assembly that grievous hurt or death would be caused can be safely attributed to the members of the unlawful assembly because of the fact that two of the members of the assembly have carried the licensed guns. An inference can be drawn of the knowledge of common object and formation of common object from the behaviour of the members of the assembly of the accused persons, who came together with deadly weapons and immediately started attacks indiscriminately on the persons present there. As many as nine persons have received 31 injuries, which clearly establishes the common object of the unlawful assembly to do away with Harbans Singh and cause injuries to any persons who tried to intervene. 28. We are satisfied with the evidence led by the prosecution that common object of all the accused appellants of causing death of Harbans Singh was established beyond any doubt and, therefore, the accused-appellants were rightly convicted under Section 302 IPC with the aid of Section 149 of IPC apart from other convictions under other Sections of IPC for causing injuries to other persons. 29. For the foregoing reasons, in our view there is no merit in this appeal. The appeal is dismissed. Appeal dismissed. **************** have observed should not be treated to be the conclusive findings on the subject matter of controversy. The appeals are allowed without any order as to costs. Since the matter is pending since long; we request the High Court to dispose of the matter as early as practicable, preferably within four months from the date of receipt of the judgment. No costs. Appeals allowed. *****************