JUDGMENT H.S. Bhalla, J.:- By this common judgment we shall be disposing of two appeals, being Criminal No. 104-DB of 2005 and Criminal Appeal No.33- SB of 2005 together as they arise out of the same occurrence. 2. This appeal is directed against the judgment dated 15.12.2004 passed by Additional Sessions Judge, Bhiwani, whereby he convicted the appellants under Sections 302/323/325/148 read with Section 149 of the Indian Penal Code. All the appellants were sentenced to undergo rigorous imprisonment for one year under Section 148 of the Indian Penal Code; rigorous imprisonment for six months under Section 323 of the Indian Penal Code; rigorous imprisonment for four years under Section 325 of the Indian Penal Code and they were ordered to pay fine of Rs.500/- and rigorous imprisonment for life under Section 302 of the Indian Penal Code and they were ordered to pay fine of Rs.2000/-. In default of payment of fine, the appellants were directed to undergo additional rigorous imprisonment for a period of one year. All the sentences were ordered to run concurrently. 3. The facts required to be noticed for the disposal of this appeal are that on 1.6.2000 a wireless message was received from PGIMS Rohtak and on the basis of this message, police machinery was set into motion and Assistant Sub Inspector Manjit Singh rushed to the hospital, where the Medical Officer declared the injured Daya Nand unfit to make a statement and in such like circumstances, Smt. Santosh wife of Daya Nand (since deceased) suffered a statement, Ex. PQ, to the effect that on 31.5.2000 around 8.30 P.M. she along with her husband and son was sitting in the precinct of her house. She was attracted to the place of occurrence, when she heard the screams of Yudhbir in the form of “Mar Diya Mar Diya and Bachao Bachao”. She along with her husband rushed to the spot and found that accused Mahabir, Vinod, Sandeep, Bijender, Randhir, Ram Kumar, Smt. Sajna, Smt. Omli and Smt. Yashoda were causing injuries to Yudhbir. Vinod was armed with an axe, whereas other accused were having lathis. On the intervention of her husband, accused persons caught hold him. Accused Vinod inflicted axe on his head as a result of which, he fell down . Other accused persons also attributed injuries to him. Vinod was armed with an axe, whereas other accused were having lathis. On the intervention of her husband, accused persons caught hold him. Accused Vinod inflicted axe on his head as a result of which, he fell down . Other accused persons also attributed injuries to him. She and her son raised an alarm, which attracted Attar Singh and Mir Singh to the spot and they tried to rescue them from the clutches of the accused. However, accused persons also caused injuries to her son Mandeep, Attar Singh and Mir Singh and then fled away. On the basis of this statement suffered by her, a case was registered. During the course of investigation, necessary formalities were completed by the Investigating Officer and the statements of the witnesses were also recorded. A supplementary charge sheet was presented against accused Sandeep, who was a minor at the time of occurrence, but accused Sandeep did not claim himself to be a juvenile as per his statement, recorded separately on 22.9.2000 and he was also sent up for trial along with others. 4. Charges under Sections 148/323/325/302 read with Section 149 of the Indian Penal Code were framed against all the accused, to which they did not plead guilty and claimed trial. 5. Prosecution, in order to prove its case, examined as many as 16 witnesses, namely, Ravinder Kumar, Draftsman (PW-1), Assistant Sub Inspector Hari Singh (PW-2), Head Constable Surinder Singh (PW-3), Constable Rajbir Singh (PW-4), Dharamvir Singh, retired Police Inspector (PW-5), Dr. P.D.Sharma, Senior Medical Officer, General Hospital, Bhiwani (PW-6), Inspector Mohinder Singh (PW-7), Dr. R.K.Wadhwa, District T.B.Officer, Rohtak (PW-8), Dr. Wazir Singh, Senior Medical Officer, General Hospital, Bhiwani (PW-9), Smt. Santosh Devi (PW-10), Yudhbir Singh (PW-11), Assistant Sub Inspector Manjit Singh (PW-12), Sub Inspector Ajaib Singh (PW-13), Balwan Singh, Record-Keeper, PGIMS, Rohtak (PW-14), Dr. Amar Jeet Singh, Deputy Medical Superintendent, PGIMS, Rohtak (PW-15) and Sub Inspector Ajaib Singh (PW-16) and after tendering other documents, evidence was closed. 6. In their statements recorded under Section 313 of the Code of Criminal Procedure, they denied all the prosecution allegations levelled against them and pleaded that they have been falsely implicated in the present case. In defence, they examined Dr. Raghbir Singh Sehrawat as DW-1 and Dr. H.L. Beniwal, Senior Medical Officer, Civil Hospital, Charkhi Dadri as DW-2 and closed the evidence. 7. In defence, they examined Dr. Raghbir Singh Sehrawat as DW-1 and Dr. H.L. Beniwal, Senior Medical Officer, Civil Hospital, Charkhi Dadri as DW-2 and closed the evidence. 7. We have heard the learned counsel for the parties and have also gone through the record of the case carefully. 8. Ocular version have been provided mainly by Santosh Devi (PW-10), who lost her husband and she deposed that on the fateful day, i.e., 31.5.2000 around 8.30 P.M., while she, her husband and son were present in the premises of their house, having heard shrieks raised in the form of “Mar Diya May Diya.”, they went out of the house and they found that Mahabir, Sajna, Sandeep, Bijender, Vinod, Ombir and Randhir were present, whereas accused Vinod was armed with an axe and remaining accused were armed with wooden planks and lathis. Her husband Daya Nand (since deceased) enquired from accused Ram Kumar as to why they were giving beating to Yudhbir, whereupon, other accused persons caught hold of him and accused Vinod attributed axe on his head and other accused persons also caused injuries to him. She and her son Mandeep raised a hue and cry “ Mar Diya Mar Diya”, which attracted Attar Singh and Bir Singh, who tried to save her husband Daya Nand, but the accused persons also inflicted injuries to them. Her husband Daya Nand was taken to the hospital, but he succumbed to his injuries. She further disclosed that the dispute erupted between Yudhbir and Vinod and others about two days ago for taking water from the tap. She proved her statement, Ex. PQ, suffered before the police. She has further disclosed that she fell on her husband. She also sustained injuries. Her statement inspires confidence and during the course of cross-examination also, she stuck to her statement suffered by her before the police and as well as before the Court and nothing of importance could be elicited in favour of defence during the course of her cross-examination. She also suffered injuries and is a stamped witness. Her presence is also fully proved at the place of occurrence and she tried to save her husband and while saving him, she also suffered injuries. Her statement is further corroborated through the mouth of Yudhbir Singh (PW-11). She also suffered injuries and is a stamped witness. Her presence is also fully proved at the place of occurrence and she tried to save her husband and while saving him, she also suffered injuries. Her statement is further corroborated through the mouth of Yudhbir Singh (PW-11). She has also deposed in a similar fashion with regard to the occurrence by disclosing that he was present in front of the premises of the house of his uncle Daya Nand (since deceased). All the accused persons accosted him. Accused Vinod was armed with an axe, whereas other accused persons were armed with lathis. All the accused caused injuries to him and on raising an alarm by him in the shape of “Bachao Bachao”, Daya Nand ( since deceased), Mandeep and Smt. Santosh rushed to the spot and tried to save him. However, accused Randhir, Sajna, Mahabir and Sandeep caught hold of Daya Nand, whereas accused Vinod inflicted axe on his head. He has also categorically deposed that the complainant party also caused injuries to accused persons in their private defence. Meaning thereby that injuries caused by the complainant party to the accused persons have been dully explained. It is true that Smt. Santosh Devi (PW-10) could not disclose this fact, but we are conscious of the fact that she is an illiterate and rustic woman and may be due to lapse of time, she missed this part of the occurrence. During the course of lengthy cross-examination, nothing of importance could be elicited in favour of the defence. We find that both these witnesses, i.e., Santosh Devi (PW-10) and yudhbir Singh (PW-11) have corroborated the statements of each other and their presence is fully proved at the place of occurrence. 9. Manjit Singh (PW-12), Assistant Sub Inspetor, after receiving wireless message, rushed to the hospital and he has disclosed that on 1.6.2000, doctor declared Daya Nand to be unfit to make a statement. Thereafter, on the next day, i.e., 2.6.2000, he again went to the hospital and Daya Nand was again declared unfit to make the statement. Consequently, Smt. Santosh wife of Daya Nand deceased made a statement, Ex. PQ, and on the basis of this statement, formal FIR was registered. Daya Nand succumbed to his injuries and inquest proceedings were completed. Thereafter, on the next day, i.e., 2.6.2000, he again went to the hospital and Daya Nand was again declared unfit to make the statement. Consequently, Smt. Santosh wife of Daya Nand deceased made a statement, Ex. PQ, and on the basis of this statement, formal FIR was registered. Daya Nand succumbed to his injuries and inquest proceedings were completed. The occurrence took place on the night of 31.5.2000 and the injured being in critical condition was rushed to PGIMS, Rohtak and doctor twice opined that Daya Nand (since deceased) was unfit to make the statement. Therefore, the statement of his wife has been recorded. Therefore, delay, if any, in recording the First Information Report in such like circumstances is not fatal to the prosecution case, which is satisfactorily explained. Moreover, the statement of Manjit Singh (PW-12) further proves on record that a cross case was registered at the instance of accused Randhir, who made statement, Ex. DA, on the basis of which, formal FIR was registered and this fact proves on record that accused persons had also sustained injuries and that is why, the complainant party is facing trial under Sections 148/149/323 and 325 of the Indian Penal Code. Meaning thereby that, both the present case and the case of the complainant party arise out of the same occurrence. 10. Dr. Amar Jeet Singh (PW-15) has proved the original medicolegal report, Ex. PZ, of Daya Nand (since deceased). The statement of Dr. H.L.Beniwal (DW-2) further spells out that accused sustained injuries in the course of occurrence. Some minor contradictions are bound to occur in the statements of the witnesses when they depose in the Court truthfully after a lapse of time and they have rightly been over-looked by the learned trial Court since they do not materially affect the case of the prosecution on merits. 11. As regard cause of death as opined by Dr. R.K.Wadhwa(PW- 8) was due to head injury and its complications, which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. He has further disclosed that probable time that elapsed between the injury and death was 8 days as per record. All this shows that accused died on account of the head injury suffered by him. R.K.Wadhwa(PW- 8) was due to head injury and its complications, which were ante-mortem in nature and sufficient to cause death in ordinary course of nature. He has further disclosed that probable time that elapsed between the injury and death was 8 days as per record. All this shows that accused died on account of the head injury suffered by him. After having gone through the medical evidence and the ocular evidence, we find that there is no conflict between them as suggested by the learned defence counsel. However, in the present case, motive on the part of the accused persons stands established because firstly, they picked up a quarrel with Yudhbir regarding fetching water from the tap and then inflicted injuries on the head of Daya Nand and other persons. The learned defence counsel submitted that it is a weak type of motive and in fact, motive is missing in the instant case, but this contention of the learned defence counsel is liable to be noticed only for the sake of rejection since we would like to observe that motive is state of mind of the culprit and this element exclusively remains hidden in it and specially when it sprouts for the commission of the offence that can be judged precisely. It is neither obligatory nor incumbent on the part of the prosecution to prove the motive but if it can provide to the Court for appreciating the evidence, this would be additional circumstance to prove the chain of the version. Most heinous offences are committed for petty matters and some time for no motive but the Court cannot sit idle and shift its responsibility to arrive at a particular conclusion as to who is responsible for the commission of the offence. In order to conclude with regard to the motive in this case, I would finally like to observe that motive is not deciding factor in a criminal case and absence of motive does not speak of the innocence of the accused, where direct evidence against the accused is available on the record. 12. Now the question would arise whether it is established that no strong evidence has been led by the prosecution to show that unlawful assembly was formed by the accused with common object of those composing such assembly. 12. Now the question would arise whether it is established that no strong evidence has been led by the prosecution to show that unlawful assembly was formed by the accused with common object of those composing such assembly. The accused can be convicted under Section 149 of the Indian Penal Code only if the prosecution by way of evidence proved that the persons forming unlawful assembly should be animated by common object. In the instant case, no evidence has come forward to spell out that all the accused formed an unlawful assembly in prosecution of the common object of that assembly to inflict injuries to Daya Nand deceased. The act attributed to Vinod Kumar is fully proved from the statements of Santosh Devi (PW-10) and Yudhbir Singh (PW-11) and further we are of this opinion that the statements of these two witnesses are consistent throughout and they have faithfully and truthfully given the account of occurrence before the Court. No reason can be conceived on account of which these two witnesses, instead of naming the real culprits, falsely named the accused persons, who caused those injuries. The learned defence counsel could not point out from the evidence of these two star witnesses of the prosecution except for the inimical background as to why the Court should not rely on their testimony. In the absence of any convincing evidence that all the accused formed an unlawful assembly in prosecution of the common object of that assembly eliminated the life of the deceased by causing injuries to him and in view of this, it is not possible for this Court to hold the accused persons guilty under sections 148 and 149 of the Indian Penal Code. 13. To attract the provisions of Section 149 of the Indian Penal Code, the prosecution must establish that there was unlawful assembly and crime was committed in prosecution of its common object. 13. To attract the provisions of Section 149 of the Indian Penal Code, the prosecution must establish that there was unlawful assembly and crime was committed in prosecution of its common object. The essential elements of Section 149 of the Indian Penal Code are :- (i) There was an unlawful assembly as contemplated by Section 141; (ii) The accused was a member of such assembly; (iii) He had intentionally joined or continued in that unlawful assembly; (iv) He knew of the common object of the unlawful assembly; (v) An offence was committed by a member of the assembly; (vi) Such offence was committed in prosecution of the common object of the assembly; or (vii) As the members of the assembly knew that such offence was likely to be committed in prosecution of their common object; 14. In view of the above, it is crystal clear that the offence for which the members of the unlawful assembly can be convicted must show probably flow from the prosecution of the common object that each member might antecedently expect it to happen. There must be a nexus between the common object and the offence committed. It is true that the question of common intention does not arise under Section 149, every member of the unlawful assembly must be engaged in the prosecution of the common object and they should be aware of it and concur in it. In the instant case, it appears that every object of of the unlawful assembly was to cause grievous injury to the victim to repel any protest from the deceased and the grievous fatal injury caused was not in prosecution of the common object of the unlawful assembly, the other accused cannot be held guilty under Section 302 read with Section 149 of the Indian Penal Code. There was no common object of the unlawful assembly in the instant case to commit the murder of Daya Nand and if the object was not to cause death, offence under Section 302 read with Section 149 of the Indian Penal Code is not made out. There was no common object of the unlawful assembly in the instant case to commit the murder of Daya Nand and if the object was not to cause death, offence under Section 302 read with Section 149 of the Indian Penal Code is not made out. In the instant case, Vinod Kumar suddenly gave a fatal blow on the head of the deceased and this blow does not appear to have been in furtherance of the common object, therefore, the other members of the unlawful assembly cannot be made liable for the offence committed by Vinod Kumar since he suddenly gave a blow on the head of the deceased, which proved fatal resulting in the death of Daya Nand deceased and therefore, the other accused persons are not liable for the act committed by Vinod Kumar. 15. Accordingly, Criminal Appeal No.104-DB of 2005 qua appellant Vinod Kumar stands dismissed. Conviction and sentence recorded under Section 302 of the Indian Penal Code, whereby life imprisonment was awarded to him by the trial Court, is maintained. In order to prove all the essential ingredients contained in Section 149 of the Indian Penal Code, the prosecution, in the instant case, has failed to prove the same as discussed above. In view of this, all the accused, including Vinod Kumar are acquitted of the charges punishable under Sections 148 and 149 of the Indian Penal Code. Ocular version have been provided by Smt. Santosh (PW-10) and Yudhbir Singh (PW-11) that all the accused except Vinod Kumar, who gave a fatal blow, caused injury on the head of the deceased, resulting in his death, which fact is proved from the medical evidence available on the record. Therefore, conviction and sentence recorded under Sections 323 and 325 of the Indian Penal Code against the accused, namely, Mahabir, Randhir, Ram Kumar, Omli, Yasoda, Sajna, Bijender and Sandeep by the learned trial Court is upheld. However, keeping in view this fact that they have been facing mental agony on account of the protracted trial and pendency of the appeal for the last more than seven years, we are inclined to take a lenient view against the aforementioned accused persons on the point of quantum of sentence directing that the period of sentence already awarded by the trial Court shall be reduced to the one, which they have already undergone while remaining in custody. Criminal Appeal No. 104-DB of 2005 is partly allowed in the manner indicated above. So far as the other appeal, being Criminal Appeal No. 33-SB of 2005 filed by appellants is concerned, learned counsel appearing for them, at the very outset, contends that he does not challenge the conviction of the appellants on merits and confines his arguments only on the quantum of sentence. Learned counsel further prays for taking a lenient view against the appellants since they have already suffered mental agony of the protracted trial for the last more than seven years. Learned counsel has further submitted that they have already undergone a considerable period of sentence while in custody. We have considered the submissions raised by the learned defence counsel and finding force in the contention of the learned counsel and also taking into consideration the mitigating circumstances of the appellants, we maintain the conviction against the appellants recorded by the trial Court under Sections 148/323/324/325 read with section 149 of the Indian Penal Code. Taking a lenient view on the point of quantum of sentence, we direct that the period of sentence already awarded by the trial Court shall be reduced to the one, which they have already undergone while remaining in custody. Criminal Appeal No. 33-SB of 2205 stands disposed of in the manner indicated above. ———————————————-