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2009 DIGILAW 195 (GUJ)

Prabhatsinh Agarsinh Jadeja v. State of Gujarat

2009-03-23

JAYANT PATEL, RAJESH H.SHUKLA

body2009
JUDGMENT : Jayant Patel, J. The present appeal is directed against the judgment and order passed by the learned Sessions Judge in Sessions Case No.59 of 1998, whereby the appellant-accused have been convicted for the offence under Section 302 of IPC read with Sections 147, 148 and 149 of IPC and the sentence has been imposed for life-imprisonment with the fine of Rs. 1,000/- for the offence under Section 302 read with Section 149 of IPC, the imprisonment for one year with fine of Rs. 500/- for the offence under Section 147 of IPC and imprisonment of two years with fine of Rs. 500/- for the offence under Section 148 of IPC. 2. As per the prosecution case, on 4.4.1998 there was some dispute for taking sand from the river between the deceased Mahipatsinh Navalsinh Jadeja and Dilipsinh Prabhatsinh Jadeja - accused No.3 and Surendrasinh alias Shailesh alias Devendrasinh Prabhatsinh Jadeja - accused No.4 (hereinafter referred to as "A-3 and A-4" respectively) and the deceased was threatened by the accused not to take sand from the river. On 5.4.1998 at about 9 O'clock when the complainant and Pravinbhai Navalsinh reached at the place, where the construction of cause-way bridge was going on he found that his brother Mahipatsinh Navalsinh Jadeja - the deceased was being attacked by Prabhatsinh Agarsinh Jadeja - accused No.1 with iron pipe, Dilipsinh Prabhatsinh Jadeja - accused No.3 with the knife, Surendrasinh Prabhatsinh Jadeja - accused No.4 with Dharia and Kanasinh Prabhatsinh (juvenile) with the sword and he found that accused No.3 was giving blows with the knife to the deceased and the other accused were also giving blows with the weapons, which were possessed by them and the deceased had fallen down on account of the same and that the accused thereafter had run away. The complainant also found that there were various injuries upon the body of the deceased and his intestine had also come out and the blood was flowing from such injuries. He, therefore, with the help of Ajaysinh Bachibha took the deceased in his maruti car and took to the hospital, where the doctor reported Mahipatsinh Navalsinh Jadeja had died. Therefore, the complaint was filed by him at Jamnagar 'D' Division Police Station vide C.R. No.51/98. He, therefore, with the help of Ajaysinh Bachibha took the deceased in his maruti car and took to the hospital, where the doctor reported Mahipatsinh Navalsinh Jadeja had died. Therefore, the complaint was filed by him at Jamnagar 'D' Division Police Station vide C.R. No.51/98. Police investigated into the complaint and it was found that one Dilipsinh Narubha Jadeja - accused No.2 was also involved in commission of offence and was present at the time of the incident. The police thereafter filed the charge-sheet against all the accused but since Kanasinh Prabhatsinh, who was juvenile, the charge-sheet was not filed against him as he was to be separately tried before appropriate Court. 3. The prosecution in support of its case, examined following witnesses:- 1. Pravinsinh Navalsinh Jadeja complainant Ex.26 2. Dr. Chetan Bhiharilal Jani Ex. 36 3. 3Dr. Harshben Chaturbhujbhai Ramdevputra Ex. 40 4. Bharat Mansukhlal (Panch) Ex. 49 5. Harishchandra Akubha Jadeja (Panch) Ex. 51 6. Rajendrasinh Jorubha Jadeja (Panch) Ex. 53 7. Ramesh Nanjibhai (Panch) Ex.55 8. Karubhai Nagdanbhai Makwana (Panch) Ex. 57 9. Jitendra Keshavlal (Panch) Ex. 58 10. Durgeshsinh Mangalsinh Jadeja (Panch) Ex. 60 11. Rakesh Mansukhlal (Panch) Ex. 62 12. Jayprakash Hematlal (Panch) Ex. 63 13. Shailesh Natwarlal (Panch) Ex. 65 14. Amrutlal Sadabhai Shrimali, Circle Inspector Ex. 66 15. Satar Momad Shaikh (Panch) Ex.69 16. Anirudhsinh Rupsinh Jadeja Ex.70 17. Miniben Najabhai Malabhai Ex. 73 18. Maldebhai Meraman Karangiya (Panch) Ex.76 19. Ganshyamsinh Bhavubha Jhala (Panch) Ex.77 20. Bhavubha Gagubha Jhala, Police Constable Ex.78 21. Somabhai Mohanlal Patel, P.S.I. Ex. 79 22. Rohitpuri Maganpuri Gosai, Police Constable Ex.80 23. Rameshchandra Bhikamdas Nimavat (I.O.) Ex.81 4. The prosecution in support of its case also produced documentary evidence:- 1. Note for handing over dead body Ex.27 2. Police Yadi for performing postmortem on the dead body Ex.37 3. Postmortem report of the deceased Ex.38 4. Copy of the certificate of blood sample of accused Dilipsinh Narubha Ex.41 5. Copy of the certificate of blood sample of accused Prabhatsinh Agarsinh Ex.42 6. Injury Certificate of accused Dilipsinh Narubha Ex.43 7. Injury Certificate of accused Prabhatsinh Agarsinh Ex.44 8. Yadi for taking blood samples of accused Ex.45 9. Certificate of blood samples of accused Surendrasinh Ex.46 10. Certificate of blood samples of accused Dilipsinh Prabhatsinh Ex.47 11. Original Yadi of blood samples and treatment certificate of accused Prabhatsinh and Dilipsinh Narubha Ex.48 12. Injury Certificate of accused Dilipsinh Narubha Ex.43 7. Injury Certificate of accused Prabhatsinh Agarsinh Ex.44 8. Yadi for taking blood samples of accused Ex.45 9. Certificate of blood samples of accused Surendrasinh Ex.46 10. Certificate of blood samples of accused Dilipsinh Prabhatsinh Ex.47 11. Original Yadi of blood samples and treatment certificate of accused Prabhatsinh and Dilipsinh Narubha Ex.48 12. Recovery Panchnama of clothes of the deceased produced before PSO Ex.50 13. Inquest Panchnama of the deceased Ex.52 14. Panchnama of the site Ex.54 15. Recovery Panchnama of blood stained clothes of Accused Prabhatsinh and Dilipsinh Narubha Ex. 56. 16. Examination of accused Surendrasinh and Dilipsinh Prabhatsinh after arrest Ex.59 17. Discovery Panchnama of knife from accused Dilipsinh Prabhatsinh Ex.61 18. Discovery Panchnama of weapon from accused Surendrasinh Prabhatsinh Ex. 64 19. Map of the site Ex. 67 20. Police Yadi for preparing map Ex. 68 21. Last Report of FIR No.52/1998 under Section 173 of Cr. P.C. Ex. 82 22. Forwarding letter as well as letter for sending muddamal to FSL Examination Ex.83 23. Certificate of authority Ex.84 24. Receipt of having received muddamal Ex.85 25. Forwarding letter for muddamal examination Ex.86 26. First Report of original muddamal Ex. 87 27. First Report of Serology Division Ex.88 28. First Report of Physical Examination Ex.89 29. Original Complaint Ex.90 30. Original copy of the entry in Station Diary Ex.91 31. Yadi for doing Inquest Panchnama of the dead body Ex. 92 32. Photographs of scene of incident Ex. 93 to 105." 5. After the evidence was over, the learned Sessions Judge has recorded the statements of the accused under Section 313 of Cr.P.C., wherein the accused have denied the evidence against them, but in the further statements, the accused Nos.1 and 2 stated that the deceased had caused injuries to them with knife and they have been wrongly involved and PSI Mr. R.B. Nimavat has made one-sided inquiry and has concocted evidence and they are innocent and in spite of the same, false case was filed against them. 6. The learned Sessions Judge thereafter heard the matter and found that the prosecution has been able to prove the case against all the accused and, therefore, convicted all the accused for the offence under Section 302 read with Section 149 of IPC as well as for the offence under Section 147 and Section 148 of IPC. 6. The learned Sessions Judge thereafter heard the matter and found that the prosecution has been able to prove the case against all the accused and, therefore, convicted all the accused for the offence under Section 302 read with Section 149 of IPC as well as for the offence under Section 147 and Section 148 of IPC. The learned Sessions Judge also heard the matter on the aspect of imposition of punishment and thereafter has imposed the punishment upon the accused as referred to herein-above. It is under these circumstances, the present appeal before this Court. 7. We have heard Mr. Jayaprakash Umote, learned Counsel for the appellants - accused and Mr. Raval, learned APP for the State. 8. There are three eye-witnesses to the incident; one is the complainant himself, Pravinsinh N. Jadeja - PW-1, who has fully supported the case as stated in the complaint, the another is Anirudhsinh R. Jadeja - PW-16 and the third is Miniben Najubhai Malabhai - PW - 17. The prime witness for the incident is Miniben N. Malabhai - PW-17, who was present at the time when the incident had happened. We have gone through the deposition of the said eye-witnesses and the statements made by the said witnesses as eyewitnesses to the incident appear to be natural and in the cross-examination it has further come out that she has seen the incident at the very close distance, where there was tractor and the accused came to the deceased. In cross-examination of the said witnesses, the defence has not been able to bring about any material to the contrary for doubting her testimony as eyewitness to the incident. She has fully supported the case of the prosecution. The third eye-witness to the incident is the complainant himself, the brother of the deceased. Even if the contention of the learned Counsel for the appellants - accused is considered that he is the chance witness, then also his testimony is not creating any doubt for the incident narrated by him and, in any case, if his deposition is considered in light of the another two eye-witnesses to the incident namely; Miniben - PW-17 and Anirudhbhai - PW-16, the same is not unbelievable. If the depositions of all the three eye-witnesses are considered, the prosecution has been able to prove that all the accused, including the juvenile with the lethal weapons had surrounded the deceased and had started giving blows and various injuries were inflicted upon the deceased and as a result thereof, the deceased had fallen down and after the deceased had fallen down, the injuries were also inflicted upon the deceased. The number of persons unlawfully assembled is five, including the juvenile. 9. The injuries were supported by the medical evidence of the Dr. Chetan Bhiharilal Jani - PW- 2. As per the statement of the said doctor, there were 10 injuries on the body of the deceased as stated in the postmortem report, which has also been stated in his deposition by the said doctor. The doctor has stated the cause of the death is due to injuries received by the deceased and he had also stated that the internal as well as external injuries, which were of the stab wounds were sufficient to cause death of a human being in natural course. He has also stated in the deposition that the injuries No.1 and 2 could be caused with the sharp-cutting weapon like dharia and sword and he has also stated that the injuries Nos.6,7,8, 9, and 10 could be caused with the sharp-cutting weapons like knife. He has also stated that injuries Nos.3,4, and 5 could be caused with the blend substance/weapon like iron pipe. In the cross-examination of the said doctor, the defence has not been able to bring about any material to the contrary. The arrest panchnama of the accused, the recovery of the clothes of the accused, the discovery of the weapons by discovery panchnama has come on record and they fully supported the case of the prosecution. It has come on record that the clothes of A-1 and A-2 were with blood stains and the discovery of the weapons discovered at their instance were also with blood stains. It has also come on record that A-3 and A-4 were possessing the weapons at the time of the incident and the same are discovered at their instances by the prosecution. 10. It has also come on record that A-3 and A-4 were possessing the weapons at the time of the incident and the same are discovered at their instances by the prosecution. 10. The FSL report fully supports the case of the prosecution inasmuch as the blood stains of the blood group of the deceased are found from the clothes of the accused No.1 as well as accused No.2 and also from the weapons discovered at the instance of A-1 and A-2, used for commission of the offence. 11. The deposition of I.O., supports the case of the prosecution, except the contention of the defence of no proper investigation was made in connection with the injury found on the body of the accused Nos.1 and 2, which shall be dealt with at the later stage. The panchnama for the seen of offence is also supporting the case of the prosecution. 12. We have gone through the evidence of all the witnesses as well as the documentary evidence produce by the prosecution and it shows that all the accused and the juvenile by forming unlawful assembly have attacked the deceased and ultimately has resulted into the death of the deceased. 13. The learned Counsel for the appellants - accused first contended that PW-1 - complainant Prabhatsinh, who is the brother of the deceased is not the eye-witness to the incident, but is a chance witness. He submitted that if the deposition of PW-1, Prabhatsinh is considered in light of the deposition of other two eyewitnesses to the incident namely; Miniben - PW -17 and Anirudhsinh - PW-16, there is contradiction to the timing of the incident and, therefore, it was submitted that such witnesses are unbelievable and would create a serious doubt about the case of the prosecution and the benefit should be made available to the accused - appellants. 14. Whereas, on behalf of the State, learned APP contended that even if the complainant - PW-1 is treated as chance witness, then also his deposition is not unbelievable and is rather corroborated by the evidence of other eyewitnesses. He submitted that minor difference in timing, even if considered, would not result into discarding the deposition of PW-1 - complainant, so far as the occurrence of the incident is concerned. 15. He submitted that minor difference in timing, even if considered, would not result into discarding the deposition of PW-1 - complainant, so far as the occurrence of the incident is concerned. 15. If the deposition of PW-1 - Complainant - Pravinsinh is considered, the same is not unbelievable and the reason being that as the construction of causeway work was going on, he had the reason to visit the place at which the deceased was looking after the said work. The statement made by the said eye-witness about all the accused and the juvenile with lethal weapons giving blows to the deceased is fully supported by the deposition of Miniben - PW-17 as well as Anirudhsinh - PW-16. Therefore, so far as the factum of all the accused with the lethal weapons, giving blows to the deceased, by forming unlawful assembly at the seen of the offence has not remained un-contradicted, but has rather remained in corroboration to each other. The minor difference in timing would not result into discarding the deposition as the eye-witnesses to the incident for commission of offence. The timing, as rightly observed by the learned Sessions Judge could be approximate and minor difference of one hour or half-an-hour would not result into damaging the case of the prosecution, nor could be a valid basis for discarding the evidence of the witness, who has seen the incident in commission of offence. Under these circumstances, we cannot accept the contention of the learned Counsel for the appellants - accused that the deposition of Pravinsinh - PW-1, even if considered as chance witness, is unbelievable or non-trustworthy. At this stage, we may refer to the decision of the Apex Court in case of "Sarvesh Narain Shukla v. Daroga Singh and Ors.", reported in AIR (2008) SC 320 and more particularly the observations made by the Apex Court at paragraph 11 taking the view that merely because a witness is a chance witness, his deposition cannot be thrown away, but if the evidence found by the Court is reliable, the same can be considered for considering the case of the prosecution in proving the guilt of the accused. 16. It was next contended by the learned Counsel for the appellants - accused that there are serious infirmities in the case of the prosecution, which has not been properly investigated by the police. 16. It was next contended by the learned Counsel for the appellants - accused that there are serious infirmities in the case of the prosecution, which has not been properly investigated by the police. It was submitted that the maruti car in which the deceased was carried to the hospital is not seized by the police. It was also submitted that Ajitsinh, who is said to have helped the complainant - PW-1 in shifting the deceased to the car and taking to the hospital is not examined as the witness. It was also submitted that the labourers, who had lifted the body of the deceased were also not examined, nor have they been examined for further supporting the case of the prosecution as witness to the incident. It was also submitted that the prosecution has failed to produce the daily register for showing the presence of eye-witness - Miniben or Anirudhsinh, the another eyewitness - PW-17 and PW-16 respectively. It was submitted that the date of the incident was 'Ramanavami' and, therefore, could be a holiday and in spite of the same the presence of the labourers are shown, which as per the defence is a concoction by the prosecution. It was submitted that under these circumstances, the prosecution has failed to properly investigate the matter and failed to bring on record the relevant evidence and, therefore, such would be fatal and the benefit should be made available to the appellants - accused. 17. Whereas, on behalf of the State, the learned APP contended that it is not obligatory on the part of the prosecution to examine each and every witness, nor is it obligatory for the prosecution to bring on record the investigation as per the desire of the accused. He submitted that even if the statement of any of the witness is recorded, the discretion lies with the prosecution to place the relevant evidence to prove the guilt of the accused and if such material is sufficient, the case of the prosecution would not be fatal, nor there will be any question of drawing any adverse inferences. 18. At this stage, we may refer to the case law on the said aspects. 18. At this stage, we may refer to the case law on the said aspects. In the case of "State of U.P. v. Anil Singh", reported 1988 (Suppl.) SCC 686, the Apex Court has observed that if the prosecution case is otherwise truthful and acceptable, it cannot be rejected merely because all the witnesses had not been examined or that the independent witnesses are not produced to corroborate the case of other witnesses. It was also observed by the Apex Court that while appreciating the evidence of witnesses, minor inconsistency in it or certain emplacement in variation of the witnesses would not result into shifting the Court or shifting falsehood and if the Court finds that the evidence is believable, the same can be considered while considering the case of the prosecution. The reference may also be made to the decision of the Apex Court in case of Pohlu v. State of Haryana, reported in (2005) 10 SCC 196 wherein the view taken by the Apex Court, inter alia, at para 10 is that it is not necessary for the prosecution to multiply witnesses, if it prefers to rely upon the evidence of the witnesses examined by it, which it considers sufficient to prove the case of the prosecution. The requirement would be to assess the intrinsic worth of the testimony of the witnesses examined by the prosecution. If their evidence appears to be truthful, reliable, and acceptable, the mere fact that some other witnesses have not been examined, would not adversely affect the case of the prosecution. 19. If the facts of the present case are examined, it does appear that maruti car is not a vehicle, which is used for the commission of offence. The use of the said car is after commission of the offence for taking the deceased to the hospital. Therefore, there is no direct relevancy for proving the guilt of the accused, so far as the use of the maruti car is concerned. Same is the situation for Ajitsinh, who has helped the complainant in shifting the deceased to the car and carrying to the hospital. Therefore, merely because the prosecution has not seized the maruti car or has not examined Ajitsinh and the examination of other labourers, it cannot be said that such is a serious infirmity in the case of the prosecution for proving the guilt of the accused. Therefore, merely because the prosecution has not seized the maruti car or has not examined Ajitsinh and the examination of other labourers, it cannot be said that such is a serious infirmity in the case of the prosecution for proving the guilt of the accused. Whether the register was regularly being maintained or not has also not come on record. Further, when the incident is proved and the presence of the eye-witnesses is also proved and the deposition of such eye-witness is accepted as believable by the Court with the worth credence, merely because a corroboration by way of daily presence register not produced or not sized by the police, would not result into an infirmity in the case of the prosecution, nor could be said as fatal to the case of the prosecution. Further, as observed earlier, if the prosecution has found it proper to examine only certain witnesses, which it may find it sufficient to prove the guilt of the accused before the Court, there is no obligation to examine all the witnesses, unless the statements of the other witnesses are contrary to the evidence as has come on record. There is not even a suggestion by the defence in this regard that any of the witnesses not examined by the prosecution had stated different than evidence led before the Court. Therefore, we are unable to accept the contention that there is an infirmity in the investigation or production of the material by the prosecution resulting as fatal to endure the benefit to the accused and, therefore, the said contention fails. 20. It was next contended by the learned Counsel for the appellants-accused that there is no fair investigation by the prosecution and the investigation is only a one-sided investigation. In furtherance to the said submission, the learned Counsel contended that it has come on record that accused Nos.1 and 2 had sustained injuries and the complaint was also filed vide C.R. No.52/98 with the police for the offence under Section 324, 323 and 504 of IPC against deceased Mahipatsinh Jadeja. It was submitted that when it was a case of cross-complaint, it was required for the I.O., to record the statement of a witness and the I.O., ought to have submitted summary report. The learned Counsel further submitted that had the proper investigation made by the I.O., it would have revealed the truth for the incident. It was submitted that when it was a case of cross-complaint, it was required for the I.O., to record the statement of a witness and the I.O., ought to have submitted summary report. The learned Counsel further submitted that had the proper investigation made by the I.O., it would have revealed the truth for the incident. The prosecution for the reason best known to it has suppresses the same in a one-sided manner and the same being unfair, the case could be said to be not proved beyond the reasonable doubt and the benefit should be made available to the accused. 21. Whereas, on behalf of the State, the learned APP submitted that it is not necessary that in every case, the injury upon the body of the accused must be investigated and explained by the prosecution and he submitted that even in absence of non-explanation for the injury to the accused by the prosecution, it cannot be said that an unfair or concocted material is produced before the Court for proving the guilt of the accused. Therefore, he submitted that the contention may not be accepted. 22. At this stage, we may refer to the decision of the Apex Court in the case of "Shajahan and Ors. v. State of Kerala and Anr.", reported in (2007) 12 SCC 96 , wherein the Apex Court after taking into consideration its earlier decision has reiterated the legal position that non-explanation of the injuries by the prosecution will not affect the prosecution case, where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterred, so probable, consistent and creditworthy that it out-weights the effect of the omission on the part of prosecution to explain the injuries. 23. As observed earlier, there are three eyewitnesses to the incident and it is rightly found by the learned Sessions Court and it appears to us that the evidence of such eyewitnesses is cogent and credit-worthy to prove the guilt of the accused, more particularly when they are fully supported and corroborated by the medical evidence, FSL report, the discovery of the weapons at the instance of the accused. Therefore, in the facts of the present case it cannot be said that non-explanation of the injuries would be fatal to the case of the prosecution. 24. Therefore, in the facts of the present case it cannot be said that non-explanation of the injuries would be fatal to the case of the prosecution. 24. The learned Counsel for the appellants-accused next contended that the name of the accused No.2 was not included in the FIR at the first instance, nor is there any reference in the FIR for accused No.2. It is only after the registration of the FIR, on further statement, as per the deposition of I.O., was recorded and accused No.2 is involved in the alleged offence, It was, therefore, submitted that the inclusion of the name of the accused No.2 at the time of incident for commission of offence is a concoction made by the prosecution and if the presence of accused No.2 is excluded while considering the case of the prosecution, the number of persons forming alleged unlawful assembly would be reduced to four and would come out from the clutches of Section 149 of IPC. It was, therefore, submitted that the benefits should be made available to the accused on the said aspect. 25. The examination of the said contention shows that it is not a sine qua non that the name of all the accused must be reflected in the FIR and if not reflected, it would be fatal to the case of the prosecution. It is possible that at the time when the evidence is registered, all evidences may not be available, but if during the course of investigation it is found that the other persons have also played role for commission of offence, their names can be included as the accused and they can also be tried. The reference may be made to the decision of Apex Court in the case of "Goura Venkata Reddy v. State of A.P., reported in (2003) 12 SCC 469, wherein the view taken is that omission in the FIR for the name of the accused would not in every case be fatal to the case of the prosecution. 26. If the facts of the present case are examined, it appears that the presence of the accused No.2 is proved by deposition of three eye-witnesses namely; PW-1 - complainant, PW-16 - Anirudhsinh and PW-16 - Miniben. 26. If the facts of the present case are examined, it appears that the presence of the accused No.2 is proved by deposition of three eye-witnesses namely; PW-1 - complainant, PW-16 - Anirudhsinh and PW-16 - Miniben. The accused No.2 is also identified by all the three witnesses and as per the said witnesses, he was present with the lethal weapons for giving blows and had given blows to the deceased. The deposition of the said eye-witnesses have been corroborated by the arrest panchnama and the recovery of the clothes of accused No.2 found containing blood of the group of the deceased. The FSL report confirms the said decision. The discovery of the weapons at the instance of the accused No.2 found by the prosecution not only corroborates the deposition of the eye-witness, who also supports the case of the prosecution for use of the weapons inasmuch as the blood stains are found of the deceased on the weapons discovered at the instance of the accused No.2. Under these circumstances, when the prosecution has been able to prove beyond reasonable doubt the presence of accused No.2 at the time of incident and the involvement of accused No.2 in commission of offence with lethal weapons, we cannot accept the contention of the learned Counsel for the accused-appellants that since his name was not mentioned in the FIR registered at the first instances, subsequent evidence should be treated as a concocted evidence or a concocted story by the prosecution, nor can we accept the submission of the learned Counsel for the appellants - accused that his presence should be omitted while considering the case of the prosecution under Section 149 for unlawful assembly for counting the number of persons in the unlawful assembly. Hence, the said contention fails. 27. It was next contended by the learned Counsel for the appellants - accused that even if the depositions of all eye-witnesses are considered namely; PW-1, PW-16 and PW-17, there is no uniformity in the statements of all the witnesses for giving a particular blow with a particular weapon by a particular accused. Therefore, it was submitted that when overt act is not by all the accused, the punishment would be different in respect of each accused, taking into consideration the role played by each accused in commission of offence. Therefore, it was submitted that when overt act is not by all the accused, the punishment would be different in respect of each accused, taking into consideration the role played by each accused in commission of offence. It was submitted that, therefore, the conviction as held by the learned Sessions Judge deserves to be altered by extending the benefits to the concerned accused, who did not actively participated in giving blows to the deceased. 28. Whereas, on behalf of the State, the learned APP contended that once the unlawful assembly is proved, the provisions of Section 149 of IPC would be attracted and irrespective of the role played by each accused, the liability would be the same and such will be the consequence upon the conviction and also the punishment. He, therefore, submitted that once the presence of all the accused is proved with the lethal weapons by forming unlawful assembly, the role played by each accused separately may not be considered by this Court. 29. The Apex Court in the case of "Sunil Kumar and Anr. v. State of Rajasthan", reported in (2005) 9 SCC 283 had an occasion to elaborately consider the scope and ambit of application of Section 149 of IPC by the number of unlawful assembly for commission of offence. It would be worthwhile to extract the observations of the Apex Court at this stage made at paragraphs 7, 8, 9, and 10 as under:- "7. The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of such an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. 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. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. It must be immediately connected with the common object by virtue of the nature of the object. 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 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, IPC may be different on different members of the same assembly. 8. 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti. 9. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti. 9. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behaviour at the time of or before or after the occurrence. The word 'knew' used in the second limb of the section implies something more than a possibility and it cannot be made to bear the sense of 'might have been known'. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first part but offences committed in prosecution of the common object would also be generally, if not always, be within the second part, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object. (See Chikkarange Gowda and others v. State of Mysore, AIR 1956 SC 731 ). 10. These aspects were recently highlighted in Chandra & Ors. v. State of U.P. and Anr., 2004 (5) SCC 141 ." 30. Therefore, the settled legal position is that once unlawful assembly is proved in causing death of the deceased in prosecution of common object overt act done by each accused would be irrelevant and the principles of constructive liability to the members of the unlawful assembly would be applicable. 31. The examination of the facts of the present case shows that the prosecution has been able to prove that all the accused with the juvenile (total five members) with lethal weapons have gone to the place at which the deceased was to be occupied in construction work of causeway pool and they have by surrounding the deceased have assaulted the deceased by inflicting various indiscriminate blows upon the deceased. Therefore, the common object and the intention appears to be to do away with the deceased by causing death. The presence of all the members of the unlawful assembly is proved. The same has remained un-contradicted. The possession of the lethal weapons by each member of the unlawful assembly has also remained un-contradicted. Therefore, the common object and the intention appears to be to do away with the deceased by causing death. The presence of all the members of the unlawful assembly is proved. The same has remained un-contradicted. The possession of the lethal weapons by each member of the unlawful assembly has also remained un-contradicted. The assault and the gravity of the assault and the injuries sustained by the deceased has also remained un-contradicted, resulting into the death of the deceased. Under these circumstances, once the presence is proved of the common object of the commission of offence is apparent on the part of all the members of the unlawful assembly, it would not be a relevant circumstance for segregating the case of each accused and to consider the conviction and to impose punishment separately on the basis of the role played by each accused. If such a contention is considered in the facts of the present case, it may result into nullifying the effect of Section 149 of IPC of attracting constructive liability of all the members of unlawful assembly, more particularly when the offence under Section 302 is considered and proved by the same unlawful assembly. Therefore, the said contention of the learned Counsel for the appellants cannot be accepted. 32. It was lastly contended by the learned Counsel for the appellants - accused that the conviction may be altered as that of under Section 304 Part II by imposition of maximum sentence of ten years, since in the contention of the learned Counsel for the appellants - accused, it has come on record that accused Nos.1 and 2 have received injuries, which remained unexplained by the prosecution. He submitted that it could be case of sudden provocation and premeditation would be missing for maintaining the conviction under Section 302 of IPC. It was, therefore, submitted that accused have remained in jail for about 11 years and, therefore, the imprisonment already undergone to be treated as sufficient, keeping in view the punishment under Section 302 Pat I or Part II of IPC. 33. It was, therefore, submitted that accused have remained in jail for about 11 years and, therefore, the imprisonment already undergone to be treated as sufficient, keeping in view the punishment under Section 302 Pat I or Part II of IPC. 33. If the evidence on record is examined to consider the contention raised by the learned Counsel for the appellants - accused, it appears that nowhere it has come on record even by a remote suggestion to or by any of the witnesses or by the defence that there was any provocation or altercation of hot-words between the deceased and the accused. Further, the factum of formation of unlawful assembly and the factum of all accused and the juvenile coming with lethal weapons to the place at which the deceased was supposed to look after the construction work of causeway and the factum of giving indiscriminate blows to the accused rules out any possibility of absence of premeditation or any provocation by the deceased. Even if it is considered that the deceased made any resistance to the blows inflicted upon him, such right of private defence could be made available to the deceased, who was being surrounded by five members of unlawful assembly with lethal weapons and such, in any case, would not be available to any member of unlawful assembly. Such resistance, in any case, may be by way of self-defence by the deceased could not be termed as a provocation, which may attract the provisions of the offence under Section 304 Part II of IPC. 34. In case of "Babu Ram & Ors. v. State of Punjab", reported in Judgment Today, 2008 (2) SC 384, which has been relied upon by the learned Counsel appearing for the appellants, it was not a case of unlawful assembly for commission of offence under Section 302 of IPC. Further, the defence was of self-defence and any furtherance thereof, the injuries were sustained by the accused. Such is not the fact situation in the present case. Hence, such decision is of no help to the present appellants - accused. 35. Further, the defence was of self-defence and any furtherance thereof, the injuries were sustained by the accused. Such is not the fact situation in the present case. Hence, such decision is of no help to the present appellants - accused. 35. In case of "Rakesh v. State of M.P.", reported in Judgment Today, 2008 (2) SC 395, upon which the reliance is placed by the learned Counsel for the appellants, it was a case of sudden fight falling in Exception IV of Section 300 of IPC and there was no charge for formation of unlawful assembly under Section 149 of IPC. Therefore, the said decision is of no help to the learned Counsel for the accused. 36. In the case of "Mohd. Shakeel v. State of A.P.", reported in ( 2007 3 SCC 119 , upon which the reliance has been placed by the learned Counsel for the appellants - accused, it was a case of inflicting one injury on the deceased, resulting into the death and, therefore, in that case, the Apex Court confirmed the conviction under Section 304 Part II. Such is not the fact situation in the present case. In the present case, there are multiple injuries inflicted upon the deceased by the members of the unlawful assembly. Therefore, the said decision is of no help to the learned Counsel for the accused - appellants. 37. In case of "Ramkishan S/o Madhav Shelke v. State of Maharashtra", reported in (2007) 3 SCC 89 , upon which the reliance has been placed by the learned Counsel for the appellants - accused, there was no charge of unlawful assembly under Section 149 of IPC and the it did come on record for the provocation. In the present case, there is no evidence at all for provocation and the evidence is for formation of unlawful assembly on the common object of causing death of the deceased. Therefore, the said decision is of no help to the appellants - accused. 38. In view of the aforesaid observations and discussions, we find that the appeal is meritless and, therefore, deserves to be dismissed. Hence, dismissed and the judgment and order of the learned Sessions Judge is confirmed. Appeal dismissed.