Virendra Vikram Singh, J. Half a dozen appellants, namely, Udai Bhan ( A-1), Ram Nain ( A-2), Chandra Bhan ( A-3), Shree @ Shri Ram ( A-4), Surendra ( A-5) and Killu ( A-6) are aggrieved by the order of their conviction and sentence dated 28th July, 1982, recorded by Sessions Judge, Basti in S.T. No. 62 of 1981, State v. Udai Bhan and others, relating to police station Dudhara, District Basti. Learned trial Judge, after marshaling of facts and circumstances, and the evidences tendered during the Sessions Trial, vetting and critically appreciating them, concluded that two of the appellants Surendra ( A-5) and Killu ( A-6) were guilty under Sections 147, 302/149, I.P.C. and rest of the appellants Udai Bhan ( A-1), Ram Nain ( A-2), Chandra Bhan ( A-3) and Shree @ Sri Ram ( A-4) were guilty under Sections 148 and 302/149, I.P.C. and therefore, convicted all them for those respective offences. Under Section 147 , I.P.C., ( A-5) and ( A-6) were sentenced to two years R.I., under Section 148 , I.P.C. rest of the appellants ( A-1), ( A-2), ( A-3), ( A-4), were sentenced to three years R.I. Co-jointly all the appellants were sentenced to imprisonment for life under Section 302 /149. I.P.C. All the sentences of all the appellants was directed to run concurrently. It is this judgment and order, which is now under challenge before us in the instant appeal. 2. Pending consideration and final outcome of this appeal, three of the appellants Udai Bhan ( A-1), Shree @ Shri Ram ( A-4) and Killu ( A-6) expired and, therefore, our predecessor Bench, abated their appeals on 31.8.2007. This has left us to consider the appeal of residue of surviving appellants, Ram Nain ( A-2), Chandra Bhan ( A-3) and Surendra ( A-5). 3. According to prosecution case, informant and his son deceased Subhan Allah @ Subhan were residents of village Banjaria, under police circle Bakhira, whereas all the appellants were residents of village Parsa Jhakharia under police station Dudhara which was at a. distance of 3-4 furlongs from informant's village. All the accused belonged to Kewat caste. One day prior to the incident in question there was verbal abusive triadic altercation between Subhan and ( A-4) in the grove of Jhakadia Bazar on the purchase of Tody. All the accused belonged to Kewat caste. One day prior to the incident in question there was verbal abusive triadic altercation between Subhan and ( A-4) in the grove of Jhakadia Bazar on the purchase of Tody. It is further alleged that on 3.5.1980 at 10.30 p.m. in Natahwa locality, accused persons armed with ballam, pharsa and lathi caused death of Subhan son of informant Abdul Sattar Khan, P.W. 1, when the deceased, accompanied with his nephew Mohammad Salim, P.W. 2, had gone to enjoy a dance programme, organised at the house of Sumiran Kewat in Tola Natahwa locality. They had started from their village at 9 p.m. and had reached the place of dance programme at 10 p.m., when the arrangement for the programme was still being made. P.W. 2 and deceased, therefore, sat on the north east corner of Shamiana behind other gathered crowd, who had collected there to watch the programme. The incident had occurred prior to the beginning of the programme when all the appellants alongwith one Dilip came to the spot and surrounded the deceased Subhan. ( A-1) and ( A-2) were armed with ballam ( spear), ( A-3) and ( A-4) were armed with spades, and ( A-5) and ( A-6) were armed with lathis. Dead assailant Dilip was also armed with a lathi. At the instigation of Dilip all the appellants had started belaboring the deceased Subhan, who efforted to save his life by rushing beneath a standing Dunlop. ( A-2) and ( A-5) pulled him out by his leg and the accused started beating him with lathis and dandas. Meanwhile ( A-1) gave a fatal spear blow to Subhan, who died instantaneously. This murder was witnessed also by Abdul Wahid, Mohd. Nabi, and Mustafa. Committing murder, accused escaped towards their houses. In the lights emanating from five or six gas lamps kept under the shamiana that the assailants were identified by the witnesses. The underline motive was the above to referred Tody dispute which had occurred on 2.5.1980. 4. F.I.R. Exhibit Ka-1, about the murder was dictated by the informant father Abdul Sattar Khan P.W. 1 to scribe Shakir All and after it was penned down then P.W. 1 measured a distance of six miles to the police station Dudhara, where he lodged his F.I.R. on 4.5.1980 at 2 a.m., after just two and half hours. 4. F.I.R. Exhibit Ka-1, about the murder was dictated by the informant father Abdul Sattar Khan P.W. 1 to scribe Shakir All and after it was penned down then P.W. 1 measured a distance of six miles to the police station Dudhara, where he lodged his F.I.R. on 4.5.1980 at 2 a.m., after just two and half hours. C/M Hart Prakash registered the crime by inking chik F.I.R. Exhibit Ka-4 and relevant G.D. entry, Ext. Ka-5, which both documents have been proved by the first Investigating Officer, Police Station In-charge, S.I. Mahipat Singh, P.W. 6. 5. Commencing investigation Investigating Officer copied chik F.I.R. and G.D. entry and then proceed for the murder spot on cycle alongwith informant and A.S.I. Shiv Narain Pandey. Since night had fallen, therefore, Investigating Officer conducted inquest on the dead body of the deceased next day morning and prepared inquest memo Ext, Ka-6, and other relevant papers Exts. Ka-7 to Ka-10. Body was sealed and dispatched for post-mortem examination through constable Dayaram and village Chaukidar. Spot inspection was conducted and site plan Ext. Ka-11 was sketched. Blood stained and plain earth, material Exhibits 1 and 2, were collected through recovery memo Ext. Ka-12. Blood soaked attire ( gamacha) was also recovered vide recovery memo Ext. Ka-13. Eye-witnesses and witnesses of inquest were interrogated and their 161, Cr. P.C. statements were recorded. Since accused were at large a report under Section 82-83 was forwarded. Thereafter, investigation was taken over by Jagdish Prasad Pathak, S.O. Police Station Dudhara, P.W. 4, from P.W. 6, who recorded accused statements and concluding the investigation charge-sheeted them on 14.6.80 vide Ext. Ka-2. 6. Autopsy on the dead body of the deceased was performed on 5.5.1980 at 3.30 p.m. by Dr. R.C. Verma, Senior Radiologist, P.W. 5 who had prepared autopsy report Ext. Ka-3. According to the doctor, deceased was 25 years of age and quarter to two days had lapsed since his death. His eye were half open, face swollen, mouth half open, tongue protruding out, skin peeled off at places and green dis-coloration was present on the whole of the abdomen, which was distended. Rigor mortis had passed off from upper limbs and was passing off from the lower extremities. Doctor had noted following ante-mortem injuries on the cadaver of the deceased : "( i) Lacerated wound 3 cm. x 0.5 cm. Rigor mortis had passed off from upper limbs and was passing off from the lower extremities. Doctor had noted following ante-mortem injuries on the cadaver of the deceased : "( i) Lacerated wound 3 cm. x 0.5 cm. x bone deep present on the top of middle of scalp 15 cm. for bridge of nose. ( II) Contusion 8x2 cm. on right scapula vertically oblique. ( Hi) Contusion 4x2 cm. on top of Rt. shoulder. ( iv) Contusion 6 x 1.8 cm. on back of left shoulder. ( v) Punctured wound 4 cm. x 2.5 cm. x cavity deep present on Rt. side upper part of back 18 cm. below root of neck and 5 cm. from midline blood mixed fluid covering out of the wound. Margins lacerated. ( vi) Contusion 12 x 2 cm. on lower part of back crossing midline vertically oblique. ( vii) Contusion 16 cm. x 1.8 cm. transversely oblique on both buttocks. ( viii) Contusion 5x2 cm. on back of Rt. leg 4 cm. below knees." 7. In the internal examination, doctor had found walls, ribs and cartilages ecchymosed. Blood in an area of 6 x 4 cm. was present and pleura of right side was ruptured in an area of 2.5 x 1.5 cm. under injury No. 5. Right lung was also punctured 2 x 1.5 cm. into tissue deep under injury No. 5. Eight Oz. of blood was present in the heart chamber and right chest cavity contained one Ibs of blood. Semi digested food was present in the stomach, which contained rice, potato and bread. No abnormality was detected in small and large intestines. In the estimation of the doctor death had occurred due to shock and hemorrhage as a result of ante-mortem injury No. 5. 8. Committal court of learned C.J.M. committed the case to the Session's Court where it was registered as S.T. No. 62 of 1981, State v. Udai Shan and others. 9. In the estimation of the doctor death had occurred due to shock and hemorrhage as a result of ante-mortem injury No. 5. 8. Committal court of learned C.J.M. committed the case to the Session's Court where it was registered as S.T. No. 62 of 1981, State v. Udai Shan and others. 9. Learned Session's Judge/Trial Judge, Basti, on 13.5.1981 charged two accused Surendra and Killu under Sections 147, 302/149, I.P.C. and rest of the accused under Sections 148, 302/149, I.P.C. Charges were read out and explained to the accused in hindi who all, after understanding the same, abjured their respective charges and claimed to be tried and therefore, in an endeavour to establish their guilt and bring home the charges, the prosecution of the accused commenced by observing Sessions Trial procedure. 10. During the trial, prosecution in its effort to succeed and anoint the guilt of the accused tendered evidences of six witnesses out of whom informant Abdul Sattar Khan P.W. 1, Salim P.W. 2, Mohammad Nabi P.W. 3 figured as fact witnesses. Jagdish Prasad Pathak P.W. 4 is the second Investigating Officer, Dr. R. C. Verma P.W. 5 is post-mortem doctor, and S.I. Mahipat Singh, P.W. 6 is the first Investigating Officer. In their statements under Section 313, Cr. P.C. all the accused pleaded a common defence of their false implication. 11. As mentioned above, learned trial Judge believed the prosecution version in its entirety and came to the conclusion that the guilt of the appellants have been proved without any doubt and therefore, convicted and sentenced the appellants as mentioned herein above and consequently this appeal challenging aforesaid conviction and sentence. 12. In the backdrop of the aforesaid evidences, facts and circumstances that we have heard Sri Sudhist, learned amicus curiae for the surviving appellants and Shri Anand Tiwari, learned A.G.A. for the respondent-State. 13. Sri Sudhist, learned amicus curiae in support of the appellant's version raised many contentions, which we find it unnecessary to record because those contentions were so trivial and insignificant that they do not affect the merits of the appeal at all. However, in the last learned amicus curiae urged that, on the proven facts, no unlawful assembly with a common object of committing murder of the deceased came into existence at any point of time and hence conviction of all the appellants for the offence under Section 302 /149, I.P.C. is unsustainable. However, in the last learned amicus curiae urged that, on the proven facts, no unlawful assembly with a common object of committing murder of the deceased came into existence at any point of time and hence conviction of all the appellants for the offence under Section 302 /149, I.P.C. is unsustainable. According to his submissions only one of the appellant Udai Bhan ( since dead) gave a fatal blow to the deceased without any common object of the rest of the assailants. It was an impulsive act at the spur of the moment. Furthermore a single blow without any repetition will not necessarily disclose an offence of murder and from the established facts and circumstances only ( A-1) accused could have been convicted under Section 304, Part I and rest of the appellants could have been convicted only under Section 323/324, I.P.C. as the case may be, as they never shared the same object as that of ( A-1). They had not caused any fatal injury to the deceased nor there was commonality of object as deposed by the two fact witnesses P.W. 2 and P.W. 3. If all the assailants shared the same object deceased would have sustained much more grievous and serious injuries than received by him. Even knowledge to commit murder or cause fatal Injury to the deceased could not be attributed to all the accused except Udai Bhan accused. In support of the said contentions, learned amicus curiae relied upon the testimonies of the two fact witnesses P.W. 2 and P.W. 3. 14. Before proceeding further, we refer one more contention, which was urged before us, and that is that the informant P.W. 1 was not eye-witness of the incident and therefore, on the factum of actual happening incident, his evidence does not farther the case of the prosecution. His evidence is hearsay as he was informed about the incident by P.W. 2, who was a young boy aged 12 years. When evidence of P.W. 2 is scanned by us, regarding the actual incident, he had narrated the same in Paragraphs 3 to 6 of his examination-in-chief, which is as follows : "3. Two years prior from today I alongwith my uncle Subhan had gone to Natahwa locality to witness a dance. When evidence of P.W. 2 is scanned by us, regarding the actual incident, he had narrated the same in Paragraphs 3 to 6 of his examination-in-chief, which is as follows : "3. Two years prior from today I alongwith my uncle Subhan had gone to Natahwa locality to witness a dance. We both had started from village at 9 p.m. and had reached Natahwa locality at about 10 p.m. When we arrived there then the preparation for starting of dance festival was going on. The dance festival was organised at the house of Sumiran Kewat. Because the preparation for starting of the dance festival was going on, therefore, I and Subhan sat on the north-east corner of the tent ( shamiyana) where many other peoples were sitting to witness the dance in front of us. 4. Meanwhile, six accused and one another person Dillp ( who by now Is dead) appeared and rounded up my uncle Subhan. Accused Udai Bhan and Ram Nain carried ballam, accused Chandrabhan and Shree @ Sri Ram had spades and accused Surendra and Killu had lathi. Dllip also carried lathi with him. 5. Dilip Instigated his associates ( maro saale ko bhagne no. paye) on this all these accused and Dilip started belabouring my uncle Subhan. My uncle rushed and concealed himself beneath a dunlop-cart, which was standing there. Then accused Surendra and Ram Nain pulled outside my uncle by his leg from beneath the dunlop-cart. All the accused then belabored to my uncle with lathi and danda. Meanwhile, accused Udai Bhan assaulted to my uncle by a single blow by baflam because of which my uncle died at the spot." 15. To the same effect Is the statement of P.W.. 3 in paragraph 10 of his depositions, wherein he has stated as follows : "When the accused Surendra and Ram Nain pulled Subhan from beneath the dunlop-cart then only accused Udai Bhan had assaulted him with bedlam. Other accused at that time did not assault Subhan." 16. Heavily relying upon the aforesaid depositions, learned amicus curiae contended that none of the accused had any idea that Udai Bhan will assault the deceased with ballam so fatally so as to cost him his life. Other accused at that time did not assault Subhan." 16. Heavily relying upon the aforesaid depositions, learned amicus curiae contended that none of the accused had any idea that Udai Bhan will assault the deceased with ballam so fatally so as to cost him his life. Rest of the injuries sustained by the deceased, were on non-vital part of the body and was also simple in nature, and as is clear from above statement, fatal blow was given to the deceased in the last and thereafter no other blow was given to him and in such a view, it is difficult to cogitate that unlawful assembly came into existence with a common object to commit murder. It also cannot be said that members forming unlawful assembly had the requisite knowledge that ( A-1) will assault the deceased so fatally. The instigation call given by the accused also does not indicate existence of unlawful assembly with a common object to commit murder as all the accused did not assault the deceased with an object to annihilate him. Nature of simple injuries which are mostly in number except one also suggests such a conclusion argued learned amicus curiae. 17. On above submissions, learned amicus curiae urged to us that appellants be acquitted or in the alternative be convicted only under Section 323/324, I.P.C. and be sentenced accordingly. 18. Learned A.G.A. have supported the judgment and conviction and sentence and made a gallant effort to countenance the findings recorded by the learned trial Judge but very fairly he did not dispute the above to referred testimonies of the fact witnesses. 19. Applicability of Section 149 , I.P.C. is dependent upon applicability of Section 141, I.P.C. which defines "Unlawful Assembly". Learned A.G.A. have supported the judgment and conviction and sentence and made a gallant effort to countenance the findings recorded by the learned trial Judge but very fairly he did not dispute the above to referred testimonies of the fact witnesses. 19. Applicability of Section 149 , I.P.C. is dependent upon applicability of Section 141, I.P.C. which defines "Unlawful Assembly". Section 141 ordains that an assembly of five or more persons shall be unlawful assembly if the common intention of the persons composing that assembly indulges into any of the five categories of activities mentioned therein namely to overawe by criminal force, or show of criminal force, ( the Central or any State Government or Parliament or the Legislature of any State), or any public servant in the exercise of the lawful power of such public servant ; or to resist the execution of any law, or of any legal process ; or to commit any mischief or criminal trespass, or other offence ; or by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right ; or by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. 20. Section 149 provides that if any offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or as a member of that assembly knew that such an offence is likely to be committed in prosecution of that common object then every member constituting that assembly will be liable for that offence. Thus for applying Section 149 , I.P.C. what is required to be proved is firstly the existence of an unlawful assembly and secondly that the assemble had a common object and lastly that some offence has been committed or likely to have been committed which the members knew that it may be committed in executing that object. In absence of any of the above three ingredients Section 149 , I.P.C. will have no applicability. 21. In absence of any of the above three ingredients Section 149 , I.P.C. will have no applicability. 21. When we consider the arguments raised by both the sides in light of requirement of above two section of I.P.C. vis-a-vis fact and circumstances of the appeal it becomes discernible that the submissions raised by learned amicus curiae regarding offence been committed by the appellant accused is not devoid of merits altogether. It is clear that there was no other common object of the unlawful assembly, which came into being, except to give beating to the deceased. From the depositions of both the fact witnesses, P.W. 2 and P.W. 3, it is perceptibly clear that initially, the assault was made only by the persons who were carrying lathis. Although, both the fact witnesses also testified that two accused who were armed with pharsa also assaulted the deceased but that seems to be an exaggerated and an embellished account, as the autopsy report of the deceased does indicate that deceased had sustained any pharsa injury which is a very heavy and sharp edged tilling weapon. It is also evident that but for one injury attributable to pointed sharped edged weapon like ballam, no other injury by that weapon was caused to the deceased. Thus, initially, the assault seems to have been made on the deceased only by those accused who were armed with lathi and one accused armed with ballam. Conspicuously thus two accused armed with pharsa and one accused armed with ballam did not participate in assault at all. No overt act has been assigned to them as well. Thus, their I participation in the crime with the aid of Section 149 , I.P.C. seems to be a wrong approach. They may be a member of unlawful assembly but did not share the common object nor had the knowledge that such an offence of; murder will take place. This is so : perceptible also for the reason that the lathi injuries sustained by the; deceased were simple in nature and were mostly contusions except one lacerated wound on scalp above the bridge of the nose and they were mostly on non-vital parts of the body. Lacerated wound in the autopsy report has been described by the doctor as injury No. 1 and beneath that injury also no damage was detected by the doctor. Lacerated wound in the autopsy report has been described by the doctor as injury No. 1 and beneath that injury also no damage was detected by the doctor. Thus, it is unambiguously clear that all the injuries sustained by the deceased by lathi were simple in nature. In such a view, it is very difficult for us to conclude positively without any shadow of doubt that the ; unlawful assembly formed had the requisite object or knowledge to commit murder. Since the ballam blow was the last blow and thereafter no further assault was made on the deceased, in such a view, we are of the opinion that conviction of the appellants under Section 302 /149, I.P.C. is fallible and unsustainable. What seems to us is that the assembly had an object to give sound beating to the deceased and it was the individual act of ( A-1) in the last that deceased lost his life. In our conclusion we further draw support from the fact that injuries No. 2, 3, 4, 6, 7 and 8 of the deceased were on non-vital parts of the body and were only contusions. Neither the force applied in inflicting of those injuries nor the part of the body aimed to be hit suggests that lathis wielding accused had knowledge or common object to cause death or commit culpable homicide not amounting to murder. Further, one lacerated wound on scalp without any internal damage also does not indicate such an intention as force applied was with a restraint. Another reason for our above opinion is that the number of accused were seven and number of injuries were only eight and hence only one of the accused had repeated the blows. He certainly did not include accused armed with pharsa and ballam and, therefore, to conclude that unlawful assembly came into existence with requisite common object or knowledge to do away with the deceased will be a far-fetched and long drawn conclusion. We further draw strength in our opinion because there is only one ballam injury on the cadaver of the deceased and, therefore, ( A-2) did not participate in the assault at all as that single injury is specifically attributed to ( A-1). We further draw strength in our opinion because there is only one ballam injury on the cadaver of the deceased and, therefore, ( A-2) did not participate in the assault at all as that single injury is specifically attributed to ( A-1). Moreover it seems very probable that even two accused who had spades with them ( A-3) and ( A-4) did not participate in the incident as there does not seems to be any injury by spades. Furthermore according to the doctor only injury No. 5 was the cause of death of the deceased. Prosecution also failed to get it elicited from the doctor that any of the described injury could be by spade. Thus, it will be wholly unsafe and imprudent to convict the appellants on conjectures and surmises with the aid of Section 149 , I.P.C. for a serious charge of murder. Thus, from our analysis we are of the view that only ( A-1) could have been convicted under Sections 148 and 304, Part I, I.P.C., because a single fatal injury was caused by him only which was his individual act, and rest of the accused could have been convicted only for the crime committed by them. Hence Ram Nain ( A-2) and Chandra Bhan ( A-3) could have been convicted only under Sections 148 and 324/149, I.P.C. only, and appellant Surendra ( A-5) under Sections 147 and 323/149, I.P.C. only. 22. In the net result the appeal of surviving appellants succeeds in part. Conviction and sentence of appellants Ram Nain ( A-2) and Chandra Bhan ( A-3) under Section 148 , I.P.C- as has been recorded in the impugned judgment and order by the learned trial Judge is hereby maintained but their conviction under Section 302 /149, I.P.C. is scored out and instead they are convicted under Section 324/149, I.P.C. only for which crime they are sentenced also to three years R.I. Both the sentences of these appellants shall run concurrently. Likewise conviction and sentence of appellant Surendra ( A-5) under Section 147 . I.P.C. is hereby maintained but his conviction under Section 302 /149, I.P.C. is set aside and instead he is convicted under Section 323/149, I.P.C. only for which offence he is sentenced to 1 year R.I. Both the sentences of this appellant shall also run concurrently. All the three appellants are on bail. I.P.C. is hereby maintained but his conviction under Section 302 /149, I.P.C. is set aside and instead he is convicted under Section 323/149, I.P.C. only for which offence he is sentenced to 1 year R.I. Both the sentences of this appellant shall also run concurrently. All the three appellants are on bail. Their personal and surety bonds are cancelled and they are directed to be taken into custody forthwith to serve out their remaining part of sentence. 23. Let a copy of this judgment be certified to the trial court for it's intimation and further action.