Judgment : Mrs. Sadhana s. Jadhav, J. 1. The appellants herein are challenging their conviction in Sessions Case No. 19/2003 recorded by the 1st Adhoc Additional Sessions Judge, Yavatmal, by a judgment and order dated 14.6.2006. 2. The appellants are convicted for offence punishable under Section:- (a) 147 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 6 months and fine of Rs.500/- each in default further rigorous imprisonment for 1½ months. (b) 148 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 6 months and fine of Rs.500/- each in default further rigorous imprisonment for 1½ months. (c) 302 read with Section 149 of Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- each in default further rigorous imprisonment for 2 years. (d) 324 read with Section 149 of Indian Penal Code and sentenced to suffer rigorous imprisonment for 6 months and to pay fine of Rs.500/- each in default further rigorous imprisonment for 1½ months. (e) 149 read with Section 341 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.500/- each in default further rigorous imprisonment for 1½ months. 3. The case of the prosecution is that : (a) On 18.12.2002, Vivekanand Alone lodged a report at Babhulgaon Police Station at about 11.30 p.m. alleging therein that on 18.12.2002 at about 8 p.m. Gokul Rangari stared taunting and abusing his father Ramdas Alone who had been to answer nature_ s call. Vivekanand approached Gokul and objected his conduct of abusing his father Ramdas. However, Gokul was annoyed and he assaulted Vivekanand with an iron tomy bar. (b) Therefore, Vivekanand along with his parents and brother, hired the auto-rickshaw of one Bhagat and were proceeding towards Babhulgaon Police Station to lodge a report. At about 8.30 p.m. near the hutment area, 15 persons (appellants herein) obstructed the said auto-rickshaw. Raju Baile was armed with a spear and assaulted his father Ramdas with the said spear on his chest and right leg. The complainant tried to intervene and sustained an injury on his finger. At the same time, Gokul Rangari assaulted the complainant on his forearm and also his mother with a stick. The rest of the accused assaulted the complainant and his mother. At that time, the brother of the complainant namely Vidyadhar escaped from the spot. The complainant tried to intervene and sustained an injury on his finger. At the same time, Gokul Rangari assaulted the complainant on his forearm and also his mother with a stick. The rest of the accused assaulted the complainant and his mother. At that time, the brother of the complainant namely Vidyadhar escaped from the spot. The assailants had attempted to chase Vidhadhar. His father Ramdas had fallen unconscious. He was carried to the Civil Hospital in the same auto. At the hospital, Ramdas was declared dead. (c) The oral report is at Exh.180. The report reduced into writing in the proforma under Section 154 of Criminal Procedure Code is at Exh.181. On the basis of the report, Crime No. 100 of 2002 was registered at Babhulgaon Police Station against 15 persons for offences punishable under Sections 341, 147, 148, 149, 302 of Indian Penal Code. (d) The accused were arrested on 21.12.2002. An iron tomy bar was recovered from accused Gokul Rangari under Section 27 of the Indian Evidence Act. Similarly a spear was recovered at the instance of the accused Raju Baile. The memorandum for the recovery of weapon from Gokul Rangari is at Exh.227 and the seizure panchanama is at Exh.228. The memorandum for recovery of spear from Raju Baile is at Exh.226 and the seizure panchanama is at Exh.229. On 20.12.2002, a stick was recovered from accused Punjab Alone as per Exh.221. On 19.12.2002 and 20.12.2002, all the named accused persons were arrested. The investigation was completed and charge sheet was filed on 24.2.2003. The prosecution examined 12 witnesses to bring home the guilt to the accused. 4. Discussion as regards testimony of PW1 is as follows:- (a) PW1 Vivekanand Alone is the son of deceased Ramdas. He is an eyewitness to the incident. He was injured in the said incident. He has set the law into motion by filing an oral report to Babhulgaon Police Station which is at Exh.180. PW1 has deposed before the Court that on 18.12.2002 at about 8 p.m., his father was on his way to answer nature_ s call. Gokul Rangari taunted him. Therefore, he and his father gave an understanding to Gokul. At that time, Gokul assaulted him with an iron tomy bar. Father & son returned home. His father went to the house of Premdas Bhagat to get the auto-rickshaw. Gokul Rangari taunted him. Therefore, he and his father gave an understanding to Gokul. At that time, Gokul assaulted him with an iron tomy bar. Father & son returned home. His father went to the house of Premdas Bhagat to get the auto-rickshaw. (b) Thereafter the complainant, his parents and brother boarded the rickshaw to go to Babhulgaon Police Station for lodging the report. Near the hutment, 10 to 15 persons obstructed the auto. Immediately Raju Baile gave a blow of spear on the left rib of his father. His brother Baban Alone obstructed the second blow. Gokul then assaulted his father on his head with iron rod. Then the rest of the persons assaulted the complainant and others with sticks. Baban @ Vidyadhar is alleged to have sustained severe injury. Baban had escaped from the spot. The complainant and others firstly went to Babhulgaon Police Station. PW1 lodged the report which is at Exh. 180. Then they went to Civil Hospital at Babhulgaon. His father Ramdas was declared dead. The complainant and others again came to the Police Station as they had sustained injuries. They were referred to Civil Hospital. PW1 has deposed that Premdas Bhagat & Premdas Deotale were present at the time of incident. (c) In the cross-examination, PW1 has stated that at the time of incident his mother was Up-sarpanch of the Gram Panchayat. In the past, his father was also Sarpanch on several occasions. He has evaded to answer as to whether his father was externed at any point of time. (d) He has also admitted that the spot of incident is near the house of Sharad Mankar. There is a school near the scene of offence and the rear portion of the school is used by the residents of the hutment area for defecation. PW1 has feigned ignorance about the criminal antecedents of his father. (e) He has admitted in the cross examination that after the auto stopped, the assailants obstructed them and then assaulted with sticks. The clothes of the victims as well as the inner side of the auto were blood stained. The material omissions elicited in the cross-examination are as follows: ‘The fact that my brother Baban obstructed the second blow is not found in my report for which I have no reason. The clothes of the victims as well as the inner side of the auto were blood stained. The material omissions elicited in the cross-examination are as follows: ‘The fact that my brother Baban obstructed the second blow is not found in my report for which I have no reason. The fact that Gokul assaulted my father with tomi on his head is not found in my report for which I have no reason. The fact that Premdas Deotale was in our auto is not found my report and statement for which I have no reason. The fact that Premdas Bhagat was the driver of the auto is not found in the report and the statement of police’. (f) The omission which is proved through the evidence of PW13 Investigating Officer is to the extent that Vivekanand had not told that Premdas Deotale was in the said auto. He has not stated that Premdas Bhagat was driving the said auto. He had not stated that Raju Baile assaulted his father on ribs. (g) PW1 has deposed before the Court that the incident had taken place on Gondhari Road and it is surrounded by agricultural fields. He has further stated thus:- It is true taking advantage of such spot and darkness, some 15 persons had attacked us. It is true I heard the shouts of my father and when I saw, I found him lying unconscious (with bleeding injury). (h) On perusal of the vernacular version of PW1, it is found that he has stated that he saw his father lying unconscious and there is no mention of bleeding injury. In the cross-examination, he has further stated that he had called the auto driver after the incident. According to PW1, at the time of incident, he was sitting in the auto on the rear side along with his mother and brother and his father was sitting next to the driver. According to him, the persons had encircled the said auto. His father was sitting on the left side of the driver. He has admitted that:- ‘the fact the accused persons assaulted myself, my father, mother and brother is not found in my report and statement’. (i) From the evidence of PW1, it can be inferred that it was a faction stricken village , one group belonged to his father and another was of one Chute. He has admitted that:- ‘the fact the accused persons assaulted myself, my father, mother and brother is not found in my report and statement’. (i) From the evidence of PW1, it can be inferred that it was a faction stricken village , one group belonged to his father and another was of one Chute. (j) The material admission in the evidence of PW1 is: ‘It is true first my father went to the house of Premdas Bhagat for auto but he did not come. It is true soon after our auto was obstructed, there were assaults with sticks’. 5. Discussion as regards testimony of PW3 is as follows:- (a) PW3 Arvind Shyamrao Alone is the brother of deceased Ramdas. According to him on 18.12.2002 he was coming from Nagpur to Mubarakpur in his Ambasaddor Car along with his wife. Near the hutment of Mubarakpur, he saw an auto and there were 15 to 20 persons on the spot. Those persons were assaulting the passengers of the said auto. Raju Baile assaulted with spear, Gokuldas had one tomy bar and the others were armed with sticks. They were assaulting the persons of the auto. (b) According to PW3, the assailants saw the car and fled away. He stopped the car and found his brother in a pool of blood. He was unconscious. Lalita and Vivek had sustained injuries and, therefore, he took them to the hospital at Babhulgaon in the auto. Doctor declared Ramdas dead. (c) In the cross-examination, he has stated that the car was hired by him and the driver was driving the car. No villagers were present at that time. He was present in the village till the investigation was completed. Certain omissions in respect of involvement of Rahul Ghodeswar are elicited in the cross-examination. However, the investigating officer was not confronted with the same. He has admitted in the cross-examination that by the time he reached near the auto-rickshaw, the assailants had fled away. He had been to the Police Station in the car. From the long distance, he could not see the passengers in the auto. (d) PW3 appears to be a chance witness. PW1 has not stated that soon after the incident, PW3 came on the spot and that he had taken them to the hospital or had accompanied them to the Police Station. From the long distance, he could not see the passengers in the auto. (d) PW3 appears to be a chance witness. PW1 has not stated that soon after the incident, PW3 came on the spot and that he had taken them to the hospital or had accompanied them to the Police Station. In fact the testimony of PW1 would show that he has not mentioned the presence of PW3 at all. PW3 has stated that the injured was taken to the hospital. However, PW1 who is the injured witness, has deposed that they first went to the Police Station and then to the Hospital. PW3 has not named accused nos. 7,8,11 & 12. 6. Discussion as regards testimony of PW4 is as follows:- (a) PW4 Baban Alone is the son of deceased Ramdas and brother of PW1. According to him on 18.12.2002 at about 8.15 p.m. when he returned home from Erangaon, he saw an auto standing in front of his house, his parents and brother were boarding in the said auto and they asked him to join them. Upon inquiry, they informed him that Gokul had assaulted Vivek. (b) PW4 has further deposed that in the square of the village, Premdas Deotale joined them. Near the hutment, Raju Baile, Vinayak Chute, Raju Alone and 10 to 12 persons obstructed the auto. Raju Baile assaulted his father with a spear on his head. While he was alighting from the auto, Gokul assaulted him with iron tomy bar. Vinayak assaulted him with a stick and thereafter he escaped from the spot and went to Panchkhed. He went to Babhulgaon Hospital at 3 a.m. and was referred to the hospital at Yavatmal from where he was discharged on 21.12.2002. He claims to have sustained injuries to the little finger of right hand, to the right palm, left leg, left ribs and left eye. (c) In the cross-examination, he has admitted his criminal antecedents. He claims to be present at the spot of incident for five minutes. There is no reference to Premdas Deotale in his previous statement. He admits to have escaped from the spot in the darkness. (c) In the cross-examination, he has admitted his criminal antecedents. He claims to be present at the spot of incident for five minutes. There is no reference to Premdas Deotale in his previous statement. He admits to have escaped from the spot in the darkness. (d) The material omissions elicited in the cross-examination are that he was attacked when he was alighting from the auto and further: ‘I had told the Police that the persons surrounding us had assaulted my father, but this fact is not found in my statement to Police’. This omission is proved. The description of the weapons is also an omission. He has further admitted: ‘the fact that other persons also assaulted him is not found in my statement to Police’. 7. Discussion as regards testimony of PW6 is as follows:- (a) The prosecution has also placed reliance on the evidence of PW6 Lalita Alone w/o Ramdas. She is an injured witness. According to her on 18.12.2002, Gokul Rangari had taunted her husband. Her son Vivekanand tried to give him an understanding. Gokul assaulted her son with iron tomy bar. Her husband then fetched the auto of Premdas Bhagat. Her husband, her two sons and herself boarded the rickshaw for going to Babhulgaon to lodge the report. (b) According to PW6 10 to 15 persons obstructed their auto. Raju Baile assaulted her husband with a spear at his ribs. Gokul assaulted him with a tomy bar on his head and thereafter accused Nos. 3,5,6,7,8,10 and 13 assaulted them with sticks. Her husband fell unconscious as he had sustained injuries on his left ribs and head. Her sons had also sustained injuries. According to her, they took her husband to the hospital at Babhulgaon. He died in the hospital. (c) The motive attributed by her for the alleged incident is that the accused persons were annoyed because she was Upsarpanch and her husband used to help her. (d) PW6 has stated that it was the full moon day on the date of incident and similarly she could identify the assailants in the light of one car. It is material to note that she has not stated that the said car was of her brother-in-law or that she had noticed him in the said car. In the cross-examination, the source of light for identifying the assailants is elicited as an omission. It is material to note that she has not stated that the said car was of her brother-in-law or that she had noticed him in the said car. In the cross-examination, the source of light for identifying the assailants is elicited as an omission. (e) The motive attributed to the accused is also an omission. She has admitted in the cross examination that the villagers disapproved the participation of her husband in the activities of Gram Panchayat. The Gram Sabha had objected the interference of her husband in the affairs of the Gram Panchayat and some villagers had also attempted to beat her husband and, therefore, he was forced to leave the venue of the meeting. (f) In respect of the incident, she has stated that when the auto reached near the hutment, the persons who had gathered there, had attacked them & at the time of attack, they were sitting in the auto. She has admitted that she had sustained injuries due to assault by sticks. It is material to note that in the cross-examination she has stated that all four persons were sitting in the rear portion of the auto. The assailants had surrounded the auto. She has expressed inability to ascertain as to which person assaulted her and her sons and on which portions of their bodies. (g) In the cross-examination, it is further admitted that Rajendra Alone was prosecuting his education in another village and his father & sister lived in Mubarakpur. Similarly in the past, he was the Member of Gram Panchayat. She has further stated that when her son Arvind reached on the spot, her husband was unconscious. She has denied that she was sitting next to her husband in the auto but has stated that there were blood stains in the auto because of the bleeding injuries sustained by her and her husband. 8. Discussion as regards testimony of PW7 is as follows:- (a) The prosecution has also relied upon the evidence of PW7 Dadaram Dhone. According to this witness, on 18.12.2002 at about 7.30 to 8 p.m. he was proceeding to answer nature_ s call. He saw that Gokuldas and Vivek Alone were engaged in some verbal altercation. (b) While PW7 was returning after answering nature’s call, he heard loud shouts. He saw an auto standing on the road. He saw some persons assaulting the inmates in the auto. He saw that Gokuldas and Vivek Alone were engaged in some verbal altercation. (b) While PW7 was returning after answering nature’s call, he heard loud shouts. He saw an auto standing on the road. He saw some persons assaulting the inmates in the auto. He saw Raju Baile armed with a spear and Gokul armed with an iron rod & others were armed with sticks and some of them were not armed with any weapon. (c) PW7 saw Ramdas, Lalitabai, Vivek & Baban in the auto and Ramdas was unconscious and in a pool of blood. He then advised them to go to the Hospital. He had seen the assailants in the light of Moon and one Ambasaddor car. He has admitted that he is the real maternal uncle of Ramdas Alone. (d) Material omissions in respect of the incident are elicited in the cross-examination. The said omissions are proved. He has admitted in the cross-examination that when he reached the spot, the assailants had fled away and he had only seen Ramdas lying unconscious and others having sustained injuries. This admission makes it clear that he has not seen the assault. 9. Discussion as regards testimony of PW2 is as follows:- (a) PW2 Dr. Lalitkumar Borkar was working as a Medical Officer at Primary Health Centre Babhulgaon. He has deposed before the Court that on 18.12.2002 a person in dead condition and another in injured condition came to the hospital. He intimated Police Station Babhulgaon. The intimation is at Exh. 183. (b) PW2 has examined PW4 Baban Alone on 19.12.2002 at 3.30 a.m. He was brought by Police Constable Ashok. The injury certificate of Baban Alone is at Exh.184. The injuries sustained by him & noticed by PW2 are as follows:- [a] swelling below left eye with redness; [b] swelling over left wrist; [c] swelling over left knee; [d] Complaint of pain in chest wall over 8-9th rib referred for x-ray; [e] Incised wound on distal segment of small finger; [f] incised wound on right sole on inner margin. (c) PW2 has also examined Vivekanand Alone at 12.30 a.m. He was also brought by Police Constable Ashok. The injury certificate of PW1 Vivekanand Alone is at Exh.185. The description of the injuries sustained by him are: (i) Vertical contusion 2 inch long over right upper arm. (ii) Incised wound over right hand fingers. (c) PW2 has also examined Vivekanand Alone at 12.30 a.m. He was also brought by Police Constable Ashok. The injury certificate of PW1 Vivekanand Alone is at Exh.185. The description of the injuries sustained by him are: (i) Vertical contusion 2 inch long over right upper arm. (ii) Incised wound over right hand fingers. (d) PW2 has also examined PW6 Lalita w/o Ramdas. Her injury certificate is at Exh.186. The description of the injuries sustained by her is an abrasion on right hand, middle finger with swelling on posterior side. No other obvious injury seen. The intimation at Exh.183 would show that Ramdas was taken to the Hospital at 10.10 p.m. The intimation was given at 10.20 p.m. The original Exh.183 clearly shows that there is overwriting in respect of the time of admission. 10. The autopsy on the dead body of Ramdas was performed by Dr. Vipul Ambade at Yavatmal Hospital on 19.12.2002 between 11.45 a.m. and 2.50 p.m. Column no. 21 shows presence of alcohol in the stomach of the deceased. The cause of death is stated as shock & haemorrhage due to stab wounds to left lung and aorta. 11. The panchas to the recovery panchanama have turned hostile. The weapons seized were sent for chemical analysis and no blood is detected on the iron rod, the iron spear. The blood group of the deceased could not be determined and hence the recovery of weapon would be rendered insignificant. 12. Discussion as regards testimony of PW13 is as follows:- (a) PW13 Shankar Dankalwar is the A.P.I. who was the investigating officer. He states that he had sent three injured persons for medical examination along with requisition letters which are at Exhs. 234 to 235. In the cross-examination, he has admitted as follows:- ‘it was revealed in my investigation that the deceased was taken out from the auto and was then assaulted. It was also revealed that Lalita who is the wife of deceased was the Up-sarpanc’. (b) PW13 has proved the omissions in the statement of complainant that she had not stated that Raju Baile assaulted his father on his ribs. Similarly, Lalita had not stated on which part of the body, Raju Baile assaulted the deceased. Baban had not stated that while he was alighting from the auto, he was assaulted. He had neither stated that the persons surrounding him had assaulted his father. Similarly, Lalita had not stated on which part of the body, Raju Baile assaulted the deceased. Baban had not stated that while he was alighting from the auto, he was assaulted. He had neither stated that the persons surrounding him had assaulted his father. (c) It is significant to note that the investigating officer has stated that there was no evidence about the prelude to the incident that the assault on Vivekanand by Gokul a few minutes before the assault. He had also inquired from the persons residing in the locality where the incident had occurred. However, the said statements do not find place in the charge sheet and, therefore, the witnesses are not examined by the prosecution. 13. The spot panchanama is at Exh.191. Premnath Chandrabhan Bhagat is the panch to the spot panchanama. In fact Premnath Bhagat would be the best witness but for reasons known to the prosecution, Premnath Bhagat has been withheld. According to the eyewitnesses, the incident had occurred when they were proceeding to the Police Station in the auto-rickshaw driven by Premdas Bhagat. 14. In the present case, the charge was framed against the accused persons under Sections 147, 148 & 302 read with 149 of I.P.C. The accused are also convicted for offence punishable under Section 324 read with Section 149 of I.P.C. for causing injury to the witnesses. From the evidence on the record, the common object of the unlawful assembly will have to be ascertained. Section 147 of the Indian Penal Code is the penalizing section for the offence which is defined under Section 146 of IPC. As soon as the force or violence is used by an unlawful assembly or by any member thereof in prosecution of the common object of such assembly, the offence of rioting would be completed. The common object of the unlawful assembly could be inferred from their conduct. The evidence on record adduced by the prosecution would show that: (a) unlawful assembly had obstructed the auto-rickshaw, (b) there was no exhortation by any member of the unlawful assembly, (c) the admission of PW1 eyewitness that soon after the auto was obstructed, there was assault with sticks. This admission would show that the object of the unlawful assembly was to cause fear in the minds of the witnesses and secondly to cause hurt. This admission would show that the object of the unlawful assembly was to cause fear in the minds of the witnesses and secondly to cause hurt. The accused besides Raju Baile and Gokul had neither assaulted the deceased nor had aided accused nos. 1 and 2 in mounting assault on deceased Ramdas. The accused nos. 3 to 15 cannot be attributed with the knowledge about the acts to be committed by accused nos. 1 and 2. 15. Section 149 of I.P.C. is divided into two parts which are not to be read in alternative but in conjunction with each other. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly or such act the members of that assembly knew to be likely to be committed in prosecution of that object every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence. 16. Hence in the second limb of Section 149 of IPC knowledge of the members of the unlawful assembly that any member of the said assembly may commit a particular act is necessary. In the present case, in the absence of any cogent, convincing and unimpeachable evidence, it would be difficult to hold that all the members of the unlawful assembly had the knowledge that accused nos. 1 and 2 are likely to assault Ramdas in a manner which would result into his death. 17. Wherever there is a direct evidence, then the evidence has to be weighed and not counted. According to the eyewitnesses, there were two independent witnesses to the incident. They were Premdas Bhagat and Premdas Deotale. Both the witnesses were in the auto-rickshaw and yet they have been withheld by the prosecution leaving room for injured interested witnesses. 18. The variance in the evidence of the eyewitnesses would clearly go to the root of the matter especially in respect of the place where the deceased was seated in the auto-rickshaw. According to PW1, his father deceased Ramdas was sitting next to the driver and he and his mother and brother were sitting on the rear side, whereas PW4 has stated that they had picked up Premdas Deotale from the square and according to him, he, his parents and brother were seated in the rear side of the auto. According to PW1, his father deceased Ramdas was sitting next to the driver and he and his mother and brother were sitting on the rear side, whereas PW4 has stated that they had picked up Premdas Deotale from the square and according to him, he, his parents and brother were seated in the rear side of the auto. PW6 has stated that all four persons were in the rear portion of the auto. In the cross-examination, PW6 has stated that her husband was sitting on the left side of the auto. Vidyadhar was sitting next to him and then Vivekanand. As against this, PW7 Dadaram Dhone has stated that he found the auto in a stationary position and some persons were obstructing the auto. All the assailants were not armed, although the witnesses have stated that there were blood stains in the auto, neither the auto is seized nor the auto driver is examined. 19. According to PW1, they had first been to the Police Station and then to the Hospital, is falsified by the intimation at Exh.183. The intimation was given to the Police Station by the Medical Officer & thereafter PW1 had been to the Police Station. Rather all the witnesses had been to the Police station & then were referred for medical examination along with the requisition of the Police. The injuries sustained by the witnesses were simple, contusion and abrasions. The injuries sustained by the witnesses are on non-vital parts and mostly on the fingers of their hands and on forearm. 20. PW1 Vivekanand has stated that it was Baban who had obstructed the second blow being mounted by Raju Baile. This is corroborated by injury no.5 sustained by Baban which is incised wound on distal segment of small finger. Vivekanand has not stated that he had also attempted to stall the blow by a sharp object. However, injury no.2 sustained by Vivekanand is an incised wound over right hand fingers on root of small finger, tip of ring finger, middle finger & thumb. 21. PW6 Lalita only sustained an abrasion on the middle finger of right hand. Hence it appears that the common object of the members of the unlawful assembly was to cause hurt. The evidence of the witnesses would show that the members of the assembly i.e. accused nos. 3 to 15 have not caused any serious injuries to the witnesses. 21. PW6 Lalita only sustained an abrasion on the middle finger of right hand. Hence it appears that the common object of the members of the unlawful assembly was to cause hurt. The evidence of the witnesses would show that the members of the assembly i.e. accused nos. 3 to 15 have not caused any serious injuries to the witnesses. Acts done by some members of unlawful assembly outside the common object of the assembly are of such a nature as the members of the assembly could not have known to be likely to be committed in prosecution of that object are only liable for the acts which they have committed. Accused nos. 3 to 15 do not appear to be the actual perpetrators of the offence punishable under Section 302 read with 149 of I.P.C. 22. The course of conduct adopted by the members of the assembly would be a relevant factor. In the case at hand, the common object of the assembly is not discernible. It can be held the principal offenders intended to cause the fatal assault upon Ramdas. Merely because the other accused were members of the unlawful assembly, it cannot be held that they shared the common object more so in the absence of any evidence adduced by the prosecution in that behalf. 23. The learned A.P.P. appearing for the State has relied upon the judgment delivered by the Apex Court in the case of State of Maharashtra vs. Kashirao & others reported in 2003 Cri.L.J. 4464 wherein it is held that:- ‘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’. The members of the 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’. 24. 24. In the case cited supra, the High Court had convicted the main assailants for offence under Section 326 read with 147 of I.P.C. and were sentenced to 3 years R.I. The facts of the case are that all the accused persons had formed an unlawful assembly, they were armed with weapons like sword and axe, the others were armed with lathis. The accused had hurled stones at the house of Pundlik, threatened to kill him and his friend and the accused persons chased the victim, committed his murder and returned back to the house of PW1, pelted stoned and when he attempted to escape, they chased him, gave blows, severed the left arm of PW1 and caused injuries on his right arm. They assumed him to be dead and returned to the village and carried the severed arm and showed it to his mother. Hence the facts of the case as well as the evidence adduced by the prosecution can be distinguished. 25. The learned APP has also relied upon the judgment delivered in the case of Sudhir Annaji Choudhary vs. State of Maharashtra reported in 2011 ALL MR (Cri.) 1179, in which it was established that the unlawful assembly comprises of 40 persons out of which different persons joined and/or common in the acts of shouts, utterances and assault had been identified. The common object was established. The appeals were partly allowed. The facts are distinguishable. It is held therein for convicting any accused for offence punishable under Section 149 of IPC, vicariously or constructively, for an act of unlawful assembly, proof of common object from the conduct of the accused persons distinct from the common intention is a condition precedent. 26. The learned counsel for the appellants has relied upon the judgment in the case of Pandurang Chandrakant Mhatre .vs. State of Maharashtra reported in (2009) 10 SCC 773 , wherein the specific overt acts of the accused persons who had caused death was distinguished from the act of the persons against whom there was general allegation and wherein it was held that: ‘the conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by member and behaviour of member at/or near scene of incident’. 27. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by member and behaviour of member at/or near scene of incident’. 27. In the present case, the eyewitnesses have described the incident by stating that the assembly obstructed the auto-rickshaw. They mounted assault with sticks and then accused nos. 1 and 2 gave the fatal blows to deceased Ramdas. Hence it is clear that the object of the unlawful assembly was to cause hurt. Only accused nos. 1 and 2 had shared the common intention of causing the fatal blows and hence they would be liable for offence punishable under Section 302 read with 34 of I.P.C. Section 34 takes into account the fact of the participation of every individual offender in the offence which is therein described as a criminal act as well as his mental state which is connoted by the word intention. The weapons carried by accused no.1 and 2 and the situs of the body chosen by them clearly indicates their intention. The other accused had not obstructed the witnesses from intervention nor they assaulted the deceased. The injuries reflected in Column No.17 do not show that the deceased had sustained any injuries by sticks. The eye-witnesses have also not alleged the accused persons besides accused nos.1 and 2 had assaulted the deceased. 28. The learned counsel for the appellants have relied upon the case of Kuldip Yadav and others .vs. State of Bihar reported in (2011) 5 SCC 324 . It is held: ‘A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149- either clause is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act’. 29. The totality of circumstances would lead to an inference that accused nos. 1 and 2 had shared common intention which is reflected from the acts committed by them and proved by eyewitnesses. Intention is subjective and a matter of inference from the conduct of accused. 30. The object of a charge is to warn the accused of the case he has to answer. Section 34 of I.P.C. & Section 149 of I.P.C. are overlapping but cannot be construed to be diverse. Section 34 is merely declaratory of a rule of criminal liability and does not create a distinct offence whereas Section 149 of I.P.C. creates a specific offence and postulates an unlawful assembly having a common object. 31. Reliance can be placed upon the judgments of the Apex Court reported in AIR 2003 SC 796 in the case of Chittarmal Vs. State of Rajasthan and 2006 Cri.L.J. 2113 (S.C.) in the case of Dhaneshwar Mahakud & others vs. State of Orissa wherein it is held: ‘injuries sustained by deceased clearly indicates intention of accused-appellants’ ‘Merely because charge was framed under Section 302 r/w S.149 I.P.C. and not under 302 read with Section 34 I.P.C., no prejudice can be said to have been caused to accused- Conviction of accused under section 302 with aid of Section 34 is permissible’. 32. The evidence adduced by the prosecution to substantiate the charge under Section 341 of I.P.C. is inadequate as there is no cogent evidence to show that the prosecution witnesses were wrongfully restrained. In fact the evidence is of obstruction. Hence the accused are acquitted for offence punishable under Section 341 read with Section 149 of I.P.C. 33. 32. The evidence adduced by the prosecution to substantiate the charge under Section 341 of I.P.C. is inadequate as there is no cogent evidence to show that the prosecution witnesses were wrongfully restrained. In fact the evidence is of obstruction. Hence the accused are acquitted for offence punishable under Section 341 read with Section 149 of I.P.C. 33. In the above mentioned premises, it would be unsafe to convict all the accused for offence punishable under Section 302 of I.P.C. with the aid of Section 149. Hence the order:- (a) The appeal filed by original accused nos. 1 and 2 i.e. Criminal Appeal No.368/2006 so far as it relates to accused nos.1 and 2 is dismissed. Accused nos. 1 and 2 are held guilty for offence punishable under Section 302 read with 34 of I.P.C. (b) Criminal Appeal Nos.368/2006, 353/2006, 369/2006 and 396/2006 filed by accused nos. 3 to 15 are partly allowed. The other accused i.e. original accused nos. 3 to 15 are acquitted of offence punishable under Section 302 read with Section 149 of I.P.C. However, their conviction on the other counts is maintained. They had undergone the sentences awarded to them on the other counts i.e. for offence punishable under Sections 147, 148, 149 read with Section 324 of I.P.C. (c) Accused nos. 4,5,7,8,9 and 11 are in jail since 20.12.2002. Accused nos. 3 to 10 and 12 to 15 be set at liberty forthwith, if not required, in any other offence. Bail bonds of original accused no.11 stand cancelled. (d) Fine amount, if paid by accused nos. 3 to 15 imposed under Section 302 read with 149 of I.P.C., be refunded to them.