JUDGMENT 1. As these appeals arise out of the same judgment and order dated 07.12.2010 passed by Special Judge, Durg in Special Case No. 16/2006 they are disposed of by this common judgment. 2. By the judgment impugned all the accused persons in the aforesaid four appeals have been convicted under Sections 147, 148, 302/149 IPC (for causing death of Kartikram), under Section 302/149 IPC (for causing death of Punitram) and 324 IPC. They have been sentenced to undergo RI for I year under Section 147, RI for 2 years under Section 148, imprisonment of life with fine of Rs.500 under Section 302/149 for causing death of Kartikram, imprisonment of life with fine of Rs.500 under Section 302/149 for causing death of Punitram and RI for 2 years under Section 324/149 IPC for causing injury to Ramesh (PW-I), plus default stipulations. 3. There are two deceased persons in these cases namely Kartik Ram and his son Punit Ram. As per the case of the prosecution, on 10.09.2005 FIR Ex. P-I was lodged by Ramesh (PW-1) alleging that he was resident of village Bhurki and working as an agriculture labourer. It is alleged that just near his house, accused Vijay was having his agricultural land and he had some dispute with him. About two months prior to the date of incident some shisham wood belonging to the accused/appellants was confiscated by the forest department, one motorcycle was burnt and headlight of the tractor was also broken and for all this they were suspecting the complainant party to be responsible. It is alleged that accused Ajay asked his father to sell his land and that he was called by the police for recording statement. After returning from police station, he went to the village pond and when he was sitting there along with other villagers, accused/appellants except accused Haljinder came there in a tractor carrying weapons with them and assaulted his brother and father. It is alleged that accused/appellants assaulted them with intention to commit murder as a result of which they died on the spot. Incident was witnessed by Dhruvdas (PW-2), Dinesh Kumar (PW-4), Johan (PW-9), Devlal (PW-11) and Anjori (PW-12). Based on this FIR, offences under Sections 147, 148, 149 and 302 IPC were registered against six accused persons except Harjinder. Merg intimation Ex. Incident was witnessed by Dhruvdas (PW-2), Dinesh Kumar (PW-4), Johan (PW-9), Devlal (PW-11) and Anjori (PW-12). Based on this FIR, offences under Sections 147, 148, 149 and 302 IPC were registered against six accused persons except Harjinder. Merg intimation Ex. P-60 was recorded in relation to death of Kartik Ram at 5.20 p.m. whereas in respect of Punitram it was recorded as Ex. P-59 at 5.30 p.m. Vide Ex. P-18 MLC of Ramesh was conducted by Dr. N.K. Tiwari (PW-15) whereas that of Punit Ram was conducted by him vide Ex.P-20. Postmortem examination on the body of deceased Kartikram was conducted by Dr. AN. Shrivastava (PW-20) vide EX.P-17 whereas that of Punitram was conducted by Dr. NK Tiwari (PW -15) who gave his report EX.P-32. After investigation, charge sheet was filed by the police. 4. In support of its case the prosecution has examined 30 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, one SR Pathare (DW-1) has been examined by the defence in support of its case. 5. By the judgment impugned the Court below has convicted and sentenced the accused/appellants as mentioned in paragraph No.1 of this judgment. Hence this appeal. 6. Heard counsel for the parties and perused the material available on record. 7. Shri Khare, learned senior counsel for the accused/appellants submits that as there are material contradictions and omissions in the evidence of eyewitnesses if compared to the FIR and the statements recorded under Section 161 Cr.P.C., the accused/appellants cannot be convicted for committing murder of Kartikram and Punitram and causing injury to Ramesh (PW-1). He further submits that as the prosecution has not been able to prove its case beyond reasonable doubt, the accused/appellants are entitled to benefit of doubt. He further submits that the court below has convicted all the accused persons with the aid of Section 149 though none of the witnesses has assigned any particular role played by the accused/appellants in assaulting the victims. In support of his contention reliance is placed on the decisions of the Supreme Court in the matter of Shambhu Nath Singh and others Vs. State of Bihar AIR 1960 SC 725 in the matter of Pandurang Chandrakant Mhatre and others Vs. In support of his contention reliance is placed on the decisions of the Supreme Court in the matter of Shambhu Nath Singh and others Vs. State of Bihar AIR 1960 SC 725 in the matter of Pandurang Chandrakant Mhatre and others Vs. State of Maharashtra 2009 (10) SCC 773 in the matter of Sujoy Sen alias Sujoy KR. Sen Vs. State of W.B. 2007 (6) SCC 32 in the matter of Sarman and others Vs. State of M.P 1993 Supp (2) SCC 356 and in the matter of Sunil Kumar Sambhudayal Gupta (DR.) Vs. State of Maharashtra 2010 (13) SCC 657 . 8. Smt Fouzia Mirza, counsel appearing for accused/appellant Harjinder submits that accused Hmjinder has not been named in the FIR lodged by Ramesh (PW-1) and except in his statement recorded under Section 161 Cr.P.C. no other witness in his case diary statement has stated about his presence. She further submits as none of the witnesses has stated that he also took active participation in assaulting the victims and the eyewitnesses examined by the prosecution have merely stated that he was standing on the spot training a gun but did not assault anyone with it, he cannot be convicted for any offence. 9. Smt Mina Shastri, counsel appearing for the complainant submits that looking to the heinous act of the accused persons, the adequate sentence awardable to them should have been the capital punishment but the Court below has gone wrong in simply awarding imprisonment for life where two ghastly murders have been committed by them. She also submits that looking to the injuries caused to Ramesh (PW-), the accused persons should have been convicted under Section 307/149 but here also the Court below has misled itself by convicting them under Section 324/149 IPC. 10. On the other hand, counsel for the respondent/State supports the findings recorded by the Court below and submits that there is overwhelming evidence on record to show that it is the accused/appellants who made a murderous assault on the victims in which two persons have lost their lives and one sustained injuries on his person. 10. On the other hand, counsel for the respondent/State supports the findings recorded by the Court below and submits that there is overwhelming evidence on record to show that it is the accused/appellants who made a murderous assault on the victims in which two persons have lost their lives and one sustained injuries on his person. He submits that there are four eyewitnesses to the incident who in categorical terms have stated that when the victims along with others were sitting near the pond, the accused/appellants came there in a tractor armed with deadly weapons and started assaulting them as a result of which Kartikram and Punitram died. As regards accused Harjinder, he submits that though there is no evidence against him of actively participating in the assault yet since he was present on the spot training a gun, he is equally liable for the said act and his conviction with the aid of Section 149 is also just and proper calling for no interference in the appeal preferred by him. 11. Ramesh Kumar Tandon (PW-1), lodger of FIR and eyewitness to the incident has stated that he knew all the accused persons who belonged to Jaat community and he belongs to Satnami caste and that deceased Km1ikram and Punitram were his father and brother respectively. He has stated that there was some dispute between his family and the accused/appellants on account of appellants' taking their tractor from near his house as a result of which the road near his house got damaged for which a complaint was made by his father to them and they had assured for getting the same repaired after rainy days. Just before the incident, he and his father kartikram were called by the police station, Bemetara where the appellants had also gone carrying swords with them. According to him, when he reached the police station, the Station House Officer informed him that headlight of the tractor belonging to the accused/appellants was broken by them and then after making him and his father understand the police people permitted them to get back, however, by that time the accused persons were in the police station itself. Thereafter, he and his father came to his village on bicycle but before taking meals he went to the village pond for getting fresh. Thereafter, he and his father came to his village on bicycle but before taking meals he went to the village pond for getting fresh. When after getting fresh he was sitting by the side of pond along with his father Kartikram (deceased), brother Punitram (deceased), Dhruvdas (PW-2), Johan (PW-9), Devlal (PW-11), Naresh (PW-10) and Anjori (PW-12), accused persons came there in a tractor from the street going from village Bhurki to village Hatmudi and after getting down opened an assault at them. According to this witness, accused Ramchander, Jashwant, Sukhdev, Ajay and Naresh were carrying swords, accused Harjinder was carrying gun and accused Anil was carrying battle axe. Accused Naresh assaulted him with sword on his left elbow on which, he himself, his father Kartikram and brother Punitram started running helter and skelter in different directions. When accused persons ran towards his father and brother he stopped on the way and saw that accused Ajay and Sukhdev felled his brother down and accused Naresh causing injury on his head with sword and just thereafter accused Ramchander caught hold of the hand of his father and exhorted saying maro maro on which accused Jashwant assaulted him with sword, accused Anil with battle axe whereas accused Harjinder was standing there training the gun. Thereafter, this witness is stated to have gone to the police station and lodged the report EX.P-1. This witness has stated that for the injury sustained by him he was required to be hospitalized for four days. He has stated that since 5-6 months prior to the date of incident, the accused persons had migrated to their village where after purchasing some agricultural land and residential accommodation, they settled down. According to him, one of the hands of his father Kartikram was already chopped of in some other incident by one Vedram. This witness has further admitted that after the incident, several administrative officers including some politicians had come to their village and given the financial assistance for better treatment at Ramkrishna Mission Hospital, Raipur. He has further admitted that his relations with accused Harjinder were cordial prior to the incident. He has stated that in the police station, he identified accused Harjinder (but as per record no such identification parade was held). He has further admitted that in his case diary statement Ex. D-1, he has not mentioned name of accused Harjinder as one of the assailants. He has stated that in the police station, he identified accused Harjinder (but as per record no such identification parade was held). He has further admitted that in his case diary statement Ex. D-1, he has not mentioned name of accused Harjinder as one of the assailants. He has also admitted that the accused/appellants had doubt in their minds that it is because of complainant party the shisham wood belonging to them was seized by the forest department. In paragraph-36, this witness has given a detailed account of incident including the individual role played by the accused/appellants in assaulting the deceased persons. In paragraph-55, this witness has further admitted that about some incident he had filed writ petition No.3751 before the High Court (Ex.D-5) duly supported by the affidavit (Ex.D-6). He has stated that in Ex.D-7, he has also mentioned the entire incident in detail and in all these documents there is no mention of the presence of accused Harjinder at the place of occurrence nor any role has been assigned to him. In respect of accused Harjinder, this witness has simply stated that he was standing on his spot carrying a gun with him. There appear to be minor contradictions and omissions in paragraphs-15, 16, 17, 25, 39, 44, 52 and 53 but they are insignificant in nature. Dhruvdas (PW -2) - another eyewitness to the incident while supporting the case of prosecution has stated that on the date of incident when he along with Kartik, Punit (both deceased), Ramesh, lohan, Devlal, Naresh and Anjori was sitting under a tree near the village pond, accused/appellants came there on tractor and opened an assault. Accused Ajay, Sukhdev and Naresh assaulted Punit whereas accused lashwant, Ramchander assaulted deceased Kartik with sword and accused Anil with battle axe. He has stated that Ramesh (PW-1) was also assaulted with sword but by whom, he was not aware. He has further stated that after reaching the spot, the accused/appellants had complained to him that their wood was got seized by them. In respect of accused Harjinder, this witness has stated that he was carrying a gun but did not fire. There appear to be minor contradictions and omissions in paragraphs-5, 12 and 19 but they are insigniticant in nature. Dinesh Kumar (PW-4) yet another eyewitness to the incident has made almost similar statement like Ramesh Kumar Tandon (PW-1) and Dhruvdas (PW -2). There appear to be minor contradictions and omissions in paragraphs-5, 12 and 19 but they are insigniticant in nature. Dinesh Kumar (PW-4) yet another eyewitness to the incident has made almost similar statement like Ramesh Kumar Tandon (PW-1) and Dhruvdas (PW -2). Assigning the role of each of the accused/appellants, this witness has categorically stated that accused Naresh assaulted Ramesh (PW -1) with sword and the other accused persons had cut the throat of deceased Kartik and Punit. According to him, accused Anil was carrying battle axe, accused Harjinder was carrying gun and other accused persons were carrying swords. In respect of accused Harjinder, this witness has reiterated that he was simply standing on the spot carrying a gun but did not use it at anyone. There appear to be minor contradictions and omissions in paragraph-9 but they are insignificant in nature. Johan (PW -9) yet another eyewitness to the incident has duly supported the case of the prosecution and has stated that in presence of Anjori, Dhruvdas, Naresk Devlal the accused/appellants came to the place of incident and committed murder of Kal1ikram and Punitram. While describing the role of each accused/appellant in Court after indicating towards accused Jashwant, Ramchander and Anil he has stated that they assaulted deceased Kartikram and further indicating towards accused Harjinder, he has stated that he was simply standing there carrying a gun. There appear to be minor contradictions and omissions in paragraphs-7, 9, 13 and 16 but they are insigniticant in nature. Anjori (PW -12) - eyewitness to the incident has supported the case of the prosecution and stated that after reaching the spot on tractor, accused Naresh assaulted Ramesh (PW-1), Punitram and Kartikram with battle axe and sword. He has given detailed account of the manner in which the incident of assault took place including who assaulted whom and with what. There appear to be minor contradictions and omissions in paragraphs-5, 6, 11, 13 and 15 but they are insignificant in nature. Kallu Singh Chouhan (PW -3) is the witness to seizure made under Ex.P-3, P-5 and P-6 by which sword and clothes were seized from accused Jashwant and battle axe and clothes from accused Anil. Ferha (PW-5) and Firanta Thakur (PW-6) are the witnesses to seizure of tractor made under EX.P-7. Naresh (PW-10) and Devlal (PW-11) have not supported the case of the prosecution and have been declared hostile. Ferha (PW-5) and Firanta Thakur (PW-6) are the witnesses to seizure of tractor made under EX.P-7. Naresh (PW-10) and Devlal (PW-11) have not supported the case of the prosecution and have been declared hostile. Shushil (PW-13) and Mutturam (PW-14) are the witnesses to inquest notice Ex. P-11 and inquest itself Ex. P-12 in respect of deceased Punit Ram and Ex. P-13 and P-14 in respect of Kartik Ram. He is also the witness to seizure of plain and blood stained soil from near the body of Kar1ik Ram vide Ex. P-15 and from near the body of Punit Ram Ex. P-16. Dr. N.K. Tiwari (PW-15) is the witness who conduced postmortem examination on the body of deceased Punit Ram and gave his report Ex. P-17 describing the injuries noticed by him as under:- 1. 4" x 2" x 1½" at middle (15") situated over right side of neck. 2. 3"x 1/2” x bone deep over upper 1/2 of scapula placed transversely. 3. 3"x ½ 'x bone deep over right parietal region 2.5" above tragus of ear placed obliquely. 4. 1.5"x 1/6"x skin deep over lower 1/3 of right side of back placed vertically. 5. 1.5"x 1/6"x skin deep over lower 1/3rd of left side of back placed vertically. 6. 4"x 1/3"x 1/3" over left scapular region placed vertically. According him, cause of death of Pun it Ram was shock due to haemorrhage. This witness also medically examined Ramesh (PW-1) and found following injuries on his body vide Ex. P-18 : 1. Incised wounds 1" x skin deep x ¼" at middle over the surface of left arm below shoulder joint. 2. Incised wound 3" x skin deep x ¼" at middle surface of left forearm, 3" below elbow joint. 3. Abrasion 1.5" x ¼" over right wrist joint. 4. Incised wound 1.5" x bone deep. Prakash Singh Thakur (PW-16) is the Patwari who prepared spot map Ex. P-2. Pramod Shandilya (PW -17) is the Tehsildar who issued caste certificates Ex. P-23 and P-24 but has not stated anything specific against any of the accused persons. Lekha Banjare (PW -18) and Rohit Kumar (PW -19) have not supported the case of the prosecution and have been declared hostile. Dr. A.M. Shrivastava (PW-20) is the witness who conducted postmortem examination on the body of deceased Kartik Ram and gave his report Ex. P-23 and P-24 but has not stated anything specific against any of the accused persons. Lekha Banjare (PW -18) and Rohit Kumar (PW -19) have not supported the case of the prosecution and have been declared hostile. Dr. A.M. Shrivastava (PW-20) is the witness who conducted postmortem examination on the body of deceased Kartik Ram and gave his report Ex. P-32 describing the injuries noticed by him which are as under: 1. Incised wound situated over neck 3" measuring 6"x4x31/2" horizontally placed left to right. 2. Incised wound above left shoulder joint of 41/2 x 21/2 x 1/2. 3. Below I No.2 linear abrasion presents haemorrhage. 4. Below right scapula 81/2, left to right direction 5. Over buttock 9" linear abrasion left to right 6. Left hip incised wound 1 x 1/2 x 1/2" obliquely medially 7. Inner aspect of left thigh 1 1/2 x 1/2 x 1/2 8. Left forearm cut, left hand detached with 3" long distal part of left forearm. Cause of his death according to this witness was shock due to haemorrhage. D.S. Rathore (PW-21) is the investigating officer who has duly supported the case of the prosecution. This witness has admitted the fact that no test identification parade was held in respect of accused/appellant Harj inder nor any seizure was made from him. He has further admitted that while lodging the report Ramesh (PW-1) had not disclosed the name of accused Harj inder as one of the assailants and likewise even the other eyewitnesses to the incident have not disclosed his name at the time of recording of their case diary statements. Shyam Sundar Sharma (PW-22) who at the relevant time was posted as Station House Officer in police station Bemetra had done initial part of the investigation. This witness also prepared map Ex. P-37. R.P. Sahu (PW-23), Kesendra Singh (PW-24), Prabhakar Singh Rajput (PW-25) and Gangadhar Chandrakar (PW -26) are the witnesses who assisted in the initial investigation. Gopal Singh Rajput (PW-27) is the photographer who took photographs of the spot has duly supported the case of the prosecution. D.P. Mishra (PW-28) is the witness who recorded FIR Ex. P-1 and recorded the merg Ex. P-59 with respect to death of Punit Ram and Ex. P-60 with respect to that of Kartik Ram. Dr. More (PW-29) is the eye specialist who attended injured Ramesh (PW -1) when he was brought to District Hospital, Durg. D.P. Mishra (PW-28) is the witness who recorded FIR Ex. P-1 and recorded the merg Ex. P-59 with respect to death of Punit Ram and Ex. P-60 with respect to that of Kartik Ram. Dr. More (PW-29) is the eye specialist who attended injured Ramesh (PW -1) when he was brought to District Hospital, Durg. Dr. PC. Deshmukh (PW-30) is the witness who attended injured Ramesh in District Hospital and noticed injuries on his body. SR Pathare (DW -1) who at the relevant time was posted as Inspector in police station, Bemetara has stated that on the complaint made by the accused persons, he recorded the statements of Anil Jaat, Jashwant Jaat, Sushil Jaat and Kartik ram and registered a case against Kartik, Ramesh and Punit under Sections 341, 294, 506-B and 427 IPC. He has also proved relevant documents EX.D-8 and D-9. 12. Before forming an opinion as to the guilt or otherwise of the accused/ appellants after appreciating the evidence of the witnesses, this Court feels it apposite to take a note of the legal provision and certain judicial pronouncements on the issue involved in this case. Section 149 IPC reads as under:-' "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." Thus, from the above legal provision, it is crystal clear that Constitution of unlawful assembly is a question of fact and the prosecution is required to prove constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons have formed the unlawful assembly or joined in unlawful assembly having its common object for commission of the aforesaid offence. Mere presence as a stranger, by-passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence. 13. Mere presence as a stranger, by-passer or gathered on the spot to see quarrel or the incident would not make the person liable for formation of unlawful assembly or liable for the commission of offence. 13. While dealing with the question of formation of unlawful assembly, the Apex Court in the matter of Chandra Bihari Gautam & Ors. Vs. State of Bihar JT 2002 (4) 62 has held that unlawful assembly may be constituted at any moment and even assembled of accused, but the existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. Para 6 of the said judgment reads as under: "6. It has been argued alternatively that even if the occurrence is held to have taken place in the manner alleged by the prosecution and the accused persons were seen on the spot, they cannot be convicted and sentenced as the prosecution allegedly failed to establish the accused persons. Section 149 is an exception to the criminal law whereunder a person can be convicted and sentenced for his vicarious liability only on proof of his being a member of the unlawful assembly, sharing the common object, notwithstanding as to whether he had actually participated in the commission of the crime or not. Common object does not require prior concert and a common meeting of minds before the attack. An unlawful object can develop after the accused assembled. The existence of the common object of the unlawful assembly has to be ascertained in the facts and circumstances of each case. It is true that the mere presence of the accused is not sufficient to hold them guilty for the sharing of common object as the prosecution has to further establish that they were nor mere by-standers but in fact were sharing the common object. When a concerted attack is made by a large number of persons, it is often difficult to determine the actual part played by each of the accused but on that account, for an offence committed by a member of the unlawful assembly in the prosecution of the common object or for an offence which was known to be likely to the committed in prosecution of the common object, persons provide to be members cannot escape the consequences of arising from the doing of that act which accounts to an offence. There may not be a common object in a sudden fight but in a planned attack on the victim, the presence of the common object amongst the persons forming the unlawful assembly can be inferred." While dealing with the same question, the Apex court in the matter of Pandurang Chandrakant Mhatre Vs. State of Maharastra, reported in the (2009) 10 SCC 773 has held that 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 the nature of assembly, arms carried by members, and behaviour of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code. While dealing with the same question, the Apex Court in the matter of Masalti Vs. State of U.P. reported in AIR 1965 SC 202 has held in para 17 as under "17. ........... What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and her entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, an entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case 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 by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly." While dealing with the same question, the Apex Court in the matter of Sherey Vs. State of UP reported in 1991 Supp. State of UP reported in 1991 Supp. (2) SCC 437, has held in para 4 as under : "4. ........ But when there is general allegation against a large number of persons the court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom over acts are attributed." 14. Having come across with the question of need of overt act or active participation of member of unlawful assembly, the Apex Court in the matter of Lalji & Others Vs. State of U.P. 1989 (1) SCC 437 has held that once formation of unlawful assembly is established, then no overt act or active participation of any member of unlawful assembly is required and mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act is sufficient to constitute offence. Paras 8 and 9 of the said judgment reads as under: "8. Section 149 IPC provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly is guilty of that offence. As has been defined in Section 141 IPC, an assembly of five or more persons is designated an "Unlawful Assembly", if the common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth", and "Fifth" of that section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly or continues in it, is said to be a member of an unlawful assembly. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that be did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to' be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." 15. While deciding the question of intention/common object of unlawful assembly, the Apex Court in the matter of State of UP. Vs. Dan Singh and Others, has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them. An assembly which is initially lawful may subsequently become unlawful. While deciding the question of intention/common object of unlawful assembly, the Apex Court in the matter of State of UP. Vs. Dan Singh and Others, has held that intent of members of assaulting party can be gathered from number and nature of injuries and arm used by them. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 of the said judgment reads as under : "30. From the aforesaid facts, as found by the High Court, let us examine whether there existed any unlawful assembly and what was its common object. It is possible that there was no unlawful assembly in existence at the time when the "doli" was stopped. Nevertheless as per the evidence of all the eyewitnesses, a large number of villages had gathered there and they had with them lathis and sticks. According to the explanation of 141 IPC an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of UP. 2006 (l) MPLJ 51 "that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has been envisaged in the explanation to Section 141 IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village who house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evidence that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly become unlawful when the riot started from Khima Nand was injured. All the eyewitnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started by blows from lath is, sticks and stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object. 31. It was sought to be contended that there is nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were fourteen corpses. It is only those members of the marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, is that there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent." 16. While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Apex Court in the matter of Gangadhar Behera and others Vs. State of Orissa 2002 (8) SCC 381 , has held that evidence relating to common object generally not available and same has to be gathered from act committed and result therefrom. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment reads as under:" 22. Likewise once assembly is formed, then overt act of any member of assembly is not assembled and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment reads as under:" 22. Another plea which was emphasized relates to the question whether Section 149 IPC has any appreciation for fastening the 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. 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 an unlawful assembly, it cannot be said that he is a member of 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"? 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. Members of an unlawful assembly may have community of object up to a 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. 23. "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 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 sometime thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the curse of incident on the spot eo instanti. 24. 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 a 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 or before or after the scene of incident. 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 or before or after the scene of incident. The word "knew" used in the second branch 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. 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, offences committed in prosecution of the common object would be generally, if not always, within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda Vs. State of Mysore.)" In the light of law as propounded by the Apex Court in the aforesaid cases for constitution of unlawful assembly, five or more than five members are required their common objects must be for commission of the offence as envisages in Section 141 of the Indian Penal Code. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. An assembly constituted lawful may be converted into unlawful assembly at any moment. Normally the evidence relating to common object of unlawful assembly is not possible. It may be inferred from the act committed by the unlawful assembly and result of such act once it is proved that unlawful assembly has been constituted, then any overt act or active participation of any member of unlawful assembly is not necessary. All members would be liable for the commission of offence or the act committed by any member of unlawful assembly in accordance with Section 149 of the Indian Penal Code. Further, in the matter of Ramesh and others Vs. State of Haryana 2011 (2) CGLJ 280 (SC) "9. We do not find any substance in the submission of the learned counsel. In our opinion the common object of an unlawful assembly has to be gathered from the nature of the assembly, arms possessed by them and the behavior of the assembly at or before the occurrence. It is an inference which has to be deduced from the facts and circumstances of each case. To attract the mischief of Section 149 of the Indian Penal Code, it is not necessary that each of the accused must commit some illegal overt act. When the assembly is found to be unlawful and if offence is committed by any member of the unlawful assembly in prosecution of the common object, every member of the unlawful assembly shall be guilty of the offence committed by another member of the assembly. It has to be borne in mind that an assembly which is not unlawful when assembled may subsequently become an unlawful assembly. In the present case there is overwhelming material to show that the appellants variously armed, including the fire arms assembled at one place and thereafter came to the place of occurrence and started assault together and when protested by the deceased, one of the members of the unlawful assembly shot him dead and some of them caused injury by fire arm, gandasa, lathi, etc. to others. All of them have come and left the place of occurrence together. to others. All of them have come and left the place of occurrence together. From what has been found above, there is no escape from the conclusion that appellants were the members of the unlawful assembly and offences have been committed in pursuance of the common object and hence, each of them shall be liable for the offence committed by any other member of the assembly. In our opinion, the trial court correctly held them guilty with the aid of Section 149 of the Indian Penal Code, which has rightly been affirmed in appeal by the High Court. 10. The view which we have taken finds support from the decision of Chandra Bihari Gautam and others Vs. State of Bihar, in which it has been held as follows : "8. Section 149 has two parts. First part deals with the commission of an offence by a member of an unlawful assembly in prosecution of the common object of that assembly and the second part deals with the liability of the members of the unlawful assembly who knew that an offence was likely to be committed in prosecution of the object for which they had assembled. Even if the common object of the unlawful assembly is stated to be apprehending Nawlesh Singh only, the fact that the accused persons had attacked the house of complainant at the dead of night and were armed with deadly weapons including the guns, and used petrol bombs, proves beyond doubt that they knew that in prosecution of the alleged initial common object, murders were likely to be committed. The knowledge of the consequential action in furtherance of the initial common object is sufficient to attract the applicability of Section 149 for holding the members of the unlawful assembly guilty for the commission of the offence by any member of such assembly. In this case the appellants, along with others, have been proved to have formed an unlawful assembly, the common object of which was to commit murder and arson and in prosecution of the said common object they raided the house of the informant armed with guns and committed offence. The courts below have, therefore, rightly held that the accused persons formed an unlawful assembly, the common object of which was to commit the murder of the informant and his family members and in prosecution of the said common object six persons were killed. The courts below have, therefore, rightly held that the accused persons formed an unlawful assembly, the common object of which was to commit the murder of the informant and his family members and in prosecution of the said common object six persons were killed. The appellants were also proved to have hired the services of some extremists for the purposes of eliminating the family of the complainant." 17. Minute examination of the evidence available on record goes to show that except accused Harjinder, all the accused/appellants have committed the murder of Kartikram and Punitram apart from causing injury to Ramesh (PW-1). Of course there are minor contradictions and omissions in the statements of the eyewitnesses but as these witnesses remained very firm on material particulars, such contradictions and omissions are insignificant and required to be ignored. True it is that in the FIR individual role of each of the accused/ appellants has not been assigned by Ramesh (PW -1) but relevant point to be noted is that just after one hour of the incident the FIR was lodged by Ramesh (PW-1) where his father and brother were brutally murdered by the accused/ appellants. Since the time gap between the incident and lodgment of the report is so short and that the lodger of the report had lost his brother and father in the incident, possibility of he being terrified and mentally unstable while stating the things before the police cannot be ruled out. Moreover, the manner in which the accused/appellants had assaulted the deceased persons and the victim as well when they were simply sitting near the village pond speaks volumes against them. Though individual role has not been assigned in the FIR and the case diary statement by Ramesh (PW -1) yet he has categorically stated that all the persons reached the spot duly armed with deadly weapons and assaulted him, his brother and father. Even other eyewitnesses also stated in categorical terms that when they were sitting near the village pond, the accused/appellants came to the spot and opened an assault at the victims with deadly weapons. These witnesses have given a detailed account as to which accused assaulted with which weapon. Even other eyewitnesses also stated in categorical terms that when they were sitting near the village pond, the accused/appellants came to the spot and opened an assault at the victims with deadly weapons. These witnesses have given a detailed account as to which accused assaulted with which weapon. Though the case diary statements of these witnesses were recorded 2-3 days after the incident but on reading of case diary statements and the court statements one thing is apparent that the accused persons were , armed with deadly weapons and committed murder of Kartikram and Punitram apart from causing injury to Ramesh (PW-1). Though their court statements are somewhat different from the case diary statements yet when these witnesses were cross examined at length by the defence, they have given a description of each and every thing including the manner in which two deceased persons were done to death and one was injured. From the cross-examination of these witnesses, it also appears that they were subjected to some unnecessary questions by the defence counsels and therefore minor contradictions in their statements makes no difference in the case of prosecution. Eyewitnesses appear to be very natural who have assigned a particular role to each of the accused/appellants. Had it been a case of false implication, the eyewitnesses to the incident would not have confined themselves to the accused/appellants alone and could have implicated their other relatives as well but they have not done so and remained struck to their case diary statement, may be with minor contradictions and omissions. Merely on the basis of such minor contradictions, authenticity of the witnesses cannot be doubted. Most importantly, it emerges from the record that while the police had called the accused/appellants and Ramesh (PW-1) to the police station, the accused/appellants had gone there carrying swards with them which demonstrates that they had prior intention in their mind to commit the murder of Kartikram and Punitram. 18. So far as accused/appellant Harjinder is concerned, in the FIR his name has not been mentioned and except case diary statement of Ramesh (PW1), no other eyewitness has stated anything against him. Even assuming that this accused was present on the spot, all the eyewitnesses have categorically stated that he had not taken any active participation in commission of murder of two persons and was simply standing there. Even assuming that this accused was present on the spot, all the eyewitnesses have categorically stated that he had not taken any active participation in commission of murder of two persons and was simply standing there. Thus, taking the cumulative effect of he evidence of the witnesses into consideration, this Court is of the considered opinion that accused Harjinder is entitled for benefit of doubt. 19. As regards the appeal of Ramesh Kumar Tandon, the complainant herein, for enhancement of the sentence imposed on accused persons, there is no evidence on record to show that act of the accused persons was rarest of rare one and therefore, the sentence imposed by the Court below appears to be fully justified and needs no enhancement. Likewise, the injuries caused by the accused persons to Ramesh (PW-1) were opined by the doctor to be simple in nature and therefore, the conviction of accused persons for assaulting Ramesh under Section 324 IPC is just and proper and their act is not as such that ingredients of Section 307 IPC can be brought into play. 20. In the result, criminal appeals No.933/2010 and 286/2012 have no substance and they are hereby dismissed. Conviction and sentence awarded to accused/appellants Ramchander, Ajay, Naresh, Anil and Jashwant Singh slapped by the Court below are hereby affirmed. Criminal appeal No.07/2011 filed by accused/appellant Harjinder Singh deserves to be allowed and therefore, we do so. He is acquitted of all the charges levelled against him. He is on bail. His bail bonds shall continue for a period of 6 months from today in view of Section 437-A Cr.P.C. Acquittal appeal No.29/2011 filed by complainant being devoid of substance is liable to be dismissed and it is dismissed as such. Appeal Partly Allowed.