JUDGMENT Kalimullah Khan, J. 1.Government Appeal No. 1968 of 1982 under Section 378 Cr.P.C. (State of U.P. Vs. Kenchu & others) and Criminal Appeal No.1284 of 1982 under Section 374 Cr.P.C. (Kenchu & others Vs. State of U.P.) have been filed challenging the impugned judgment and order dated 11.5.1982 passed by the learned Sessions Judge, Jhansi in S.T. No. 170 of 1981 whereby he has convicted accused Chokhra under Section 302 I.P.C. for life imprisonment and under Section 201 I.P.C. to undergo for two years rigorous imprisonment. Both the sentences shall run concurrently whereas he has convicted accused Kenchu, Gotiram, Kishora and Rajoo alias Rajendra under Section 201 I.P.C. who were sentenced to undergo rigorous imprisonment for two years. However, they were acquitted from the charge punishable under Section 302 /149 I.P.C. 2. During the pendency of this criminal appeal accused Kenchu, Kishora, Chokhra, and Rajoo alias Rajendra have died and therefore, Government Appeal filed against them stood abated. Likewise, Criminal Appeal filed by Chokhra stood abated. The present judgment relates only to accused Gotiram. 3. Learned trial court has charged accused Chokhra under Sections 148 and 302 I.P.C. whereas accused Kenchu, Gotiram, Kishora and Rajoo alias Rajendra were charged under Sections 147 & 302/149 I.P.C. All the aforesaid five accused were further charged punishable under Section 201 I.P.C. 4. In brief the prosecution case is that on 3.8.1981 at about 9: 00 a.m. accused Kishora went to the house of complainant and asked his brother Ghanshyam to follow him upto cobbler's shop of Kenchu. Ghanshyam hereinafter called the deceased went with him upto the aforesaid shop of Kenchu. Accused Chokhra, Rajoo alias Rajendra, Gotiram and Kenchu were already sitting there. Prosecution witnesses Matadeen, P.W. 1 had also been there in connection with repairing of his shoes. 5. Accused Chokhra asked Ghanshyam to pay back his money. Ghanshyam denied his liability whereupon accused Chokhra caught hold of him and other accused including Gotiram also caught hold of Ghanshyam. In the meantime, accused Chokhra picked up Rapi, Exhibit Ka-1 (a cutting and stabbing weapon) from the shop of Kenchu and hit it at the neck of Ghanshyam. In the scuffle Kenchu sustained an injury in his hand between the thumb and index finger. In the meantime, accused Chokhra picked up Rapi, Exhibit Ka-1 (a cutting and stabbing weapon) from the shop of Kenchu and hit it at the neck of Ghanshyam. In the scuffle Kenchu sustained an injury in his hand between the thumb and index finger. Matadeen (P.W.1) continuously forbade them to assault the deceased but they turned a deaf ear to this request and then he rushed towards the house of Ghanshyam crying that Ghanshyam was being assaulted. On his hue and cry and also on the cry of Ghanshyam complainant Khachore Lal, hereinafter called the complainant, Durga Prasad, Smt. Beni wife of Ghanshyam rushed towards the scene of incident alongwith Matadeen. From near the house of Satoley they noticed that all the five accused were carrying the body of Ghanshyam and they threw it into the well lying at a distance of 20 or 30 paces from Satoley's house in mohalla Kohalupura and thereafter they took to their heels. By the time witnesses reached the well, Ghanshyam had sunk in the well. 6. Complainant inquired the details from Matadeen, who told them that there was some dispute in between the deceased and accused Chokhra on an issue of repayment of Rs.400/- by deceased to Chokhra. He narrated the entire incident to the complainant. 7. Khachore Lal, P.W. 3 lodged the oral report Exhibit Ka-9 at 9: 45 a.m. at the police station which was scribed by HC Amar Singh, P.W. 6 who registered the case in the general diary, the copy of which is Exhibit Ka-12. 8. S.I. Ayodhya Prasad Tiwari, P.W. 8 took the investigation. He reached at the spot, got the dead body of Ghanshyam recovered from the well and prepared the panchayatnama Exhibit Ka-17, Challan Laash Exhibit Ka-18, Photo Laash Exhibit Ka-19 and letters to the C.M.O. Exhibits 20 & 21at 11: 15 a.m. from the day of incident. The dead body was sealed and sent to mortuary through constable Babu Ram and Chowkidar Hardas which was subjected to post-mortem examination on 3.8.1981 at 3: 45 p.m. Duration of death was about 1/3rd day old. Trachea was found missing in 3rd ring. Blood mixed with fog were noticed. In the opinion of the doctor cause of death was shock and haemorrhage as a result of injury to Trachea and oesophagus. Trachea was found missing in 3rd ring. Blood mixed with fog were noticed. In the opinion of the doctor cause of death was shock and haemorrhage as a result of injury to Trachea and oesophagus. Following ante-mortem injuries were noticed at the person of deceased: - (i) Punctured wound, horizontal 1 ½ '' x ½ '' x 2 ½ '' on front of neck, right side, 1 ½ '' below the larynxial cartilage. 3rd ring of trachea was punctured. Oesophagus was cut. Wound was clean cut and parallel. (ii) Superficial incised wound 1 ½ '' x linear on the left side of neck, above injury no.1. (iii) Abrasion 1'' x ½ '' on the lateral side of left elbow, outer side. (iv) Abrasion 1'' x ¾ '' on the outer side of left knee. (v) Abrasion ½ '' x ½ '' on the front side of right knee. 9. After completing the investigation, I.O. submitted the chargesheet against all the five accused who were tried on the charges framed as stated above as they denied the charge and claimed their trial. 10. In order to prove its case prosecution examined Matadeen, P.W. 1, Dr. B.D. Mangal, P.W. 2, Khachore Lal, P.W. 3, Durga Prasad, P.W. 4, Pragi Lal, P.W. 5, Amar Singh, P.W. 6, Dr. V.M. Tiwari, P.W. 7 and S.I. Ayodhya Prasad Tiwari, P.W. 8. Out of aforesaid witnesses P.Ws. 1, 3 & 4 are the witnesses of fact. Pragi Lal, P.W. 5 is a witness of arrest of Kenchu accused and recovery of murder weapon Rapi at his pointing out. Rest of the witnesses are of formal nature. 11. All the accused were examined under Section 313 Cr.P.C. They denied the prosecution allegation, challenged the prosecution evidence and attributed their false implication in this case. 12. Gotiram accused stated that he has enmity with prosecution witness Matadeen. Before this incident of murder a report was lodged against Matadeen by Chokhra accused under Sections 504 & 506 I.P.C. wherein he was made a witness against Matadeen. He further stated that Matadeen is a history-sheeter. Apart from it Motiram had instituted a criminal complaint against him four days earlier to this incident wherein Matadeen was cited as a witness against him. As regards prosecution witness Durga Prasad, he stated that it was Durga Prasad, who had got Ghanshyam murdered. 13. Accused were called upon to enter into their defence. Apart from it Motiram had instituted a criminal complaint against him four days earlier to this incident wherein Matadeen was cited as a witness against him. As regards prosecution witness Durga Prasad, he stated that it was Durga Prasad, who had got Ghanshyam murdered. 13. Accused were called upon to enter into their defence. They examined Dr. Rama Mishra, Professor, Gynec Department, Medical College, Jhansi as D.W. 1 who deposed that on 1.4.1981 deceased Ghanshyam had brought his wife Smt. Beni for abortion and sterilization. She aborted her pregnancy of 3 or 3-1/2 months and sterilized her. She has proved bed head ticket prepared by Dr. Anita Tyagi. 14. Having heard learned counsel for the parties learned trial court convicted accused Chokhra under Section 302 I.P.C. and convicted all the five accused under Section 201 I.P.C. However, he did not record the finding of conviction against accused Kenchu, Gotiram, Rajoo alias Rajendra and Kishora under Section 302 /149 I.P.C. 15. Feeling aggrieved, State of U.P. has preferred Government Appeal against the acquittal of accused Kenchu, Gotiram, Rajoo alias Rajendra and Kishora under Sections 302/149 I.P.C. while all the five accused challenged the order of conviction and sentence awarded to them as stated above. 16. We have heard learned counsel for accused Gotiram and learned A.G.A. Perused the record. 17. Feeling aggrieved, State of U.P. has preferred Government Appeal against the acquittal of accused Kenchu, Gotiram, Rajoo alias Rajendra and Kishora under Sections 302/149 I.P.C. while all the five accused challenged the order of conviction and sentence awarded to them as stated above. 16. We have heard learned counsel for accused Gotiram and learned A.G.A. Perused the record. 17. Criminal Appeal has been preferred on the ground that the impugned judgment and order convicting and sentencing the appellants is against the weight of evidence on record and bad in law and in any case the sentence passed upon the appellants is too severe whereas Government Appeal has been preferred on the ground that the judgment and order of acquittal is illegal, erroneous and against the weight of evidence on record; the finding of learned trial court that Kenchu, Gotiram, Rajoo alias Rajendra and Kishora did not share the common object with accused Chokhra to commit the murder of Ghanshyam (deceased) is perverse and aforesaid finding is not borne out by the evidence on record; injury sustained by accused Kenchu which has been proved as Exhibit Ka-16 on record is sufficient to establish the fact that he had his perpetration into the crime of murder, the blood stained earth and the blood found on the crime weapon were human blood as noticed in the chemical and serologist report which further lend corroboration to the fact that deceased was murdered with the said weapon in the cobbler's shop of Kenchu. 18. A concise statement of the law on the power of High Court while dealing with government appeal filed against the judgment of acquittal had emerged after over half a century of evolution since Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227 (2) is to be found in para 42 of the Report in Chandrappa v. State of Karnataka (2007) 4 SCC 415 . The same may, therefore, be usefully noticed below: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (i.) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. The same may, therefore, be usefully noticed below: "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (i.) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (ii.) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (iii.) Various expressions, such as, ''substantial and compelling reasons', ''good and sufficient grounds', ''very strong circumstances', ''distorted conclusions', ''glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ''flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (iv.) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (v.) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court." 19. It is in the light of the above principles of law that reasoning and conclusions of the trial court will have to be analyzed by us so as to determine the correctness of the view taken by the learned trial court in the present case. To facilitate the aforesaid exercise the manner in which the trial court had arrived at its conclusions in the matter may be usefully noticed in the first instance. 20. Quite apart from the above, the High Court is required to see that unless there are substantial and compelling circumstance, the order of acquittal is not required to be reversed in appeal. 20. Quite apart from the above, the High Court is required to see that unless there are substantial and compelling circumstance, the order of acquittal is not required to be reversed in appeal. It has been so stated in State of Rajasthan Vs. Shera Ram alias Vishnu Dutta (2012) 1 SCC 602 . 21. Keeping in view the aforesaid legal position we have scrutinized the evidence on record and the findings recorded by learned trial court in the impugned judgment. 22. On the perusal of impugned judgment and order it transpires that learned trial court has recorded the finding of acquittal on following grounds (i) That from the evidence of P.Ws. 1, 2, 3 & 4 it is amply proved that the deceased was done to death prior to his carrying and throwing into the well. Dr. B.D. Mangal, P.W. 2 has clearly and categorically deposed that trachea and oesophagus of the deceased was cut and in that circumstance deceased was not able to cry and his instantaneous death is quite probable. All the witnesses on fact resiled from earlier stand taken during the course of investigation and also at the time of lodging the F.I.R. and stated during the course of their evidence in the trial court that at the time of being carried away and throwing in the well deceased was not speaking or crying. All the aforesaid witnesses on fact changed their previous statement recorded under Section 161 Cr.P.C. that deceased was crying in the way to the well and they stated that they could not assign any reason as to why the I.O. has mentioned such thing in their statement. The gist is that even the prosecution witnesses are of the view that deceased had died at spot. The doctor does not say that cause of death was drowning. (ii) That in the opinion of Dr. B.D. Mangal, P.W. 2 the cause of death was shock and hemorrhage as a result of injury to trachea and oesophagus. (iii) That complainant Khachore Lal, P.W. 3, Durga Prasad, P.W. 4 are not the witnesses of incident of murder. (iv) That Matadeen, P.W. 1 is a witness of inflicting injury with Rapi by accused Chokhra. (v) That medical evidence fully corroborates with the ocular testimony of these witnesses. (iii) That complainant Khachore Lal, P.W. 3, Durga Prasad, P.W. 4 are not the witnesses of incident of murder. (iv) That Matadeen, P.W. 1 is a witness of inflicting injury with Rapi by accused Chokhra. (v) That medical evidence fully corroborates with the ocular testimony of these witnesses. (vi) That chemical and serologist reports speak that human blood was noticed on Rapi and blood stained earth taken by the I.O. from the spot. (vii) That the alleged enmity of accused including accused Gotiram with Matadeen P.W. 1, star witness is not sufficient to hold him wholly unreliable witness. The only thing is that his evidence should undergo strict judicial scrutiny. The enmity suggested against him and his so called criminal antecedent is not sufficient to discard his testimony as a whole. (viii) Punctured wound, horizontal 1 ½ '' x ½ '' x 2 ½ '' on front of neck, right side, 1 ½ '' below the larynxial cartilage 3rd ring of trachea was punctured, oesophagus was cut, wound was clean cut and parallel and the other injury superficial incised wound 1 ½ '' x linear on the left side of neck, above injury no. 1 could very well be caused by Rapi as per the statement of the doctor (P.W. 2) who gave this statement after seeing the Rapi, the material exhibit. (ix) That the evidence of prosecution witness of fact are consistent and fully corroborated by the evidence of each other and supported by medical evidence. (x) That the discrepancies in the evidence of prosecution witnesses is but natural and they are minor in nature. (xi) That blood stained Rapi recovered from the shop of Kenchu at his pointing out as alleged by the prosecution is but natural especially when it was not carried away by either of the accused after the incident of murder in the shop and lastly (xii) That there is no evidence on record to show that remaining four accused Gotiram, Kenchu, Rajoo alias Rajendra and Kishora had shared the common object with accused Chokhra to commit the murder of Ghanshyam especially when Chokhra was not having any arm with him to commit the murder of deceased. All of sudden he picked up Rapi from the cobbler's shop of Kenchu where the presence of such type of weapon were inevitable. 23. All of sudden he picked up Rapi from the cobbler's shop of Kenchu where the presence of such type of weapon were inevitable. 23. On the basis of the aforesaid reasons and reasonings, finding of acquittal of accused Gotiram, Kenchu, Rajoo alias Rajendra and Kishora under Sections 302/149 I.P.C. was recorded by the learned trial court and since the charge against the accused Chokhra under Section 302 I.P.C. and charge under Section 201 I.P.C. framed against all the four accused were found proved, learned trial court recorded the finding of conviction of accused Chokhra under Section 302 I.P.C. and all the accused under Section 201 I.P.C. 24. Learned counsel for Gotiram has contended that prior to the incident of this murder main accused Chokhra had lodged a complaint under Sections 504 & 506 I.P.C. against Matadeen, P.W. 1 and others wherein Gotiram was cited as a witness. A criminal complaint was filed by Motiram against Gotiram and others four days before the incident of this murder wherein Matadeen was a witness against him. Therefore, there was a bad blood in between the parties and apart form it there were several other enmity in between the parties hence, a possibility of the false implication of Gotiram in this case at the instance of Matadeen, P.W. 1 cannot be ruled out. This is the main argument advanced on his behalf. 25. Learned counsel for appellant Gotiram has not challenged the date, time and place of incident of murder of Ghanshyam nor he has challenged the recovery of the dead body of Ghanshyam from the well in question. Homicidal death of Ghanshyam has also not been challenged by him. The place of incident has also not challenged by him. The use of Rapi in the incident is proved by Matadeen, P.W. 1 as well as by the chemical and serologist report as discussed in detail by the learned trial court in the impugned judgment and order. The medical evidence is fully corroborating the ocular testimony of P.Ws. 1, 3 & 4. Both the parties almost belong to the same caste and they are inter-related by blood as it has occurred in the evidence of witnesses of fact. Learned counsel for the accused Gotiram does not deny the aforesaid blood relation of the parties interse and their common caste. 1, 3 & 4. Both the parties almost belong to the same caste and they are inter-related by blood as it has occurred in the evidence of witnesses of fact. Learned counsel for the accused Gotiram does not deny the aforesaid blood relation of the parties interse and their common caste. There is nothing to discredit or disbelieve the veracity of the depositions made by P.W. 1, 3 & 4. F.I.R. is prompt having full details of the incident. All the accused are named in the F.I.R. with specific role. Promptness of F.I.R. lodged with 45 minutes of the incident by itself is sufficient to establish the fact that prosecution is not an outcome of concoction, fabrication, manipulation, manuring and afterthought. 26. Learned A.G.A. has submitted that all the accused caught hold of the deceased even prior to the assault made by accused Chokhra who subsequently picked up Rapi from the place of incident itself and inflicted it on the neck which is vital part of the body of the deceased and cut the trachea and oesophagus. Apart from it, another incised wound above the said injury in the presence of all these accused was caused by said Chokhra accused and, therefore, all of them are liable to be held guilty under Section 302 /149 I.P.C. and the learned trial court has erred in acquitting them from the charge punishable under Section 302 /149 I.P.C. Therefore, according to him, the impugned judgment and order deserves to be set aside upto the extent it pertains to the acquittal of accused Gotiram, Kenchu, Rajoo alias Rajendra and Kishora under Section 302 /149 I.P.C. However, he has not challenged the rest portion of the judgment, finding, reasons and reasonings recorded by the learned trial court. 27. Matadeen, P.W. 1 is a star witness of prosecution. He assigned the role to all the accused appellants including Gotiram. He deposed that Gotiram was already there in the cobbler's shop and the moment accused Kishora brought Ghanshyam there, Chokhra accused asked Ghanshyam to repay his cash. Ghanshyam denied any debt from him and refused to repay. Then Chokhra caught hold of him and thereafter all the remaining accused including Gotiram caught hold of him and then Chokhra after picking out Rapi from the shop of Kenchu assaulted at the neck of Ghanshyam. Ghanshyam denied any debt from him and refused to repay. Then Chokhra caught hold of him and thereafter all the remaining accused including Gotiram caught hold of him and then Chokhra after picking out Rapi from the shop of Kenchu assaulted at the neck of Ghanshyam. Further, he has assigned the role of taking/carrying and throwing the body of Ghanshyam into the well, against all the five accused. 28. Khachore Lal (P.W.3), complainant has deposed that he had seen accused Kenchu, Chokhra, Kishora, Gotiram and Rajoo alias Rajendra carrying the body of Ghanshyam towards the well. Kenchu and Chokhra had caught hold of his hands whereas one leg was caught hold of by Gotiram and other leg was caught hold of by Kishora. Rajoo alias Rajendra accused had caught hold of him with his waist and ultimately, all of them threw the body of Ghanshyam into the well. 29. Durga Prasad, P.W. 4 has deposed that while he was talking to Khachore Lal 7 ½ months back at 9: 00 a.m. the accused Kishora came and asked Ghanshyam to accompany him to the shop of Kenchu where Chokhra was sitting in order to settle the money dispute. Ghanshyam followed him. Soon after he heard the cries of Ghanshyam. Simultaneously, Matadeen came running towards his house and informed them that Ghanshyam is being assaulted whereupon this witness (Durga Prasad), Khachore Lal, Matadeen and wife of Ghanshyam rushed towards the house of Chokhra and when they reached at the house of Satoley, they saw accused Kenchu, Chokhra, Gotiram, Kishora and Rajoo alias Rajendra carrying the body of Ghanshyam towards north. Accused had caught hold of him with hands and leg. Accused Rajoo alias Rajendra had caught hold of him with his waste. Kenchu and Chokhra had caught hold of his hands. Gotiram and Kishora had caught hold of his legs. The witnesses intervened but accused threw Ghanshyam in Chamrauwa well and ran away towards West. Khachore Lal inquired from Matadeen about the details of the incident whereupon he stated that there was a hot talk on the issue of Rs.400/- in between Chokhra and Ghanshyam and subsequently, Gotiram, Kenchu, Raju alias Rajendra, Kishora accused caught hold of Ghanshyam and Chokhra picked up Rapi from the shop of Kenchu and assaulted Ghanshyam. In the scuffle Kenchu had also sustained injury in his hand. 30. In the scuffle Kenchu had also sustained injury in his hand. 30. There is no evidence on record that except Chokhra any other accused assaulted Ghanshyam at the cobbler's shop but there is evidence that after the death of Ghanshyam he was taken by all the accused upto Chamrauwa well wherein the body of Ghanshyam was thrown by them. Obviously, it could have been for the purpose of causing disappearance of evidence of offence or to screen offender Chokhra from legal punishment in the crime of murder of Ghanshyam. Kenchu had also sustained injury in his hand in the scuffle and the possibility that he sustained this injury when he was rescuing the victim from the clutches of Chokhra at his shop cannot be ruled out and after the incident of murder to avoid any kind of embarrassment these accused tried to disappear the evidence of murder. A detailed cross-examination has been made from all the aforesaid three prosecution witnesses on this point but nothing material could be fetched out to disbelieve this testimony on the issue of their act of disappearing the dead body by throwing it in the well which is a clear cut case to hold them guilty under Section 201 I.P.C. The finding recorded by the learned trial court to this effect does not suffer from any perversity or illegality. 31. Causing disappearance of evidence of offence, or giving false information to screen offender is punishable under Section 201 I.P.C. The first paragraph of Section 201 I.P.C. lays down the essential ingredients of the offence under Section 201 I.P.C. It must be proved by prosecution that an offence has been committed. Secondly, the accused must know or he had reason to believe that the offence has been committed. Thirdly, the accused must either cause any evidence of the commission of the offence to disappear or give any information respecting the offence which he knows or believes to be false. Fourthly, the accused must have acted with intention to screen the offender from legal punishment. To constitute an offence under Section 201 I.P.C., there must be disappearance of some evidence of the commission of an offence. The intention to screen the offender must be a primary and sole object of the accused. 32. Fourthly, the accused must have acted with intention to screen the offender from legal punishment. To constitute an offence under Section 201 I.P.C., there must be disappearance of some evidence of the commission of an offence. The intention to screen the offender must be a primary and sole object of the accused. 32. In the case in hand there is ample evidence on record that accused respondent Goti Ram had actively participated in the matter of causing disappearance of evidence of murder of Ghanshyam. He had full knowledge that Ghanshyam has been murdered by Chokhra and if the dead body is recovered accused would get legal punishment of the offence. 33. The incident of murder has taken place in his presence. The evidence of the witnesses on fact are worth reliable and inspire confidence of the court. Therefore, accused Goti Ram appears to have rightly been convicted under Section 201 I.P.C. Since, he had no intention or knowledge to commit the murder of Ghanshyam and he was not the member of an unlawful assembly the common object of which was to commit the murder of Ghanshyam, therefore, he has rightly been acquitted from the charge punishable under Section 302 /149 I.P.C. 34. Gotiram could not know that all of sudden Chokhra would pick up Rapi and would give fatal blow on Ghanshyam. Even if we believe for a moment that he had caught hold of Ghanshyam, that by itself is not sufficient to hold that he was knowing the fact that thereby he is facilitating accused Chokhra to pick up Rapi and commit his murder. It has come in the prosecution evidence that deceased had entered into the hot talk with Chokhra on the issue of repayment of Rs.400/- then the catching hold of by Chokhra followed by others including Gotiram could not be said to be necessarily to commit his murder. It can well be said that such catching hold was to ensure that he would not be allowed to go away from the spot without resolving or settling the dispute of the repayment of aforesaid alleged loan of Rs.400/- due against him which was allegedly earlier given by accused Chokhra. 35. It can well be said that such catching hold was to ensure that he would not be allowed to go away from the spot without resolving or settling the dispute of the repayment of aforesaid alleged loan of Rs.400/- due against him which was allegedly earlier given by accused Chokhra. 35. Section 149 IPC reads as under,"Every member of unlawful assembly guilty of offence committed in prosecution of common object.--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." 36. The above provision makes it clear that before convicting the accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were present would not be sufficient to prove common object. Section 149 IPC creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149 , a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, the essential ingredients of Section 141 IPC which defines 'unlawful assembly' must be established. 37. In Allauddin Mian v. State of Bihar (1989) 3 SCC 5 Hon'ble Supreme Court held: (SCC pp. 16-17, para 8) "8. ... Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same isre done in prosecution of the common object or isre such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of any one or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149 IPC." 38. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC. 39. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC. 39. In Rajendra Shantaram Todankar v. State of Maharashtra (2003) 2 SCC 257 Hon'ble Supreme Court has once again explained Section 149 and held as under: (SCC pp. 263-64, para 14) "14. Section 149 of the Penal Code 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 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. 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. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act.". 40. The same principles have been reiterated in State of Punjab Vs. Sanjiv Kumar (2007) 9 SCC 791 . 41. The aforesaid legal position has been followed by Hon'ble Supreme Court in Kuldip Yadav and others Vs. State of Bihar (2011) 5 SCC 324 . 42. Mere presence of accused Kenchu, Gotiram, Kishora and Rajoo alias Rajendra at cobbler's shop i.e. the place of incident is not sufficient to attract the rigour of Section 149 I.P.C. because the circumstances do not point out that accused Gotiram and three others had formed an unlawful assembly with main accused Chokhra to commit the murder of Ghanshyam or they had any knowledge that Chokhra would commit his murder. Even Kishora does not appear to have shared the common object to commit the murder of Ghanshyam. The aforesaid observation of this Court is based on the fact that there is no evidence on record to this effect. In this view of the matter the offence of murder of Ghanshyam does not appear to have been committed in prosecution of the common object of all the five accused nor there is evidence to hold that all the five accused had formed an unlawful assembly to commit the murder of Ghanshyam or being the member of an unlawful assembly, they knew the murder of Ghanshyam likely to be committed in prosecution of that object. Since, Chokhra was not a member of an unlawful assembly and there was no common object of any such assembly to commit the murder of Ghanshyam nor the members of the assembly had knowledge of likelihood of the commission of the offence in question in prosecution of the common object, the act of Chokhra committing murder of Ghanshyam cannot be safely attributed to Goti Ram accused with the aid of Section 149 I.P.C. and, therefore, accused Gotiram would not be vicariously liable for offence actually committed by Chokhra. 43. It is the duty of the Court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order to his just punishment is the collective crime of the society. While the collective crime has to be kept upper most in the mind, simultaneously, the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the wedlock of sentencing in respect of a criminal offence and the punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion of the Judge but the same has to be guided by certain principles. In Santa Singh vs. State of Punjab, (1976) 4 SCC 190 Hon'ble Bhagwai, J. (as his Lordship then was), adverted to the concept of proper sentencing and opined thus: "...... a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances --extenuating or aggravating -- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused." 44. The incident in question has taken place in the year 1981 and accused Gotiram was examined on 13.4.1982 under Section 313 Cr.P.C. when he was aged about 19 years. Now 32 years have elapsed and at this stage he must have been about more than 50 years and as per the statement made by learned counsel at the bar he has been in jail in this matter above six months. This may be a mitigating circumstance in the matter of awarding sentence to accused Goti Ram under Section 201 I.P.C. The charge framed under Section 302 /149 I.P.C. has not been proved against the respondent Goti Ram. The parties belong to the same village. There is nothing on record to show that the appellants had any criminal antecedents. Regard being had to the totality of the facts and circumstances we think it proper that awarded sentence of R.I. for two years under Section 201 I.P.C. be reduced to the period already undergone and to impose a fine of Rs.25,000/-. 45. Government Appeal No. 1968 of 1982 and Criminal Appeal No. 1284 of 1982 filed against the conviction of accused Gotiram under Section 201 I.P.C. are dismissed. However, the sentence imposed is modified to the extent that accused Gotiram is sentenced for the period already undergone and to pay a fine of Rs.25,000/- within a period of two months from today. In case of default of payment of fine he is to further undergo a sentence of six months. In case the appellant Gotiram deposits the amount of fine it shall be given to the L.Rs. of Ghanshyam preferably his wife Smt. Beni. 46. Let a copy of this judgment be provided to the learned C.J.M. concerned forthwith to ensure the compliance of the order, under intimation to the Registry of this Court within a reasonable time.