JUDGMENT V.M. Deshpande, J. 1. These three Criminal Appeals arise out of a judgment and order of conviction passed by the 3rd Ad hoc Additional Sessions Judge, Wardha dated 13.10.2005, convicting the appellants in these appeals, for the offences punishable under Sections 147, 148, 223, 337and 149 of the Indian Penal Code and they were directed to suffer imprisonment for a period of one month each on all counts and to pay fine of Rs. 500/- each on all counts, in default to suffer R.I. for a period of one months each on all counts. They are also convicted for the offence punishable under Sections 302, 307 and 149 of Indian Penal Code and they are sentenced for imprisonment for life each on all counts and pay fine of Rs. 5000/- each on both the counts, in default to suffer R.I. for one year on both the counts. 2. Criminal Appeal No. 577/2005 is preferred by accused no. 3-Leelabai Bawane, accused no. 4-Suresh Bawane, accused no. 6-Vijay Bawane. Criminal Appeal No. 593/2005 is preferred by accused no. 1 Ganesh Dayare, accused no. 2-Tejya @ Tejram Digore, accused no. 5- Zibal Dayare, accused no. 8-Ganpat Kumbhalkar. Criminal Appeal No. 26/2006 is at the instance of the original accused no. 9 Arun Bawane. 3. The prosecution case, as it was disclosed during the course of trial can be stated herein under: Hanumansingh Rajput (P.W. 14) was discharging his duties as day officer at Police Station, Wardha on 02.02.2003. That time Sudesh Meshram (P.W. 7), came to the police station and lodged his oral report. The same was reduced in writing. The oral report is at Exh. 81. The printed F.I.R. is at Exh. 82. Since the oral report lodged by Sudesh Meshram was disclosing commission of a cognizable offence, Hanumansingh Rajput (P.W. 14) registered an offence vide Crime No. 37/2003. 4. The first information report Exh. 82, discloses that on 01.02.2003 Municipal Council, Wardha dismantled the "otaas" at macchi market and marked the spaces for each shop. On 02.02.2003, Sunday, on allotted land, he along with others setup their respective shops. The first information report further states that at 1 O'clock in the noon, butchers also set up their mutton shop in the macchi market, resulting into altercation between the accused no. 6 Vijay and said butchers. At that time accused no. On 02.02.2003, Sunday, on allotted land, he along with others setup their respective shops. The first information report further states that at 1 O'clock in the noon, butchers also set up their mutton shop in the macchi market, resulting into altercation between the accused no. 6 Vijay and said butchers. At that time accused no. 1-Ganesh threw stone towards the maternal uncle of the first informant Shankar Shinde [deceased]. Immediately thereafter, accused no. 2-Tejya, accused no. 3-Leelabai, accused no. 4 Suresh and accused no. 5-Zibal came to the shop of Shankar Shinde [deceased]. At that time they were armed with bamboo sticks and they started assault on the deceased. Behind these accused persons, accused no. 6-Vijay, Praful Bawane [absconding accused] and Golya [juvenile in conflict with law], came armed with sattur and knife. That time, deceased left the shop and ran away. At that time accused no. 3-Leelabai exhorted that Upon that her three sons Vijay Bawane [A-6], Arun Bawane [A-9] and Zibal Dayare [A-5], Ganpat Ambulkar [A-8], Ganesh [A-1], and Leelabai herself chased the deceased Shankar. In the said process, the deceased fell down on the ground, that time accused no. 6-Vijay, Praful-the absconding accused, Golya-juvenile in conflict with law, opened assault by means of sattur and knife on Shankar. In the meantime, Anup Shinde (P.W. 2), Shridhar Shinde, Ganesh Satak, Rahul Pimpalkar and Sanjay Meshram ran to the rescue of Shankar. That time, police came there and therefore, all the assailants ran away from the spot. 5. The investigation of this crime no. 37/2003, was taken up by Hanumansingh Rajput (P.W. 14). He sent P.S.I. Gopalsingh Kuware (P.W. 15) to prepare panchnama of the spot of occurrence. Accordingly, Gopalsingh went to macchi market, itwara Bazar, Wardha. First informant-Sudesh Meshram (P.W. 5) showed the spot. Spot panchnama was drawn in presence of panchas, it is at Exh. 77. P.S.I. Gopalsingh, seized simple as well as blood mixed earth from two places under seizure panchnama Exh. 78. While the accused persons were in police custody remand, they made disclosure statements. Accused no. 6-Vijay made such disclosure statement in presence of panchas, Vijay (P.W. 12) and P.W. 8-Vithal Tulankar. The memorandum of statement is at Exh. 92. By the said time, Vijay (A-6) agreed to show the place, namely garbage at itwara bazaar, wherein he has concealed the weapon 'sattur'. Accused no. 6-Vijay made such disclosure statement in presence of panchas, Vijay (P.W. 12) and P.W. 8-Vithal Tulankar. The memorandum of statement is at Exh. 92. By the said time, Vijay (A-6) agreed to show the place, namely garbage at itwara bazaar, wherein he has concealed the weapon 'sattur'. Pursuant to the said statement, he led the police party along with the panchas and pointed out the place of garbage and he picked the weapon sattur from the said garbage. The said recovery panchnama is at Exh. 95. The said sattur is Article-6. 6. Similarly, according to the investigating officer, the other accused persons namely Tejram (A-2), Zibal (A-5), had shown the places where the bamboo sticks and lathis were kept and those were recovered at their instance. 7. The investigating officer also seized the clothes of the accused persons by drawing appropriate seizure panchnama. Their blood samples were also collected. The investigating officer also sent the muddemal property to the Chemical Analyzer under his requisition letter Exh. 123. After the completion of the entire investigation, the investigating officer was of the view that sufficient material is collected against the accused persons and therefore, he filed charge sheet in the Court of law. The learned Chief Judicial Magistrate, Wardha in whose court, charge sheet was presented found that the offences are exclusively triable by the Court of Sessions and therefore, he passed a committal order. 8. The learned 3rd Ad hoc Additional Sessions Judge, Wardha on whose file Sessions Trial No. 26/2003 was allotted, framed a charge against the accused persons. Needless to mention that the trial of Praful was separated since he was absconding. Similarly Rahul @ Golya, being juvenile in conflict with law, was tried before the competent Court. The learned 3rd Ad hoc Additional Sessions Judge, framed charge against the present appellants for the offence punishable under Sections 147, 148, 302 read with Section 149, Section 307 read with Section 149, Section 323 read with Section 149 and Section 337read with Section 34 of Indian Penal Code. All the appellants/accused abjured their guilt and claimed for their trial. 9. In order to bring home the guilt of the appellants, the prosecution has examined in all 15 witnesses. The statement of all the appellants under Section 313 of Criminal Procedure Code were recorded. Two defence witnesses were also examined on behalf of the appellants. 10. All the appellants/accused abjured their guilt and claimed for their trial. 9. In order to bring home the guilt of the appellants, the prosecution has examined in all 15 witnesses. The statement of all the appellants under Section 313 of Criminal Procedure Code were recorded. Two defence witnesses were also examined on behalf of the appellants. 10. After a full dressed trial, the learned Judge of the Court below has convicted all the appellants/accused, as observed in the opening paragraph of this judgment. The learned Judge convicted all the appellants/accused persons for the offence punishable under Sections 302 and 307, primarily with the aid of Section 149 of the Indian Penal Code. 11. We have heard Shri Avinash Gupta, the learned Counsel for the appellants in Criminal Appeal No. 577 and 593 of 2005. Appellant-Arun in Criminal Appeal No. 26/2003, is represented by Shri R.M. Daga, Advocate. Shri S.M. Ukey, the learned Additional Public Prosecutor represented the State in all these three appeals. 12. We have heard both the counsel for the appellants and the learned A.P.P. With their able assistance in order to re-appreciate the prosecution case, we have gone through the entire record and proceedings in minute detail. 13. Primary submission of the learned counsel Shri Avinash Gupta, for the appellants, before this Court is that the learned Court below has committed a mistake in convicting all the appellants/accused persons with the aid of Section 149 of Indian Penal Code. According to him, there is no concrete evidence to show that the unlawful assembly was having any common object and the offence is committed to accomplish the said object. He submitted that the evidence of the prosecution witnesses to great extent are contradictory to each other, and therefore, it will be not be safe to rely upon such evidence. The learned counsel further submitted that the Court below has committed a mistake while discarding the evidence of defence witness no. 1 who was a Naib Tahsildar. According to him, the reading of the judgment would reveal that his evidence is discarded only on assumptions and presumptions. He closed his arguments by making a prayer for allowing the appeals. The learned counsel Shri R.M. Daga, has adopted the arguments of Shri Avinash Gupta. 14. Per contra, the Additional Public Prosecutor has submitted that cogent and consistent evidence is available on record to convict all the appellants. He closed his arguments by making a prayer for allowing the appeals. The learned counsel Shri R.M. Daga, has adopted the arguments of Shri Avinash Gupta. 14. Per contra, the Additional Public Prosecutor has submitted that cogent and consistent evidence is available on record to convict all the appellants. He submitted that the learned Judge has considered every aspect very minutely and thereafter has reached to the conclusion. He, therefore, prays for dismissal of appeals. 15. The first question that has to be decided is-What is the nature of death of Shankar ? Dr. Anirudha Nimgade (P.W. 3), was a Junior Medical Officer at CIIMS Hospital at Nagpur. On 02.02.2003, patient Shankar Shinde was brought to the said hospital in very serious condition. Dr. Anirudha Nimgade attended the said patient. He noticed that his condition was serious. His blood pressure and pulse were not recordable. Though all emergency treatment was given to the said patient, there was no sign of his heart beat, therefore, he declared the patient as 'dead'. He declared Shankar as dead at 5.30 p.m. He had taken notes in respect of the treatment given to the said patient. He proved contents of those notes. The said note is at Exh. 67. When Dr. Pradeep Dixit (P.W. 10), was attached to the Government Medical College as Assistant Professor on 02.02.2003, he received the dead body of Shankar Shinde. The said dead body was brought by the police, and it was brought from CIIMS Nagpur. He performed post mortem examination. He noticed following injuries- (1) Chop wound left forehead 2 cm. left of midline 2 x 1 cm. bond underneath regularly cut. (2) Chop wound left frontal region 1 cm. behind injury no. 1, 2 x 1 cm. scalp deep. (3) Chop wound left parietal region across midline, 7 cms. Right of parietal eminence, 2 x 1 cm. scalp deep. (4) Chop wound left fromto temporo occipital region, extending from point 2 cms. behind lateral angle of eyebrow to a point in occipital region 1 cm, and left of midline and 3 cm. away from external occipital protuberance, 23 x 2 cm x cavity deep, underneath vault fractured into pieces with brain matter oozing out, adherent blood clots seen. (5) Chop wound left temporo occipital region, across injury no. behind lateral angle of eyebrow to a point in occipital region 1 cm, and left of midline and 3 cm. away from external occipital protuberance, 23 x 2 cm x cavity deep, underneath vault fractured into pieces with brain matter oozing out, adherent blood clots seen. (5) Chop wound left temporo occipital region, across injury no. 4, intersecting of at a distance of 5 cms from front end and extending upto a point in left parietal region 4 cms of left of midline. 7 x 2 cms, cavity deep with fracture of vault (clean cut) (6) Chop wound left fromto temporo region extending from point 2 cms. medial to front end of injury no. 4 to a point in left parietal region 2 cms below parietal eminence crossing injury no. 5 at a distance of 2 cms from its lower and 18 x 3 cms cavity deep with clean cut left of vault underneath. (7) Chop wound left temporo region, 1 cm. medial to injury no. 4, 6 cms above tip of mastoid process at a distance of 8 cms from front end of injury no. 4, 3 1/2 cms scalp deep. (8) Chop wound left parietal region extending from point 2 cms. in front of parietal eminence to point 6 cms behind parietal eminence, 5 cms left of midlines 8 x 2 cm scalp deep. (9) Chop wound left parietal region 1 cm medial to injury no. 8. 3 x 2 cm with flap formation on right side. (10) Chop wound left lumber region 2 cms above posterior iliac crest [highest point] 3 x 2 cm, muscle deep with linear abrasions at both ends extending upto distance of 3 cms on each side. (11) Linear abrasion 1 cm above highest point of iliac creast 4 cm long parellel to injury no. 10 brownish red. (12) Chop wound left arms 8 cms above elbow on back, joint 1 x 1/2 cm, muscle deep. (13) Linear abrasion left arm on back, 10 cms above elbow joint, 3 cm long oblique brownish red. (14) Chop wound left forearm outerside in mid 1/3rd region 5 cms long brownish red. (15) Chop wound left infraclavicular region 3 cm x 1/2 cm skin deep. (16) Chop wound right forearm back 10 cm. below elbow joint 4 x 2 cms muscle deep, oblique. (17) Chop wound on back of right wrist, 6 x 3 cms. (14) Chop wound left forearm outerside in mid 1/3rd region 5 cms long brownish red. (15) Chop wound left infraclavicular region 3 cm x 1/2 cm skin deep. (16) Chop wound right forearm back 10 cm. below elbow joint 4 x 2 cms muscle deep, oblique. (17) Chop wound on back of right wrist, 6 x 3 cms. undermear both bones cut. (18) Chop wound back of right hand 1st matacarpal area 2 x 1/2 cm. muscle deep. (19) Stab injury right knee inner side 2 x 1/2 cm x 2.5 cms deep, vertical internal direction from left to right below upwards, margins contused. (20) Abrasion left shin mid 1/3rd 3 x 1/2 cm brownish red. On internal examination he found multiple fracture of vault of skull left parieto temporal region with displacement of fracture segment. He also noticed extra-dural haemotama left frontal region about 25 C.C. of blood clots, dark red. He also noticed subdural haemorrhage all over left cortical region and at base and about 250 C.C. of blood and blood clots present. He also noticed laceration of cortex in temporal region with loss of anatomical configuration in left side brain matters oozing out from fracture site adherent blood clots present. According to Dr. Dixit, the probable cause of death was head injury. He opined that the injuries mentioned as external injuries were ante mortem injuries. He also gave opinion that all the internal injuries mentioned in column no. 19 of his post mortem report correspond with the injury on the scalp mentioned in column no. 17. He proved the post mortem report, which is at Exh. 88. According to Doctor, all the injuries, except injury Nos. 11, 13, 19 and 20, are possible by sharp cutting and heavy object. Though the Doctor was available for the cross examination, his cross examination would reveal that infact there was no challenge at all to the testimony of Dr. Dixit. In view of the evidence of Dr. Pradeep Dixit and the injuries which he has noticed while conducting post mortem, there is no doubt in our mind to record a finding that Shankar Shinde died homicidal death. 16. The next important question consequent upon reaching to the aforesaid conclusion is, that as to whether all the appellants are liable for conviction for the offence punishable under Section 302. 17. Apart from the evidence of P.W. 3 Dr. 16. The next important question consequent upon reaching to the aforesaid conclusion is, that as to whether all the appellants are liable for conviction for the offence punishable under Section 302. 17. Apart from the evidence of P.W. 3 Dr. Nimgade and P.W. 10-Dr. Dixit, to bring home the guilt of the appellants, the prosecution has examined as many as 13 witnesses. They can be categorized as under: (A) EYE WITNESSES: (1) P.W. 2-Anup Shinde. (2) P.W. 5-Sanjay Meshram. (3) P.W. 7-Sudesh Meshram. (4) P.W. 13-Kishor Gujar. (B) PANCH WITNESSES: (1) P.W. 1-Vasant Bondre. (2) P.W. 6-Kishore Khairkar. (3) P.W. 9-Sunil Bhure. (4) P.W. 11-Namdeo Mankar. (5) P.W. 8-Vithal Tulankar. (6) P.W. 12-Vijay Khairkar. (C) WITNESSES WHO MET DECEASED PRIOR TO INCIDENT: (1) P.W. 4-Jagdish Tarachandi. (D) INVESTIGATING OFFICERS: (1) P.W. 14-Hanumansingh Rajput. (2) P.W. 10-Gopalsingh Kuware. 18. In the present case, all the accused persons are convicted by the learned trial Court with the aid of Section 149 of the Criminal Procedure Code. The object of Section 149 is not intended to subject a member of a unlawful assembly to punishment for several offence which is committed by one of its members during the time they are engaged in the prosecution of common object. It is divided into two parts-(1) an offence committed by a member of unlawful assembly in prosecution of a common object of that assembly, and (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. In order to bring the case within the first part, the act must be one, which upon the evidence appears to have been done with a view to accomplish the common object. Keeping this principle in mind, we will have to evaluate the evidence of prosecution witnesses. 19. P.W. 7-Sudesh Meshram is the first informant. Deceased Shankar was his maternal uncle. P.W. 2-Anup Shinde, is nephew of the deceased. P.W. 5-Sanjay Meshram is real brother of P.W. 7-first informant Sudesh Meshram. Thus, these three eye witnesses are not only related to each other, but, they are close relative of the deceased Shankar Shinde. Merely because the witnesses are having close acquittance and/or the close relative, that by itself, their evidence need not be discarded, nor their evidence should be viewed with suspicion. However, the Courts must take care while evaluating their evidence. Merely because the witnesses are having close acquittance and/or the close relative, that by itself, their evidence need not be discarded, nor their evidence should be viewed with suspicion. However, the Courts must take care while evaluating their evidence. The courts must also seek corroboration from the other independent witnesses or from the circumstances, since the exaggeration on the part of the close relative cannot be ruled out. 20. The first information report discloses that initially an altercation took place between accused Vijay (A-6) and butchers. It states that accused-Ganesh Dayare ((A-1) pelted stones on the deceased. Thereafter, Accused Leelabai (A-3), Suresh (A-4), Zibal (A-5) and Tejya (A-2) went to the shop of Shankar and they assaulted Shankar and Anup with lathis. The first informant deposes from the witness box that accused Golya, Praful and Vijay went to the shop of the deceased Shankar with deadly weapons-sattur and knife. At that time Shankar ran away from his shop. His evidence would reveal that, at that time accused Leelabai exhorted to kill Shankar. Upon that Leelabai's three sons ran after Shankar. In the process of running, Shankar fell down and at that time accused Vijay, Praful, Golya gave sattur blows. 21. Anup Shinde's evidence would reveal that Ganesh, Zibal, Gopal, Suresh, Leelabai and Golya pelted stones at Shankar and Anup. Consequent upon which Anup Shinde received injuries on his hand, leg and back. P.W. 2-Anup Shinde's evidence further reveal that thereafter 5 minutes later, Vijay, Suresh and Praful came with sattur. Golya came with rod; Leelabai with iron pipe and they ran after him. His evidence further reveals that somebody gave blow on his neck from behind and thereafter accused Vijay, Suresh and other persons assaulted deceased Shankar. It is his evidence that during the course of attack he received injuries on right side of the chest. 22. While P.W. 5 Sanjay Meshram deposes from the witness box that when he was present in his shop at macchi market, the maternal uncle-deceased Shankar Shinde was present in his shop. That time accused Vijay Bawane, Suresh Bawane, Praful Bawane, Ramesh Bawane, Leela Bawane, Ganpat Kumbhalkar, Ganesh Dayare, Zibal Dayare came and started quarreling with the deceased on account of space. He further states that they started pelting stones, which struck on him, Anup and the deceased Shankar. That time accused Vijay Bawane, Suresh Bawane, Praful Bawane, Ramesh Bawane, Leela Bawane, Ganpat Kumbhalkar, Ganesh Dayare, Zibal Dayare came and started quarreling with the deceased on account of space. He further states that they started pelting stones, which struck on him, Anup and the deceased Shankar. His evidence further discloses that thereafter accused Vijay, Suresh brought sattur and blows of sattur were given on hands, head and legs of the deceased. His further version from the witness box is that Leelabai gave lathi blow on the deceased Shankar, while Praful and Zibal assaulted on neck of P.W. 2-Anup. He claims in his evidence that when he tried to intervene, Leelabai gave lathi blow on his head. Accused Vijay gave iron road blow on his hand and that resulted into swelling on his hand. 23. The 4th eye witness is P.W. 13-Kishor Gujare. He is also having his shop in macchi market at itwara bazaar. His evidence would reveal that he started his shop on the day of the incidence at about 12.30 to 1 p.m. Deceased Shankar was standing in front of his shop in macchi market. The shop of accused Leelabai is situated at some distance from the shop of the deceased. Near the shop of accused Leelabai, Vijay Bawane, Praful Bawane, Ganesh Dayare were present. The altercation took place with them and deceased Shankar on the count of place for shop. He further claims that stones were pelted from the side of the accused persons. Thereafter accused Vijay Bawane, Leelabai and Praful went running towards one side, they then took out sattur and lathi from a thela of tin, and then they ran towards the shop of the deceased. Lathi strokes were given to Shankar, due to which he fell down on the ground. At that time accused Praful gave blow of sattur on P.W. 2 Anup Shinde. Deceased Shankar started running, however, he fell down. That time accused Leelabai exhorted to catch him and kill him, and thereafter, accused Vijay Bawane sat on the chest of the deceased and gave 5-6 blows of sattur on the deceased, which were proved to be fatal and ultimately he succumbed to the injuries. 24. The over all survey of the aforesaid eye witness clearly demonstrates that an altercation took place on account of space at macchi market. 24. The over all survey of the aforesaid eye witness clearly demonstrates that an altercation took place on account of space at macchi market. Both the sides i.e. the deceased, P.W. 2-Anup, P.W. 5-Sanjay, P.W. 7-Sudesh are having their respective shops in the macchi market. The bone of altercation between the accused and the deceased was that of space. It is an admitted position that there is one Society by name Adivasi Matsya Vyasavik Sanstha and there was a dispute between the members of the Society and the deceased. There is no quarrel about the position that on the earlier day of the incidence, the officials had removed the encroachments which were made by some persons in the fish market, which could be seen from the evidence of P.W. 2 Anup, which is reproduced herein below- "It is true that on the earlier day of the incident, the official from Nagar Parishad had removed the encroachment which was made by some persons in the fish market". 25. It is the case of the prosecution that the altercation was followed by pelting of stones. Every eye witness is very specific about the pelting of stones. Infact the altercation between the deceased and Leelabai and thereafter, pelting of stones from the accused side, is the prelude to the main incident of attack, if the prosecution case is to be fully believed. In this context, it would be useful to have a glance on the evidence of the Investigating Officers. After the receipt of the oral report from P.W. 7 Sudesh, the investigating officer Hanumansingh Rajput (P.W. 14), directed P.S.I. to prepare a panchnama of spot. From the evidence, it is clear that the incident took place in between 1 p.m. to 2 p.m. on 02.02.2003. The evidence of P.W. 15-Gopalsingh, Police Sub Inspector, who was directed to visit the spot and prepare spot panchnama, would reveal that in pursuance of the directions, he went to macchi market. First informant-Sudesh had shown the spot of incident. From perusal of the spot panchnama, Exh. 77, it is clear that the spot was visited by Gopalsingh Kuware and panchnama was drawn in the proximity of time of the incident. We would like to mention first four lines appearing in the spot panchnama-Exh. First informant-Sudesh had shown the spot of incident. From perusal of the spot panchnama, Exh. 77, it is clear that the spot was visited by Gopalsingh Kuware and panchnama was drawn in the proximity of time of the incident. We would like to mention first four lines appearing in the spot panchnama-Exh. 77, they are as under: In so far as the presence of bricks and cemented portion of oats is concerned, as mentioned in the spot panchnama, it is clear that on the earlier day of the incident, the staff of Nagar Parishad had removed and bulldozed the encroachments. Except this in the entire panchnama, there is no reference of finding of any stone. The prosecution witness claims that all the accused persons first pelted stones, however, in absence of their reference to notice the stone while preparing panchnama, which is a contemporaneous document, in our considered view, it is absolutely clear that to that extent the prosecution witnesses are making exaggeration and to that extent their evidence is required to be discarded. 26. Section 149 of Indian Penal Code deals with a specific offence and punishment for that offence. In one of the recent authoritative pronouncements, the Hon'ble Apex Court in case of Kuldip Yadav and others. vrs. State of Bihar: (2011) 2 SCC (Cri) 632, has held that before convicting the accused persons with the aid of Section 149 of the Indian Penal Code, the Court must give clear finding regarding the nature of common object and that object was unlawful. The Hon'ble Apex Court further observed that in absence of such finding and omission on the overt act on the part of the accused persons, mere fact that they were present would not be sufficient to prove the common object. Text of Paragraph no. 36 of the judgment in case of Kuldip Yadav reads as under- "36. In order to understand the rival claim, it is useful to refer to Section 149 which reads as follows: "149. Text of Paragraph no. 36 of the judgment in case of Kuldip Yadav reads as under- "36. In order to understand the rival claim, it is useful to refer to Section 149 which reads as follows: "149. 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 committing of that offence, is a member of the same assembly, is guilty of that offence. The above provision makes it clear that before convicting the accused with the and if 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 armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the and if 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 Section149 IPC, the essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal. vs. State of Bihar." 27. If the evidence of eye witnesses is minutely scrutinized, then it is absolutely clear that initially all of the accused were not possessing dangerous weapon-sattur or knife. First informant Sudesh Meshram states that initially some of the accused persons assaulted deceased Shankar and Anup by going to the shop of the deceased and thereafter, accused Golya Bawane, Praful Bawane and Vijay Bawane went to the shop of the deceased with sattur and suri. P.W. 13 an independent eye witness, clearly speaks from the witness box that after the initial altercation accused Vijay, Leelabai and Praful ran towards one side and they took sattur and lathi from thela of tin. P.W. 13 an independent eye witness, clearly speaks from the witness box that after the initial altercation accused Vijay, Leelabai and Praful ran towards one side and they took sattur and lathi from thela of tin. Therefore, it is absolutely clear that other persons were totally unaware of the intention of Leelabai, Praful and Vijay to make deadly attack on the deceased. 28. Whether all the accused persons can be convicted with the aid of Section 149 of Indian Penal Code, will be discussed in the later part of the judgment. 29. In so far as the murderous attack on Shankar Shinde is concerned, as observed above, we have 4 eye witnesses. First is P.W. 2 Anup Shinde. If his evidence is scanned, then it is clear that he is attributing presence of Suresh as one of the person, who was present. His evidence shows that initially there were stone pelting in which he suffered injuries and 5 minutes later, Vijay, Suresh, Praful came with sattur. Zibal, Ganesh, Ganpat also came with sattur and Vijay and Suresh and all other persons assaulted his uncle with dagger, iron pipe and sattur. The next eye witness is P.W. 5-Sanjay Meshram. This witness also states about presence of Suresh. If his evidence is scanned properly, then it is clear that initially none of the accused was armed with sattur, but, subsequently though he has used the word "immediately Vijay Bawane and Suresh Bawane brought sattur". His evidence is silent as to who had given actual sattur blow on Shankar. P.W. 7 is Sudesh Meshram the first informant. His evidence will also show the presence of Suresh along with others. However, his evidence shows that it is Golya, Praful, Vijay who went to the shop of the deceased with sattur and suri in their hands. His evidence clearly crystallized that after falling of Shankar on ground, Vijay Bawane, Praful Bawane and Golya Bawane gave blows of sattur and knife on the person of his maternal uncle, namely deceased Shankar Shinde. That takes us to the last eye witness namely P.W. 13-Kishore Gujare. This witness is an independent witness, he is not related to the deceased or other prosecution witness. His shop is also situated in the macchi market, so his presence is most natural in the macchi market. This eye witness Kishore is completely silent about the presence of Suresh. That takes us to the last eye witness namely P.W. 13-Kishore Gujare. This witness is an independent witness, he is not related to the deceased or other prosecution witness. His shop is also situated in the macchi market, so his presence is most natural in the macchi market. This eye witness Kishore is completely silent about the presence of Suresh. In so far as Suresh is concerned, his defence was of alibi and in order to prove the said, defence witness no. 1 Suresh Gaikwad was examined. On 02.02.2003 i.e. on the day of the incident, this Suresh Gaikwad (D.W. 1) was working as a Naib Tahsildar in the Tahsil Office at Wardha. Suresh, the accused was working as peon in the office. Evidence of this defence witness would reveal that on Sundays, duty was given to look after law and order situation. The said duty was allotted by the Tahsildar. As per the said duty one Naib Tahsildar, one Peon and one Clerk were to be on duty. They were obliged to remain present in the Tahsil office for the whole day. He has proved the order of Tahsildar given to him to remain present in the office on 02.02.2003 for law and order situation, for recording dying declarations. The said is at Exh. 149. Similarly he has proved the order dated 31.01.2003, which shows that peons shall be discharging their duties on Holiday. The said order is at Exh. 150. Perusal of the said document shows that Suresh Bawane, the accused was directed to remain present in the office from 10 a.m. to 6 p.m. on 02.02.2003. Further he also proved the certificate given by him to show that Suresh-accused, was present throughout from 10 a.m. to 6.30 p.m. on 02.02.2003 in the Tahsil office. The said certificate is at Exh. 151. Though this defence witness is cross examined by the learned A.P.P., nothing is brought on record to shatter the core of his evidence. The learned Judge of the Court below has discarded his evidence. Since there is a lunch time in between 2 to 3 p.m., the learned Judge of the Court below, while rejecting the testimony of the defence witness no. 1, ruled that the possibility that during this period Suresh going to the place of occurrence, cannot be ruled out. The learned Judge of the Court below has discarded his evidence. Since there is a lunch time in between 2 to 3 p.m., the learned Judge of the Court below, while rejecting the testimony of the defence witness no. 1, ruled that the possibility that during this period Suresh going to the place of occurrence, cannot be ruled out. It is to be noted that D.W. 1 a Naib Tahsildar, has specifically stated in his evidence that Suresh was present on 02.02.2003 from 10 a.m. to 6.30 p.m. This Naib Tahsildar is not having any affinity towards peon Suresh Bawane. There was no reason for the Naib Tahsildar to tell falsehood that Suresh was present in the office throughout the day. 30. Therefore, in the light of the evidence of independent prosecution witness no. 13 Kishore, coupled with the evidence of D.W. 1 Suresh Gaikwad, Naib Tahsildar, it cannot be held beyond reasonable doubt that the accused Suresh Bawane was present on the spot of occurrence at the time of incidence. Since there was a dispute, the possibility of roping all the sons of Leelabai as well as her husband at the hands of the eye witnesses who were close relative of the deceased, cannot be ruled out. Therefore, we are of the firm view that conviction of accused Suresh Bawane would not be sustainable. 31. Now in so far as the offence punishable under Section 307 of Indian Penal code is concerned, the accused persons were charged for making the assault on Anup Shinde (P.W. 2). His injury certificate is at Exh. 104. The injury report shows that Anup Shinde was examined at Kasturba Hospital, Sewagram. The Doctor who has given the said injury certificate has found the following injury on the person of Anup "(1) CLW on the back of neck 4 x 1.5 xM level deep, fresh." Thus, it is amply clear that when Anup was taken to hospital, immediately after the incident, the Doctor who has attended him has noticed only one injury. However, the evidence of Anup Shinde shows that he received injuries due to stones on his legs, hands and back. It is thus clear that the version of P.W. 2 Anup Shinde is falsified by the medical evidence. Thus, Anup Shinde has exaggerated the incidence. However, the evidence of Anup Shinde shows that he received injuries due to stones on his legs, hands and back. It is thus clear that the version of P.W. 2 Anup Shinde is falsified by the medical evidence. Thus, Anup Shinde has exaggerated the incidence. In so far as the person who has given blow on his neck, P.W. 2 Anup is not sure. His evidence shows that: - "then somebody gave a blow on his neck from behind". In this context, we have the evidence of the independent witness no. 13. He has stated as under: - "Accused Praful gave a blow on Anup Shinde, the blow was made by sattur." Thus, the authorship of the injury on the neck of P.W. 2 Anup with dangerous weapon will have to be attributed to absconding accused-Praful and not to any other accused. 32. Now in so far as to the attack on Shankar Shinde is concerned, we have seen that the eye witnesses who are related to the deceased are making exaggerated claim. To us P.W. 13-Kishor Gujare is the witness to the truth. His evidence clearly specifies and attributes the role of Leelabai for instigation and upon such instigation, it appears that after Shankar fell down, accused Vijay gave sattur blows. It would be appropriate to describe in the word of the said eye witness, which reads as- "Accused Vijay Bawane sat on his chest and gave 5 to 6 blows of sattur on deceased Shankar." It would be useful to have a glance on Exh. 67. This is a contemporaneous document, when Shankar was brought alive, may be in a gasping condition at CIIMS Hospital at Nagpur. That time he was examined by P.W. 3 Aniruddha Nimgade, who attended him, and has proved the said document. The relevant portion from Exh. 67 reads as under: "patient came to casualty on 02.02.2003 at 5 a.m. with H/o Assault by Vijay Hagoji Bawane and Praful Bawane at Itwara Bazaar." 33. Now, turning back to the aid of Section 149, even the related eye witnesses evidence is concerned, when the altercation ensued, that time neither Vijay, nor Praful was armed with Sattur. On the contrary P.W. 13's evidence on this point reads thus- "Then Vijay Bawane, Leelabai, Praful went running towards one side. They took out a sattur and lathi from a thela of tin. On the contrary P.W. 13's evidence on this point reads thus- "Then Vijay Bawane, Leelabai, Praful went running towards one side. They took out a sattur and lathi from a thela of tin. They again ran towards the shop of deceased Shankar." Thus, evidence brought on record overwhelmingly shows that at the time when the unlawful assembly was formed, it was not the object of the said unlawful assembly to make any murderous assault either on Anup Shinde or the deceased Shankar Shinde. Had there been the said object of the unlawful assembly, then in order to accomplish the said object, the member of such unlawful assembly would have been armed with the deadly weapons from beginning. Not possessing of deadly weapons at initial stage, therefore, clearly rules out the possibility of common object of causing serious injuries to either Anup or Shankar. If the evidence of P.W. 13-Kishore is read out in its true perspective, then it is crystal clear that when the unlawful assembly was having altercation with Shankar, that time Leelabai, Praful and Vijay ran towards one side. According to us that means that at that particular point of time, these three persons separated themselves from the said unlawful assembly. His evidence further clearly shows that thereafter armed with deadly weapon, they immediately attacked on Anup and Shankar, meaning thereby that at that time other accused persons were totally unaware of the intention of these three persons. Therefore, the other accused persons cannot be held vicariously responsible for the act done by these three persons, since they were not sharing the common object and/or intention with these three persons to cause injuries, both serious and fatal to Anup and Shankar. Therefore, we are of the considered view that all the accused persons, except Vijay and Leelabai are entitled for their acquittal for the offences for which they were charged. Accused Vijay and Leelabai are therefore, convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. 34. To sum up, the prosecution evidence clearly shows that Leelabai shared intention to kill Shankar. Upon her instigation Vijay, sitting on the chest of Shankar has dealt sattur blows on him. Accused Vijay and Leelabai are therefore, convicted for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. 34. To sum up, the prosecution evidence clearly shows that Leelabai shared intention to kill Shankar. Upon her instigation Vijay, sitting on the chest of Shankar has dealt sattur blows on him. Shri Avinash Gupta, the learned Counsel appearing for the appellants, has heavily relied on the fact that the recovery of sattur at the instance of Vijay cannot be relied upon since it was recovered, though at his instance, from garbage on the open place of market. Looking to the nature of recovery, we cannot attach much importance on the same. 35. The C.A. report (Exh. 124) shows that the blood group of deceased was "A". During investigation, blood stained clothes of Vijay and Leelabai were sent to the C.A. The C.A. report Exh. 130 clearly shows that the full pant of Vijay was stained with human blood of group "A" and also the clothes of Leelabai were stained with human blood of group "A". This scientific evidence, coupled with the eye witness account of P.W. 13 Kishore, clearly shows the finger of guilt towards these two persons. Therefore, merely because the discovery of sattur is discarded, that by itself will not render the prosecution story as untruthful. 36. The aforesaid discussion leads us to pass the following order. (i) All the Criminal Appeals are partly allowed. (ii) The order of conviction for the offence punishable under Sections147, 148, 323, 337, 149 and 307 of the I.P.C. is set aside and all the accused are acquitted of the said charges. (iii) The appeals of original accused No. 4-Suresh Fagoji Bawane (Criminal Appeal No. 577/2005); accused No. 1 Ganpat Dashrath Dayare, accused no. 2 Tejya @ Tejram s/o Pandurang Digore, accused no. 5 Zibal Dashrath Dayare and accused no. 8 Ganpat Rama Kumbhalkar (Criminal Appeal No. 593/2005) and accused no. 9 Arun Fagoji Bawane (Criminal Appeal No. 26/2006) are allowed. The conviction and sentence for the offence punishable under Section302 of the I.P.C. insofar as these accused are concerned is set aside and the aforesaid accused are acquitted of the said charge. (iv) The conviction of accused no. 3-Sau. Leelabai Sureshrao Bawane and accused no. 9 Arun Fagoji Bawane (Criminal Appeal No. 26/2006) are allowed. The conviction and sentence for the offence punishable under Section302 of the I.P.C. insofar as these accused are concerned is set aside and the aforesaid accused are acquitted of the said charge. (iv) The conviction of accused no. 3-Sau. Leelabai Sureshrao Bawane and accused no. 6 Vijay Suresh Bawane (Criminal Appeal No. 557/2005) for offence punishable under Section 302 of I.P.C. is hereby maintained and the sentence of life imprisonment and a fine of Rs. 5000/- in default of payment of fine to suffer further R.I. for one year is also maintained insofar as these appellants/accused are concerned. (v) Accused no. 3 Sau. Leelabai Sureshrao Bawane and Accused no. 6 Vijay Suresh Bawane are directed to surrender within a period of eight weeks from today to undergo the remainder of the sentence. Needless to state that the said accused would be entitled to set off for the period already undergone.