JUDGMENT Hon’ble Naheed Ara Moonis, J.—The aforementioned appeals are directed against a common judgment and order dated 21.2.1983 passed by Special Judge (S.P.E.C. Act), Etah in Session Trial Nos. 474 of 1982 (State v. Rishipal) and 475 of 1982 (State v. Ram Lal and two others, P.S. Ganjdundwara, District Etah whereby appellant Rishipal of Criminal Appeal No. 438 of 1983 was sentenced to undergo life imprisonment under Section 302 IPC. The appellants of Criminal Appeal No. 437 of 1983, namely, Ram Lal, Ram Autar and Sri Kishan each were sentenced to undergo rigorous imprisonment under Section 302/149 IPC, appellant No. 1 and 2 Ram Lal and Ram Autar were further sentenced to undergo rigorous imprisonment for two years under Section 147 IPC and appellant No. 3 Sri Kishan was further sentenced to undergo rigorous imprisonment for three years under Section 148 IPC. All the sentences were directed to run concurrently. 2. During the pendency of the aforesaid appeal appellant No. 1 Ram Lal died as per report of the Chief Judicial Magistrate, Etah, dated 25.8.2015 and hence the appeal stood abated against appellant No. 1 Ram Lal by a separate order passed by this Court on 14.9.2015. Co-accused Rishipal who had preferred separate appeal as mentioned above has also died as per report of the Chief Judicial Magistrate, Etah vide letter dated 25.8.2015. Hence the appeal preferred by appellant Rishipal has also stood abated as dismissed by this Court on 14.9.2015. 3. Now the appeal has been pressed only on behalf of Ram Autar, appellant No. 2 and Sri Kishan, appellant No. 3 of Criminal Appeal No. 437 of 1983. 4. The facts, giving rise to the instant appeal in a short conspectus are that a First Information Report was lodged by Rajvir (P.W-1) on 18.2.1982 at 9.30 a.m. in respect of the incident occurred between 10-11 p.m. in the intervening night of 17/18.2.1982. It is alleged that when the complainant was sleeping alongwith his father Thakuri, mother and younger brother on the roof about 10 to 11 persons came near to his father Thakuri flashing light of torches. On account of fear the complainant had hidden himself in a corner and had seen in the light of lantern and the torch light that his uncle Ram Lal (Tau) alongwith his sons Rishipal, Ram Autar and Sri Krishan had caught hold his father. His father tried to get up. On account of fear the complainant had hidden himself in a corner and had seen in the light of lantern and the torch light that his uncle Ram Lal (Tau) alongwith his sons Rishipal, Ram Autar and Sri Krishan had caught hold his father. His father tried to get up. At the same time Ram Lal shouted and asked his father that he will not remain alive as he was very much in the habit of convening panchayat about plots. His father shuddered and made an earnest request but Ram Lal asked his son Rishipal to fire at him. Rishipal fired at his father Thakuri who died on the spot. Ram Lal and his three sons alongwith unknown associates looted his house and escaped away extending threat to the life of first informant and his family members. His father was killed on account of dispute with regard to the plots. It was also alleged that the first informant will disclose later in respect of articles looted by them. 5. The First Information Report (Ext. Ka-1) was registered at police station Ganjdundwara at 9.30 a.m. on 18.2.1982 as Case Crime No. 27 of 1982, under Section 396 IPC. On the basis whereof a chik report was prepared and the same was entered into the general diary (Ext. Ka-9 and 10). The criminal law was set into motion on the registration of the FIR. The investigation was entrusted to Sri D.K. Sisodia (P.W-5) Station Officer, Police Station Ganjdundwara. He proceeded alongwith S.I. Sharda Nand Mishra (P.W-4) and Ram Lal and other constables to the place of occurrence on the same day. On his direction the dead body of Thakuri was taken into custody and the inquest was conducted by Sharda Nand Mishra (P.W-4) who prepared inquest report. The inquest was started at 1.30 p.m. and it was concluded by 3 O’ Clock on 18.2.1982. After conducting the inquest (Ext. Ka-3) challan nash, Photo nash and letters to Chief Medical Officer and Reserve Inspector were prepared vide Exhibit Ka-4 to Ka-7. S.I. Sharda Nand Mishra (P.W-4) collected blood stained and plain earth from the spot, sealed the same in separate container vide Exhibit Ka-8. The lantern which was found at the place of occurrence was also taken into custody and memo was prepared vide Ext. Ka-11. S.I. Sharda Nand Mishra (P.W-4) collected blood stained and plain earth from the spot, sealed the same in separate container vide Exhibit Ka-8. The lantern which was found at the place of occurrence was also taken into custody and memo was prepared vide Ext. Ka-11. Thereafter the investigating officer investigated the matter and recorded the statements under Section 161 Cr.P.C. of Smt. Sukh Devi, the wife of the deceased and mother of the first informant and younger son Rakesh. He inspected the spot and prepared site plan Ext. Ka-12. The investigating officer arrested accused Ram Lal on 19.2.1982 and tried to arrest other accused persons but they could not be traced. Other accused persons, namely, Ram Autar and Sri Kishan surrendered before the Court on 18.3.1982. As Rishipal could not be arrested the charge-sheet (Ext Ka-13) was submitted on 6.5.1982 against Ram Lal, Sri Kishan and Ram Autar. The investigation was later on handed over to H.P. Bhadoria (P.W-6) on 1.8.1982. He also tried to trace out accused Rishipal but he could not succeed hence the charge-sheet (Ext. Ka-14) was also submitted against Rishipal in abscondance. 6. The dead body was sent for autopsy which was brought by Constables Mulayam Singh and Bhagwan Singh on 19.2.1982 at Etah mortuary. Dr. K.K. Singh (P.W-3) conducted the autopsy of the deceased Thakuri at about 1.30 p.m. on 19.2.1982 and the post-mortem report was proved by him and Exhibited as Ka-2. The Doctor had found that the deceased Thakuri was aged about 65 years and was of average built. At the time of post-mortem rigor mortis was present in the upper and lower limbs. Decomposition had not started. 7. The following ante mortem injuries were found on the body of the deceased Thakuri: 1. Fire-arm wound of entry 4 cm x 3 cm x chest cavity deep on the front and upper portion of the nipple, 8 cm above at 12 O’ Clock position on the right chest. Margins were inverted and lacerated. Blackening and tattooing was present. Direction was backward, medial, and downward from right to left. On further probing of the wound 1st and 2nd ribs were also lacerated; 2. Abrasions 2 cm x 1 cm on the lateral side of left chest; 3. Abrasion 2 cm x 2 cm below knee joint and pleura. On internal examination both lungs were found lacerated. Direction was backward, medial, and downward from right to left. On further probing of the wound 1st and 2nd ribs were also lacerated; 2. Abrasions 2 cm x 1 cm on the lateral side of left chest; 3. Abrasion 2 cm x 2 cm below knee joint and pleura. On internal examination both lungs were found lacerated. Both cavity contained 10 oz free and clotted blood. 8. Large intestines contained faecal matter. Small intestines contained semi-solid under process of digestion. From the dead body two wads (Gattas) and 22 pellets were recovered from the right chest and 20 pellets were recovered from the left chest. These recoveries were sealed and sent to S.P. Etah by the doctor. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of ante mortem injury on the vital part i.e. lungs. Dr. K.K. Singh (P.W-3) proved the post-mortem report as Ext. Ka-2. One dhoti which was worn by the deceased was also sealed and sent to the police alongwith sealed packet containing 42 pellets. 9. The case was committed to the Court of sessions for trial. Thereafter the charge was framed against Rishipal under Section 302 IPC simpliciter and against Ram Lal, Ram Autar and Sri Kishan under Sections 148,302/149 IPC which was read over and explained to all the accused persons. 10. The accused appellants abjured the charges and claimed to be tried, hence their consolidated trial commenced. 11. In order to substantiate the charges against the appellants the prosecution has examined Rajvir (a/a 17 years) as P.W-1 and Rakesh (a/a 12 years) as P.W-2 respectively, who are the sons of the deceased Thakuri. 12. The post-mortem report was proved by formal witness Dr. K.K. Singh (P.W-3). Sub Inspector Sharda Nand Mishra was examined as P.W-4 who had conducted the inquest of the deceased. Dinesh Kumar Sisodia (Station Officer) who had carried the investigation and submitted the charge-sheet against Ram Lal, Ram Autar and Sri Kishan, was examined as P.W-5. 13. M.P. Singh Bhadoria, S.I., who had concluded the investigation by submitting charge-sheet against Rishipal in abscondance, was examined as P.W-6. 14. In defence Shiv Dayal was examined as D.W-1 and paper relating to injury report dated 22.1.1982 was filed. 13. M.P. Singh Bhadoria, S.I., who had concluded the investigation by submitting charge-sheet against Rishipal in abscondance, was examined as P.W-6. 14. In defence Shiv Dayal was examined as D.W-1 and paper relating to injury report dated 22.1.1982 was filed. The said injury report was not legally proved by the doctor who had prepared it, hence it was not admitted as defence evidence by the learned trial judge. 15. Learned counsel appearing on behalf of the appellants has assailed the conviction of the surviving appellants, namely, Ram Autar and Sri Kishan. The main plank of the argument of the learned counsel for the appellants is that the appellants have falsely been implicated in the present case. There were various inconsistencies and infirmities and the prosecution has failed to establish its case beyond reasonable doubt. The learned trial Judge has misread the evidence on record and convicted the appellants in the absence of any corroborative evidence. It is submitted that the motive put forth by the prosecution is too weak that there had been some panchayat due to dispute regarding plot but the deceased had never taken any part in panchayat in respect of dispute of plots. P.W-1 and P.W-2, who are the sons of the deceased, have only stated that they have heard about that there was some dispute about the plots for which panchayat was convened. It is further submitted that the Court below has completely erred in relying upon the testimony of the witnesses who were minor at the time of alleged incident hence the deposition of the both the witnesses was the outcome of tutoring. If the appellants had reached there to eliminate Thakuri who is the real brother of Ram Lal they could have also committed murder of his two sons and his wife if they were present at the time of incident and surprisingly they had been left without causing any injury to them. 16. It is also submitted that the deceased’ wife was also sleeping there alongwith Rajvir (P.W-1) and Rakesh (P.W-2) but did not come forward in support of the prosecution case. She was not examined which also cast doubt about the genesis of the occurrence. It is highly improbable that the two witnesses, who are of tender age had recognized all the accused appellants when there was no sufficient source of light. 17. She was not examined which also cast doubt about the genesis of the occurrence. It is highly improbable that the two witnesses, who are of tender age had recognized all the accused appellants when there was no sufficient source of light. 17. Rajvir (P.W-1) in his deposition has stated that he got the First Information Report written by the Pradhan on the next day in the morning, but the scribe of the FIR was also not examined. There is inconsistency as to whether report was dictated by Deena Nath or by Sukhdev, Pradhan. D.W-1 Shiv Dayal has specifically stated that the report was dictated by Deena Nath whereas the complainant Rajvir (P.W-1) has stated that Sukh Dev, Pradhan came to his house to see his father in the morning and then the report was written by him on his dictation. 18. There is also discrepancy with regard to the manner of assault took place as P.W-1 Rajvir and P.W-2 Rakesh, who are the sons of the deceased, have stated that on the instigation of accused Ram Lal, Rishipal had fired at his father Thakuri when all other had firstly over powered his father whereas D.W-1 Shiv Dayal has stated that on hearing the firing the accused persons were standing near the door raising alarm. Therefore, it cannot be said that the appellants had actually fired at the deceased and the circumstances only goes to show that on hearing the sound of firing by unknown miscreants, the appellants came and were standing near the door which is consistent with the deposition of D.W-1 Shiv Dayal. No one has actually seen the incident of firing that took place on the roof. Since Deena Nath was in inimical terms with the appellant Ram Lal who is his own brother, was somehow instrumental in getting the appellants to be implicated in the case. 19. Even if the prosecution is taken to be true the surviving appellants Ram Autar and Sri Kishan have not been assigned any specific role. While lodging the First Information Report the P.W-1 Rajvir had not assigned any weapon to the appellant No. 1 Ram Autar and appellant No. 2 Sri Kishan later on in his statement it has been stated that Sri Kishan was armed with gun, Ram Lal and Ram Autar were equipped with lathi and 5-6 unknown persons were wielding lathi and spear. The appellant Ram Autar and Sri Kishan did not make use of any weapon and only role attributed to them that they caught hold the deceased while on the instigation of Ram Lal, Rishipal fired at the deceased. Therefore, Section 149 IPC has no application. According to the post-mortem the victim had sustained only one gun shot injury and two abrasions. The FIR also lodged initially under Section 396 IPC that accused appellants alongwith 5-6 unknown persons who came on the roof, had killed Thakuri and committed dacoity in his house. The factum of dacoity has not been proved by any cogent evidence which has made the entire prosecution case doubtful. Hence the conviction and sentence of the appellants deserves to be set aside. 20. Per contra learned A.G.A. has vehemently argued that there is no infirmity in the judgment passed by the Court below and canvassed the correctness of the view taken by the trial Judge convicting and sentencing the appellants. The deceased Thakuri was ghastly murdered by his own real brother Ram Lal with the help of his sons, namely, Rishipal, Ram Autar and Sri Kishan. There is direct evidence attributed against all the accused appellants. The FIR was registered by the deceased’s son Rajvir (P.W-1) on the next day describing the entire incident in a natural manner. Merely because the scribe of the FIR Sukh Dev, Pradhan was not examined will not effect the veracity of the prosecution case. When the incident took place both the witnesses, P.W-1 Rajvir and P.W-2 Rakesh, were tender of age hence all precautions have been taken by the Court concerned before recording their statements. The learned trial Court while relying upon the testimony of the child witnesses has also considered other corroborative material adduced by the prosecution. The presence of all the appellants alongwith 4-5 unknown persons shows that they had formed an unlawful assembly in prosecution of the common object of committing murder of Thakuri and hence they have rightly been prosecuted by the trial Court under Sections 302/149,147,148 IPC. The prosecution case is consistent with the testimony of P.W-1 and P.W-2 that Ram Lal instigated his son Rishipal to fire at Thakuri and the surviving appellants Ram Autar and Sri Kishan were present armed with lathi and gun and had shared common intention and common object of the unlawful assembly. The prosecution case is consistent with the testimony of P.W-1 and P.W-2 that Ram Lal instigated his son Rishipal to fire at Thakuri and the surviving appellants Ram Autar and Sri Kishan were present armed with lathi and gun and had shared common intention and common object of the unlawful assembly. The presence of the accused persons is established from the statement of defence witness Shiv Dayal. In the statements recorded under Section 313 Cr.P.C. the accused appellants have stated that they were not present at the place of occurrence but the statement of Shiv Dayal (D.W-1) has falsified the statements of the accused appellants as it amply proves that accused persons were present on the roof and they were recognized when torch light was flashed upon them and there was light of lantern also. Therefore, it is too remote to think that P.W-1 and P.W-2 will leave the actual culprits who have committed the murder of their father and will implicate the appellants who are their real uncle and cousins. Merely because the wife of the deceased, who was also sleeping alongwith the deceased has not been examined, will not effect the credibility of the prosecution case. It is the quality and not the quantity of evidence which is required for conviction. It is further contended that minor contradiction and variation will not effect the veracity of the prosecution case. It is also difficult to unravel the mind as to why the accused appellants would have left the minor children and had only eliminated their father. The presence and participation of all the appellants at the time of incident finds sufficient corroboration from the testimony of the prosecution witnesses. The surviving appellants Ram Autar and Sri Kishan had shared common intention and object with each other and they facilitated the attack and participated in the crime and in that view Section 149 IPC has rightly been applied. 21. We have considered the submissions of the learned counsel for the appellants Sri Ashutosh Pratap Singh as well as learned A.G.A. Sri Rajeev Gupta, Sri Syed Hasan Abdi and Amar Pal Singh on behalf of the State and also perused the material placed on record. 22. In order to appreciate the evidence of the prosecution witness it is necessary to mention the relationship of the complainant with the accused persons who belonged to one and the same family. 23. 22. In order to appreciate the evidence of the prosecution witness it is necessary to mention the relationship of the complainant with the accused persons who belonged to one and the same family. 23. The pedigree of parties is as follows. In this pedigree, all the accused-appellants are represented as A. Mummi Deena Nath Roshan Ganga Ram Thakuri (deceased) Ram Lal (A) (Now deceased) - - - Rajvir (P.W-1) Rakesh (P.W-2) Rishipal (A) (now deceased) Sri Kishan (A) Ram Autar (A) 24. From the above it is discernible that Thakuri (the victim of the present case) was the real brother of accused Ram Lal and Rishipal, Sri Kishan and Ram Autar are the sons of Ram Lal, who are all accused in the present case. Rajvir (a/a 17 years) examined as P.W-1 is the son of the deceased Thakuri, who lodged the First Information Report against the aforesaid accused persons. Rakesh (a/a 12 years) examined as P.W-2, the younger brother of Rajvir and son of the deceased Thakuri. Both, the P.W-1 and P.W-2 had seen the incident on the fateful night, as such their presence as narrated in the First Information Report is natural and convincing from their deposition before the trial Court. 25. P.W-1 Rajvir who is the elder son of the deceased, was also sleeping on the roof alongwith his father, mother and younger brother Rakesh (P.W-2) and had reiterated the contents of the First Information Report in his deposition. Rajvir (P.W-1) as well as Rakesh (P.W-2) has clearly stated that appellant No. 1 Ram Lal, who is the brother of the deceased, instigated his son Rishipal to fire upon him, at this Rishipal who was having fire-arm weapon, fired mercilessly upon Thakuri who died instantaneously on the spot. Ram Autar and Sri Kishan were also present alongwith his father Ram Lal and brother Rishipal. According to the statement of Rajvir (P.W-1) and Rakesh (P.W-2) who were sleeping on the roof alongwith their father and mother, have specifically stated that they had identified the accused persons in the light of lantern which was kept burning. They were put to lengthy cross-examination by the defence but nothing could be elicited to discredit their testimony that they had not seen the actual incident. They were put to lengthy cross-examination by the defence but nothing could be elicited to discredit their testimony that they had not seen the actual incident. It has been stated by P.W-1 Rajvir that report of this incident was got written on the next day though Sukh Dev, Gram Pradhan and thereafter he had put the signature and took the same to lodge the First Information Report. He had showed his ignorance while he was cross-examined that any panchayat relating to plots took place in front of him. He had also showed ignorance as to how the share was made of the plots. He had specifically stated that Ram Lal appellant No. 1 had never went alongwith him to the police station. He had denied the suggestion that on account of dacoity unknown miscreants had killed his father. 26. Rakesh (P.W-2) was aged about 12 years when his statement was recorded. The learned trial Court had taken all precaution by putting question as to whether he had understood the consequence of telling lie and after satisfying that he knew the meaning of oath he recorded his satisfaction about understanding of the child and then P.W-2 Rakesh, was examined. He had narrated the incident in a natural manner though with some variation that Rishipal and Sri Kishan were having fire-arm weapon and that Ram Autar and Ram Lal were having lathi and other persons were equipped with lathi and spear. While P.W-2 was cross-examined he had clearly stated that Ram Lal, appellant No. 1 had never visited his house after the incident. P.W-2 has stated that he had seen that the accused persons have committed murder of his father. He has denied the suggestion that on account of dacoity in his house he could not see the miscreants and he has falsely implicated his Tau and cousins at the instance of other persons. 27. In the statement under Section 313 Cr.P.C. the accused persons had denied that they have committed murder of Thakuri and pleaded false implication in the present case at the instance of Deena Nath, who is the elder brother of appellant No. 1 Ram Lal and the deceased Thakuri and uncle of other accused appellants and of Rajvir and Rakesh, the prosecution witnesses. The accused persons further stated that they have been implicated by Deena Nath who was litigating with his own brother Ram Lal. The accused persons further stated that they have been implicated by Deena Nath who was litigating with his own brother Ram Lal. Accused Ram Lal (now deceased) had denied any dispute between them and as such there was no question of any panchayat convened either by him or by the deceased Thakuri. Sri Kishan had completely denied that they had never gone to the roof of Thakuri where the alleged incident took place and as such there was no occasion to identify any of the accused who were the assailants to commit the crime. Appellant No. 1 Ram Lal had admitted that he was having enmity with Deena Nath in respect of plots and they were litigating and on account of this reason Deena Nath was nurturing ill-will against him. The scribe of the FIR Sukh Dev, Pradhan of the village is the friend of Deena Nath. Hence the possibility of false implication in the present case cannot be ruled out as the First Information Report was lodged by Sukh Dev implicating the accused Ram Lal and his three sons. Ram Autar, Sri Kishan and Rishipal in their deposition under Section 313 Cr.P.C. had also denied the suggestions all together and reiterated the fact that since there was litigation going on between them and his uncle Deena Nath hence at the latter’s instance they have falsely been implicated in the present case. 28. Shiv Dayal (D.W-1), who was examined on behalf of defence corroborates the prosecution story regarding the presence of the accused persons at the time of incident. He has stated that Thakuri was murdered at about 11 pm and he heard alarm raised by the accused persons that dacoits had entered into the house of Thakuri at that time he was at his house. He went to the house of Thakuri on hearing the firing shots. The prosecution has cross-examined Shiv Dayal (D.W-1) wherein he has specifically stated that eight persons were armed with guns and he did not go to the roof of the deceased Thakuri, therefore, he cannot say that dacoits had looted any property. He found that accused and others were raising alarm when the fire was made and had seen that accused persons were standing near the door when he reached to the roof of the deceased after one and half hours. He found that accused and others were raising alarm when the fire was made and had seen that accused persons were standing near the door when he reached to the roof of the deceased after one and half hours. He had further stated that he saw that Ram Lal, Sri Kishan, Ram Autar and Rishipal were present there alongwith Deena Nath and other persons of the village. He has also confirmed about the presence of the accused persons at the time of the occurrence. He has specifically stated that aggressors were throwing torch light at that time. 29. On the scrutiny of the aforesaid evidence there is no doubt that the deceased Thakuri was sleeping on the roof along his wife Sukh Devi, Rajvir (P.W-1) and Rakesh (P.W-2) and suddenly in between 10-11 p.m. the appellants came over the roof of the house of the complainant and Ram Lal exhorted that Thakuri will not remain alive as he convenes panchayat and on his instigation Rishipal fired at him though the victim shuddered and was making earnest request. This is sufficient to show the devilish manner with which Thakuri has been killed by Rishipal. It is not a case of mistaken identity to implicate the appellants leaving behind the actual culprits, as has been suggested by the accused appellants that Deena Nath was hand in gloves with Sukh Dev, Pradhan to get a false First Information Report dictated in his presence. There is no sufficient proof that Deena Nath was instrumental to implicate the accused appellants in the present case and there is no such evidence culled out from the testimony of the prosecution witnesses that Deena Nath had any influence over the two sons of the deceased in any manner to depose against the appellants. Minor discrepancy in the statement of the witnesses being of tender age will not belie the entire prosecution case. The manner in which accused appellants had committed ghastly murder of the victim in front of his minor children and his wife, any discrepancy would not be of much significance in view of the fact that the incident was witnessed by the natural witnesses who were examined as P.W-1 and P.W-2, and were sleeping alongwith their parents on the roof. Their testimony being child witnesses can also not be termed as tutored one as there is sufficient corroboration on record. Their testimony being child witnesses can also not be termed as tutored one as there is sufficient corroboration on record. In the absence of any proof regarding tutoring or using child witness for ulterior purposes by the prosecution to implicate the entire family members the prosecution case cannot be disbelieved. It cannot be accepted in any circumstance that the son of the deceased had not seen the incident and implicated their own relatives. 30. Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party’s case, material discrepancies do so. These aspects were highlighted in Krishna Mochi and others v. State of Bihar, 2002 (45) ACC 1 SC as observed by the Apex Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390 . 31. The surviving appellants, namely Ram Autar and Sri Kishan, who are real nephew of the deceased Thakuri, have showed their ignorance with regard to the death of Thakuri in their statement under Section 313 Cr.P.C. They cannot show their ignorance about the killing of their own uncle by saying “Main Nahin Janta” when all of them were living in close vicinity to each other. The dacoits had entered into the house of Thakuri and the appellants reached there armed with gun and lathis, yet they could not catch any of the dacoits which improbablises the story of dacoity in defence. Thus the false deposition under Section 313 Cr.P.C. of the accused appellants that they were not at all present on the spot at the time of occurrence is an additional link which only lends full support to the prosecution case. 32. The presence of surviving appellants can also not be doubted merely because they have not been assigned any overt act on their part. They were equally responsible for the murder of the deceased to attract Section 149 IPC. They are inter related had come with the common object, purpose and design. 32. The presence of surviving appellants can also not be doubted merely because they have not been assigned any overt act on their part. They were equally responsible for the murder of the deceased to attract Section 149 IPC. They are inter related had come with the common object, purpose and design. The contention of learned counsel for the appellants that surviving appellants have not been assigned any role which would wipe the application of Section 149 IPC does not appear to us to be very correct. The word “object” under Section 149 IPC has been given meaning by the Apex Court in Chanda and others v. State of U.P. and another, 2004 SCC (Criminal) 1553, wherein the Apex Court has said that 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. The Apex Court further in the case of Sunil Kumar and another v. State of Rajasthan, 2005 SCC (Criminal) 1230, has held that attack by members of unlawful assembly on a deceased in prosecution of common object the prosecution need not to establish overt act done by each of the accused. This Court also in the case of Raj Nath v. State of U.P., 2009 (64) ACC 966, while dealing with Section 149 IPC held that the time of forming an unlawful intent is not material and an assembly which, at its commencement or even for sometime thereafter, is lawful may subsequently become unlawful. It can develop during the course of incident at the spot. 33. The applicability of Section 149 IPC has been considered in extenso by the Hon’ble Apex Court in Mummidi Hemadri and others v. State of Andhra Pradesh, [2007] 13 SCC 496, wherein identical question was involved that some of the accused had caught hold the deceased and some other had inflicted injuries upon him. There was also discrepancy as to whether they all were armed. Considering the background facts and the roles attributed to the accused persons in the aforesaid decision that the accused persons had caught hold of the deceased and thereafter the attacks by the other A-4 and A-5 came as A-1 instigated the other accused persons to attack the deceased. There was also discrepancy as to whether they all were armed. Considering the background facts and the roles attributed to the accused persons in the aforesaid decision that the accused persons had caught hold of the deceased and thereafter the attacks by the other A-4 and A-5 came as A-1 instigated the other accused persons to attack the deceased. The Hon’ble Apex Court held that Section 149 IPC would be applied but the conviction of the appellant would be under Section 304-II IPC instead of convicting them under Section 302 read with Section 149 IPC. In the aforesaid judgment the Hon’ble Apex Court has reversed the judgment and order of the High Court convicting the appellants under Section 302 IPC with the aid of Section 149 IPC. The Hon’ble Apex Court has dealt with the scope of Section 149 IPC in great detail which is apt to quote hereinbelow: 13. The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on 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 IPC. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 IPC. 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 IPC. 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 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 IPC. The word ‘object’ means the purpose or design and, in order to make it ‘common’, it must be shared by all. 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 IPC. 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 IPC 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 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. 14. ‘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 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 behavior 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 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 some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instante. 15. 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 IPC, 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. 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 called out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of occurrence. The word ‘knew’ used in the second limb 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 IPC, 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 first part of the offences committed in prosecution of the common object would also be generally, if not always, within the second part, namely, offences which the parties knew to be likely committed in the prosecution of the common object.” (See Chikkarange Gowda and others v. State of Mysore ( AIR 1956 SC 731 ) and Chanda and others v. State of U.P. and another, ( 2004 (5) SCC 141 ). 34. 34. Keeping in view of the aforesaid principle of law and on the anvil of evidence on record we are of the view that in the present case also the object of all the members was the same that they had knowledge which was pursued and shared by all the members. The surviving accused appellants had caught hold the deceased and thereafter the deceased was attacked by the co-accused Rishipal at the instigation of his father Ram Lal. They knew offences committed in the prosecution of the common object which is squarely covered under second part of Section 149 IPC. There is one discrepancy as the surviving appellants were not assigned any weapon while lodging the FIR by P.W-1 Rajvir which has come for the first time in the statement of Rakesh (P.W-2) that besides Rishipal other accused appellants were also armed with guns and lathis. 35. In this background in our opinion though Section 149 IPC has to be applied the conviction of the surviving appellants has to be under Section 304-II read with Section 149 IPC and not under Section 302 read with 149 IPC. To that extent the conviction and sentence of Ram Autar and Sri Kishan, the surviving appellants, awarded by the trial Court, is hereby altered under Section 304-II read with 149 IPC. Further sentence as awarded under Sections 147,148 IPC by the learned trial Court is hereby upheld. 36. Both the appellants Ram Autar and Sri Kishan had been in jail during pre and post period of trial for about 44 days only. Hence custodial sentence of 8 years would meet the ends of justice. The appellants Ram Autar and Sri Kishan are directed to be taken into custody to serve out the sentence as stated above. All the sentences shall run concurrently. 37. The appeal is partly allowed. 38. Office is directed to remit the trial Court record forthwith to the Court concerned for compliance and necessary action. 39. Judgment be certified and placed on record. ———————