JUDGMENT : Rajiv Sharma, J. The State has come up in appeal challenging the judgment dated 30.7.2010 rendered by learned Additional Sessions Judge, Roorkee, District Haridwar in S.T. No.233 of 2009, whereby the respondents, who were charged with and tried for the offences of Section 147, 148, 323/149, 307/149, 302/149, 452 and 506 IPC, were acquitted. 2. Case of the prosecution in a nutshell is that an FIR was lodged by PW1 Vikram Singh, to the effect that on 8.5.2008 at 6 PM, Narendra armed with Lathi, Pushpendra armed with Palkati, Manoj armed with Ballam, Shiv Pal armed with Spade, Jaipal armed with knife and Pratap armed with iron rod, came to his compound. They attacked Dheer Singh. After hearing the commotion, Vikram Singh, Kunwar Singh, Smt. Rajbala, Sujit Singh, Abhijit Singh, Amit and Himanshu came on the spot. They persuaded the respondents not to beat Dheer Singh. All the respondents attacked them with their respective weapons due to which they received serious injuries. All the injured were taken to the hospital where Himanshu was declared dead. 3. The post-mortem was conducted on the dead body. The F.I.R. was registered. The matter was investigated and the Challan was put up after completing all the codal formalities. 4. Prosecution has examined as many as twenty one witnesses in support of its case. 5. Respondents were also examined u/s 313 Cr.P.C. They denied the case of prosecution. According to them, they were falsely implicated. 6. Respondents were acquitted by the Trial Court, as noticed hereinabove. Hence this appeal. 7. Learned Dy. Advocate General, appearing on behalf of the State, has vehemently argued that the prosecution has proved its case against the respondents beyond reasonable doubt. 8. Learned Counsels, appearing for the respondents, have supported the judgment dated 30.07.2010. 9. We have heard learned counsel for the parties and perused the entire material available on record carefully. 10. PW1 Vikram Singh testified that on 7.5.2008, he had no altercation with the respondents. On 8.5.2008 at about 6 PM, some people armed with Lathis, Palkati, Ballam, Spade, knife and iron rod trespassed into his compound. All of a sudden, they attacked Dheer Singh. On hearing the noise, he along with Kunwar Singh, Rajbala, Abhijit Singh, Sujit Singh and Himanshu came on the spot. They were also attacked by the assailants. He collapsed. He could not identify the assailants due to sudden attack. All of a sudden, they attacked Dheer Singh. On hearing the noise, he along with Kunwar Singh, Rajbala, Abhijit Singh, Sujit Singh and Himanshu came on the spot. They were also attacked by the assailants. He collapsed. He could not identify the assailants due to sudden attack. He was declared hostile and cross-examined by learned ADGC. In cross-examination, he deposed that he had not got the report written but he only signed the same. 11. PW2 Ashok Verma deposed that he was a milk vendor. He saw many people near the house of Dheer Singh. He reached there. He saw that Dheer Singh and 3-4 other people were lying injured. He removed them to Roorkee hospital. Himanshu was declared dead. Others were medically examined. He was also declared hostile and was cross-examined by learned ADGC. 12. PW3 Zulfkar deposed that on 8.5.2008 at about 6-6:30 PM, he did not hear any noise from the house of Dheer Singh. According to him, respondents have not given beatings to the complainant party i.e. Dheer Singh, Abhijit, Sujit, Himanshu, Rajbala and Amit. He was also declared hostile and was cross-examined by learned ADGC. 13. PW4 Suleman has also not supported the prosecution case and was declared hostile. 14. PW5 Dheer Singh is the material witness. He is the eyewitness. According to him, on 8.5.2008 at about 5-6 PM, he was sitting in the verandah of his house near the water tap. Shiv Pal armed with a spade, Jaipal armed with a knife and Pratap armed with an iron rod, trespassed into his house. Pratap Singh attacked him with an iron rod. He tried to save himself due to which he received injury on his thumb. He shouted for help. Himanshu reached on the spot. He asked the afore-named respondents as to why they were attacking his uncle. Shiv Pal gave a blow of spade on the head of Himanshu. His son Amit and wife Rajbala also reached the spot. Jaipal gave the blow of knife on the calf muscle of his wife. Amit also received injuries. His nephews Sujit and Abhijit also came on the spot. They were also attacked by the assailants. Vikram also reached the spot. He was also attacked by them. His cousin brother Kunwar Singh also reached the spot. He also received the injuries. Himanshu fell down. Injured persons were removed to the hospital. Himanshu was declared dead. Amit also received injuries. His nephews Sujit and Abhijit also came on the spot. They were also attacked by the assailants. Vikram also reached the spot. He was also attacked by them. His cousin brother Kunwar Singh also reached the spot. He also received the injuries. Himanshu fell down. Injured persons were removed to the hospital. Himanshu was declared dead. He has categorically deposed that Shiv Pal, Jaipal and Pratap were the assailants. Narendra, Pushpendra and Manoj had not attacked them. At this stage, he was declared hostile and was cross-examined by learned Public Prosecutor. In the cross-examination, he gave the size of spade. He further deposed that Shiv Pal gave one blow on the head of Himanshu. Shiv Pal was facing Himanshu. The distance between Himanshu and Shiv Pal was 2-3 feet. He further deposed that blood was oozing out from his injury. He further deposed that he was attacked by Pratap only. He also attended the last rites of deceased. 15. PW6 Sujit Singh deposed that on 8.5.2008 at 5-5:30 PM, he was in his house along with his brother Abhijit Singh. He heard the noise of his uncle. They both reached on the spot. They saw that Shiv Pal was carrying spade, Jaipal was having knife and Pratap was having an iron rod. They had already attacked his uncle. Abhijit Singh was bleeding. His aunt Rajbala had also received the injuries. His uncle Vikram Singh was also injured. Himanshu was lying unconscious. He was hit on his head by Pratap. His brother was also attacked by them. According to him also, Narendra, Pushpendra and Manoj had not come on the spot. In his cross-examination, he has reiterated that he was only hit by Pratap. 16. PW7 Sohan Singh deposed that on 8.5.2008, he had gone to Civil Hospital, Roorkee. Police reached the hospital and prepared the inquest report of the dead body of Himanshu. 17. PW8 Bhim Singh was declared hostile. According to him, neither Pushpendra nor Shiv Pal had got the Palkati or spade recovered in his presence. 18. PW9 Dr. Ajay Mohan has conducted the post-mortem examination. He has proved the post-mortem report. He noticed following injuries on the dead body: - “1. Incised wound 2 x 0.5 cm bridge of nose, bone deep, bleeding (clotted blood) present. 2. According to him, neither Pushpendra nor Shiv Pal had got the Palkati or spade recovered in his presence. 18. PW9 Dr. Ajay Mohan has conducted the post-mortem examination. He has proved the post-mortem report. He noticed following injuries on the dead body: - “1. Incised wound 2 x 0.5 cm bridge of nose, bone deep, bleeding (clotted blood) present. 2. Incised wound 2 x 0.5 cm, left side occipital region of scalp, 10 cm behind left ear, bleeding present (clotted blood) bone deep.” 19. There was fracture of occipital bone. Sub-dural Hematoma was found on the left side of head. Cause of death of deceased was ante-mortem head injury. 20. In his cross-examination, he deposed that injury no.2 was on the backside of head and it could not be received if the person is hit from the front side but the injury could be received if the person falls on his back. 21. PW10 Amit Singh testified that on the date of incident, Shiv Pal armed with spade, Jaipal armed with knife and Pratap armed with iron rod, trespassed into his house. According to him, they have attacked his father. He came to the rescue of his father. He was also attacked by the assailants. He received multiple injuries. Himanshu reached the spot. Himanshu was also attacked. He received grievous injuries and collapsed. His uncle Vikram Singh along with Kunwar Singh and cousin brothers Sujit Singh and Abhijit Singh also came on the spot. They were also attacked by the assailants. The assailants then ran away from the spot. Himanshu was declared dead. He also deposed that Narendra, Pushpendra and Manoj were not on the spot. 22. PW11 Dr. Raj Kumar has examined the injured witnesses. He has noticed two injuries on the body of Himanshu. According to him, injuries to Himanshu were caused by heavy blunt weapon. Injuries were fresh in nature. He has also examined Vikram Singh, Sujit, Rajbala, Dheer Singh and Abhijeet. 23. PW12 Abhijeet Singh has corroborated the statement of his brother Sujit Singh (PW6). According to him, Shiv Pal armed with spade, Jaipal armed with knife and Pratap armed with iron rod had attacked his uncle. Himanshu was lying unconscious. Amit was bleeding from the head. His aunt was also lying in the compound. Blood was oozing out from her leg. He and his brother Sujit Singh have received the injuries. 24. According to him, Shiv Pal armed with spade, Jaipal armed with knife and Pratap armed with iron rod had attacked his uncle. Himanshu was lying unconscious. Amit was bleeding from the head. His aunt was also lying in the compound. Blood was oozing out from her leg. He and his brother Sujit Singh have received the injuries. 24. PW13 Atikur Rehman has not supported the prosecution case and was declared hostile. 25. PW 14 S.I. Nirja Yadav deposed that Shiv Pal has made the disclosure statement that he has concealed the spade and Balkati in the field and the same were recovered from a sugarcane field. 26. PW15 S.I. Dharmendra Patwal is a formal witness. 27. PW16 Ajay Singh has not supported the prosecution case except that he has stated that he has pointed towards the field of Pratap for the purpose of recovery. 28. PW17 Rajbala deposed that she was sitting with her son Amit. Her husband was washing hands on the tap. At about 5-5:30 PM, Shiv Pal armed with spade, Jaipal armed with knife and Pratap armed with iron rod, trespassed into their house. They attacked her husband. She raised the alarm. Her husband had received grievous injuries. She was pushed by Shiv Pal. Jaipal attacked her with knife. Her son was also attacked with a knife. She fell down and she became unconscious. In her cross-examination, she deposed that blood was oozing out from the injuries received by her husband. 29. PW18 Padam Singh is the father of deceased. He has stated that on 8.5.2008, he received information that his son Himanshu has received the injuries. He reached the spot. Then he came to know that his son was taken to the hospital. When he reached the hospital, Himanshu was dead. 30. PW19 S.I. Nautan Dass is a formal witness. 31. PW20 Dr. Yogesh Kumar, Radiologist, has undertaken the X-ray of Abhijeet Singh. According to him, there was a fracture of Second Metacarpal Bone in the left hand of Abhijeet Singh. The distal phalangeal bone of his thumb was also dislocated. 32. PW21 Vishal Verma did not support the prosecution case and was declared hostile. 33. Prosecution has not led any evidence to link Narendra, Pushpendra and Manoj with the offence. No witness has deposed against them. 34. However, there is overwhelming evidence available on record against the respondents Shivpal, Jaipal and Pratap. 35. 32. PW21 Vishal Verma did not support the prosecution case and was declared hostile. 33. Prosecution has not led any evidence to link Narendra, Pushpendra and Manoj with the offence. No witness has deposed against them. 34. However, there is overwhelming evidence available on record against the respondents Shivpal, Jaipal and Pratap. 35. PW1 Vikram Singh, though was declared hostile, has categorically stated in his examination-in-chief that few persons have entered his compound armed with Lathi, Palkati, Ballam, Spade, knife and iron rod. They attacked Dheer Singh. He along with Kunwar Singh, Rajbala, Abhijit Singh, Sujit Singh and Himanshu had reached the spot. PW5 Dheer Singh has categorically deposed that Shiv Pal was armed with a spade, Jaipal Singh was armed with a knife and Pratap Singh was having an iron rod. Pratap Singh attacked him with iron rod. He tried to save himself. Himanshu hearing the noise came on the spot. Shivpal hit Himanshu on the back of his head by spade. His son Amit and wife Rajbala also came on the spot. They were also attacked. Jaipal pushed his wife with the knife. PW10 Amit Singh also deposed that Shivpal, Jaipal and Pratap have entered his house. His father was attacked by them. He was also beaten up. Himanshu reached on the spot. Himanshu was also attacked by them. His mother also received the injuries. PW12 Abhijeet Singh has corroborated the statement of his brother Sujit Singh (PW6). He also deposed that they reached the house of their uncle. He had seen that Shiv Pal was armed with a spade, Jaipal Singh was armed with a knife and Pratap Singh was having an iron rod. They were also attacked. Himanshu was lying unconscious. PW17 Smt. Rajbala is the wife of Dheer Singh. She has also deposed that when she was sitting in the compound with her son Amit, her husband was washing his hands. In the meantime, Shiv Pal armed with a spade, Jaipal Singh armed with a knife and Pratap Singh armed with an iron rod, reached their house. They attacked her husband. She and her son Amit tried to save her husband. Her husband received serious injuries. Jaipal hit him with knife. 36. The weapon of offence i.e. Palkati and spade were also recovered at the instance of the respondent Shiv Pal. They attacked her husband. She and her son Amit tried to save her husband. Her husband received serious injuries. Jaipal hit him with knife. 36. The weapon of offence i.e. Palkati and spade were also recovered at the instance of the respondent Shiv Pal. Statements of PW5 Dheer Singh, PW6 Sujeet Singh, PW10 Amit Singh, PW12 Abhijeet Singh and PW17 Smt. Raj Bala are duly corroborated by the medical evidence. The deceased had died due to ante-mortem head injury. 37. Learned Advocates appearing on behalf of the respondents has vehemently argued that as per the prosecution case, Shivpal has hit the deceased on his front by the spade and thus, there was no possibility of injury being received by the deceased on the backside of his head. 38. Spade is an agricultural instrument. It is used to dig the land. From the nature of the instrument i.e. Spade, the injury on the backside is possible and moreover, the possibility of avoiding the injury by ducking cannot be ruled out. Cause of death of deceased was injury no.2 which has proved fatal. Respondents Shivpal, Jaipal and Pratap have beaten up PW5 Dheer Singh, PW6 Sujeet Singh, PW10 Amit Singh, PW12 Abhijeet Singh and PW17 Smt. Raj Bala. According to PW20 Dr. Yogesh Kumar, who has conducted the X-ray examination of Abhijeet, he has noticed the fracture of II Metacarpal bone and the phalangeal bone of his thumb was also dislocated. In the supplementary report of Dheer Singh (Ex.A-10), injury no.2 has been found to be grievous in nature. Smt. Rajbala (PW17) has also received injury on her leg. All the injured persons were medically examined by PW11 Dr. Raj Kumar. He has noticed various injuries on them. All the injuries were fresh in nature. 39. The Trial Court has not correctly appreciated the evidence produced by the prosecution. There are no major contradictions in the statements of prosecution witnesses. The statements of the relative witnesses can be relied upon if they inspire the confidence. The statements of the eyewitnesses have been duly corroborated, as noticed hereinabove, by the medical evidence. The weapon of offence was also recovered at the instance of respondent Shiv Pal from the sugarcane field of Pratap Singh. PW1 Vikram Singh, though declared hostile, has categorically deposed that few persons armed with Lathi, Palkati, Ballam, Spade, Knife and Iron Rod entered his house. The weapon of offence was also recovered at the instance of respondent Shiv Pal from the sugarcane field of Pratap Singh. PW1 Vikram Singh, though declared hostile, has categorically deposed that few persons armed with Lathi, Palkati, Ballam, Spade, Knife and Iron Rod entered his house. The respondents Shivpal, Jaipal and Pratap, in furtherance of their common intention, attacked Himanshu, Dheer Singh, Abhijeet, Sujeet Singh, Amit Singh and Smt. Raj Bala with deadly weapons. 40. Thus, the prosecution has duly proved its case against the respondents Shivpal, Jaipal and Pratap for the offence of Section 302 IPC r/w Section 34 IPC. Prosecution has also proved that the respondents Shivpal, Jaipal and Pratap, with the common intention, have also caused grievous injuries to PW5 Dheer Singh and PW12 Abhijeet. They have also caused injuries to PW6 Sujeet Singh, PW10 Amit Singh and PW17 Smt. Raj Bala. 41. In 1990 (Supp) SCC 804, their Lordships of Hon. Supreme Court in the matter of ‘Baital Singh & another v. State of U.P.’ have held that the conviction u/s 302/149 IPC can be altered to that u/s 302/34 IPC even in absence of such charge if facts of the case are such that accused could be charged alternatively thereunder. Their Lordships have held as under: - “As a result of acquittal of Baital Singh we alter the conviction of the remaining accused from Section 302 read with Section 149 to Section 302 read with Section 34 of the IPC. It is true that there was no charge under Section 302 read with Section 34 of the Indian Penal Code but the facts of the case are such that the accused could have been charged alternatively either under Section 302 read with Section 149 or under Section 302 read with Section 34. In this case according to the prosecution story all the accused came out of the house of Baital Singh and attacked Sri Lal. Ram Gopal and Ram Charan were armed with spears whereas Bidha, Baital Singh and Sheo Charan were armed with lathis. In the circumstances of the case no prejudice is likely to be caused to the accused whose appeal is being dismissed. This Court in Lachman Singh v. State1 and Karnail Singh v. State of Punjab has held that the conviction under Section 149 can be substituted by Section 34 keeping in view the facts of the case.” 42. In the circumstances of the case no prejudice is likely to be caused to the accused whose appeal is being dismissed. This Court in Lachman Singh v. State1 and Karnail Singh v. State of Punjab has held that the conviction under Section 149 can be substituted by Section 34 keeping in view the facts of the case.” 42. In (1996) 10 SCC 79 , their Lordships of Hon. Supreme Court in the matter of ‘Dhanna v. State of M.P.’ have held that where the accused has been charged u/s 302 and 148 r/w Section 149 IPC, the conviction u/s 302 r/w Section 34 is not illegal. Their Lordships have held as under:- “7. The High Court found that there was no unlawful assembly as the strength of the assembly was insufficient to constitute it into “unlawful assembly”. But if the Court enters upon a finding that any of the remaining persons who participated in the crime had shared common intention with the main perpetrators of the crime, the Court is not helpless in seeking the aid of Section 34 (IPC) to enter a conviction against such persons arraigned as the accused. This is despite the difference between the scope of Section 34 and Section 149. Yet they have some resemblance between each other and are to some extent overlapping. 9. It is, therefore, open to the court to take recourse to Section 34 of IPC even if the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concerned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. (Amar Singh v. State of Haryana, Bhoor Singh v. State of Punjab.) The first submission of the learned counsel for the appellant has no merit.” 43. In 1996 SCC (Cri) 672, their Lordships of Hon. Supreme Court in the matter of ‘Jai Singh v. State of Maharashtra’ have held that alternative convictions with the aid of Section 149 as well as Section 34 IPC can be awarded. Their Lordships have held as under: - “5. Being seized with judgment of affirmance, we are really called upon to decide whether the conviction is against the weight of the materials on record or suffers from any legal infirmity. Their Lordships have held as under: - “5. Being seized with judgment of affirmance, we are really called upon to decide whether the conviction is against the weight of the materials on record or suffers from any legal infirmity. As to the latter, submission advanced is that the courts below erred in law in awarding alternative convictions with the aid of Section 34 as well as Section 149 of the Indian Penal Code. The submission must be taken to have been squarely answered against the appellants because of what has been stated by a Constitution Bench in Willie (William) Slaney v. State of M.P. In that case, this Court spelt out the scope of these two sections and, what is important for our purpose, the fact of absence of charge under these sections. There the charge was under Sections 302/34, but the only co-accused having been acquitted, the conviction of the left out accused, who was the appellant, was challenged on the ground that the element of common intention having got dropped out, the conviction of the appellant was not sustainable. In the two concurring judgments it was pointed out that the omission to frame a charge or the departure from the charge cannot invalidate conviction unless prejudice has been caused. We would say the same about the alternative conviction in the present case. We, therefore, find no legal infirmity in the conviction as awarded.” 44. In 2004 Cri.L.J. 4217, their Lordships of Hon. Supreme Court in the matter of ‘Karnam Ram Narsaiah & others v. State of Andhra Pradesh’ have held that conviction of accused u/s 302 r/w Section 34 was proper even in absence of charge u/s 34 IPC. Their Lordships have held as under: - “9. In the result, we do not find any error or illegality in the conviction of the appellants under Section 302 read with Section 34. Even otherwise also there was no specific charge against them for the offence under Section 302 read with Section 34. The appeal is accordingly dismissed.” 45. In (2010) 11 SCC 782 , their Lordships of Hon. Supreme Court in the matter of ‘Sangappa Sanganabasappa M. v. State of Karnataka’ have held that the conviction can be held with the aid of Section 34 when charge is u/s 149 IPC. Their Lordships have held as under: - “23. The appeal is accordingly dismissed.” 45. In (2010) 11 SCC 782 , their Lordships of Hon. Supreme Court in the matter of ‘Sangappa Sanganabasappa M. v. State of Karnataka’ have held that the conviction can be held with the aid of Section 34 when charge is u/s 149 IPC. Their Lordships have held as under: - “23. The High Court rightly concurred with the view of the trial court in coming to the conclusion that it is not a case which would attract the provisions of Sections 148 and 149 IPC. On the other hand, the evidence available on record suggests that it is only the appellants who committed assault on Irappa and Kenchappa with jambiya and axes and caused the fatal injuries to the two deceased persons Irappa and Kenchappa. The participation of other appellants along with Appellant 1 and common intention on their part is clearly evident from the evidence available on record. The High Court rightly convicted the appellants for the offence punishable under Section 302 with the aid of Section 34 IPC. The High Court is absolutely right in coming to the conclusion that the appellants participated in the assault on the two deceased persons and inflicted fatal injuries on the vital parts of the bodies of both the deceased. The assault had been conjointly committed by all the appellants. The sequence of events and total circumstances if taken together into consideration it is clearly evident that the appellants shared common intention to commit the offence for which they are liable to be convicted. 24. The High Court did not commit any error in convicting the appellants alone for the offence punishable under Section 302 with the aid of Section 34 IPC. The High Court is perfectly justified in reversing the order of acquittal passed by the trial court which totally misread the evidence of eyewitnesses and disbelieved them on fanciful grounds. The trial court was carried away with the minor inconsistencies in the evidence of prosecution witnesses for rejecting the prosecution case. The trial court committed serious error in rejecting the evidence of PW 8 and PW 9 only on the basis that they are related to the deceased. Their relationship with the deceased per se would not be a ground to reject their evidence. The trial court committed serious error in rejecting the evidence of PW 8 and PW 9 only on the basis that they are related to the deceased. Their relationship with the deceased per se would not be a ground to reject their evidence. It is true that the evidence of interested witnesses has to be properly assessed and carefully scrutinised which the High Court did in exercise of its appellate jurisdiction.” 46. In (2012) 10 SCC 256 , their Lordships of Hon. Supreme Court in the matter of ‘Dahari & others v. State of U.P.’ have held that non-applicability of Section 149 Indian Penal Code is no bar for the purpose of convicting the accused Under Section 302 r/w Section 34 Indian Penal Code, if the evidence discloses the commission of an offence, in furtherance of the common intention of such accused. This is because, both, Sections 149 and 34 Indian Penal Code deal with a group of persons who become liable to be punished as sharers in the commission of an offence. Further held that in a case where the prosecution fails to prove that the number of members of an unlawful assembly are 5 or more, the court can simply convict the guilty persons with the aid of Section 34 Indian Penal Code, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question. Their Lordships have held as under: - “16. Another question worth consideration is whether the appellants can be convicted under Section 302 read with Section 149 IPC in the event that the High Court has acquitted three persons among the accused and the number of convicts has thus, remained at a number that is less than 5, which is in fact, necessary to form an unlawful assembly as described under Section 141 IPC. 17. This Court in Amar Singh v. State of Punjab held as under: (SCC p. 682, para 9) “9. … As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. … As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under Section 148 or Section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an ‘unlawful assembly’ is that such assembly must be of five or more persons, as required under Section 141 IPC. In our opinion, the convictions of the appellants under Sections 148 and 149 IPC cannot be sustained.” (emphasis added) 18. Similarly, in Nagamalleswara Rao (K.) v. State of A.P. this Court observed: (SCC p. 537, para 8) “8. However, the learned Judges overlooked that since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, Section 149 cannot be invoked for convicting the four appellants herein. … It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the eleven other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object.” (emphasis added) 19. Similarly, this Court in Mohd. Ankoos v. Public Prosecutor held as under: (SCC p. 107, para 35) “35. Section 148 IPC creates liability on persons armed with deadly weapons and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC. Section 148 IPC creates liability on persons armed with deadly weapons and is a distinct offence and there is no requirement in law that members of unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC. However, where an accused is charged under Section 148 IPC and acquitted, conviction of such accused under Section 302 read with Section 149 IPC could not be legally recorded. We find support from a four-Judge Bench decision of this Court in Mahadev Sharma v. State of Bihar….” 20. Undoubtedly, this Court has categorically held that in such a situation, a conviction cannot be made with the aid of Section 149 IPC, particularly when, upon the acquittal of some of the accused, the total number of accused stands reduced to less than 5, and it is not the case of the prosecution that there are in fact, some other accused who have not yet been put to trial. However, it is also a settled legal proposition that in such a fact situation, the High Court could most certainly have convicted the appellants, under Section 302 read with Section 34 IPC. 21. In Nethala Pothuraju v. State of A.P. this Court while considering a similar case, held that the non-applicability of Section 149 IPC is no bar for the purpose of convicting the accused under Section 302 read with Section 34 IPC, if the evidence discloses the commission of an offence, in furtherance of the common intention of such accused. This is because both Sections 149 and 34 IPC deal with a group of persons who become liable to be punished as sharers in the commission of an offence. Thus, in a case where the prosecution fails to prove that the number of members of an unlawful assembly are 5 or more, the court can simply convict the guilty persons with the aid of Section 34 IPC, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the crime in question. 22. 22. A similar view has been reiterated in Jivan Lal v. State of M.P. and Hamlet v. State of Kerala [See also: Willie (William) Slaney v. State of M.P., Fakhruddin v. State of M.P., Gurpreet Singh v. State of Punjab, Sanichar Sahni v. State of Bihar, S. Ganesan v. Rama Raghuraman and Darbara Singh v. State of Punjab.] 23. In view of the above, we do not find any force in the aforementioned submissions of the appellants and the same are not worth acceptance.” 47. For the foregoing reasons, the prosecution has been able to prove its case against the respondents Shivpal, Jaipal and Pratap for the offence of Section 302/34 IPC. The respondents Shivpal, Jaipal and Pratap are further convicted for the offence of Section 325/34 IPC for causing grievous hurt to PW5 Dheer Singh and PW12 Abhijeet Singh. They are further convicted u/s 323/34 IPC for voluntarily causing hurt to PW6 Sujeet Singh, PW10 Amit Singh and PW17 Smt. Raj Bala. However, these respondents Shivpal, Jaipal and Pratap are acquitted for the remaining offences under which they were charged. 48. The prosecution has, however, failed to prove its case against the respondents Narendra, Pushpendra and Manoj for the offences under which they were charged. 49. The government appeal is, accordingly, partly allowed. The respondents Shivpal, Jaipal and Pratap are held guilty and convicted for the offences under Section 302/34 IPC, Section 325/34 IPC and Section 323/34 IPC. 50. Let these accused be produced before the Court for hearing on the quantum of sentence on 20th November, 2017. Production warrant be accordingly prepared by the Registry of the Court ensuring the presence of the respondents/accused Shivpal, Jaipal and Pratap for hearing on the quantum of sentence on the next date fixed. 51. Put up on 20th November, 2017 for further orders.