JUDGMENT : Shabihul Hasnain, J. These four criminal appeals have been filed against common judgment and order dated 8.1.2013 passed by Additional Sessions Judge/ Special Judge, E.C. Act, Lucknow in Sessions Trial No.371 of 2005, Case Crime NO.307 of 2004, police station -Sarojni Nagar, District Lucknow convicting all the four accused-appellants, namely, Guddu Duevedi @ Arvind Kumar, Ram Sagar, Bhoore Singh and Pintu alias Awadhesh Srivastava under Sections- 147, 148, 323/149, 325/149 and 302/149 IPC and sentencing them upto to life imprisonment, hence, these are being decided by this common judgment and order. 2. The prosecution in brief is that the informant of the case Devesh Yadav lodged a written report on 8.10.2004 to the effect that on 7.10.2004 at about 12 in the night when he along with his brother Jivendra Yadav, his father Genda Lal Yadav and his friends Atul Maurya and Harish reached to Pahalwan Dhaba at Maurang Mandi Transport Nagar to take tea, they saw that Guddu Duevedi alias Arvind Dwivedi armed with DBBL gun, Fauji alias Jageshwar armed with revolver, Ram Sagar armed with illegal fire arm, Bhoore Singh and Pintu alias Awadhesh Srivastava all together are beating Akhilesh Pandey very badly resulting that front tooth of Akhilesh got broken. Seeing this his younger brother Jivendra Yadav told Guddu Dwivedi alias Arvind Kumar and his companions that you are torturing, this is thoroughly goondai and this goondai is not right. On which aforesaid all accused persons became very angry and all with one target said that hit him with bullets so that he is killed. On his exhortation, Guddu Dwivedi alias Arvind Kumar by his DBBL gun in hands with intention to kill fired on his brother Jivendra Yadav due to which he was hurt and fell down and due to which there was panic in the Mandi and all the tea and pan shops situated in Maurang Mandi got closed and terror spread in the whole area and people began to run by their vehicles out of fear. His father, friends and other people have taken his brother to King Georges' Medical College, Lucknow for treatment. So proper action be taken after lodging the report. 3. On the basis of aforesaid report case was registered on 8.10.2004 at quarter past twelve against all five accused persons in Case Crime No.307/04, under Sections-147, 148, 149, 323, 325, 307 IPC at Police Station Sarojani Nagar. 4. So proper action be taken after lodging the report. 3. On the basis of aforesaid report case was registered on 8.10.2004 at quarter past twelve against all five accused persons in Case Crime No.307/04, under Sections-147, 148, 149, 323, 325, 307 IPC at Police Station Sarojani Nagar. 4. The investigating officer after investigation submitted charge sheet against accused Guddu Dwivedi alias Arvind Kumar, Fauji alias Jageshwar, Ram Sagar, Bhoore Singh and Pintu alias Awadhesh Srivastava under Sections 147, 148, 149, 323, 325, 302 IPC in the court concerned. 5. The Sessions Court took cognizance of the charge sheet and framed charges against all the accused persons under aforesaid Sections to which they pleaded not guilty and demanded trial. 6. During trial it was reported that accused Jageshwar alias Fauji has died, hence, vide order dated 24.11.2008 the case against him was abated. 7. For proving the guilt the prosecution produced eleven witnesses, namely, P.W-1 Informant of the case Devesh Yadav, P.W.-2 Genda Lal, P.W.-3 Atul Kumar Maurya, P.W.-4 S.I. Rajeev Kumar Yadav, P.W.-5 S.I. Ram Krishan Yadav, P.W.-6 Dr. P. K. Joshi, P.W.-7 Capt. Ajay Kumar Srivastava, P.W.-8 S. I. Mohan Verma, P.W.-9 S. I. Vinod Kumar Dubey, P.W.-10 Akhilesh Pandey and P.W.-11 Head Constable Sayeed and got them examined. 8. P.W.-1 informant of the case Devesh Yadav fully supported the prosecution case and reiterated the contents of the F.I.R. in his statement on oath. 9. P.W.-2 Genda Lal also supported the prosecution case by stating on oath that the incident happened at 12 in the night of 7.10.2004. He along with his two sons, namely, Devesh and Jivendra and two friends Harish and Atul, had gone to the Mandi for buying Maurang. They had gone to the Pahalwan Dhabad situated in Maurang Mandi for taking tea where they saw that the accused persons were beating a boy who was a resident boy of L.D.A. colony due to which the front tooth of that boy had broken down; on which his son Jivendra said that you are doing goondai thoroughly, why are you beating. At this the accused threatened him to hit with bullets so that he is killed. Accused Guddu was armed with DBBLGun, Ram Sagar was armed with Katta and Jageshwar alias Fauji was armed with Revolver. At this the accused threatened him to hit with bullets so that he is killed. Accused Guddu was armed with DBBLGun, Ram Sagar was armed with Katta and Jageshwar alias Fauji was armed with Revolver. All the accused exhorted to kill on which Guddu Dwivedi with his gun fired at his son Jivendra which hit his son in the thigh due to which he fell down. They took the hurt Jivendra to Medical college for treatment where he died at 4, 5 O' clock in the same night due the fire of bullets. The report of that incident was lodged by his son Devesh at Police Station Sarojni Nagar. 10. P.W.-6 Dr. P. K. Joshi, who had examined the dead body of Jivendra Yadav found 2 cm. x 2 cm. muscle deep anti mortem injury on outer side of right thigh below 12 cm. of right eyelet trust. According to the doctor the cause of death was due to shock and hemorrhage due to fire arm anti mortem injury. P. W. 7 Capt. Ajay Kumar Srivastava stated on oath that he had medically examined Akhilesh Pandey and found following injuries on the body: 1. incised wound 3.5 cm. x 0.5 cm. on the head above 7 cm. above the wound 2. incised wound 1.5 cm. x 0.5 cm. muscle deep on the inner side of upper lip. 3. four teeth of upper jaw and three teeth of lower jaw were broken 4. pain was complained on left side of the back but there was no deep wound. 11. All wounds were fresh and caused by any blunt object. 12. The accused in their statement under Section 313 Cr.P.C. said that they are falsely implicated due to malafide intentions, the witnesses have given false statements and false charge sheet has been submitted. The defence in their support examined D.W.-1 Bhoorat Singh and D.W.-2 Nitin Kumar Rajpoot. 13. Heard Sri Nagendra Mohan, learned counsel for the appellant in Criminal Appeal No.201 of 2013, Sri Amit Chaudhary for the appellant and Sri Dinesh Kumar Pushpakar for the complainant in Criminal Appeal No.122 of 2013, Sri V. M. Sahai for the appellant in Criminal Appeal No.186 of 2013 and another learned counsel for the appellant in Criminal Appeal No.77 of 2013 and Sri Umesh Verma, learned A.G.A. for the State in all these appeals. 14. 14. The main argument of learned counsel for the appellants is to the effect that according to the F.I.R. only Guddu Dwivedi alias Arvind Dwivedi is said to have fired at the deceased Jivendra Yadav. All other accused, who are said to be armed with deadly weapons, have not made any assault. It has been stated that Fauji alias Jageshwar was having revolver in his hands, Ram Sagar was armed with illegal fire arm, Bhoore Singh and Pintu alias Awadhesh were also present but they were not armed. 15. It has been argued that while Jageshwar armed with revolver and the other accused armed with illegal fire arms had deadly weapon but they did not make any assault with their guns. Guddu Dwivedi is said to have fired at the thigh of Jivendra Yadav. Admittedly, thigh is a non vital part and it cannot be said that there was clear intention to kill. It has been forcefully argued that the F.I.R. discloses the fact that they were hitting/assaulting deceased Jivendra Yadav. P.W.-1 Devesh Yadav in his statement has deposed that he was present on the spot. The accused were beating one Akhilesh Pandey and later-on he said that he does not remember the name of the person, who was being beaten. He has also stated that teeth of Akhilesh were broken and his brother could not bear the site. He reprimanded the accused, who in turn exhorted the others to kill his brother Jivendra Yadav. 16. In cross examination he has submitted that he did not know why the accused appellants were hitting the unknown person. He has also submitted that there was no enmity between the accused-appellants as well as his deceased brother. He has also submitted that Bhoore Singh and Pintu did not have any weapon in their hands. P.W. 2 Genda Lal, who is the father of the deceased as well as P.W.1, who has submitted that he was also present at the place of incident. More or less he has also affirmed the statements of Devesh P.W.1. He has also submitted that he did not know Bhoore and Pintu. He has also submitted that although he was present but he did not try to save his son, his other son tried to save his brother. There is no statement that any one tried to attack him or his other son. He has also submitted that he did not know Bhoore and Pintu. He has also submitted that although he was present but he did not try to save his son, his other son tried to save his brother. There is no statement that any one tried to attack him or his other son. Evidence of P.W. 3 has also been recorded as an eye witness but he turned hostile and has denied having seen the accused-appellants along with weapons. He has also submitted that Jageshwar alias Fauji is now dead. He was killed in an encounter and he came to know about the death of Jivendra around quarter past twelve but he did not know as to who killed Jivendra. 17. Learned counsel for the appellants has argued that there are discrepancies in the statements of P.W.1 and P.W.2. Apart from that it has been argued that even if the case of the prosecution is believed, the legal position which emerges out will be to the effect that it was a case of sudden provocation and it will be covered under Section 304 IPC. For convenience Section 304 IPC is reproduced as under:- "304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." 18. It has been argued that none of the witnesses have said that there was any prior enmity with the accused. They were beating Akhilesh Pandey, who is an eye witness turned hostile, whose front teeth was broken. Jivendra Yadav, the deceased intervened in the matter and Devesh alias Guddu suddenly fired at deceased on non vital part. However, the injury so caused proved fatal later-on and Jivendra died in the hospital. They were beating Akhilesh Pandey, who is an eye witness turned hostile, whose front teeth was broken. Jivendra Yadav, the deceased intervened in the matter and Devesh alias Guddu suddenly fired at deceased on non vital part. However, the injury so caused proved fatal later-on and Jivendra died in the hospital. The trial court has convicted the accused persons with the help of 149 IPC. 19. Let us examine Section 149 IPC which is quoted herein below:- "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 the committing of that offence, is a member of the same assembly, is guilty of that offence." 20. We see that there are three ingredients of this Section; first there must be an unlawful assembly; second commission of an offence by any member of unlawful assembly and third such offence must have been committed in prosecution of the common object of the assembly or must be such as the members of the assembly knew to be likely to be committed. 21. In Waman Vs. State of Maharashtra, (2011) AIR SC 3327 it has been held that in order to attract Section 149 of the Code it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly. It must be within the knowledge of the other members as one likely to be committed in prosecution of common object. If members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of a common object, they would be liable for the same under section 149. In the present case this knowledge is missing. 22. In Surendra Vs. State of U.P., (2012) AIR SC 1743 it has been held that inference of common object has to be drawn from various factors, such as, weapons with which the members were armed, their movements, the acts of violence committed by them and the result. 23. In the present case this knowledge is missing. 22. In Surendra Vs. State of U.P., (2012) AIR SC 1743 it has been held that inference of common object has to be drawn from various factors, such as, weapons with which the members were armed, their movements, the acts of violence committed by them and the result. 23. In Sabid Ali, (1873) 20 WR (Cr) 52011 Bengal LR 347 it was held that where a number of persons went together to eject a man from a piece of land, the title of which was in dispute, and upon a vigorous resistance being made, one of the party, who was armed with a gun, fired at and killed the resisting person, it was held that he was guilty of murder, but that the other members of the unlawful assembly were not guilty of murder under this section as the act of killing was not the common object of the assembly, or "likely to be committed in the prosecution of that object.". 24. Taking this view in a later case of Kshudiram Majhi vs The State Of West Bengal, (1972) CriLJ 756 (SC), it was held that where the accused were in a position to cause many deaths as each one of them was having firearms in his hands. It was held that murder committed by one of accused would not attract the provision of Section 149 as their common object was not to cause the death. Similarly when every one had not used the weapons, the conviction for injury caused would not constitute joint liability and in both the situations conviction will be under Section 302 and 307 and not under Section 302/149 and 307/149. Such accused persons could not be held vicariously liable with help of 142 IPC as it was not common object nor had common animosity against them. 25. In Chikkarange Gowda And Ors. vs State Of Mysore, (1956) AIR SC 731, the charge found by the court was merely to administer a chastisement to the deceased as the same did not mention that the members of unlawful assembly knew that the deceased was likely to be killed in prosecution of common object. Certain members of unlawful assembly killed the deceased by causing fatal injury. It was held that the conviction under Section 302 read with Section 149, IPC was not justified in law. Certain members of unlawful assembly killed the deceased by causing fatal injury. It was held that the conviction under Section 302 read with Section 149, IPC was not justified in law. However, appellant was convicted under Section 326 and conviction of another accused who had caused the death was confirmed. 26. We also refer to Chandrapal alias Rajpal Vs. State of U.P., 2004 Crl 287 SC wherein the deceased when tried to intervene in the clash and without any motive the conviction under Section 302/149 was held improper. All the accused were convicted under Section 326/149 IPC. 27. So far common object has given in Section 149 IPC is concerned, the Trial Court has ruled that all the co-accused had developed common object on the basis of exhortation. On closure examination we find that according to P.W.1 and 2 there was no prior enmity. The accused appellants were already beating one Akhilesh Pandey, who had nothing to do with the deceased. We also find that two other persons apart from Guddu Yadav were armed with fire arm yet there is only one injury to the deceased. There was no other injury to the deceased. Neither the father of the deceased who is said to have been present on the spot nor the brother who has deposed his presence at the time of occurrence have received injuries. There is not even a scuffle and an attempt to put Jivendra to death. The injury caused by Guddu Dwivedi is on the thigh. If there was an intention to kill fire arms could have been used on the vital parts and if the first fire had missed the vital part second fire should have ensued. The statement of P.W.3 is not clear as to who exhorted to kill the complainant party. It has been argued that if there was any common object to kill by them some kind of attempt should have been made on the life of all of them. Under the circumstances, we are not inclined to believe that exhortation was made with common object to kill the deceased. If there was an intention to kill Jivendra Yadav and there was a common object amongst the accused - appellants then we cannot imagine the normal conduct as to why the real brother and father, who are said to be present on the spot were spared without even a minor injury. If there was an intention to kill Jivendra Yadav and there was a common object amongst the accused - appellants then we cannot imagine the normal conduct as to why the real brother and father, who are said to be present on the spot were spared without even a minor injury. We are inclined to believe that the element of exhortation has been introduced only to rope in all the accused almost together. No role has been assigned to Bhoore and Pintu. It appears that it was Guddu Dwivedi alone who fired the shot and there was no common object which could have developed suddenly amongst all the accused-appellants. The action of Guddu Dwivedi was instant action and his case can be differentiated from the others. 28. Accordingly, we are not inclined to agree with the conviction recorded by the Sessions Judge, so far other accused persons are concerned, if the application under Section 149 I.P.C. goes, then we have to consider the role of Guddu Dwivedi only. The rest of the accused persons are liable to be acquitted. The appeal preferred by them stand allowed. The judgment and order under challenge is, therefore, quashed so far it relates to the accused-appellants Bhoorey Singh, Pintu alias Awadhesh Srivastava and Ram Sagar, who are hereby acquitted of all the charges against them, they shall be released forthwith if not wanted in any other case. 29. So far the case of Guddu Dwivedi is concerned, we believe that he had attacked the deceased Jivendra on the non-vital part. He could not be said to have knowledge and intention both that the said act of him will be fatal for causing the death of Jivendra. The evidence on record shows that the offence committed by Jivendra can well be attributed to one punishable under Section 304 Part II IPC. We accordingly modify the punishment of accused-appellant Guddu Dwivedi alias Arvind Kumar from under Section 302 read with 149 IPC to that of Section 304 Part II I.P.C. We are of the considered opinion that a sentence of five years' imprisonment would suffice the ends of justice so far accused Guddu is concerned. The judgment and order under challenge is modified to that extent in respect of Guddu Duevedi @ Arvind Kumar. 30. Appellant Guddu Duevedi @ Arvind Kumar is in jail. He shall serve out the remaining part of the sentence. The judgment and order under challenge is modified to that extent in respect of Guddu Duevedi @ Arvind Kumar. 30. Appellant Guddu Duevedi @ Arvind Kumar is in jail. He shall serve out the remaining part of the sentence. The record of the case be sent back to the court concerned for compliance.