JUDGMENT Goverdhan Bardhar, J. - This criminal appeal under section 374 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC') has been filed by nine accused-appellants, namely, Chain Singh, Kalulal, Chaganlal, Nandlal, Dhannalal @ Dhanraj, Pappulal, Onkarlal, Gyan Singh and Motilal, assailing Judgement dated 17.12.2011 passed by learned Additional Sessions Judge, Jhalawar, District Jhalawar in Sessions Case No. 97/2011, whereby learned trial court convicted and sentenced the accused-appellants as follows:- Accused-appellants Sentence under Section of the IPC Chain Singh, Kalulal, Chaganlal, Nandlal, Dhannalal @ Dhanraj, Pappulal, Onkarlal, Gyan Singh and Motilal 148- To undergo two years SI with fine of Rs. 500/-; in default, to further undergo one month simple imprisonment. 341- To undergo one month simple imprisonment. 323- To undergo six months SI with fine of Rs. 500/-; in default, to further undergo one month simple imprisonment. 302/149- Life Imprisonment with fine of Rs. 1000/-; in default, to further undergo six months simple imprisonment. All sentences were ordered to run concurrently. 2. Briefly stated facts of the case are that on 18.04.2009 at 10:35 P.M. complainant Ram Singh (PW11) s/o Bapu Lal, by caste Gurjar, r/o Chandloi, Police Station Sadar, Jhalawar, submitted a written report (Ex.P3) to the effect that at about 10:00 A.M. in the morning his sons Roshan and Kishanlal after taking meal went to Jhalrapatan. He and his wife were alone at home. In the evening, at around 8:30 P.M. his brothers namely; Chaganlal, Chain Singh, Kalulal and Nandlal along with Dhannalal, Pappu Lal both sons of Chain Singh, Onkar Lal, Motilal both sons of Kalulal, Gyan Singh s/o Chaganlal, Mangilal s/o Nandlal and his nephew (Bhanja) Mohan Lal s/o Vajah Singh r/o Saal Doongri, and his brother Roshan and nephew (Bhanja) Balu s/o Ramlal r/o Roja and nephew (Bhanja) Mangilal s/o Ram Singh r/o Nimoda, having 'lathies' in their hands, were sitting in front of the house of Chhagan Lal. When the sons of complainant, Roshan and Kishanlal reached near their place, Chhagan Lal told to kill them. After saying this, all these persons surrounded Roshan and Kishanlal with the intention to kill them. They gave them beating with 'lathies'. When he and his wife Paan Bai intervened, Nandlal and Pappu caught hold of him and his wife was caught hold by Mangi Lal and Moti Lal. While his both sons were lying on the ground, these persons gave beating. They gave them beating with 'lathies'. When he and his wife Paan Bai intervened, Nandlal and Pappu caught hold of him and his wife was caught hold by Mangi Lal and Moti Lal. While his both sons were lying on the ground, these persons gave beating. Mangi Lal and Moti Lal gave beating to his wife from kicks and fists. These persons ran away from the place of occurrence assuming his sons to be dead. Meanwhile, somebody informed the police, on which the police party came in the jeep of police. Both his sons were taken to Jhalawar Hospital, where the doctor declared them to be dead. Thus, the written report is submitted for registration of the case. 3. On the basis of aforesaid written report (Ex.P3), F.I.R. No.114/2009 (Ex.P4) was registered at Police Station Sadar, District Jhalawar, for offences under Sections 147, 148, 302 & 149 IPC. Investigation commenced. 4. The police arrested the accused-appellants and filed challan against them for the offences under Sections 147, 148, 341, 323 and 302/149 IPC. The trial court framed charges for the said offences. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 12 witnesses and also exhibited 48 documents. The defence, in support of its case produced three witnesses and the statements under section 161 Cr.P.C , 1973were marked as Exhibits D1 and D2. 5. Learned trial court, after hearing both the parties, vide impugned Judgement and order convicted and sentenced the accused-appellants in the manner indicated above. Hence this appeal. 6. Learned counsel for the accused appellants argued that while accused appellant No.1-Chain Singh s/o Babulal was serving his sentence in the Open Air Camp, Kota, as has been informed by the learned Addl. District & Sessions Judge, Jhalawar, vide letter No.317 dated 02.06.2018, accused appellant No.1 Chain Singh s/o Bapulal is reported dead. Therefore, the appeal qua accused appellant No.1- Chain Singh s/o Bapulal stands abated. So far as appeal filed by other accused appellants are concerned, learned counsel argued that according to the statement of Sallauddin (PW3), who was I.O. in the case deposed that prior to the written report (Ex.P3) he had submitted a written report and in the report only 10 persons were named. So far as appeal filed by other accused appellants are concerned, learned counsel argued that according to the statement of Sallauddin (PW3), who was I.O. in the case deposed that prior to the written report (Ex.P3) he had submitted a written report and in the report only 10 persons were named. Then, after consultation with a lawyer, again written report was submitted in which 14 accused were named but the prior written report submitted was not exhibited, however, this was the first information received by him. Thus, written report (Ex.P3) on the basis of which FIR was registered is not the FIR. FIR (Ex.P4) clearly shows that the accused appellants were falsely implicated and it was the result of afterthought. Learned counsel argued that Salagram (PW6) and Bhawani Singh @ Bhawani Ram (PW7) both were not present at the time of incident. Despite that, they were produced as witnesses by the prosecution. Learned counsel argued that according to the statement of Salauddin (PW3), when he reached the hospital, Ram Sigh submitted written report against 10 accused. Thereafter, he again submitted written report against 14 accused which clearly shows that Ram Singh was not present where the alleged incident took place and for the first time he reached the hospital and no injury was found on his person. The statement of this witness was corroborated by Sujan Singh (DW1), though he was not an eye witness of the incident. Sujan Singh (DW1) is a close relative of the deceased Roshan and Kishanlal and the father of the deceased, Ram Singh along with Ram Mangal were present at the marriage ceremony then one Goverdhan received phone call that some Kanjar Community had beaten Roshan and Kishanlal. 7. Learned Public Prosecutor opposed the appeal and supported the impugned Judgement and referred to the testimony of all the witnesses. He argued that the Judgement passed by the learned trial court is perfectly justified and does not call for any interference. 8. We have given our anxious consideration to the rival submissions of learned counsel for the accusedappellants as well as the learned Public Prosecutor has also minutely scanned the material on record. 9. Before proceeding further, we think it just and proper to mention the ante-mortem injuries on the dead body of the deceased Roshan and Kishanlal along with the injury report (Ex.P48) of injured Pana Bai. 10. 9. Before proceeding further, we think it just and proper to mention the ante-mortem injuries on the dead body of the deceased Roshan and Kishanlal along with the injury report (Ex.P48) of injured Pana Bai. 10. Postmortem report of deceased Roshan is Ex.P1. The autopsy on the dead body of the deceased was conducted on 19.04.2009 by Dr. B.L. Bhatiya (PW1). During the course of autopsy, he found 25 injuries on his person. All injuries were caused by blunt impact and were fresh before death i.e. caused within 3 hours before death. All of the above injuries are ante mortem in nature. 11. The opinion given as to cause of death of the deceased Roshan is reproduced as under:- "Hemorrhagic shock due to injuries to back of chest (causing fractures of ribs and punctures of lung) enhanced by hemorrhage due to fractures of bones." 12. Postmortem report of deceased Kishan Lal is Ex.P2. The autopsy on the dead body of the deceased was conducted on 19.04.2009 by Dr. B.L. Bhatiya (PW1). During the course of autopsy, he found 28 injuries on his person. All the injuries were caused by blunt impact and were fresh before death (0-3 hours). All of the above injuries are ante mortem in nature. 13. The opinion given as to the cause of death of the deceased Kishan Lal is reproduced as under:- "Coma due to SDH as a result of head injury and hemorrhage due to multiple fractures of bones. Coma due to SDH is sufficient to cause death." 14. Dr. B.L. Bhatiya (PW1) deposed that on 19.04.2009 he was posted as Medical Jurist in Jhalawar Medical College. He examined Roshan (deceased). He sustained 25 injuries. All the injuries were of blunt weapon and the duration of all the injuries was three hours prior to his death. 15. Dr. B.L. Bhatiya (PW1) deposed that on 19.04.2009 he was posted as Medical Jurist in Jhalawar Medical College. He examined Kishan Lal (deceased). He sustained 28 injuries. All the injuries were of blunt weapon and the duration of all the injuries was three hours prior to his death. 16. Dr. Dheeraj Khanna (PW12) deposed that on 19.04.2009 he was posted as Medical Jurist in Jhalawar Medical College & Hospital. On that day he examined Pana Bai w/o Ram Singh (PW2). He sustained 28 injuries. All the injuries were of blunt weapon and the duration of all the injuries was three hours prior to his death. 16. Dr. Dheeraj Khanna (PW12) deposed that on 19.04.2009 he was posted as Medical Jurist in Jhalawar Medical College & Hospital. On that day he examined Pana Bai w/o Ram Singh (PW2). He deposed that the injury on the person of the injured was of blunt weapon which is Ex.P48. 17. As per the case of the prosecution, the eye witnesses of the incident are complainant Ram Singh (PW11), Pan Bai and Salag Ram (PW6). They have deposed about the role of the appellants in commission of the crime. 18. Ram Singh (PW11) who is a complainant and an eye witness of the alleged occurrence, in examination-inchief reiterated the averments made in the written report (Ex.P3) on the basis of which FIR (Ex.P4) was registered. This witness in cross examination admitted that they raised hue and cry despite fact that not even a single person of the village came at the time when the quarrel took place. This witness admitted that the accused persons are his family members. He further admitted that neither he submitted the report to the police nor any report was written by him. 19. Pan Bai (PW2) deposed that both of her sons Roshan and Kishanlal went to Jhalrapatan. In the evening at around 8:30 P.M. when they were returning to their home, Chain Singh, Kalulal, Chhagan Lal, Nanda Ji, Dhanraj, Pappu, Moti Lal, Onkar Lal, Gyan Singh, Mangi Lal, Mohan Lal, Roshan, Bal Chand and Mangi Lal, who were having 'lathies' in their hands surrounded them. Chain Singh gave a 'lakdi' blow on the head of Roshan due to which he felt down. When Roshan was lying on the ground, Chain Singh, Chhagan Lal, Dhanraj, Pappu and all others gave them beating from 'lakdies' on his chest and back. She was standing outside her house. Her husband Ram Singh and both her grandsons Salagram and Bhawani Singh were standing adjacent to her. After that Nandao gave a 'lakdi' blow on the head of Kishan due to which he felt down. Thereafter, all the accused persons with the common object started beating them with 'lakdies' and both of them were murdered at the spot. Thereafter, the accused persons ran away. After that Nandao gave a 'lakdi' blow on the head of Kishan due to which he felt down. Thereafter, all the accused persons with the common object started beating them with 'lakdies' and both of them were murdered at the spot. Thereafter, the accused persons ran away. This witness further admitted that the beating took place due to enmity of land. This witness in cross-examination admitted that on the date when the quarrel took place, there was no programme by any person in the village. This witness further deposed that Mohan, Roshan, Balu and Mangilal, all of them were with the accused. This witness admitted that the place of incident was at the distance of 20 ft. from the place where she was standing. When quarrel took place, she raised hue and cry but she did not call the nearby persons of that area. On the date of quarrel, she was not aware where Ram Singh (complainant) was, but he (Ram Singh) returned before sunset. This witness deposed that the marriage took place in day hours and her husband came in the evening. 20. Salagram (PW6) who was minor at the time when the alleged quarrel took place, deposed that his father and 'Kaka' Kishan went to Jhalrapatan for some work. His grandfather Ram Singh Ji, his grandmother Pan Bai and his brother Bhawani Singh were at home. At about 8:30 P.M. his father and 'Kaka' were returning from Jhalrapatan to their village. When they reached near the house of Chhagan Lal, he (Chhagan Lal) told the accused to finish Roshan and Kishanlal. Accused Chain Singh, Kalu Lal, Chhagan Lal, Nanda Lal, Dhanraj, Pappu Lal, Moti Lal, Mangi Lal, Gyan Singh and four other persons of village namely; Mohan Lal, Roshan Singh, Mangi Lal, Balchand were armed with 'lathies'. First of all Chain Singh and Chhagan Lal gave a blow from 'lathi' on the head of his father. Dhanraj and Roshan Singh also gave a lathi blow on the head of his father. Thereafter, all the accused persons gave beating to his father. Kalulal and Nanda gave a 'lathi' blow on the head and chest of his 'kaka'. Thereafter, all the accused persons gave beating to his father. Kalulal and Nanda gave a 'lathi' blow on the head and chest of his 'kaka'. Thereafter, all the accused persons gave beating to his father. Kalulal and Nanda gave a 'lathi' blow on the head and chest of his 'kaka'. Thereafter, all the accused persons gave beating to his father. Kalulal and Nanda gave a 'lathi' blow on the head and chest of his 'kaka'. At the time of occurrence, he along with his brother Bhawani Singh, grandfather Ram Singh and grandmother were sitting on the stones (pattiyan) which were outside house and from there they saw the alleged occurrence. This witness in cross-examination deposed that he stays in Patan for studies but at the time of alleged occurrence he was present on the spot. Bhawani Singh also used to study in Patan but he used to stay in the village. This witness in cross-examination admitted that he did not see the accused persons sitting on the stones (pattiyoen) but the accused persons were sitting at 'khai ka road' for hiding themselves. 'Khai' is situated near all the houses. As soon as his father and 'Kaka' Kishan of Salagram (PW6) reached there, the accused started beating them. No person came from the village and the beating continued for half an hour and after beating, the accused ran away from the place of occurrence. The statement of this witness is corroborated by Bhawani Singh @ Bhawani Ram (PW07). 21. Lal Singh (PW8) and Hemraj (PW9) are the witnesses for recovery of 'lakdi'. 22. Salauddin (PW03) deposed that on 18.04.2009 he was posted as SHO, Police Station Jhalawar. On that date, Ram Singh s/o Bapulal Gurjar submitted the written report (Ex.P3) before him in the Government Hospital, Jhalawar, on the basis of which an FIR No.114/2009 was registered for the offences under sections 147, 148, 302 and 149 IPC. This witness admitted that the persons who were named in the report, four of them were not found to be involved in the incident. This witness deposed that during the course of investigation the evidence came before him that the complainant had put some stones on the land of accused persons and due to this reason there was a dispute between the complainant and the accused persons. 23. Sujan Singh (DW1) deposed that there were no inimical relations between his family and the family of Roshan Kishanlal but Roshan and Kishanlal were having inimical relations with 'kanjars'. 24. 23. Sujan Singh (DW1) deposed that there were no inimical relations between his family and the family of Roshan Kishanlal but Roshan and Kishanlal were having inimical relations with 'kanjars'. 24. Bapu Lal (DW2) deposed that there were no inimical relations in his family. Roshan and Kishanlal were having inimical relations with 'kanjars' and a quarrel of Roshan and Kishanlal took place with 'kanjars' 8-9 about months ago. 25. As per the case of prosecution, the incident took place in front of the house of the accused appellants. Complainant Ram Singh (PW11) and Pan Bai (PW2) deposed that beating took place due to enmity as there was a dispute between the accused persons and the complainant party with regard to some land. Both these witnesses deposed that the accused persons encircled the deceased and Chain Singh gave a 'lakdi' blow on the head of Roshan due to which he fell down. When Roshan was lying on the ground, the accused persons gave beating from 'lakdi' on his chest and back. He further stated that Nandalal gave a blow with 'lakdi' due to which he fell down. Thereafter, all the accused persons gave them beating. Salagram (PW6) deposed that first of all Chain Singh and Chhagan Lal gave blows from 'lathi' on the head of his father. He has further stated that Kalulal and Nanda gave 'lathi' blow on the head and chest of his 'Kaka'. Nobody came from the village and beating took place for half an hour and after giving beating the accused persons ran away from the place of occurrence. 26. The genesis of the occurrence as mentioned by the prosecution and written in FIR is that the accused party made an attack due to enmity with regard to the land dispute. Prosecution witnesses admitted that the 'lakdies' which were held by the accused persons in their hands are normally kept by every farmer for agricultural purpose. The incident took place in front of the house of the complainant party, which reflects that there was no common object of unlawful assembly. Section 149 IPC provides that 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 out of those set out in Section 141. Section 149 IPC provides that 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 out of those set out in Section 141. The expression of the prosecution of common object as appearing in Section 149 IPC has to be strictly construed in order to attain the common object. '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. 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. The learned trial court wrongly held the accused liable under section 149 IPC. 27. As per statements of the prosecution witnesses namely; Pan Bai (PW2), Salagram (PW6) and Ram Singh (PW11), mainly accused Chain Singh, Kalulal, Chaganlal, Nandlal, Dhannalal @ Dhanraj and Pappulal inflicted fatal injuries and other injuries on the person of deceased were not proved to be fatal and it is not clear as to which of the accused inflicted the said injuries. As per the medical evidence, 25 injuries were found to be fatal on the person of deceased Roshan and 28 injuries were found to be fatal on the person of deceased Kishanlal. The aforesaid injuries were attributed to the aforesaid accused. Therefore, applying the rule of separating grain from the cleft, we have to segregate the truth from the falsehood. By that logic, in our view, the learned trial court committed an illegality in convicting the remaining three accused persons Onkarlal s/o Kalulal, Gyan Singh s/o Chaganlal and Motilal s/o Kalulal to whom no active role has been attributed. Evidence of prosecution witnesses justifies conviction of only accused persons Chain Singh s/o Bapulal, Kalulal s/o Bapulal, Chaganlal s/o Bapulal, Nandlal s/o Bapulal, Dhannalal @ Dhanraj s/o Chain Singh and Pappulal S/o Chain Singh with the aid of section 149 IPC. 28. From the statements of the prosecution witnesses and the documents exhibited, it is clear that the prosecution has failed to prove the guilt against accused appellants Onkarlal s/o Kalulal, Gyan Singh S/o Chaganlal and Motilal S/o Kalulal for the offences they have been convicted and sentenced. 28. From the statements of the prosecution witnesses and the documents exhibited, it is clear that the prosecution has failed to prove the guilt against accused appellants Onkarlal s/o Kalulal, Gyan Singh S/o Chaganlal and Motilal S/o Kalulal for the offences they have been convicted and sentenced. However, the prosecution has succeeded in proving all the charges against remaining accused appellants. 29. In the result, the present appeal is disposed of in the following terms:- (i) Appeal of accused-appellant No.1 Chain Singh S/o Bapulal stands abated owing to his death while serving sentence in the Open Air Camp, Kota, as informed by the Additional District & Sessions Judge, Jhalawar, vide letter No.317 dated 02.06.2018. (ii) Accused-appellants, namely, Onkarlal S/o Kalulal, Gyan Singh S/o Chaganlal and Motilal S/o Kalulal are acquitted of the charges for offence under Sections 148, 341, 323 and 302/149 IPC. Their appeal is accordingly allowed. Their conviction and sentence for the aforementioned offences is set aside. Their sentence was suspended by this court vide order dated 10.09.2012 in Application for Suspension of Sentence No.739/2012, thus they are on bail and need not surrender. (iii) Appeal filed by accused-appellants Kalulal S/o Bapulal, Chaganlal S/o Bapulal, Nandlal S/o Bapulal, Dhannalal @ Dhanraj s/o Chainsingh and Pappulal S/o Chain Singh fails and is hereby dismissed. Their conviction and sentence for offence under Sections 148, 341, 323 and 302/149 IPC is upheld. They are in jail and have to serve out the remaining sentence awarded by the trial court. (iv) The Judgement impugned in the appeal is modified in the above terms. (v) Keeping, however, in view the provisions of Section 437- A of the Code of Criminal Procedure, accused-appellants, namely, Onkarlal S/o Kalulal, Gyan Singh S/o Chaganlal and Motilal S/o Kalulal are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, undertaking that in the event of filing of Special Leave Petition against this Judgement or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.