JUDGMENT : Shaffique, J. This appeal is filed by accused 3 to 5 in SC No.245/2007 on the file of Additional Sessions Judge-IV, Thrissur. There were altogether five accused in the case. The charge against the first accused got abated as he died one year after the incident in the above case and according to the defence he was murdered as a retaliation to the crime committed in the above case. The 2nd accused remained absconding. The trial proceeded against accused 3 to 5. 2. The prosecution alleged that accused 3 to 5 along with accused 1 and 2 formed themselves into an unlawful assembly and in pursuance of a common object to commit murder, they attempted to murder PW1 and committed murder of Valsalan. The incident happened on 16/4/2006 at about 5.45 p.m. PW19 the Assistant Sub Inspector of Police recorded the FIS of PW1 on the basis of which Crime No.146/2006 was registered by the Vadakkekkad Police Station at 8.30 p.m. Ext.P1 is the FI statement and Ext.P18 is the FIR. The investigation was conducted by PW20, the Circle Inspector of Police. Accused 1 and 2 were arrested on 19/4/2006 at 3.30 p.m. and the third accused was arrested on 28/6/2006 at 4.30 p.m. Accused 4 and 5 surrendered before Court. After investigation, final report was filed against the accused alleging offences under Sections 143, 147, 148, 323, 307, 302 r/w S.149 of I.P.C. 3. Prosecution examined PW1 to PW20 and marked Exts.P1 to P43. MO1 to MO28 were the material objects that were identified before Court. Defence evidence consists of Exts.D1 to D4(b) which are portions of the previous statements of PW1, PW2, PW3 and PW5. Exts.D5 and D6 are certified copy of judgments in two other cases, in which the deceased was the accused. 4. The deceased in the case is one Valsalan who was the Municipal Chairman of Chavakkad Municipality. The incident happened during the campaigning for assembly elections in the year 2006. It is said that there were constant conflict between activists of United Democratic Front (UDF) and members of Left Democratic Front (LDF). PW1 was the Local Committee Secretary of Communist Party of India (Marxist) [CPI(M)] of Punnayoor Village. Valsalan along with PW2 who was the Councillor of LDF in the said area met PW1 at their local committee office at Punnayoor. PW1 was the Local Committee Secretary of Communist Party of India (Marxist) [CPI(M)] of Punnayoor Village. Valsalan along with PW2 who was the Councillor of LDF in the said area met PW1 at their local committee office at Punnayoor. They came in an Ambassador car KEH 7525 which belonged to PW3 Thomas, who was the driver of the car as well. While they were preparing for the campaign of the LDF candidates, they heard about a news in connection with destruction of LDF flags at Anjamka, Akalad. When the matter was informed to Valsalan, he offered to go to the said place to verify and accordingly, Valsalan, PW1 and PW2 got into the vehicle of PW3 and proceeded to Akalad. 5. On their way, when they reached a place called Ottayini, they saw some people on the western side of the National Highway. Valsalan asked the driver to stop the car and accordingly the vehicle was stopped on the western side of the road. All of them got down and stood outside. A1 to A5 came from the north along the western side of the road and while passing them, A1 uttered “some sons of dogs are standing there and they would be dealt with”. They moved towards the shop of one Muhammed which was situated on the southern side. PW1 named the five member gang as A1 to A5 and he identified A3 to A5 before Court. When the accused reached the shop of Muhammed, PW2 Akbar went towards them. There was an exchange of words and suddenly A2 took out MO2 knife and stabbed PW2 several times. A3 hit on the back of PW2, A4 stamped on his stomach and A5 slapped on the face of PW2. On seeing this, Valsalan came towards them and at that time 2nd accused Sulaimankutty stabbed the deceased below his abdomen. All the accused ran away from the scene. PW1 and PW3 took the injured Valsalan and PW2 in the car to Raja Hospital, Muthuvatoor. On examining Valsalan, he was declared dead by the Doctor. They conducted surgery on PW2. On seeing this, Valsalan came towards them and at that time 2nd accused Sulaimankutty stabbed the deceased below his abdomen. All the accused ran away from the scene. PW1 and PW3 took the injured Valsalan and PW2 in the car to Raja Hospital, Muthuvatoor. On examining Valsalan, he was declared dead by the Doctor. They conducted surgery on PW2. The Court below found the accused 3 to 5 guilty of offences under Sections 143, 148, 323, Ss.307 and 302 r/w S.149 of I.P.C. They were sentenced to suffer rigorous imprisonment for six months for offence u/s 143, rigorous imprisonment for 2 years for offence u/s 148, rigorous imprisonment for one year for offence u/s 323 r/w S.149 of I.P.C., imprisonment for life and to pay a fine of Rs.50,000/-with default sentence of one year for offence u/s 302 r/w S.149 of I.P.C., and rigorous imprisonment for 10 years and to pay a fine of Rs.50,000/-with default sentence of one year for offence u/s 307 r/w S.149 of I.P.C. 6. Learned Senior counsel for the appellants Sri.B.Raman Pillai argued that there is absolutely no evidence to prove the presence of A3 to A5 and even assuming that they were present in the scene of occurrence, they have not committed any overt act to inflict any injury on PW2 in order to cause death or is likely to cause death. The only allegation against them is that they have fisted, kicked and slapped PW2 while he was stabbed by first accused for which they cannot be found guilty for offence u/s 307 or 302 of I.P.C. It is argued that the prosecution failed to prove that there was an unlawful assembly and they had the common object of committing the aforesaid crimes. Even the prosecution case would only indicate that the stabbing of PW2 by A2 and the stabbing of deceased Valsalan by A1 are two separate incidents though occurred within a short time and as far as the accused are concerned, there was no premeditation and it was not a pre-planned act of aggression. Even the prosecution case would only indicate that the stabbing of PW2 by A2 and the stabbing of deceased Valsalan by A1 are two separate incidents though occurred within a short time and as far as the accused are concerned, there was no premeditation and it was not a pre-planned act of aggression. PW1 to PW3 and Valsalan had come to the said place by chance and it was when PW2 provoked A2 that he was stabbed and as far as A3 to A5 are concerned, the evidence of PW1, PW2, PW3 and PW5 suffers from serious omissions and contradictions which makes their version unbelievable and at any rate, it was not an unlawful assembly. They were only proceeding towards the shop, and according to the prosecution, PW2 questioned A2 and in the process he suffered injuries. 7. On the other hand, learned Additional Director General of Prosecution Sri.Suresh Babu Thomas appearing on behalf of the State argued that there is sufficient evidence to prove that the accused formed themselves into an unlawful assembly and they entertained a common object of finishing the victims and there is no reason why any indulgence should be shown to them. Evidence of PW1, PW2, PW3 and PW5 clearly discloses the overt acts committed by A3 to A5. When A2 had stabbed PW2, the fact that A3, A4 and A5 had again manhandled the injured person would clearly indicate that they entertained a common object to commit murder and it was an unlawful assembly. Merely for the reason that A1 alone had inflicted vital injury on Valsalan and A2 alone had inflicted the incised wounds on PW2 by itself does not indicate that A3 to A5 did not entertain a common object to commit the aforesaid crimes. He also argued that the cross-examination of the eyewitnesses clearly indicates that the accused were having a common object to commit the above crime. 8. The short question to be considered in this appeal is regarding the involvement of A3 to A5. Primarily, even according to the prosecution, their involvement in the crime is that they had come along with A1 and A2. They proceeded to the shop of one Muhammed. When PW2 came to question Sulaiman regarding his previous utterance against them, A2 took a knife and stabbed PW2. Primarily, even according to the prosecution, their involvement in the crime is that they had come along with A1 and A2. They proceeded to the shop of one Muhammed. When PW2 came to question Sulaiman regarding his previous utterance against them, A2 took a knife and stabbed PW2. In the FI statement, PW1 only stated that he saw A3 to A5 fisting PW2 with their hand. But they tried to improve the case. While being examined before Court, PW1 stated that A3 beat PW2 on his back with his hand, A4 stamped on PW2's abdomen and A5 slapped on the face of PW2. During cross-examination, he further deposed that Kareem (A3) had beaten PW2 on his back two three times and he does not know why the police had not recorded the same. He also stated that he had mentioned to police that Nazeer (A4) had stamped PW2, but he does not know why the police had not recorded the same. He also deposed that he saw Hussain (A5) slapping PW2 on his face. He stated that to the police, but he does not know why it was not recorded. Apparently, when evidence was adduced, PW1 had tried to make certain embellishments in material portions of his evidence. When he gave Ext.P1 statement, he only stated that he saw A3 to A5 fisting PW2. But during evidence, a material embellishment is made in order to make it appear that they have committed more overt acts than what he had mentioned in Ext.P1 FIS. Similarly in the evidence of PW2, he also stated that he had gone to Muhammed's shop to question Sulaiman Kutty (A1) whom he had abused. A1 spitted the soda to the floor and he was pushed aside. A2 who was standing nearby took a knife from his loin and stabbed him. A3 hit on his back with his hand, A4 stamped on his abdomen and A5 slapped him on his face. He further stated that initially Faizal stabbed him and it is thereafter that A3 had fisted him on his back and A4 stamped him. A2 who was standing nearby took a knife from his loin and stabbed him. A3 hit on his back with his hand, A4 stamped on his abdomen and A5 slapped him on his face. He further stated that initially Faizal stabbed him and it is thereafter that A3 had fisted him on his back and A4 stamped him. During cross-examination, he stated that he had mentioned to police that A3 had hit him with his hand on his back and that he had stated to the police that A4 had stamped on his stomach, but he does not remember whether there was any mark on his body relating to the said alleged overt act. The defence version is that A3 to A5 were not even present there and they were included as accused only since they were local leaders of UDF in the locality. 9. PW3 in his evidence has also stated that he saw A3 hitting on PW2's back, A4 had stamped him and A5 had slapped him on his face. During cross-examination, he stated that he does not know the persons in the said locality. He had come to know about the names only later. He saw two three persons hitting behind Akbar, PW2, one of them stamped and one of them slapped him. According to the defence, there was no such statement before the police. But the witness answered that he had not stated in the manner put to him. 10. PW5 is yet another eyewitness. He also deposed that A3 had hit PW2 on his face and back. Another person had stamped him on his stomach and the other man slapped Akbar on his face. 11. PW20 while being examined in the case had stated that PW1 had not given any statement that Kareen (A3) had beaten PW2 forcefully on his back two-three times, that he had not given a statement that A3 had stamped Akbar and that A4 had stamped PW2 and that A5 had slapped PW2. He further stated that PW2 in his evidence has not stated that he suffered any injury on his left hand and right leg. PW2 has stated that A4 had stamped him, but he has not stated that it was on his abdomen. PW2 did not say that A2 had fisted him but has stated that A2 has beaten him. He further stated that PW2 in his evidence has not stated that he suffered any injury on his left hand and right leg. PW2 has stated that A4 had stamped him, but he has not stated that it was on his abdomen. PW2 did not say that A2 had fisted him but has stated that A2 has beaten him. He further stated that PW3 has not stated that he saw two three persons beating PW2 and one had stamped him and the other slapping him. He had only stated that he saw two three persons hitting and beating PW2. 12. Therefore, the maximum overt act that is alleged to have been committed by A3 to A5 is fisting and beating. Of course, an attempt had been made to improve the case during evidence. 13. There is no dispute about the fact that Valsalan died on account of the injury suffered by him. PW18 is the Forensic Surgeon who conducted autopsy and Ext.P17 is the postmortem report. The following are the ante-mortem injuries noted by him. “1. Incised wound 1.5x0.8 cm vertical over the left groin 5cm below hip bone and 7 cm outer to midline with a side cut 2x0.5cm to tissue deep extending from its upper 1/3rd directed outwards. On dissection the wound had entered into the muscular compartments for a depth of 9.5 cm and directed inwards and cut the left femoral artery, veins, muscles and nerves through and through. The soft tissues including muscles were found infiltrated with blood. 2. Abrasion 1x0.5 cm over the middle of inner aspect of right big toe.” According to him, the cause of death is on account of hemorrhage as the artery, veins and muscles were cut off on account of the said injury. Initially, the injured were taken to Raja's Hospital and PW13 had examined them. Exts.P11 and P12 are the wound certificates of Valsalan and PW2. PW2 had suffered the following injuries. “1. Incised, penetrating stale injury in the epigastrium: 3 cm long and 1.5 cm wide in the middle. 2. Incised, penetrating stale injury (L) side of chest. 2.5 cm long and 0.75 cm wide with middle of wound. 3. 3.5x1 cm cut injury, lateral aspect of (L) elbow. 4. An oblique cut injury on the ® lower thigh 6x1 cm in the middle and tailing on both side”. 14. 2. Incised, penetrating stale injury (L) side of chest. 2.5 cm long and 0.75 cm wide with middle of wound. 3. 3.5x1 cm cut injury, lateral aspect of (L) elbow. 4. An oblique cut injury on the ® lower thigh 6x1 cm in the middle and tailing on both side”. 14. The injury suffered by PW2 are very severe in nature as spoken to by PW13. Therefore there cannot be any dispute about the fact that the injury caused on PW2 was enough in the ordinary course, to cause death. From the materials placed on record, it is therefore clear that the injuries on the victims were sufficient in the ordinary course to cause death and Valsalan died in the incident and PW2 suffered very serious injuries. 15. First we shall consider whether there was an unlawful assembly in order to invoke section 143 of I.P.C. The case of the prosecution itself is that when they reached a particular place, they saw 10 or more persons standing by the side of the road. At the instance of Valsalan, PW3 stopped the vehicle by the roadside. Then it is the prosecution case that they saw about 5 persons coming towards them and one of them uttered “some sons of dogs are standing there and they will be dealt with”. None of the other accused mentioned anything. They just proceeded towards the nearby shop of Muhammed and entered the verandah. Ext.P15 is the sketch prepared by the Village Officer and while A1 to A5 were in the verandah, PW2 wanted to question A1. He wanted to know whom they were mentioning. When he approached A1, he spitted soda from his mouth onto the floor and pushed him and at that time A2 Faisal stabbed him. On seeing this, Valsalan came towards them and Sulaiman stabbed Valsalan. It was a single incised wound on his groin which resulted in his death. PW1 in his evidence stated that both got injured within a short time. It is rather clear that the accused never knew that either Valsalan or PW2 would come to that place at that point of time. The accused were proceeding to the shop of Muhammed. The accused made an abusive remark, which was questioned by PW2 and suddenly the incident happened. There is no premeditation. It was not preplanned. It is rather clear that the accused never knew that either Valsalan or PW2 would come to that place at that point of time. The accused were proceeding to the shop of Muhammed. The accused made an abusive remark, which was questioned by PW2 and suddenly the incident happened. There is no premeditation. It was not preplanned. The accused never knew that the victim/injured would come to that place at that particular point of time. 16. Unlawful assembly is defined u/s 141 of IPC. “141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is— (First)— To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or (Second)— To resist the execution of any law, or of any legal process; or (Third)— To commit any mischief or criminal trespass, or other offence; or (Fourth)— By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth)— By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation.—An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.” From the definition itself, it is rather clear that in order to constitute an unlawful assembly, there has to be common object to commit any of the acts provided under first to fifth. Of course, Explanation further reads that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 17. The position of law is well settled in Roy Fernandes v. State of Goa [ (2012) 3 SCC 221 ]. Of course, Explanation further reads that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. 17. The position of law is well settled in Roy Fernandes v. State of Goa [ (2012) 3 SCC 221 ]. It was held that to determine the existence of a common object, the court is required to see the circumstances in which the incident had taken place and conduct of members of unlawful assembly including the weapon of offence they carried or used in the spot. In the present case, it has to be borne in mind that if the intention of the accused was to attack the victims and if they had any preplan or premeditation, they would have done it immediately on seeing them. But evidence would show that after saying the abusive words, they proceeded to Muhammed's shop. The incident had occurred only when PW2 came to question them. In Ramachandran v. State of Kerala ( AIR 2011 SC 3581 ), it was held that the common object may form on the spur of the moment and prior concert in sense of meeting of members of unlawful assembly is not necessary. It is true that a common object may also form on the spur of the moment. But what was the actual issue between the accused and the victim. They had no prior acquaintance at all. Though it is stated that they knew each other, they saw only by chance and suddenly an abusive word was questioned which resulted in the injuries suffered by the victims. Therefore, we do not think that primarily this is a case in which the assembly by the accused was an unlawful assembly either at the inception or at a later point of time. 18. The accused had been convicted for offence u/s 148 of I.P.C. S.148 reads as under:- “148. Rioting, armed with deadly weapon.—Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both”. The prosecution does not have a case that A3 to A5 were wielding any form of weapon and they have used any weapon which is likely to cause death. The prosecution does not have a case that A3 to A5 were wielding any form of weapon and they have used any weapon which is likely to cause death. Therefore, accused 3 to 5 cannot be made liable for an offence u/s 148. 19. This is a case in which the accused had been given imprisonment for life for offence under Section 302 r/w S.149 and also rigorous imprisonment for a period of 10 years for offence u/s 307 of I.P.C. r/w S.149. In order to attract S.149, it would suffice that 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 the assembly knew to be likely to be committed in prosecution of that object in which event every person who at the time of committing the offence is guilty of that offence. Of course this is a case in which accused 3 to 5 also have a contention they were subsequently made accused in the case as they were office bearers of UDF during the relevant time. But PW1 in his FIS had already named the accused. It was given at 8.30 p.m and subsequently the FIR was registered which reached the Court on 17/4/2009 at 3.30 p.m. Of course, there is some delay in sending the FIR to the Court. But this is a case in which all the eyewitnesses had deposed regarding the presence of accused 3 to 5. It is also true that PW1, PW2 and PW5 are members of CPM. But PW3, the driver is an independent witness. He has no connection with the party. There is no reason to discard his evidence to that extent. But he stated that he saw two three persons hitting PW2 after he was stabbed by A2. But it is relevant to note that PW1 had tried to make an embellishment to the earlier statement by stating specific overt acts against A3, A4 and A5 with the deliberate intention to make them a part in the crime. 20. In Debashis Daw and others v. State of West Bengal [ (2010) 9 SCC 111 ], the Apex Court held that the prosecution is required to establish whether the accused persons were present and whether they shared a common object. 20. In Debashis Daw and others v. State of West Bengal [ (2010) 9 SCC 111 ], the Apex Court held that the prosecution is required to establish whether the accused persons were present and whether they shared a common object. In Krishnappa v. State of Karnataka [JT 2012 (7) Sessions Court 37] it was held that the relevant question to be examined by the Court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. The three elements which are to be satisfied for a conviction u/s 149 I.P.C are (i) commission of an offence by any member of an unlawful assembly (ii) commission of the offence in prosecution of the common object of the unlawful assembly and (iii) the offence must be such as the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object. As already mentioned, this is not a case where there was any premeditation or preplanning for committing any form of crime. Of course A1 and A2 had weapons with them. It cannot be stated that the accused knew that PW1 along with PW2 and Valsalan would come to that place at that time. Their meeting was by a chance. The entire incident started when PW2 had come to question A1 regarding the abusive remark which he made. A1 pushed aside PW2 and immediately he was stabbed by A2. Then according to the prosecution they saw A3 to A5 fisting and beating PW2. Immediately, the deceased came running. Even according to the prosecution, A1 came down from the verandah towards the deceased and stabbed him on his loin and they ran away. Everything happened in no time at the relevant time. We are of the view that, accused 3 to 5 though their presence is proved by the testimony of PW1, PW2, PW3 and PW5, they cannot be said to have ever entertained any common object as members of unlawful assembly to commit murder. Everything happened in a short time. 21. Everything happened in no time at the relevant time. We are of the view that, accused 3 to 5 though their presence is proved by the testimony of PW1, PW2, PW3 and PW5, they cannot be said to have ever entertained any common object as members of unlawful assembly to commit murder. Everything happened in a short time. 21. In Roy Fernandes (supra), the Apex Court was considering a question that when in a sudden action of one of the members of the unlawful assembly, an offence is committed by one among them, whether it constitutes an act in prosecution of the common object of the unlawful assembly and whether the members of the unlawful assembly knew that such an offence is likely to be committed by any member of the assembly. Apex Court held that there is no such possibility. It was further held that a plain reading of Section 149 would show that the provision is in two parts. It was held as under: “A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly “in prosecution of the common object” of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly “knew that the same is likely to be committed in prosecution of the common object of the assembly”. It was thereafter held at paragraphs 26 and 27 as under:- “26. The question is whether the sudden action of one of the members of the unlawful assembly constitutes an act in prosecution of the common object of the unlawful assembly, namely, preventing of erection of the fence in question and whether the members of the unlawful assembly knew that such an offence was likely to be committed by any member of the assembly? Our answer is in the negative. 27. This Court has in a long line of decisions examined the scope of Section 149 of the Penal Code. We remain content by referring to some only of those decisions to support our conclusion that the appellant could not in the facts and circumstances of the case at hand be convicted under Section 302 read with Section 149 IPC. 27. This Court has in a long line of decisions examined the scope of Section 149 of the Penal Code. We remain content by referring to some only of those decisions to support our conclusion that the appellant could not in the facts and circumstances of the case at hand be convicted under Section 302 read with Section 149 IPC. Reference was also made to the judgments in Chikkarange Gowda v. State of Mysore ( AIR 1956 SC 731 ), Gajanand v. State of U.P ( AIR 1954 SC 695 ), ) and Shambhu Nath Singh v. State of Bihar ( AIR 1960 SC 725 ). Thereafter, it was held at paragraph 34 as under:- “34. In the case at hand, there is, in our opinion, no evidence to show that the appellant knew that in prosecution of the common object of preventing the putting up of the fence around the chapel the members of the assembly or any one of them was likely to commit the murder of the deceased. There is indeed no evidence to even show that the appellant knew that Anthony D’Souza was carrying a knife with him, which he could use. The evidence on the contrary is that after stabbing the deceased, Anthony D’Souza had put the knife back in the cover from where he had drawn it. The conduct of the members of the assembly especially the appellant also does not suggest that they intended to go beyond preventing the laying of the fence, leave alone committing a heinous offence of murder of a person who had fallen to the ground with a simple blow and who was being escorted away from the spot by his companions. We have, therefore, no hesitation in holding that the courts below fell in error in convicting the appellant for murder with the aid of Section 149 IPC”. The position of law has been reiterated by the Apex Court in Munishamappa v. State of Karnataka [ (2019) 3 SCC 393 ]. Paragraph 30 is relevant, which reads as under:- “30. We have, therefore, no hesitation in holding that the courts below fell in error in convicting the appellant for murder with the aid of Section 149 IPC”. The position of law has been reiterated by the Apex Court in Munishamappa v. State of Karnataka [ (2019) 3 SCC 393 ]. Paragraph 30 is relevant, which reads as under:- “30. The provisions of Section 149 have been explained by this Court in Mijazi v State of U P and in Masalti v State of U.P. Two elements are crucial to the above definition: (i) the offence must be committed by a member of an unlawful assembly; (ii) the offence must be committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once a common object of an unlawful assembly is established, it is not necessary that all persons who form the unlawful assembly must be demonstrated to have committed the overt act. The common object is ascertained from considering the acts of its members and on the basis of all surrounding circumstances. In Sikandar Singh v State of Bihar, this Court held thus: "17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly 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. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. 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 behaviour of the members at or near the scene of the incident. 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 behaviour 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.” 22. First of all, as already stated, the aforesaid five persons had no common object to commit any injury on the victims. Everything happened within a short time when PW2 started to question A1 on the abusive remark he had made and in the process, Valsalan died and PW2 suffered serious injuries. We do not think that A3 to A5 could be mulcted with any offence. Even the fact that they had fisted or beaten PW2 is not believable as there is no corresponding injury noticed by the Doctor other than the incised wounds. There is no contusion or abrasion taken note of by PW13 as far as PW2 is concerned. Under such circumstances, we are of the view that the prosecution had failed to prove that accused 3 to 5 had committed any offence as alleged by the prosecution. In the result, the appeal is allowed and the conviction and sentence of the accused passed by the trial Court with reference to the aforesaid offences are hereby set aside and they are set at liberty. In so far as the sentence of the accused had already been suspended during the pendency of the appeal, the bail bond executed by them shall stand cancelled.