JUDGMENT : J.B. Pardiwala, J. 1. As both the captioned Criminal Appeals arise from the selfsame judgment and order of conviction and sentence passed by the 6th Additional Sessions Judge, Mahuva dated 24th September 2015 in the Sessions Case No. 187 of 2015, those were heard analogously and are being disposed of by this common judgment and order. 2. The Criminal Appeal No. 1300 of 2015 is at the instance of four convicts - original accused Nos. 1 to 4 and is directed against the judgment and order of conviction and sentence passed by the 6th Additional Sessions Judge, Mahuva dated 24th September 2015 in the Sessions Case No. 187 of 2015 (old Sessions Case No. 44 of 2012). By the said judgment, the Trial Court held the appellants Nos. 1, 2 and 3 respectively guilty of the offence of murder punishable under Section 302 of the I.P.C. and they have been sentenced to undergo life imprisonment with fine of Rs. 10,000/- and in default of the payment of the amount of fine, to undergo one year of further simple imprisonment. The Trial Court also held the appellants Nos. 1, 2 and 3 guilty of the offences punishable under Sections 324, 323 and 504 of the I.P.C. However, the Trial Court did not pass any separate order of sentence. So far as the appellant No. 4 is concerned, he has been held guilty by the Trial Court of the offence punishable under Section 324 of the I.P.C. and has been sentenced to undergo three years of rigorous imprisonment with fine of Rs. 2,000/- and in default of the payment of the amount of fine, to undergo further four months of simple imprisonment. The Trial Court also held the appellant No. 4 guilty of the offence punishable under Section 323 of the I.P.C. and sentenced him to undergo six months of rigorous imprisonment with fine of Rs. 500/- and in default of the payment of the amount of fine, to undergo further simple imprisonment for a period of thirty days. The appellant No. 4 also came to be convicted for the offence punishable under Section 504 of the I.P.C. and has been sentenced to undergo five months of rigorous imprisonment with fine of Rs. 500/- and in default of the payment of the amount of fine, to undergo further thirty days of simple imprisonment. The appellant No. 4 also came to be convicted for the offence punishable under Section 504 of the I.P.C. and has been sentenced to undergo five months of rigorous imprisonment with fine of Rs. 500/- and in default of the payment of the amount of fine, to undergo further thirty days of simple imprisonment. So far as the accused No. 5 namely Pravinbhai Keshubhai Bambhaniya is concerned, he came to be acquitted of all the charges. 3. The Trial Court acquitted the appellants Nos. 1, 2 and 3 of the offences punishable under Sections 143, 147, 148 and 149 of the I.P.C. and Section 135 of the Bombay Police Act. The appellant No. 4 also came to be acquitted of the offence punishable under Section 302, 143, 147, 148, 149 of the I.P.C. and Section 135 of the Bombay Police Act. 4. So far as the connected appeal i.e. the Criminal Appeal No. 504 of 2016 is concerned, the same has been preferred by the original complainant with the following prayers: "A) Your Lordships may please to admit the present appeal. (B) Your Lordships may please to call fro the records and proceedings in the Session Case No. 187/2015 (old Sessions Case No. 44/2012) from the Court of Addl. Sessions Judge, Mahuva, Dist - Bhavnagar. (C) Your Lordships may please to quash and set aside the order of learned Sessions Judge Mahuva Court to the extent of partly acquitting all the accused, under Sections 143, 147, 148 and 149 of the Indian Penal Code (I.P.C.), and further acquitting accused Nos. 4 and 5 from the offence under Section 302 of I.P.C., in the Sessions Case No. 187/2015 (old Sessions Case No. 44/2012) dated 24/09/2015, Additional Sessions Court at Mahuva, Dist - Bhavnagar. (D) Your Lordships may please to issue warrant of arrest of the accused and deal with the accused of the accused and deal with the accused in accordance with law. (E) Your Lordships may pass any appropriate order in the interest of justice." CASE OF THE PROSECUTION: 5. The PW - 15 Hardeepsinh Dilipsinh Vala (original first informant) lodged the First Information Report Exhibit : 82 at the Talaja Police Station inter alia stating as under: "Date 8/11/2011 Started at 1.30 hrs My name is Hardeepsinh Dilipsinh Vala, caste - Darbar, age - 24 years, occupation - agriculture, resident of Darbargadh, 'Shiv Shakti Nivas', Talaja, Dist. Bhavnagar. The PW - 15 Hardeepsinh Dilipsinh Vala (original first informant) lodged the First Information Report Exhibit : 82 at the Talaja Police Station inter alia stating as under: "Date 8/11/2011 Started at 1.30 hrs My name is Hardeepsinh Dilipsinh Vala, caste - Darbar, age - 24 years, occupation - agriculture, resident of Darbargadh, 'Shiv Shakti Nivas', Talaja, Dist. Bhavnagar. Mob No. 9824980202. Having come personally, I declare and dictate my facts of complaint that I reside at the above mentioned address with my family and I earn livelihood for my family by doing agriculture. We are two brothers, wherein Ranvirsinh is the elder and I am younger to him. I have four sisters and all four of them stay at their matrimonial homes. My elder brother is married. The name of my mother is Bapalba and my father's name is Dilipsinh Hadubha. Both of them are alive. We all stay in joint family. I have studied till F.Y.B.A. On 7/11/2011 at about 9.30 p.m., when I was passing from near the statue of Gandhiji on my Discover Bajaj motorcycle having registration No. GJ-4-AN-3091, I received a phone call of Viral @ Jitubhai on my mobile number at 9.35 p.m. and he informed that 'dispute is going on between your brother Ranvirsinh and the Kolis at Gorkhi Darwaja. Therefore, you come to the place immediately'. Therefore, I reached there with my motorcycle. I saw in the light of the motorcycle that Vikram Keshubhai was armed with dharia, Ashwin Keshu and Dinesh Keshu were armed with iron pipes, Ramesh Narshi Bambhania was armed with stick and Pravin Keshu was also present there. He was unarmed. All these five persons got together and they were abusing my brother Ranvirsinh and inflicting indiscriminate blows to my brother with weapons they were armed with. I stopped my motorcycle and Viral @ Tino and I intervened to separate them. At that time, Ramesh Narshi inflicted a blow to me below the left shoulder with the stick he was armed with and therefore, I sustained contusion injury. Ashwin Keshu inflicted a blow to me on the back with the pipe he was armed with. Vikram Keshu had also assaulted Viral @ Tino on head using the rear part of dharia. At this time, Viral @ Tino ran away with my motorcycle parked over there due to fear of getting assaulted. Ashwin Keshu inflicted a blow to me on the back with the pipe he was armed with. Vikram Keshu had also assaulted Viral @ Tino on head using the rear part of dharia. At this time, Viral @ Tino ran away with my motorcycle parked over there due to fear of getting assaulted. As police vehicle arrived at that time, these persons fled from there seeing the police vehicle. Police staff and I took my brother Ranvirsinh to hospital. After giving preliminary treatment to him, it was stated to take my brother for further treatment to Sterling Hospital, Bhavnagar in an ambulance. As Tino was present over there, I inquired to him regarding the incident and he stated that "Ranvirsinh and I - both of us went to eat pan-masala at the parlour of Pravin Keshubha at about 9.30 hrs. After consuming masala as we started walking, Pravin Keshu demanded money and Ranvirsinh told him that he will give the money later on. Therefore, altercation took place between them. Both of them went towards the house of Pravin Keshu and as uproar began on the road located in front of the Pravin's house, all the above mentioned four accused persons arrived with weapons. Vikram Keshu was armed with dharia and he inflicted blow with it on the head of Ranvirsinh. Therefore, Ranvirsinh collapsed. Ashwin Keshu and Dinesh Keshu were armed with iron pipes and both of them inflicted pipe blows to Ranvirsinh. Therefore, as I felt that quarrel may escalate, I had called you." Viral @ Tino had told me this fact. Thereafter, my brother was taken in an ambulance to Sterling Hospital, Bhavnagar for treatment. My brother was admitted over there for treatment and I received preliminary treatment. My nephew Amardipsinh Harisinh Vala, my brother in law Harishchandrasinh Madhubha Parmar and others have stayed over there and I have come here to give this complaint. Therefore, as the above mentioned four persons took up altercation with my elder brother Ranvirsinh regarding money of pan-masala and abused him and have assaulted and caused grievous injuries to him using dharia, pipes and stick in order to cause his death, it is my complaint to take legal action against them. This much fact of my complaint is true and correct as dictated by me. Completed at 2.15 hrs Before me, sd/- illegible PSI Talaja Police Station" 5.1. This much fact of my complaint is true and correct as dictated by me. Completed at 2.15 hrs Before me, sd/- illegible PSI Talaja Police Station" 5.1. Thus, it appears that the appellants Nos. 1, 2 and 3 and the original accused No. 5, who came to be acquitted, are all brothers. The appellant No. 5 was running a pan shop. The incident in question took place on 7th November 2011 at about 9: 30 p.m. in the late evening. The deceased Ranvirsinh, who happens to be the brother of the first informant in company of the PW - 16 Viral Jitendrabhai Joshi, came at the pan shop of the appellant No. 1 situated at the Gaushala Complex and purchased pan and some masala from the shop of the appellant No. 1. The original accused No. 5 (acquitted) - Pravinbhai, at the relevant point of time, was sitting at the pan shop in absence of the appellant No. 1. It appears that after purchasing pan and pan masala, the deceased Ranvirsinh and PW - 6 Viral started walking off without making payment for the purchase of pan and pan masala. In such circumstances, the original accused No. 5 - Pravinbhai insisted that they should make the payment for the purchase of pan and pan masala. However, the deceased Ranvirsinh started walking off saying that he would make the payment later in point of time. This led to an altercation in words between the accused No. 5 - Pravinbhai and the deceased Ranvirsinh. It is the case of the prosecution that during the exchange of words, the deceased Ranvirsinh and Viral proceeded in the direction where the house of Pravinbhai (accused No. 5) is situated and they were trying to persuade the appellant No. 5 that they would make the payment later in point of time. The accused No. 5 Pravinbhai, however, did not agree and started shouting. According to the case of the prosecution, all of a sudden, there was a lot of uproar and commotion. Hearing the commotion, the appellants Nos. 1, 2, 3 and 4 rushed at the place of the incident alleged to have been armed with Dharia and Iron pipes. According to the case of the prosecution, the appellant No. 4 was having a stick in his hand. Hearing the commotion, the appellants Nos. 1, 2, 3 and 4 rushed at the place of the incident alleged to have been armed with Dharia and Iron pipes. According to the case of the prosecution, the appellant No. 4 was having a stick in his hand. The PW - 16 Viral, apprehending serious trouble, immediately called up the first informant Hardeepsinh and informed him about the quarrel. Hardeepsinh immediately arrived at the place where the quarrel was going on and according to the case of the prosecution, the appellant No. 1 herein, alleged to have been armed with a Dharia, hit a blow on the head of the deceased. The appellants Nos. 2 and 3 are alleged to have hit blows with iron pipes on the back and head of the deceased. According to the case of the prosecution, the appellant No. 1 made an attempt to hit a blow with a Dharia on the chest of the deceased, but the same ended up with an injury on the left side shoulder. Similarly, one another blow of Dharia is alleged to have been hit on the right side of the shoulder of the deceased. According to the case of the prosecution, Hardeepsinh intervened to save his brother Ranvirsinh. Viral, who was in company of the deceased and who called up Hardeepsinh, was also assaulted. Viral, being frightened, is said to have ran away from the place of occurrence on the motorcycle of Hardeepsinh. The PW - 16 Viral went to the dispensary of one Dr. Baldania's, who gave him primary treatment and asked him to come on the next day for the purpose of X-ray. According to the case of the prosecution, the PW - 16 Viral, after some time, visited the government hospital to meet Hardeepsinh and ascertained the condition of Ranvirsinh. In the hospital, Viral also informed to Hardeep about the course of the fight and handed over his motorcycle to him. It appears that Hardeepsinh was asked by the medical officer to shift his injured brother Ranvirsinh to Bhavnagar for further treatment. The injured Ranvirsinh was taken in the ambulance to the Sterling Hospital at Bhavnagar. Ranvir, however, succumbed to the injuries. 6. On the F.I.R. being lodged, the investigation had commenced and the scene of offence panchnama Exhibit : 12 was drawn in the presence of the panch witnesses. The injured Ranvirsinh was taken in the ambulance to the Sterling Hospital at Bhavnagar. Ranvir, however, succumbed to the injuries. 6. On the F.I.R. being lodged, the investigation had commenced and the scene of offence panchnama Exhibit : 12 was drawn in the presence of the panch witnesses. The inquest panchnama of the deceased Exhibit : 24 was also drawn in the presence of the panch witnesses. The dead body of the deceased was sent for the postmortem examination. The statements of various witnesses were recorded. The muddamal articles collected in the course of the investigation were sent to the Forensic Science Laboratory for the Serological Test. At the end of the investigation, chargesheet was filed for the offences enumerated above. The filing of the chargesheet culminated in the Criminal Case No. 64 of 2012. As the case was exclusively triable by the Sessions Court, the same came to be committed to the Court of the Sessions Judge under Section 209 of the Cr.P.C. The committal, ultimately, culminated in the Sessions Case No. 78 of 2018, which was renumbered as the Sessions Case No. 187 of 2015. 7. The plea of all the accused persons was recorded to which they pleaded not guilty and claimed to be tried. Accordingly, the 4th Additional District and Sessions Judge, Bhavnagar at Mahuva framed charge Exhibit : 3 for the offences enumerated above vide order dated 19th May 2015. 8. The prosecution led the following oral as well as the documentary evidence: (I) Medical evidence: PW 6 Exh. 32 Dr. Devendra Nanalal Panchal 95 Exh. 33 PM Note 923 PW 8 Exh. 41 Dr. Nishit Ghanshyam Rajyaguru 123 Exh. 42 Injury Certificate 957 PW 9 Exh. 48 Dr. Dipak Bhanabhai Bhardwaj Medial Officer, CHC, Talaja. 129 Exh. 50 Injury Certificate and referring for further treatment 967 PW 10 Exh. 52 Dr. Vinay Karsanbhai Koradiya 135 Exh. 53 Examined injured Viralbhai Jitendrabhai Joshi 971 PW 11 Exh. 56 Dr. Yogesh Kishorbhai Sterling Hospital 137 PW 12 Exh. 63 Dr. Vipul Pradipkumar Parekh 143 PW 14 Exh. 68 Dr. Purvi Shitalgiri Goswami 147 Exh. 69 Examined accused Pravinbhai Keshubhai 1021 Exh. 109 Serological Report 1077 Exh. 113 Biological Test Report by FSL 1087 Exh. 115 Viscera Serological Test Report 1091 Exh. 117 Mudamal Test Report by FSL 1095 (II) Eye Witnesses: PW 15 Exh. 81 Hardipsinh Dilipsinh – Complainant 151 Exh. 68 Dr. Purvi Shitalgiri Goswami 147 Exh. 69 Examined accused Pravinbhai Keshubhai 1021 Exh. 109 Serological Report 1077 Exh. 113 Biological Test Report by FSL 1087 Exh. 115 Viscera Serological Test Report 1091 Exh. 117 Mudamal Test Report by FSL 1095 (II) Eye Witnesses: PW 15 Exh. 81 Hardipsinh Dilipsinh – Complainant 151 Exh. 82 Complaint 1027 PW 16 Exh. 87 Viral alias Tino Jitendrabhai Joshi 175 (III) Supporting witnesses: PW 13 Exh. 65 Sureshbhai Govindbhai – Watchman at CHC Talaja 145 (IV) Panch witnesses: PW 1 Exh.9 Hiren Maheshbhai Raal 69 Exh. 10 Arrest Panchnama of accused 865 PW 2 Exh. 11 Punit Jitendrabhai Shukla 75 Exh. 12 Panchnama – scene of offence 873 PW 3 Exh. 21 Bharatbhai Govindbhai 81 Exh. 22 Panchnama – seizure of clothes 909 PW 4 Exh. 23 Rajendrasinh Babubha 85 Exh. 24 Panchnama – Inquest 915 PW 5 Exh. 25 Jaydipsinh Harishchandrasinh 2nd Panch to inquest 91 PW 7 Exh. 37 Naresh Narmadashankar 115 Exh. 38 Panchnama – Discovery of weapon 949 Exh. 14 Seizure panchnama of Bike GJ – 4 – AN – 3091 887 Exh. 15 Seizure panchnama of Cloths of deceased 891 Exh. 16 Arrest panchnama of accused Prain Keshu 895 (V) Police Witnesses: PW 17 Exh. 89 Jagdishbhai Ranchhodbhai 89 Exh. 91 Overseer– map of scene of offence 1033 PW 18 Exh. 92 Mohammadali Sulemanbhai FSL Officer – scene of offence 199 PW 19 Exh. 94 Vijaykumar Ravishankar Randalia 203 PW 20 Exh. 98 Yograjsinh Chandrasinh Gohil – P.S.O. 205 PW 21 Exh. 101 Arjanbhai Bhimabhai Gohil PSI, Talaja Police Station 209 Exh. 128 FIR filed by the Prain Keshu 1133 The accused persons led the following oral evidence: (VI) Defence Witnesses: DW 1 Exh. 142 Maheshbhai Nanubhai Barot – Head Constable 225 DW 2 Exh. 147 Mayank Mukundbhai Rajyaguru – P.I. 227 9. On closure of the evidence, the statements of the accused persons under Section 313 of the Cr.P.C. were recorded, in which the accused claimed to be innocent and stated to have been falsely implicated in the offence. 142 Maheshbhai Nanubhai Barot – Head Constable 225 DW 2 Exh. 147 Mayank Mukundbhai Rajyaguru – P.I. 227 9. On closure of the evidence, the statements of the accused persons under Section 313 of the Cr.P.C. were recorded, in which the accused claimed to be innocent and stated to have been falsely implicated in the offence. The original accused No. 5, who came to be acquitted, stated in his statement recorded under Section 313 Cr.P.C. that the deceased and his friend Viral came to his pan shop and after purchasing pan and pan masala refused to make payment for the same, which led to altercation in words, and ultimately, the accused No. 5 was assaulted by the deceased with a knife on his hand. He raised shouts for help and in the meantime, many people came at the place of occurrence. 10. The Trial Court, ultimately, upon appreciation of the evidence on record, held the appellants Nos. 1, 2 and 3 guilty of murder, whereas the appellant No. 4 was found guilt of the offence punishable under Sections 324 and 323 of the I.P.C. and acquitted the accused No. 5. The Trial Court did not believe the case of the prosecution of formation of unlawful assembly with the common object of committing the murder of Ranvirsinh. The Trial Court held the appellants Nos. 1, 2 and 3 guilty for the offence of murder without the aid of Section 149 of the I.P.C. by determining their individual liability. 11. Being dissatisfied with the judgment and order of conviction passed by the Trial Court, the appellants are here before this Court with their appeals. 12. It appears from the materials on record that in connection with the same incident, the original accused No. 5 - Pravinbhai Keshubhai also lodged the F.I.R. Exhibit : 128 against Ranvirsinh. The F.I.R. lodged by the original accused No. 5 was also investigated and chargesheet was filed for the offence punishable under Sections 323, 324, 504 read with 114 of the I.P.C. and Section 135 of the Bombay Police Act. Both the cases were conducted together. However, it appears that in the course of the trial, the accused No. 5 - Pravinbhai and the other witnesses turned hostile, and in such circumstances, the accused persons came to be acquitted. SUBMISSIONS ON BEHALF OF THE APPELLANTS OF CRIMINAL APPEAL No. 1300 OF 2015: 13. Mr. Both the cases were conducted together. However, it appears that in the course of the trial, the accused No. 5 - Pravinbhai and the other witnesses turned hostile, and in such circumstances, the accused persons came to be acquitted. SUBMISSIONS ON BEHALF OF THE APPELLANTS OF CRIMINAL APPEAL No. 1300 OF 2015: 13. Mr. A.D. Shah, the learned counsel appearing for the appellants vehemently submitted that the Trial Court committed a serious error in holding the appellants guilty of the offence of murder. Mr. Shah submitted that the prosecution is guilty of suppressing the true origin of the occurrence. According to Mr. Shah, the origin of the incident was at the pan shop wherein the accused No. 5 was sitting. The deceased in company of the PW - 16 visited the pan shop and purchased pan and pan masala. According to Mr. Shah, the deceased and the PW - 16, thereafter, declined to make the necessary payment for the pan and pan masala, which, ultimately, led to an altercation in words and in the process, the accused No. 5 was inflicted with an injury on his hand with a knife by Ranvirsinh i.e. the deceased. Mr. Shah submitted that as the accused No. 5 got injured and started bleeding, he raised shouts for help, and in such circumstances, a huge mob of the Koli community came out to save the accused No. 5 from being further assaulted. 14. Mr. Shah invited the attention of this Court to the following circumstances: (i) It is an admitted case of the prosecution that the accused Pravinbhai Keshubhai (appellant No. 5) was not armed at all with any weapon. (ii) It is also transpiring that the deceased and Viral had gone to the Pan Galla and purchased Pan as well as Mava from the appellant No. 5 - Pravin. (ii) It is also transpiring that the deceased and Viral left the Pan Galla without making payment. (iii) It also transpires that the accused (appellant No. 5) Pravin demanded the amount for Pan and Mava. (iv) It transpires that there was exchange of words for the payment of amount. (v) It also transpires that during the exchange of words Pravin followed the deceased and his friend Viral and proceeding in the direction of his house requesting the deceased and Viral to make the payment. (iv) It transpires that there was exchange of words for the payment of amount. (v) It also transpires that during the exchange of words Pravin followed the deceased and his friend Viral and proceeding in the direction of his house requesting the deceased and Viral to make the payment. (vi) It further transpires that somewhere near the Gorkhi Darwaja, the exchange of abuses continued and at that time the accused Nos. 1 to 4 are alleged to have come to the Gorkhi Darwaja. 15. Thus, according to Mr. Shah, there was exchange of words on account of non-payment of money towards the purchase of Pan and Mava by the deceased and Viral. The accused No. 5 Pravin and the deceased as well as Viral walked upto a distance of around 500 ft. fighting with each other. Thus, there was quarrel and exchange of words. Mr. Shah submitted that the panchnama of the scene of offence clearly indicates bloodstains at difference places which would suggest grappling and infliction of injuries. According to Mr. Shah, the cause of quarrel, exchange of words, covering of distance of about 500 ft. from the Pangalia, appellant No. 5 - Pravin sustaining injuries falsifies the prosecution version of the accused forming an unlawful assembly with the common object to commit murder of Ranvirsinh. According to Mr. Shah, the learned Trial Judge rightly did not accept the prosecution case of the accused forming unlawful assembly with the common object to commit murder of Ranvirsinh. According to Mr. Shah, the evidence of the complainant Hardeepsinh Dilipsinh does not inspire any confidence. It is evident from the evidence of this witness that he was informed by Viral on mobile that Ranvirsinh had picked up quarrel with the Kolis near the Gorkhi Darwaja. This witness, at the relevant time, was at a distance of more than 2 kms. from the place of offence. This witness claims to have seen the blows being hit by the accused Nos. 1 to 4 on the deceased as well as on himself and Viral. Though the eyewitness Viral Jitendrabhai (PW 16/Exh. 87) claims to know all the accused by name, surprisingly did not inform Hardeepsinh about the names of the assailants. The evidence of the complainant as to recording of his complaint (Exh. 82) at the Talaja Police Station is also suspicious. Though the eyewitness Viral Jitendrabhai (PW 16/Exh. 87) claims to know all the accused by name, surprisingly did not inform Hardeepsinh about the names of the assailants. The evidence of the complainant as to recording of his complaint (Exh. 82) at the Talaja Police Station is also suspicious. It is asserted by the complainant Hardeepsinh that Viral sustained injury on the back side of his head on account of blow hit with blunt portion of Dharia by accused Vikram and Viral thereafter ran away from the place of occurrence on the motorcycle of Hardeepsinh and at that time the Police vehicle came and all the five accused ran away. It is asserted by the complainant that the police personnel took him and Ranvir to the dispensary at Talaja and the Doctor started treating Ranvirsinh. It is also asserted by the complainant that after about half an hour Viral came to the dispensary. Hardeep inquired about the cause of the quarrel and he was informed by Viral about their going to the Pan-Galla and exchange of words on account of non-payment of the amount. It is further asserted by the complainant that when such information was being conveyed by Viral, the Medical Officer advised to shift Ranvir to Bhavnagar and hence they took Ranvir in an ambulance to Bhavnagar and admitted him in the Sterling Hospital. It is also asserted by the complainant that the doctors started treating Ranvir and as the complainant was injured, he also took treatment at the Sterling Hospital. It is further claimed by the complainant that thereafter he went to the Talaja Police Station and lodged his complaint. According to Mr. Shah, the evidence indicates that the distance between the Sterling Hospital at Bhavnagar and Talaja is about 55 kms. and it may take about 1.00 hour to 1.15 hours to reach Bhavnagar from Talaja in any vehicle. Mr. Shah submitted that the evidence of Dr. Yogesh Kishorbhai (PW.11/Exh. 56) clearly indicates that the deceased Ranvirsinh was brought to the Sterling Hospital on 7th November 2011 at 11.30 p.m. The evidence of Dr. Yogesh further reveals that on 8th November 2011 he had treated the complainant Hardeepsinh and he had given history that "on 7/11/2011 at about 9.30 p.m. at Gorkhi Darwaja, Talaja, Smashan Road, near Kerosene Pump due to quarrel with a mob of Koli people he had sustained injury. Yogesh further reveals that on 8th November 2011 he had treated the complainant Hardeepsinh and he had given history that "on 7/11/2011 at about 9.30 p.m. at Gorkhi Darwaja, Talaja, Smashan Road, near Kerosene Pump due to quarrel with a mob of Koli people he had sustained injury. The complainant clearly admitted that he had given history at the Sterling Hospital wherein he did not disclose the names of the assailants. This witness identified the dead body at the time of inquest. The inquest panchnama was drawn on 8th November 2011 between 1.35 am. and 2.10 am. Admittedly, the inquest was held at the Sterling hospital. Similarly, the evidence of the Medical Officer reveals that the complainant was treated at about 12.30 am. Thus, according to Mr. Shah, if the complainant was at the Sterling Hospital, Bhavnagar upto 2.10 a.m. on 8th November 2011, he could not have reached Talaja at 1.30 am. The cross-examination of the complainant, thus, clearly reflects pre-verification in the evidence of the complainant. Mr. Shah would submit that the documentary evidence adduced by the medical officer falsifies the claim of Hardeep as to recording of his complaint between 1.30 am. and 2.15 am. The evidence of the complainant is prima facie not trustworthy and reliable. According to Mr. Shah, the cross-examination of the complainant clearly establishes that the witness could not have been knowing accused persons by their name. The assertion of Hardeep that the assault started only after he reached the place is also highly unnatural and improbable more particularly when Viral called up the complainant only after the accused are alleged to have inflicted injuries on Ranvir. The contradiction emerging from the complaint about Viral conveying the information on arrival of four accused with weapons and inflicted injuries on Ranvir clearly falsifies the claim of Hardeep that the assault started only after he reached the place. Mr. Shah submitted that there is contradiction in the evidence of Viral Jitendrabhai about his telephoning the complainant Hardeep and conveying the fact of quarrel with the members of the Koli community and that the complainant should come immediately at the Gorkhi Darwaja. The witness Viral also improved upon his version about his sustaining injury and the history given before the Doctor. The history given before the Doctor clearly reveals that he had sustained injuries on head due to collision of his motorcycle with an electric pole. The witness Viral also improved upon his version about his sustaining injury and the history given before the Doctor. The history given before the Doctor clearly reveals that he had sustained injuries on head due to collision of his motorcycle with an electric pole. It is also the case of Viral that after he fell down, one Navinbhai Shah travelling on his motorcycle helped Viral to reach the dispensary of Dr. Baldania. According to Mr. Shah, the claim of Hardeep of his sustaining injury during the incident appears to be highly unnatural and improbable. 16. Mr. Shah, the learned counsel, thereafter, brought to the notice of this Court the various circumstances, prima facie, indicating manipulation and fabrication of the documentary evidence relied upon by the prosecution: 1 Exhibit 42 In the medical certificate of Ranvir, no name of any assailants is stated and only states that assault over the patient by some people 2 Exhibit 43 In the medical certificate of Ranvir, again no names are emerging in the History, doctor had examined the patient at 2.00 AM 3 Exhibit 49, 50 and 51 These documents were never given to the Police and for all the time they remained in the Custody of the Doctor (P.W 9) and he has not even submitted these documents to the hospital. This doctor categorically admits that anyone can make changes in Exhibit 50. It further emerges from the deposition of the Doctor in para 3 that he was on deputation and hence he did not make any entry in the register after 3rd November 2011. If Exhibit 51 is perused than no such entry of such document is found thus the entire case of the Doctor having examined Ranvir and recording of history appears to be concocted in order to suit the case of the prosecution. 4 Exhibit 53 In the Medical Certificate of Viral, in the history given by Viral, no names of any assailant is given. On the contrary Viral gave history that he received injury on account of the fall from bike at 10.15 P.M 5 Exhibit 57 In the Medical Certificate of Ranvir, no names of the assailants are emerging in the history. The certificate bears time of 11.30 PM 6 Exhibit 59 In the Medical Certificate of Hardip, no names of the assailants are given in the history. The Certificate bears time of 12.30 PM. The certificate bears time of 11.30 PM 6 Exhibit 59 In the Medical Certificate of Hardip, no names of the assailants are given in the history. The Certificate bears time of 12.30 PM. Examined by the same doctor who examined Ranvir. 7 Exhibit 60 In the case papers there are no names of the assailants. The case papers were prepared at 11.50 PM. 8 Exhibit 70 This was not being produced by the doctor Purvi. It was produced during her cross examination by the defense. 9 Exhibit 69 This document appears to be concocted or created in order to destroy the version of Pravin as the history in both these exhibits 69 and 70 are different. This conflict is with a purpose to defeat the version of accused (5), and in order to establish the presence of Hardeep and Viral (Eyewitness). That when the history was recorded in Exhibit 70 there was no version of sword being produced. On the contrary it was knife than how come in the Exhibit 69 the version of sword is mentioned? That no names are mentioned in Exhibit 70 whereas Exhibit 69 bears the names of the assailant. When no history of sword or names were given in the Exhibit 70 than how come the name and sword got introduced in the Exhibit 69 dated 26th November 2011? 10 Exhibit 70 This exhibit is dated 8th November 2011 and Exhibit 69 injury certificate is issued on 26th November 2011. Thus the history has been deliberately changed in the injury certificate which is prepared later. 11 Exhibit 24 Hardeep (Complainant eyewitness) has identified the body. The inquest panchnama was carried out on 8th November 2011 at 1.35 A.M and it concluded on 2.10 A.M. Both the Panch witness have not been treated hostile though they failed to support the case of the prosecution as one of the panch hapends to be the friend of Hardeep and another is the Nephew and they have supported the case of Hardeep, The Evidence of panch witness who is a close relative and associate is deliberately modulated to suit the prosecution so that the evidence of Hardeep can be considered as reliable. 12 Exhibit 82 Hardeep (complainant) lodged the FIR at Talaja and the start time of the FIR is 1.30 A.M and it got over at 2.15 A.M. The first question is whether one person can be at two places. Secondly Hardeep has been examined by Dr. Y.K Kala at 12.30 A.M (Certificate Exhibit 59). If Hardeep is examined at 12.30 can he start dictating his FIR at 1.30 A.M that too at Talaja which is 55 KMS away from Bhavnagar where he took treatment at 12.30 A.M, more particularly when Ranvir was in critical condition. 13 Naming the assailants That it has been portrayed by the prosecution that the names of the assailants were given immediately but the same is not true. That attempt has been made to prove that the names of the assailants were disclosed immediately after the incident. Hence attempt has been made to create a FIR at 1.30 which is otherwise not possible as Hardip was at Bhavnagar till 12.30 taking treatment. He could not have travelled a distance of 55 kms. in one hour. The dead body in the inquest was identified by Hardip but if he admits so than it would emerge that the names of assailants were given belatedly as till 1.30, no names of the assailants had surfaced. Hence Hardip saw to it that Panch witness do not support the case, because if they would support then the FIR would be falsified and the FIR is one of the earliest documents which bears the name of all the assailants. Though the panch witnesses were his friend and nephew they have not supported the case of the prosecution and at the same time they have not been treated hostile. Bloodstained clothes of Hardip have not been recovered and sent to FSL. Hardip has not attributed any role to the accused person. If he was an eyewitness then he could have stated who caused which injury. 14 Bike That the IO admits that it is the case of the complainant that from the place of offence his bike was taken away by Viral whereas during the investigation they have not seized the bike of the complainant neither they have handed over the bike. Bike of the deceased was not found on the spot. 14 Bike That the IO admits that it is the case of the complainant that from the place of offence his bike was taken away by Viral whereas during the investigation they have not seized the bike of the complainant neither they have handed over the bike. Bike of the deceased was not found on the spot. If that be so than the case of the prosecution that Viral took Hardip‘s bike to flee away from the spot is concoction and it has also come on record that the bike of the deceased was not there when they went there that means viral did not take the bike 0f Hardip as he was not there, he took the bike of deceased from the spot and fled and then called Hardip. Viral P.W 16 also admits that the deceased had a bike and it was not there when they went to the place of the incident. 15 DELAY IN FORWARDING FIR TO THE MAGISTRATE: Although the FIR was registered at 1.30 A.M, yet the same was sent at 11.30 P.M what caused this delay in sending the FIR is not explained. This circumstance also creates doubt. That even there is alteration in time from 10.30 P.M. it is made 11.30 PM. 17. In such circumstances referred to above, Mr. Shah prays that there being merit in both the appeals, the same may be allowed and the judgment and order of conviction be quashed and set aside. SUBMISSIONS ON BEHALF OF THE STATE: 18. Mr. K.P. Raval, the learned A.P.P. appearing for the State vehemently opposed both the appeals. He submitted that no error, not to speak of any error of law could be said to have been committed by the Trial Court in holding the accused appellants guilty of the offence of murder. According to Mr. Raval, the two eyewitnesses i.e. the PW 16-Viral and the PW 15 - Hardeepsinh have been found to be reliable by the Trial Court and the Trial Court committed no error in accepting the ocular version of the two eyewitnesses. He submitted that the ocular evidence stands corroborated with the medical evidence on record. Mr. According to Mr. Raval, the two eyewitnesses i.e. the PW 16-Viral and the PW 15 - Hardeepsinh have been found to be reliable by the Trial Court and the Trial Court committed no error in accepting the ocular version of the two eyewitnesses. He submitted that the ocular evidence stands corroborated with the medical evidence on record. Mr. Raval submitted that it is true that a cross F.I.R. was lodged by the original accused No. 5 in connection with the same incident as he suffered injuries on his hand by a sharp cutting weapon - a knife, but the original accused No. 5 himself turned hostile in the course of the trial of the cross case and in such circumstances, it is not necessary for the prosecution to explain the injuries suffered by the original accused No. 5 on his hand. According to the learned A.P.P., the Trial Court should have convicted the accused appellants with the aid of Section 149 of the I.P.C. Mr. Raval further conceded to the fact that the State has not preferred any acquittal appeal, but the issue with regard to Section 149 of the I.P.C. may be examined in the cross appeal preferred by the complainant. SUBMISSIONS ON BEHALF OF THE ORIGINAL COMPLAINANT: 19. Mr. S.P. Kotia, the learned counsel appearing for the original complainant vehemently submitted that the Trial Court should have held all the appellants herein including the acquitted accused of the offence of murder with the aid of Section 149 of the I.P.C. He submitted that the Trial Court committed a serious error in acquitting the accused appellants for the offence punishable under Section 149 of the I.P.C. According to Mr. Kotia, the evidence on record would indicate that unlawful assembly was formed and the common object of the unlawful assembly was to kill Ranvirsinh. He submitted that there is no good reason to doubt the veracity of the PW 16 - Viral and PW 15-Hardeepsinh. He submitted that both are injured eyewitnesses and in such circumstances, there is no good reason to doubt their presence at the place of the occurrence. Mr. Kotia submitted that the Trial Court committed a serious error in acquitting the original accused No. 5-Pravinbhai Keshubhai Bambhaniya on the erroneous ground that he had no weapon in his hand. According to Mr. Mr. Kotia submitted that the Trial Court committed a serious error in acquitting the original accused No. 5-Pravinbhai Keshubhai Bambhaniya on the erroneous ground that he had no weapon in his hand. According to Mr. Kotia, once the original accused No. 5 is found to be one of the members of the unlawful assembly and it is established that the common object of the unlawful assembly was to kill Ranvirsinh, then the accused No. 5 would be equally responsible being one of the members of the unlawful assembly even if it is believed that he had no weapon in his hand. 20. In such circumstances referred to above, Mr. Kotia prays that the appeal filed by the appellants deserves to be dismissed, whereas his appeal deserves to be allowed and all the original accused persons may deserve to be convicted for the offence of murder with the aid of Section 149 of the I.P.C. ANALYSIS: 21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration: [1] Is the case on hand one of sudden fight? Having regard to the genesis of the occurrence, could it be said that an unlawful assembly was formed and the common object of the unlawful assembly was to kill Ranvirsinh? [2] Whether the Trial Court is justified in individually holding the appellants Nos. 1, 2 and 3 guilty of the offence of murder punishable under Section 302 of the I.P.C. [3] Whether the PW 15/Exhibit : 81 Hardeepsinh Dilipsinh Vala and the PW 16/Exhibit : 85 could be termed as reliable eyewitnesses? Does the evidence of the two eyewitnesses inspire confidence? [4] Having regard to the medical evidence on record, could it be said that the intention of the accused appellants was to commit murder of Ranvirsinh? [5] Are two eyewitnesses PW 15 - Hardeepsinh and PW 16 Viral Joshi guilty of suppressing the true origin of the occurrence thereby rendering the entire case of the prosecution doubtful. 22. We propose to first look into the medical evidence on record. The prosecution has examined PW 6 - Dr. Devendrabhai Nanalal Panchal to prove the postmortem report Exhibit : 34. The PW 6, in the course of the postmortem, noted nineteen injuries on the person of the deceased. According to the PW 6: [i] Injury Nos. 22. We propose to first look into the medical evidence on record. The prosecution has examined PW 6 - Dr. Devendrabhai Nanalal Panchal to prove the postmortem report Exhibit : 34. The PW 6, in the course of the postmortem, noted nineteen injuries on the person of the deceased. According to the PW 6: [i] Injury Nos. 2, 3, 4, 6, 8, 14, 15, 18 and 19 mentioned in the column No. 17 are possible by Dharia. [ii] Injury Nos. 1, 5, 7, 9, 10, 11, 12, 13 and 17 possible by pipe. [iii] Injury Nos. 1, 5, 7, 9, 10, 11, 13 and 17 also possible by stick. [iv] Cause of death is hemorrhagic shock due to injuries sustained on head. The PW 6, in his cross-examination has highlighted the following: [i] Injury Nos. 5, 6, 7, 8, 9, 10, 13 and 17 revealed reddish brown colour scab and such injuries are old injuries. [ii] Injury Nos. 2 and 3 are superficial injuries and simple. [iii] Injury Nos. 4, 14 and 15 are simple injuries. [iv] Injury Nos. 6 to 19 are simple injuries. [v] Similarly injury No. 1 is fatal and old injuries are simple. [vi] Injury No. 1 oblique stitched wound 1.6 cm in length on right temporal parietal region of scalp interior and 6 cm above from the right mastoid process, posterior and 7 cm right lateral to external occipital protuberance. All stitches are intact. [vii] Injury No. 1 is possible by hard and blunt substance. Thus the injury No. 1 is possible by hard and blunt substance like pipe. [viii] Injury Nos. 2 and 3 are shown to be possible by Dharia. [ix] Injury No. 2 horizontal incised of 2 x 0.5 cm size on just above the right ear pinna. [x] Injury No. 3 oblique incised wound of 1 x 0.3 size behind the left ear just below the left mastoid process. Thus, injury Nos. 2 and 3 are simple and superficial injuries. 23. Thus, it appears from the evidence of the PW 6 that only injury No. 1 was a fatal injury sufficient in the ordinary course of nature to cause death. Whereas, all other injuries were simple in nature. 24. The prosecution examined PW 8 - Dr. Nishit Rajguru Exhibit : 41 of the Sterling Hospital, Bhavnagar. It appears that the deceased was shifted from Talaja to the Sterling Hospital at Bhavnagar. Whereas, all other injuries were simple in nature. 24. The prosecution examined PW 8 - Dr. Nishit Rajguru Exhibit : 41 of the Sterling Hospital, Bhavnagar. It appears that the deceased was shifted from Talaja to the Sterling Hospital at Bhavnagar. Dr. Rajguru attended the deceased in the emergency ward and issued certificate Exhibit : 42. The certificate Exhibit : 43 had also been issued by this doctor wherein the time of death of Ranvirsinh is shown as 1:33 A.M. on 8th November 2011. 25. The prosecution has examined PW 9 - Dr. Dipak Bharadwaj Exhibit : 48 of the CHC Hospital, Talaja. The PW 9, in his evidence, has deposed that Hardeepsinh had brought the injured Ranvirsinh at the hospital without Police Yadi. The PW 9 produced OPD case paper Exhibit : 49. The PW 9 has also produced the case paper of the examination of the deceased Ranvirsinh Exhibit : 50. Exhibit : 51 is the entry register in which entries are effectuated. The perusal of Exhibit : 51 would indicate that there is no entry of Exhibits : 49 and 50 in the said register. The history recorded in Exhibit : 49 is as under: "alleged assaulted injury by Viram Keshu, Dinesh Keshu, Aswin Keshu, Ramesh Narsinh, Pravin Keshu etc. 5 persons with Dhariya today before 15 mints." Whereas history recorded in Exhibit : 50 is as under: "alleged assaulted injury by Vikram Keshu, Dinesh Keshu, Aswin Keshu, Ramesh Narsinh, Pravin Keshu etc 5 persons with Dhariya on 07-11-11 at about 9.20 p.m." The cross-examination of the PW 9 reveals that the case paper of the patient (purporting to have been prepared on 7th November 2011) were in the custody of the witness till the date of his deposition (24th June 2013). The said case papers were not a part of the hospital record. The MLC paper is to be entered in the register and member-wife entries are made. The case register entries reflect entries from 3rd November 2011 and the next entry is of 14th November 2011. The entry of 3rd November 2011 is bearing No. 568 and the entry of 14th November is bearing No. 569. Thus, the case paper of the patient at Exhibit : 49 and Exhibit: 50 are not entered in the MLC register. 26. The prosecution examined PW 10 - Dr. Vinjay Kordia Exhibit : 52. The entry of 3rd November 2011 is bearing No. 568 and the entry of 14th November is bearing No. 569. Thus, the case paper of the patient at Exhibit : 49 and Exhibit: 50 are not entered in the MLC register. 26. The prosecution examined PW 10 - Dr. Vinjay Kordia Exhibit : 52. This doctor had examined the PW 16 - Viral at 10:15 p.m. and issued certificate Exhibit : 53. In the certificate, the PW 10 has recorded as under: "alleged H/o. fall from Bike (two wheel vehicle) and injury over scalp & Tt wrist on Dt. 7.11.2011 at 10.15 p.m. as per pt history (vernacular language) pt came only for emergency treatment." 27. The prosecution examined PW 11 - Dr. Yogesh Kacha of the Sterling Hospital Exhibit : 56. Dr. Yogesh Kacha was serving at the Sterling Hospital in the emergency ward and he examined Ranvirsinh at 11.30 p.m. The PW 11 issued the medical certificate Exhibit : 57, wherein the history has been recorded in the vernacular language, which reads as under: "today at around 9.30 near Gorkhi Darwaja Talaja on Samshan Road Opposite Kerosene Pump had fight with the persons of the Koli community." The PW 11 also examined the PW 15 - Hardeepsinh at about 12.30 A.M. on 8th November 2011. This doctor issued certificate Exhibit : 59, wherein the history given by Hardeepsinh is as under: "A/WO assaulted on 7/11/2011 at 9.30 around Gorkhi Darvaja Talaja Samjan Road Near Kerosene pump with a group of local persons." 28. Prima facie, it appears that Exhibit : 60 are the case papers which were withheld by the doctor, but, at the instance of the defence counsel, in the course of the examination, the same were produced. In the hand written case papers, the medical history has been recorded as under: "brought to sterling hospital with alleged h/o. assault at approx. 09.30 P.M. on 7/11/2011 at Gorkhi Darwaja Talaja." INJURIES ON ACCUSED No. 5: 29. We shall now look into the evidence with regard to the injuries suffered by the original accused No. 5 on his hand. It appears from the materials on record that the Special Public Prosecutor before the Trial Court preferred an application Exhibit : 61 in order to bring on record the injury certificate and the evidence of the doctor who had treated the accused No. 5 - Pravinbhai Keshubhai Bambhaniya. It appears from the materials on record that the Special Public Prosecutor before the Trial Court preferred an application Exhibit : 61 in order to bring on record the injury certificate and the evidence of the doctor who had treated the accused No. 5 - Pravinbhai Keshubhai Bambhaniya. The said application i.e. Exhibit : 61 was preferred by the Special Public Prosecutor on the premise that the prosecution owes to explain the injury on the body of the accused. It emerges from the evidence of the PW 14 - Dr. Purvi Shital Giri Goswami Exhibit : 68, who, at the relevant point of time, was serving as the medical officer at the Ahmedabad Civil Hospital that the accused No. 5 - Pravinbhai Keshubhai Bambhaniya was referred by the Bhavnagar Sir T Hospital and while she was on duty, the accused No. 5 had visited her on 8th November 2011 at about 10:45 A.M. According to the PW 14, Pravin came for plastic surgery. According to the PW 14, Pravin was admitted on 8th November 2011 and was discharged on 11th November 2011. The accused No. 5 - Pravin gave history before the PW 14 that at about 9: 30 P.M., on the previous day, he was assaulted by Ranvirsinh (deceased), Hardeepsinh Tisubha and Munnabhai with a knife. The PW 14 Dr. Purvi produced the medical certificate, which has been exhibited vide Exhibit : 69 dated 26th November 2011. In the cross-examination of the PW 14, she was asked to produce certain case papers. The same came to be exhibited vide Exhibit : 70. In the certificate, the following history has been noted: "alleged H/O. assault at 9.30 p, on 7/11/2011 patient was apparently alright. Some known people hit him by knife over his left hand then the patient was shifted to the Civil hospital at Bhavnagar and then shifted to the Civil Hospital at Ahmedabad. Following the assault patient was not able to extend his 4 fingers excluding the thumb Local examination CLW over dorsal aspect left hand measuring around 4 x 2 cm in size Patient not able to extend his 4 fingers except thumb." 30. Following the assault patient was not able to extend his 4 fingers excluding the thumb Local examination CLW over dorsal aspect left hand measuring around 4 x 2 cm in size Patient not able to extend his 4 fingers except thumb." 30. Exhibit : 128 is the F.I.R. registered by the accused No. 5-Pravinbhai Keshubhai Bambhaniya dated 11th November 2011 at about 8:30 p.m. The relevant part of the F.I.R. reads as under: "that he was been beaten near the nala and at that time his brothers namely Vikram, Dinesh Ashwin and Ramesh came over there and in order to save him from further assault they intervened and it was at that time Viral @ Tino took out knife from his trouser and gave a blow on his stomach and it was at that time Pravin in order to ward of the blow with his hands and it was in that process injury was caused near his left wrist hand same started bleeding." 31. Thus, it emerges from Exhibits : 70 and 124 respectively that injury was caused on the hand of Pravin by a knife. 32. It appears that the prosecution has not been in the position to reconcile the medical certificate Exhibit : 69 and MLC case paper Exhibit : 70. The certificate Exhibit : 69 is in conflict with the case paper dated 8th November 2011 (Exhibit: 70). 33. We shall now look into the evidence of the two eyewitnesses: "EVIDENCE OF HAKDEEP PW 15/Exh. 81 Vala Hardeepsinh Dilipsinh) (1) It is the case of this witness that when he was near the statue of Gandhiji, at that time he received a call on his mobile from Viral. That over the phone Viral informed him that his elder brother Ranvir had picked-up a fight with the people of Koli community near Gorkhi Darwaja. (2) That on receiving such information this witness reached Gorkhi Darwaja and with the aid of the light of his head lamp of his Bike saw Vikram with Dharia, Ashwin and Dinesh with iron pipe, Ramesh Narsinh with stick and Pravin Keshu without any weapon. (3) That this witness does not attribute any injury to any of the accused but only says that all the accused were hitting blow in a haphazard manner. (3) That this witness does not attribute any injury to any of the accused but only says that all the accused were hitting blow in a haphazard manner. (4) That this witness further states that Ramesh gave a stick blow on left side of his shoulder, Ashwin Keshu inflicted pipe blow on his back and Vikram Keshu inflicted one blow of the back side of dharia (Mudarati) over the head of Viral, that these injuries were caused when they attempted to intervene, when Ranvir was being assaulted. (5) It is further emerging from the deposition of this witness that in order to save himself from further assault Viral ran away from the scene of offence. (6) That no sooner Viral fled away from the scene of offence, police car came at the spot and all the accused ran away from there. (7) That it is further the case of this witness that he took his brother to Talaja Hospital in the police car. (8) That after half an hour Viral visit the hospital at Talaja and this witness inquires as to how the incident took place. That it emerges that while the ruckus was going on they all reached near the house of Pravin Keshu (house of accused is only 150 ft. away as per the deposition of the 1.0.) (9) That thereafter this witness was informed that for further treatment Ranvir will have to be shifted to Bhavnagar and the same was done and Ranvir was taken in 108 Ambulance to the Sterling Hospital at Bhavnagar where present witness also took treatment. (10) That it is further the case of this witness that after taking treatment he left for Talaja for registering his FIR and at that time two of his relatives had stayed behind i.e. Amarsinh and Harichandrasingh. (11) That after registering the FIR PW 15 travelled back to the Sterling Hospital Bhavnagar. At that time he received a phone call and he was informed that now he should come to the Government Hospital Bhavnagar. That this witness reached the Government Hospital Bhavnagar and about 4.00 a.m., on reaching his relatives informed that Ranvir had passed away. (12) That this witness further states that thereafter he reached his residence at Talaja at 9 am. That this witness reached the Government Hospital Bhavnagar and about 4.00 a.m., on reaching his relatives informed that Ranvir had passed away. (12) That this witness further states that thereafter he reached his residence at Talaja at 9 am. and the body was brought to his residence at 12.00 p.m. Cremation was performed at 2.00 p.m. (13) It is further emerging from the deposition that panchas Of Inquest panchnama are related to this witness, one happens to be a friend and another panch happens to be nephew of this witness. (P. 187) (14) This witness admits that the distance between Talaja and Bhavnagar is 55 Kms. and it takes almost 1 hour and 5 to 10 minutes. (15) It is emerging that this witness helped the Police officers in putting the victim in the jeep and in this process clothes of this witness got blood stained but his clothes were not collected by the police officers. (16) That this witness left Talaja at 10.15 p.m. in 108 Ambulance and reached Bhavnagar Sterling hospital at 11.30 p.m. and history was given by this witness. (17) This witness admits that he did not disclose the name of any accused in the history. (18) The injured brother was shifted to ICU. Witness does not inquire about his wellbeing, gets himself examined and then leaves for Talaja for registering FIR. (19) The witness has deposed that the same Doctor did not examine the deceased and himself. He further states that it is not correct that doctor examined him at 12.30 a.m. and thereafter he left for Bhavnagar. If that be so then Exh. 59 is either true or this witness. Even Dr. Yogesh Kacha PW.56 could also be said to have deposed falsely as per this witness. (20) This witness denies his presence at the time of the inquest panchnama and also denies that he identified the dead body during the inquest panchnama (Exh. 24, R915) which was conducted at Bhavnagar from 1.35 a.m. to 2.10 p.m. (21) This witness establishes his presence in Talaja Police Station from 1.35 a.m. to 2.15 a.m. i.e. during the period the FIR was being dictated. (22) Question arises if he was at Bhavnagar at 12.30 a.m. as per Exh. 24, R915) which was conducted at Bhavnagar from 1.35 a.m. to 2.10 p.m. (21) This witness establishes his presence in Talaja Police Station from 1.35 a.m. to 2.15 a.m. i.e. during the period the FIR was being dictated. (22) Question arises if he was at Bhavnagar at 12.30 a.m. as per Exh. 59-certificate of the doctor, how could he has reached Talaja by 1.30 a.m. as it takes about 1 hour and 15 minutes to reach Talaja from Bhavnagar (creates grave doubt) (23) The witness admits that in his FIR he has stated that after the entire incident was over Viral had called him, later he states that he has not stated so in his FIR, Police on his own might have written it. (24) The aforesaid fact gets corroborated with deposition of the 10. (25) The contradiction proved by IO in the third para wherein IO has admitted that further statement of Hardeep was recorded and in that statement he had stated that Hardeep had gone to Gorkhi Darwaja after the incident, took a bike from boy and while going to Police Station, Talaja, found a police car on the way, whereas in his deposition Hardeep has stated that after the incident Police car came and all the accused ran away from the spot. No Police witness who had gone in police van at the place of offence has been examined to prove the presence of Hardeep at the place of occurrence. (26) the Bike of the deceased was not found at the spot. (27) That it has further emerged from his deposition that even the bloodstained cloths of the complainant were not collected. (28) The 10 further admits that it is the case of the complainant that from the place of offence his bike was taken away by Viral whereas during investigation they have not seized the bike of the complainant neither they handed over the bike." "EVIDENCE OF VIRAL & TINO PW 16/Exh. 85-Viral Joshi: (1) It is the case of this witness that in the night at around 9./3o p.m. this witness and deceased Ranvir had gone to the pan parlour of Pravin which is situated at the Gaushala Complex for having Pan and mavo. 85-Viral Joshi: (1) It is the case of this witness that in the night at around 9./3o p.m. this witness and deceased Ranvir had gone to the pan parlour of Pravin which is situated at the Gaushala Complex for having Pan and mavo. (2) It is the case of this witness that after purchasing Pan mava they started walking off and at that time Pravin asked for money from Ranvir, he further asked for change, Ranvir did not have change and thereafter there was exchange of words between Pravin and Ranvir. That during this exchange of words they reached near the house of Pravin, at that time Pravin was explained that he shall get his money, at that time Pravin was not persuaded and started abusing. (3) At that time as they had reached near the house of Pravin, his brothers Pravin, Vikram,. Dinesh, Ashwin, Ramesh came over there. Vikram was having dharia in his hand, Dinesh was having iron pipe, Ashwin was having iron pipe and Ramesh was having a stick in his hand. (4) It is the case of this witness that as he realized that the situation would get grave, he immediately called up Hardeep and informed that quarrel had taken place with the Koli community people and he should come immediately. Thereafter Hardeep reached there immediately. (5) After Hardeep arrived at the spot, all the accused started beating Ranvir and at that time the witness and Hardeep intervened to save him. (i) Vikram who was having Dharia in his hand, inflicted blow one on the head of Ranvir in the middle of his forehead resulting in bleeding, (ii) Dinesh and Ashwin who were having iron pipe, inflicted blow on the head of Ranvir on the back side of his head and injury started bleeding. (iii) Vikram gave dharia blow on Ranvir's chest, but the same landed on the left side of his shoulder on front side. (iv) Vikram had a further blow which landed on the left side of his shoulder. (v) Vikram further gave a blow of dharia on left side which got inflicted on the left-hand elbow and Vikram also gave one blow on the back of Ranvir. Injury on Viral. (iv) Vikram had a further blow which landed on the left side of his shoulder. (v) Vikram further gave a blow of dharia on left side which got inflicted on the left-hand elbow and Vikram also gave one blow on the back of Ranvir. Injury on Viral. (i) At that time Vikram gave a dharia blow on the back side of this witness, (ii) Dinesh who was having iron pipe inflicted a blow on right side of his hand which landed on the wrist. Injury on Hardeep (i) Hardeep tried to intervene and Ramesh inflicted injury with stick on left side left shoulder (ii) Ashwin gave a pipe blow on the back That it is the case of this witness that after the assault he ran away from the Spot in order to save himself from being further beaten up. (6) This witness after having hit his bike with the pole fell down on the road and later was taken to Dr. Baldania's hospital. He was taken to the hospital by Navinbhai Shah (not examined). (7) That this witness admits that he gave history before the Doctor that he received injury as his bike slipped and he did not mention about any quarrel/fight. (8) Witness further states that after taking treatment at Dr. Baldania's Hospital he went to the Government Hospital to meet Hardeep. (9) that this witness admits that he on his own did not go to the police station and if he would have not been called then he would not have gone to the police station. (10) This witness also admits that the deceased had a bike and it was not there when they went to the place of incident. (11) That this witness has admitted that after the incident he reached to his home and went to sleep and he did not disclose about the incident to anyone at home.” 34. The picture that emerges on the cumulative assessment of the materials on record is that the acquitted accused No. 5 - Pravinbhai Keshubhai Bambhaniya was at the pan shop at the relevant point of time. The deceased, in company of Viral, came to the pan shop and purchased pan and pan masala. It appears that the deceased and Viral had no intention to make payment for the purchase of pan and pan masala. The deceased, in company of Viral, came to the pan shop and purchased pan and pan masala. It appears that the deceased and Viral had no intention to make payment for the purchase of pan and pan masala. This, ultimately, led to an altercation in words between the original accused No. 5 - Pravinbhai and the deceased and Viral. It appears to us that in the meantime, the situation aggravated as the deceased took out a knife and inflicted injury on the hand of Pravin. Pravin started shouting for help and his brothers came running at the place of occurrence. Even if we believe the presence of the brothers of Pravin i.e. the appellants Nos. 1, 2 and 3, the case is not one of formation of an unlawful assembly. In our opinion, it cannot be said that the accused persons formed an unlawful assembly and the common object of the unlawful assembly was to kill Ranvirsinh. We are of the view that situation aggravated as an assault was laid with a knife on the hand of Pravin. It appears to us to be a case of sudden fight if not a free fight and in such circumstances, it is difficult for us to take the view that an unlawful assembly was formed and the common object of the unlawful assembly was to kill Ranvirsinh. There is no evidence that Ranvirsinh was brutally assaulted. The medical evidence, as discussed above, indicates that there was only one fatal injury on the forehead alleged to have been caused by the appellant No. 1 with a blunt side of Dhariya. All other injuries were found to be simple in nature. 35. Although the testimony of the two eyewitnesses PW 15 and PW 16 is not free of embellishment, inconsistencies, improvements, suppression of material facts, etc, yet we are not inclined to disbelieve the two eyewitnesses in toto. We proceed on the footing that the appellants being the brothers of the original accused No. 5 rushed at the place of the occurrence having come to know about the assault by the deceased with a knife on the accused No. 5, and probably, at that point of time, in the heat of moment and in a sudden fight, an assault could be said to have been laid on the deceased. 36. 36. The first issue to be resolved in this matter is to ascertain the point at which the 'common object' of the unlawful assembly in the instant case was crystallized, and the nature of this common object, as this would be necessary to rule on the applicability of Section 149 of the Indian Penal Code (hereinafter 'IPC'). 37. Regarding the application of Section 149, the following observations are extracted from the case of Charan Singh v. State of U.P. [ (2004) 4 SCC 205 ]: "The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it [Emphasis supplied]. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter... 'Common object' is different from a 'common intention' as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. [Emphasis supplied] The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. [Emphasis supplied] The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot eo instanti." Hence, the common object of the unlawful assembly in question depends first on whether such object can be classified as one of those described in Section 141 of the IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment {see also Sukha v. State of Rajasthan [ AIR 1956 SC 513 ]}. Finally, the nature of this common object is a question of fact to be determined by considering the nature of arms, nature of the assembly, behavior of the members etc. {see also Rachamreddi Chenna Reddy vs. State of Andhra Pradesh [ (1999) 3 SCC 97 ]}. 38. The constitution of unlawful assembly is a question of fact and the prosecution is required to prove the constitution of unlawful assembly and its common object. {see also Rachamreddi Chenna Reddy vs. State of Andhra Pradesh [ (1999) 3 SCC 97 ]}. 38. The constitution of unlawful assembly is a question of fact and the prosecution is required to prove the constitution of unlawful assembly and its common object. Unlawful assembly may be constituted at any moment and person may join the unlawful assembly at any time, even at the time of causing injury, but the prosecution is required to prove the aforesaid fact by adducing cogent and reliable evidence that the persons had formed the unlawful assembly or joined the unlawful assembly having its common object and was having its common object for commission of the aforesaid offence. 39. In the case of Mariadasam and others vs. State of Tamil Nadu [ AIR 1980 SC 573 ], the Apex Court held that where there was no satisfactory evidence to prove the formation of any unlawful assembly with the common object of committing the crime as alleged and the whole fight started suddenly on the spur of the moment in a heat of passion the accused though more than five in number, could only be liable for the individual acts committed by them and could not be convicted under Sections 149, 148 or 147 of the IPC. In the case of Sukhbir Singh vs. State of Haryana, 2002 SCC (Cri) 616, the Apex Court held that merely because co-accused persons accompanied the main accused when he inflicted the fatal blows to the deceased would not by itself prove the existence of the common object. The common object shared by members of the assembly must pre-exist the occurrence of incident. Here, in the present case, the prosecution could not prove the case beyond reasonable doubt about the existence of common object harboured by members of the unlawful assembly to eliminate the deceased. In the case of Shaji and others vs. State of Kerala, AIR 2011 SC 1825 , the Apex Court considered the judgment rendered in the case of Kuldip Yadav and others vs. State of Bihar, 2011 AIR SCW 2404 wherein it has been held that: "It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC." 40. We may also look into few more judgments of the Apex Court on the subject of unlawful assembly and common object. 41. While dealing with the same question, the Apex Court in the matter of Pandurang Chandrakant Mhatre v. State of Maharashtra, (2009) 10 SCC 773 : 2010 AIR SCW 236 has held that conduct of each member of unlawful assembly before and at the time of attack is relevant consideration. Object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, arms carried by members, and behavior of members at or near scene of incident. Mere presence on the spot will not make the person liable for commission of the offence with aid of Section 149 of the Indian Penal Code. 42. While dealing with the same question, the Apex Court in the matter of Masalti v. State of U.P., AIR 1965 SC 202 has held in para 17 as under: "17......... What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141, IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly." 43. While dealing with the question of need of overt act or active participation of member of unlawful assembly, the Apex Court in the matter of Lalji v. State of U.P., (1989) 1 SCC 437 : 1989 Cri.L.J. 850 has held that once formation of unlawful assembly is established, then no overt act or active participation of any member of unlawful assembly is required and mere meeting of five or more persons for carrying out common object involving reasonable apprehension of violence, even without doing any overt act is sufficient to constitute offence. Paras 8 and 9 of the said judgment reads as under: "8. Section 149, IPC provides that 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 the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in Section 141, IPC, an assembly of five or more persons is designated an "Unlawful Assembly", if the common object of the persons composing that assembly is to do any act or acts stated in clauses "First, "Second", "Third", "Fourth", and "Fifth" of that Section. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. Thus, whenever so many as five or more persons meet together to support each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence. Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm persons of reasonable firmness and courage. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been 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. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141, IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case. 9. Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. Thus this section created a specific and distinct offence. In other words, it created a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common objects of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149. It must be noted that the basis of the constructive guilt under Section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge." 44. While dealing with the question of intention/common object of unlawful assembly, the Apex Court in the matter of State of U.P. v. Dan Singh, (1997) 3 SCC 747 : 1997 Cri.L.J. 1150 has held that intent of members of assaulting party can be gathered from number and nature of injuries and arms used by them. An assembly which is initially lawful may subsequently become unlawful. An assembly which is initially lawful may subsequently become unlawful. Paras 30 and 31 of the said judgment reads as under: "30. From the aforesaid facts, as found by the High Court, let us examine whether there existed any unlawful assembly and what was its common object. It is possible that there was no unlawful assembly in existence at the time when the "doli" was stopped. Nevertheless as per the evidence of all the eye-witnesses, a large number of villagers had gathered there and they had with them lathis and sticks. According to the explanation to Section 141, IPC an assembly which is not unlawful when it assembles may subsequently become an unlawful assembly. As observed by this Court in Lalji v. State of U.P. (1991 Cri.L.J. 3289) "that common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behavior of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has been envisaged in the explanation to Section 141, IPC. With Khima Nand being injured, all hell broke loose. A cry was raised that the Doms should be burnt and killed, and this is precisely what happened. The marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possible come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eye-witnesses have said that fifty or more villagers had taken part in the attack. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eye-witnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks and stones. It is difficult to appreciate the conclusion of the High Court that, under the circumstances, the attackers probably had a similar object but not a common object. 31. It was sought to be contended that there is nothing to show that the unlawful assembly continued to exist during the course of the entire incident. It is not possible to accept this considering that when all that remained in the village, of the marriage party, were fourteen corpses. It is only those members of the marriage party who had run away were able to save their lives. The only conclusion which we can arrive at, in the instant case, is that there was an unlawful assembly which attacked the marriage party and which had the common object of killing them, and they succeeded in their endeavour to a large extent." 45. While dealing with the question of common object and necessity of overt act of members of unlawful assembly, the Apex Court in the matter of Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381 : 2003 Cri.L.J. 41 has held that evidence relating to common object is generally not available and same has to be gathered from the act committed and result therefrom. Likewise once the assembly is formed, then the overt act of any member of assembly is not necessary and even an assembly which is initially lawful may subsequently become unlawful. Paras 22, 23 and 24 of the said judgment reads as under:- "22. Another plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Paras 22, 23 and 24 of the said judgment reads as under:- "22. Another plea which was emphasized relates to the question whether Section 149, IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing requiring is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object" It must be immediately connected with the common object by virtue of the nature of the object. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 have to be strictly construed as equivalent to "in order to attain the common object" It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to a certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly. 23. "Common object" is different from a "common intention" as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot eo instanti. 24. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was a member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the converse proposition true, there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was on offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within the first, offences committed in prosecution of the common object would be generally, if not always, within the second, namely, offences which the parties knew were likely to be committed in the prosecution of the common object. (See Chikkarange Gowda v. State of Mysore)". 46. Having regard to the genesis of the occurrence and the nature of the injuries found on the body of the deceased, we find it difficult to take the view that the accused persons formed an unlawful assembly and the common object of the unlawful assembly was to commit the murder of the deceased. It is true that so far as the appellant No. 1 is concerned, he could be said to be the author of the fatal blow. According to the case put up by the prosecution, he was armed with a Dharia and he hit a blow with the blunt side of the Dharia, which landed up on the forehead of the deceased proving to be fatal. The injuries Nos. According to the case put up by the prosecution, he was armed with a Dharia and he hit a blow with the blunt side of the Dharia, which landed up on the forehead of the deceased proving to be fatal. The injuries Nos. 5, 6, 7, 8, 9, 10, 13 and 17 noted in the postmortem report, according to the opinion of the doctor, were old injuries and no way connected with the assault. The injuries Nos. 2 and 3 on the head were found to be superficial injuries and simple in nature. Thus, only the injury No. 1, on the right temporal parietal region, was sufficient in the ordinary course of nature to cause death. 47. We are of the view that there is no scope for us to fasten constructive or vicarious liability of all the accused persons. Since Section 149 of the I.P.C. imposes a constructive liability, it must be strictly construed as it seeks to punish the members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same. 48. We are of the view that the Trial Court committed a serious error in holding the appellants Nos. 1, 2 and 3 individually liable for the offence of murder punishable under Section 302 of the I.P.C. At best, the appellant No. 1 could be said to have committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II of the I.P.C. So far as the appellants Nos. 1, 2 and 3 individually liable for the offence of murder punishable under Section 302 of the I.P.C. At best, the appellant No. 1 could be said to have committed the offence of culpable homicide not amounting to murder punishable under Section 304 Part-II of the I.P.C. So far as the appellants Nos. 2 and 3 are concerned, they can be held liable for the offence punishable under Section 324 of the I.P.C. At this stage, we may refer to and rely upon the decision of the Supreme Court in the case of State of U.P. vs. Jodha Singh reported in 1989 Cri.L.J. 2113, wherein, in para 19, the Supreme Court has observed as under: "On the question whether all the accused or only some of them should be convicted for the injuries caused to the deceased and PW-1 we must say even at the outset that the accused cannot be convicted for the offence of rioting because the attack on the victims had taken place in the course of a sudden quarrel The accused had not formed themselves into an un-lawful assembly in order to commit the offence of rioting. Hence none of the accused can he convicted under Section 147 or 148 I.P.C. In so far as the injuries caused to the deceased and PW-1 are concerned, we find that though A-1 was armed with a lathi and A-7 was armed with a tamancha, they had not made use of them on the deceased or PW-1. Therefore, A-1 and A-7 cannot be convicted for the injuries caused to the deceased and PW 1 and their acquittal has to he sustained, though for different reasons. As regards A-2 to A-4 and A-6, they were armed with tamanchas and they had caused injuries to PW 1 besides causing fatal injuries to the deceased. A-5 was armed with a lathi and he had used the same against the victims. The evidence does not establish as to who among the assailants caused the fatal injuries to the two deceased. Consequently A-2 to A-6 merit conviction under Section 304 Part II I.P.C. read with Section34 I.P.C. As regards the attack on PW-1 it cannot be said that A-2 to A-6 had attempted to murder him because the injuries had been caused in the course of a sudden quarrel. Consequently A-2 to A-6 merit conviction under Section 304 Part II I.P.C. read with Section34 I.P.C. As regards the attack on PW-1 it cannot be said that A-2 to A-6 had attempted to murder him because the injuries had been caused in the course of a sudden quarrel. They can therefore the convicted only under Section 326 read with Section 34 I.P.C. and not under Section 307 read with Section 34 I.P.C. Accordingly we convict A-2 to A-6 under Section 304 Part II I.P.C. read with Section 34 I.P.C. (two counts) and under Section 326 read with Section 34 IPC." 49. We may also refer to and rely upon the decision of the Supreme Court in the case of Sarwan Singh and others vs. State of Punjab reported in (1978) 4 SCC 111 . The position of law as regards unlawful assembly and common object has been very succinctly explained by the Supreme Court and the observations of the Supreme Court are quite apt to the facts of the present case. In Sarwan Singh (supra), five accused were put on trial for the offences punishable under Sections 302 read with 149 of the I.P.C. The three eyewitnesses, in the said case, spoke to the actual incident as follows: "When they reached near the place of occurrence they heard Zora Singh shouting to Mewa Singh. Zora Singh was armed with a Gandasi, Karnail Singh was holding a Takwa, Malkiat Singh was armed with a Gandasi and Sarwan Singh and Bachan Singh were having a lathi each. Zora Singh gave a Gandasi blow to Mewa Singh who raised his hands to ward off the blow and sustained injury. Karnail Singh then gave a Takwa blow to Mewa Singh which he warded off by raising his hands and got an injury on his hand. Zora Singh and Karnail Singh gave more injuries with their respective weapons. Therefore, all the accused started causing injuries to Mewa Singh with their respective weapons while he was lying on the ground." The Trial Court found all the accused guilty under Sections 302 read with 149 of the Indian Penal Code. The High Court found that the common object was clearly to kill the deceased and the offence fell under Section 300, thirdly, read with Section 34 Indian Penal Code. The High Court found that the common object was clearly to kill the deceased and the offence fell under Section 300, thirdly, read with Section 34 Indian Penal Code. The Supreme Court, while setting aside the conviction under Sections 302 read with Section 149 I.P.C. and altering the conviction to Section 304(1), read with Section 149 I.P.C., held as under: "7. The facts of the case disclose that five accused armed with various weapons caused the injuries to the deceased which resulted in his death. If a person causes an injury with the intention of causing bodily injury to any person and when the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, the offence would fall under Cl. (iii) of S. 300 and would be an offence under S. 302 of the Indian Penal Code. The five accused were convicted by the trial Court for an offence under S. 302 read with S. 149 I.P.C. In order to find the person guilty of offence under S. 302 read with S. 149, the prosecution must establish that the offence was committed by any member of an unlawful assembly in prosecution of the common object of the assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object. It is, therefore, necessary for the prosecution to establish that the common object of the unlawful assembly was to commit an offence under S. 302 or that the members of the assembly knew it to be likely that an offence under S. 302 would be committed in prosecution of the common object. The cumulative effect of the injuries was no doubt found to have been sufficient in the ordinary course of nature to cause death. If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under S. 302 without the aid of S. 149. The cumulative effect of the injuries was no doubt found to have been sufficient in the ordinary course of nature to cause death. If the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under S. 302 without the aid of S. 149. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under S. 302 read with S. 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under S. 302 I.P.C. would be committed in prosecution of the common object. In order to determine this question, it is necessary to refer to the injuries caused in some detail. 8. ...On an analysis of the injuries it cannot be said that any of the persons that inflicted injuries intended to cause death or such injury as is sufficient in the ordinary course of nature to cause death. If the common object of the unlawful assembly was to commit murder and in prosecution of the common object of the unlawful assembly any member caused an injury which is sufficient in the ordinary course of nature to cause death, the members of the assembly would be liable for an offence under S. 302 I.P.C. read with S. 149, I.P.C. but on a consideration of the injuries we are not satisfied that the common object of the unlawful assembly was to cause death. Taking the circumstance that the unexpected quarrel was between the members of the same family over a dispute as to water rights, we are unable to hold that offence under S. 302 read with S. 149 is made out. On a consideration of the circumstances and the nature of the injuries it is not possible to hold that the common object of the assembly was to cause bodily injury which is sufficient in the ordinary course of nature to cause death. It can be said that the common object of the assembly was to cause bodily injury as is likely to cause death. It can be said that the common object of the assembly was to cause bodily injury as is likely to cause death. Though the doctor has stated that the injuries were sufficient in the ordinary course of nature to cause death, we find it difficult to hold that the injuries, cumulatively, were sufficient in the ordinary course of nature to cause death. The common object of the assembly in the circumstances can only be said to cause injuries which are likely to cause death which will be an offence under S. 304(1) of the Indian Penal Code. In the circumstances we set aside the conviction under S. 302 read with S. 149. P.C. but find the appellants guilty of an offence under S. 304(1) read with S. 149 I.P.C. and sentence them to five years' rigorous imprisonment and a fine of Rs. 3,500/- each." The Supreme Court, having regard to the nature of the injuries, took the view that the common object of the unlawful assembly was not to cause death. In Sarwan Singh (supra), the Supreme Court proceeded on the footing that an unlawful assembly was formed. However, it refused to accept the case of the prosecution that the common object of the unlawful assembly was to cause death. In the case on hand, we have taken the view that the case is one of sudden fight in the heat of passion and as there was no formation of an unlawful assembly within the meaning of Section 141 of the I.P.C., Section 149 of the I.P.C. will have no application. We have in detail discussed the medical evidence on record. Once again, at the cost of repetition, we state that there was only one injury on the head of the deceased attributed to the accused No. 1, which proved to be fatal. We have in detail discussed the medical evidence on record. Once again, at the cost of repetition, we state that there was only one injury on the head of the deceased attributed to the accused No. 1, which proved to be fatal. The important dictum, as laid in Sarwan Singh (supra), is that if the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under Section 302 I.P.C. without the aid of Section 149 I.P.C. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under Section 302 read with Section 149 I.P.C. to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 I.P.C. would be committed in prosecution of the common object. 50. We are not impressed with any of the submissions canvassed by Mr. Kotia, the learned counsel appearing for the original complainant in the connected appeal. Mr. Kotia, the learned counsel tried his best to convince us that the case is one of formation of an unlawful assembly and the common object of the unlawful assembly was to kill the deceased out of vengeance. However, we are not persuaded with such a case put up by the complainant. 51. In the result, the Criminal Appeal No. 1300 of 2015 is partly allowed. The judgment and order of conviction and sentence passed by the Trial Court holding the appellants Nos. 1, 2 and 3 guilty of the offence of murder are hereby quashed and set aside. The conviction of the appellant No. 1 is hereby altered from Section 302 I.P.C. to Section 304 Part-II I.P.C. and his sentence is reduced to the period already undergone. The conviction of the appellants Nos. 2 and 3 for the offence punishable under Section 302 of the I.P.C. is hereby quashed and aside. Their conviction for the offences punishable under Sections 324, 323 and 504 of the I.P.C. is, however, affirmed and they are sentenced to the period already undergone. So far as the appellant No. 4 is concerned, his conviction for the offence punishable under Sections 324, 323 and 504 of the I.P.C. is hereby affirmed. Their conviction for the offences punishable under Sections 324, 323 and 504 of the I.P.C. is, however, affirmed and they are sentenced to the period already undergone. So far as the appellant No. 4 is concerned, his conviction for the offence punishable under Sections 324, 323 and 504 of the I.P.C. is hereby affirmed. His sentence is reduced to the period already undergone as an undertrial prisoner. The appellants of the Criminal Appeal No. 1300 of 2015, however, shall furnish bail bond and surety bond of Rs. 15,000/- (Rupees Fifteen Thousand Only) each a fresh, before the Trial Court, as prescribed under Section 437-A of the Code of Criminal Procedure, 1973. 52. The Criminal Appeal No. 504 of 2016 preferred by the original complainant under Section 372 of the Cr.P.C. is hereby dismissed.