JUDGMENT : ANIRUDDHA SINGH, J. 1. This case is expedited vide order of Hon'ble Supreme Court in Special Leave to Appeal (Cri.) No. 9397/2015 (Sandeep Yadav v. State of U.P.). In compliance of order of Hon'ble Supreme Court, this appeal is being decided. 2. Heard Sri Bhavya Sahai, learned Advocate holding brief of Sri. Brijesh Sahai, learned counsel for the appellants, Sri. Satyendra Paridey, learned counsel for the complainant as well as Sri. Mayank Mishra, Learned Brief Holder for the State and perused the record. 3. This criminal appeal under Section 374(2), Cr.P.C. has been preferred by Rampal Yadav and Sandeep Yadav against State of U.P. challenging judgment and order dated 21.5.2014 passed by Additional Sessions Judge/Special Judge (E.C. Act), Gorakhpur in Session Trial No. 86 of 2008 (State v. Rampal Yadav and others) arising out of Case. Crime No. 367 of 2007, under Sections 147, 148, 149, 302, 307, 504, 506, 427, IPC, Police Station Tiwaripur, District Gorakhpur convicting and sentencing appellants to undergo seven years' rigorous imprisonment under section 304-II/149, IPC; three years' rigorous imprisonment with fine of Rs. 5000/- and in default in payment, two months additional rigorous imprisonment under section 324/149, IPC; two years imprisonment under Section 147, IPC; three years imprisonment under Section 148, IPC and two years imprisonment under section 427, IPC. All the sentences will run concurrently. 4. According to prosecution case, FIR was lodged on 9.5.2007 at 5:30 hour against eight persons namely, Rampal Yadav, Sandeep Yadav, Krishna Mohan Yadav, Babbu, Dharampal Yadav, Gopal Yadav, Ravi Yadav and Kishan Yadav and 4-5 unknown persons alleging that on 8/9.5.2007 at 2:30 hour on the occasion of marriage of complainant Prabhakar Singh with Neelam Singh, Rampal Yadav, owner of Radha Guest House, Siiryakund Colony, Police Station Tiwaripur directed to stop DJ music when members of 'barat' refused, then accused persons armed with stick (lathi-danda) and illegal firearms entered into marriage hall and on exhortation of Rampal Yadav and Gopal Yadav they assaulted with lathi-danda and Rampal Yadav, his son Sandeep Yadav, Krishna Mohan Yadav and Dharmpal opened fire with their firearms. In the said incident Anand Pal Singh, Chandra Shekhar Singh, Om Prakash Singh, Amar Jeet Singh, Shiv Sampati Singh received injuries. Shiv Sampati Singh died having received one lacerated wound, one abrasion and one firearm wound of entry on upper part of left side of chest. Case was registered and investigation was done. In the said incident Anand Pal Singh, Chandra Shekhar Singh, Om Prakash Singh, Amar Jeet Singh, Shiv Sampati Singh received injuries. Shiv Sampati Singh died having received one lacerated wound, one abrasion and one firearm wound of entry on upper part of left side of chest. Case was registered and investigation was done. 5. After investigation charge sheet was submitted against eight persons namely, Rampal Yadav, Sandeep Yadav, Krishna Mohan Yadav, Babbu Chaurasia, Dharampal Yadav, Gopal Yadav, Ravi Yadav and Krishna Pal Yadav alias Kishan Yadav under Sections 147, 148, 149, 302, 307, 504, 506, 427, IPC. After taking cognizance, the case was committed to the court of Sessions for trial. On 12.8.2008 charges under Sections 147, 148, 307/149, 302, 504, 506, 427, IPC against seven accused persons namely, Rampal Yadav, Sandeep Yadav, Krishna Mohan Yadav, Babbu Chaurasia, Dharampal Yadav, Gopal Yadav and Ravi Yadav were framed to which they pleaded not guilty and claimed for trial. 6. In order to prove the charges on behalf of prosecution besides documentary evidence, prosecution examined P.W. 1 Prabhakar Singh (complainant), P.W. 2 Chandrashekhar Singh, P.W. 3 Anand Pal Singh, P.W. 4 Om Prakash Singh s/o. Ram Adharey Singh, P.W. 5 Om Prakash Singh s/o. Ramji Singh P.W.-6 Dr. T.N. Jha, Radiologist, P.W.-7 Dr. Laldev, P.W.-8 Constable Mohammad Sirajuddin, P.W.-9 Dr. Abhishek Kumar Singh, P.W. 10 Dr. Nanak Chandra and P.W.-II SO Kushal Pal Yadav (Investigating Officer). 7. After closure of prosecution evidence, statements of accused-persons under Section 313, Cr.P.C. were recorded. They specifically stated in their statements that they are innocent, they have not committed any offence and have been falsely implicated. D.W.-1 Ravindra Yadav was also examined from the side of accused persons. 8. Trial Court after hearing learned counsel for the accused persons and District Government Counsel, passed impugned judgment and order dated 21.5.2014 convicting and sentencing appellants Rampal Yadav and Sandeep Yadav under Sections 304 II/149, 324/149, 147, 148, 427, IPC. They have been acquit-, ted under Sections 504 and 506, IPC. Other accused persons namely, Krishna Mohan Yadav, Babbu Chaurasia, Dharmpal Yadav, Gopal Yadav and Ravi Yadav have been acquitted under Sections 147, 148, 307/149, 302/149, 504, 506, 427, IPC. Hence, this appeal. 9. They have been acquit-, ted under Sections 504 and 506, IPC. Other accused persons namely, Krishna Mohan Yadav, Babbu Chaurasia, Dharmpal Yadav, Gopal Yadav and Ravi Yadav have been acquitted under Sections 147, 148, 307/149, 302/149, 504, 506, 427, IPC. Hence, this appeal. 9. Learned counsel for the appellants submitted that impugned judgment is against evidence on record and appellants have been convicted on the basis of conjecture and surmises; there are several grounds such as appellants were not known to the witnesses, no identification parade was done. There are major contradictions between the statements of witnesses as well as in post-mortem report of deceased and injury reports. Hence appellants who are father and son, are liable to be acquitted. 10. Learned A.G.A. submitted that there is sufficient evidence against accused-appellants to convict them. 11. I have considered rival submissions made by the learned counsel for the appellants and; learned A.G.A. for the State and gone through entire record. 12. This Court after scanning the evidence' on record, has to adjudicate whether the prosecution has proved charges levelled against accused appellants beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-- "Proved"-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." 13. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt. 14. This fact is admitted between the parties that the date of incident was 8.5.2007, place of occurrence was at Radha Guest House, Suryakund Colony, incident took place in the intervening night of 8/9.5.2007 at 2:30 a.m. between 'baratis' and owner of Radha Guest House, Suryakund and their associates. 15. This fact is also proved beyond reasonable doubt by the evidence of P.W. 10 Dr. Nanak Chandra and post-mortem report of deceased Shiv Sampati Singh that he received three injuries, one lacerated wound 3 cm. x 3 cm. bone deep on the head, abrasion 2 cm. x 2 cm. on the face and one firearm injury 1 cm. x 1 cm. on left side of chest. Nanak Chandra and post-mortem report of deceased Shiv Sampati Singh that he received three injuries, one lacerated wound 3 cm. x 3 cm. bone deep on the head, abrasion 2 cm. x 2 cm. on the face and one firearm injury 1 cm. x 1 cm. on left side of chest. This fact is also proved beyond reasonable doubt that Shiv Sampati Singh died later on. This fact is also proved beyond reasonable doubt by the evidence of doctor and injury report that Anand Pal has received two injuries both are on right hand and shadow was also present. It is very, clear that both injuries were caused by firearm and pellets were also found in the body because radio opaque shadow was present. Another injured Om Prakash also received firearm injuries, radio opaque shadow was found on mid part of abdomen on left side and that was also gunshot injury. Injured Chan-drashekhar Singh received four injuries including abrasions and lacerated wounds. Injured Amarjeet has received one injury with multiple pellets. 16. From perusal of injuries of all the injured, this fact is also proved beyond reasonable doubt that injured had received gunshot injuries and pellets were found but these were not dangerous to life. Injured received small pellets (chharrey) injuries, hence it is very clear that the intention of accused persons who opened fire on the body of injured was not to kill because firing was done from long distance and there was no possibility to kill deceased. Hence, it is very clear from the perusal of record that offence under Section 304-II/149, IPC, is not made out against appellant No. 1 Rampal Yadav. It extends upto Section 324/149, IPC only with other sections 147, 148, 427, IPC. From perusal of record, it is very clear that injuries caused to the deceased were by Sandeep Yadav s/o. Rampal Yadav and by that injuries Shiv Sampati Singh died. Hence, it is very clear that only appellant No. 2 Sandeep Yadav is liable for causing death of Shiv Sampati Singh. 17. It is also admitted fact between the par-ties that incident happened all of sudden in the intervening night of 8/9.5.2007 at the time of marriage. Same day was the election day and therefore 'barat' came late. Hence, it is very clear that only appellant No. 2 Sandeep Yadav is liable for causing death of Shiv Sampati Singh. 17. It is also admitted fact between the par-ties that incident happened all of sudden in the intervening night of 8/9.5.2007 at the time of marriage. Same day was the election day and therefore 'barat' came late. In these circumstances finding given by the court concerned are correct on the basis of evidence given by the prosecution and view taken by the court is plausible view. Hence, no interference is called for conviction and sentence against Sandeep Yadav. 18. So far as appellant Rampal Yadav is concerned, all injuries of all other injured are not dangerous to life as firing was done from long distance and injured persons received small pellets and that was not on vital part, hence no casualty happened. 19. From perusal of record, it is also very clear that other injured have received firearm injuries caused by Rampal Yadav as discussed above: The maximum offence committed by Rampal Yadav is punishable under Section 324/149, IPC. In these circumstance, the conviction of Rampal Yadav under Section 304-II/149, IPC is liable to be interfered by this Court and conviction under Section 304-II/149, IPC is liable to be quashed. The conviction under Ss. 324/149, 147, 148, 427, IPC is liable to be confirmed and view taken by the trial court is plausible view, hence no interference is called for in conviction and sentence and appeal is liable to be allowed partly as discussed above. 20. Learned AGA submitted that all arguments raised by learned counsel for the appellants have been raised before trial court and on each issue independent finding has been given; hence finding and view taken by the trial Court are plausible and no interference is called for. 21. It is pertinent to mention here that each and every issue raised by learned counsel for the appellants before this Court have already been raised before the trial Court and each and every issue was very well discussed point-wise by the trial Court; hence it would be futile exercise to discuss further by this Court. 22. Learned AGA further submitted that appellant No. 1 Rampal Yadav is also liable to be convicted under Section 304-II/149, IPC. 23. On this issue Section 149, IPC is reproduced as below:-- "149. 22. Learned AGA further submitted that appellant No. 1 Rampal Yadav is also liable to be convicted under Section 304-II/149, IPC. 23. On this issue Section 149, IPC is reproduced as below:-- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 24. Following ingredients have to be proved for Section 149, IPC:-- (1) There must be an unlawful assembly. (2) Commission of an offence by any member of an unlawful assembly. (3) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. 25. From perusal of record, it is very clear that appellant No. 2-Sandeep Yadav opened fire at the deceased from very short distance with firearm having bullet cartridge and Rampal Yadav opened fire from very long distance by the firearm having cartridges consisting of small pellets. So far as question of assembly is concerned, from perusal of record, it transpires that certainly there were several persons but finally only two accused persons were convicted by the trial Court and Government Appeal No. 1646 of 2017 and Criminal Appeal (A-372) No. 284 of 2014 filed by the State and the complainant have been dismissed by this Court on 13.8.2018 and 18.5.2018 respectively. Hence, on this issue, finding given by trial Court is confirmed at this stage. Hence it would be futile exercise to discuss in this appeal. 26. Question is whether there was unlawful assembly or not? As stated above, only two persons were found guilty and other accused persons were acquitted. Hence, on this very issue when the appeal is being decided finally, it would not be proper to discuss in detail. Unlawful assembly is defined under Section 141, IPC which is reproduced as under:- 141. 26. Question is whether there was unlawful assembly or not? As stated above, only two persons were found guilty and other accused persons were acquitted. Hence, on this very issue when the appeal is being decided finally, it would not be proper to discuss in detail. Unlawful assembly is defined under Section 141, IPC which is reproduced as under:- 141. Unlawful assembly.--An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is-- (First)-- To overawe by criminal force, or show of criminal force, l[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or (Second)-- To resist the execution of any law, or of any legal process; or (Third)-- To commit any mischief or criminal trespass, or other offence; or (Fourth)-- By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or (Fifth)-- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do." 27. From perusal of Section 141, IPC, it is very clear that unlawful assembly was not proved by the prosecution because only two accused have been convicted. 28. So far as another ingredient of 'common object' is concerned, in the case of Om Prakash v. State of Haryana, 2014 Cr.L.J. 2567 the Apex Court has observed that The core, of the offence is the word "object" which means the purpose or design and in order to make it common, it should be shared by all. Needless to say, the burden is on the prosecution. It is required to establish whether the accused persons were present and whether they shared the common object. It is also an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object has developed at the time of incident. 29. Needless to say, the burden is on the prosecution. It is required to establish whether the accused persons were present and whether they shared the common object. It is also an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object has developed at the time of incident. 29. In the case of Karam Singh v. State, 1992 Cr.L.J. 2333 the Court has held that in the absence of any test identification parade and circumstances of the case, it would not be safe to convict the accused especially when no overt act has been imputed to him. Same view was taken in the case of Munna Chanda v. State of Assam, 2006 Cr.L.J. 1632 (SC) wherein the deceased was assaulted by one of the accused persons but it could not be said that they had a common object of killing the deceased because the person who assaulted the deceased could not be ascertained. Two of the appellants were neither named in FIR nor were identified in dock and no overt act was alleged against them. Thus their membership of assembly was not proved, and their conviction for commission of an offence under section 302/149 was set aside as they were entitled to benefit of doubt. Same view was taken in the case of Chandra Bhan v. State of U.P., 1981 Cr.L.J. 196 (All) wherein it has been held that when the common object is to murder a particular person but one member of the unlawful assembly murders a peaceful intervener, the others cannot be convicted by aid of Section 149, IPC. 30. In the above backdrop, conviction and sentence under Section 304-II/149, IPC awarded to appellant No. 1 Rampal Yadav is hereby quashed and he is acquitted under Section 304-II/149, IPC. Conviction and sentence under other sections awarded to appellant No. 1 Rampal Yadav by the lower Court shall remain intact. All the sentences shall run concurrently. It would be needless to discuss other sections, as such sentence awarded are either three years or less than three years' rigorous imprisonment. 31. Appeal in respect of appellant No. 2 Sandeep Yadav is dismissed. Conviction and sentence awarded by the lower Court to Sandeep Yadav shall remain intact. He shall serve out sentence accordingly. 32. In the result, The appeal is partly allowed. 33. Appellant No. 1 Rampal Yadav is on bail. 31. Appeal in respect of appellant No. 2 Sandeep Yadav is dismissed. Conviction and sentence awarded by the lower Court to Sandeep Yadav shall remain intact. He shall serve out sentence accordingly. 32. In the result, The appeal is partly allowed. 33. Appellant No. 1 Rampal Yadav is on bail. Trial Court is directed to take him into custody to serve out the sentences awarded by this Court; if appellant No. 1 Rampal Yadav has served out sentence awarded by this Court,. he shall be released forthwith if not wanted in any other case. 34. Copy of this judgment be also supplied to the accused appellants. 35. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance, compliance report be submitted to this Court. Office is directed to keep the compliance report on record.