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2020 DIGILAW 1503 (KAR)

Mahesh @ Mahesh Kumar v. State

2020-07-27

B.A.PATIL, HANCHATE SANJEEVKUMAR

body2020
JUDGMENT Hanchate Sanjeevkumar, J. - The present appeal has been filed by the appellants/accused Nos.1 to 6 seeking intervention of this Court in the judgment of conviction and order on sentence passed in Sessions Case No.219/2010 dated 24.02.2012 by the IV Additional Sessions Judge, Kalaburagi (hereinafter referred to as the 'Trial Court'). 2. We have heard the learned counsel Sri Mahantesh H.Desai, for the appellants/accused Nos.1 to 6 and Sri Prakash Yeli, the learned Additional State Public Prosecutor for the respondent/State. 3. The genesis of the case of the prosecution in brief is that - The accused persons, complainant and the injured were relatives and some disputes were also pending with regard to the widening of the road in the property. In that light, on 15.11.2009 at about 8.40 p.m., when the complainant, his wife, daughter were sitting outside the house, all the accused came thereby holding lethal weapons like lathis and knife and questioned the complainant with regard to the way dispute and the said accused persons with a common object assaulted with an intention to take away the life of the complainant and others. When scuffle being started, accused raised and alarmed to the complainant, at that time the friends of the complainant's son came and rescued the complainant and others and the complainant and other suffered injuries and one person informed to 108 ambulance and sent them to District Hospital, Kalaburagi and when the complainant was in the hospital the police visited and recorded his statement and a case has been registered in Crime No.280/2009. After investigation, charge sheet came to be filed. The learned Magistrate after following the procedure committed the case to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused persons and after hearing both the sides charges were framed and read over and explained to the accused, accused persons pleaded not guilty and claims to be tried and as such the trial was fixed. The prosecution in order to establish its case got examined 10 witnesses and got marked 12 documents and 05 material objects. Thereafter, the statement of the accused was recorded by putting incriminating materials as against them they denied the same. The accused have not led any evidence nor produced any documents. The prosecution in order to establish its case got examined 10 witnesses and got marked 12 documents and 05 material objects. Thereafter, the statement of the accused was recorded by putting incriminating materials as against them they denied the same. The accused have not led any evidence nor produced any documents. After hearing the arguments from both the sides the Trial Court arrived to the conclusion that the accused persons have committed the offences punishable under Sections 143, 148, 447, 323, 324 and 307 read with Section 149 of Indian Penal Code and they have been convicted. Challenging the legality and correctness of the same, the appellants/accused are before this Court. 4. The main grounds urged by the learned counsel for the appellants/accused is that the judgment of conviction and order on sentence passed by the Trial Court is contrary to law and the material placed on record. It is his further submission that though the accused persons have suffered with injuries but the prosecution has not explained. It is his further submission that when the injuries suffered by the accused persons has not been explained by the prosecution as such the benefit of doubt has to be given to the accused and the accused ought to have been acquitted of the charges levelled against them. 5. It is his further submission that there is case and a counter cases have been registered and two different Investigating Officer have investigated the case and one case has been tried by the Sessions Judge and another one was tried by the learned Magistrate without following the procedure established by law. 6. It is his further submission that if a case and a counter cases are not tried together then under such circumstances the appellants/accused are entitled to be given a benefit of doubt. In order to substantiate his arguments he relied on the decision of this Court in the case of State of Karnataka by Central Police Station vs. Srinivasamurthy and others,2013 CrR 49 (Kant.)] and also relied the decision of the Hon'ble Single Judge of this Court in the case of Ansar and others vs. State of Karnataka,2011 CrR 337 (Kant.)]. 7. In order to substantiate his arguments he relied on the decision of this Court in the case of State of Karnataka by Central Police Station vs. Srinivasamurthy and others,2013 CrR 49 (Kant.)] and also relied the decision of the Hon'ble Single Judge of this Court in the case of Ansar and others vs. State of Karnataka,2011 CrR 337 (Kant.)]. 7. It is his further submission that the evidence of PW.10 the Doctor who has treated the injured has clearly admitted in his evidence that the injuries said to have been suffered by PW.3 is not going to be caused by the assault with knife. He further submitted that the Doctor has also opined injuries suffered by PW.6 is not a fatal injury and it will not cause the death. It is his further submission that under such circumstances, the Trial Court ought not to have convicted the appellants/accused for the offence under Section 307 of Indian Penal Code. It is his further submission that though the Trial Court has come to the conclusion that the accused persons are liable to be convicted for all the offences but the Trial Court has convicted only for the offence under Section 307 of Indian Penal Code. 8. It is his further submission that the prosecution has also utterly failed to prove the ingredients of Sections 143, 148 and 149 of Indian Penal Code. Until and unless the common object which has not been proved under such circumstances all the accused cannot be held liable for the offences which has been committed by individual acts of the appellants/accused persons. 9. It is his further submission that when the prosecution has failed to prove the provisions of Sections 143, 148 and 149 of Indian Penal Code then under such circumstances the Trial Court ought to have taken into consideration the individual acts. The injury certificates, which have been issued, indicate that except PW.6 the other injured persons have suffered with simple injuries. Under such circumstances the Trial Court could have taken a lenient view and ought not to have convicted them for the offence punishable under Section 307 of Indian Penal Code. 10. It is his further submission that the Trial Court without properly appreciating the evidence has given a wrong conclusion and has wrongly convicted the appellants/accused. Under such circumstances the Trial Court could have taken a lenient view and ought not to have convicted them for the offence punishable under Section 307 of Indian Penal Code. 10. It is his further submission that the Trial Court without properly appreciating the evidence has given a wrong conclusion and has wrongly convicted the appellants/accused. On these grounds he prayed to allow the appeal and to set-aside the judgment of conviction and order on sentence passed by the Trial Court. 11. Per contra the learned Additional State Public Prosecutor vehemently argued and submitted that there are eyewitnesses to the alleged incident and the said evidence has also been corroborated with the evidence of PW.10 the Doctor who has immediately examined and has issued the wound certificates as per Exs.P.7 to P.10. It is his further submission that if a case and a counter cases are not tried simultaneously the proceedings ipso facto do not get vitiated, where the procedure adopted by the Trial Court is irregular and has not caused any prejudice to the accused and there was no occasion of failure of justice. Under such circumstances, the said acts are protected under Section 465 of Code of Criminal Procedure. 12. In order to substantiate his said contention he has relied upon the decision of the Full Bench of this Court in the case of State of Karnataka, by Circle Inspector of Police v. Hosakeri Ningappa and Another, (2012) ILR(Kar) 509 ]. 13. It is his further submission that the evidences of PW.10 and PW.6 clearly go to show that it is the accused No.2 who has assaulted with club on the back and head of PW.6 and it is the accused No.3 who has assaulted with knife and as a result of the said assault, PW.6 has suffered fracture of jaw portion. 14. It is his further submission that the accused persons though have filed a counter case but against the order of acquittal neither the complainant has preferred any appeal nor the State. The said judgment has reached its finality. It is his further submission that the case and a counter case have to be tried by the same Judge only to ascertain who are the aggressors. The said judgment has reached its finality. It is his further submission that the case and a counter case have to be tried by the same Judge only to ascertain who are the aggressors. But in the instant case on hand, the factual matrix of the case clearly goes to show that all the accused persons went near the house of the complainant and have assaulted and that itself clearly goes to show that the accused persons are the aggressors. The Trial Court taking into consideration the same aspect has come to a right conclusion and has rightly convicted the appellants/accused. There are no good grounds made out by the appellants/accused so as to interfere with the judgment of the Trial Court and it deserves to be affirmed by dismissing the appeal. On these grounds he prayed to dismiss the appeal. 15. We have carefully gone through the submissions made by the learned counsel appearing for the parties and perused the records including the Trial Court records. 16. Prosecution in order to prove its case got examined 10 witnesses. PW.1 is the son of PW.2 complainant and he is also an eyewitness to the alleged incident. In his evidence he has deposed that about one year one month back at about 8.45 p.m. himself and his friends were talking to each other at a distance of 50 feet from the residential tin shed house and at that time they heard noise of quarrel coming from his tin shed residence immediately they went to the said house and saw the quarrel and the accused persons were armed with handle of the axe, stick and knife and they saw that the accused persons assaulting PWs.2, 3, 6 and 7. He has further deposed that immediately they have called the ambulance and sent the injured to the hospital. During the course of cross-examination of this witness nothing has been elicited so as to discard the said evidence. 17. Pw.2 is the injured complainant he has also reiterated the evidence of PW.1. He has further deposed that immediately they have called the ambulance and sent the injured to the hospital. During the course of cross-examination of this witness nothing has been elicited so as to discard the said evidence. 17. Pw.2 is the injured complainant he has also reiterated the evidence of PW.1. In his evidence he has further deposed that on 05.11.2009 at about 8.00 to 8.30 p.m., himself and his children were talking to each other sitting in front of their house and all the accused persons came to his house abused in filthy language and they were armed with handle of the axe accused No.1 assaulted with timber sticks and when he was avoiding the assault to the head but the said assault hit him to his right leg and he received internal pain in his right leg, accused No.3 caught hold of his collar with neck and told him that he would kill him, accused No.6 also scratched his neck when PW.6 came to rescue him at that time accused No.2 assaulted on her with stick on the stomach and when PW.3 came and intervened accused No.5 assaulted with handle of the axe on her head and also back and when PW.6 came PW.3 fell on the ground due to severe pain, accused No.4 assaulted with hands to the wife of complainant and accused No.4 also assaulted to the leg of his wife and after hearing the noise his daughters who were there at a distance came there and at that time accused frightened and went away from the place of incident and thereafter 108 ambulance was called and they have been sent to the Government Hospital, Kalaburagi. During the course of cross-examination of PW.2 nothing has been elicited so as to discard his evidence. 18. Pw.3 is the daughter of the complainant and she is also an injured eyewitness. 19. Pw.4 is the friend of PW.1 and he came and rescued the injured witnesses from the clutches of accused persons. 20. Pw.5 is also an independent eyewitness to the incident he has not supported the case of the prosecution and he has been treated as hostile. Even during the course of his cross-examination by the learned Public Prosecutor nothing has been elicited by the prosecution so as to substantiate the case of the prosecution. 21. 20. Pw.5 is also an independent eyewitness to the incident he has not supported the case of the prosecution and he has been treated as hostile. Even during the course of his cross-examination by the learned Public Prosecutor nothing has been elicited by the prosecution so as to substantiate the case of the prosecution. 21. Pw.6 is the daughter of PW.2 and she is also an injured eyewitness. She has also supported the case of the prosecution. 22. Pw.7 is the wife of PW.2 and she is also an injured eyewitness. She has also reiterated the same evidence. 23. Pw.8 is a pancha of spot mahazar - Ex.P.3 whereunder MOs.2 to 5 have been recovered and he is also a panch witness to Ex.P.4 whereunder a knife has been recovered at the instance of accused No.3. 24. Pw.9 is an Investigating Officer who investigated the case and filed the charge sheet against the accused persons. 25. Pw.10 is the Doctor who has examined the injured witnesses and has also issued the wound certificates as per Exs.P.7 to Ex.P.10. 26. On perusal of evidences, which has been produced by the prosecution, PWs.1 to 4, 6 and 7 are the eyewitnesses to the alleged incident. PWs.2, 3, 6 and 7 are the injured eyewitnesses. When these witnesses have substantiated the case of the prosecution alleging that the accused persons have assaulted and because of the said assault they have suffered with injuries that has been proved by the prosecution. It is the trite of the law that if an injured eyewitness is there then his presence at the place of incident cannot be discarded. 27. Another important aspect in this case is that the present accused persons have also filed the counter complaint alleging the fact that they have also suffered some injuries in the said scuffle. In that light the presence of the accused at the place of incident is also not disputed. When all these eyewitnesses have categorically stated that the accused persons came by holding stick, knife and have assaulted them and they have suffered with injuries and their evidence is also corroborated with the evidence of PW.10 Doctor who has treated them immediately and has issued the wound certificates as per Ex.P.7 to Ex.P.10. 28. When all these eyewitnesses have categorically stated that the accused persons came by holding stick, knife and have assaulted them and they have suffered with injuries and their evidence is also corroborated with the evidence of PW.10 Doctor who has treated them immediately and has issued the wound certificates as per Ex.P.7 to Ex.P.10. 28. During the course of argument, the learned counsel for the appellants/accused contended that though PW.6 has suffered with grievous injuries of fracture but the evidence which has been produced has not been substantiated by producing the x-ray films and connected records. The only evidence available is that of PW.10. But in the evidence of PW.10 the Doctor has clearly deposed that he has examined PW.6 and he has noticed the fracture in the middle of right jaw portion and the said injury is grievous in nature. Even the wound certificate, which has been produced at Ex.P.7, clearly goes to show that the injury No.1 is grievous in nature and injury No.2 is simple in nature and is caused due to the hard and blunt object. 29. Though during the course of argument, it is contended by the learned counsel for the appellants/accused by drawing our attention to the evidence of PW.10 that the injury mentioned in Ex.P.7 there is no possibility of causing such injuries but it is trite of the law that when there is a conflict between ocular evidence and the Doctor evidence then under such circumstances the ocular evidence has to prevail and not the Doctor evidence. In that light, the evidence of PW.6, if it is perused she has also clearly stated in her evidence that when accused No.3 Ravi tried to assault on her father and when she rescued him that blow came and hit to her cheek and immediately the blood started oozing and she became unconscious. This evidence is corroborated with the wound certificate - Ex.P.7. So in that light the evidence of PW.10 shows that the said injury may not be possible if the knife is used, that cannot be accepted, it all depends upon the type of blow with which angle the said knife has been used. 30. This evidence is corroborated with the wound certificate - Ex.P.7. So in that light the evidence of PW.10 shows that the said injury may not be possible if the knife is used, that cannot be accepted, it all depends upon the type of blow with which angle the said knife has been used. 30. We are conscious of the fact that if a stab wound is found then under such circumstances the knife might have been used in a straightway might have pierced but while using the knife if the back portion with force or even the fist has come in contact with the jaw portion in that event or circumstances such injuries may be caused. So in that light the evidence which has been produced clearly indicates the fact that the alleged incident has been taken place as contended by the prosecution and that the injured witnesses have suffered with the injuries. In that light there is a material as against the accused persons to hold that they have participated in the alleged incident. 31. The next question that arises for consideration of this Court is that whether the accused persons by constituting an unlawful assembly came near the house of the complainant and with a common object they have committed the offence. 32. On close reading of Sections 143, 148 and 149 of Indian Penal Code that the common object may be formed by earlier discussion or even at the time of participation the common object may be occurred in a spur of moment. But on perusal of the evidence of all the eyewitnesses the common object is lacking and in this behalf the Trial Court has not properly appreciated the evidence and has come to a wrong conclusion. The commission of the offence is the common object of forming unlawful assembly, whether the object is in their mind when they came together or whether it occurs to them afterwards is not material. However, it is necessary that the object should be common to the persons who composes the assembly. 33. Further what is to be proved in case for the offence punishable under Section 149 of Indian Penal Code is to be looked into. However, it is necessary that the object should be common to the persons who composes the assembly. 33. Further what is to be proved in case for the offence punishable under Section 149 of Indian Penal Code is to be looked into. In such case what is important is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew that it is 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, in that event every member of the assembly will become liable for the same. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Radha Mohan Singh alias Lal Saheb and Others v. State of Uttar Pradesh, (2006) 2 SCC 450 wherein at paragraph Nos.21 and 22 it has been held as under: "21. The question arises whether the conviction of the remaining accused under Section 302 read with Section 149 IPC is legally sustainable. The scope of Section 149 I.P.C. was explained in Mizaji v. State of U.P., (1959) AIR SC 572 , which decision has been followed in many later cases, in the following manner : "The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that 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 does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149 Indian Penal Code 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 of Section 149 as explained above or it was an 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." 22. In Alauddin Mian v. State of Bihar, (1989) AIR SC 1456 the import of Section 149 IPC was explained as under : "....... This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish 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. 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. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, it is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, 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. 34. Even the similar issue came up before the Hon'ble Supreme Court in the case of Alauddin Mian vs. State of Bihdar, (1989) AIR SC 1456 and the important aspect has been explained as under : "....... This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish 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. 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. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, it is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, 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. 35. On going through the above said decisions the important ingredients of an unlawful assembly are the number of persons involved and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. To consider the said aspect whether the said assembly was unlawful assembly with a common object, the Court has to appreciate the entire evidence placed before the Court and if there is such basic relevant factors are to be seen i.e., the course of conduct adopted by the members of such assembly, their behaviour before, during and after the incident and the arms carried out by them are few basic and relevant factors to determine the common object. This proposition of law has been laid down in the very recent decision of the Hon'ble Apex Court in the case of Manjit Singh Vs. State of Punjab, (2019) 8 SCC 529 . At paragraph Nos.14.1 to 14.5 it has been observed as under: "14.1. The relevant part of Section 141 IPC could be usefully extracted as under: 141. Unlawful assembly.- An assembly of five or more persons to designated an "unlawful assembly", if the common object of the persons composing that assembly isxxx xxx xxx Third.- To commit any mischief or criminal trespass, or other offence; or xxx xxx xxx Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." 14.2. Section 149, rendering every member of unlawful assembly guilty of offence committed in prosecution of common object reads as under:- "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." 14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such an assembly. In Sikander Singh,this Court observed as under:- "15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. 17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. 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. 18. In Masalti v. State of U.P., (1965) AIR SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) "17. 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. 18. In Masalti v. State of U.P., (1965) AIR SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) "17. Section 149 makes it clear 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 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly." 14.4. In the case of Subal Ghoral (supra), this Court, after a survey of leading cases, summed up the principles as follows:- "52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. 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. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. 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. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly. 53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution." 14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e., five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object. 36. In the case on hand, whether the accused persons were the members of unlawful assembly it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and alternatively whether the members of the assembly knew that the offence was likely to be committed in prosecution of such common object. Further has to be determined from the facts and circumstances of each case. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar, (2019) 5 SCC 469 . Further has to be determined from the facts and circumstances of each case. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar, (2019) 5 SCC 469 . At paragraph No. 24 has been held as under: "It is wel l settled that to determine whether an accused, being a member of an unlawful assembly, is l iable for a given of fence, it needs to be seen whether such act was committed in prosecution of the common object of the assembly, and al ternatively whether the members of the assembly knew that the of fence was l ikely to be commi tted in prosecution of such common object. This, in turn, has to be determined f rom the facts and circumstances of each case." 37. Keeping in view of the aforesaid principles of law considering all the facts though the evidences which has been produced indicates that the accused came with a common object but these eyewitnesses evidence does not speak with regard to common object as contemplated under Section 141 of Indian Penal Code where exactly they assembled prior to the alleged incident or even at the time of incident. Even on careful perusal of the evidence when galata was going on at that time injured persons have intervened and tried to pacify the quarrel and at that time PW.6 has suffered with injuries and when that time the accused persons came and PW.6 was not there, under such circumstances the assault which is said to have been committed by accused No.3 by causing the grievous injuries that will not attract the provisions of Section 149 of Indian Penal Code and in that light the evidence which has been produced is lacking the common object, which is the basic aspect to be drawn to connect all the accused persons. In that light on perusal of the evidences, which has been produced before the Trial Court and the judgment and the reason therein does not inspire this Court to uphold the said finding. 38. In that light on perusal of the evidences, which has been produced before the Trial Court and the judgment and the reason therein does not inspire this Court to uphold the said finding. 38. Be that as it may, even though the Court has come to the conclusion that there is a common object and the accused persons have committed the alleged offence, but while imposing conviction and sentence the Trial court has completely ignored the said aspect and has come to the conclusion and has only convicted the accused persons for the offence under Section 307 of Indian Penal Code. We are also conscious of the fact that when the accused person has been convicted for larger offence then the simple offences are going to be merged. But it is the trite of the law whenever the accused has been found guilty for the offence including major offence, then the Court has to impose sentence separately to each of the offences where the guilt has been proved. In that light the Trial Court has committed an error. When this Court has come to the conclusion that the prosecution has not established the common object and the offences under Sections 143, 148 and 149 of Indian Penal Code then under such circumstances, a duty is cast upon this Court to analyze the each of the overtacts of the accused whether they constitute any offences or not. By taking into consideration the evidence of the prosecution witnesses it indicates that the accused No.1 has assaulted PW.2 with stick on the right leg and chest and accused No.2 assaulted PW.6 with stick on her back and head and accused No.3 has assaulted PW.6 with knife near the jaw portion and accused No.4 assaulted PW.7 with stick and accused No.5 assaulted PW.3 with axe. But on perusal of Ex.P.8 though PW.3 has deposed that she has been assaulted with axe but the wound certificate does not disclose any such type of injuries. She has only suffered deep spinuli and no external injuries and even the wound certificate indicates that she has been referred to higher centre on their request. But no further documents have been produced whether she has taken any treatment in the higher centre or not. If really she could have taken treatment in the higher centre definitely the prosecution could have produced some documents. 39. But no further documents have been produced whether she has taken any treatment in the higher centre or not. If really she could have taken treatment in the higher centre definitely the prosecution could have produced some documents. 39. In the absence of said material it cannot be held that the accused No.5 has assaulted with axe on PW.3 and caused injuries but however that some minor injuries have been caused in this behalf and even accused No.6 has assaulted PW.2 with hand and there is also no much material has been produced in this behalf. But on perusal of Ex.P.7 it indicates that accused No.3 assaulted PW.6 with knife and the right mandible was fractured and some injuries were found and ear lobe constituted red and even that fracture of right mandible has been suspected and the evidence of PW.10 Doctor, it indicates that by seeing x-ray films he has opined that there is a fracture of right mandible. 40. At this juncture, the learned counsel for the appellants/accused contended that the provisions of Section 307 of Indian Penal Code are not attracted since there is no intention to cause the death. On perusal of Section 307 of Indian Penal Code, it indicates that if any person with such intention or knowledge and under such circumstances that, if he by that act caused death he would be guilty of murder shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if hurt is caused to any person by such act the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned. 41. On perusal of the evidence it indicates that there is no such intention or knowledge at the time when accused No.3 assaulted with knife. Even the evidence which has been produced clearly goes to show that when PW.6 came there to rescue PW.2 and when accused No.3 was intending to assault PW.2 and at that time he escaped and the said assault came and hit to PW.6 and in that light the alleged injury has been caused. Even the evidence which has been produced clearly goes to show that when PW.6 came there to rescue PW.2 and when accused No.3 was intending to assault PW.2 and at that time he escaped and the said assault came and hit to PW.6 and in that light the alleged injury has been caused. Taking into consideration the said aspect, we are of the considered opinion that the provision of Section 307 of Indian Penal Code is not applicable and at the most the said act of accused No.3 falls within the provisions of Section 324 of Indian Penal Code. 42. In order to attract the provisions of Section 324 of Indian Penal Code, if a particular person voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting or any instrument which is used as a weapon of offence is likely to cause death or by means of fire then under such circumstances the provisions of Section 324 of Indian Penal Code is attracted. In that light we are of the considered opinion that there is material as against the accused No.3 for having committed the offence under Section 324 of Indian Penal Code and not for the offence under Section 307 of Indian Penal Code. In that light accused N.3 is liable to be convicted for the offence punishable under Section 324 of Indian Penal Code and insofar as the other accused persons concerned and the injury certificates which has been produced which indicates that the said injuries are simple in nature and they may be caused due to hurt and blunt object. So in that light, they are liable to be convicted for the offence punishable under Section 323 of Indian Penal Code and they have been also convicted for the alleged offence. 43. Though during the course of argument the learned counsel for the appellants/accused strongly contended that the accused persons have also filed the complaint and a counter case has been registered, the proceedings which have been taken place ipso facto get vitiated and the accused persons are entitled to be acquitted. But in a counter case even though not tried simultaneously the proceedings ipso facto do not get vitiated. But in a counter case even though not tried simultaneously the proceedings ipso facto do not get vitiated. This proposition of law has been laid down by the Full Bench of this Court in the case of the State of Karnataka, Circle Inspector of Police v. Srinivasamurthy, (quoted supra) at para 18, it has been observed as under :- "18. In view of the foregoing reasons, we answer the points referred to us as under : (a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal vs. State of U.P. (Supra) and in the case of Sudhir and others vs. State of M.P (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under Section 465 of the Code. (b) The evidence recorded in one case cannot be looked into the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case. (c) If the Trial Court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get vitiated. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated." 44. Each case has to be judged on its own merits. Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated." 44. Be that as it may, even it is brought to the notice of this Court that in a counter case which has been tried by the Magistrate and therein the injuries suffered by the accused persons are simple in nature and therein the accused persons have been acquitted and no appeal has been preferred by the accused/complainant or by the State and the said judgment has been already reached its finality. We are conscious of the fact and the trite of the law laid down by the Hon'ble Apex Court in the case of Nathi Lal vs. State of Uttar Pradesh, (1990) Supp1 SCC 145. 45. That in a case and a counter case, they have to be tried simultaneously but the basic proposition of law is that they should be tried simultaneously. If the proposition of law which has been laid down are seen the Court has try both the cases independently and after recording the evidences and the argument has to be heard and on the same the judgment has to be pronounced. The said proposition of law has been laid down only with an intention to ascertain in both the cases who is the aggressor, only because of the reason that the presence of both the parties at the place of incident is admitted by filing the counter complaint and even the incident is also been admitted. 46. Under these circumstances, a duty cast upon the Court, from perusal of both the facts come to a right conclusion that who are the aggressors. But in the instant case on hand the factual matrix goes to show that the accused persons came near the tin shed residence where the complainant and his family members were residing and even the evidences which has been produced goes to show that they came to know that a scuffle started and the accused persons have also brought knife and sticks and they have assaulted. 47. In that light if the evidence is appreciated it goes without saying that it is the accused who are the aggressors. 47. In that light if the evidence is appreciated it goes without saying that it is the accused who are the aggressors. So in that light and in view of the law laid down by the Hon'ble Supreme Court quoted supra, we are of the considered opinion that the said proceedings are not going to be vitiated merely because both the cases have not been tried by the one Judge. 48. Be that as it may, even the trial has held them not guilty, it has not been challenged if after the long gap of time if the matter has been remitted to the Trial Court, the witnesses may not be available and it is very difficult to hold the trial once again and it is only a irregularity as per Section 465 of Code of Criminal Procedure. In that light also we are not accepting the contention which has been raised by the learned counsel for the appellants. 49. Taking into consideration the above said submissions and the factual matrix of the case, we are of the considered opinion that the accused Nos.1, 2, 4 to 6 are liable to be convicted for the offence punishable under Section 323 of Indian Penal Code instead of Section 307 of Indian Penal Code and accused No.3 is liable to be convicted for the offence punishable under Section 324 of Indian Penal Code instead of Section 307 of Indian Penal Code. 50. We have heard the learned counsel for the appellants/accused while imposing the sentence. We are also conscious of the fact that while imposing the sentence, the sentence must be proportionate to the offence and act of the accused. Taking into consideration the said aspect the accused No.3 is convicted for the offence under Section 324 of Indian Penal Code and he is sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.25,000/- with default clause of one year and accused Nos.1, 2, 4 to 6 have been convicted and sentenced for the offence punishable under Section 323 of Indian Penal Code and they have been convicted for the period which they have already been undergone and they have to pay a fine amount of Rs.5,000/- each with default sentence of two months. Taking into consideration, we pass the following ; ORDER The appeal is allowed in part. Taking into consideration, we pass the following ; ORDER The appeal is allowed in part. The judgment of conviction and order on sentence passed by IV Additional Sessions Judge, Kalaburagi in S.C.No.219/2010 dated 24.0.2012 is allowed in part and the judgment is modified as indicated above. The Trial Court is directed to secure the presence of accused No.3 and issue the conviction warrant to serve the sentence as observed above. Insofar as accused Nos.1, 2, 4 to 6 are concerned, their bail bonds and surety bonds are cancelled and they are directed to deposit the fine amount within a period of two months from the date of receipt of the certified copy of this Judgment, failing which the Trial Court is at liberty to take the legal action in accordance with law. Out of the fine amount, Rs.10,000/- is ordered to be paid to PW.6 on proper identification and acknowledgment. Send back the Trial Court records.