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2020 DIGILAW 1534 (KAR)

Mallinath v. State Of Karnataka

2020-08-05

B.A.PATIL, HANCHATE SANJEEVKUMAR

body2020
JUDGMENT B.A.Patil, J. - The present appeal is filed by the appellants/accused Nos.1 to 4, 10, 11 and 13, challenging the judgment of conviction and order of sentence passed by the Special Judge at Gulbarga in Special Case No.189/2010 dated 19.05.2012. 2. We have heard Smt. Manjula N. Tejaswi, learned counsel for the appellants through virtual hearing and Sri Prakash Yeli, learned Additional State Public Prosecutor for the respondent-State. 3. The genesis of the case of the prosecution are that, deceased Husanappa Doddamani belongs to scheduled caste. He was cultivating the land of PW.3- Channabasappa Patil for the last 18 -20 years on crop sharing basis. There was litigation between accused No.1-Mallinath Malage and the said Channabasppa Patil in respect of the land, where the Husanappa was cultivating the land by raising the crops like Toor, Groundnut and Wheat. On 10.01.2010, Husanappa along with his wife Parvati - PW.2, his son Sharanappa- PW.1, his daughter Jyoti - PW.4 and labourers namely, Mallikarjun, Babu Melinkeri, Chandappa Allapur, Sanganabasava were harvesting the toor crop. All of them have harvested the toor crop and took nine bags of toor to the house of Chandappa and stored there. At 3.00 p.m., they were heaping the haystack. At that time, all the accused came there by holding sticks and rods in their hands by constituting an unlawful assembly and picked up quarrel with Husanappa Doddamani and abused him by taking the name of caste. At that time, accused No.1-Mallinath Malage assaulted Husanappa on his right hand with iron rod, due to which he fell down on the ground by raising alarm. Thereafter, accused No.1 has assaulted Husanappa with iron rod on his right leg and caused bleeding injury. Accused No.10-Siddappa Malage, Accused No.11-Vaijinath Malage caught hold the hands of Husanappa and tied with a rope. Accused No.10- Siddappa Malage and accused No.3-Shatappa Malage have caught hold the legs of Husanappa and tied his legs. They have also assaulted Husanappa with iron rod on his back, trunk and caused injuries. When Sharanappa, Parvati, Jyoti, Ashok, Tarabai came and tried to rescue Husanappa, at that time, accused No.4- Shrimanth Malage has assaulted with fist. He assaulted Tarabai with iron rod on her left shoulder. Accused No.2-Dharamaraya Malage assaulted Neelamma, Accused No.5-Jagannath Malage has assaulted with stick on the back and trunk and caused injury. Accused No.12-Rachappa Malage assaulted Jyoti with stick on her back and caused injury. He assaulted Tarabai with iron rod on her left shoulder. Accused No.2-Dharamaraya Malage assaulted Neelamma, Accused No.5-Jagannath Malage has assaulted with stick on the back and trunk and caused injury. Accused No.12-Rachappa Malage assaulted Jyoti with stick on her back and caused injury. Accused No.13-Neelamma Malage and accused No.14 Mahadev Malage have assaulted Parvati by pushing her down. They have also kicked her. The other accused have instigated to assault Sharanappa, Husanappa and others and to take their lives. One Chandappa, Sanganna, Babu Melinakeri and Arjun Chincholi came and pacified the quarrel. Immediately after the incident, Husanappa was brought in a cart to Challakera village and from Challakera to Gulbarga in a hired jeep and he died when he was taking treatment in the Government Hospital. When Sharanappa was taking treatment in Gulbarga hospital, his statement was recorded by Aland CPI. Based on the statement recorded by CPI, a case has been registered in Crime No.05/2010. After investigation, the investigating officer has filed a charge sheet against the accused for the offences punishable under Sections 143, 148, 307, 324, 504 R/w Section 149 of IPC and also Sections 3(1) (x), 3(1) (xi) and 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as 'SC/ST Act'). 4. The Special Judge took the cognizance and secured the presence of the accused and after supplying the copies of charge sheet to the counsel for the accused and after hearing the learned counsel for both the sides, the charge was framed and the contents of the charge read over to the accused. Accused pleaded not guilty and claims to be tried. Therefore, the prosecution witnesses are summoned. The prosecution has examined in all 32 witnesses as PWs.1 to 32 and got marked 32 documents as Exs.P1 to P32 and 9 material objects as Mos.1 to 9. Thereafter, the statement of the accused was recorded by putting incriminating material as against them. They have denied the same and got examined 3 witnesses as DWs.1 to 3 and got marked 34 documents as Exs.D1 to D34. After hearing the learned counsel for the parties, the Trial Court came to the conclusion that the prosecution has failed to prove any of the offences against accused Nos.5, 6, 7, 9, 12 and 14 and they have been acquitted. After hearing the learned counsel for the parties, the Trial Court came to the conclusion that the prosecution has failed to prove any of the offences against accused Nos.5, 6, 7, 9, 12 and 14 and they have been acquitted. Accused Nos.1 to 4, 10, 11 and 13 have been convicted for the offences punishable under Sections 143, 148, 302, 324 R/w Section 149 of IPC. Challenging the legality and correctness of the said judgment, the appellants are before this Court. 5. The main grounds urged by the learned counsel for the appellants are that, the judgment of conviction and order of sentence passed by the Trial Court is contrary to law and material placed on record. It is the submission of the learned counsel for the appellants that though the investigating officer has not filed the charge sheet under Section 302 of IPC, the learned Trial Judge, without framing any charge has come to the conclusion that looking into the evidence produced by the prosecution and the post mortem examination report-Ex.P14, the death of the deceased is due to the attack and assault made by the accused and convicted the appellants/accused for the offences punishable under Section 302 of IPC. The said act of the learned trial Judge is deprecated and not acceptable. It is further submitted that the land in question where the deceased Husanappa was cultivating was belong to one Channabasapa Patil and the said Channabasappa Patil, who has been examined as PW.3 has clearly stated that the said land has been sold to accused No.1 through sale deed and civil disputes are also pending between the parties. It is further submitted that the evidence produced by the prosecution indicates that no specific overt-acts have been alleged and even there is no consistency and corroboration in the overt-acts of each of the accused as stated by the witnesses. Further it is submitted that there are lot of contradictions with reference to the use of the weapon and the injuries sustained by each of the injured persons including the deceased. Learned counsel further submits that accused No.4 was not present at the place of incident and he had been to Hyderabad along with his wife. Further it is submitted that there are lot of contradictions with reference to the use of the weapon and the injuries sustained by each of the injured persons including the deceased. Learned counsel further submits that accused No.4 was not present at the place of incident and he had been to Hyderabad along with his wife. But, inspite of production of Ex.D30-attested copy of receipt of lodging and boarding, the Trial Court has rejected the said plea and has wrongly held the presence of the accused No.4 at the place of incident. It is further submitted that the weapons used for commission of the offence and the injuries sustained by the injured persons do not corresponding to each other. Under such circumstances, by accepting the defence, the Trial Court ought to have held that the injuries sustained by the injured are due to fall from the cart. Further it is submitted that though the evidence of the prosecution indicates that the deceased was tied with the rope, no indication or marks were found over the body of the deceased as per Ex.P15. It is further submitted that recovery of the weapons has also not been proved, as the said witnesses have not supported the case of the prosecution. It is further submitted that though several persons have gathered at the place of alleged incident, no independent witnesses have been examined before the Court. Further, if the iron rod has been used for the purpose of assault, the nature of injuries which are going to be caused should be grievous in nature and in that light, the injuries are not tallying with the weapon used. Further, it is submitted that when the entire prosecution case indicates that there is a reasonable doubt arises in the case of the prosecution, under such circumstances, the benefit of doubt ought to have been given to the accused. On all these grounds, she prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence and acquit the appellants. 6. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that there are five injured eyewitnesses and five eyewitnesses, who were present at the place of incident and they have consistently deposed before the Court with regard to the overt-acts of each of the accused persons. 6. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that there are five injured eyewitnesses and five eyewitnesses, who were present at the place of incident and they have consistently deposed before the Court with regard to the overt-acts of each of the accused persons. He further submitted that when the case of the prosecution rest upon the evidence of the injured eyewitnesses and if they have deposed about the quarrel and the overt-acts of the accused and their evidence is corroborated with the evidence of the doctor, then, the evidence of injured eyewitnesses stands on a higher footing and the presence of injuries on the person will also assures that he has received such injuries in the said incident. In order to substantiate his said contention, he relied upon the decision of the Hon'ble Apex Court in the case of Bhagirath Vs. State of Madhya Pradesh,2019 SAR(Cri) 126. It is further submitted that the Court should not go into the mathematical niceties and it is the duty of the Court to separate the grain from the chaff and to accept the evidence, which is available. The Trial Court after considering all the factual situations has come to the right conclusion and has rightly convicted the accused. No grounds are made out by the appellants to interfere with the judgment of the Trial Court and the judgment of the Trial Court deserves to be confirmed. On these grounds, he prayed to dismiss the appeal. 7. We have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records including the Trial Court records. 8. The first and foremost contention of the learned counsel for the appellants-accused is that, though the charge sheet has not been filed and no charge has been framed for the offence punishable under Section 302 of IPC, the Trial Court has erroneously convicted the appellants for the offence punishable under Section 302 of IPC by holding that the prosecution has proved the said offence. On perusal of the charge sheet filed by the Investigating Officer, it indicates that a special endorsement has been made that the doctor, who has conducted the autopsy over the body of the deceased has given his opinion that the cause of death is due to cardiorespiratory arrest as a result of chronic pulmonary diseases and in that light Section 302 of IPC has been dropped. When the Investigating Officer himself has dropped the said provision and has filed the charge sheet only for the offences punishable under Section 143, 148, 307, 324, 504 R/w Section 149 of IPC and also under the provisions of SC/ST Act, then, the trial Court ought not to have taken a different stand or view by stepping into the shoes of the Investigating Officer by holding that the deceased has suffered the injuries like lacerated wound and contusion on the left thigh. The learned trial Judge by overruling the opinion given by the doctor has come to the conclusion that the deceased is totally infirm man at the time of the incident and he died because of cardiac arrest. This cardiac arrest is due to the attack and assault made by the accused, more particularly, accused Nos.1 to 4, 10, 11 and 13 and he has opined that the opinion arrived at by the Investigating Officer that the death of the deceased is natural, is totally wrong. When the complainant himself is not having any grievance about the charge sheet filed by the Investigation Officer and the same has not been challenged, then there was no business for the Trial Court to decide whether the charge sheet filed is correct or not. Even the learned Trial Judge, by exceeding his jurisdiction has passed the impugned judgment of conviction under Section 302 of IPC. 9. Be that as it may. It is trite law that the accused be tried and either convicted or acquitted only for the charges levelled against him. If the accused is charged for a major offence, in that light, if any minor offences are included, then he can be convicted for the minor offences and not for the major offence. 9. Be that as it may. It is trite law that the accused be tried and either convicted or acquitted only for the charges levelled against him. If the accused is charged for a major offence, in that light, if any minor offences are included, then he can be convicted for the minor offences and not for the major offence. Without knowing this basic law, when the charge has not been framed and no opportunity has been given to the accused to know about the charge, the Trial Court has convicted the accused under Section 302 of IPC, which itself considered to be illegal and the same is liable to be set aside. Looking from any angle, the finding given by the Trial Court in this regard is perverse and not in accordance with law. 10. It is the case of the prosecution that when the deceased, his wife, son, daughter and labourers were harvesting the toor crop, at that time, the accused by constituting an unlawful assembly have brought iron rod, sticks and have assaulted the deceased as well as the injured persons. 11. To establish its case, the prosecution got examined PW.14-panch witness to inquest mahazar and PW.24-Doctor, who has conducted autopsy over the body of the deceased and PW.25- Medical Officer, who has examined the injured eyewitnesses i.e., PWs.1, 2, 4 and 6 and has issued the wound certificates as per Exs.P16 to P19. On perusal of the evidence of PW.24- Doctor, who has conducted autopsy over the body of the deceased, he has stated about the injuries mentioned in Ex.P14-Post Mortem Examination report and has opined that the cause of death is due to cardiorespiratory arrest as a result of chronic pulmonary diseases and he has also examined MOs.1 and 2 and has opined that the injuries sustained by the deceased are possible with MOs.6 to 8. Taking into consideration the opinion expressed by PW.24, it can be safely held that the deceased has not succumbed to the injuries said to have been assaulted by the accused persons and death is due to cardiorespiratory arrest. In that light, there is no evidence to substantiate the fact that the deceased Husanappa died an unnatural death. No doubt, the prosecution has failed to prove that deceased Husanappa has not died a natural death. In that light, there is no evidence to substantiate the fact that the deceased Husanappa died an unnatural death. No doubt, the prosecution has failed to prove that deceased Husanappa has not died a natural death. But, in order to establish the fact that the accused persons have assaulted the deceased and also to show that even PWs.1, 2, 4 and 6 have also suffered injuries, the prosecution got examined eyewitnesses. The said aspect is going to be discussed subsequently at the relevant time. 12. It is the case of the prosecution that the accused persons by constituting an unlawful assembly have assaulted the injured as well as the deceased. In this behalf, the prosecution got examined PW.1- complainant, who is said to be the injured eyewitness. In his evidence, the complainant has deposed that about one and half year back at about 3.00 p.m. when he was harvesting the toor crop along with his father, mother, daughter, son-in-law and other laborours, at that time, the accused persons came and questioned how they are cultivating the said land and accused Mallinath assaulted to his father's right front wrist and also assaulted to his knee with rod. At that time, his father fallen on the ground by making hue and cry. Thereafter, they tied his hands and accused Nos.2 and 3 have tied the legs and accused Nos.1, 3 and 10 have assaulted his father with a rod on the back and other parts of the body and he went there to rescue him. At that time, accused No.4 fisted on his stomach and abused him by taking the name of caste. He has further deposed that accused No.2 has assaulted his mother, daughter and sister. Thereafter, they have brought the injured in a bullock cart to Hippargi and from there to the Government Hospital, Gulbarga. During the course of cross-examination, nothing is elicited from the mouth of this witness. 13. Pw.2 is the wife of the deceased. She has deposed about the harvesting of toor crop and she also deposed that before sunset, accused persons came and assaulted with spade and axe to the knee portions and they have also tied the hands and legs and assaulted her husband. She further deposed that accused No.3 has assaulted her with rod and also to one Neelamma- Pw.10 and PW.4-Jyoti. She further deposed that accused No.3 has also assaulted PW.6-Tarabai with spade. She further deposed that accused No.3 has assaulted her with rod and also to one Neelamma- Pw.10 and PW.4-Jyoti. She further deposed that accused No.3 has also assaulted PW.6-Tarabai with spade. 14. Pw.4 is also an injured eyewitness. In her evidence, she has reiterated the evidence of PWs.1 and 2. 15. Pw.5 is also an injured eyewitness. He is the grand son of the deceased. 16. Pw.6 is the wife of PW.3. She is also an injured eyewitness. 17. Pws.8 and 9 are the coolies, who are also the eyewitnesses to the alleged incident. They have reiterated the evidence of PWs.1, 2, 4 and 5. 18. On perusal of the evidence of these witnesses, the essential ingredients to constitute the offence under Section 149 of IPC have not been deposed. Though all the witnesses have deposed with regard to the presence of the accused, but, mere presence at the place of incident will not make a person the member of an unlawful assembly and no such person could be convicted for the offence by taking the aid and the assistance under Section 149 of IPC. We are conscious of the fact that Section 149 of IPC is like vicarious liability, but the basic ingredients have to be established in this behalf. The basic essence of the offence under Section 149 of IPC is the common object of the persons forming an unlawful assembly. But, whether the object was in their mind when they came to gather or whether it occurs to them afterwards is not material. However, it is necessary that the object should be common to the persons, who composed the assembly. Further, what is to be proved in a case for the offence under Section 149 of IPC is to be looked into. In such a 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 to be likely to be committed. There must be 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 are liable. There must be 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 are liable. This proposition of law has been held by the 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. 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. 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. 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. 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." 19. On perusal of the ratio laid down in the said decision, in order to constitute unlawful assembly, the number of persons involved, common object which has been formed on a spur of moment or some of the factors, which the Court has to look into. To consider the aspect of unlawful assembly, the Court has to appreciate the entire evidence placed before it. The course of conduct adopted by the members of such assembly, their behavior before, during and after the incident and the arms carried are few basic and relevant factors. This proposition of law has been laid down by the Apex Court in the case of Manjit Singh Vs. State of Punjab, (2019) 8 SCC 529 , wherein 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. 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. 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. 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. ... 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. 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. 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. 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. 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. 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." 20. It has been further observed in the case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar, (2019) 5 SCC 469 that, the object of the assembly and the common object are to be determined from the facts and circumstances of each case. At paragraph No.24 it has been held as under: "24. It is well settled that to determine whether an accused, being a member of an unlawful assembly, is liable for a given offence, 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. This, in turn, has to be determined from the facts and circumstances of each case." 21. Keeping in view the said propositions of law and considering the evidence of all the witnesses, none of the ingredients to constitute the unlawful assembly have been stated. During the course of evidence, all the witnesses have deposed that when they are harvesting the toor crop, all the accused persons came and assaulted, but they have not stated that they have constituted an unlawful assembly and even they have not deposed what was the common object. Taking into consideration the above said aspect, the evidence produced in this behalf does not satisfy to hold that the accused persons by constituting an unlawful assembly have assaulted the injured and the deceased. 22. Even on perusal of the evidence, there is no consistency in the evidence of the injured eyewitnesses and eyewitnesses. Taking into consideration the above said aspect, the evidence produced in this behalf does not satisfy to hold that the accused persons by constituting an unlawful assembly have assaulted the injured and the deceased. 22. Even on perusal of the evidence, there is no consistency in the evidence of the injured eyewitnesses and eyewitnesses. As per the version of PW.1, he has deposed that the accused persons have assaulted to his father with iron rod and on perusal of the Post Mortem Examination report - Ex.P14 and the evidence of PW.24, it indicates that only one injury is found on the right knee area that too the abrasion measuring 5 x 3 cms. and below that abrasion, one cut lacerated wound measuring 2 x 2 cms. If really the accused persons have assaulted the deceased with rod as deposed by PWs.1, 2, 4, 5 and 6, definitely, he could have received multiple grievous injuries including the fracture. During the course of cross-examination, PW.24-Doctor has also admitted that he has not mentioned how injury No.1 would be caused with iron rod. 23. Be that as it may. On perusal of the evidence of PW.2, she has deposed that accused No.3- Shantappa assaulted her with rod, but on perusal of the wound certificate of PW.2, which is got marked as Ex.P18, she has suffered only one injury of tenderness and swelling on back and lumber region. Even she has further deposed that accused No.3 has also assaulted PW.10 - Neelamma and PW.6-Tarabai with spade. But, on perusal of the wound certificate of Neelamma at Ex.P20, she has suffered tenderness and swelling on back and lumbar region. Even as per the evidence of PW.4, she has deposed that accused No.3 assaulted on her back with stick and he has also assaulted her brother's wife and grand mother. But, she has not specifically deposed with regard to the assault said to have been committed by the other accused persons. PW.5 has also spoken about the overt-acts of the accused, but her evidence is not specific. PW.6 has also deposed that accused No.1 assaulted with rod on the right shoulder and leg of the deceased. Accused No.2 assaulted with rod on his left shoulder. PW.7 has also deposed about accused Nos.2, 10 and 11 tying up of the hands and legs and the assault made by accused Nos.2 and 4. PW.6 has also deposed that accused No.1 assaulted with rod on the right shoulder and leg of the deceased. Accused No.2 assaulted with rod on his left shoulder. PW.7 has also deposed about accused Nos.2, 10 and 11 tying up of the hands and legs and the assault made by accused Nos.2 and 4. PW.8 has deposed with regard to the assault made by accused No.2 to PWs.6 and 10. 24. On perusal of the said evidence, there is no consistency and connection with the evidence and the injuries suffered by the injured witnesses. We are conscious of the fact that the evidence of the injured eyewitness stands on a higher footing and the presence of the injuries assures his testimony as held in catena of decisions of Hon'ble Apex Court. But, if the said evidence is not consistent and there is no link to the assault said to have been committed and the injuries suffered with the weapon, which is said to have been used, then the entire testimony can be held that such witnesses are deposing falsely to implicate the accused. 25. Admittedly, the civil disputes are pending and the evidence of PW.3- the owner of the land indicates that a case is pending before the Civil Judge (Sr. Dn.), Aland in O.S.No.63/2003 as against accused No.1. In that light, the false implication of the accused also cannot be over-ruled. We are conscious of the fact that while appreciation of the evidence, the contradictions, inconstancies and exaggerations or embellishments are the common phenomenal in case of rustic witnesses. But, on perusal of the entire testimony, if the same appears to be a make belief affair, then the entire evidence has to be discarded. 26. Even the accused persons have also lead the evidence of DWs.1 to 3 and have also produced the records to show that the civil disputes are pending and even accused No.4 had been to Hyderabad along with his wife and was staying in Central University Guest House. Taking into consideration all these aspects, we are of the opinion that the evidence produced does not repose the confidence of this Court to hold that the accused persons were present at the place of incident, assaulted the injured and caused injures. Taking into consideration all these aspects, we are of the opinion that the evidence produced does not repose the confidence of this Court to hold that the accused persons were present at the place of incident, assaulted the injured and caused injures. On the contrary, it is the defence of the accused that the injured persons have fallen from the bullock cart and suffered minor injuries and because of the land dispute, a false case has been registered. There is some force in the said contention. In that light also, the case of the prosecution fails. Keeping in view the above said facts and circumstances, we pass the following: ORDER Appeal is allowed. The judgment of conviction and the order of sentence passed by the Special Judge at Gulbarga in Special Case No.189/2010 dated 19.05.2012 is set aside. The appellants-accused Nos.1- 4, 10, 11 and 13 are acquitted of all the charges levelled against them. Their bail bonds and surety bonds stood cancelled. The learned District judge is hereby directed to refund the fine amount, if any, deposited by the appellants, on proper identification and acknowledgment. Registry is directed to send back the trial Court records.