JUDGMENT 1. It is an appeal under Section 374(2) of the Code of Criminal Procedure, 1973, preferred by the accused nos.1 to 3, 6, 7 and 16 against the conviction recorded in Sessions Case No.111 of 1991 by the IInd Additional Sessions Judge, Malegaon for the offences punishable under Section 147, 148 and 307, 452, 506II, 323 read with Section 149 of the Indian Penal Code, 1860 ('IPC' for short) and imposed sentence, particulars of which are as under ; (i) For offence under Sections 147 and 148 of the IPC , rigorous imprisonment for one year and to pay a fine of Rs.500/- on each count, in default rigorous imprisonment for two months; (ii) For the offence under Section 307/149 of the IPC, rigorous imprisonment for five years and to pay fine of Rs.1,000/- each in default to undergo for further rigorous imprisonment for three months; (iii) For the offences punishable under Section 452/149 of the IPC, rigorous imprisonment for two years and to pay a fine of Rs.1,000/- each in default to undergo for further rigorous imprisonment for three months; (iv) For the offences punishable under Section 506 (II)/149 of the IPC to suffer rigorous imprisonment for one year and to pay fine of Rs.500/- each in default to undergo for further rigorous imprisonment for one month; (v) For the offences punishable under Section 323/149 of the IPC, suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- each in default to undergo further rigorous imprisonment for one month. (vi) Substantive sentences were directed to run concurrently. 2. Pending appeal, accused no.6 had passed away, therefore appeal abates against him. 3. Prosecution case in brief is that, accused (eighteen in numbers) being members of unlawful assembly, in prosecution of the common object, assaulted P.W.7-Laxmibai and her husband Pandit Jadhav (P.W.3) with dangerous weapons like swords in an attempt to cause their death on 2nd February, 1991, in the day light. MOTIVE: 4. Two days before the alleged incident, accused no.3-Narayan, had stalked, Vandana, minor daughter of Laxmibai, whereupon, her father Pandit Jadhav, reprimanded him, whereas Pandit's son, Ganesh slapped him. As such, accused no.3-Narayan, his relatives and his parents, bore malice against Pandit Jadhav, father of Vandana. MOTIVE: 4. Two days before the alleged incident, accused no.3-Narayan, had stalked, Vandana, minor daughter of Laxmibai, whereupon, her father Pandit Jadhav, reprimanded him, whereas Pandit's son, Ganesh slapped him. As such, accused no.3-Narayan, his relatives and his parents, bore malice against Pandit Jadhav, father of Vandana. ALLEGATIONS: Thus, alleged, accused barged in the house of Laxmibai, who were 7-8 in number, caused annoyance and in the course of the same transaction, accused no.3 hit Vandana. Laxmibai was thrashed by the accused, who were armed with weapons like rods and swords. One of the accused, Bhikan enquired as to where her husband was. Whereafter, all of them, went to office of Pandit Jadhav. He was assaulted, initially outside the office and when he took shelter in the office premises, he was pulled out and assaulted again by deadly weapons. Relatives of Pandit Jadhav and his office-mate, Popat Mitkari, intervened and made efforts to ease the anger of the accused, were also thrashed by the accused. All injured were treated in the Government Hospital at Malegaon. Laxmibai reported the incident, whereupon Crime No.11 of 1991 was registered under Sections 147, 148, 149 and 307 of the IPC. 5. Pandit Jadhav was examined as P.W.3 and his wife Laxmibai-P.W.7. Pandit was working in the office of the Maharashtra State Farming Corporation. He testified that accused no.1 to 8 alighted from white coloured Maruti car and thrashed him by fists and kick blows. Following that, he fell unconscious. He was removed to his office, where after fifteen minutes, he regained consciousness. He testified that accused while feeing the scene of offence, he stood across the car, whereupon a wheel of car, ran over his foot. He further testifies, injured were taken to the Wadia hospital. Prosecution has, also examined independent witness Mitkari, eventually a person, who was working in the office of Pandit Jadhav as P.W.2. This witness testified that accused no.1 Pundlik and others assaulted Pandit Jadhav and he along with Sakharam Rambhau Khairnar, Dadaji Raghunath tried to ease the anger, of accused and to save Pandit Jadhav from the attack. Prosecution has, also examined independent witness Mitkari, eventually a person, who was working in the office of Pandit Jadhav as P.W.2. This witness testified that accused no.1 Pundlik and others assaulted Pandit Jadhav and he along with Sakharam Rambhau Khairnar, Dadaji Raghunath tried to ease the anger, of accused and to save Pandit Jadhav from the attack. This witness would say that amongst the mob, someone was holding iron bar and a sword and he had suffered incised injury, of half inch deep on the tip of the right index finger, middle finger, left middle finger and over the tip of left ring finger caused by sharp cutting object. 6. Relying on evidence of Laxmibai, Pandit Jadhav and Popat Mitkari, the Trial Court recorded the conviction under Sections 147, 148 307 read with Section 452 r/w 149, 506II, 323 r/w 149 of the IPC and sentenced them to suffer rigorous imprisonment, as stated above. 7. I have perused the evidence of Popat Mitkari (P.W.3), Pandit Jadhav (P.W.2), Indu (P.W.4), Laxmibai (P.W.7) and Vandana (P.W.8). 8. Before assessing the prosecution evidence, it may be stated that, five injured, had sustained simple injuries in the nature of haematoma, abrasion, contusion and incised injuries on the tip of fingers, shoulder, right knee joint by hard/blunt object. Weapons allegedly used, were shown but not identified by the witnesses. Besides, Vandana (eye witness), a daughter of complainant, turned unfriendly to the prosecution. Moreover, another eye witness, Sangita (P.W.6) did not support the prosecution. Indubai (P.W.4) testified, that she fell unconscious and has not witnessed the incident. Yet, next prosecution witness Shivling testified that he reached the scene of offence, while Pandit Jadhav was lying on the ground. Thus, testimony of Shivling suggests that he came on the scene of offence after the alleged assault. Taking note of these facts, question falls for consideration is whether evidence of Pandit Jadhav (P.W.3);, Popat Mitkari (P.W.2), Laxmibai (P.W.7) has established beyond reasonable doubt that convicted accused/appellants in prosecution of the common object, assaulted Pandit Jadhav and Laxmibai with dangerous weapons with intent to cause their death and whether proved that accused being members of unlawful assembly, were actuated by common object and that common object was one of those set out in Section 141 of the IPC. 9. Herein the conviction is founded on the "constructive liability". 9. Herein the conviction is founded on the "constructive liability". Where the common object of the unlawful assembly is not proved, accused persons cannot be convicted with the help of Section 149 of the IPC. Though, no hard and fast rule can be laid down, under the circumstances from which common object can be culled out, it may be gathered from the nature of incident. In the case at hand, evidence of Laxmibai (P.W.7) reveals, 7-8 persons armed with rods and swords, first barged into her house and thrashed her and accused no.3 hit daughter Vandana. Whereafter, they went to her husband's office. She testified, accused assaulted her husband but she fell over his body, to protect him from attack. However, her evidence is, as vague as possible, and projects different account of occurrence than one given by Pandit Jadhav. While in cross-examination, Laxmibai admitted that, she did not tell police that accused no.16-Bhikan barged into the house and was enquired whereabouts of her house; she did not tell police that she fell on the person of her husband to protect him from attack; she did not tell police that Popat Mitkari (P.W.2) held sword blade to resist and prevent assault; and also did not tell police while lodging the complaint that accused no.3 hit her daughter Vandana. Obviously, these omissions were vital in nature, which go to the root of the prosecution case and renders, testimony of the witness unsafe. Even otherwise, Vandana (P.W.8), daughter of the complainant did not support her mother's evidence at all; to say not only about occurrence but even on motive alleged by the prosecution. In fact, prosecution case is that accused no.3 stalked Vandana, whereupon her father reprimanded him. Felt insulted, accused no.3 and his family members in order to teach lesson to Vandana and her family members, held attack on them. Nevertheless, Vandana did not carry prosecution case at all. As such, it renders prosecution case feeble as to its motive and resultantly, common object of the unlawful assembly has not been proved beyond reasonable doubt. 10. That apart, close scrutiny of the testimonies of Laxmibai and her husband, reveals that they have not only blown the case out of proportion but the contradictions and omissions in the testimonies, have rendered their evidence indefinite. 10. That apart, close scrutiny of the testimonies of Laxmibai and her husband, reveals that they have not only blown the case out of proportion but the contradictions and omissions in the testimonies, have rendered their evidence indefinite. At the cost of the repetition, it may be noted that injuries on the person, were simple and were not on vital parts of their body. Three eye witnesses turned unfriendly to the prosecution including daughter of the complainant. Recovery of the weapon has not been proved. Besides, arraigned eighteen persons in the crime, shows, it is case of over implication. Laxmibai at the first instance fled FIR against eight persons. She testified, other eight persons were sitting in the car while seven accused barged in her house. This version renders veracity of her evidence doubtful. Yet, Laxmibai though attributed role to accused no.16, she did not disclose his name in the complaint. Besides, neither Laxmibai nor her husband nor Popat testified as to who held iron rods and swords. The injuries on the person do not suggest, same were caused with sword or iron rod. 11. In consideration of the evidence on record, in my view, prosecution has failed to prove beyond reasonable doubt that they being members of unlawful assembly, were actuated by the common object and that common object was one of those set up in Section 141 of the IPC. 12 Appeal is allowed. Bail bonds executed by the appellants stand cancelled and sureties are discharged. 13 Appeal stands disposed of accordingly.