JUDGMENT : SANJAY K. AGRAWAL, J. 1. Regard being had to the similitude of the questions of facts and law involved, as all these appeals are clubbed together being arising out of a common judgment dated 31.08.2013 passed in Sessions Trial No. 64 of 2011 (State of Chhattisgarh vs. Narayan and Others) by the Court of learned Additional Sessions Judge, Mungeli, District Bilaspur (C.G.) these appeals have been clubbed together, heard together and are being decided by this common judgment. 2. Criminal Appeals No. 937/2013, 947/2013, 966/2013, 969/2013, 970/2013, 1029/2013 and 1068/2013 are preferred under Section 374(2) of Cr.P.C. questioning the impugned judgment of conviction and order of sentence dated 31.08.2013, whereby following 16 appellants-accused persons have been convicted for the offences and sentenced to undergo as under: CRA-937-2013: Laxminarayan (A-14) and Rajkumar (A-16) Conviction Sentence U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- each and in default of fine, additional R.I. for 01 year each. U/s. 147 of IPC R.I. for 03 years with fine of Rs. 500/- each and in default of fine, additional R.I. for 01 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. (All substantive sentences to run concurrently) CRA-947-2013: Jagdish (A-05) and Shivnandan (A-12) U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- each and in default of fine, additional R.I. for 01 year each. U/s. 147 of IPC R.I. for 03 years with fine of Rs. 500/- each and in default of fine, additional R.I. for 01 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. (All substantive sentences to run concurrently) CRA-966 -2013: Shatruhan (A-10) U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- and in default of fine, additional R.I. for 01 year. U/s. 148 of IPC R.I. for 03 years with fine of Rs. 500/- and in default of fine, additional R.I. for 01 month. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. (All substantive sentences to run concurrently) CRA-966 -2013: Kabilash (A-13) U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- and in default of fine, additional R.I. for 01 year. U/s. 147 of IPC R.I. for 03 years with fine of Rs. 500/- and in default of fine, additional R.I. for 01 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. (All substantive sentences to run concurrently) CRA-969-2013: Ganesh (A-07) Conviction Sentence U/s. 302/149 of IPC R.I. for life with fine of Rs. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. (All substantive sentences to run concurrently) CRA-969-2013: Ganesh (A-07) Conviction Sentence U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- and in default of fine, additional R.I. for 01 year. U/s. 148 of IPC R.I. for 03 years with fine of Rs. 500/- and in default of fine, additional R.I. for 01 month. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. (All substantive sentences to run concurrently) CRA-970-2013: Santosh (A-17) U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- and in default of fine, additional R.I. for 01 year. U/s. 147 of IPC R.I. for 03 years with fine of Rs. 500/- and in default of fine, additional R.I. for 01 month. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month. (All substantive sentences to run concurrently) CRA-1029-2013: Narayan (A-01), Kejaram (A-02) and Ajit (A-03) Conviction Sentence U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- each and in default of fine, additional R.I. for 01 year each. U/s. 148 of IPC R.I. for 03 years with fine of Rs. 500/- each and in default of fine, additional R.I. for 01 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 1000/- each and in default of fine, additional R.I. for 01 year each. U/s. 148 of IPC R.I. for 03 years with fine of Rs. 500/- each and in default of fine, additional R.I. for 01 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. (All substantive sentences to run concurrently) CRA-1068 -2013: Amarnath (A-04), Kaleshwar (A-06), Uttara (A-08), Ramnath (A-09) and Swarath (A-11) U/s. 302/149 of IPC R.I. for life with fine of Rs. 1000/- each and in default of fine, additional R.I. for 01 year each. U/s. 148 of IPC R.I. for 03 years with fine of Rs. 500/- each and in default of fine, additional R.I. for 01 month each. U/s. 323/149 of IPC (for causing injury to Kejaram) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Moujiram) R.I. for 01 year with fine of Rs. 500/- and in default of fine, additional R.I. for 1 month each. U/s. 323/149 of IPC (for causing injury to Ramgulam) R.I. for 01 year with fine of Rs. 500/- each and in default of fine, additional R.I. for 1 month each. (All substantive sentences to run concurrently) 3. Acquittal Appeal No. 59 of 2013 has been filed by the complainant-Kej Ram, Son of Milan feeling aggrieved by same judgment dated 31.08.2013, whereby respondent No. 02 herein/accused-Dwarika (A-15) has been acquitted for offence punishable under Sections 294, 147, 506-B, 302/149, 307/149 and 323/149 of IPC. Prosecution Case: 4. (All substantive sentences to run concurrently) 3. Acquittal Appeal No. 59 of 2013 has been filed by the complainant-Kej Ram, Son of Milan feeling aggrieved by same judgment dated 31.08.2013, whereby respondent No. 02 herein/accused-Dwarika (A-15) has been acquitted for offence punishable under Sections 294, 147, 506-B, 302/149, 307/149 and 323/149 of IPC. Prosecution Case: 4. The case of the prosecution, in brief, is that on 29.08.2011, at about 11:00 A.M. at Village Piparkhuta within the ambit of Police Station Lalpur, the accused-appellants herein alongwith with acquitted accused-Dwarika (A-15) have abused the complainant-Kejaram, S/o Milan (PW-07) in public place with filthily/obscene words, threatened him to kill and constituted unlawful assembly with a common object to commit ‘marpeet’ and in furtherance of their said common object, they all were armed with deadly weapons i.e. wooden sticks (lathi and danda), crowbar (tabbal) and spear (barchi) and caused death of Anantram (deceased) and further caused grievous hurt/injuries to Kejaram, Son of Milan (PW-07), Moujiram (PW-05), Ramgulam (PW-10), Santosh, Son of (not examined), Uttara Bai (not examined) and Panchram (PW-11) and thereby, accused-appellants, namely, Narayan (A-01), Kejaram, S/o Latel (A-02), Ajit (A-03), Amarnath (A-04), Kaleshwar (A-06), Ganesh (A-07), Uttarakumar (A-08), Ramnath (A-09), Shatruhan (A-10) and Swarath (A-11) have committed offence under Sections 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts), whereas accused-appellants namely, Santosh (A-17), Jagdish (A-05), Laxminarayan (A-14), Kabilash @ Kallu (A-13), Rajkumar (A-16), Dwarika (A-15) and Shivnandan (A-12) have committed offence under Sections 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts). 5. 5. The further case of the prosecution, in nutshell, is that: on 29.08.2011, complainant-Kejaram (PW-07) alongwith Panchram (PW-11), Anantram (deceased), Rekharam (PW-08) and Gore Kashyap (not examined) were going to have bath at ‘Dabri’ Pond of Village Piparkhuta and at about 11:00 A.M. when they reached to the pond, Ramnath (A-09), Amarnath (A-04), Uttara (A-08), Kaleshwar (A-06), Narayan (A-01), Swarath (A-11), Jagdish (A-05), Ganesh (A-07), Moti, Shatruhan (A-10), Rajkumar (A-16) and Shivnandan (A-12) armed with wooden stick (lathi) and crowbar (tabbal) were already swimming; thereafter, said persons started abusing them with filthily words, ensued a dispute with regard to political rivalry and earlier panchayat elections and in furtherance thereof, with the intention to kill complainant-Kejaram (PW-07), Anantram (deceaed), Panchram (PW-11), Rekharam (PW-08) and Gorelal Kashyap (not examined), the said persons suddenly attacked on them, due to which, Kejaram (PW-07) and Anantram (deceased) sustained injuries on head, hand legs, back, waist and other persons also sustained some injuries. Thereafter, on the report so lodged by the complainant-Kejaram (PW-07), the police of Police Station Lalpur registered FIR (Ex.P/23) and marg intimation was also recorded vide Ex.P/38. Spot map was prepared vide Ex.P/22 and witnesses were served with notices vide Ex.P/25. The dead-body of deceased-Anantram was sent for postmortem examination vide Ex.P/34-A and in the postmortem report (Ex.P/34), Dr. Ajay Pathak (PW-13) opined that the cause of death of deceased-Anantram is neurogenic shock due to injury on vital organ (brain) and nature of death is homicidal. Similarly, injured persons, namely, Moujiram (PW-05), Ramgulam (PW-10), Uttara Bai (not examined), Pachram (PW-11), Santosh Kashyap (not examined) and Kejaram (PW-07) were also medically examined vide Ex.P/29-A to P/33A and P/36A respectively and their MLC reports are Ex.P/29 to P/33 and P/36 respectively. The appellants-accused persons were arrested vide Ex.P/40 to P/55. Thereafter, memorandum statements of the appellants-accused persons were recorded vide Ex.P/01 to P/10 pursuant to which seizure memos (Ex.P/11 to P/21) were affected, the details of seizure made from the appellants are as under: S. No. Name of accused and his memorandum statement vide exhibit Property seized vide exhibit 1. Amarnath (A-04) (Ex.P/01) Bamboo Stick/Spear (Barchi) (Ex.P/11) 2. Ganesh (A-07) (Ex.P/02) Bamboo Lathi (Ex.P/16) 3. Uttara (A-08) (Ex.P/03) Bamboo Lathi (Ex.P/15) 4. Ramnath (A-09) (Ex.P/04) Iron Crowbar (Tabbal) (Ex.P/14) 5. Narayan (A-01) (Ex.P/05) Hachet/axe (Tangiya) (Ex.P/12) 6. Shatruhan (A-10) (Ex.P/06) Iron Spear (Barchi) (Ex.P/13) 7. Swarath (A-11) (Ex.P/07) Bamboo Lathi (Ex.P/18) 8. Amarnath (A-04) (Ex.P/01) Bamboo Stick/Spear (Barchi) (Ex.P/11) 2. Ganesh (A-07) (Ex.P/02) Bamboo Lathi (Ex.P/16) 3. Uttara (A-08) (Ex.P/03) Bamboo Lathi (Ex.P/15) 4. Ramnath (A-09) (Ex.P/04) Iron Crowbar (Tabbal) (Ex.P/14) 5. Narayan (A-01) (Ex.P/05) Hachet/axe (Tangiya) (Ex.P/12) 6. Shatruhan (A-10) (Ex.P/06) Iron Spear (Barchi) (Ex.P/13) 7. Swarath (A-11) (Ex.P/07) Bamboo Lathi (Ex.P/18) 8. Kaleshwar (A-06) (Ex.P/08) Bamboo Lathi (Ex.P/17) 9. Ajit (A-03) (Ex.P/09) Wooden Stick (Ex.P/19) 10. Kejaram (A-02) (Ex.P/10) Tendu Lathi/Wooden stick (Ex.P/20) 6. From the aforesaid seized articles so seized, some of them were sent for FSL examination and in the FSL report (though not exhibited but available at Page-170 of the paper-book) it has been opined by chemical examiner as under: S. No. Name of accused Seized article Marked As FSL examination result 1. Amarnath (A-04) Spear (Barchi)/ Bamboo Stick “I” Blood found 2. Uttara (A-08) Bamboo Lathi “G” Blood found 3. Ramnath (A-09) Crowbar (Tabbal) “F” No blood found 4. Shatruhan (A-10) Spear (Barchi) “E” No blood found 5. Swarath (A-11) Bamboo Lathi “D” No blood found 6. Kaleshwar (A-06) Bamboo Lathi “H” Human blood found In the above articles blood groups could not be ascertained for the reasons mentioned in the FSL report. 7. Thereafter, statement of witnesses were recorded under Section 161 of CrPC and after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, District Narayanpur (CG). Appellants-accused persons, namely, Narayan (A-01), Kejaram, S/o Latel (A-02), Ajit (A-03), Amarnath (A-04), Kaleshwar (A-06), Ganesh (A-07), Uttarakumar (A-08), Ramnath (A-09), Shatruhan (A-10) and Swarath (A-11) were charged with offence under Sections 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts), whereas appellants-accused persons namely, Santosh (A-17), Jagdish (A-05), Laxminarayan (A-14), Kabilash @ Kallu (A-13), Rajkumar (A-16), Dwarika (A-15) and Shivnandan (A-12) were charged for offence under Sections 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts). Thereafter, the case was committed to the Court of Sessions for hearing and disposal in accordance with law. 8. The prosecution in order to bring home the offences examined as many as 17 witnesses and exhibited 55 documents whereas, on the other hand accused/appellant-Laxminarayan (A-14) examined J.P. Kiran (DW-01) and acquitted accused-Dwarika (A-15) examined Kharhanpuri (DW-02) and exhibited documents (Ex.D/01 to Ex.D/06) in support of their defence. The appellants/accused persons abjured their guilt and entered into defence. 9. 8. The prosecution in order to bring home the offences examined as many as 17 witnesses and exhibited 55 documents whereas, on the other hand accused/appellant-Laxminarayan (A-14) examined J.P. Kiran (DW-01) and acquitted accused-Dwarika (A-15) examined Kharhanpuri (DW-02) and exhibited documents (Ex.D/01 to Ex.D/06) in support of their defence. The appellants/accused persons abjured their guilt and entered into defence. 9. The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict: accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13), Santosh (A-17) for offence under Sections 302/149, 147 and 323/149 (on 03 counts) of IPC and sentenced them as mentioned herein-above and accused-appellants, namely, Shatruhan (A-10), Ganesh (A-07), Narayan (A-01), Kejaram (A-02), Ajit (A-03), Amarnath (A-04), Kaleshwar (A-06), Uttara (A-08), Ramnath (A-09) and Swarath (A-11) for offence under Sections 302/149, 149 and 323/149 (on 03 counts) and sentenced them as mentioned herein-above; but acquitted accused-Dwarika (A-15) for offence/charges under Sections 294, 147, 506-B, 302/149, 307/149 and 232/149 of IPC, against which these 07 criminal appeals and 01 acquittal appeal have been preferred by the accused-appellants and complainant-Kejaram S/o Milan (PW-07) respectively questioning the common impugned judgment dated 31.08.2013. Submissions on behalf of the appellants: 10. Mr. Rajesh Jain and Ms. Kiran Jain, learned counsel appearing for the accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Shatruhan (A-10), Kabilash (A-13), Ganesh (A-07) and Santosh (A-17) in CRA-937-2013, CRA-947-2013, CRA-966-2013, CRA-969-2013, CRA-970-2013 respectively submit that in marg intimation (Ex.P/38) the name of accused-appellant Laxminarayan (A-14) has only been mentioned and other accused-appellants have not been named to whom they are representing. Similarly, in FIR (Ex.P/23) the name of accused-appellant Ganesh has only been mentioned and other accused-appellants have not been named. From accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Kabilash (A-13) and Santosh (A-17) neither any memorandum statement has been recorded nor any incriminating article has been seized from them, only a Spear (Barchi) has been seized vide Ex.P/13 pursuant to memorandum statement of accused-appellant Shatruhan (A-10) (Ex.P/06), but in the FSL examination, no blood has been found on the said Spear (Barchi). Similarly, only Wooden/Bamboo stick has been seized vide Ex.P/16 pursuant to memorandum statement of accused-appellant Ganesh (A-07) (Ex.P/02), but the same has not been subjected to FSL examination for the reason that no blood has been found on the said wooden stick. Similarly, only Wooden/Bamboo stick has been seized vide Ex.P/16 pursuant to memorandum statement of accused-appellant Ganesh (A-07) (Ex.P/02), but the same has not been subjected to FSL examination for the reason that no blood has been found on the said wooden stick. They further submit that on behalf of accused-appellant Laxminarayan (A-14), J.P. Kiran (DW-01) has been examined wherein it has been proved that at the time of incident accused-appellant Laxminarayan (A-14) was working in school as Teacher and therefore, plea of alibi has been established against him. Thus, the conviction and sentence of the accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Shatruhan (A-10), Kabilash (A-13), Ganesh (A-07) and Santosh (A-17) deserves to be set aside and they are liable to be acquitted/discharged and their appeals be allowed. 11. Mr. Ramsajivan, learned counsel appearing for the accused-appellants, namely, Jagdish (A-05) and Shivnandan (A-12) in CRA-947-2013 submits that neither any memorandum statement nor any incriminating article has been seized from these 02 accused-appellants. Though their names have been mentioned in the FIR, but they are not named in the marg intimation. Allegedly, eye-witnesses have stated the presence of these 02 accused-appellants on the place of occurrence, but no specific overt act has been alleged against them. Moreover, eyewitness, namely, Bhagwani (PW-03) has not implicated the name of accused-Jagdish (A-05) and similarly eye-witness, namely, Keja Rama (PW-07) has also not stated the name of accused-Shivnanand (A-12). Even, eye-witnesses, namely, Rekharam (PW-08), Ram Sahai (PW-09) and Ramgulam (PW-10) have also not implicated the names of both the accused-appellants. He further contends that since grievous injury caused to the deceased-Anantram by which he died was by way of sharp and edged weapon and no incriminating article has been seized from these 02 accused-appellants including sharp and edged weapon, thus, they have been falsely implicated in this case and therefore, their conviction is liable to be set aside and they deserves to be acquitted. 12. Mr. Manoj Paranjpe, learned counsel appearing for the accused-appellants, namely, Narayan (A-01), Kejaram (A-02) and Ajit (A-03) in CRA-1029-2013 submits as under: (i) The names of accused-appellants Kejaram (A-02) and Ajit (A-03) have neither been recorded in the marg intimation (Ex.P/38) nor in the FIR (Ex.P/23). 12. Mr. Manoj Paranjpe, learned counsel appearing for the accused-appellants, namely, Narayan (A-01), Kejaram (A-02) and Ajit (A-03) in CRA-1029-2013 submits as under: (i) The names of accused-appellants Kejaram (A-02) and Ajit (A-03) have neither been recorded in the marg intimation (Ex.P/38) nor in the FIR (Ex.P/23). The eye-witnesses, namely, Bhagwati (PW-03), Moujiram (PW-05), Kirti Devi (PW-06), Kejaram (PW-07), Rekharam (PW-08), Ramsahai (PW-09) and Ramgulam (PW-10) have not stated the presence of accused-appellants Kejaram (A-02) and Ajit (A-03) on the place of incident/occurrence and even otherwise, there is no evidence available on record to show that any overt act has been caused by the said accused-appellants Kejaram (A-02) and Ajit (A-03); pursuant to memorandum statements of accused-appellants Kejaram (A-02) and Ajit (A-03) (Ex.P/10 and Ex.P/09) only wooden sticks (lathi) have been seized vide Ex.P/20 and Ex.P/19 respectively, but said wooden sticks (lathi) have neither been sent/subjected to FSL examination probably for the reason that no blood stains were found on the same nor it have been sent for query to any expert/doctor to gather whether any injury can be caused by said wooden sticks (lathi) or not; there is conflict of opinion in the place of occurrence, as according to the FIR (Ex.P/23) and Spot Map (Ex.P/22) the place of incident is near the pond of the village, whereas as per the statement of Ramgulam (PW-10) the incident took place near the house of Ramnath, which is not in existence; even the eye-witnesses namely, Bhagwati (PW-03), Moujiram (PW-05), Kirti Devi (PW-06), Kejaram (PW-07), Rekharam (PW-08), Ramsahai (PW-09) and Ramgulam (PW-10) have not supported the presence of each other on the place of occurrence, as such, there is no evidence against the accused-appellants Kejaram (A 02) and Ajit (A-03) to connect them with the offence in question. (ii) So far as accused-appellant Narayan (A-01) is concerned, though he has been named in the FIR (Ex.P/23) and pursuant to his memorandum statement (Ex.P/05) an axe has been seized vide Ex.P/12, but there is no FSL report or any Query report with regard to the same, as such, merely on the basis of recovery of axe, the accused-appellant Narayan (A-01) cannot be connected with the offence in question, as chain of circumstance is not complete by which it can be held that it is only and only the accused-appellant Narayan (A-01) who has committed the offence; further, though the presence of accused-appellant Narayan (A-01) has been stated, but no specific overt act has been alleged against him. (iii) Mr. Paranjpe, leaned counsel further submits that the prosecution has failed to prove that: there was any unlawful assembly and it was gathered after pre-conceived common object of eliminating the deceased-Anantram and other injured witnesses; the assembly was equipped with deadly weapons, such as axe, crowbar etc.; said unlawful assembly dealt a fatal blow on deceased-Anantram and further dealt a violent and brutal assault on other injured witnesses; and the offence in question has been committed in prosecution of the common object of the said assembly. Even though it has not been established that the appellants-accused are the members of the assembly who knew that such offence is likely to be committed and that they shared a common object. He relied on Vijay Pandurang Thakre and Others vs. State of Maharashtra, (2017) 4 SCC 377 , Kuldip Yadav and Others vs. State of Bihar, (2011) 5 SCC 324 and Joseph vs. State, Rep. by Inspector of Police, (2018) 12 SCC 283 to bolster his submissions and to contend that the prosecution has not proved the existence of common object amongst the accused persons and further failed to prove that all of them have acted in furtherance of said common object to invoke Section 149 of IPC, as such, the conviction of three accused-appellants, namely, Narayan (A-01), Kejaram (A-02) and Ajit (A-03) deserves to be set aside and they are liable to be acquitted/discharged from the offences mentioned herein-above. (iv) Mr. (iv) Mr. Paranjpe, learned counsel lastly submits that in the instant case a cross case has also been registered against the injured persons herein and they have been tried in Sessions Trial No. 19/2012 (State vs. Shobharam and others) for offence under Sections 147, 148, 294, 506-B, 323/149 of IPC, which is apparent from Para-2 of the impugned judgment dated 31.08.2013. Further, the learned trial Court has also found the accused persons therein guilty for the offence under Sections 147, 148 and 323/149 of IPC and fine sentence have been imposed upon them vide judgment dated 31.08.2013, against which CRA-1118-2013 and CRA-1217-2013 are pending consideration before this Court. 13. Ms. Indira Tripathi, learned counsel appearing for the accused-appellants, namely, Amarnath (A-04), Kaleshwar (A-06), Uttara (A-08), Ramnath (A-09) and Swarath (A-11) in CRA-1068-2013 submits that the only injury that has been caused to deceased-Ananatram by way of fatal blow is Injury No. 02 i.e. incised wound on his head, which can only be caused by a deadly weapon, but pursuant to memorandum statements of accused-appellants, namely, Amarnath (A-04), Kaleshwar (A-06), Uttara (A-08) and Swarath (A-11) (Ex.P/01, P/08, P/03 and P/07 respectively) only wooden sticks have been recovered vide Ex.P/11, P/17, P/15, P/18 respectively, by which no incised wound can be caused being hard and blunt object. Further, pursuant to memorandum statement of accused-appellant Ramnath (A-09) (Ex.P/04) a crowbar has been seized vide Ex.P/14, by which only penetrating wound can be caused. In the FSL report also, no blood has been found on the Crowbar and Wooden/Bamboo Stick seized pursuant to memorandum statement of accused-appellants-Ramnath (A-09) and Swarath (A-11) and only blood has been found on the Wooden/Bamboo Sticks seized pursuant to memorandum statement of accused-appellants Amarnath (A-04) and Uttara (A-08) and it is not clear whether the said blood is of human blood or not. She further submits that though human blood has been found on the Wooden/Bamboo Stick seized pursuant to memorandum statement of accused-appellant Kaleshwar (A-06), but it is not clear whether said human blood is of deceased-Anantram only. She further submits that though human blood has been found on the Wooden/Bamboo Stick seized pursuant to memorandum statement of accused-appellant Kaleshwar (A-06), but it is not clear whether said human blood is of deceased-Anantram only. She further urged that though the names of accused-appellants, namely, Amarnath (A-04), Kaleshwar (A-06), Uttara (A-08), Ramnath (A-09) and Swarath (A-11) have been stated in the FIR as well as in the marg intimation and their presence have also been stated by the eyewitnesses, but not specific overt act have been alleged against these 05 accused-appellants and that they shared a common object. Infact, these 05 accused-appellants have suffered injuries in their MLC/medical examination, but the prosecution has not come with clear hands and have not brought on record their MLC/medical examination report, which would show that it is the deceased and the other injured witnesses who were the aggresor of the said offence, which fact is also clear from Para-11 of the statement of Mouji Ram (PW-05) and from Para-12 of the statement of Bhagwati (PW-03), both are the eyewitnesses, wherein they have clearly demonstrated that on the report of the accused persons, a counter case has also been registered against the injured persons herein and they have been punished for offence under Section 323/149 of IPC. They have also preferred an appeal, which is tagged alongwith this batch of appeals. She relied on the decision of the Supreme Court in the matter of Najabhai Desurbhai Wagh vs. Valerabhai Deganbhai Vagh, (2017) 3 SCC 261 to contend that common object to commit murder cannot be inferred only on the basis of that the dangerous weapons carried out by the accused persons and until and unless the ingredients for offence under Section 149 of IPC are clearly established, the conviction of the accused-appellants, Amarnath (A-04), Kaleshwar (A-06), Uttara (A-08), Ramnath (A-09) and Swarath (A-11) for offence under Sections 302 and 323 IPC with the aid of Section 149 IPC is liable to be set aside. 14. Mr. Anil S. Pandey, learned counsel appearing for the appellant/complainant-Kejaram, S/o Milan (PW-07) in ACQA-59-2013 submits that the learned trial Court is absolutely unjustified in acquitting the accused-Dwarika (A-15) for offence under Sections 294, 147, 506-B, 302/149, 307/149 and 323/149 of IPC by misreading the evidence available on record and recording findings which is perverse and contrary to the record. Mr. Anil S. Pandey, learned counsel appearing for the appellant/complainant-Kejaram, S/o Milan (PW-07) in ACQA-59-2013 submits that the learned trial Court is absolutely unjustified in acquitting the accused-Dwarika (A-15) for offence under Sections 294, 147, 506-B, 302/149, 307/149 and 323/149 of IPC by misreading the evidence available on record and recording findings which is perverse and contrary to the record. There are ample evidence available on record to hold accused-Dwarika (A-15) guilty for the said offences, but he has been wrongly acquitted, thus, the impugned judgment dated 31.08.2013, so far it relates to acquittal of accused-Dwarika (A-15), is liable to be set aside and he be punished for the said offences. Submissions on behalf of the respondent-State: 15. Per-contra, Ms. Ruchi Nagar, learned State counsel supported the impugned judgment dated 31.08.2013 and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. Death of deceased-Anantram is homicidal in nature, which is duly proved by the PM report (Ex.P/34) and statement of Dr. Ajay Pathak (PW-13). She further submits that constitution of unlawful assembly and common object amongst the accused-appellants have also been established by the prosecution which is supported by evidence available on record. The learned trial Court has rightly convicted the appellant for offence mentioned herein above, thus, the present criminal appeals filed by the accused-appellants herein deserve to be dismissed. She relied on the decision rendered by the Supreme Court in Amerika Bai vs. State of Bihar, (2011) 4 SCC 677 , Ramchandra vs. State of Kerala, AIR 2011 SC 3582 and State of M.P. vs. Killu and Others, (2020) 16 SCC 735 . She further submits that acquittal appeal preferred by the complainant-Kej Ram, Son Milan against acquittal of accused-Dwarika (A-15) also deserves to be dismissed. 16. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 17. She further submits that acquittal appeal preferred by the complainant-Kej Ram, Son Milan against acquittal of accused-Dwarika (A-15) also deserves to be dismissed. 16. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. 17. At the outset, it would be relevant first to notice the questions for determination formulated by the learned trial Court for the trial, which states as under: ¼1½ D;k vuarjke dh e`R;q ekuo o/k gS\ ¼2½ D;k vfHk;qDrx.k us lkekU; mn~ns'; ds vxzlj.k esa,d jk; gksdj fof/k fo:) teko dk xBu dj ekjihV djus ds mn~ns'; ls cy ;k fgalk dk Á;ksx dj cyok dkfjr fd;s\ ¼3½ D;k vfHk;qDrx.k us lkekU; mn~ns'; ds vxzlj.k esa Vafx;k] rCcy] cjNh] ykBh M.Mk ls lqlfTtr gksrs gq, cy ;k fgalk dk Á;ksx dj cyok dkfjr fd;s\ ¼4½ D;k vfHk;qDrx.k }kjk vuarjke dks ykBh] Vafx;k] rCcy] cjNh ls ekjihV dj e`R;qdkfjr dj gR;k fd;k x;kA ¼5½ D;k vfHk;qDrx.k }kjk dstkjke dks yksdLFkku ij v'yhy xkfy;ka nsdj {kksHk dkfjr fd;k x;k\ ¼6½ D;k vfHk;qDrx.k }kjk dstkjke dks tku ls ekjus dh /kedh nsdj vkijkf/kd la=kl dkfjr fd;k x;k\ ¼7½ D;k vfHk;qDrx.k }kjk fof/k fo:) teko dk xBu dj mlds lkekU; mn~ns'; ds vxzlj.k esa,d jk; gksdj dstkjke dks lk'k; migfr,slh ifjfLFkfr;ksa esa dkfjr fd;k fd ;fn mldh e`R;q gks x;h gksrh rks vki gR;k ds nks"kh gksrs\ ¼8½ D;k vfHk;qDrx.k,d jk; gksdj mlds lkekU; mn~ns'; dh iwfrZ esa ekSthjke] jkexqyke] larks"k] mRrjkckbZ,oa iapjke dks ekjihV dj LosPN;k migfr dkfjr fd;k x;k\ Findings of the trial Court: 18. The learned trial Court, with regard to question No. 01 vis-a-vis regarding death of deceased-Anantram being homicidal in nature, after appreciating the oral and documentary evidence available on record, particularly the PM report (Ex.P/34) and the statement of Dr. Ajay Pathak (PW-13) clearly came to the conclusion that the death of deceased-Anantram was homicidal in nature. Further, with regard to question Nos. Ajay Pathak (PW-13) clearly came to the conclusion that the death of deceased-Anantram was homicidal in nature. Further, with regard to question Nos. 2, 3 and 4 vis-a-vis constitution of unlawful assembly with a common object/intention to commit rioting and to inflict hurt and in furtherance of said common object, armed with weapons like wooden stick, crowbar, axe and spear and caused death of deceased-Anantram, the learned trial Court categorically recorded finding that between the accused-appellants and the complainant/injured party previous enmity and dispute existed in regard to panchayat election and political rivalry and at the report of the complainant the matter is pending in the jurisdictional Court at Lormi and on account of which, on the date of incident, the accused-appellants constituted unlawful assembly with a common object to cause hurt to the complainant party including deceased-Anantram and thus, committed offence under Section 147, 148 and 302/149 of IPC. Similarly, with regard to question No. 05, 6, 7 and 8 it has been held by the learned trial Court that the accused-appellants abused and threatened the complainant-injured Kejaram, S/o Milan (PW-07) and they also assaulted him and caused simple hurt, held them guilty for offence under Section 323/149 of IPC. Further, the accused-appellants have also assaulted Moujiram (PW-05) and Ramgulam (PW-10) and caused simple hurt to them and thereby, held guilty for offence under Section 323/149 of IPC on each count, but the appellants-accused were acquitted for causing simple hurt to Santosh (not examined), Panchram (PW-11) and Uttara Bai (not examined). 19. Now questions ripped for consideration before us in this batch of appeals would be as under: (i) Whether the learned trial Court is justified in holding that the death of deceased-Anantram is homicidal in nature? 19. Now questions ripped for consideration before us in this batch of appeals would be as under: (i) Whether the learned trial Court is justified in holding that the death of deceased-Anantram is homicidal in nature? (ii) Whether the learned trial Court is justified in holding that the prosecution has succeeded in proving the constitution of unlawful assembly in terms of Section 141 of IPC by the accused-appellants herein and further justified in holding that the common object of the said unlawful assembly was to cause hurt to the complainant party and in prosecution of said common object, 10 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Ramnath (A-09), Narayan (A-01), Shatruhan (A-10), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) armed with weapons like wooden sticks (lathi and danda), crowbar (tabbal), axe (tangiya) and spear (barchi) caused death of deceased-Anantram and further caused grievous hurt/injuries to Kejaram, S/o Milan (PW-07), Moujiram (PW-05), Ramgulam (PW-10) and thereby committed the abovementioned offences? (iii) Whether the learned trial Court is justified in convicting all the accused-appellants herein for offence under Sections 302 and 323 (on 03 counts) of IPC with the aid of Section 149 of IPC, especially 06 accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17), who were only present as member of unlawful assembly and were not armed with any weapon? Regarding Question No. (i) 20. The first question is as to whether the death of the deceased-Anantram was homicidal in nature. The dead-body of the deceased-Anantram was subjected to postmortem examination which was conducted by Dr. Ajay Pathak (PW-13), who gave its report (Ex.P/34). According to the said postmortem report (Ex.P/34) following injuries were found on the body of the deceased-Anantram: “1. Left eye close due to contusion blue color and swelling over eye lead. 2. Single longitudinal incised wound with incised skull visible brain matter parieto-temporal bone towards left external ear of size 6.0 (L) x 2.5 (W) x 0.7 (D) inches. 3. Single lacerated wound longitudinal upper part of left eye in supraorbital margin area of size 3 (L) x 1 (W) x 0.3 (D) inches. 4. 03 Antemortem contusions on thighs and knee joint.” 21. Dr. 3. Single lacerated wound longitudinal upper part of left eye in supraorbital margin area of size 3 (L) x 1 (W) x 0.3 (D) inches. 4. 03 Antemortem contusions on thighs and knee joint.” 21. Dr. Ajay Pathak, who has conducted the postmortem examination of the deceased- Anantram has been examined as PW-13, who in Para-15 of his cross-examination before the Court has stated as under: ^^¼15½ eSaus e`rd dks vk;h pksaV dVk gqvk pksaV ikuk mYys[k fd;k gS] tks /kkjnkj oLrq ls vk ldrh gSA ;g lgh gS fd pksaV Øekad 2 dks NksM+dj 'ks"k lHkh pksaVs lk/kkj.k Ád`fr dh rFkk mldh e`R;q ugha gks ldrhA** 22. A careful perusal of the PM report (Ex.P/34) coupled with the aforesaid statement of Dr. Ajay Pathak (PW-13) would show that except Injury No. 02, all the injuries, which have been inflicted to the deceased-Anantram, were simple in nature and not sufficient to cause death. Further, Dr. Ajay Pathak (PW-13) opined that the cause of death of the deceased-Anantram is held to be homicidal in nature. The learned trial Court after appreciating the aforesaid PM report (Ex.P/34) and the statement of Dr. Ajay Pathak (PW-13) came to the conclusion that the death of the deceased was homicidal in nature. Even otherwise, learned counsels appearing for the accused-appellants herein have also not seriously disputed the aforesaid finding of the learned trial Court regarding death of deceased-Anantram being homicidal in nature. Accordingly, in view of such undisputed fact and further taking into consideration the postmortem report (Ex.P/34) and the statement of Dr. Ajay Pathak (PW-13), we are of the considered opinion that the learned trial Court is absolutely justified in holding that the death of the deceased-Anantram was homicidal in nature, as the same is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. Consequently, we hereby affirmed the said finding recorded by the learned trial Court holding the death of deceased-Anantram to be homicidal in nature. Regarding Question No. (ii) 23. In order to answer this question, it would be relevant first to notice Section 114 of IPC, which defines “unlawful assembly” as under: “141. Consequently, we hereby affirmed the said finding recorded by the learned trial Court holding the death of deceased-Anantram to be homicidal in nature. Regarding Question No. (ii) 23. In order to answer this question, it would be relevant first to notice Section 114 of IPC, which defines “unlawful assembly” as under: “141. Unlawful assembly - An assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is: First: xxx Second: xxx Third: To commit any mischief or criminal trespass, or other offence. Fourth: xxx Fifth: xxx” 24. Section 141 of IPC states that an “unlawful assembly” is an assembly of five or more persons, if their common object is to commit mischief, criminal trespass or any other offence. The Constitution Bench of the Supreme Court in the matter of Mohan Singh and Another vs. State of Punjab, AIR 1963 SC 174 held that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is one of the essential condition of an unlawful assembly that its membership must be five or more. The assembly must consist of five or more persons having one of the five specified objects as their “common object.” Further, their Lordships while dealing with as to the applicability of Section 149 of IPC in such case held that it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves those charge against all of them it is very clear that Section 149 IPC can be invoked. 25. Since all the convicted accused-appellants have been convicted for offence under Sections 302 and 323 of IPC with the aid of Section 149 of IPC, it is relevant to notice Section 149 of IPC here, which reads as under: “149. 25. Since all the convicted accused-appellants have been convicted for offence under Sections 302 and 323 of IPC with the aid of Section 149 of IPC, it is relevant to notice Section 149 of IPC here, which 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.” A careful perusal of aforesaid provision would show that following ingredients are required to be established in order to convict an accused person for offence under Section 149 of IPC: (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. 26. Section 149 is applicable only in case of members of unlawful assembly i.e. assembly of 05 or more persons the common object of whom is any of the objects specified in Section 141 of IPC. In case of such an assembly every person who is member of the assembly, is guilty of every offence committed by any member of the assembly (1) if such offence is committed in prosecution of the common object of such assembly or (2) if the offence is such as the members knew likely to be committed in prosecution of the common object, provided the person was a member of such assembly when that offence was committed. Thus, the liability under this provision attaches to every member of the assembly even when such member had nothing to do with the actual commission of the offence, and even a knowledge about the likelihood of the offence being committed in prosecution of the common object of the assembly is sufficient to impose the liability for the offence when committed by any member of the assembly. 27. 27. The first part of Section 149 of IPC speaks of the commission of an offence in prosecution of the common object of the assembly, whereas the second part takes within its fold knowledge of likelihood of the commission of the offence in prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of offence must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms which its members bear and their behaviour at or before the actual conflict [See: State of Assam vs. Darga Dewani, 1970 (3) SCC 236 ]. 28. The Supreme Court in the matter of Rajendra Shantaram Todankar vs. State of Maharashtra, (2003) 2 SCC 257 explained the scope of Section 149 and held in Para-14 as under: “14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of 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. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly nevertheless the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. In either case every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the Court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 either clause is attracted and the Court is convinced, on facts and in law both, of liability capable of being fastened vicariously by reference to either clause of Section 149 of IPC merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act.” 29. Similarly, in the matter of Joseph (supra) their Lordships of Supreme Court defined the scope of Section 149 of IPC in two parts in Para-11.1 and 11.2, which reads as under: “11.1 The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. 11.2 The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed.” 30. Section 149 of IPC declares the principle of vicarious criminal liability. Section 149 of IPC declares the principle of vicarious criminal liability. Upon an offence being committed by any member of an unlawful assembly in prosecution of the common object, every person, who at the time of the offence being committed is a member of such assembly is guilty of such offence. Equally, in the second part of Section 149, the law-makers have provided that upon an offence being committed by any member of the unlawful assembly which was such that members of that assembly (unlawful assembly), knew to be likely to be committed in prosecution of that object, every member of the assembly, though he may not have committed the offence, is rendered guilty of the offence [See: Somasundaram @ Somu vs. State Rep. by the Deputy Commissioner of Police, (2020) 7 SCC 722 ]. 31. It is well settled that since Section 149 IPC imposes a constructive penal liability, it must be strictly 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 and there must be a nexus between the common object and the offence committed. The Supreme Court in the matter of Allauddin Mian vs. State of Bihar, (1981) 2 SCC 755 held in Para-08 as under: “8............Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. 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. 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 strictly 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 companies constituting the unlawful assembly liable for that offence with the aid of Section 149, I.P.C.” 32. The aforesaid principle of law laid down by their Lordships of Supreme Court in the matter of Allauddin Mian (supra) has been followed in the matter of Kuldip Yadav (supra). 33. In the matter of Vijay Pandurang Thakre (supra) the Supreme Court has reiterated the expression “in prosecution of the common object” occurring in Section 149 IPC, postulates that it must be one which has been done with a view to accomplish the common object attributed to the members of the unlawful assembly. Their Lordships of Supreme Court further held that this expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object and held in Para-17 as under: “17. In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, has not been proved. It must be immediately connected with common object by virtue of nature of object and held in Para-17 as under: “17. In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, has not been proved. The expression ‘in prosecution of the common object’ occurring in this Section postulates that the act must be one which have been done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as equivalent to in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case, even the evidence is not laid on this aspect. As pointed out above, the courts below were influenced by the fact that one of the injuries on the person of Ashok was on his head which became the cause of death and from this, common object is inferred.” 34. Apart from the above, Section 149 creates a specific offence. So, there should be a clear finding as to what was the object of the unlawful assembly and if so whether the object was unlawful, that is, to commit murder, grievous hurt or simple hurt [See: Bhudeo Mandal vs. State of Bihar, (1981) 2 SCC 755 ]. It is now well settled law that whenever a Court convicts any person for an offence with the aid of section 149 of IPC, a clear finding regarding a common object of the unlawful assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. [See: Irengbam Labej Singh vs. State of Manipur, 1993 Supp. (3) SCC 653]. 35. The aforesaid principle laid down has been followed by the Supreme Court in the matter of Kuldip Yadav (supra) in following words: “36........The above provision makes it clear that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, essential ingredients of Section 141 IPC must be established. The above principles have been reiterated in Bhudeo Mandal and Others vs. State of Bihar, (1981) 2 SCC 755 . *** *** *** *** *** 39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC.” 36. The Supreme Court in the matter of Sikhar Behera and Others vs. State of Orissa, 1994 Supp. (1) SCC 493 while deciding the question of common object, their Lordships have held that the nature of participation, the weapon used and the injuries caused would be relevant to infer the nature of common object. 37. The Supreme Court in the matter of Sikhar Behera and Others vs. State of Orissa, 1994 Supp. (1) SCC 493 while deciding the question of common object, their Lordships have held that the nature of participation, the weapon used and the injuries caused would be relevant to infer the nature of common object. 37. Reverting to the facts of the present case in light of aforesaid principles of law laid down by their Lordships of Supreme Court to invoke Section 149 of IPC, we are required to consider whether the accused-appellants have constituted an unlawful assembly in terms of Section 141 of IPC and said assembly had common object to cause hurt to the complainant party and the act of the accused-appellants was done to accomplish the said common object of the unlawful assembly and it was within their knowledge that the offence is likely to be committed in prosecution of said common object and in furtherance thereof, committed murder of the deceased-Anantram making them liable for having committed offence under Section 302/149 of IPC and further caused simple hurt to injured persons, namely, Kejaram (PW-07) Moujiram (PW-05) and Ramgulam (PW-10) making them liable for having committed offence under Sections 323/149 of IPC on each count. 38. In order to answer the question, it would be appropriate to notice the charges framed against each of the accused-appellants, which states as under: S. No. Name of accused Charges framed 1. Laxminarayan (A-14) 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts) 2. Rajkumar (A-16) 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts) 3. Jagdish (A-05) 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts) 4. Shivnandan (A-12) 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts) 5. Shatruhan (A-10) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 6. Kabilash (A-13) 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts) 7. Ganesh (A-07) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 8. Santosh (A-17) 294, 506-B, 147, 302/149, 307/149 and 323/149 (5 counts) 9. Narayan (A-01) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 10. Kejaram (A-02) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 11. Ajit (A-03) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 12. Amarnath (A-04) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 13. Kaleshwar (A-06) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 14. Narayan (A-01) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 10. Kejaram (A-02) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 11. Ajit (A-03) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 12. Amarnath (A-04) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 13. Kaleshwar (A-06) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 14. Uttara (A-08) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 15. Ramnath (A-09) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 16. Swarath (A-11) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 39. Amarnath (A-04) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 13. Kaleshwar (A-06) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 14. Uttara (A-08) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 15. Ramnath (A-09) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 16. Swarath (A-11) 294, 506-B, 148, 302/149, 307/149 and 323/149 (5 counts) 39. For the sake of convenience, the charge framed by the trial Court against one of the accused person, namely, Narayan (A-1) is reproduced herein-below: ^^vkjksi i= eSa] vjfoUn dqekj flUgk] vij l= U;k;k/kh'k] eqaxsyh] rqe ukjk;.k vkŒ yrsy ij fuEufyf[kr vkjksi yxkrk gwa%& ¼1½ rqeus fnukad 29-08-2011 dks 11%00 cts fnu xzke ihij[kwaVk Fkkuk ykyiqj {ks=kf/kdkj ds varxZr yksdLFkku esa ;k mlds lehi ÁkFkhZ dstkjke dks eka&cgu dh v'yhy xkfy;ka nsdj mls rFkk vU; lquus okyksa dks {kksHk dkfjr fd;kA,slk djds vkius og vijk/k fd;k tks /kkjk 294 HkkŒnaŒlaŒ ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA ¼2½ mlh fnukad] le;,oa LFkku ij rqeus ÁkFkh dstkjke dks la=kl dkfjr djus ds vk'k; ls tku ls ekjus dh /kedh nsdj vkijkf/kd vfHk=kl dkfjr fd;kA,slk djds vkius og vijk/k fd;k tks /kkjk 506&ch HkkŒnaŒlaŒ ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA ¼3½ mlh fnukad] le;,oa LFkku ij rqeus vU; lg&vfHkqDr ds lkFk feydj ftudh dh la[;k 5 ls vf/kd Fkh fof/k fo:) teko dk xBu dj vL=] ykBh] Vkaxh,oa cjNh ls lfTtr gksrs gq, cy o fgalk dk Á;ksx dj cyok dkfjr fd;kA,slk djds vkius og vijk/k fd;k tks /kkjk 148 HkkŒnaŒlaŒ ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA ¼4½ mlh fnukad] le;,oa LFkku ij rqeus vU; lg&vfHkqDr ds lkFk feydj fof/k fo:) teko dk xBu fd;k rFkk fof/k fo:) teko ds lkekU; mn~ns'; ds vxzlj.k esa lk'k; ;g tkurs gq, vuarjke dh e`R;q dkfjr dj gR;k fd;kA,slk djds vkius og vijk/k fd;k tks /kkjk 302@149 HkkŒnaŒlaŒ ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA ¼5½ mlh fnukad] le;,oa LFkku ij rqeus vU; lg&vfHkqDr ds lkFk feydj fof/k fo:) teko dk xBu fd;k rFkk ml teko ds lkekU; mn~ns'; ds vxzlj.k esa dstkjke dks lk'k; ;k tkurs gq,,slh ifjfLFkfr;ksa esa migfr dkfjr fd;k fd ;fn mldh e`R;q gks x;h gksrh rks vki gR;k ds nks"kh gksrsA,slk djds vkius og vijk/k fd;k tks /kkjk 307@149 HkkŒnaŒlaŒ ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA ¼6½ mlh fnukad] le;,oa LFkku ij rqeus vU; lg&vfHkqDr ds lkFk feydj fof/k fo:) teko dk xBu fd;k rFkk ml teko ds lkekU; mn~ns'; ds vxzlj.k esa ekSthjke] jkexqyke] larks"k d';i] mRrjkckbZ,oa iapjke dks ekjihV dj LosPN;k migfr dkfjr fd;kA,slk djds vkius og vijk/k fd;k tks /kkjk 323@149 ¼5 dkWmV½ HkkŒnaŒlaŒ ds rgr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA eSa vknsf'kr djrk gwa fd mijksDr vijk/k ds fy, rqEgkjk fopkj.k bl U;k;ky; }kjk fd;k tkosxkA ,lMh@& ¼vjfoUn dqekj flUgk½ vij l= U;k;k/kh'k eqaxsyh] ftyk&fcykliqj ¼NŒxŒ½ vkjksi i= iढ+dj lquk;s le>k;s tkus ls rFkk vfHk;qDr ls ;g iwNs tkus ij fd D;k og nks"kh gksus dk vfHkokd djrk gS ;k fopkj.k fd;s tkus dk nkok djrk gS] rc vfHk;qDr dk vfHkokd gS & tqeZ vLohdkj gS] fopkj.k pkgrk gwaA ukjk;.k ,lMh@& ¼vjfoUn dqekj flUgk½ vij l= U;k;k/kh'k eqaxsyhA** Thus, the charges framed by the trial Court against the accused-appellants would show that common object of the unlawful assembly so constituted was to cause murder of the deceased Anantram (first part of Section 149 IPC). 40. 40. The learned trial Court while answering the issue particularly with regard to applicability of Section 149 of IPC for formation of unlawful assembly with common object held that on account of panchayat election, between the accused-appellants and the complainant party a dispute was pending/sub-judicie before the jurisdictional Court at Lormi and there was previous enmity on account of political rivalry between them and that was the reason for constitution of unlawful assembly by the accused-appellants herein and their common object of accused-appellants for composing unlawful assembly was to inflict hurt to the complainant party and held in Para-15 as under: ^^¼15½ vfHk;kstu lkf{k;ksa ds dFkuksa dk leFkZu foospuk vf/kdkjh dsŒdsŒ lkgw vŒlkŒ 16 us vius ijh{k.k dh dafMdk&12 esa vejukFk ds eseksjs.Me dFku ÁŒihŒ 1 ds vk/kkj ij,d cjNh dk csB] x.ks'k ds eseksjs.Me ÁŒihŒ 2 ds vk/kkj ij ykBh] mRrjk ds eseksjs.Me dFku ÁŒihŒ 3 ds vk/kkj ij ykBh] jkeukFk ds eseksjs.Me ÁŒihŒ 4 ds vk/kkj ij rCcy] ukjk;.k ds eseksjs.Me dFku ÁŒihŒ 5 ds vk/kkj ij Vafx;k] 'k=qgu ds eseksjs.Me ÁŒihŒ 6 ds vk/kkj ij cjNh] LokjFk ds eseksjs.Me ÁŒihŒ 7 ds vk/kkj ij ykBh] dys'oj ds eseksjs.Me ÁŒihŒ 8 ds vk/kkj ij ykBh] vthr ds eseksjs.Me ÁŒihŒ 9 ds vk/kkj ij ykBh] dstkjke ds esekŒ dFku ÁŒihŒ 10 ds vk/kkj ij ykBh] tIrh i= Øe'k% ÁŒihŒ 12 ls ysdj ÁŒihŒ 20 ds vuqlkj tIr djuk dFku fd;k gS] ftldk leFkZu vfHk;kstu lk{kh tokgj vŒlkŒ 1 ds U;k;ky;hu lk{; ls gksrk gS vkSj ;g Hkh dFku fd;k gS fd ÁŒihŒ 1 ls ysdj ÁŒihŒ 20 rd ij mlds gLrk{kj gSA bl Ádkj vfHk;kstu lkf{k;ksa ds dFkuksa ls ;g Áekf.kr gksrk gS fd ?kVuk fnukad dks vkjksihx.k iapk;r pquko,oa vkjksihx.k ds fo:) ÁkFkhZ i{k dh fjiksVZ ij yksjeh U;k;ky; esa ekeyk yafcr gS rFkk ?kVuk ds iwoZ [kk|kUu Hkkstu Nsnh ds }kjk [kk tkus ds dkj.k bl laca/k esa f'kdk;r fd;s Fks rFkk ÁkFkhZ i{k,oa vkjksihx.k ds e/; iwoZ ls jaft'k Fkh ftlds dkj.k vkjksihx.k ?kVuk fnukad dks fof/k fo:) teko dk xBu fd;k ftldk lkekU; mn~ns'; ÁkFkhZ i{k dks ekjihV dj pksaV igaqpkuk Fkk vkSj mDr fof/k fo:) teko vkjksih LokLFk ls,d ykBh] ukjk;.k ls yksgs dh Vkaxh] 'k=qgu ls,d yksgs dk cjNh] jkeukFk ls,d yksgs dk rCcy] mRrjk ls,d ckal dh ykBh] x.ks'k ls,d ykBh dys'oj ls,d ykBh] vejukFk ls,d ydM+h cjNh dk csB] vthr ls,d ckal dh ykBh] dstkjke ls,d rsanw dh ykBh j[kdj ?kkrd vk;q/k ls ?kVuk ds le; lqlfTtr Fks ftlls mDr vkjksihx.k ds fo:) /kkjk 148 HkkŒnaŒlaŒ dk i;kZIr lk{; gS rFkk 'ks"k vkjksihx.k ?kVuk fnukad dks ?kVukLFky ij fof/k fo:) teko dk lnL; gksrs gq, vfHk;kstu lkf{k;ksa ds dFkuksa ds vk/kkj ij mifLFkr Fks rFkk muds fo:) /kkjk 147 HkkŒnaŒlaŒ ds rgr i;kZIr lk{; miyc/k gSA** 41. Now turning to the facts of the instant case in light to the aforesaid principle laid down for constitution of unlawful assembly with a common object, it is quite vivid that in the instant case 17 accused persons were charged by the prosecution in the charge-sheet filed before the Court below for composing unlawful assembly and the learned trial Court after considering the testimonies of eye-witnesses/injured witnesses, namely, Bhagwani (PW-03), Kejaram (PW-07), Rekharam (PW-08) and Ramsahai (PW-09) clearly came to the conclusion that 16 accused-appellants except one accused-Dwarika (A-15), who have been acquitted, were the members of the unlawful assembly and their common object was to cause hurt to the complainant party on account of previous enmity and political rivalry, as appellant party lost panchayat election of which dispute/proceedings is pending consideration before the jurisdictional Court at Lormi. Even otherwise, it is an admitted fact available on record that a cross case has also been registered in this instant dispute, wherein the injured persons herein, namely, Kejaram, Moujiram alongwith other persons, namely, Shobha Kashyap, Panchram, Gore Kashyap, Bhagwani, Santosh and Patiram have been made accused and tried in Sessions Trial No. 19/2012 (State vs. Shobharam and others) for offence under Sections 147, 148, 294, 506-B, 323/149 of IPC, which is also apparent from Para-2 of the impugned judgment dated 31.08.2013 and aforesaid accused persons therein have been found guilty for the offence under Sections 147, 148 and 323/149 of IPC and fine sentence have been imposed upon them vide judgment dated 31.08.2013, against which CRA-1118-2013 and CRA-1217-2013 are pending consideration before this Court. Moreover, in the instant case, 13 persons were named in the FIR and 06 were named in the marg intimation. Thus, from the statement of eye-witnesses and from the documents i.e. FIR (Ex.P/23) and marg intimation (Ex.P/38) it has been proved that 16 accused persons constituted unlawful assembly on the date of offence. Moreover, in the instant case, 13 persons were named in the FIR and 06 were named in the marg intimation. Thus, from the statement of eye-witnesses and from the documents i.e. FIR (Ex.P/23) and marg intimation (Ex.P/38) it has been proved that 16 accused persons constituted unlawful assembly on the date of offence. Further, the learned trial Court has also categorically recorded a finding in this regard that out of 16 accused persons, 10 accused-appellants, namely, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Ramnath (A-09), Narayan (A-01), Shatruhan (A-10), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) were variously armed with deadly weapons and 06 accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) were only present on the spot, as such all the accused-appellants formed an unlawful assembly on the date of offence. After going through the testimoney of injured witness-Kejaram (PW-07) and other eye-witnesses, namely, Bhagwani (PW-03), Rekharam (PW-08) and Ramsahai (PW-09), in which they categorically stated about the presence of appellant herein more than five in number, we are of the considered opinion that trial Court is absolutely justified in holding that appellants herein composed unlawful assembly in terms of Section 141 of IPC. Accordingly, we hereby affirm the finding recorded by the learned trial Court that all the accused-appellants (16) composed an unlawful assembly on the date of offence. 42. The aforesaid finding bring us to the next question i.e. whether common object of the said unlawful assembly was to commit murder of deceased-Anantram? 43. “Common object” will depend upon the circumstances in which incident took place, the conduct of the members of the unlawful assembly including the weapons they carried or used in the spot. It was so stated by their Lordships of Supreme Court in the matter of Lalji vs. State of U.P. (1989) 1 SCC 437 that “common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.” This principle of law laid down as to determination of common object propounded in Lalji (supra) has been followed by the Supreme Court with approval in the matter of Roy Fernandes vs. State of Goa and Others, (2012) 3 SCC 221 . 44. It is an inference to be deduced from the facts and circumstances of each case.” This principle of law laid down as to determination of common object propounded in Lalji (supra) has been followed by the Supreme Court with approval in the matter of Roy Fernandes vs. State of Goa and Others, (2012) 3 SCC 221 . 44. In the instant case, the learned trial Court after considering the fact that there was previous enmity and political rivalry between the complainant party and the accused persons and on account of earlier panchayat election, having been lost by the appellants’ party, matter is sub-judice before the jurisdictional Court at Lormi, held that the common object of the unlawful assembly constituted by 16 accused-appellants herein was to cause hurt to the members of the complainant party and in furtherance of said common object, 10 accused-appellants namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Ramnath (A-09), Narayan (A-01), Shatruhan (A-10), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) who were armed with dealy weapons like wooden sticks (lathi and danda), crowbar (tabbal), axe (tangiya) and spear (barchi) have inflicted blow/injury on deceased-Anantram and further caused simple hurt/injuries to Kejaram, S/o Milan (PW-07), Moujiram (PW-05), Ramgulam (PW-10) and no overt act has been established/proved against the remaining 06 accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17), as they were only present on the spot as member of said unlawful assembly and it was not the common object of the said unlawful assembly to cause murder of the deceased-Anantram. Accordingly, considering the evidence available on record, including the testimonies of eyewitnesses/ injured witnesses, namely, Bhagwani (PW-03), Kejaram (PW-07), Rekharam (PW-08) and Ramsahai (PW-09) and in view of above principles of law laid by their Lordships of Supreme Court in above mentioned judgments, we are of the considered opinion that the learned trial Court is absolutely justified in holding that the common object of the unlawful assembly constituted by the accused-appellants herein was to cause hurt to the complainant party and not to commit murder of deceased-Annatram, as said finding is correct finding of fact based on evidence and same is neither perverse nor contrary to the record. We hereby affirm the said finding recorded by the learned trial Court. Regarding Question No. (iii) 45. We hereby affirm the said finding recorded by the learned trial Court. Regarding Question No. (iii) 45. Now the question for consideration before us would be whether learned trial Court is justified in convicting all 16 accused-appellants herein for offence under Sections 302 and 323 (on 03 counts) of IPC with the aid of Section 149 of IPC, though it is the finding of the learned trial Court that only 10 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Ramnath (A-09), Narayan (A-01), Shatruhan (A-10), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) were armed with weapons like wooden sticks (lathi and danda), crowbar (tabbal), axe (tangiya) and spear (barchi) and remaining 06 accused-appellants, namely, Laxminaryan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) were only present as members of unlawful assembly and no overt act has been alleged against them and no specific finding has been recorded by the learned trial Court qua sharing of common object against the aforesaid 06 accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) with remaining 10 accused-appellants (i.e. member of unlawful assembly) to cause murder of the deceased-Anantram and inflict simple hurt to other injured witnesses/persons. 46. The Supreme Court in the matter of Madan Singh vs. State of Bihar, (2004) 4 SCC 622 held that mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he shared the same or was actuated by that common object and that object is one of those set out in Section 141 IPC. Where common object of unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149 IPC. 47. Similarly, in the matter of Kuldip Yadav (supra) their Lordships of Supreme Court held that in order to attract Section 149 IPC, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC. 48. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 IPC. 48. A careful perusal of the evidence available on record, particularly the statement of four eye-witnesses/injured witnesses, namely, Bhagwani (PW-03), Kejaram (PW-07), Rekharam (PW-08) and Ramsahai (PW-09) would show that 06 accused-appellants, namely, Laxminaryan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) were not armed with any weapon and no overt act has been alleged against them and they have not participated in the crime in question, but still fact remains that all these 06 accused-appellants were present on the spot on the date of incident as member of unlawful assembly alongwith other accused persons. 49. The Constitution Bench of the Supreme Court in the matter of Masalti vs. State of U.P. AIR 1965 SC 202 qua the unlawful assembly and their common object has held as under: “17..........What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly..........” 50. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly..........” 50. Where a large number of persons are alleged to have participated in the crime and they are sought to be brought to book with the aid of Section 149 IPC, their Lordships of Supreme Court have applied rule of caution taking into consideration particular fact-situation and convicted those accused persons whose presence was clearly established and overt acts were proved. 51. In the matter of Baladin vs. State of U.P. AIR 1956 SC 181 , the Supreme Court has held that mere presence in an assembly does not make such a person a member of unlawful assembly unless it is shown that he had something or omitted to do something which would make him a member of unlawful assembly or unless case falls under Section 142 of the IPC. Merely because some persons assembled, all of them cannot be condemned ipso-facto as being members of that unlawful assembly. It was incumbent upon prosecution to prove that commission of such offence must have been committed in prosecution of common object of unlawful assembly or such that members of the assembly knew that it was likely to be committed. 52. In the matter of Sherey vs. State of U.P. 1991 Supp. (2) SCC 437 their Lordships of Supreme Court has been held in Para-04 as under: “4.........But when there is a general allegation against a large number of persons the Court naturally hesitates to convict all of them on such vague evidence. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed......” 53. Therefore we have to find some reasonable circumstance which lends assurance. From that point of view it is safe only to convict the abovementioned nine accused whose presence is not only consistently mentioned from the stage of FIR but also to whom overt acts are attributed......” 53. Similarly, in the matter of Musa Khan vs. State of Maharashtra, (1971) 1 SCC 733 it has been held by their Lordships that 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 these stages and held in Para-05 as under: “5.........Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, 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 these stages......” 54. Furthermore, in the matter of Nagarjit Ahir vs. State of Bihar, (2005) 10 SCC 369 their Lordships applied the rule of caution and in the facts and circumstance of the case held that “it may be safe to convict only those persons against whom overt act is alleged with the aid to Section 149 IPC lest some innocent spectators may get involved.” Thereafter, all these judgments in the matters of Masalti (supra), Sherey (supra), Musa Khan (supra) and Nagarjit Ahir (supra) have been followed by their Lordships of Supreme Court in the matter of Pandurang Chandrakant Mhatre vs. State of Maharashtra, (2009) 10 SCC 773 and the accused persons therein against whom overt act was not there, applied the rule of caution held in Para-74 as under: “74. In a case such as the present one, although having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A-2, A-3, and A-12 under Section 302 read with Section 149 I.P.C whose presence as members of party of assailants is consistently mentioned and their overt acts in chasing and assaulting the deceased are clearly proved. A-4, A-5, A-6, A-10 and A-11 get the benefit of doubt with regard to offence under Section 302 read with Section 149 I.P.C. since evidence against them in chasing and assaulting the deceased is not consistent. However, all the eight appellants are guilty of the offences punishable under Section 148 and Section 326 read with Section 149, I.P.C. This is proved beyond doubt and the High Court cannot be said to have erred in holding so.” 55. Lastly, in the matter of Vijay Pandurang Thakre (supra) it has been further held that three elements contained in Section 149 IPC i.e. (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed, are satisfied, then only a conviction under Section 149 of I.P.C. may be substantiated, and not otherwise. None of the Sections 147, 148 and 149 applies to a person who is merely present in any unlawful assembly, unless he actively participates in the rioting or does some overt act with the necessary criminal intention or shares the common object of the unlawful assembly and further held in Para-20 and 21 as under: “20. No doubt, in the scuffle that took place, one blow came to be inflicted on the head of Ashok which injury proved fatal. However, this by itself cannot be the reason to conclude that there was any intention to commit his murder. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body. If 30 persons had attacked the members of Deshmukh Group, there are no injuries on the vital parts of other persons who got injured in the said episode. Ashok also suffered only one injury on his head and no other injury is on vital part of his body. Had there been any common objective to cause murder of the members of Deshmukh Group, there would have been many injuries on deceased Ashok as well as other injured persons on the vital parts of their body. On the contrary, it has come on record that the injuries suffered by other persons are on their back or lower limbs i.e. legs etc. 21. We, thus, hold that there was no preconceived common object of eliminating the members of Deshmukh family and group and the assembly was not acquired with any deadly weapons either, as held by the High Court. Even the High Court has not pointed out any such evidence. These findings are hereby set aside. The conviction of the appellants under Section 302 IPC is converted into Section 304-II IPC for which the appellants are sentenced for rigorous imprisonment of seven years each. We were informed that all the appellants have already undergone sentence of seven years or more. If that is correct, these appellants shall be released forthwith, if not required in any other case.” 56. The principles of law laid down in Musa Khan (supra) has been followed by the Supreme Court in the matter of Usmangani alias Bhura Abdul Gaffar vs. State of Gujarat, (2020) 12 SCC 503 with approval. Thereafter, very recently in the matter of Arvind Kumar @ Nemichand vs. State of Rajasthan, 2021 SCC Online SC 1099 wherein the scope of Section 149 of IPC was considered by the Supreme Court and held as under: “Scope of section 149 50. Section 149 of the Code deals with a common object. To attract this provision there must be evidence of an assembly with the common object becoming an unlawful one. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object. It is the sharing of the common object which attracts the offense committed by one to the other members. The concept of constructive or vicarious liability is brought into this provision by making the offense committed by one member of the unlawful assembly to the others having the common object. It is the sharing of the common object which attracts the offense committed by one to the other members. Therefore, the mere presence in an assembly per se would not constitute an offense, it does become one when the assembly is unlawful. It is the common object to commit an offense which results in the said offense being committed. Therefore, though it is committed by one, a deeming fiction is created by making it applicable to the others as well due to the commonality in their objective to commit an offense. Thus, it is for the prosecution to prove the factors such as the existence of the assembly with a requisite number, the common object for everyone, the object being unlawful, and an offense committed by one such member. Courts will have to be more circumspect and cautious while dealing with a case of accused charged under Section 149 IPC, as it involves a deeming fiction. Therefore, a higher degree of onus is required to be put on the prosecution to prove that a person charged with an offense is liable to be punished for the offence committed by the others under section 149 IPC. The principle governing the aforesaid aspect is taken note of by this court in Ranjit Singh vs. State of Punjab, (2013) 16 SCC 752 : “35. Baladin vs. State of U.P. AIR 1956 SC 181 : 1956 Cri. L.J. 345, was one of the early cases in which this Court dealt with Section 149 IPC. This Court held that mere presence in an assembly does not make a person a member of the unlawful assembly, unless it is shown that he had done or omitted to do something which would show that he was a member of the unlawful assembly or unless the case fell under Section 142 IPC. Resultantly, if all the members of a family and other residents of the village assembled at the place of occurrence, all such persons could not be condemned ipso facto as members of the unlawful assembly. Resultantly, if all the members of a family and other residents of the village assembled at the place of occurrence, all such persons could not be condemned ipso facto as members of the unlawful assembly. The prosecution in all such cases shall have to lead evidence to show that a particular accused had done some overt act to establish that he was a member of the unlawful assembly. This would require the case of each individual to be examined so that mere spectators who had just joined the assembly and who were unaware of its motive may not be branded as members of the unlawful assembly. 36. The observations made in Baladin Case AIR 1956 SC 181 : 1956 Cri. L.J. 345, were considered in Masalti vs. State of U.P. AIR 1965 SC 202 : (1965) 1 Cri. L.J. 226 where this Court explained that cases in which persons who are merely passive witnesses and had joined the assembly out of curiosity, without sharing the common object of the assembly stood on a different footing; otherwise it was not necessary to prove that the person had committed some illegal act or was guilty of some omission in pursuance of the common object of the assembly before he could be fastened with the consequences of an act committed by any other member of the assembly with the help of Section 149 IPC. The following passage is apposite in this regard: “17........The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in Baladin [ AIR 1956 SC 181 : 1956 Cri. L.J. 345] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. L.J. 345] assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, 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.” (Emphasis supplied) 37. Again in Bajwa vs. State of U.P. (1973) 1 SCC 714 , this Court held that while in a faction-ridden society there is always a tendency to implicate even the innocent with the guilty, the only safeguard against the risk of condemning the innocent with the guilty lies in insisting upon acceptable evidence which in some measure implicates the accused and satisfies the conscience of the court. 39. That in a faction-ridden village community, there is a tendency to implicate innocents also along with the guilty, especially when a large number of assailants are involved in the commission of an offence is a matter of common knowledge. Evidence in such cases is bound to be partisan, but while the courts cannot take an easy route to rejecting out of hand such evidence only on that ground, what ought to be done is to approach the depositions carefully and scrutinise the evidence more closely to avoid any miscarriage of justice.” 57. Evidence in such cases is bound to be partisan, but while the courts cannot take an easy route to rejecting out of hand such evidence only on that ground, what ought to be done is to approach the depositions carefully and scrutinise the evidence more closely to avoid any miscarriage of justice.” 57. Reverting to the facts of the instant case in light of aforesaid principle of law laid down by their Lordships of Supreme Court, it is quite vivid that 06 accused-appellants, namely, Laxminaryan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) were not armed with any weapon, but their presence have been established by the testimonies of eyewitnesses/injured witnesses, namely, Bhagwani (PW-03), Kejaram (PW-07), Rekharam (PW-08) and Ramsahai (PW-09) as member of unlawful assembly and neither they have assaulted deceased-Anantram and other injured persons/witnesses nor any specific overt act has been alleged against them and it is also clearly established that these 06 accused-appellants, namely, Laxminaryan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) have not shared common object/intention and particularly it is not proved that these appellants knew that offence of murder is likely to be committed by remaining 10 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Ramnath (A-09), Narayan (A-01), Shatruhan (A-10), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02), who were armed with weapons like wooden sticks (lathi and danda), crowbar (tabbal), axe (tangiya) and spear (barchi) and assaulted deceased-Anantram and other injured persons. By applying the rule of caution as has been held by their Lordships of Supreme Court in the matters of Masalti (supra), Sherey (supra), Musa Khan (supra), Nagarjit Ahir (supra), Pandurang Chandrakant Mhatre (supra) and Vijay Pandurang Thakre (supra) it would be unsafe to convict these 06 accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) for offence under Sections 302 and 323 (on three count) of IPC with the aid of Section 149 IPC as also under Sections 147 of IPC and their conviction for aforesaid offences is liable to be set aside. 58. In view of what we have already discussed herein above, we see no merit in the plea of alibi raised on behalf of accused-appellant-Laxminarayan (A-14). The plea of alibi set up by accused-appellant Laxminarayan (A-14) was not even accepted by the learned trail Court. 58. In view of what we have already discussed herein above, we see no merit in the plea of alibi raised on behalf of accused-appellant-Laxminarayan (A-14). The plea of alibi set up by accused-appellant Laxminarayan (A-14) was not even accepted by the learned trail Court. Based on the testimonies of eye-witnesses/injured witnesses, namely, Bhagwani (PW-03), Kejaram (PW-07), Rekharam (PW-08) and Ramsahai (PW-09) the presence of accused-appellant Laxminarayan (A-14) in the incident/crime in question has been clearly established and he was member of unlawful assembly composed by the accused persons on the date of incident. Thus, plea of alibi raised on behalf of accused-appellant Laxminarayan (A-14) is hereby rejected. 59. Now the question remains whether conviction of remaining 10 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Ramnath (A-09), Narayan (A-01), Shatruhan (A-10), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) for offence under Section 302/149 and 323/149 (three counts) of IPC is justified? 60. As has been found established by the learned trial Court and affirmed by this Court above that the common objection of the accused-appellants was to cause hurt to the members of the complainant party. Further, it is duly established on record that all these 10 accused-appellants were found to be armed with following weapons: S. No. Name of accused Property seized from them vide exhibit 1. Amarnath (A-04) Bamboo Stick/Spear (Barchi) (Ex.P/11) 2. Ganesh (A-07) Bamboo Lathi (Ex.P/16) 3. Uttara (A-08) Bamboo Lathi (Ex.P/15) 4. Ramnath (A-09) Iron Crowbar (Tabbal) (Ex.P/14) 5. Narayan (A-01) Hachet/axe (Tangiya) (Ex.P/12) 6. Shatruhan (A-10) Iron Spear (Barchi) (Ex.P/13) 7. Swarath (A-11) Bamboo Lathi (Ex.P/18) 8. Kaleshwar (A-06) Bamboo Lathi (Ex.P/17) 9. Ajit (A-03) Wooden Stick (Ex.P/19) 10. Kejaram (A-02) Tendu Lathi/Wooden stick (Ex.P/20) 61. In the instant case, deceased-Anantram, as per his PM report (Ex.P/34) duly proved by Dr. Ajay Pathak (PW-13), had received total 04 injuries, out of which only Injury No. 02 which was incised wound on his head was grievous in nature and sufficient to cause his death, as per Para-15 of the testimony of Dr. Ajay Pathak (PW-13) and remaining 03 injures were simple in nature and not sufficient to cause his death. Ajay Pathak (PW-13), had received total 04 injuries, out of which only Injury No. 02 which was incised wound on his head was grievous in nature and sufficient to cause his death, as per Para-15 of the testimony of Dr. Ajay Pathak (PW-13) and remaining 03 injures were simple in nature and not sufficient to cause his death. Moreso, the said Injury No. 02 can only be caused by way of a sharp and edged weapon and pursuant to whose memorandum statement of accused-appellant Narayan (A-01) (Ex.P/05), an axe has been seized vide (Ex.P/12) and similarly, by way of memorandum statements of accused-Ramnath (A-09) and Shatruhan (A-10) crowbar and spear have been seized vide Ex.P/14 and Ex.P/13 respectively, however, pursuant to memorandum statements of remaining 07 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) only wooden sticks have been seized vide Ex.P/11, Ex.P/16, Ex.P/15, Ex.P/18, Ex.P/17, Ex.P/19 and Ex.P/20 respectively and they participated in the occurrence in which deceased-Anantram died and other injured persons, namely, Kejaram (PW-07), Moujiram (PW-05) and Ramgulam (PW-10) received simple injuries. Admittedly, injury No. 02 by which deceased-Anantram suffered death can be caused only by sharp and edged object and could not be caused by hard and blunt object. Therefore, by no stretch of imagination it can be held that the common object of the unlawful assembly is to cause murder of deceased-Anantram. But, fact remains that it was the common object of the said unlawful assembly to cause hurt to the complainant party and in prosecution of said common object, these 10 accused-appellants were armed with weapon, which finding recorded by the learned trial Court has been affirmed by us hereinabove. 62. The Supreme Court in the matter of Shambhu Nath Singh vs. State of Bihar, AIR 1960 SC 725 held that where common object of the assembly was to cause grievous hurt and death was caused by only one of the members of the assembly, then other members can be convicted under Section 326/149 of IPC, even if they are not responsible for the death and have not caused grievous hurt and their Lordships pertinently held as under: “6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But “members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly.” [Jahiruddin vs. Queen Empress, ILR 22 Cal. 306] 7. Therefore a conviction for an offence under Section 326 read with Section 149 of the Indian Penal Code may be recorded against the members of an unlawful assembly, even if it be established that an offence of murder was committed by a member of that assembly. The offence under Section 326 of the Indian Penal Code is in its relation to the offence of murder a minor offence and the language used in Section 149 of the Indian Penal Code does not prevent the court from convicting for that minor offence merely because an aggravated offence is committed. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. Counsel for the accused however sought to place reliance upon certain authorities in support of his contention. We may briefly deal with those authorities.” Their Lordships in the matter of Shambhu Nath Singh (supra) further held that common object of the unlawful assembly was in case, as found by the courts below, to cause grievous hurt and death was caused by one of the members of the assembly, for causing death the other members of the assembly is not responsible and their conviction under Section 326/149 is justified and held in Para-14 and 15 as under: “14. By Section 149 the vicarious liability of the members for offence committed in prosecution of the common object or for offences which were known to be likely to be committed by the members of the unlawful assembly is declared. The offence of murder being in its nature an aggravated form of the offence of grievous hurt, we are unable to hold that because no offender was proved to have caused grievous hurt to the victims, the conviction of accused Nos. 2 to 8 and 14 for an offence under Section 326 read with Section 149 of the Indian Penal Code is illegal. 15. The common object of the unlawful assembly was in this case as found by the courts below to cause grievous hurt; and death was caused by one of the members of the assembly. For causing the death, it is found that the other members of the unlawful assembly arc not responsible. But the conviction for the offence of causing grievous hurt in prosecution of the common object of the unlawful assembly is maintainable. Conviction of accused Nos. 2 to 8 and 14 for offences under Section 326 read with Section 149 of the Indian Penal Code was therefore properly recorded.” 63. The aforesaid principle of law laid down by the Supreme Court in the matter of Shambhu Nath Singh (supra) has been followed with approval in the matters of Kishan Chand and Others vs. State of U.P. AIR 2008 SC 133 , Muthuramalingam and Others vs. State Rep. by Inspector of Police, (2017) 1 SCC 477 and recently in the matter of Hari and Another vs. State of Uttar Pradesh, 2021 SCC Online 1131. 64. by Inspector of Police, (2017) 1 SCC 477 and recently in the matter of Hari and Another vs. State of Uttar Pradesh, 2021 SCC Online 1131. 64. Finally turning to the facts of the instant case in light of aforesaid judgments, admittedly, on account of political rivalry and previous enmity between the accused persons and the complainant party scuffle took place in which one grievous injury i.e. incised wound (Injury No. 02) has been inflicted on the head of deceased-Anantram, which has been proved to be a fatal injury and deceased-Annatram died because of it and the remaining 03 injuries have been found on the non-vital part of the body of the deceased, which was found to be simple in nature, as such, there was no intention to cause death/murder of the deceased-Annatram on the part of the accused-appellants, specially to that of 07 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02), who were only armed with wooden stick and participated in the occurrence, as such, there were no injuries caused by these 07 accused-appellants by hard and blunt object except three minor injuries. Had there been any common object on the part of the accused-appellants to cause death of the deceased-Anantram, they could have inflicted more injuries to him as well as to the injured witnesses, namely, Kejaram (PW-07), Moujiram (PW-05) and Ramgulam (PW-10) on their vital parts of the body, but as only simple injuries have been found on the body of injured persons, the trial Court convicted the accused-appellants for offence under Section 323/149 of IPC on each count. Therefore, the learned trial Court is absolutely justified in convicting the accused-appellants for offence under Section 323/149 for causing injuries to Kejaram (PW-07), Moujiram (PW-05) and Ramgulam (PW-10) on each count but on the other hand has committed grave legal error in convicting these 07 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) for offence under Sections 302/149 IPC for causing murder of deceased-Anantram. 65. 65. In view of above stated analysis and considering the principle of law laid down by their Lordships of Supreme Court in the matters of Shambhu Nath Singh (supra), Kishan Chand (supra), Muthuramalingam (supra) and Hari (supra) the conviction of 07 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02), who were only armed with wooden sticks, for offence under Section 302/149 of IPC is liable to be altered to Section 326/149 of IPC. Further, remaining 03 accused-appellants, namely, Ramnath (A-09), Narayan (A-04) and Shatruhan (A-10), who were bearing deadly and dangerous weapons like crowbar, axe and spear in the incident and deceased-Anantram suffered incised wound, their case would fall within the purview of Exception 4 of Section 300 of IPC, as their act completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner and therefore, in view of dicta of Supreme Court in the matters Arjun vs. State of Chhattisgarh, (2017) 3 SCC 247 and Rambir vs. State (NCT of Delhi), (2019) 6 SCC 122 the conviction of the three appellants under Section 302/149 of IPC is altered/converted to Section 304 (Part-I)/149 of IPC. 66. ACQA-59-2013 has been preferred by complainant-injured Kejaram S/o Milan (PW-07) questioning the findings recorded by the learned trial Court in acquitting accused-Dwarika for offence under Sections 294, 147, 506-B, 302/149, 307/149 and 323/149 of IPC. The learned trial Court after considering the testimony of eye-witnesses have clearly came to the conclusion that accused-Dwarika was not present at the time of occurrence and there is no evidence on record to connect accused-Dwarika for the aforesaid offences and thereby, acquitted accused-Dwarika from the charges leveled against him. The learned trial Court after considering the testimony of eye-witnesses have clearly came to the conclusion that accused-Dwarika was not present at the time of occurrence and there is no evidence on record to connect accused-Dwarika for the aforesaid offences and thereby, acquitted accused-Dwarika from the charges leveled against him. Accordingly, taking into consideration the findings recorded by the learned trial Court and further considering that there is no evidence available against accused-Dwarika to convict him for the said offences and in view of dicta of the Supreme Court in the matter of K. Chinnaswamy Reddy vs. State of Andhra Pradesh, AIR 1962 SC 1788 whereby their Lordships of Supreme Court laid down the scope of interference in the order of acquittal and held that in exceptional case, revisional jurisdiction has to be exercised and therefore, this acquittal appeal deserves to be dismissed. 67. In view of the aforesaid discussions, this Court came to the following conclusions: (i) the conviction of 06 accused-appellants, namely, Laxminarayan (A-14), Rajkumar (A-16), Jagdish (A-05), Shivnandan (A-12), Kabilash (A-13) and Santosh (A-17) for offence under Sections 302/149, 323/149 (on three counts) and 147 of IPC awarded by the learned trial Court is set aside and they are discharged from the said offences. Since, these 06 accused-appellants are already on bail, they need not to surrender before the trial Court. However, their bail bonds shall remain in operation for a period of 06 months in view of provisions contained in Section 437-A of Cr.P.C. (ii) the conviction of 07 accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) for offence under Section 302/149 of IPC is set aside and instead thereof, they are convicted for offence under Section 326/149 of IPC. The conviction of these 07 accused-appellants for offence under Sections 323/149 and 148 of IPC is hereby maintained. Since the accused-appellants, namely, Amarnath (A-04), Ganesh (A-07), Uttara (A-08), Swarath (A-11), Kaleshwar (A-06), Ajit (A-03) and Kejaram (A-02) remained in jail from 31.08.2011 to 27.08.2014 i.e. 02 years 11 months and 26 days, taking into consideration the period they have already undergone, we award them sentence already undergone by them, but the fine sentence imposed by the learned trial Court upon them shall remain intact. As these 07 accused-appellants are already on bail, they need not to surrender before the trial Court, but their bail bonds shall remain in operation for a period of 06 months in view of provisions contained in Section 437-A of Cr.P.C. (iii) the conviction of remaining 03 accused-appellants, namely, Narayan (A-01), Ramnath (A-09) and Shatruhan (A-10) for offence under Section 302/149 awarded by the learned trial Court is set aside and instead thereof, they are convicted for offence under Section 304 (Part-I)/149 of IPC. The conviction of these 03 appellants for offence under Sections 323/149 and 148 of IPC is hereby maintained. Since the accused-appellants, namely, Narayan (A-01), Ramnath (A-09) and Shatruhan (A-10) are in jail from 31.08.2012 i.e. more than 11 years, taking into consideration the period they have already undergone, we award them sentence already undergone by them, but the fine sentence imposed by the learned trial Court upon them shall remain intact. They be released from jail forthwith, if not required in any other offence. (iv) for the reasons stated in above paras of this judgment, the acquittal appeal preferred by complainant-injured Kejaram S/o Milan (PW-07) questioning the findings recorded by the learned trial Court in acquitting accused-Dwarika for offence under Sections 294, 147, 506-B, 302/149, 307/149 and 323/149 of IPC is dismissed. 68. Consequently, Criminal Appeals No. 937/2013, 947/2013, 970/2013 and 966/2013 (so far it relates to accused-appellant Kabilash) are allowed; Criminal Appeals No. 969/2013, 1029/2013, 1068/2013 and 966/2013 (so far it relates to accused-appellant Shatruhan) are partly allowed to the extent indicated herein-above and Acquittal Appeal No. 59/2013 stands dismissed.