JUDGMENT [ENTITY], J.
1. This appeal has been preferred against the judgment and order dated 15-12-1979 passed by Sri [ENTITY], the then II Additional Sessions Judge, Jalaun at [ENTITY] in [CASE NUMBER] whereby [ENTITY] has been convicted under [SECTION], [ACT] simpliciter and sentenced to imprisonment for life. [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] have been convicted under [SECTION], [ACT] and sentenced to imprisonment for life. [ENTITY] has been convicted under [SECTION], [ACT] and sentenced to imprisonment for life. He has also been convicted under [SECTION] of the [ACT] and sentenced to 3 months' [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] have also been convicted under [SECTION], [ACT] and sentenced to undergo 5 years [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] have further been convicted under [SECTION], [ACT] and sentenced to (sic) years' R.I. [ENTITY] and [ENTITY] have also been convicted Under [SECTION], [ACT] and sentenced to one years' R.I. [ENTITY] has also been convicted under [SECTION] of the [ACT] and sentenced to two years' R.I.
2. The prosecution case, as revealed in the F.I.R., is that [ENTITY] informant is resident of Village Titra Khalilpur, Police Station Konch, District Jaluan. There is a Gautam Junior High School in the village. [ENTITY] was Manager of that School. He was removed and [ENTITY] was elected by the Committee of the School as Manager last year. [ENTITY] with the help of his companions [ENTITY] and others started another school in the village. Students in both the schools were studying. Both the schools were approved by the Educational Authorities. About 20 Bighas of cultivable land was attached with the old school. Both the managers [ENTITY] as well as [ENTITY] were considering that the cultivable land to be their own property and hence the proceedings under [SECTION], [ACT] took place between them regarding that property. Last year that landed property was cultivated by [ENTITY] and this year also. On the fateful day, i.e. 30-8-1974 [ENTITY] ploughman of [ENTITY] had gone to plough the field, situated near the school. [ENTITY] and [ENTITY] armed with country made pistols, [ENTITY], [ENTITY], [ENTITY] armed with guns, [ENTITY] and [ENTITY] having lathis formed unlawful assembly and they were going to the fields for restraining the other side from cultivating the land of the school. [ENTITY], younger brother of [ENTITY], was returning after serving breakfast to the ploughman. The informant was also accompanying him at that time. At about 11.00 A.M. both of them met the accused persons. [ENTITY] and [ENTITY] asked them as to why they were cultivating the field of the school and they would not permit them to cultivate the same that year. [ENTITY] replied that the field belonged to the old school of which his brother was the Manager, who were they to inter-fere in the cultivation. Then [ENTITY] exhorted his companions to beat them and told them who they were. [ENTITY] went to the other side of minor canal after crossing the same through the knee deep water of it. [ENTITY] challenged him in abusive language if he was a man why he was running away. [ENTITY] and [ENTITY] started exchange of abuses. There- upon the complainant due to fear turned towards [ENTITY] minor and saw the incident. [ENTITY] fired a shot towards [ENTITY] (P.W. 9) which hit on his chest. After sustaining gunshot injury he fell down in the water of [ENTITY] from its patri. Then [ENTITY] and [ENTITY] assaulted him with lathis. The complainant and [ENTITY] raised alaram which attracted [ENTITY] P.W. 3 and [ENTITY] who were grazing their cattle nearby. [ENTITY] and [ENTITY] (P.W. 4) who were going to village from their fields, [ENTITY], [ENTITY], [ENTITY], who was aged about 14 years, came there running from the village side reprimanding the accused to save [ENTITY]. [ENTITY] on the exhortation of [ENTITY] fired a shot with his gun towards them and challenged them. The shot fired by [ENTITY] hit on the body of [ENTITY]. [ENTITY] took a turn and fell down. When [ENTITY] (P.W. 3) came foreward to rescue him [ENTITY] fired a shot with country made pistol which hit him. He returned and ran away. [ENTITY] who was armed with gun of his father [ENTITY] fired a shot which hit [ENTITY] (P.W. 4). [ENTITY] caused fire arm injuries with his country made pistol on the person of [ENTITY] and [ENTITY]. [ENTITY], [ENTITY], [ENTITY] and [ENTITY] sustained serious injuries in the incident and they were taken to Konch Hospital where [ENTITY] succumbed to his injuries while he was being taken down at the Hospital. The informant, leaving dead body of [ENTITY] in the care of his uncle [ENTITY] went to police station. Other injured persons were also following him to the police station. He apprehended danger to his and other's life from [ENTITY] and others. He lodged an F.I.R. at 3.15 p.m.' on 30-8-1974 at police station Konch, which is at a distance of 7 miles from the place of occurrence.
3. The case was registered in the presence of P.W. 13 [ENTITY], Station Officer, who took up the investigation in his hand. He recorded the statement of informant [ENTITY] at the police station itself. He proceeded to the place of occurrence where he reached at 6 p.m. and recorded the statement of [ENTITY], [ENTITY], [ENTITY], [ENTITY] and others under [SECTION] [ACT] He took the shirt of [ENTITY] as he found the sign of gunshot on it. He remained in the village throughout the night. He did not conduct further investigation that day due to paucity of light. Next day i.e. 31-8-1974 he again started investigation at 7.30 a.m. and inspected the venue and prepared a site plan. He collected 5 discharged cartridges of 12 bore from the spot. He collected 12 tiklies and 5 wads and prepared relevant memos thereof. He recorded the statement of [ENTITY], [ENTITY], [ENTITY], [ENTITY], another [ENTITY] son of [ENTITY], [ENTITY] and others under [SECTION], [ACT] He went in search for the accused persons. He recovered a licensed gun of 12 bore of [ENTITY] in the presence of [ENTITY], [ENTITY], [ENTITY] wife of [ENTITY] and relevant memo was prepared. Next day he reached the Hospital about 6.00 p.m. where he interrogated [ENTITY], [ENTITY], [ENTITY]. Their blood stained clothes were also taken into custody and relevant memos thereof were prepared. On 2-9-1974 he again went to the village of occurrence where he arrested [ENTITY].
4. P.W. 2 Dr. [ENTITY] examined the injured persons on 30-8-1974. On the person of [ENTITY] he found 15 gunshot wounds and one contusion at 4.10 p.m. On the body of [ENTITY] one gun shot wound of entry with its wound of exit was found at 5.15 p.m. On the body of [ENTITY] the doctor found 89 gun shot wounds, one lacerated wound, six contusions and one abrasion at 4.50 p.m. The injuries of [ENTITY] and [ENTITY] were examined by the same Doctor at 1.00 p.m. and 1.10 p.m. on 31-8-1974 respectively. He found two gunshot wounds of entry on the chest of [ENTITY] and one gunshot wound on head of [ENTITY]. [ENTITY] P.W. 7 S.I. held the inquest and prepared other relevant documents. The dead body was sent to the Mortuary through constables [ENTITY] and [ENTITY] for post mortem examination. Dr. [ENTITY] P.W. 2 conducted the post -mortem examination on the body of [ENTITY] at 10-30 a.m. on 31-8-1974. The Doctor found 3 gunshot wounds of entry on the body of [ENTITY].
5. Five discharged cartridges recovered from the spot and the gun of [ENTITY] which was recovered from his house used by his son [ENTITY] in the crime were sent for Ballistic opinion. [ENTITY] (P.W. 14) gave his opinion that 2 of the 5 cartridges collected from the spot were fired from the gun (of [ENTITY]) sent to him. The Investigating Officer after completing other formalities submitted charge-sheet in Court against all the accused persons.
6. The prosecution examined as many as 14 witnesses and filed affidavits of Constable [ENTITY], [ENTITY] and [ENTITY] to prove its case. Out of them [ENTITY] P.W. 1, [ENTITY] P.W. 3, [ENTITY] P.W. 4 and [ENTITY] P.W. 9 were the witnesses of factum of the incident. The prosecution examined [ENTITY] Ballistic Expert to prove that two cartridges out of 5, recovered from the spot by the I.O., were fired from the gun (which was licensed gun of [ENTITY] and recovered from his house by the Investigating Officer). Rest witnesses were of formal nature.
7. The accused persons denied the prosecution version and pleaded false implication due to previous enmity. They stated that [ENTITY] and [ENTITY] are still Manager and Chairman of the School. No election was held of the Executive Committee in the year 1973. Cultivatory land in area 20 Bighas belonged to school was in the possession of [ENTITY] and not [ENTITY]. They further stated that no other school was started. In the appeal the decree was set aside and the possession of [ENTITY] was confirmed. [ENTITY] and [ENTITY] had been removed from the Manager ship from I 973. [ENTITY] also stated in his statement recorded under [SECTION], [ACT] that he advanced loan to [ENTITY], [ENTITY], Ayodhya and [ENTITY]. He filed a suit for the recovery of the amount of loan which was decreed. Due to this reason he had been named as an accused in the present case. [ENTITY] stated that [ENTITY], [ENTITY], [ENTITY] uprooted his crops. In that connection his father reported the matter to the police. [ENTITY] is father of [ENTITY] injured and [ENTITY] is uncle of [ENTITY] deceased while [ENTITY] is also uncle of [ENTITY]. They have falsely involved him due to long standing previous enmity. [ENTITY] stated that his brother [ENTITY] was a member of the school, hence he has been implicated in the case. [ENTITY] stated that there had been a litigation between him on one side, [ENTITY] and [ENTITY] injured persons on the other and also between him and [ENTITY], due to which he has been falsely implicated. [ENTITY] stated that he contested an election of [ENTITY] against [ENTITY] father of [ENTITY]. He removed [ENTITY] brother of [ENTITY] from the post of Assistant Teacher. He also removed [ENTITY] from the post of Manager. He also removed [ENTITY], brother of [ENTITY] from the post of Teacher. He continued depositing land revenue of agricultural land of the school development and irrigation charges from 1966 to 1979. The approval of school had been granted from 1976 in his favour and continued till 1979. He is still holding the charge of Manager of the School. [ENTITY] stated that there had been a litigation in revenue Court between him and [ENTITY] injured. In that case [ENTITY] was the witness. [ENTITY] witness of the present case is son of [ENTITY]. He succeeded in the revenue litigation. In that litigation [ENTITY] uncle of [ENTITY] deceased was also a witness against him. [ENTITY] stated that he reported the matter regarding the damage of his crops by the cattle against [ENTITY], [ENTITY], [ENTITY]. He was called by the Inspector at the police station on second of the month with his gun and belt of cartridges. His gun and belt of cartridges were taken into custody by the Inspector at the police station. That belt contained some discharged and some live cartridges. He was lodged in the lock up of the Police Station. The defence also examined [ENTITY], Arm Clerk [ENTITY] as D. W. 1 who stated that he summoned special report of the police station regarding the present crime with the permission of the District Magistrate. In practice special reports after perusal of District Magistrate were sent to him, but in the present case he had not received the special report of the present case. It was possible that the special report might have been consigned in the office.
8. The learned Additional Sessions Judge after considering the entire evidence on record held the appellants guilty of the offences charged with and convicted and sentenced each of them as stated above. The appellants have come up before this Court in this appeal against their conviction and sentence.
9. We have heard Sri [ENTITY], learned counsel for the appellants, Sri [ENTITY] for accused [ENTITY] and Sri [ENTITY], learned A.G.A. for the State.
10. Learned counsel for the appellants has not disputed the factum of incident. He mainly contended that in the present case [SECTION], [ACT] is not applicable as there was no prearranged plan or common object of assembly for the commission of murder of [ENTITY]. As such all the accused cannot be convicted under [SECTION] vicariously with the aid of [SECTION], [ACT] At the most each accused could be held responsible for his own act individually. Learned counsel for the appellants relied on various case law including [PRECEDENT], [PRECEDENT], [PRECEDENT] [PRECEDENT] (sic), [PRECEDENT], [PRECEDENT]. [PRECEDENT] and Division Bench cases of this Court [PRECEDENT], [PRECEDENT]
11. Before adverting to the submission advanced on behalf of the appellants and applicability of the case law referred by their counsel, we would like to examine the evidence on record.
12. [ENTITY] informant P.W. 1 narrated the whole episode in detail. He deposed that there is a Gautam Junior High Court Titra, Khalilpur which was started in 1966 and [ENTITY], [ENTITY] and [ENTITY] were members of the Managing Committee of this school. [ENTITY] was Manager while [ENTITY] was Chairman and [ENTITY] was Manager. [ENTITY] is elder brother of [ENTITY] P. W. 9. The election of the Managing Committee was held in 1973, in which [ENTITY] was elected as Manager. [ENTITY] and [ENTITY] were removed from their posts. [ENTITY] and [ENTITY] started another Gautam Junior High School in the village. The old school had 20 bighas of land which does exist today also. [ENTITY] and, [ENTITY] wanted to take the possession of the land of the school after the new school started. The witness had gone in search of she-buffalo which was missing previous day. He reached towards Naria searching for the buffalo in the har (sic) of village Byona Manthara. He met [ENTITY], who was ploughing the land of the school. [ENTITY] came there to serve the break fast to the ploughman. The witness went with [ENTITY] after serving the breakfast towards the village and when he reached near the Byora minor he saw [ENTITY], [ENTITY], [ENTITY] armed with country made pistols, [ENTITY], [ENTITY] and [ENTITY] were armed with guns, [ENTITY], [ENTITY] holding lathis coming near the electric pole. It was 11.00 a.m. [ENTITY] and [ENTITY] asked [ENTITY] as to why he was getting the land of the school ploughed. [ENTITY] replied that it was the land of old school, of which [ENTITY] his brother was Manager. Who were they to interrupt, thereupon [ENTITY] exhorted to assault and told him as to they were. [ENTITY] went towards southern patri after crossing the [ENTITY]. The witness also apprehended danger and reached towards bridge of Birauna minor. The hot words were exchanged between [ENTITY] and [ENTITY]. [ENTITY] told as to why he was running and [ENTITY] fired a shot towards [ENTITY] which hit on his chest. After receiving injuries [ENTITY] fell down in the canal. [ENTITY], [ENTITY] jumped into the water of the canal with their lathis and assaulted him. [ENTITY] was grazing his sheep towards southeren side of the [ENTITY] and [ENTITY] was also grazing his cattle there. [ENTITY] and [ENTITY] were returning from the western side. When they reached the field of [ENTITY], [ENTITY], [ENTITY] and [ENTITY] who, were coming from the village side, also reached there. [ENTITY] and the witnesses raised alarm, on which [ENTITY] came forward to rescue [ENTITY]. On exhortation of [ENTITY], [ENTITY] fired a shot, which hit [ENTITY], who took a turn and went towards Souht-West and fell down. [ENTITY] P.W. 3 also went towards them. [ENTITY] fired a shot with his country made pistol towards [ENTITY] who after receiving gunshot injuries returned and after taking some steps sat down in the field of [ENTITY]. Then [ENTITY] went to rescue' [ENTITY]. [ENTITY] fired a shot with his gun which hit [ENTITY]. He also after sustaining injuries sat in the field. [ENTITY] and [ENTITY] advanced to rescue them. Then [ENTITY] fired a shot which hit [ENTITY] and [ENTITY]. They also after sustaining injuries sat down there. The accused persons went towards the village. [ENTITY] and [ENTITY] after assaulting [ENTITY] joined their companions. The witnesses found [ENTITY] alive in the [ENTITY] and he was taken near [ENTITY], who was also alive but was crying in pain. He sustained injuries on his chest. [ENTITY] bandaged the injury of [ENTITY] with a piece of [ENTITY]. The informant and other witnesses took the injured persons in the shed of mango tree, which is near the old school. [ENTITY] and [ENTITY] also reached there. [ENTITY] was taken to Hospital Khonch, which is at a distance of 7 miles, on a bullock cart. He succumbed to his injuries when he was being lifted in the hospital. He left [ENTITY] in the care of his uncle [ENTITY]. He took a piece of paper from the shop and wrote down a report. He went to police station and lodged an F.I.R. During the cross-examination he located the place of occurrence at a distance of about 3 furlongs from the old school. In the present case [ENTITY] P.W. 3, [ENTITY] P.W. 4, [ENTITY] P.W. 9 are injured witnesses. Their presence cannot be doubted i n any manner and they have corroborated the testimony of the informant in toto. Learned counsel for the appellants could not point out any thing from their lengthy cross- examination to discredit the testimony of the witnesses.
13. All the witnesses have consistently deposed that the accused persons having armed with guns, country made pistols and lathis were going from the village side towards the place of occurence. In the way [ENTITY] and informant met, all the 8 accused persons who were armed with deadly weapons and had formed an unlawful assembly, were going either to dispossess or to restrain the persons ploughing the field of the school with the intention that whosoever would intervene, they will kill him and they fired shots one after the other. First of all, [ENTITY] was injured. On the exhortation of [ENTITY], [ENTITY] fired a shot which hit on the chest of [ENTITY]. 89 Gun shot wounds were found. When he fell down in the water of [ENTITY], [ENTITY] and [ENTITY] assaulted him with lathis when he was dying as a result of fire arm injuries. [ENTITY], [ENTITY] and [ENTITY], [ENTITY] came forward to rescue him. [ENTITY] fired a shot on the exhortation of [ENTITY] which hit [ENTITY] and when [ENTITY] tried to rescue him, he was also shot down by [ENTITY]. [ENTITY] shot down [ENTITY] and [ENTITY] shot down [ENTITY] and [ENTITY]. The evidence of the witnesses is consistent through- out on the point of forming of unlawful assembly and firing by accused persons and assault by [ENTITY] and [ENTITY]. We are unable to find any inconsistency in the testimony of the witness. The learned defence counsel drew attention of the Court to a previous statement so-called dying declaration of [ENTITY] which was recorded by Tahsildar, Magistrate II Class in which [ENTITY] was said to have been armed with Panchphera which he fired. He also involved one more person namely [ENTITY] in firing shots on the injured persons. The witness, when confronted with his dying declaration, stated that he was unconscious at the time of recording of such statement. He had no knowledge as to whether any statement was recorded by the Magistrate. Even if it is assumed that the witness stated some thing before the Magistrate in the so-called dying declaration, that is only a previous statement. We are unable to discredit the testimony of the witnesses only on the basis of the so-called dying declaration of [ENTITY]. It is possible that in painful condition something might have been stated and due to pain he could not understand, what he was stating before the Tahsildar. That is only a previous statement which cannot be a substantive piece of evidence. The gun of [ENTITY] which was allegedly used in the commission of the crime by [ENTITY] was taken into custody by the police with the belt of cartridges in the presence of [ENTITY] P.W. 12. The gun along with the fired cartridges recovered from the place of occurrence by the Investigating Officer were sent to the Ballistic Expert. P.W. 14 [ENTITY]. Ballistic Expert, deposed that two cartridges out of 5 cartridges recovered from the spot by the Investigating Officer were fired from both barrels of the gun of [ENTITY]. It means besides gun of [ENTITY] other firearms were also used in the commission of the crime. It has strengthened the prosecution story regarding use of various fire arms by the accused persons in the incident.
14. Now we revert to consider the submission of the learned counsel for the appellants. We have thoroughly examined the facts and circumstances of the cases referred to above but the facts and circumstances of those cases are entirely different and none of them applies to the facts and circumstances of the present case. In the present case it has to be seen whether [SECTION], [ACT] is applicable in connection with the murder committed. We found a case [ENTITY] v. State of U.P. reported in AIR 1959 SC 572 : 1959 All LJ 408 the facts and circumstances of which more or less are identical to those of the present case, wherein the common object was to dispossess the complainant at any cost. The accused of that case [ENTITY] armed with country made pistol, [ENTITY] with spear and other three with lathis reached the plot in dispute, started upturning and cutting the crop, when [ENTITY], [ENTITY] along with some other persons reached and asked why they were doing so, some altercation took place. On the exhortation of [ENTITY], [ENTITY] took out the pistal and fired hitting [ENTITY] who succumbed to gun shot injuries sustained by him within half an hour. No injury was caused by [ENTITY] or any other person. Even then all the accused except [ENTITY] whose sentence of death was confirmed, were held guilty of murder with the aid of [SECTION], [ACT] In the present case six accused well equipped with firarms i.e. guns and country made pistols while two with lathis and forming an unlawful assembly started for the plot in dispute which was being ploughed by Halke ploughman of [ENTITY], brother of [ENTITY] injured witness. They found [ENTITY] in way and as asked to why the complainant party was cultivating the plot of the school whereupon some altercation took place and they resorted to fire causing injuries one after the other on the persons whosoever came to rescue [ENTITY]. 6 persons sustained injuries out of them one died in the hospital when he was lifted there. The accused holding lathis also inflicted lathi injuries on one of the injured who had already sustained gun shot injuries. All the accused came with preplan, premeditation armed with deadly firearms with the common object to dispossess [ENTITY] at any cost and in prosecution of their common object they committed offence of murder. As such each of accused is guilty of murder with the aid of [SECTION], [ACT] The relevant portion of the case [ENTITY] (supra) as follows at Page 413; of All LJ:-
Both the Court below have found that the Pistol was fired by [ENTITY] and thus he was responsible for causing death of [ENTITY] which would be murder and also there is no doubt that [ENTITY] would be guilty of abetment of that offence. But the question is whether [SECTION], [ACT] is applicable in this case and would cover the case of all the respondents ? This has to be concluded from the weapons carried and conduct of the appellants. Two of them were armed - one with spear and the other with a pistol. The rest were armed with lathis. The evidence is that when the complainants' party objected to what the appellants did, they all collected together and used threats towards the complainants, party telling them to go away otherwise they would be finished and this evidence was accepted by the High Court. From this conduct it appears that members of the unlawful assembly were prepared to take forcible possession at any cost and the members must be held to be immediately connected with the common object and therefore the case falls under [SECTION], [ACT] and they are all guilty of murder. That evidence of [ENTITY] and [ENTITY] which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of murder was likely to be committed to accomplish the common object of forcible possession.
15. In the case of [ENTITY] v. State of U.P. reported in AIR 1974 SC 1564 : 1974 Cri LJ 1029 the Apex Court has laid down a Rule of law that the common object of the unlawful assembly might be only beating but subsequently in pursuance of common object if any member of the assembly committed murder, every member thereof would be guilty of the offence of murder with the aid of [SECTION], [ACT] The relevant portion of the case [ENTITY] (supra) is reproduced in the following lines at Page 1567; of AIR [SECTION], [ACT] constitutes per se a substantive offence although the punishment is under the Section to which it is tagged being committed by the principal offender in the unlawful assembly known or unknown. Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well knit with what followed as the dangerous finale of, call it, the beating. This is not a case where some thing foreign or unknown to the object has been placed all of a sudden. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused. (See also [PRECEDENT].
16. We cannot lose sight that each case is decided on the basis of its own facts and circumstances. The inference is drawn from the various factors including the circumstances in which the murder was committed, the circumstances leading to the common intention of the unlawful assembly, the arms and weapons used, the injuries found on the person of the deceased or any other injured person, as in the case of [PRECEDENT] the Supreme Court held as under :-
Common object of the unlawful assembly can be gathered from the nature of assembly, arms used by them and the behaviour of assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.
17. The scope and ambit of unlawful assembly and common object has been described by the Supreme Court in the case [ENTITY] (supra) as under:-
[SECTION] provides that if any 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 the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence. As has been defined in [SECTION], [ACT] an assembly of five or more persons is designated an "Unlawful Assembly" if the common object of the persons comprising that assembly is to do an act or acts stated in [SECTION] of that Section. An assembly, as the explanation to the Section says, which was not unlawful assembly when it assembled, may subsequently become an unlawful assembly. Whosoever 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 unlawful assembly. Thus, whenever as many as five or more persons meet together to support each other, even against possession, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension or violence, then even though they ultimately depart without doing any thing whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence The two essentials of Section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of common object of that assembly knew to be likely to be committed not every person is necessarily guilty, but only those who share in common object. The common object of the assembly must be one of the five objects mentioned in [SECTION], [ACT]
18. [PRECEDENT], the Supreme Court maintaining the rule of law preponderate in the case of [ENTITY] held as under :-
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]. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witness and had joined the assembly as a matter of idle curiosity without intending to entertain the commom object of the assembly it would not be correct to say that before a person is held to be a member of unlawful assembly, it must be shown that he had committed some illegal over tact or had been guilty of some illegal omission in pursuance of common object of the assembly. In fact [SECTION] 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 members of that assembly knew to be likely to be committed in prosecution of that object, every persons who at the time of 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] is in a sense vicarious and does not always provide on the basis that offence has been actually committed by every member of an unlawful assembly.
19. In case [PRECEDENT], the Supreme Court has not approved principle laid down in the case of [PRECEDENT] wherein it was laid down that it was necessary to establish that some illegal overt act or some illegal omissions in pursuance of the common object of the assembly had been committed to bring the case under [SECTION] [ACT] which is under :-
It is in that context that the observations made by this Court in the case of [PRECEDENT] assume significance; otherwise in law, it would not be correct to say 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 common object of the assembly. In fact [SECTION] 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 members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence and emphatically brings out the principle that punishment prescribed by [SECTION] is in a sense vicarious does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Once the case of a person falls within the ingredients of section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did nothing with his own hands committed the offence committed in prosecution of common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Every one must be taken to have intended the probable and natural results of the combination of the acts in which he joins. It is necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled together, armed with lathis and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused.
20. From the propositions of law laid down by the Apex Court in the latest cases stated above, it is clear that if any person joins an unlawful assembly, the prosecution is not obliged to prove his overt act and he can be vicariously liable for the punishment of the offence with the aid of [SECTION] [ACT]. If a person is only silent spectator he would not be a member of the unlawful assembly or he ceases to be a member of the unlawful assembly before the actual commission of the offence would not be liable vicariously with the aid or [SECTION], [ACT] though overt act or ommission is not necessary for bringing him in the ambit of [SECTION].
21. In the present case, all the accused except [ENTITY] formed an unlawful assembly with the object to commit mischief or to take or obtain possession of the property of the old school and to deprive of [ENTITY], brother of [ENTITY] injured, which falls under [SECTION] [ACT]. All the 8 persons (out of them two armed with lathis) armed with fire arms were going from the village to the place of occurrence. In the way when they found [ENTITY], brother of [ENTITY], and informant, they asked the informant and [ENTITY] as to why they were cultivating the land of the school. The hot words were exchanged and they resorted to firing. Firstly, [ENTITY] fired shot on [ENTITY] who sustained gunshot injuries and fell down in the water channel. Then [ENTITY] and [ENTITY] Assaulted [ENTITY] (who was dying as a result of the injuries) with lathis, [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] went to rescue him. [ENTITY] on the exhortation of [ENTITY], fired shot on [ENTITY]. [ENTITY] fired shot on [ENTITY]. [ENTITY] also fired shot on [ENTITY], [ENTITY] fired shot on [ENTITY] and [ENTITY] and as a result of firing by the accused persons, six persons sustained injuries. Out of them [ENTITY] died. The conduct, arms and the facts and circumstances of the case lead to the only inference that they were members of an unlawful assembly in pursuance of the common object, as specified in [SECTION], [ACT]., resorted to firing and [ENTITY] and [ENTITY] assaulted with lathis a dying person and committed the offence. No doubt [ENTITY] is said to have exhorted [ENTITY] to fire shot and he did not actually fire shot but in the back ground of the facts that he was one of the main persons for taking the possession over the land of the school and dispossessing [ENTITY], he was armed with a gun at the time of incident and also exhorted his companion [ENTITY] to fire shots, his act falls within the mischief under [SECTION], [ACT].
22. So far as [ENTITY] accused is concerned, no doubt the prosecution has examined [ENTITY] P.W. 12, who deposed that [ENTITY] handed over his licensed gun with the belt of cartridges to his own son [ENTITY] saying that the quarrel is not done with the lathi and to go with the gun, which will be used on what day. But we are not convinced that a father would hand over a gun to his son for firing shots or to injure the complainant party with his gun. If son had intended to join the unlawful assembly, he could have taken away the gun of his father even without consent of his father and [ENTITY] did nothing in the commission of the offence except to handover a gun and cartridges to his son for committing offence, particularly, when the witness admitted in his statement that he did not inform or tell the informant of handing over of gun to his son by [ENTITY]. He disclosed this fact for the first time on the next day to the I. O. only. It is also admitted that [ENTITY], who died as a result of the injuries caused in the incident, was his nephew. We do not find the testimony of [ENTITY] to be reliable regarding participation of [ENTITY] in the crime and as such he is entitled to the benefit of doubt.
23. On the discussions above, the appeal of [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] fails and is hereby dismissed. The conviction and sentence awarded by the Court below is affirmed. They are on bail. They shall be taken into custody to serve out their sentences.
24. The appeal of [ENTITY] succeeds and is allowed. His conviction and sentence awarded by the Court below are set aside. He is acquitted of the charges levelled against him. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.