SHAJI AND ORS.versusSTATE OF KERALA

                        [2011) 6 S.C.R. 210


A                         SHAJI AND ORS.
                                  v.
                         STATE OF KERALA
                 (Criminal Appeal No. 1618 of 2005)
                             MAY 3, 2011
 B
           [P. SATHASIVAM AND H.L. GOKHALE, JJ.]

         Penal Code, 1860:

 c        s. 302 rlw s. 149 - Murder - Common object - Unlawful
    assembly armed with deadly weapons - Six accused - A-1
    inflicted three cut injuries on head of victim-deceased with a
~   chopper - A-5 and A-6 acquitted - Other four accused (A-1
    to A-4) convicted - They filed appeals before Supreme Court
  0 - Appeal as regards A-1 dismissed as not pressed - Whether
    prosecution established the conviction of A-2 to A-4 under
    s.302 rlw s.149 - Held, No - All the eye-witnesses identified
    and attributed only A-1 for commission of offence and made
    no reference to the role of the other accused - Even the
  E Investigation Officer did not mention anything about the role
    of the other accused except A-1 - Inasmuch as s. 149 creates
    a specific offence and deals with punishment of that offence,
    in order to convict a person or persons with the aid of s. 149,
    a clear finding regarding common object of the assembly
    must be available and the evidence discussed must show not
  F only the nature of the common object but also that the object
    was unlawful - In the case on hand, these ingredients were
    not fulfilled or established by the prosecution insofar as the
    accused other than A-1 - Mere fact that they were armed not
    sufficient to prove common object - Even the Doctor opined
  G that the injury sustained on the head of victim-deceased was
    sufficient to cause death in the ordinary course of nature -
     The Head injury was caused by A-1 which is also clear from
    the evidence of the PWs - In view of the same, the trial Court

 H                               210
                                                               ,.

       SHAJI AND ORS. v. STATE OF KERALA                     211

and the High Court erred in convicting A-2 to A-4 under s.302 . A
with the aid of s. 149 - Their conviction and sentence set aside.

      s. 149 - Murder - Unlawful assembly - S/x accused ..:.
Two acquitted - Conviction of the other four accused with aid
of s. 149 - Scope - Whether in order to bring home a charge
under s. 149 it is nec~ssary that five or more persons must
                                                                    8
necessarily be brought before the court and convicted - Held,
No - Constitution Bench decision in· Mohan Singh's case
followed - On facts, prosecution well within its jurisdiction to
establish the charge under s.149 even after acquittal of two
members of the unlawful assembly.                                   C

    s. 149 - Applicability of - Held: In order to attract s. 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         o
to be committed in prosecution of the common object.

     According to the prosecution, the accused persons
formed themselves into an unlawful assembly and came
in a van armed with deadly weapons with the common
object of doing away with PW-1 's cousin brother; that all          E
the accused persons attacked him and finally, A-1
inflicted three cut injuries on his head with a chopper;
that at the time of occurrence, PW-1 and PW-2 were also
present there and that PW-1 along with PW-5, who came
there, took the victim to the nearest hospital where he             F
was declared brought dead.

    The trial court held A-1 to A-4 guilty of the offences
punishable under Sections 143, 147, 148, 342, 449 and
302 read with Section 149 of IPC and sentenced them to              G
undergo rigorous imprisonment for six months under
Section 143, for one year under Section 148, for another
term of six months under Section 342, again for two
years under Section 449 and to undergo life
imprisonment under Section 302 read with Section 149                H
    212      SUPREME COURT REPORTS            [2011) 6 S.C.R.


A IPC and acquitted Accused Nos. 5 & 6. No separate
  sentence was awarded under Section 147 IPC.
  Challenging the judgment of the trial court, accused Nos.
  1-4 filed criminal appeal before the High Court. The High
  Court dismissed the appeal and confirmed their
8 conviction and sentence.
        Aggrieved, A-1 to A-4 (the appellants) preferred the
    instant appeal. However, in view of the order of the State
    Government for pre-mature release of A-1/appellant No.1,
    the appeal as regards A-1 was not pressed.
c
       The conviction of A-2 to A-4/ appellant nos. 2 to 4 was
  challenged on the ground that the trial Court and the High
  Court committed error in convicting them under Section
  302 by applying the provision of Section 149 IPC
o particularly, when there was no material in the evidence
  of PWs 1, 2 and 5. It was contended that out of six
  persons charge-sheeted, two were acquitted by the trial
  Court and the assembly must be deemed to have been
  composed of only four persons, hence it cannot be
E regarded as an unlawful assembly in terms of Section 141
  IPC.

          Disposing the appeal, the Court
      HELD:1. The appeal insofar as A-1/appellant No.1
F was concerned is dismissed as not pressed in view of
  the order of premature release by the State Government.
  [Paras 13, 15] [223-A-B; 224-D-E]
       2. As regards the challenge to the conviction of the
G other accused (A-2 to A-4/ appellant nos. 2 to 4), it is true
  that out of six named persons, two were acquitted by the
  trial Court and only four were convicted under Section
  302 read with Section 149 IPC. However, in the
  Constitution Bench decision in Mohan Singh's case, it
H
       SHAJI AND ORS. v. STATE OF KERALA               213


  has been held that if five or more persons are named in A
. the charge as composing an unlawful assembly and
  evidence adduced by the prosecution proves that charge ·
  against all of them, that is a very clear case where Section
  149 can be invoked. It is, however, not necessary that five
  or more persons must be convicted before a charge B
  under Section 149 can be successfully brought home to
  any members of the unlawful assembly. It may be that
  less than five persons may be charged and convicted
  under Section 302/149 if the charge is that the persons
  before the Court along with others named constituted an c
  unlawful assembly; the other persons so named may not
  be available for trial along with their companions for the
  reason, for instance, that they have absconded. In such
  a case, the fact that less than five persons are before the
  Court does not make Section 149 inapplicable for the 0
  simple reason that both the charge and the evidence seek
  to pr.Qve that the persons before the Court and others
  number more than five in all and as such, they together
  constitute an unlawful assembly. Therefore, in order to
  bring home a charge under Section 149 it is not E
  necessary that five or more persons must necessarily be
  brought before the court and convicted. In view of the
  said decision in Mohan Singh's case, in the case on hand,
  even after acquittal of two accused from all the charges
  leveled against them, if there is any material that they
  were members of the unlawful assembly, the conviction F
  under Section 302 can be based with the aid of Section
  149. [Paras 6, 7, 8) [218-H; 219-A-B; 220-A-H; 221-A]
     Mohan Singh & Anr. vs. State of Punjab AIR 1963 SC
 174: 1962 Suppl. SCR 848 .- followed.                        G
      3. Though the prosecution is well within its
 jurisdiction to establish the charge under Section 149 IPC
 even after acquittal of two members of the unlawful
 assembly, however, in order to attract Section 149 IPC, it   H
    214     SUPREME COURT REPORTS           (2011) 6 S.C.R.

A 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. In the case on hand, admittedly the prosecution
B rests on the evidence of PWs 1, 2 and 5 who alleged to
  have witnessed the occurrence. PW-1, in his evidence,
  though mentioned that he !<nows all the six accused
  persons and identified them in the Court, has not
  attributed to any of the accused other than A-1. In
c categorical terms, he informed the Court that "A-1 cut the
  head of the deceased by the chopper (M01 )". He also
  deposed that the incident had completed within ten
  minutes. Though he deposed that he told about the
  incident to one 'A', the owner of the mill, that A-1 and
  others attacked the deceased, 'A' was not examined. Like
0
  PW-1, PW-2 also attributed only against A-1, who was in
  possession of a chopper. Though she mentioned that A-
  4 was carrying iron rod, she had not elaborated anything
  about the role of others except A-1. In the same way, the
E other eye witness, PW-5 identified and attributed only A-
  1 for the commission of offence. Absolutely, there is no
  reference to the role of other accused. Even the
  Investigation Officer examined as PW-14 had not
  mentioned anything about the role of other accused
  except A-1. In fact, in cross-examination, he had admitted
F that "PW-1 had not given statement specifically that A-2
  beat the deceased by Iron rod". None of these witnesses
  attributed involvement of other accused except A-1.
  Before convicting accused with the aid of Section 149
  IPC, the Court must give clear finding regarding nature
G of common object and that the object was unlawful. In the
  absence of such a 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.
  Inasmuch as Section 149 creates a specific offence and
H
      SHAJI AND ORS. v. STATE OF KERALA                215

deals with punishment of that offence, in order to convict     A
a person or persons with the aid of Section 149 IPC, a
clear finding regarding common object of the assembly
must be available and the evidence discussed must
show not only the nature of the common object but also
that the object was unlawful. In the case on hand, these       e
ingredients were not fulfilled or established by the
prosecution insofar as the accused other than A-1. [Para
13] [222-E-H; 223-A-H; 224-A-B]

    Ku/dip Yadav & Ors. vs. State of Bihar JT 2011 (4) SC
436; Bhudeo Manda/ & Ors. vs. State of Bihar (1981) 2 SCC C
755: 1981 (3) SCR 291; Ranbir Yadav vs. State of Bihar
(1995) 4 SCC 392: 1995 (2) SCR 826; Al/auddin Mian & Ors.
Sharif Mian & Anr. vs. State of Bihar (1989) 3 SCC 5: 1989
(2) SCR 498; Rajendra Shantaram Todankar vs. State of
Maharashtra & Ors. (2003) 2 SCC 257: 2003 (1) SCR 10 and D
State of Punjab vs. Sanjiv Kumar @ Sanju & Ors. (2007) 9
sec 791: 2~07 (7) SCR 1025 - relied on.
     4. Even the Doctor who was examined as PW-7
opined that the injury sustained on the head was               E
sufficient to cau.se death in the ordinary course of nature.
It was not in dispute that the Head injury was caused by
A-1 which is also clear from the evidence of PWs. 1, 2 and
5. In view of the same, the trial Court and the High Court
committed an error in convicting the appellants Nos. 2-        F
41 (A-2 to A-4) under Section 302 with the aid of Section
149 IPC. [Para 14) [224-C-D]
                        Case Law Reference:
    1962 Suppl. SCR 848 followed.                 Para 7       G
                    '
    JT 2011 (4) SC 436         relied on          Para 11
     1981 (3) SCR 291          relied on.         Para 11
     1995 (2) SCR 826          relied ·on         Para 11
                                                               H
     216       SUPREME COURT REPORTS            [2011] 6 S.C.R.


A          1989 (2) SCR 498        relied on            Para 11
           2003 (1) SCR 10         relied on            Para 11
           2007 (7) SCR 1026       relied on            Para 11
B       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 1618 of 2005.

        From the Judgment & Order dated 8.4.2005 of the High
    Court of Kerala at Ernakulam in Crl. No. 952 of 2004.

c      T.N. Singh, Vikas K. Singh, Vikram Singh for the
    Appellants

         T.S.R. Venkata Ramana, R. Sathish, S. Geetha for the
    · Respondent.

D          The Judgment of the Court was delivered by

       P. SATHASIVAM, J.1. This appeal is filed against the final
  judgment and order dated 08,04.2005 passed by the Division
  Bench of the High Court of Kerala at Ernakulam in Criminal
E Appeal No. 952 of 2004 whereby the High Court dismissed the
  appeal of the appellants herein and confirmed their conviction
  and sentence under Sections 143, 147, 148, 342, 449 and 302
  read with Section 149 of Indian Penal Code (hereinafter
  referred to as "IPC") passed by the trial Court.

F          2. Brief facts:
        (a) The victim, Usman @ Haneefa, aged about 24 years
  is the brother of Yasin (PW-4) and cousin brother of Mohd. Rafi
  (PW-1), the first informant. One Nasar (CW-15) was running
G Kodakassery Oil Mill at Mannambatta during the relevant
  period. The Oil Mill belonged to Appachan (CW-14) which was
  taken on rent by Nasar (CW-15). The victim is the brother's son
  of Nasar and was also a worker and helper in the Oil Mill. There
  was enmity between Shaji (A-1), first appellant herein and the
H victim. Devarajan (A-2) and Haridas (A-3) are the brothers of
      . SHAJI AND ORS. v. STATE OF KERALA                     217
                [P. SATHASIVAM, J.]
A-1 and Kannan@ Gopalakrishnan (A-4) is the brother-in-law           A
of A-1.

      (b) On 31.12.2000, at about 3 p.m., the accused persons
(Shaji, Devarajan, Haridas, Kannan @ Gopalakrishnan, Latheef
and Unnikrishnan) formed themselves into an unlaWful assembly
                                                                     8
came in a van armed with deadly weapons such as chopper,
iron bars, iron pipe, wooden sticks etc. with the common object
of doing away with Usman, who was sitting in the Verandah of
the smoke house of the Oil Mill at Mannambatta. All the
accused persons attacked him and finally, A-1 inflicted three
cut injuries on his head with a chopper. Thereafter, they left the   C
place of occurrence in the Van in which they came. At the time
of occurrence, Mohd. Rafi (PW-1) and Geetha (PW-2), a worker
in the Oil Mill were also present there. Mohd. Rafi (PW-1) along
with Baby (PW-5), who came there, took Usman @ Haneefa
to the nearest hospital where he was declared brought dead.          D
At 6.00 p.m., PW-1 furnished his statement before the police
and thereafter, the police registered a crime against Shaji and
five other unnamed persons. During the investigation, the
identities of other accused persons were also revealed. After
the completion of investigation, the Circle Inspector of Police,     E
Cherpulassery filed the charge-sheet against all the six accused
persons before the Court.

     (c) The Additional Sessions Judge, Palakkad, after
examining, 17 witnesses and other relevant materials passed          F
an order dated 08.06.2004 and held A-1 to A-4 guilty of the
offences punishable under Sections 143, 147, 148, 342, 449
and 302 read with Section 149 of IPC and sentenced them to
undergo rigorous imprisonment for six months under Section
143, for one year under Section 148, for another term of six         G
months under Section 342, again for two years under Section
449 and to undergo life imprisonment with fine of Rs.10,000/-
with a default sentence under Section 302 read with Section
149 IPC and acquitted Accused Nos. 5 & 6. No separate
sentence was awarded under Section 147 IPC.
                                                                     H
    218      SUPREME COURT REPORTS               [2011) 6 S.C.R.


A     (d) Challenging the judgment of the Additional Sessions
  Judge, Palakkad, Accused Nos. 1-4 filed Criminal Appeal No.
  952 of 2004. before the High Court of Kerala. The Division
  Bench of the High Court, by impugned order dated 08.04.2005,
  dismissed· the appeal anct,confirmed their conviction and
B sentence passed by the trial Court. Aggrieved by the said
  judgment, the appellants preferred this appeal by way of special
  leave before this Court.
      3. Heard Mr. T.N. Singh, learned counsel for the appellants
C and Mr. T.S.R. Venkata Ramana, learned counsel for the
  respondent-State.
       4. Mr. T.N. Singh, learned counsel appearing for the
  appellants, at the outset, submitted that in view of the order of .
  the State Government releasing Shaji (A-1), Appellant No.1
D herein, by G.O. [MS] No. 47/2011/Home dated 18.02.2011
  before the date of expiry of his life imprisonment by executing
  a bond on the conditions specified therein, he is not pressing
  the appeal ·insofar as A-1 is concerned. The same has been
  taken on record.
E
       5. Now in the present appeal, we are concerned with other
  three accused, namely, Appellant Nos. 2 to 4. Mr. T.N. Singh
  submitted that the trial Court and the High Court committed an
  error in convicting these appellants under Section 302 by
F applying the provision of Section 149 IPC particularly, when
  there was no material in the evidence of PWs 1, 2 and 5. He
  further submitted that out of six persons charge-sheeted, two
  were acquitted by the trial Court and the assembly mu::>t be
  deemed .to have been composed of only four persons, hence
  it cannot be regarded as an unlawful assembly in terms of
G Section 141 IPC.
        6. Insofar as the second submission of the learned counsel
  for the appellants is concerned, it is true that out of six named
  persons, two were acquitted by the trial Court and only four
H were convicted under Section 302 read with Section 149 IPC.
       SHAJI AND ORS. v. STATE OF KERALA                     219
               [P. SATHASIVAM, J.)
     7. On the other hand, Mr. T.S.R. Venkata Ramana, learned        A
counsel appearing for the respondent"State, by drawing our
attention to the judgment of the Constitution Bench in Mohan
Singh & Anr. Vs. State of Punjab, AIR 1963 SC 174, submitted
that even after acquittal of two accused, in order to bring home
the charge under Section 149 IPC, it is not necessary that five      B
or more persons must necessarily be brought before the Court
and convicted. The following principles laid down by the
Constitution Bench are relevant for our consideration:

    "8. The true legal position in regard to the essential
    ingredients of an offence specified by Section 149 are not       C
    in doubt. Section 149 prescribes for vicarious or
    constructive criminal liability for all members of an unlawful
    assembly where an offence is committed by any member
    of such an unlawful assembly in prosecution of the common
    object of that assembly or such as the members of that           D
    assembly knew to be likely to be committed in prosecution
    of that object. It would thus be noticed that one of the
    essential ingredients of Section 149 is that the offence
    must have been committed by any member of an unlawful
    assembly, and Section 141 makes it clear that it is only         E
    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 an essential condition of an unlawful         F
    assembly that its membership must be five or more. The
    argument, therefore, is that as soon as the two Piara
    Singhs were acquitted, the membership of the·assembly
    was reduced from five to three and that made Section 141
    inapplicable which inevitably leads to the result that Section   G
    149 cannot be invoked against the appellants. In our
    opinion, on the facts of this case, this argument has to be
    upheld. We have already observed that the point raised
    by the appellants has to be dealt with on the assumption
    that only five persons were named in the charge as               H
    220        SUPREME COURT REPORTS                  (2011] 6 S.C.R.


A         persons composing the unlawful assembly and evidence
          led in the course of the trial is confined only to the said five
          persons. If that be so, as soon as two of the five named
          persons are acquitted, the assembly must be deemed to
          have been composed of only three persons and that clearly
B         cannot be regarded as an unlawful assembly.

          9. In dealing with the question as to the applicability of
          Section 149 in such cases, 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
c         are named in the charge as composing an unlawful
          assembly and evidence adduced by the prosecution
          proves that charge against all of them, that is a very clear
          case where Section 149 can be invoked. It is, however,
          not necessary that five or more persons must be convicted
D         before a charge under Section 149 can be successful!~
          brought home to any members of the unlawful assembly
          It may be that less than five persons may be charged anc
          convicted under Section 302/149 if the charge is that th·
          persons before the Court along with others name
E         constituted an unlawful assembly; the other persons S•
          named may not be available for trial along with the1
          companions for the reason, for instance, that they havt
          absconded. In such a case, the fact that less than five:
          persons are before the Court does not make Section 149
F         inapplicable for the simple reason that both the charge and
          the evidence seek to prove that the persons before the
          Court and others number more than five in all and as such,
          they together constitute an unlawful assembly. Therefore,
          in order to bring home a charge under Section 149 it is
G         not necessary that five or more persons must necessarily
          be brought before the court and convicted ....... ."
        8. In view of the decision of the Constitution Bench, in the
    case on hand, even after acquittal of two accused from all the
    charges leveled against them, if there is any material that they
H
       SHAJI AND ORS. v. STATE OF KERALA                     221
               [P. SATHASIVAM, J.]

were members of the unlawful assembly, the conviction under          A
Section 302 can be based with the aid of Section 149.

    9. Now let us consider whether the prosecution has
established the conviction of the remaining accused-appellants
under Sections 302/149 IPC?
                                                                     B
     10. In order to understand the rival claims, it is useful to
refer Section 149 IPC which reads as under:

    "149. Every member of unlawful assembly guilty of
    offence committed in prosecution of common object.-lf C
    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 D
    offence, is a member of the same assembly, is guilty of
    that offence."
                                                                ••
     11. While considering the applicability of necessary
ingredients of Section 149 IPC, we had an occasion to consider
the same in Ku/dip Yadav & Ors. vs. State of Bihar, JT 2011          E
(4) SC 436. After analyzing the conditions therein, it was held
in paragraph 26 of the judgment as under:

    "26 The above provision makes it clear that before
    convicting accused with the aid of Section 149 IPC, the          F
    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. Section 149            G
    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
                                                                     H
    222        SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A         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 ............ ."
B
  The above principles have been reiterated in Bhudeo Manda/
  & Ors. vs. State of Bihar (1981) 2 SCC 755, Ranbir Yadav
  vs. State of Bihar (1995) 4 SCC 392, Allauddin Mian & Ors.
  Sharif Mian & Anr. Vs. State of Bihar, (1989) 3 SCC 5,
  Rajendra Shantaram Todankar vs. State of Maharashtra &
C Ors. (2003) 2 SCC 257 and State of Punjab vs. Sanjiv Kumar
  @ Sanju & Ors. (2007) 9 SCC 791.

         12. The following conclusion in Ku/dip Yadav (supra) is
    also relevant which reads as under:
D
                 "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
E
          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
          aw~re of the likelihood of a particular offence being
F         committed in prosecution of the common object, they
          would be liable for the same under Section 149 IPC"

       13. Though as per the decision of the Constitution Bench.
  the prosecution is well within its jurisdiction to establish the
G charge under Section 149 IPC even after the acquittal of two
  members of the unlawful assembly, however, 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
H members as one likely to be committed in prosecution of the
          SHAJI AND ORS. v. STATE OF KERALA                       223
                  [P. SATHASIVAM, J.]
   common object. In the cas&\on' hand, admitte~ly the prosecution        A
   rests on the evidence of PWs 1, 2 and 5 who alleged to have
   witnessed the occurrence. We have already mentioned that we
   are not concerned with A-1 (Appellant No.1 herein) in the
   present appeal in view of the order of premature release by the
   State Government. PW-1, in his evidence, though mentioned              B
   that he knows all the six accused persons and identified them
   in the Court, has not attributed to any of the accused other than
   A-1. In categorical terms, he informed the Court that "A-1 (Shaji)
   cut the head of Usman by the chopper (M01)". He also
   deposed that the incident had completed within ten minutes.            c
   Though he deposed that he told about the incident to one
   Appachan, the owner of the mill, that Shaji and others attacked
   Usman, the said Appachan was not examined. Like ·PW-1,
   PW-2 also attributed only against A-1, who was in possession
· of a chopper. Though she mentioned that A-4 was carrying iron
 . rod, she had not elaborated anything about the role of others          D
· except A-1. In the same way, the other eye witness, PW-5
   identified and attributed only A-1 for the commission of offence.
   Absolutely, there is no reference to the role of other accused.
   Even the Investigation Officer examined as PW-14 had not
   mentioned any thing about the role of other accused except A-          E
   1. In fact, in cross-examination, he had admitted that "PW-1 had
   not given statement specifically that A-2 beat Usman by Iron
   rod". In view of the claim of the learned counsel for the appellants
   about the evidence of PWs 1, 2 and 5, we have carefully
   analysed the same. As rightly submitted by Mr. T.N. Singh, none        F
   of these witnesses attributed involvement of other accused
   except A-1. As observed in Ku/dip Yadav (supra), 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 a finding         G
   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. Inasmuch as Section 149 creates a specific
   offence and deals with punishment of that offence, in order to
                                                                          H
    224       SUPREME COURT REPORTS                 [2011] 6 S.C.R.

A convict a person or persons with the aid of Section 149 IPC, a
  clear finding regarding common object of the assembly must
  be available and the evidence discussed must show not only
  the nature of the common object but also that the object was
  unlawful. In the case on hand, we are satisfied that the above-
s mentioned ingredients have not been fulfilled or established by
  the prosecution insofar as the accused other than A-1.

         14. Even the Doctor who was examined as PW-7 opined
   that the injury sustained on the head is sufficient to cause death
   in the ordinary course of nature. It is not in dispute that the Head
C injury was caused by A-1 which is also clear from the evidence
   of PWs. 1, 2 and 5. In view of the same, we are satisfied that
   the trial Court and the High Court committed an error in
   convicting the present appellants (A-2 to A-4) under Section
   302 with the aid of Section 149 IPC.
D
         15. In view of the above discussion, the appeal insofar as
   Appellant No.1 (A-1) is concerned, is dismissed as not
  ~pressed. Insofar as Appellant Nos. 2-4 (A-2 to A-4) are
   concerned, the conviction and sentence under Sections 302/
E 149 IPC are set aside. Inasmuch as Appellant Nos. 2-4 were
   enlarged on bail by this Court vide order dated 02.11.2007,
   their bail bonds shall stand discharged. The appeal is allowed
   on the above terms.

    8.8.8.                                      Appeal disposed of.