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12. Once all the above elements of Section 149 IPC is satisfied, all members of unlawful Page No.# 6/22 assembly can be held constructively liable for the culpable act done by any of the members of the assembly, irrespective of the individual participation or irrespective of whether there is any proof of overt act of each member of the assembly. Therefore, the basis of constructive guilt under Section 149 IPC is the membership of the unlawful assembly with the requisite common object or knowledge and not the individual overt act. Whether a person is the member of the unlawful assembly or he shared the common object with the other members of the unlawful assembly or he had the requisite knowledge, has to be determined on the basis of facts and circumstances of each individual case. There cannot be a straight jacket formula to arrive at a conclusion, as to the membership of the unlawful assembly or sharing the requisite common object or knowledge. In case of a mob attack or where a large number of persons are involved, quite often it is found, that some people gathers at the scene of offence out of curiosity, in order to see as to what has happened or what was going to happen without being a member of the unlawful assembly or sharing any common object. Therefore, in case of a mob attack involving a large number of persons, or in a faction ridden village community, the court is obliged to be extra cautious, to ensure that no innocent bystander is falsely implicated. Absence of such cautiousness and alertness may result in conviction of an undeserving or innocent person, leading to miscarriage of justice.

13. The Apex Court in Pandurang Chandrakant Mhatre & Ors.-VS- State of Maharashtra(supra) extensively dealing with the standard of evidence required, for punishing a person with the aid of Section 149 IPC, in case of mob attack or where a large number of people are involved, quoted various earlier decisions with approval and held in para 66, 67, 68 and 69 as under :-

"66. In Masalti v. State of U.P., this Court exposited : (AIR pp. 210-11 g para 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 objects 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 Page No.# 7/22 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."

16. There is no gain saying, that the basic principle of constructive liability u/s 149 IPC is the membership of the unlawful assembly with the common object and the requisite knowledge. Once the membership with the requisite common object and knowledge is established, it is not necessary to prove the individual overt act of a particular member. What is important to note is that before punishing a person attributing constructive criminal liability, court must be sure that such person is the member of the unlawful assembly and he shared the common object of the assembly or he had the knowledge that a particular offence is likely to be committed in prosecution of the common object. In order to ascertain, as to whether a person was a member of the unlawful assembly with common object or requisite knowledge, the court must have some evidence before it. Mere presence of a person at the place of occurrence, in certain peculiar circumstances may not be sufficient to hold a person to be a Page No.# 9/22 member of the assembly. For example, when the attack is actuated by old grudge or animosity by the rival group and large number of person are involved in committing the offence. Therefore, what is important to note is that the principle laid down in the above cited decision by the Apex Court do not dilute the basic tenet of constructive criminal liability, rather, embodied a rule of caution. In the present case evidently there was a mob attack and a large number of persons were sought to be implicated, and as such, prudence demands adherence to rule of caution, while attributing guilt on the basis of constructive liability with the aid of Section 149 IPC. Keeping in view the above principle and caution, let us now scan the evidence brought on record.

29. We have scanned the evidence thoroughly and in our assessment of the evidence we have noticed, that there were some embellishment and embroidery in the oral testimony of the prosecution witnesses. We have also noticed in the evidence of PW 15 and the oral testimony of the prosecution witnesses, that there were some omissions in the previous statement recorded u/s 161 Cr.P.C. as well as 164 Cr.P.C. Evidently there was a mob attack and a large number of persons brutally attacked the victim and killed him. Apparently the evidence was recorded after about 10 years of the occurrence and therefore, invariably some omissions and discrepancies were bound to occur, because of fading of memory, due to efflux of time, individual perception, observation of facts etc. Therefore, the discrepancies and contradictions which are natural and insignificant and does not go to the root of the prosecution case or the contradictions which are not material, do not impair the overall testimony of the witnesses. While appreciating the evidence, one is required to bear in mind the peculiar fact situation and the environment, in which, the occurrence took place. We are also aware, that in case of an offence of the present nature actuated by previous animosity, where a large number of persons are involved, the likelihood of the witnesses, more particularly who are closely related to the victim and interested, trying to rope as many persons as possible, belonging to the other group or their relatives out of grudge, cannot be ruled out. The tendency of the witness more particularly the relatives of the victim to make exaggerated or embroidered statement, out of anxiety to ensure maximum punishment or at least to ensure that the perpetrators of the offence do not get any hole to escape punishment is also quite natural, and therefore, exaggeration, per se, does not render the evidence discredited.