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11. As against this, as the investigation of the offence registered at the instance of P.W.8 Anil Kumar Dokania proceeded, the Investigator taking the aid of alleged dying declration of Parmeshwar Lal Dokania recorded on 28.10.1987 at the Government Hospital Saharsa gave a totally new shape to the prosecution case of hiring the contract killers by accused Ashok Keshri and his father Biswanath Keshri for eliminating Parmeshwar Lal Dokania (since deceased) as well as his sons P.W.7 Arun Kumar Dokania and P.W.8 Anil Kumar Dokania because of their inter se dispute regarding the immovable property. The Investigator, in another version of the prosecution in respect of the very same incident has attempted to show that in prosecution of common object of the unlawful assembly, accused Biswanath Keshri instigated the members of the unlawful assembly, who were armed with pistols, daggers and heavy electric wires to storm in the medical shop of Parmeshwar Lal Dokania for committing his murder. Accused Ashok Keshri was also the member of that unlawful assembly and was present Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021 on the scene of the occurrence when the assailants who were hired by his father accused Biswanath Keshri. In the second version of the incident, the prosecution alleged that members of the unlawful assembly then in prosecution of the common object of that unlawful assembly committed murder of Parmeshwar Lal Dokania by firing bullets at him and also assaulted P.W.7 Arun and P.W.8 Anil by means of sharp edged weapons and heavy electric cables. The members of the unlawful assembly then committed theft of an amount of Rs.8/9 thousand from the cash counter apart from snatching the gold ring of P.W.7 Arun.

12. In the light of these contradictory and inconsistent and mutually exclusive versions of the prosecution case coming on record from the side of the prosecution itself, let us first examine whether the appellant/accused Ashok Kumar Keshri was a member of an unlawful assembly and was sharing common object of the unlawful assembly formed at the instance of his father accused Biswanath Keshri, by hiring the contract killers for eliminating the members of the prosecuting party on account of dispute over landed property. To buttress this version of the prosecution, the prosecution is heavily relying on the evidence of the dying declaration (Ext.1) of Paremeshwar Lal Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021 Dokania, allegedly recorded by P.W.14 Sudist Kumar Singh P.S.I. in presence of P.W.4 Kanhaialal Salampuria and P.W.9 Pramod Kumar Agarwal as well as other persons.

16. Now, let us examine whether it is proved that for murdering the deceased Parmeshwar Lal Dokania, contract killers were hired, unlawful assembly was formed with common object for murdering him and his sons and whether surviving appellant/accused Ashok Kumar Keshri was member of that unlawful assembly, thereby making him vicariously liable for all acts of offence committed by the members of the unlawful assembly. At this juncture, it is necessary to put on record the concept of vicarious liability as envisaged by Section 149 of the Indian Penal Code. It hardly needs to mention that Section 149 IPC does not create separate offence. It creates a constructive or vicarious liability for acts done in prosecution of the common object of that assembly, by all members of unlawful assembly. Vicarious liability envisaged by Section 149 of the IPC extends to rope in every member of such assembly only when:-

" On 20.10.1987 at about 06.30 P.M., in the evening, after having tea at my house as soon as I came at my shop Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021 named Sheo Shakti Medical Agency located at Bangaon Road, Saharsa, I saw Biswanath Keshri (deceased appellant/accused) coming on rickshaw from west direction and proceeding towards the east direction. Upon seeing me, Biswanath Keshri shouted that enemy has come and kill him. Then one person fired a bullet at me and I fell down. That person fired a second bullet at me. I saw inside the shop, some persons were with Anil and Arun but I could not see clearly because I was shocked. As soon as I reached in front of the shop, I saw Ashok Keshri (surviving appellant/accused) was standing in front of the shop near the staircase. Upon being hit by second bullet I became unconscious. I regained consciousness in the evening hours of yesterday. I saw only two persons. Biswanath Keshri (deceased appellant/accused) proceeding from west to east direction and Ashok Keshri (appellant/accused) standing near the staircase in front of the shop. I had no occasion to see what three criminals were doing inside the shop because as soon as I proceeded to go inside the shop from the front portion of the shop, I was hit by bullets. Hence, I had no opportunity to see what three criminals were doing inside the shop. I was having dispute with Biswanath Keshri in respect of the land from 14 to 15 years and I have filed a Title Suit. He hired the contract killers and gave Patna High Court CR. APP (DB) No.69 of 1995 dt.09-12-2021 exhortation to kill me and to injure my sons."