IMPORTANT POINT
Common object of unlawful assembly can be gathered from nature of assembly, arms used and behaviour of assembly at or before scene of occurrence.

JUDGMENT

Sema, J.—This appeal by special leave is preferred by the State of Rajasthan against the order of the High Court dated 11-1-1995 whereby and whereunder the High Court has maintained the conviction of accused Dhulla under Section 302 IPC simpliciter and recorded acquittal of the accused-respondents Nathu s/o Nana, Walji (Balji) S/o Moola, Heera S/o Nana and Dheera S/o Moola, thereby reversing the sentences and convictions recorded by the Trial Court in case No. 90 of 1985 under Section 302 with aid of Section 149 IPC and sentenced them to RI for life. The accused Dhulla is not before us.

2. Two children of Bhima (PW-1) - son-Dinesh aged about four years and daughter-Jeevi aged about seven years, were butchered to death by inflicting axe blows between 12.00 1.00 noon on 26-6-1985. The post mortem shows that the necks of deceased Dinesh and Jeevi were choked and the same were connected with a thin layer of skin. The prosecution story briefly stated is that on 26-6-1985 at about 12.00 - 1.00 noon while the complainant Bhima (PW-1) was sleeping on the cot along with his son Dinesh aged 4 years and his daughter Jeevi aged 7 years who were also sleeping on the palm carpet on the earth near the cot, he heard the noise of persons coming from the backyard of his house. He then got up and saw from the wall, made of wood, the accused persons-Nathu armed with gun; Heera armed with gun; Dheera armed with ‘dhariya’, Balji armed with axe and Dhulla armed with axe and the other persons armed with lathis. Being frightened he ran out of his house and hid himself behind the hut situated in front of his house and started watching from there. The accused persons entered into his house after breaking the wall of wood from the backyard of the house. When he heard his daughter Jeevi’s sound of ‘Aah’, Bhima (PW1) presumed that both the children have been killed and he would also be killed. So he fled from the place towards the house of his father and raised an alarm. Being attracted by his alarm his mother Kanku brother Shankar, Arun etc. reached there. They also saw the accused persons leaving the house. Thereafter, the mother of Bhima went to see the children. She found that both the children have been murdered. There was enmity between the accused persons and Bhima and a quarrel also took place between the complainant and the accused party 7-8 days prior to the incident. The accused were stated to have taken avenge by committing the crime. Thereafter, PW-1 along with his brothers went to the police station Pahara and lodged the FIR (Ext.P-1). Inspector Bakhtawar Singh (PW-15) investigated the case. He also prepared panchnama of dead bodies (Ext. P-2 and P-3) of Dinesh and Jeevi respectively. He also prepared sketch memo of the scene of crime. He also got the post mortem conducted of the deceased Dinesh and Jeevi by Dr. Ramesh Chander Ohri (PW-12), (Ext. P-11 and P-12). The accused were ­arrested vide memo Ext. P-21 to Ext. P-27. The accused Nathu, Heera, Dhulla and Balji gave disclosure statements vide Ext. P-28 to P-32 and pursuant to the disclosure statements lathis of cane were recovered vide Ext. P-11 and P-12. Pursuant to the disclosure statement of accused Nathu, gun was recovered vide (Ext. P-9). Pursuant to the disclosure statement of accused Dhulla and Balji axes were recovered vide Ext. P-8 and P-10. After the completion of the investigation seven accused persons were challaned. Accused Dhulla and Balji were charged under Sections 148, 302 & 414 IPC. Accused Kalu and Jumji were charged sheeted under Sections 148, 302 read with Section 149 IPC. Accused Nathu, Heera and Dheera were charged under Sections 148, 302 read with Section 149 and 454 IPC The accused pleaded not guilty and sought to be tried. The learned trial court framed as many as five issues and after examining the evidence and documents on record found all the issues established against the accused and held the accused Dhulla guilty of offence punishable under Sectio