Judgment Anant Singh, J. 1. The five appellants have first been convicted under Sec.147 of the Indian Penal Code with one years rigorous imprisonment each and then under Sec.325 read with Sec.1.49 I P. C. with five years rigorous imprisonment each. Appellant Banwari has further been convicted under Sec.323 I. P. C. and sentenced to six months rigorous imprisonment. The sentences have been ordered to run concurrently. 2. The date of occurrence, as alleged, was aboui 10 P. M. on 7-6-61 and the place a spot near the Government Dumkhana Building by the side of Patna-Khagaul Road in Varpur within Gardanibagh Police station. A Fard bayan (Ext. 1) of the occurrence was recorded on the statement of Raghunandan (P. W. 5) at 1 P. M. on 9-6-01 in Rajendra Surgical Block of the Patna Medical College Hospital by the officer-in-charge Maheshwari Prasad (P. W 6) of Gardanibagh Police Station. 3. The tacts of the prosecution case, briefly stated are as follows. About 2 months prior to the occurrence, there was some quarrel between the children of Kanhai Bansphor the deceased and appellant Banwari Bansphor when the latter had threatened the deceased with serious consequences. At about 6 P. M. on the date of the occurrence hog of the deceased Kanhai had intruded into the house of appellant Banwari, and this led to some quarrel between appellant Chhabila and Munia (P. VV, 7) the wife of the deceased, and Munia was struck with a hura by appellant Chhabila The matter, however, ended there. The date of occurrence was the pay day tor thy municipal staff of the Municipal Corporation where the deceased had been working Kanhai was out to receive his pay arid returned home at about 10 P. M. At his asking his wife came down from her house and she told him of the assault on her by appellant Chhabila earlier in the evening. Appellants Bamvari, Nagina, Chhabila, Bhagi and Pardeshi and accused Banke who were sitting at the time at the door of Banwari came over near the door of the house of the deceased and they began to utter abuses and assault him with their Lathi and Banke with a Pali. The assaults were made on him at the door of his house, and Kanhai fled and fell at the road, some 4 steps from the stairs of his house. The assaults were made on him at the door of his house, and Kanhai fled and fell at the road, some 4 steps from the stairs of his house. Raghunandan (P. W. 5) had arrived on hearing the hulla, and when he tried to save his brother Kanhai, he was also given two Lathi blows on his head by appellant Banwari and one blow with his Patti by accused Banke. There was great hulla when all the appellants and accused Banke fled away. Kanhai lay unconscious on the road, and an arrangement was being made to carry him to the police station when an Assistant Sub-Inspector of Police Shri Tanuk Prasad Singh (P. W. 10) arrived at about 11 P. M. in connection with Gurdanibagh Sanha No. 216. He found two parties of Doms ready to fight and would not stop in spite of the efforts of P. W. 10, and hence he was obliged to arrest them under Sec.151 Cr. P. C. He found injuries on Kanhai and Raghunandan (P. W 5) as also on appellants Bhagi and Pardeshi. He took them to the Police station and thence sent them to Gardanibagh Hospital, having entered sanha No. 217, but did nothing further in the matter At the Gardanibagh Hospital injuries of the aforesaid 4 persons including 2 of the appellants were examined the same night by a lady Assistant Surgeon, S. Mukherjee (P. W. 1), who is described as the son (sic) of Late Sri S. Mukherjee. Since Kanhai was unconscious, he was sent to the Patna Medical College Hospital at once. The injuries on Raghunandan (P, W. 5) were examined at 3 A.M. He had one lacerated wound in from of left side of the skull 1" x 1" x 1/2", another lacerated wound on right ear 1/2" x 1/2" x1/6" and a bruise 3" x 1/2" on the right side of back below the scapula. The injuries were caused by hard blunt substance like Lathi or Pati, and the age of the injuries was within 6 hours The injuries ot appellants Pardeshi and Bhagi were examined a few minutes earlier. Pardeshi had one lacerated in fury on palmar side of left ring finger, 1" x 1/4" x 1/4" with swelling ancl another lacerated wound on the, palmar side of left little finger 1/2 x 1/4" x 1/4" with swelling. Pardeshi had one lacerated in fury on palmar side of left ring finger, 1" x 1/4" x 1/4" with swelling ancl another lacerated wound on the, palmar side of left little finger 1/2 x 1/4" x 1/4" with swelling. Appellant Bhagi had one lacerated injury 21/2" x 1/2 x skull on the back of head on the right side, a swelling 2" x 1 on the top of the skull and another swell-in, on the back of right palm just below the forefinger, The injuries of both the appellants were simple caused by hard blunt substance like Lathi and their age within 6 hours, 4. It appears that Kanhai, after he was admitted in the Patna Medical college Hospital, during the night of occurrence, expired in the Hospital at 3 a.m. on 9-6-61. A Sub-Inspector of Police of Pirbahore police station visited the Hospital on the same day and held inquest over the dead body of Kanhai. An autopsy was performed by a medical officer of the Police Hospital, Dr. Thakur A.N. Singh (P. W. 4) on the same date. On the dead body, he found 2 external antemortem injuries. One was a diffused swelling on the right parietal region 4" x 4" and the other was another diffused swelling of the right fore-arm middle third inner side. On dissection of the two injuries, fractures were found underneath them. The injuries were caused by hard blunt substance like Lathi and Khatia Pati, Death was due to shock and internal haemorrhage caused by the head injury. 5. It was after information of the death of Kanhai was received by the officer-in-charge of Gardanibagh Police Station, Maheshwari Prasad (P. W. 8) that he had visited the hospital and drawn on the statement of Ragbunandnan (P. W. 5) his Fardbeyan (Ext. 1) on 9-6-61. He also examined and recorded the statements of Raghunandan (P. W. 5) that day, and entrusted the investigation of the case to another sub-inspector Bhola Prasad (P. W. 11), who visited the place of occurrence at 4.45 the same day. It is a pity that he prepared no sketch map of the place of the occurrence. 1) on 9-6-61. He also examined and recorded the statements of Raghunandan (P. W. 5) that day, and entrusted the investigation of the case to another sub-inspector Bhola Prasad (P. W. 11), who visited the place of occurrence at 4.45 the same day. It is a pity that he prepared no sketch map of the place of the occurrence. He examined some witnesses including Munia (P. W. 7) and Firangi (P. W. 3) and a rickshaw puller, Abhiraj (P. W. 2) and, later, he handed over the case on 19-7-61 to the officer-in-charge, S. Dutt, who again handed over charge of the case to another sub-inspector Rajmuni Lal (P. W. 9) who submitted chargesheet against the appellants and accused Banke who was shown as absconding. The appellants were committed to the court G. Session after an enquiry by a Magistrate. The appellants pleaded not guilty to the charges and challenged the manner and genesis of the occurrence. In their statements under Sec.342 Cr. P. C. they denied every thing about the occurrence and their participation in it although it had been suggested to Raghunandan (P. W. 5) that Kanhais party and the party of accused persons ate and drank and committed marpit among themselves, in intoxication but this suggestion was denied by P. W. 5. 6. The learned Additional Sessions Judge believing the prosecution story as substantially correct, convicted the appellants in the manner aforesaid, and they have since filed this appeal. The witnesses deposing to the occurrence are Raghunandan (P. W. 5) Munia (P. W. 7) Firangi (P W. 3) and Abhiraj (P. W. 2), P. W. 5 is brother, P. W. 7 is wife and P. W. 3 is a Samdhi of the deceased Kanhai P. W. 2 is an outsider who is a rickshaw puller. Among the appeHants, Chhabila and Nagina are sons and appellants Pardeshi and Bhagl are Fufera Salas of appellant Banwari. Another accused Banke who has been absconding is Mausera Sala of appellant Banwari. 7. P. Ws. 3, 5 and 7 lived in different flats of the same Domkhana Building. The house of P. W. 5 was about 40 to 50 steps south-east from Kanhais house, both situate on the upper floor. The appellants lived on the around floor. 8. Another accused Banke who has been absconding is Mausera Sala of appellant Banwari. 7. P. Ws. 3, 5 and 7 lived in different flats of the same Domkhana Building. The house of P. W. 5 was about 40 to 50 steps south-east from Kanhais house, both situate on the upper floor. The appellants lived on the around floor. 8. P. W. 7 has given all the details of the whole story from the beginning till its culmination in assualt first on Kanhai and then on Raghunandan. She has attributed assaults with Pati to accused Banke. She further attributed assaults on Raghunandan with Lathi to Banwari and with Pati to Banke. 9. Firangi (P. W. 3) was back home, at some distance east from Kanhais house, when he saw assaults being committed on Kanhai in front of his house by 5 or 6 persons who were the appellants, all armed with Lathi, and Banke who had a Pati. Similarly he said in general terms that all those six persons assaulted Raghunandan also. 10. The evidence of Abhiraj (P. W. 2), the rickshaw puller, is that, while he was going to his house after driving the rickshaw, he had heard hulla and seen two persons assaulting Kanhai with Lathi and some persons standing with Lathis. He identified the two persons assaulting Kanhai as Banke and anpellant Nagina. I shall straightway ignore the evidence of P. W. 2 since his name was not mentioned in the Fardbeyan and his description of the occurrence is also not quite full and he was just a passer-by. 11. Raghunandan (P. W. 5), however, attributed no assault on Kanhai to appellants Nagina, Chhabila and Bhagi. Both in his Fardbeyan and in his evidence, he said that Kanhai was assaulted only by appellants Banwari and Pardeshi and accused Banke, and the other appellants were only indulging in abuses although, they had their Lathis with them. 12. The medical evidence, whieh I have already referred to above, would show that Kanhai had only two injuries with fractures underneath. Therefore, the evidence of P. Ws. 3 and 7 that all the five appellants besides Banke had assaulted Kanhai would appear to be mere exaggeration. Their evidence in this regard is of amoral nature, and I would accept the evidence of P. W. 5 as more accurate in the matter of details, and it finds due corroboration from the medical evidence. 3 and 7 that all the five appellants besides Banke had assaulted Kanhai would appear to be mere exaggeration. Their evidence in this regard is of amoral nature, and I would accept the evidence of P. W. 5 as more accurate in the matter of details, and it finds due corroboration from the medical evidence. As to the place of occurrence, P. Ws, 3, 5 and 7 have all said that the occurrence was started in front of the door of the house of Kanhal where some of the appellants came and started abusing Kanhai. P. W. 7 has clearly stated that, when Banwari and Chhabila held a challenge, her husband also gave some challenge, and that assault began at her door, although Kanhai fell down a little away by the side of the road. The assault must have continued and stopped after a little time. Thus, there is no improbability in the evidence of witnesses that the quarrel ensued at the door of the house of Kanhai and the actual assault was committed on the road where Kanhai must have fled to after being pursued. The fact that Kanhai as also Raghunandan had sustained injuries is duly supported by the medical evidence already referred to, and I have no reason to disbelieve the evidence of prosecution witnesses regarding the occurrence as a whole, though there may be some doubt as to the participation in the actual assault by all the appellants. On behalf of the defence, a suggestion was made to P. W. 5, as already indicated, that there was a mutual marpit, and it may appear to be so from the fact that two of the appellants had also sustained some injuries at about the same time and in the same fracas, as the medical evidence would indicate. The prosecution witnesses, however, denied all knowledge about their injuries. But, for that alone no adverse inference need be drawn against their evidence. The occurrence was at about 10 P. M. and the Injured persons had already been taken away by an assistant Sub-Inspector of Police (P. W. 10). The witnesses might not have seen the injuries on two of the appellants and even if they had seen, they might deny about the same in their nervousness and anxiety. The occurrence was at about 10 P. M. and the Injured persons had already been taken away by an assistant Sub-Inspector of Police (P. W. 10). The witnesses might not have seen the injuries on two of the appellants and even if they had seen, they might deny about the same in their nervousness and anxiety. The learned Judge has, on the basis of the evidence of P. W. 10 observed that there was a free fight between the two parties, but that was obviously after the occurrence for P. W. 10, when he arrived, had found injuries already caused on four of the persons including Kanhai. it was possible that even after the incident, the parties were prepared to pursue the fight. 13. The only question for consideration is whether Kanhai or as a matter of fact, any one else on his side was the aggressor. It seems quite probable that Kanhai, when he was reported of the earlier incident of assault on his wife by one of the appellants, would be out for a quarrel. But is the evidence stands, he had not earned any weapon with him. He had only called his wife downstairs when the appellants are said to have attacked Kauhai and thereafter Raghunandan. If Kanhai and his men had gone to give a fight, they could have given more serious blows to some of the appellants. The injuries of Pardeshi and Bhagi wers of trifling nature. Pardeshi had his injuries on the palm near the ring and little Finger of his left hand which ho could have sustained even while wielding his own Lathi. The injuries of Bhagi were also very trifling, and he had injury mentioned as 2" x 1/2" x "skull" was probably only skin deep. In the fracas, after Kanhai had been fatally assaulted some one on the side of prosecution could have hit back the aforesaid two appellants. 14. I am satisfied about the manner, genesis and the place of the occurrence. In the fracas, after Kanhai had been fatally assaulted some one on the side of prosecution could have hit back the aforesaid two appellants. 14. I am satisfied about the manner, genesis and the place of the occurrence. The more important question for consideration is whether all the appellants had participated and this constituted themselves into members of an unlawful assembly, having shared the same common object of causing grievous injury to Kanhai, Tt has come in the evidence of P. W. 5 that only appellants Banwari, Pardeshi and accused Banke had actually joined in the assault on Kanhai and the other three appellants were only abusing, having had of course, Lathi with them. Two of the appellants were in their own house. The quarrel developed suddenly and, therefore, by mere presence of some of the appellants having Lathi with them, it cannot be definitely said that they had all shared the common object of committing assault on Kanhai. 1 would, therefore, give benefit of doubt to the three appellants, namely Nagina, Chhbaila and Bhagi who did not actually participate in the assault on Kanhai. The appellants therefore, cannot be found guilty under Sec.147 I. P. C. 15. The absconding accused Bankey is said to have dealt a blow on the head of Kanhai with, a Pati and appellants Banwari and Pardeshi are said to have assaulted Kanhai with their Lathi.. The evidence of P. W. 5 is clear that on reaching Kanhais house, Banwari, Banke and Pardeshi began to assault Kanhai. He however, did not indicate the part of the body of Kanhai on which Banwari and Pardeshi had struck, though about Banke, he was clear that he had struck with a Pati on his head. But, since three of the appellants were assaulting Kanhai simultaneously, they must be found to have shared the common intention of assaulting him with the consequential result. Since Kanhai sustained two grievous injuries in the nature of fractures, all these three appellants must be found guilty for having caused simple injuries to Raghunandan. 16. In the result, the appeal of appellants Nagina, Chhabila and Bhagi is allowed and their convictions and sentences are set aside. Since Kanhai sustained two grievous injuries in the nature of fractures, all these three appellants must be found guilty for having caused simple injuries to Raghunandan. 16. In the result, the appeal of appellants Nagina, Chhabila and Bhagi is allowed and their convictions and sentences are set aside. The conviction of appellants Banwari and Pardeshi under Sec.325 read with Sec.149 I. P. C. is altered to one under Sec.325 read with Sec.34 I. P. C. I would, however, in the circumstances of the case, reduce the sentence of five years rigorous imprisonment imposed on appellants Banwari and Pardeshi to three years rigorous imprisonment for their aforesaid conviction. The conviction and sentence yf appellants Banwari and Pardeshi under Sec.147 I. P. C. are set aside. The conviction and sentence of appellant Banwari under Sec.323 I. P. G. are upheld. With these modifications, the appeal of appellants Banwari and Pardeshi is dismissed. 17. Before parting with the case, I must ex press a strong disapproval of the conduct of the Assistant Sub-Inspector of Police, Tanuk Prasad Singh (P. W. 10) since he registered no case even though he visited the spot just after the occurrence and, at a time, when the parties were till then adamant to fight. Kanhai was lying unconscious, having sustained fatal injuries. The injuries of Raghunandan as well were serious enough. The of fence on the face of it was a cognizable one. But the Assistant Sub-Inspector remained content with having sent the four injured persons to the Hospital, having arrested them under Sec.151 Cr. P C. as if he had no more responsibility in the matter. He has said that he had recorded a sanha which also was not brought on the record. He has shown an utter disregard of his responsibility us a public officer who is charged with the duty of preserving law and order. I do not know if his indifference was due to the parties belonging to a lower strata of society of Doms as they are. But he should know that every one, regardless of his status in society, is entitled to equal protection of the law. rather the weak and the poor may deserve greater protection of it. If a police officer can show such callousness to his obvious obligations, the position of law and order is bound to be greatly hampered.