JUDGMENT : R.S. Bachawat, J. Aher Kana Laxman, Aher Nanu Laxman, Aher Mulu Laximan, Aher Nirmal Laxman, Bharwad Ghola Karamchi, Bharwad Jodha Bhala were convicted by the Sessions Judge, Rajkot under Sections 302 and 394 and 323 all read with Section 149 and also under Section 148 of the Indian Penal Code and under Section 136 of the Bombay Police Act and each of them was sentenced to imprisonment for life six months rigorous imprisonment and three years rigorous imprisonment respectively on the first three counts and six months rigorous imprisonment on the fourth count and four months rigorous imprisonment on the fifth count. The substantive terms of imprisonment were directed to run concurrently. Appeals were filed by the convicted persons in the High Court of Gujarat. The High Court set aside the orders of convictions and sentences passed on Nirmal, Ghela and Jodha under Section 148 of the Indian Penal Code but it affirmed the rest of the convictions and sentences. All the convicted persons filed a petition for special leave to appeal against the order of the High Court. This court dismissed the petition with respect to Kana but granted to Mulu, Naru, Nirmal, Ghela and Jodha special leave to appeal against the above order. 2. The prosecution case is that on July 19,1964 at about noon-time when Janmchamad and P.W. 15 Babu were proceeding in a tonga near the old customs chowky, Rajkot, Kana asked Janmohammad to stop the tonga. As soon as Janmohammad stopped the tonga, Kana whipped out a knife from his waistband and stabbed him on his left side. When Janmohammad and Babu alighted from the tonga Mulu carrying a dharia, Nanu carrying a knife, Nirmal carrying an iron-pipe, Ghela carrying a stick and Jodha carrying a stick came running, pounced upon Janmohammad and Babu and attacked them with their respective weapons. Nirmal struck Babu's head with the iron-pipe. Nanu stabbed Janmohammad on his right side with a knife. Mulu gave a dharia blow on Janmohammad's left ear, Kana gave another blow to Janmohammad on the left side near the arm-pit. Mulu aimed another dharia blow at Janmohammad, but on his being pushed by Janmohammad the dharia blow struck Kana on his cheek. As soon as PW 16 Suleman intervened Nirmal struck him with the iron-pipe, Ghela and Jodha gave him stick blows and Nanu gave a knife blow on his palm. Mulu aimed another dharia blow at Janmohammad, but on his being pushed by Janmohammad the dharia blow struck Kana on his cheek. As soon as PW 16 Suleman intervened Nirmal struck him with the iron-pipe, Ghela and Jodha gave him stick blows and Nanu gave a knife blow on his palm. On an alarm being raised all the six assailants ran away. 3. The following injuries were found on the dead body of Janmohammad: "(1) An incised wound 3" below left axilla posterior axillary fold 1" x ¼ x cavity deep, horizontal. (2) An incised wound cutting the pinna at its root of the left ear hanging with a tag from below. (3) An incised wound 1¼ x ¼" x muscle deep left flank posteriorly oblique in direction. (4) An incised wound 1½" x ½ x cavity deep in the right flank 2½" above and middle to anterior superior illine spine oblique. Coils of intestines were coming out from his incised wound." 4. An examination of injury No. 1 revealed that the left lung was cut and there was an incised wound 1" x ½" x ½" in the posterior lateral upper part of the lower lobe of the lung. The injury to the left lung was fatal. Kana inflicted this fatal wound. 5. An incised wound on the right perictal region and an abrasion on the right forearm was found on Babu's person. There were linear abrasions on the right palm and on the top of the left shoulder, an abrasion on the back of the chest and a contusion on the left perictal region on the person of Umar Suleman. The High Court did not think it safe to act on the testimony of PW 15 Babu, PW 17 Bijal and PW 18 Bachu Kurji without independent corroboration, but it accepted the testimony of PW 16 Omar Suleman. The High Court rejected the plea of private defence set up by Kana and the plea of the other accused persons that they were not present at the occurrence. We see no reason to disturb these findings. 6. The High Court held that all the six accused persons were animated by the common object of assaulting and causing injury to Babu and Janmohammad and that in prosecution of this common object Kana inflicted the fatal injury No. 1 on Janmohammad in the left axillary region. We see no reason to disturb these findings. 6. The High Court held that all the six accused persons were animated by the common object of assaulting and causing injury to Babu and Janmohammad and that in prosecution of this common object Kana inflicted the fatal injury No. 1 on Janmohammad in the left axillary region. We agree with the High Court that all the six accused persons formed members of an unlawful assembly. But we are unable to agree with the High Court that the common object of the members of the assembly was to cause the death of Janmohammad or Babu. The materials on the record show that the appellants came running after Kana inflicted the fatal wound on Janmohammad. We are not satisfied that the appellants were then standing 10 to 15 paces away. PW 16 Suleman did not say so in his first statement before the police. Nirmal, Ghela, Jodha did not strike Janmohammad. We think that all the accused persons were members of an unlawful assembly the common object of which was to cause grievous hurt to Babu and Janmohammad. Kana inflicted the fatal injury and was liable to be convicted under Section 302. The appellants are liable to be convicted under Section 326 read with Section 149 of the Indian Penal Code. The ends of justice will be met by imposing a sentence of 5 years rigorous imprisonment on Mulu and Nanu. 7. Ghela and Jodha were armed with sticks only. They and Nirmal did not assault Janmohammad. We are informed that they have already served sentences of rigorous imprisonment for more than 4 years. The ends of justice will be met by passing on Nirmal, Ghela and Jodha sentences of rigorous imprisonment for the period already undergone by them. 8. In the result, the appeal is allowed in part, the convictions and sentences of the appellants under Section 302 read with Section 149 are set aside and instead they are convicted under Section 326 read with Section 149 of the Indian Penal Code. Aher Nanu Laxman, Aher Mulu Laxman are sentenced to rigorous imprisonment for 5 years on this count, and the result is that each of them would undergo rigorous imprisonment for a total period of 5 years inclusive of the period already undergone in respect of his convictions and sentences on all counts. Aher Nanu Laxman, Aher Mulu Laxman are sentenced to rigorous imprisonment for 5 years on this count, and the result is that each of them would undergo rigorous imprisonment for a total period of 5 years inclusive of the period already undergone in respect of his convictions and sentences on all counts. Aher Nirmal Laxman, Bharwad Ghela Karamshi and Bharwad Jodha Bhala are sentenced on this count to rigorous imprisonment for the periods already undergone by them, and the result is that they must be released from jail forthwith.