JUDGMENT H.R. Krishnan, J. The six appellants are all members of one family--one should rather says of one branch of a family, the other branch of which is represented by Bapulal, and his son Kailash, who was the victim of an attack by these six persons, with the use of lathis and at least one cutting weapon (farsa) and one pointed weapon (ballom). The appellants Siddhu, Madan, Brijlal and Jeetmal are brothers inter se and also the brothers of Bapulal father of Kailash, Triveni is the son of Brijlal while Ghanshyam is the son of Jeetmal. They have all been convicted under section 148, Indian Penal Code and sentenced to rigorous imprisonment for two years under that count. They have also been convicted under section 307 read with section 149, Indian Penal Code and sentenced to rigorous imprisonment for six years and again under section 307 read with section 34, Indian Penal Code and sentenced to six years. All the sentences to run concurrently. Between the branch of these appellants and that of Bapulal there had been serious disputes regarding agricultural land. A year or two before this incident which was on 13 1-1971 there were proceedings under sections 145 and 107, Criminal Procedure Code between the two groups. Two or three months before this incident one of the appellants had started a criminal case against Bapulal's branch which seems to have been pending at that time. On this background it is admitted by both the parties that at about 9-0 A. M. on 13-1-1971 when Kailash was cutting grass at the fields a short distance outside the village he was set upon by a number of assailants and belaboured very severely. The results showed that the total effect was one endangering life. There were 14 marks found on him when he was examined medically in course of the day. Two of them were incised wounds on the head, one more than 5" wide and the other 1" wide. However, the bone was not cut, and each by itself was a simple injury; if we take into account the possibility of danger to life, the weapon being a sharp edged one and the part of the body being the head, it becomes grievous injury endangering life. There were two penetrating wounds, simple, indicating that some sort of pointed weapons had been used. There were two penetrating wounds, simple, indicating that some sort of pointed weapons had been used. There were 10 lathi marks two of which involved fractures of bones one on the foot and the other on the left hand. The remaining eight marks were lathi blows each simple by itself though the cumulative effect was serious. The prosecution case is based on the evidence primarily of the victim who was examined after some days when he regained consciousness in the hospital, and of his mother Kesarbai P. W. 6 who states that she was with him when he was attacked and gave a first information report at the police station about 9 or 10 miles away at about 3-30 P. M. taking the injured man in a bullock cart. It may be noted that there is a third witness Hajari who was sent by Kesarbai to her husband at the village to arrange for a bullock-cart. But Hajari's evidence in the Sessions Court was altogether colourless he being obviously anxious not to displease either faction. Anyway, the most crucial evidence is that of Kesarbai. According to her she was nearby when her son was cutting grass in the field and all these six appellants appeared in a body armed with farsas, spears and lathis and began to attack Kailash. Having given him the beating the results of which have already been set out they went back leaving the injured man lying on the ground unconscious. Kesarbai sent a message to her husband Bapulal who arranged for the bullock cart and took his son to the police station. On these materials all the appellants had been charged under sections 148 and 307 read with 149 and again 307 read with 34, Indian Penal Code. The unlawful common object in the view of the lower Court was to kill Kailash outright. However, he having survived the attack, the charge was for attempt because in the event of his death it would have been a case of murder. The appellants began by making a total denial but have later on softened to the extent that according to them only the two appellants Triveni and Ghanshyam were there and they might have attacked Kailash. On the charges themselves it is urged that in any event the prosecution has implicated the entire family and again exaggerated the nature of the violence. On the charges themselves it is urged that in any event the prosecution has implicated the entire family and again exaggerated the nature of the violence. The common object if at all was only to "give a thrashing" as stated by learned counsel here, and each of the appellants would be liable only for the acts definitely attributed to him. Since the fractures were not proved and at least one of the X-ray skiagrams had not been produced in the Sessions Court they could be convicted under sections 323 and 324, Indian Penal Code only. About the procedure in the trial the objection has been taken urging that the conviction should be set aside and retrial ordered. The first grievance put out is that the transfer order of the trying Court had been made by the Additional Sessions Judge and not the Sessions Judge himself. This point, however, has not been pressed. It is argued that one of the appellants, namely, Triveni is a "child" in terms of the Madhya Pradesh Bal Adhiniyam 1970, being only 16 years of age and accordingly he should not have been tried jointly with the others. In principle if the factual basis that the age of any of the accused is below 16 years is established he cannot be tried jointly with the others who are more than 16 years of age. But it is for the accused concerned or the co-accused to take this point before the Court and invite it before proceeding with the trial to accept straightaway or to ascertain whether the age of one of the co-accused is below 16 years and then separate his trial from that of the others. Though it is possible for a Court suo motu to decide that one of the accused before it is below 16 years and accordingly order separate trial, in a sense it is a point for the accused to take. Whenever the legal consequence follows a factual position the latter at all events has to be established by the person concerned. In the instant case it was not urged at any time before or during the trial in the Sessions Court that Triveni was less than 16 years and accordingly one who should be tried separately from the others. In fact he has been throughout shown as being of the age of 17. In the instant case it was not urged at any time before or during the trial in the Sessions Court that Triveni was less than 16 years and accordingly one who should be tried separately from the others. In fact he has been throughout shown as being of the age of 17. In this Court, however, it is argued that he was 16 years of age and not 17 and the lower Court has itself given this age in the record of the examination of Triveni. This is not the position. Triveni has been shown throughout as being 17 years of age. However, in the examination before the committing Magistrate he gave his age as 16; the committing Magistrate has not for his part given in the appropriate column his estimate of the age of Triveni. In the Sessions Court the Sessions Judge examined Triveni as usual. Now again he gave the age as 16 while the Court has entered its estimate as 17. The Magistrate's record being tendered is also on the Sessions file and it is probably from it learned counsel for the appellant got the idea of Triveni's age being 16. There again it is not the Magistrate's estimate but merely Triveni's statement. In the appeal memo prepared by the appellants the age is given as 17. This may not be of much consequence because it may be reproducing the estimate given by the Court in its judgment. Thus the factual position is that the Courts have throughout been giving Triveni's age as 17 years while Triveni has on both the occasions asserted that he was only 16 years of age. That is a mere assertion and not a finding. What is much more to the point is that it was not urged either before the trial as it should be or even at any later stage in the Sessions Court that Triveni's age being 16 he should have been tried separately. I have no material upon which to differ from the estimate of the Sessions Judge. Accordingly there is nothing more to be said on this point. This objection is of no force. I have no material upon which to differ from the estimate of the Sessions Judge. Accordingly there is nothing more to be said on this point. This objection is of no force. To anticipate a similar argument regarding appellant Ghanshyam I note that the Court's estimate is 22 and not 21 and I am not prepared to differ and argue out a case for Ghanshyam being treated under the Probation of Offenders Act even if it is found that the offence committed was not one under section 307, Indian Penal Code punishable with imprisonment for life but one under less serious sections to which the Probation of Offenders Act applies. Coming to the facts, the statements of Kesarbai is broadly consistent with the circumstances and what is actually the common ground. It is practically unthinkable that so many injuries could have been caused by two assailants against one and the former not receiving even a scratch during the resistance. If it is a picture of two against one, certainly the one will be more seriously injured. But the two assailants will not get away as they have done in this case without a scratch. On the other hand, if it is a much larger number setting upon a single unarmed victim by surprise it would happen exactly as it has in this case,--a large number of injuries on the victim and no resistance injuries on any of the assailants. Certainly the theoretical possibility of the victim or his mother implicating more members of the family than had taken part in the attack is there; but it is very much reduced and practically eliminated, for one, the immediateness of the report before the police and for another, the state of mind to which the mother had been reduced in which she was not likely to be thinking of private vengeance. The incident is said to have taken place by both the parties at about 9-0 A. M. The situation suggests that it might have taken anything between half to one hour for the mother to send for the father, get a conveyance and arrange to carry the injured man to the police station. Going in a bullock cart over rough country road with an injured man lying in it and covering about 9-10 miles should have taken anything between 5 or 6 hours. Going in a bullock cart over rough country road with an injured man lying in it and covering about 9-10 miles should have taken anything between 5 or 6 hours. Looked at that way there was no delay in the making of the first information report. All the time the injured man was in an unconscious state and the appearances were that something very serious might happen to him. In that context his parents are not likely to have been thinking of vengeance. This is of course a circumstance but is of much significance. Again, the picture is of a surprise attack by a large number of assailants. There is, therefore, no reason to reject the statement of the two main witnesses that there were six assailants. It was broad day light and there was no risk of mistake in identification. The number of the injuries, their location and the nature of the weapons would clearly show that the common object was to cause such injuries as to the knowledge and intention of the assailants would at least endanger the victim's life, if not kill him outright. It has been urged on behalf of the appellants that the common object might have been only to give a thrashing. It is difficult to see what really learned counsel means by this. "Giving a thrashing" may mean anything between letting off with a mild use of force and killing the victim altogether. We have to see in such a situation not merely the nature of each of the injuries taken in isolation but the cumulative effect which in this case was of course quite serious and one calculated to endanger life. It is urged that each of the assailants should be held responsible only for the injuries beyond doubt attributable to him. Case law has also been read out; but as usual the facts of each criminal case are distinct from those of every other and we can only extract from the rulings general principles. Where there was no common object or the assailants had no reason to know that some of them would be doing something altogether beyond the common object the theory of each man for his individual doing can be applied. But in the instant case there are six assailants carrying lathis and one of them at least carrying a farsi and another again a spear or ballam. But in the instant case there are six assailants carrying lathis and one of them at least carrying a farsi and another again a spear or ballam. None of these weapons can be concealed and anyway, the assailants who are members of one family, all came together. Whatever might have been their common object whether it was to cause mild violence or to kill the victim, each of them had full opportunity of seeing a farsa and a ballam carried in the assembly. In that situation the use of those weapons was a possibility within the knowledge of every one of the members and as such each of them would be responsible not merely for what he might have thought was the original common object but for everything they had reason to know was likely to be done in prosecution of that common object. There is nothing complicated about this as this emerges from the wording of section 149 itself and has been amplified in such a large number of rulings that it is now the established law. Thus section 149, Indian Penal Code would be applicable and would render each of the members of the assembly liable for everything done by himself and by the other members as well. It is suggested that the injuries make out an offence under sections 323 or 324, as the case may be, not under section 307 or as for that matter 326 the scope of which in such cases overlaps with that of section 307, Indian Penal Code. It is difficult to agree. We are not dealing with one or two injuries in isolation but a large number of individual injuries as it were, small change totaling to a considerable sum. If there are one or two lathi marks they can be called simple injury. But the effect of 10 or 15 of such marks is one endangering life because each injury lowers the vitality and the power of resistance on the part of the victim to further injuries. At the top of it there are two fractures. Even without fractures the use of the cutting weapon on the head in a situation like this would attract section 326, Indian Penal Code. At the top of it there are two fractures. Even without fractures the use of the cutting weapon on the head in a situation like this would attract section 326, Indian Penal Code. Thus I would hold that all the assailants were liable under section 307 or under section 326, Indian Penal Code, the border line between the two of which is always ill-defined. The learned Sessions Judge has applied section 34 as well as 149, Indian Penal Code; but it is unnecessary to go into it because the application of 149 is quite clear; in fact the conviction and sentence under section 307 read with 34, Indian Penal Code is of no independent effect. I would maintain the sentence under section 307 read with section 149, Indian Penal Code as well as the one under section 148, Indian Penal Code. This later sentence has no independent effect. As already indicated the age of Ghanshyam as found by the lower Court does not in any event attract the Probation of Offenders Act; but where the conviction is under section 307, Indian Penal Code which makes out an offence punishable with imprisonment for life that Act has no application. The result is the appeal of all the appellants is dismissed. ORDER Shri A. M. Mathur for the applicant, heard on the question of grant of leave to appeal to the Supreme Court. The judgment of conviction of the learned Single Judge proceeds on mere appreciation of evidence. There is no question of law, much less any substantial question of public or private importance. The case, therefore, does not fulfill the requirements of Article 134(1)(c) of the Constitution. The application for grant of a certificate of fitness is, therefore, rejected. Appeal dismissed.