JUDGMENT 1. - This appeal is directed against a judgement of the learned Sessions Judge, Bharatpur, dated 17th April, 1973, by which Jhadmal, Jhadila, Imami and Bhola were convicted for the offences under section 325 read with Section 149, 323 and 147, Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for four years on the first count, on the second count each was sentenced to pay a fine of Rs. 300/-, in default of payment of fine each to undergo simple imprisonment for a period of three months and on the third count to suffer rigorous imprisonment for two years. Rujdar appellant also was convicted under section 325 read with section 149, Indian Penal Code, 324 and 147, Indian Penal Code and was sentenced to undergo rigorous imprisonment for four years on the first count, on the second was sentenced to pay a fine of Rs. 300/-, in default of payment of fine to undergo simple imprisonment for a term of three months & on the third to undergo rigorous imprisonment for two years. All the substantive sentences of imprisonment awarded to all the appellants, except Majid, were ordered to run concurrently. Similarly, Majid was convicted under section 325 read with Section 149, 323 and 147, Indian Penal Code but instead of being sentenced to a term of imprisonment, he was released on probation of good conduct under section 4 of Probation of Offenders Act. 2. The prosecution case against the appellants was that on 15th May, 1972, at about 2 p.m. a quarrel ensured between Mst. Rashidan, widow of Sardar Mayo and Mst. Phajji, daughter of Alla Bux (co-accused, who has been acquitted by the trial court) in village Gadarbas, which is situated at a distance of about 8 miles from police station, Deeg. The cause of quarrel was that Mst. Rashidan passed her stools near a well. During the quarrel Alla Bux also came there and began to hurle abuses on Mst. Rashidan. Roshan deceased asked Alla Bux not to utter foul abuses in that manner. This led to an altercation between the two. Upon hearing the noise, Imami and Bhola sons of Alla Bux and his nephew Rujdar, Daroga, Jhadmal, Jhadilai Majid and Ibrahim assembled there having armed themselves with lathis. They attacked Roshan with he weapons in their hands. Rashidan. Roshan deceased asked Alla Bux not to utter foul abuses in that manner. This led to an altercation between the two. Upon hearing the noise, Imami and Bhola sons of Alla Bux and his nephew Rujdar, Daroga, Jhadmal, Jhadilai Majid and Ibrahim assembled there having armed themselves with lathis. They attacked Roshan with he weapons in their hands. Jhadila and Jhadmal struck lathi blows on his (Roshan's) head, as a result there of, he fell down. Ibrahim and Daroga also joined in beating Roshan with lathis when the latter was lying on the ground. On seeing his son being severely beaten, Hasmal accompanied by his two brothers Hari Singh and Padmi rushed to the place of occurrence for Roshan's rescue, but they also were beaten by the assailants. Hasmal sustained as many as our injuries on his person, out of which one was grievous in nature. Hari Singh received three injuries, out of which one was caused by a sharp edge weapon. Likewise, Padmi sustained eight simple injuries caused by a blunt weapon. During the course of beating Mst. Mehtabi, mother of Hasmal also rushed to rescue the injured, but she also received a lathi blow on her back at the hands of one of the assailants. She raised a hue and cry, which attracted Chand Singh, Swaroopa, Dani, Balkhandi, Kamarkhan and Rehmat to the place of occurrence. These persons saved the victims of assault from being further beaten. As the condition of Roshan was fast deteriorating, he was immediately removed to Government Hospital, Deeg, where he died of his injuries the very day at 11.30 a.m. Padmi made a first information report of this incident to the police at police station, Deeg, the very day at 11 p.m. The police registered a criminal case under section 307, 147 and 149 IPC on the basis of the report & later on, altered it into a case of murder after the death of Roshan. The police sent the dead body for post-mortem examination which was conducted by Dr.S.B. Bhardwaj, Medical Officer, Deeg, the next day in the morning. The Doctor found the following external injuries on the dead body:- 1. Contusion 3" x 21/2" on left side a scalp in the region of left parietal eminence, caused by some hard blunt object; ante-mortem in nature. 2. The Doctor found the following external injuries on the dead body:- 1. Contusion 3" x 21/2" on left side a scalp in the region of left parietal eminence, caused by some hard blunt object; ante-mortem in nature. 2. lacerated wound 21/2" x 2/10" x 2/10" on right side of scalp 11/2" medial to right parietal eminence, with Contusion 3" x 2" caused by some hard blunt object and ante-mortem in nature. Upon dissection of the body, the Doctor found that his brain membrane was torn over left parietal lobe of brain and there was laceration of left parietal lobe of brain with intra-cerebral haemorrhage due to head injuries. According to the opinion of the Doctor, injury No. 1 was sufficient in the ordinary course of nature to cause the death of the deceased. The other injuries were also medically examined as to their injuries. The police then arrested the accused persons and, after collecting other necessary evidence in the case, submitted a charge sheet against them in the court of the Munsiff-Magistrate, Deeg, who, after holding an inquiry, preparatory to commitment committed the accused to the court of Sessions for trial under sections 148, 302, 302/149, 307, 307/149, 323 and 324 Indian Penal Code. The learned Sessions Judge tried all the accused persons but found only the six appellants guilty of the offences punishable under section 325 read with 149, 324, 323 and 147 IPC. Aggrieved by their convictions and sentences the appellants have come up in appeal, as stated above. 3. I have carefully gone through the entire evidence available on the record & heard the arguments advanced by the learned counsel for the appellants and Shri Dinkar Mehta for the State. Firstly, it has been contended on behalf of the appellants that there was no unlawful assembly as defined in section 141, Indian Penal Code and that there is no proof that the appellants committed a riot. In support of his above contention, the learned counsel for the appellants invited my attention to para 19 of the judgement of the lower court. In support of his above contention, the learned counsel for the appellants invited my attention to para 19 of the judgement of the lower court. Wherein the learned Sessions Judge has arrived at a conclusion upon evidence adduced in the case that there was no previous enmity between the parties and that the unfortunately incident arose out of sudden quarrel on a petty matter and that it could not be inferred that any accused had the necessary intention or object of committing murder of Roshan. According to the learned counsel, the trial court after making these observations should not have convicted the appellants under section 147, Indian Penal Code because there was no proof that the appellants had assembled there for any unlawful purpose or had any previous intention or design to beat Roshan. Hasmal etc. The fight according to him, had sprung all of a sudden and only those persons who had actually taken part in it would individually be responsible for their acts, if any, Mst. Dinkar Mehta appearing on behalf of the State, on the other hand, contended that the common object of the assembly might not be to commit murder of Roshan, Hasmal etc. but certainly it was to cause grievous hurts to them and in fact all six appellants participated in beating Roshan, Hasmal and others with lathis in prosecution of the common object of unlawful assembly. It was further urged on behalf of the State, that it is not necessary that the unlawful assembly must have the common object prior to the commission of the act, because common object may be entertained by the accused persons all of a sudden after they had gone to the scene of occurrence. 4. I have given my anxious consideration to the rival contentions. There is reliable evidence of a number of eye witnesses to the actual occurrence that the six appellants were present at the scene of offence at the time when Allah Bux was abusing Mst. Rashidan in a foul manner. There is further evidence of the eye witnesses that all the appellants took part in the occurrence and some of them caused injuries to Roshan and some inflicted blows on Hasmal, Padmi, Mehtabi and Hari singh. Rashidan in a foul manner. There is further evidence of the eye witnesses that all the appellants took part in the occurrence and some of them caused injuries to Roshan and some inflicted blows on Hasmal, Padmi, Mehtabi and Hari singh. The evidence of the two injured namely Padmi and Hari Singh is that out of the six appellants Jhadmal and Jhadila had struck one blow each on the head of Roshan in the first instance. Thereafter, Chola and Imami inflicted lathi blows on the head, elbow and other parts of the body of Padmi, Hasmal also was beaten by Jhadmal, Majid and Rujdar with lathis and Jhadmal, Hari singh came to the rescue of the injured but Jhadmal and Rujdar dealt blows on his head with a lathi and a Jeri respectively Jhadmal dealt a second blow on the fingers of the right had of Hari Singh also. Thereupon Mehtabi came there. She also was beaten by Majid, who gave her a lathi blow on her neck. The injured then was rescued by Chand Singh, Swaroop Rohmat, Kumar Khan and Valkhandi. The testimony of these two injured is corroborated to a great extent by Hasmal and Mehtabi who also sustained injuries at the hands of some of the appellants. Hasmal claimed to have seen that Jhadila and Jhadmal inflicted one blow each on the head of Roshan. Upon his intervention Majid and Jhadmal beat him also with lathis while Rujdar inflicted a blow with a Jari on his back. Then Padmi and Hari Singh came there. Hari Singh was beaten by Rujdar and Padmi was belaboured by Bhola and Imami with lathis. Likewise Mehtabi claimed to have seen the appellants causing injuries to Roshan, Hasmal, and Padmi. She further stated that Majid has given her a lathi blow which fell on her back. Apart from the evidence of these four injured, there is other independent evidence of Kamar Khan PW 10 and Rehmat PW 11, who have corroborated the statement of the injured in all essential particulars. Both Kamar Khan & Rehmat had rushed to the place of occurrence from a nearby mosque on hearing the noise. They claimed to have seen all the four injured being beaten by the appellants. They were the persons who rescued the injured. The trial court after careful scrutiny has rightly placed reliance on their evidence. Both Kamar Khan & Rehmat had rushed to the place of occurrence from a nearby mosque on hearing the noise. They claimed to have seen all the four injured being beaten by the appellants. They were the persons who rescued the injured. The trial court after careful scrutiny has rightly placed reliance on their evidence. There is another witness Dani (PW 8), whose evidence also is worthy of credence. He is the real brother of Hari Singh, Padmi and Hasmal injured but his evidence cannot be discarded on the ground of mere relationship, especially when it has been found trustworthy on merits. The learned counsel for the appellants assailed the evidence of the injured and the other independent witnesses on the ground that they clearly stated in their depositions that Ibrahim and Daroga had also inflicted blows on the body of Roshan while the latter was lying on the ground after receiving injuries on his head at the hands of Jhadmal and Jhadila. It is undoubtedly true that the injured and the other witnesses implicated Daroga & Ibrahim also in the commission of the assault on Roshan, but, as Roshan had received 2 injuries only on his head, which were alleged to have been inflicted by Jhadila & Jhadmal, the trial court disbelieved their evidence to that extent. A court is bound to sift & assess the evidence that has come before it with a view to get at the truth and the trial court has done its duty well in separating the truth from falsehood. The evidence of the injured and the other eye witnesses cannot he brushed aside merely on the ground that they gave out an exaggerated version by implicating other persons also in the commission of the assault on Roshan. The evidence of Kamar Khan, Rehmat & the injured has not been shaken at all in cross examination. Nothing has been elicited from their cross examination which may tend to show that they had given false evidence against the appellants out of the enmity, personal grudge or any ulterior motive. 5. The evidence of the injured persons is further corroborated by the medical evidence. Dr. S.B. Bhardwaj examined Padmi on 16.5.1972 and found the following simple injuries on his body, which were caused by a blunt weapon within 24 hours' duration:- 1. 5. The evidence of the injured persons is further corroborated by the medical evidence. Dr. S.B. Bhardwaj examined Padmi on 16.5.1972 and found the following simple injuries on his body, which were caused by a blunt weapon within 24 hours' duration:- 1. confusion 1" x 1" with lacerated wound 8/10" x 2/10" x 2/10" on right side of scalp 2" anterior to right parietal eminence; 2. confusion 1" x 1" on posterior part of scalp 2" above posterior occipital protuberance; 3. abrasion 1/2" x 3/10" on right side face 2" anterior to tragus of right ear; 4. lacerated wound 3/4" x 2/10" x 3/10" on front of right leg 3" below knee joint; 5. confusion 2" x 1" on posterior aspect of right fore-arm 2" below elbow; 6. confusion 3" x 1" on posterior aspect of right shoulder joint; 7. confusion 1" x 1/2" on medial aspect of right wrist joint; 8. confusion 4" x 1" on right side of back just below anterior angle of scapule. Likewise, he examined Hasmal also and detected the following four injuries on his person which there, in his opinion, caused by some blunt object, out of which injury No. 1 was later on found to be a grievous one as is proved by the evidence of Dr. K.L. Sharma, PW 14, who had x-rayed it:- 1. confusion 3" x 2" on right side of scalp just anterior to right parietal eminence; 2. confusion 2" x 1" on right side of scalp just medial to right eminence; 3. confusion 5" x 1" on posterior aspect of right fore-arm 2" below elbow; 4. confusion 6" x 1" on left side of back just above inferior angle of scapule. Then he examined the injuries of Hari Singh, who had one incised wound on left side of his scalp, one confusion on front of left knee joint and one abrasion on the front of proximal phalynx of right index finger. These injuries were also simple and injury No. 1 appeared to have been caused by a sharp edged weapon. In view of this overwhelming evidence, it cannot be safely contended on behalf of the appellants that the trial court committed an error in convicting the appellants under section 147, IPC. These injuries were also simple and injury No. 1 appeared to have been caused by a sharp edged weapon. In view of this overwhelming evidence, it cannot be safely contended on behalf of the appellants that the trial court committed an error in convicting the appellants under section 147, IPC. It was further contended on behalf of the appellants that no common object was specified in the charges framed against the appellants and that such omission has resulted in a failure of justice. The above contention has no force, because the defect in the charge has not misled the accused in the peculiar facts and circumstances of this case. It is no doubt true that the common object of the assembly has not been mentioned in the charge framed under section 148 Indian Penal Code but the second and the third charges are framed under Sections 302 and 307, Indian Penal Code in the following manner:- "That you, on 15.5.72 at about 2 p.m. in village Gadarbas did commit murder by intentionally causing the death of Roshan and thereby committed an offence punishable u/s 302 Indian Penal Code and within the cognizance of the Court of Sessions Alternatively. 6. 6. That you, on 15.5.72 at about 2 p.m. in the village Gadarbas, were a member of an unlawful assembly, in prosecution of the common object of which, one of the member caused the murder of Roshan which offence you knew to be likely to be committed in prosecution of the common object of the said assembly, and you are thereby under section IPC, 149 guilty of causing the murder of Roshan and offence punishable u/s 302 IPC, and within the cognizance of the Court of Sessions." "That you, on 15.5.72, at about 2 p.m. village Gadarbas were a member of an unlawful assembly, in prosecution of the common object of which one of the members Majid struck lathi blows on the head of Hasmal with such intention and under such circumstances that if by that act he had caused the death of Hasmal, he could have been guilty of murder which offence you knew to be likely to be committed in prosecution of the common object of the said assembly and you are thereby, under section 149 IPC guilty of attempting to murder Hasmal, an offence punishable u/s 307 and within the cognizance of the Court of Sessions." Apart from this no objection as to the irregularity or defect in the charge was raised in the trial Court. Consequently, I do not feel persuaded to hold that the appellants were prejudiced in their defence. The learned counsel for the appellants could not point out as to how and in what manner the appellants were prejudiced by omission to specify the common object in the charge. There is another circumstance which negatives the contention of the learned counsel for the appellants that the appellants were prejudiced by the defective charge. The circumstance is that a specific question was put to each appellant in his statement under section 342, Cr.P.C. in this behalf, to which he gave a negative answer. The question was in the following words:- "Witnesses Padmi and Hasmal have stated that blind Rashidan had passed her stools near the well. Thereupon Alla Bux was abusing her. Roshan asked Alla Bux not to hurl abuses. On this Alla Bux called 'sons bring lathis'. At his call Jhadila, Jhadmal, Bhola, Rujdar, Imami, Majid etc. came there having armed themselves with lathis and Jeri and committed the assault? Thereupon Alla Bux was abusing her. Roshan asked Alla Bux not to hurl abuses. On this Alla Bux called 'sons bring lathis'. At his call Jhadila, Jhadmal, Bhola, Rujdar, Imami, Majid etc. came there having armed themselves with lathis and Jeri and committed the assault? What have you to say?" The appellants replied that the above allegations were false. The answer given to this question by each of the appellants clearly shows that all the necessary details about the common object were furnished to him and he denied them. Consequently, there is no such defect in the charge as may vitiate the trial of the case. 7. Lastly, it was argued that the appellants ought not to have been convicted under Section 325 read with Section 149, Indian Penal Code because there is no proof who caused the grievous injury on the head of Roshan deceased, which proved fatal. The above contention also is devoid of force. There is reliable evidence of eye witnesses on the record that Jhadmal and Jhadila made a concerted attack on Roshan and each caused one injury on his head with a lathi and that the other appellants also took part in administering beating to Padmi. Hasmal, Hari Singh and Roshan by sticks. In these circumstances, every appellants ought to have known that a lathi blow on the head might cause fracture. It is not a case where acts are done by some of the appellants outside the common object of the assembly or where there acts were such as all the members of the assembly could not have known to be likely to be committed in prosecution of the common object of the assembly. All these appellants had come to the scene of the occurrence having lathis and Jeri in their hands, when Alla Bux was hurling abuses upon blind Rashidan. Some of them attacked Roshan and the others assaulted Hasmal, Padmi and Hari Singh when each of them had come to intervene. Consequently, I am unable to hold that the trial court committed any error in convicting the appellants under Section 325, read with Section 149, 323 and 147, Indian Penal Code. Likewise Rujdar was rightly convicted under Section 323, Indian Penal Code as he had caused an incised wound on the left side of the scalp of Hari Singh with a sharp-edged weapon, i.e. Jeri. 8. Likewise Rujdar was rightly convicted under Section 323, Indian Penal Code as he had caused an incised wound on the left side of the scalp of Hari Singh with a sharp-edged weapon, i.e. Jeri. 8. As regards the sentence under Section 325 read with Section 149, Indian Penal Code, it may be observed that it is some what severe in the circumstances of the case. In my opinion, the ends of justice shall meet if it is reduced to a term of three years' rigorous imprisonment in the case of all the appellants except Majid, who has already been released on probation of good conduct. The sentences passed against the appellants Jhadmal, Jhadila, Imami and Bhola under section 323 and 147, IPC are not severe. Hence they are maintained. Similarly the sentence of fine awarded to Rujdar under Section 324, Indian Penal Code is not harsh and is hereby maintained. Majid has been rightly convicted and released on probation of good conduct. 9. Consequently, I partly accept the appeal and while maintaining the convictions of the appellants Jhadila, Jhadmal, Imami, Bhola and Rujdar under section 325 read with Section 149, Indian Penal Code reduce the sentence of four years' rigorous imprisonment awarded to each of them to term of three years' rigorous imprisonment. The convictions and sentences of Jhadmal, Jhadila, Imami and Bhola under sections 323 and 147, Indian Penal Code are hereby confirmed. Likewise, the conviction and sentences of Rujdar under sections 324 and 147, Indian Penal Code are hereby maintained. The convictions of Majid under sections 325 read with Section 149 Indian Penal Code are hereby maintained and the order releasing him on probation of good conduct is confirmed. *******