JUDGMENT 1. - Appellants Khilli, Masna alias Mawasi, Chiranji, Hukam, Sohan Lal, Ghan-Syatn and Parsadi were tried by the learned Sessions Judge, Bharatpur in connection with an occurrence which took place on October 5, 1973 at 5 p.m. in front of the house of Khilli accused which is situated at a distance of 3 miles from the Police Station, Nadbai. In the course of that occurrence Kajodi (since deceased) sustained 7 injuries, out of which one was found to be grievous caused by sharp edged weapon and the rest were simple caused by blunt object. PW 1 Jhamman sustained 4 injuries, out of which two were grievous and two were simple. Both the grievous injuries were caused by blunt object. PW 8 Man Singh sustained three injuries which were simple in nature. Kajodi succumbed to his injuries on October 6, 1973 at 4.45 p.m. in Government Hospital, Bharatpur. First information report Ex. P/l, a written report of this occurrence was lodged by PW 8 Man Singh at the Police Station, Nadbai on October 6, 1973 at 2.30 a.m. Accused Chiranji, Khilli and Msana alias Mawasi are real brothers. Accused Hukam is son of Khilli and accused Ghanshyam and Prasadi are nephews of Chiranji, Khilli and Mawasi and accused Sohan Lal is their sister's son. 2. Tersely speaking the prosecution case as disclosed at the trial is that PW 8 Man Singh author of the first information report and his father Kajodi (since deceased) were coming from Nadbai to their village Chhitrai on the fateful day after making purchases. They reached at 4-5 P. M near their field known as Chamaadwala in which the millet crop was standing, to their great annoyance they found a cow of accused-appellant Khilli grazing in the field. They took the cow to the house of Khilli. At that time accused Khilli was enjoying Hukka in the company of the accused-appellants. Man Singh and his father Kajodi (since deceased) remonstrated accused Khilli for letting loose his cow in their field. Being infuriated by the remonstration Khilli and his associates pounced upon PW 8 Man Singh and Kajodi (since deceased) and surrounded them. At that time accused Khilli was enjoying Hukka in the company of the accused-appellants. Man Singh and his father Kajodi (since deceased) remonstrated accused Khilli for letting loose his cow in their field. Being infuriated by the remonstration Khilli and his associates pounced upon PW 8 Man Singh and Kajodi (since deceased) and surrounded them. At that stage PW 1 Jhamman, PW 2 Soni, PW 3 Ram Kishore and PW 7 Ratan also reached on the scene of the occurrence hearing the hue and cry and they saw the accused inflicting injuries on the person of Kajodi (since deceased) and Man Singh. Jhamman tried to intervene, but he was also not spared. As already stated above Kajodi succumbed to the injuries on the next day. The autopsy on the dead body of Kajodi was performed by PW 10 Dr. D. P. Mishra. The postmortem report is Ex. P/23. PW 1 Jhamman and PW 8 Man Singh were also clinically examined by the same doctor on the same day and their injury reports are Ex. P/21 and Ex. P/22 respectively. Injuries sustained by Jhamman were suspected to be grievous and as such he was sent for X - Ray examination. C. W. 1 Dr. G. K. Chaudhary, Radiologist, Government Hospital, Bharatpur noted that out of the injuries sustained by Jiiamman two were grievous. The police after usual investigation submitted a challan against all the seven accused-appellants in the Court of Additional Munsif Magistrate, No. 1, Bharatpur. The learned Magistrate committed all the accused to take their trial in the Court of the Sessions Judge, Bharatpur. 3. The accused pleaded not guilty to the charge and the prosecution examined ten witnesses, out of whom PW 1 Jhamman, PW 2 Soni, PW 3 Ram Kishore, PW 7 Ratan and PW 8 Man Singh were examined as eye witnesses. PW 9 Beni Madhav is the Investigating Officer of the case. PW 10 Dr. D. P. Mishra was examined to prove the post mortem report Ex. P/23 and the injury reports Ex. P/21 and Ex. P/22. C.W. I Dr. G. K. Chaudhary, Radiologist, Government Hospital, Bharatpur was examined as court witness. 4. The accused denied their complicity in the crime and stated that they were given beating by the members of the complainant party. They examined one witness DW 1 Nathi in support of their case. 5. P/21 and Ex. P/22. C.W. I Dr. G. K. Chaudhary, Radiologist, Government Hospital, Bharatpur was examined as court witness. 4. The accused denied their complicity in the crime and stated that they were given beating by the members of the complainant party. They examined one witness DW 1 Nathi in support of their case. 5. The learned Sessions Judge held that two cross-cases were filed, but the case filed by the accused persons related to a different occurrence which took place subsequent to the incident for which the accused-appellants were prosecuted and ultimately convicted. Placing reliance on the statements of the injured eye witnesses supported by the medical evidence the learned Sessions Judge found all the seven accused-appellants guilty. He convicted and sentenced them as under:- 1. Chiranji u/s 304 Part II IPC 7 years R.I. and a fine Rs. 200/- u/s 148 IPC 1 year's R.I. u/s 325/149 IPC 2 vears' R.I. and a fine Rs. 100/- u/s 324 IPC 1 yeers' R.I. u/s 323/149 IPC 1 month's S. I. 2. Mawasi alias Masna u/s 147 I.P.C. Six months' R.I. u/s 304 Part II 5 years' R.I. u/w Section 149 I. P. C. a fine of Rs. 200/- u/s 325/149 IPC 2 years' R. I. and a fine of Rs. 100/- u/s 324/149 IPC 6 months' R.I. u/s 323/149 IPC 1 months' S.I. 3. Parsadi, ) u/s 147 I.P.C. 6 months' R. I. 4. Khilli, ) 5. Hitkma ) u/s 304 Part II 5 years' R. I. and a fine of Rs. 200/- 6. Sohanlal, & ) u/s 149 IPC 7. Ghanshyam. ) u/s 325/149 IPC 2 years' R. I. and a fine of Rs. 100/- u/s 324/149 IPC 6 months' R.I. u/s 323 I. P. C. 3 months' S.I. 6. It is not necessary for me to consider the prosecution evidence in detail and all the circumstance brought forth on the record by the prosecution against the accused-appellants, as the learned counsel for the appellants looking to the preponderance of the evidence on record has conceded that there are no sufficient grounds for challenging the fact that the accused persons inflicted injuries on Kajodi (since deceased). PW 1 Jhamman and PW 2 Soni. PW 1 Jhamman and PW 2 Soni. I have also looked into the relevant portion of the record and am satisfied that the learned counsel for the accused-appellants is correct in not challenging that finding of fact arrived at by the trial court. 7. The only question canvassed on behalf of the appellants before me is that the present is not a case wherein the accused party can be said to be members of the unlawful assembly and it cannot be said that the injuries caused by Chiranji were caused in prosecution of the common object of the unlawful assembly. It has further been urged that there is no reliable evidence to hold as to which of the accused caused grievous hurt to Jhamman. At first there was remonstrance and counter remonstrance and thereafter the fight ensued. As there was no premeditation, each of the accused-appellant should be held to be liable for his individual act and not vicariously liable for his individual act and not vicariously liable for the acts of others. 8. The learned Public Prosecutor appearing on behalf of the State has urged that PW 8 Mansingh and his father went to the house of Khilli just to make a complaint about his negligence in letting loose the cow into their field and thereby causing loss to standing crop and allowing it to stray into their field. As such there was no reason for the accused persons to inflict injuries on their person. All of them inflicted injuries to three persons and it has been mentioned in the first information report that all the seven appellants started beating the deceased and his two sons at the instigation of Khilli. Thus they committed the offence in consert in furtherance of common intention of all of them to inflict fatal blows to Kajodi and his sons. 9. I have given careful consideration to the rival contentions of the parties and the evidence on record. The learned counsel for the State agrees that none of the witnesses examined before the trial court slated that the quarrel started on a call made by accused Khilli. No doubt this fact has been mentioned in the first information report Ex. P/1. The learned counsel for the accused-appellants is correct in saying that the first information report cannot be read as a substantive piece of evidence. No doubt this fact has been mentioned in the first information report Ex. P/1. The learned counsel for the accused-appellants is correct in saying that the first information report cannot be read as a substantive piece of evidence. It can be used either to contradict or corroborate the author of the first information report. The occurrence was the result of a trifling incident i.e. straying of the cow of Khilli into the field of Kajodi (since deceased). The accused persons sitting in the house of Khilli while enjoying Hukka cannot be said to be the members of the unlawful assembly. It is the common case of the parties that there was no enmity between the parties. At first there was remonstrance and counter remonstrance, none of the accused could have known that PW 8 Mansingh and his father Kajodi (since deceased) would come to remonstrate them. It cannot be said that there was any premeditation on the part of Khilli and others to cause the death of Kajodi. It appears that quarrel was a sudden affair and must be the result of heated passion arising out of remonstrance by the complainant. In the circumstances of the case it cannot be said that the appellants in the house of Khilli had formed an unlawful assembly. An assembly of five or more persons in designated as an `unlawful assembly' if the common object of the persons is to do any of the act mentioned in the provisions of Section 141 I.P.C. No doubt an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. It was only at the stage of remonstrance that one of them stated inflicting blows and others followed him. As there was sudden affair, none of the accused can be held guilty for offence punishable under Section 147 I.P.C. and secondly the aid of Section 149 I.P.C. cannot be invoked to convict the accused-appellants.in my opinion, each of the appellant shall be held liable for his individual act and not vicariously liable for the acts of others. 10. Chiranji gave a pharsa blow on the head of Kajodi (since deceased). His conviction, therefore, be maintained for the offence under Section 304 Part II IPC as held by the trial Court. The sentence of rigorous imprisonment for a period of seven years and a fine of Rs. 10. Chiranji gave a pharsa blow on the head of Kajodi (since deceased). His conviction, therefore, be maintained for the offence under Section 304 Part II IPC as held by the trial Court. The sentence of rigorous imprisonment for a period of seven years and a fine of Rs. 200/- awarded to Chiranji for inflicting sharp edged injury on the person of Kajodi is reduced to five years' rigorous imprisonment and a fine of Rs. WO/-. In default of the payment of fine, he shall further undergo two months' rigorous imprisonment. The conviction sentence awarded to him under Section 148 I.P.C. is set aside. The conviction and sentence awarded to this appellant under Section 324 IPC are maintained. The conviction and sentence awarded to him under Section 325/149 and Section 323/149 IPC are set aside. 11. The conviction and sentence awarded to accused-appellants Mawasi alias Masna, Prasadi, Khilli, Hukma, Sohanlal and Ghanshyam under Section 147 I.P.C. are set aside. Their conviction and sentence under. Section 304 Part II read with Section 149 I.P.C. are also set aside. 12. All the five eye witnesses namely, PW 1 Jhamman, PW 2 Soni, PW 3 Ram Kishore, PW 7 Ratan and PW 8 Mansingh have stated that Khilli and Hukma inflicted lathi blows on the person of Jhamman PW 1. CW 1 Dr. G. K. Choudhary has proved that two of the injuries sustained by Jhamman were grievous. Both these accused simultaneously inflicted lathi blows on Jhamman. When they beat Jhamman with lathis it must be inferred that both of these had common intention to cause grievous hurt. It is always a question of fact as to whether the accused had a particular knowledge or intent, one must look for a common intention i.e. to say some prior concert and what that concert with common intention is. It is not necessary that there should be an appreciable passage of time between the formation of the .Intend and the act for common intention. It may be formed at any time. A glance at the nature of the injuries reveals that both these accused know that the injuries they were intending to cause were Of grievous nature and as such both the accused i.e. Khilli and Hukma are convicted under Section 325 read with Section 34 IPC for causing grievous hurt to Jhamman. It may be formed at any time. A glance at the nature of the injuries reveals that both these accused know that the injuries they were intending to cause were Of grievous nature and as such both the accused i.e. Khilli and Hukma are convicted under Section 325 read with Section 34 IPC for causing grievous hurt to Jhamman. Both of them are sentenced to six months' rigorous imprisonment and a fine of Rs. 300/-each. In default of the payment of fine, each of them will further suffer rigorous, imprisonment for a period of four months. Out of the fine realised - an amount of Rs. 800/- will be paid to Jhamman. The conviction and sentence awarded to each of them under Section 324/149 I.P.C. are set aside and their conviction and sentence awarded to each of them under Section 323 I.P.C. is maintained. 13. Now remains the case of accused-appellants Mawasi alias Masna, Ghanshyam and Parsadi. The conviction and sentence awarded 'to each of the four accused-appellants mentioned above under Sections 325/149 and 324/149 I.P.C. are set aside. The conviction and sentence awarded to appellants Parsadi, Sohanlal and Ghanshyam under Section 323 I.P.C. are upheld. The conviction and Sentence of accused Mawasi under Section 323/149 I.P.C. are set aside. The substantive sentences of imprisonment awarded to each of the accused under different counts are ordered to run concurrently. 14. It is, however maped clear that the accused-appellants will be entitled to the benefit of Section 428 Cr. P. C. and the period of detention undergone by them during investigation, inquiry or trial before the date of conviction shall be set off against the term of imprisonment awarded by this Court. One month's time is allowed to the accused-appellants to deposit the fine in the trial Court. The accused-appellants Khilli, Hukma, Sohanlal, Ghanshyam and Parsadi are on bail. The learned Chief Judicial Magistrate will take appropriate steps to take them in custody for undergoing the sentence of imprisonment awarded to them. The file of the trial Court may be sent forthwith for computation of the sentence. 15. The appeal is allowed in part as indicated above. *******