JUDGMENT 1. - This appeal is directed against the judgment dated 14.4.76 of the learned Sessions Judge Kota, where by the accused appellants Ramdayal, Ramratan, Ramnath and Kana were convicted under section 323 147, 304 Part 11/149 I P C and each of them was sentenced to three months' R. I. under the first count, 6 months' R.I. under the second count and 5 years' R.I. under the third count. Accused-appellants Ramchandra, Devkaran Ratiram and Ramkishan were convicted under Section 323, 147, 304 Part 11/149 I.P.C. & each of them was sentenced to three months' R.I under the first count and 6 months' R.I under the second mart 4 years' R.I. under the third count. However, two other accused Chhoga and Jagannath to who were tried along with them were acquitted of all the charges framed against them. 2. Tersely speaking the prosecution story as disclosed at the trial is that the accused-appellants and complainant as well as his associates are resident of village Badagaon and they have their fields in the same village. They used to irrigate their fields by turn. On 14-10-1975 as per turn Ram Nath Dhakar and Tulsi were to irrigate their field known as `Keshari Lal wala field' after Ram Kishan had irrigated his field. On the fateful day in the morning Tulsi Ram and Ramnath Dhakar put on Oda in the water channel in order to divert the water into their field. Thereafter, accused namely, Jagannath, Ram Chandra and Ratiram reached there. Ram Chandra accused removed the Oda which led to verbal altercations between the parties, Ultimately, it was decided that a settlement may be arrived at by negotiation. Chhoga and Jagannath invited the members of the complainant party to their well for a talk in pursuance of which the members of the complainant party went to Bagechi of Chhoga. After sometime accused Ram Ratan, and Ram Daya arrived on a tractor in the bagechi. They were armed with lathis and they started inflicting injuries on the person of Ramchandra (since deceased). Ramnath and Kana also followed writ and caused injuries on the head of Ram Chandra. The other accused inflicted injuries on the persons of Tulsi Ram, Ramkishan, Mohanal and Nand Kishore. It has also been stated at the trial that Chhoga and Jagannath exhortated the appellants to finish Ram Chandra and others. 3. The First Information Report Ex. Ramnath and Kana also followed writ and caused injuries on the head of Ram Chandra. The other accused inflicted injuries on the persons of Tulsi Ram, Ramkishan, Mohanal and Nand Kishore. It has also been stated at the trial that Chhoga and Jagannath exhortated the appellants to finish Ram Chandra and others. 3. The First Information Report Ex. P/1 of this occurrence was lodged at the police station Nayapura on the same day at 10.45 a.m. The distance between the police station and the place of occurrence is 7 miles. Ram Chandra was admitted as indoor patient at Maharaja Haim Singh Hospital, Kota. PW 7 Dr. S.P. Nallens clinically examined Ram Chandra at d noted four head injuries on his head. Ramchandra succumbed to his injuries in the hospital. He also perforated the autopsy on the dead-body of Ramchandra and the post-mortem report is Ex. P/10. PW 1 Tulsi Ram, PW 3 Ramkrishan PW 4 Mohanlal and PW 2 Nand Kishore were also clinically examined and their injury reports are Ex P/7, Ex. P/5, Ex. P/6 and Ex. P/8 respectively. Out of the 10 accused three accused, namely, Ram Chandra, Ram Dayal and Ram Ratan were also clinically examined and their injury reports are Ex. D/2 Ex. D/4 and Ex. D/5. The Police after usual investigation submitted a challan against 10 accused in the court of Additional Munsif and Judicial Magistrate, No. 2 Kota, who committed them to stand their trial under sections 302, 323 and 147 I.P.C. to the court of Sessions Judge. The accused pleaded not guilty to the charges and the prosecution examined 18 witnesses. The accused in their statements recorded under Section 313 Cr. P.C denied their complicity in the crime. The accused Ramchandra and Kana pleaded alibi and other accused raised the plea of self-defence. The statements of Moti Nand Kishore. Tulsiram and Mohan are that they were sitting in the Begechi of Chhoga and were negotiating the compromise regarding the right to take water and to irrigate their fields Meanwhile the accused Ramdayal and Ramratan came there on their tractor to plough their field and the members of the prosecution party initiated the assault under the pretext that they trespassed into the field of Moti with tractor. They further pleaded that on the side of the complainant party Ramdayal, Ramkishan arid others might have suffered injuries in the incident which ensued on the spot and they examined four witnesses in defence. 4. The learned Sessions Judge has held that the members of the complainant party as well as three accused suffered injuries during the course of the same occurrence. He also held that the evidence regarding exhortation by Chhoga and Jagannath was not reliable and they cannot be convicted as members of unlawful assembly simply an account of their presence at the scene of occurrence. As regards the remaining accused the learned Sessions Judge held that they formed unlawful assembly & were members of unlawful assembly out of whom Ramdayal, Ramratan, Ramnath and Kana inflicted injuries on the head of Ram Chandra in pursuance of their common object and other members of the complainant party were a1so injured in the course same occurrence at the hand of the accused-appellants in furtherance of the common object of the unlawful assembly. Placing reliance on the statements of injured eye-witnesses corroborated by the statement of PW 5 Moti, PW. 6 Ramchandry & PW 8 Daulatram, the learned Sessions Judge held the accused-appellants guilty, convicted and sentenced them as mentioned above. He, however, held that the defence evidence was not reliable. The aggrieved accused appellants have challenged their conviction and sentence by this appeal. 5. Mr. Chatterjee, learned counsel for the appellants has contended that the prosecution witnesses have not come out with that correct version of the occurrence that they have failed to give reasonable explanation of the injuries found on the persons of the accused appellants. The trial court found that the injuries on the person, of the accused were sustained in the same incident and as such no implicit reliance can be placed on statements of the injured eye-witnesses. The learned counsel further urged that the conviction is based on the testimony of partisan witnesses. Two of the accused tried alongwith eight accused-appellants have already been acquitted by the trial court and the statements of eye-witnesses regarding these accused have been held to be non reliable. As the State has not come in appeal against their acquittal to uphold the conviction of the accused appellants on the statements of the same witnesses, is not safe. Two of the accused tried alongwith eight accused-appellants have already been acquitted by the trial court and the statements of eye-witnesses regarding these accused have been held to be non reliable. As the State has not come in appeal against their acquittal to uphold the conviction of the accused appellants on the statements of the same witnesses, is not safe. He further urged that in any event it cannot be said that the accused-appellants were that members of unlawful assembly. The quarrel ensued all of a sudden and one can be held vicariously liable for the act of other as the accused appellants have been convicted for the offence committed by them. 6. The learned counsel for the State has vehemently supported the judgment of the trial court. 7. I have given my anxious consideration to the rival contentions. As regards the accused Chhoga and Jagannath, it is sufficient to note that the State has not filed an appeal against their acquittal and the allegation regarding participation of these accused by exhortation prior to the assault on Ram Chandra and others has net been substantiated & the account of occurrence given by the witnesses suffers from the exaggeration. 8. No doubt the injuries sustained by the accused have not been explained by the prosecution witnesses but, this in itself is not sufficient to discard the entire prosecution case. The Hon'ble Supreme Court in this regard in a number of cases has repeatedly pointed out that entire case cannot be thrown out simply because the prosecution witnesses do not explain the injuries on the persons of the accused. Such a non explanation of the injuries however is a factor which is to be taken into account in judging the veracity of the prosecution witnesses and the court is required to scrutinise the evidence with care. 9. It is a common case of the parties that the occurrence took place in the Bagechi of Chhoga which was under the cultivators possession of the accused. A dispute did arise regarding the right to take water on the fateful day prior to commencement of negotiation. It cannot be said that the persons who were sitting in Bagechi of Chhoga at the time when they were negotiating were members of unlawful assembly. All the eye-witnesses have unanimously stated that while negotiation was going on accused Ramdayal and Ramratan came there on their tractor with sticks. It cannot be said that the persons who were sitting in Bagechi of Chhoga at the time when they were negotiating were members of unlawful assembly. All the eye-witnesses have unanimously stated that while negotiation was going on accused Ramdayal and Ramratan came there on their tractor with sticks. The evidence regarding exhortation has already been disbelieved and as such the case which remains is that both Ramdayal and Ramratan came together. As soon as they came they started heating Ram Chandra Dhakar and at that stage two other accused Kana and Ramnath also followed suit and gave beating to Ram Chandra Dhakar (since decased) and inflicted injuries. No doubt a lawful assembly can become unlawful later on but from the statements of the witnesses relied upon by the trial court it cannot he said that the common object of the members of the assembly who wet e negotiating in the Bagechi of Chhoga was to do any act mentioned in the five clauses of section 141 IPC. The fact found by the trial court does not show that the appellants formed the common object to do any act as mentioned in clauses of section 141 IPC. It cannot be said that they gathered there for enforcing the right to take water. If the common object of the accused would have been from the inception to assault, then they would not have gone to Bagechi & they would have used the force at the time when the Oda was put in the water channel as all the prosecution witnesses had the audacity to deny the injuries on the persons of the accused even though they sustained as many as 16 injuries out of which one is grievous. In such circumstances the only inference which arises is that the lathis were no doubt wielded by the appellants but their assault was not premeditated. The occurrence was sudden affair by cause the two persons Ram Dayal and Ram Ratan started assaulting the members of the complainant party as soon as they appeared at the scene of occurrence. Rest of the persons might have wielded by both the parties themselves or others but the fact remains that lathis were wielded by both the parties freely. Except the accused Ramratan and Ramdayal none of the accused persons can be held to be guilty on account of their vicarious liability. Rest of the persons might have wielded by both the parties themselves or others but the fact remains that lathis were wielded by both the parties freely. Except the accused Ramratan and Ramdayal none of the accused persons can be held to be guilty on account of their vicarious liability. A common intention can develop during the Course of incident and at the spur of moment. The unanimous statements of all he eye- witnesses go to slow that the two accused Ramdayal and Ramratan came together and as soon as the reached the place of occurrence, they started giving lathi blows. There is nothing on record to hold that prior to their arrival they had talk with the other accused or any other person and as such as regarding these two accused persons, namely, Ram Dayal and Ramratan section 34 I. P.C. is attracted. They actually participated in the assault and injuries sustained by the deceased Ram Chandra on his head were due to the assault of these two persons. But there is no evidence of previous enmity between these two accused Ramdayal and Ramratan and the deceased Ramchandra. The prosecution evidence does not indicate as to which of the four accused who inflicted injuries on the person of Ramchandra (since deceased) caused the fatal blows. Two of them came together armed and started giving blows simultaneously. The liability of these both accused persons can be vicarious under section 34 IPC and as such it is to be found out as to what was the common intention of the two accused in furtherance of which they caused injuries to Ram Chandra Dhakar. In the context noted above and circumstances of the case proved on record there can be no doubt that both the accused had the common intention to give severe beating to Ramchandra but none of them had the common intention to commit the murder of Ram Chandra or cause such injuries for which knowledge can he imputed to them that they were likely to cause death. Thus neither any of them or both of them can be held guilty of the offence punishable under section 302/34 IPC or section 304 part II or 149, 34 IPC but both of them can be held guilty under section 325/34 IPC. Thus neither any of them or both of them can be held guilty of the offence punishable under section 302/34 IPC or section 304 part II or 149, 34 IPC but both of them can be held guilty under section 325/34 IPC. The rest of the accused are held to be liable for their individual act and not for the acts of others. 10. The net result of the aforesaid discussion is that the convictions and sentences awarded to all the accused appellants under section 147 I.P.C. are set aside. 11. The conviction and sentence awarded to accused appellants Devkaran, Ramkishan, Rattiram, Ramchandra, Kana and Ramnath under section 304 part 11 read with section 149 I.P.C. are set aside. 12. The conviction of the accused appellants Ramratan and Ramdayal under section 304 part II/149 I.P.C. is converted to section 325 read with section 34 I.P.C. and each of them is sentenced to two years' rigorous imprisonment and a fine of Rs. 100/-, in default of payment of fine each of them shall further suffer rigorous imprisonment for one month. 13. The conviction of the accused Devkaran, Ramkishan, Rattiram, Ramchardra, Kana and Ramnath under section 323 I.P C. is upheld. They have already undergone the substantial period of their sentences awarded by the trial court. The occurrence is of the year 1975 and they have turned the new leaf in life after their release on bail, it would not be in the interest of justice to send them back to jail for undergoing the remaining period of the short term of sentences. In my opinion, the ends of justice would he sufficiently met if each of them is sentenced to the period already undergone. They are on bail, they need not surrender to their bail bonds. 14. The convictions and sentences awarded to accused, appellants Ramdayal and Ramratan under section 323 I.P.C. are upheld. The substantive sentences of imprisonment awarded to each of them are ordered to run concurrently. The accused Ramdayal is on bail and he is not before me. The learned Chief Judicial Magistrate, Kota is directed to take necessary steps for getting the accused arrested and sending him to jail for undergoing the remaining period of the sentence awarded to him by this Court. However, it is made clear that the accused persons will be entitled to the benefit of section 428 Cr. The learned Chief Judicial Magistrate, Kota is directed to take necessary steps for getting the accused arrested and sending him to jail for undergoing the remaining period of the sentence awarded to him by this Court. However, it is made clear that the accused persons 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 their sentence. The appeal is partly allowed as indicated above.Appeal partly allowed. *******