Short Note : The appellant Hira, along with five others who are appellants in the connected appeals, was tried for offences under sections 302/149, 148 IPC. All of them have been convicted under sections 302 read with S. 149 and also under section 148 IPC and sentenced to imprisonment for life and rigorous imprisonment for six months respectively. Appellant Ranchu has further been convicted under section 323 IPC and sentenced to rigorous imprisonment for six months under that count. The sentences on all the appellants have been ordered to run concurrently. They have preferred separate appeals from jail. They are present in person and have been heard. This judgment will govern the disposal of all these appeals. 2. Held: The evidence of the eye-witnesses corroborated by the first in formation report which was lodged without any undue delay, clearly establishes that suspecting that Gatiya was responsible for keeping the wife of Hira, the appellants formed an unlawful assembly and armed with weapons like axes, Kharaliya and Lathis went to the house of Gatiya. The evidence of these eyewitnesses also established that Gatiya was called out and thereafter all these appellants attacked him. According to the prosecution, two of them were carrying axes. But the medical evidence discloses that there were only five injuries and none of them was caused by hard and sharp substance. Kanhaiya PW 2, who came to intervene was also given a blow by Ranchu and he too had a simple injury. The leari1ed Court below held that the common object of the assembly was to do away with Gatiya, but it does not appear to be correct. Apparently, the appellants went to chastise Gatiya which is also borne out from the fact that even though some of them were carrying sharpedged weapons, but no injuries have been inflicted by any sharp-edged weapon on the person of the deceased. An attempt was made to introduce in evidence that while going away they were talking that if Gatiya is not dead, they will kill him subsequently. But this also indicates that they left injured Gatiya when they were not sure that he was dead. The injuries on Gatiya have been described by Dr. Gupta (PW 14). From the examination of the external injuries it could not be said that there was any serious injury on Gatiya. But this also indicates that they left injured Gatiya when they were not sure that he was dead. The injuries on Gatiya have been described by Dr. Gupta (PW 14). From the examination of the external injuries it could not be said that there was any serious injury on Gatiya. After his being admitted in the hospital he died on 26th, six days after the incident. The autopsy on the dead body was conducted by Dr. Agrawal P. W. 15 who found the fracture of the right temporal bone. Dr, Gupta only found a haematoma on the right temporal region. At best, it could be said that this haematoma on the right temporal region ultimately resulted from the fracture. But Dr. Agrawal in his deposition stated that the brain was intact although he has said that there was pressure on the brain due to haem atoma, but he was not able to explain how haemorrhage in the extra-dural space occurred. Apart from it, the doctor who treated Gatiya for six day, has not been examined. Under all these circumstances, the conclusion arrived at by the learned Court below that the common object or the aS3embly was to do away with Gatiya does not appear to be correct. When these appellants attacked Gatiya with Lathis, at the most knowledge could be attributed to them that as a result of that act Gatiya might die and therefore at the best intention under section 304 Part II of the Penal Code, alone could be attributed for inflicting such injuries. And the common object could not be anything more than chastising Gatiya. 3. Consequently, the conviction of the appellants under section 302 read with 149 IPC could not be maintained. They could only be convicted under section 304-Second Part-read with section 149 IPC. 4. As regards the conviction under section 148 IPC, except for those who were carrying axes, it appears that the conclusion of the learned Court below is not correct. The conviction of all the appellants, therefore, under section 148 IPC is set aside except that of Hira and Ranchu. The rest are convicted for offence under section 147 IPC. However, the sentence of six months rigorous imprisonment is maintained under the altered count. Ranchu has been convicted for offence under section 323 IPC for having inflicted injury on Kanhaiya and that conviction and sentence passed thereunder appears to be justified. The rest are convicted for offence under section 147 IPC. However, the sentence of six months rigorous imprisonment is maintained under the altered count. Ranchu has been convicted for offence under section 323 IPC for having inflicted injury on Kanhaiya and that conviction and sentence passed thereunder appears to be justified. Appeal partly allowed.