JUDGMENT 1. - The appellants Rampat, Dhanpat, Jaisingh, Suraja Sultan and Maidhan were prosecuted before the Additional Sessions Judge, Churu in respect of offences u/ss 148, 302, 325. 323 read with section 149 IPC. The Additional Sessions Judge, Churu, by his judgment dated 15-3-1974. has convicted the aforesaid appellants for the offences u/ss 148 and 302/149 IPC and has sentenced them to imprisonment for life u/s 302/ 149 IPC and to rigorous imprisonment for one year u/s 148 IPC Appellant Sultan has been convicted u/s 323 IPC and sentenced to simple imprisonment for six months and the other appellants have been convicted u/s 322/139 IPC and sentenced to simple imprisonment for six months. 2. Appellants Rampat, Dhanpat and Jai Singh are jats by caste and appellants Surja, Sultan and Maidhan are Chamars by caste. The case of the prosecution is that 18th March 1973 happened to be the day of Holi festival and on that date at about 7 p.m., appellants Maidhan, Surja and Sultan were beating 'dhaf' in the chowk of village Diyawar in Tehsil Rajgarh. Ram Singh the nephew of deceased Jotram wanted to take the 'dhaf from the aforesaid accused persons but they did not give it to him and a quarrel took place between Ram Singh and the aforesaid three accused persons. Gopiram (PW 4) and Jailal (PW 1) intervened and they brought Ram Singh to his house. After sometime, all the six accused person came to the house of Ram Singh and started hurling abuses. They were armed with lathies. Gopiram, Jailal and deceased Jotram came out of the house of Jotram asked the accused persons not to abuse and thereupon appellants Rampat, Dhanpat and Surja gave lathi blows on the head of Jotram as a result of which he fell down and became unconscious. Sultan gave a lathi blow which hit on the right eye brow of Gopiram. The prosecution has also alleged that at that time appellants Maidhan and Jaisingh were exhorting the other accused persons by saying "Jaan Se Maar Do". According to the prosecution Asharam (PW 2) and Sohanlal (PW 3) also arrived at the scene of the occurrence and witnessed the occurrence. After Jotram had fallen down and had become unconscious, the accused persons ran away. Jotram was taken to Sidhumukh and from there he was taken to Rajgarh where his injuries were examined by Dr. According to the prosecution Asharam (PW 2) and Sohanlal (PW 3) also arrived at the scene of the occurrence and witnessed the occurrence. After Jotram had fallen down and had become unconscious, the accused persons ran away. Jotram was taken to Sidhumukh and from there he was taken to Rajgarh where his injuries were examined by Dr. Surendra Kumar Narula In-charge, Government hospital, Sadulpur at that time and he found three injuries on the person of Jotram. One injury was a lacerated wound 1"x 1/2" x 1/4" on the middle frontal region of the scalp and the other two were diffused swelling of 4" x4" on the sclap. Dr. S.K. Narula also examined the Injuries of Gopiram (PW 4) and he found a diffused swelling 4" x 4" on the right side of the forehead. In view of the serious condition of Jotram he was transferred to District hospital Ratangarh for treatment as well as x-ray of the skull on 19-3-1973 and from there he was taken to Bikaner in the evening of 19th March 1973. While he was under treatment at the hospital the Bikaner, Jotram died on 22nd March 1973 at 5 a.m. 3. The FIR about the incident was lodged by Gopiram (PW 4) at police station Rajgarh on 19-3-1973 at 6. p.m. and on the basis of the said report a case u/s 307/147/148/149 IPC was registered. After the death of Jotram the case was converted to on u/s 302 IPC. The post-mortem examination of the dead body of Jotram was conducted by Dr. Dhirendra Singh, Medical Jurist of the Bikaner hospital on 22nd Match 1973. After completing the investigation the police filed a charge sheet against the accused persons in the court of Munsif Magistrate, Rajgarh, who after holding an enquiry, committed them for trial to the court of Sessions and thereupon charges u/ss 148, 302, 325 and 323/149 IPC were read over to the accused persons. The accused persons pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case examined six witnesses Jailal (PW 1), Asharam (PW 2), Sohanlal (PW 3), Gopi (PW 4) are eye-witnesses Sitram (PW 5) Reader in the office of the Addl. Superintendent of Police, Churn, had prepared the Panchnama (Ex. P.4) 'Farad Surat Hal Lash' (Ex. P. 5) and the memo (Ex. 4. The prosecution in support of its case examined six witnesses Jailal (PW 1), Asharam (PW 2), Sohanlal (PW 3), Gopi (PW 4) are eye-witnesses Sitram (PW 5) Reader in the office of the Addl. Superintendent of Police, Churn, had prepared the Panchnama (Ex. P.4) 'Farad Surat Hal Lash' (Ex. P. 5) and the memo (Ex. P. 6) relating to the seizure of the clothes of deceased and has proved the aforesaid documents. Kushalchand (PW 6) was posted as SHO police station Rajgarh and had conducted the investigation in the case. The statement of Dr. Surendra Kumar, who had examined the injuries of deceased Jotram and Gopiram at Govt. hospital Sadulpur on 19-3-73 recorded in the committal court brought on the record and the said witness was allowed to be cross examined. Similarly the statement of Dr. Dhirendra Singh, who has conducted the post-mortem examination of the dead body of Jotram recorded before the committal court was brought on the record and he was also allowed to be cross examined. The appellants in their statements recorded u/s 342 Cr. PC denied prosecution case and submitted that they had been falsely implicated. 5. The Additional Sessions Judge held that from the evidence of the four eye-witnesses viz., Jailal (PW 1) Asharam (PW 2), Sohanlal (PW 3) and Gopi (PW 4) it was established beyond doubt that all the six appellants came together armed with lathis in front of the house of Ram Singh and began to abuse and on hearing these abuses the deceased Jotram as well as Gopi (PW 4), Jailal (PW 1) Ram Singh came out and Jotram was assaulted with lathies on the head by accused Dhanpat, Rampat and Surja as a result of which he fell down on the ground and became unconscious and that Gopiram was also given a lathi blow on the forehead near the eye brow by Sultan. The Addl. Sessions Judge also found that according to the medical evidence the injuries sustained by Jotram on the head was grievous consisting of multiple fractures of skull bones and that the deceased died of the said head injuries. The Additional Sessions Judge further found that accused Maidhan and Jaisingh were also members of the unlawful assembly. According to the learned Addl. Sessions Judge also found that according to the medical evidence the injuries sustained by Jotram on the head was grievous consisting of multiple fractures of skull bones and that the deceased died of the said head injuries. The Additional Sessions Judge further found that accused Maidhan and Jaisingh were also members of the unlawful assembly. According to the learned Addl. Sessions Judge, the common object of the unlawful assembly of which all the six accused persons were members was to give a beating to Jotram and his family members and that Dhanpat, Rampat and Surja had caused grievous injuries to Jotram on his head which were sufficient in the ordinary course of nature to cause death and that accused Sultan caused injury to Gopiram with a lathi. In view of the findings aforesaid the Addl. Sessions Judge held that since :three accused persons viz. Rampat, Dhanpat and Sultan gave lathi blows with the intention of causing such bodily injuries which were sufficient in the ordinary course of nature to cause the death and the said injuries were caused in prosecution of the common object of the assembly, all the six accused persons were liable for the offence punishable u/s 302/149 I.P.C. As regards the injury on the person of Gopiram the Additional Sessions Judge held accused Sultan guilty of offence punishable u/s 323 I.P.C. and the other five accused persons guilty of the offence punishable u/s 323/149 I.P.C. In view of the findings aforesaid the Addl. Sessions Judge sentenced the appellants to the various terms of imprisonment referred to above. Hence this appeal. 6. We have heard Shri R.N. Bishnoi, the learned counsel for the appellants and Shri Niyajuddin Khan, the learned Public Prosecutor for the State. 7. Shri Bishnoi sought to assail the finding recorded by the Additional Sessions Judge that all the six appellants were members of the unlawful assembly, the common object of which was to give a beating to Jotram and his family members. The submission of Shri Bishnoi was that appellants Jaisingh and Maidhan cannot be held to be the members of the unlawful assembly inasmuch as no specific act has been assigned to them and they were only present in the chowk like other villagers who were present there for the festival. We are unable to accept the above contention of Shri Bishnoi. We are unable to accept the above contention of Shri Bishnoi. In so far as appellants Jaisingh and Maidhan are concerned, there is specific evidence of Jailal (P.W. 1) that all the six accused persons had come to the house of Ramsingh and were hurling abuses and that after Jotram had faljen down unconscious on being injured on the head all the six accused persons went away together. To the same effect is the evidence of Gopiram (P.W. 4). Their testimony finds corroboration from the evidence of Asharam (P.W. 2) and Sohanlal (P.W. 3). In our opinion, therefore, it must be held that all the six accused persons were members of the unlawful assembly and that the common object of the said unlawful assembly was to beat Jotram and the members of his family, and Gopiram (P.W. 4). 8. Shri Bishnoi next submitted that even if it be held that all the six accused persons were members of the unlawful assembly and the common object of the said assembly was to give a beating to Jotram and Gopiram. the conviction of the appellants for the offence 302 read with section 149 I.P.C. cannot be sustained. In support of his aforesaid submission Shri Bishnoi has pointed out that the incident had originated in a quarrel arising out of the beating of 'dhar on the occasion of the Holi festival. Shri Bishnoi has also submitted that according to the medical evidence the injuries that were found on the person of Jotram could not be said to have been inflicted with the intention to causing such bodily injury as was sufficient in the ordinary course of nature to cause the death. According to Shri Bishnoi all that can be said is that the said injuries were inflicted with the intention of causing grievous hurt and, therefore, the appellants could only be convicted for the offence punishable u/s 325/149 IPC. In support of his aforesaid submission Shri Bishnoi has invited our attention to the statements of Dr. Surendra Kumar, who had examined the injuries of Jotram deceased at Government hospital, Sadulpur on 19th March, 1973 and of Dr. Dhirendra Singh. Medical Jurist at Bikaner, who had conducted the post mortem examination of the dead body of deceased Jotram. 9. From the evidence of Dr. Surendra Kumar it appears that the deceased Jotram had the following three injuries on his head: "1. Dhirendra Singh. Medical Jurist at Bikaner, who had conducted the post mortem examination of the dead body of deceased Jotram. 9. From the evidence of Dr. Surendra Kumar it appears that the deceased Jotram had the following three injuries on his head: "1. Lacerated wound 1" x 1/4" x 1/4 -" on the middle of the frontal region of the scalp in a vartical manner four inches above the root of the nose. 2. Diffused swelling 4" x 4" on the left parietal and temporal regions of the scalp. 3. Diffused swelling 4" x 4" on both the parietal regions of the scalp in the mid line." The statement of Dr. Dhirendra Kumar shows that on reflection of scalp he found extravagant clotted blood present in the frontal, both parietal and temporal and occipital region. Dr. Dhirendra Kumar also found that a linear fracture of frontal and temporal bone about 6" in length and linear fracture about 9" length extending posteriorly involving right parietal and right side of occipital bone. From the aforesaid statement of Dr. Dhirendra Singh it appears that the three injuries were found on the head had resulted in linear fractures on the frontal right parietal and temporal bone and on the right parietal and right side of the occipital bone. Taking into consideration the genesis of the occurrence inasmuch as the occurrence took place during the course of the Holi festival on a dispute relating to beating of the 'dhaf' and the fact that the death of Jotram took place four days later we are of the opinion that it cannot be said that the appellants had the intention to commit the murder of Jotram or had the intention to inflict on him bodily injuries which were sufficient in the ordinary course of nature to cause. death. Taking into consideration the nature of injuries which were inflicted on the head of Jotram the appellants can be attributed with the knowledge that the injuries that were inflicted on the person of Jotram were likely to cause death. death. Taking into consideration the nature of injuries which were inflicted on the head of Jotram the appellants can be attributed with the knowledge that the injuries that were inflicted on the person of Jotram were likely to cause death. In the circumstances we are of the opinion that the offence punishable u/s 302/139 I.P.C. is not made out against the accused persons and the offence that is established against the accused persons is the offence of culpable homicide not amounting to murder punishable u/s 304 part II read with section 149 I.P.C. The conviction of the appellants for the offence u/s 148 and the conviction of appellant Sultan for the offence u/s 323 and all the other appellants u/s 323/149 I.P.C. does not however, need any interference. 10. On the matter of sentence Shri Bisnoi has stated that all the appellants have remained in custody after their arrest and during the course of investigation, enquiry and trial and after their conviction for a period of about five years.Taking into consideration the facts and circumstances of the case we are of the opinion that the ends of justice would be served if the appellants are awarded the sentence of the period of imprisonment already undergone by them in respect of offence u/s 304 Part II read with section 149 I.P.C. 11. In the result the appeal is partly allowed. The conviction of the appellants for the offence u/s 302/149 I.P.C. is set aside and instead the appellants are convicted for the offence u/s 304 (II) read with section 149 I.P.C. They are sentenced to the period of imprisonment already undergone by them for the aforesaid offence. The conviction and sentence of the appellants for the offence u/s 148 I.P.C. and the conviction and sentence of appellant Sultan for the offence u/s 323 I.P.C. and the other five appellants Rampat, Dhanpat, Jaisingh, Surja and Maidahan for the offence u/s 323/149 I.P.C. are maintained. The aforesaid sentences are to run concurrently. The appellants are already on bail. They need not surrender. Their bail bonds shall stand discharged.Appeal partly allowed. *******