JUDGMENT 1. This appeal is directed against the judgment dated 11th February, 1974 passed by the Additional Sessions Judge Udaipur in Sessions case No. 3 of 1971. In the Sessions case aforesaid 19 persons i. e. the eighteen appellants in this appeal and one Smt. Baktu wife of Nanji, were tried in respect of offence under section 148 302/149 and 323 I. P. C. The charge under section 302/149 I. P.C. related to the murder of one Jagnnath son of Senga and charge under section 323 I. P. C. relate; to the injuries caused to Senga P.W. 11, Dhanji P. W. 12, Vala P.W. 3, Dharma P.W. 3, Dharma P.W. 2 and Bherulal P.W.1. 2. The case of the prosecution is as under : 3. On 19th September, 1971 at about 4 P. M. Senga P. W. 1 and his son Jannnath deceased were working in their field in village Nareria. Senga was claiming some money from accused Deva and accused Nanji. Accused Gomana came to field of Senga and told Senga that he may come and take the money which he was demanding from Deva and Nanji. There upon Senga left with accused Gomana. When they had reached near a hillock known as Belimdi-wali-magri'' accused Deva, Nanji, Moga, Bakta, Kanji, Ramji, Teja and Kachara armed with sticks me them and started assaulting Senga with lathies. Senga raised a cry on hearing which Jagnnath deceased came to his rescue and he was also assaulted, Accused Hoorji Kalia, Mavji, Fata, Dhulia, Veerji, Dalji, Natha, Jhooma and accused Smt. Baktu wife of Manji also came there from the house of Veerji. On hearing the noise. Bherulal P. W. 1, Dharma P. W. 2, Vala P. W, 3, Dhanji P. W. 12, Jeeva P. W.t and Habji P.W. 5 also arrived there and tried to rescue Senga and Jagnnath but they were assaulted with lathies and stones were also pelted at them. The case of the] prosecution is further that Deva inflicted a blow on the head of Jagnnath with lathi and Nanji and Kanji gave one lathi blow each on his body as a result of which he fell down and that thereafter, Smt. Baktu wife of Manji lifted a stone weighing about 8 Kg. and threw it on the chest of Jagnnath as a result of which he died on the spot. and threw it on the chest of Jagnnath as a result of which he died on the spot. Accused Jhoomla had a sword in his hand and after taking it out from the shath be ran towards Jagnnath but Deva stopped him by saying that Jagnnath had already died. Deva snatched the sword from the hand of Jhoomla and thereafter all the accused persons ran away. Bherulal P. W. 1 along with Dhanji P. W. 12 went to lodge the report about the incident at Police Outpost Atri and from there they along with Constable Shambu singh went to Police Station Kotwali Dungarpur where the report Ex. P. 7 was lodged by Bherulal on 20th September, 1971 at 8.45 A. M. On the basis of said report a case under sections 147, 148, 149, 3/2-323 IPC was registered and investigation was commenced. Madan singh P.W. 16 who was S H. O. of Police Station Kotwali Dungarpur at that time took up the investigation and proceeded to the scene of the occurrence and after reaching there he prepared the Panchayatnama Ex. P. 10 memo of site inspection Ex. P. 11 and the site plan Ex. P. 12. The autopsy on the dead body of Jagnnath was conducted by Dr. K. H. Gandhi, Medical Officer, General Hospital, Dungarpur on 21st September, 1971 at 7.30 A M. vide post mortem reports Ex. P. 1. According to the post mortem report the deceased had three internal injuries, Injury No. 1 was lacerated wound 2"X 1/2" bone deep on the vault of the skull. Injury No. 3 was haematoma on lie fore-head. Injury No. 3 was bruises all over the front of the chest which on pressing showed that ribs 3, 4, 5, and 6 on the right side and 4, 5, and 6 on the 'eft side were fractured. On internal examination be found that on removing the scalp there was extravasation of blood all over the skull and there was longitudinal fracture of the'middle of the frontal bone extending from the frontal part and going up to the contusion of the right parietal bone and that the sagittal sutures 'were separate and there was longitudinal fracture of the right parietal bone up to the vault of the skull and further there was oblique fracture of the squa much part of the left temporal bone. He further found that on opening the skull there was blood in the meninges, the meningeal blood vessels were ruptured. On opening the thorax the fracture of the right 3, 4, and 5 and left 4, 5 and 6 ribs were confirmed and the bony ends of these ribs pierced the lungs and pleurae and there was free blood in the pleurae cavity on both the sides. According to the medical officer, the death was due to shock and hemorrhage caused by the fracture of the skull and, ribs and rupture of the lungs. Dr. Gandhi also examined the injuries of Dhanji P. W. 12 and Bherulal P/W. 1 on 20th September, 1971 and prepared the injury reports Exs. P. 2 and P. 3 respectively. The injuries of Dharma P. W. 2, Senga P. W. 11 and Vala /P. W. 3 were examined by Dr. K. H. Gandhi on 21st September, 1971 vide injury reports Exs. P. 4, P. 5, and P. 6 respectively. The accused persons were arrested on various dates between 20th September, 1971 to 6th December, 1971 vide memos of arrest Ex. P. 33 to P. 51. After their arrest some of the accused persons gave information vide memos Ex. P. 52 to Ex. 56, Ex. P. 58 to Ex. P. 65 and Ex. P. 65 on the basis of which certain lathies were recovered vide memo Ex. P. 13 to Ex. P. 17 and Ex. P. 19 to Ex. P. 25. On the basis of the information-Ex. P. 64 given by accused Deva a sword was recovered vide memo Ex. P. 26. A stone weighing about 8 to 9 Kgs. was recovered vide memo Ex. P. 18 on the basis of information Ex. P. 57 given by Smt. Baktu. Some injuries were found on the person of appellants Veerji, Kalia, Manji, and Moga at the time of their arrest on 20th September, 1971 and the injuries of the said accused persons were examined by Dr. K. M. Jain P. W. 10 Medical Officer In charge, Government Hospital, Sagwara on 20th September 1971 and, he prepared the injury reports Exs. P. 27, P. 28, P. 29 and P. 30 with regard to the injuries found on accused Veerji, Kalia, Nanji and Moga respectively. K. M. Jain P. W. 10 Medical Officer In charge, Government Hospital, Sagwara on 20th September 1971 and, he prepared the injury reports Exs. P. 27, P. 28, P. 29 and P. 30 with regard to the injuries found on accused Veerji, Kalia, Nanji and Moga respectively. After completing the investigation the police submitted a charge-sheet against all the 19 accused persons in the court of Munsif Magistrate, Dungarpur who, after inquiry, committed the accused persons for trial in the court of sessions and thereupon charges under sections 148, 302 read with section 149 I P. C. and section 323 I.P. C. were read over to the accused persons by the Additional Sessions Judge, Udaipur. The accused persons pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case examined 16 witnesses, Bherulal P.W. 1, Dharma P. W. 2. Vala P. W. 3, Jeeva P. W. 4, Habji P. W. 5, Senga P. W. II, Dhanji P. W. 12 and Nagji P. W. 14 were examined as eye witnesses of the occurrence. Jeeva P. W. 4, Habji P. W. 5 and Nanji P. W. 14 did not, however, support the case of the prosecution. Phoola P. W. 6, Kalia P. W. 7 are the testing witnesses of the Panchanama Ex. P. 10, memo of site inspection Ex. P. 11 and site plan Ex. P. 12 Pratap singh P. W. 8 is the attesting witness of the recovery memo Exs. P. 13. P. 14, P. 15, P. 16, P. 17, P. 19, P 20, P. 21, P. 22, P. 23, P. 24 and P. 25, relating to the lathies which were recovered at the instance of the accused persons, memos Ex. P. 13 relating to the recovery of the stone and memo Ex. P. 26 relating to the recovery of a sword at the instance of accused Deva. Bhawanisingh P. W. 9 is the constable attached to Police Station Kotwali. Dungarpur who had taken the dead body of Jagnnath from village Nareria to Dungarpur hospital for the purpose of post mortem examination. Dr. K.M. Jain P.W. 10 was the Medical Officer Incharge, Government Hospital, Sagwara who had examined the injuries of accused Veerji, Kalia, Nanji and Moga and has proved the injury reports Exs. P.27 P. 28, P. 29, and P. 30. Dr. K.M. Jain P.W. 10 was the Medical Officer Incharge, Government Hospital, Sagwara who had examined the injuries of accused Veerji, Kalia, Nanji and Moga and has proved the injury reports Exs. P.27 P. 28, P. 29, and P. 30. Pyarelal P.W. 13, was posted as Tehsildar and Magistrate Second Class at Dungarpur on 26th October, 1971 and had conducted the identifj- cation proceedings relating to a wooden stick and has proved the memo Ex. P. 31 prepared by him with regard to the aforesaid identification proceedings. Shri Jamil Ahmed Kaji P. W. 15 was Dy. Superintendent of Police, Dungarpur on 20th September, and had come to the scene of the occurrence and had got the Panchayat Nam; Ex. P. 10 the memo of site inspection Ex P. 11 and the site plan Ex. P. 12 prepared in his presence. Madan singh P. W. 16 was posted as S.H.O. Police Station Kotwali, Dungarpur on 20th September, 1972 and conducted the investigation in the case.i Dr. K. H Gandhi who had conducted the post mortem examination of that dead body and had examined the injuries of Bherulal, Dhanji, Dharma, Senga and Vala could not be examined during the course of trial and his statement recorded before the committing court was brought on record as Ex. P. 85. 5. In their statement recorded under section 342 Cr. P. C. the accused persons denied having assaulted Jagnnath with lathi or having assaulted Bherulal Dharma, Gwala, Senga and Dhanji. All the accused persons except accused Veerji Kalia, Moga and Nanji have deined their presence on the scene of the occurrence at the relevant time. Accused Veerji, Kalia and Moga have pleaded that on the day of the occurrence at about 5 P. M. they were sitting at the house of Veer and that deceased Jagnnath along with Senga, Dhanji, Vala, and Bherulal came there. They were armed with lathies. Senga demanded money for Moga and when Moga said that nothing was payable by him, all six of them started assaulting Moga with lathies. They were armed with lathies. Senga demanded money for Moga and when Moga said that nothing was payable by him, all six of them started assaulting Moga with lathies. Veerji and Kaliya intervened and thereupon they were also assaulted with lathies and that there was blood ail over the housed Accused Nanji pleaded that when he was returning from "Mataji" he said that; quarrel was going on and Senga, Vala, Dharma and Dhanji were standing on to Doongari and that these persons came and assaulted him with lathies as a resuil of which he sustained injuries. He has stated that he was not aware as to what was the cause of the quarrel and who were involved in the quarrel. The accused person examined two witnesses, namely, Habji P. W. 1 and Natha P. VV. 2 in their defence. 6. The Sessions Judge held that from the statement of Dr. K. H. Gandhi as well as from the post mortem report Ex. P. it was abundantly proved that Jagnnath had died as a result of homicidal violence. The Sessions Judge further held that the statements of Bherulal P. W. 1, Dharma P. W. 2, Vala P. W. 3, Seng P. W. 11 and Dhanji P. W. 12 find corroboration from the medical evidence relating to the post mortem examination of the dead body of the deceased and the injuries found on the persons of Bherulal, Dharma, Vala, Senga and Dhanji and that i: addition there was the evidence with regard to the recovery of some weapons oi assault from the scene of occurrence and,also from some of the accused persons at 4 their instance. As regards defence version, the learned Sessions Judge held that " the said version does not appear to be probable and worthy of belief in the fact and circumstances of the case and that the witnesses that have been examined it support of the defence are false and cooked up witnesses. As regards defence version, the learned Sessions Judge held that " the said version does not appear to be probable and worthy of belief in the fact and circumstances of the case and that the witnesses that have been examined it support of the defence are false and cooked up witnesses. As regards the injuries found on the persons of some of the accused persons the Sessions Judge held that said injuries might have been received during the course of the incident and that the failure on the part of the prosecution witnesses to explain the said injuries was not of much consequence because in mallee when a number of persons assembly and a fight is going on with lathies, it is very difficult for any body to say as to whose hands a particular person had received the injury. The Sessions Judge was of the view that the testimony of P. W. 3 Bherulal, Vala, Senga and Dhanji whose presence at the spot is established from the fact that all of them had sustained injuries, could not be brushed aside or disbelieved only for the reason that they are inter related. The Sessions Judge also held that the statements of all these witnesses are consistent and that there are absolutely no glaring discrepancies in their statements inter so on material points. The Sessions Judge also held that the statements of all these witnesses are consistent and that there are absolutely no glaring discrepancies in their statements inter so on material points. On the basis of the evidence of the afore said witness (ii) the Sessions Judge held that the accused persons who were larger in number and who were armed with deadly weapons, were the aggressors and that they had assembled with a preplan to teach Senga a lesson and for that purpose accused Gonna was sent to the field of Senga and accused Gomna had taken Senga with him on the pretext that accused Deva and Nanji were calling him and that they would return the amount which was due towards them and when Senga reached near the house of accused Veerji, accused Moga, started the quarrel by saying that no amount was due towards him and Deva and when Senga gave details of the amount due Moga totally denied it and he and some other accused persons started assaulting Senga, and on Senga raising an alarm Jagnnath rushed to the spot and when he tried to intervene he was also given lathi blows and that Deva, Kanji and Nanji inflicted severe lathi blows on the vital parts of his body resulting in his death. The Sessions Judge was however of the view that it could not be believed that when so many other male accused persons were there the solitary woman accused Smt. Baktu could have taken an active part in the assault and further that the recovery of the stone at the instance of Smt. Baktu was very much doubtful in nature. In view of the findings aforesaid the Sessions Judge acquitted Smt. Baktu of all the charges. As regards the appellants, the Sessions Judge held that the offence under section 148 I.P.C. was made out against all of them because all of them had assaulted and armed with lathies, which are deadly weapons, with a preplan to teach Senga a lesson and to meet this Senga was called from his field and was assaulted by some of the appellants with lathies and when Jagnnath came there to rescue his father, he was assaulted with lathies by some of the appellants. As regards the offence under section 302/149 I.P.C., the Sessions Judge held that it was not the common object of the unlawful assembly to commit the murder of Jagnnath and that the act of accused persons Deva, Nanji and Kaliya in giving fatal blows on the vital parts of the body of Jagnnath can very well be differentiated from the acts and that part played by the other accused persons and that the remaining accused persons might not be having knowledge about the subsequent act of appellants Deva, Nanji and Kanji. The Sessions Judge held that only accused persons Deva, Nanji and Kanji can be held guilty of the offence under section 302/149 I.P.C. and that the other accused persons could not be held guilty for the said offence. The Sessions Judge was of the view that a community of object had further developed in between the accused persons when they assaulted P. Ws. Bherulal, Dharma, Vala and Dhanji when they had tried to intervene and rescue Jagnnath and, therefore, the offence under section 323 read with section 149 I. P. C was proved against all the appellants. The Sessions Judge, therefore, convicted all the appellants of the offence under sections 148 and 323 read with section 149 I. P. C. and convicted appellants Deva, Nanji and Kanji and also for the offence under section 302 read with section 149 I. P. C. Hence this appeal. 7. We have heard Shri N.N. Mathur the learned counsel for the appellants and Shri M.C. Bhati learned Public Prosecutor for the State. 8. As noticed earlier the case of the prosecution rests upon the evidence of Bherulal P.W. I, Dharma P. W. 2, Vala P.W. 3, Senga P.W. II and Dhanji P. W. 12,. Senga P.W. 11 is the father of the deceased, Dhanji P. W. 12 is the son of Senga and brother of the deceased. The father of Bherulal P. W. 1 is the real brother of Senga. Dharma P. W. 2 is the real brother of Bherulal and Vala P. W. 3 is the real brother of Senga P. W. 11. It would thus appear that all the witnesses are thus closely related to each other. The other witnesses examined by the prosecution viz. Jeeva P. W. 4, Habji P. W. 5, and Nanji P.W. 14 did not support the prosecution case. As regards P. Ws. It would thus appear that all the witnesses are thus closely related to each other. The other witnesses examined by the prosecution viz. Jeeva P. W. 4, Habji P. W. 5, and Nanji P.W. 14 did not support the prosecution case. As regards P. Ws. Bherulal, Dharma, Vala, Senga and Dhanji it may be stated that all of them had sustained injuries during the course of occurrence. The injuries of Bherulal P. W. 1 and Dhanji P. W 12 were medically examined on 20th September. 1971, at General Hospital, Dungarpur and the injuries of Dharma P. W. 2, Vala P. W 3 and Senga P. W. i 1 were medically examined at the Dungarpur Hospital on 21st September, 1971. According to the injury report Ex. P. 3, Bherulal P. W. 1 had four injuries on his person out of which three were abrasions and one was a lacerated wound 2" x x bone deep on the right side of frontal region, clotted blood all round. Injury report Ex. P. 2 shows that Dhanji P, W, 12 had two injuries, one was a lacerated wound 1/2" x ⅕" x 1" deep on the dorsum of the right palm near the little finger and other was haematoma on the right parietal region. According to the injury report Ex.-.P. 4, Dharma P. W. 2 had two injuries, one was an abrasion and other was an oblique lacerated wound 11/2" x 1/4" x 1/4" deep on the left side of the vault of the skull with clotted blood all round. According to the injury report Ex. P. 6 Vala P. W. 3 had four injuries out of which three were lacerated wounds and one was an abrasion. One of the lacerated wounds was 11/2" x 1/2" x 1/4" deep on the right parietal region near the vault of the skull with clotted blood in the hair all round, the second lacerated wound was 1" x ⅙" x ⅙" on the left parietal region near vault with clotted blood all round and the third lacerated wound was longitudinal 21/2" x 1/4" x 1/4" deep on the right frontal region with clotted blood. According to the injury report Ex. P. 5 Senga P. W. 1 had two injuries, one abrasion on the sternum and the other was lacerated wound 1/2" x 1/4" x 1/4" deep on the back left fore arm near elbow. According to the injury report Ex. P. 5 Senga P. W. 1 had two injuries, one abrasion on the sternum and the other was lacerated wound 1/2" x 1/4" x 1/4" deep on the back left fore arm near elbow. The injury reports referred to above thus show that Bherulal, Dharma, Vala and Dhanji had sustained injuries on the vital parts of the body namely, the bead. From the evidence of Bherulal P. W. 1 it appears that at the time of the occurrence he was at his bouse and his house is quite near the house of Senga and that the field of Senga is at a distance of 11/2 furlong from his house and that the house and Bara of Dharma lies in between the field of Senga and the house of Bherulal. `Belimidi-wali-magri' where the occurrence is said to have taken place, is at a distance of one furlong from the field of Senga. Similarly Dharma P. W. 2 has stated that at the time of the occurrence he was sitting in his house and his house is at a distance of about 250 to 300 pounds from`Belimidi-wali-magri'. He has also stated that only one Pada falls between his house and the place of the occurrence. Vala P. W. 3 has stated that his house is at a distance of about 200 pounds from the place of the occurrence. Dhanji P. W. 12 has stated that at the time of the occur-ranee he had come to the field of his father Senga. It would thus appear that all these witnesses were having their houses near the place of the occurrence and were in a position to reach the scene of the occurrence on hearing the alarm of Senga and Jagnnath. They are natural witnesses and taking into consideration the injuries found on their person we are of the view that their presence at the scene of the occurrence cannot be doubted. 9. The next question which arises for consideration is whether the version of the incident, as given by these witnesses, is worthy of credence. Senga P. W. 11 has deposed with regard to the entire occurrence. 9. The next question which arises for consideration is whether the version of the incident, as given by these witnesses, is worthy of credence. Senga P. W. 11 has deposed with regard to the entire occurrence. He has stated that about 4 P. M. he and his son Jagnnath were working in their field and accused Gomana came there to call him and told him that Deva and Nanji were willing to pay the money which was owned by them to him. There upon lie accompanied accused Gomna and they : proceeded towards the house of Deva. When they reached "Belimidi-wali-magri" he saw all the accused persons sitting at the house of Veerji and on seeing him appellants Deva, Kanji. Moga, Kachra, Vakta, Teja, Nanji and Ramji who were armed with lathies came there and Moga asked him as to for what he was demanding money and there upon be (Senga) explained the details of the money which was owed to him. I There after Moga gave a blow with a lathi on his right side and another blow with lathi on his face as a result of which his teeth were broken. Ramji gave a lathi blow on his back and other also assaulted him with lathies. He raised an alarm on hearing which his son Jagnnath who was in the field came there to his rescue and asked as to why he (Senga) was being assaulted. There upon the other appellants who were sitting at the house of Deva came with lathies and all the accused persons started assaulting Jagnnath. When Jagnnath was being assaulted he ran and raised a cry on hearing which Vala came and tried to intervene and he was also assaulted. There after his second son Dhanji as well as Bherulal and Dharma also arrived there. A stone was pelted at Dharma which hit him on his head. A stone also hit on the head of Bherulal. Kanji gave a blow with a lathi on the right hand of Dhanji. The accused persons surrounded Jagnnath while he was running and appellant Deva gave a blow with a lathi on his head and appellants Nariji and Kanji gave one blow each with a lathi on the neck of Jagnnath as a result of which he fell down. Kanji gave a blow with a lathi on the right hand of Dhanji. The accused persons surrounded Jagnnath while he was running and appellant Deva gave a blow with a lathi on his head and appellants Nariji and Kanji gave one blow each with a lathi on the neck of Jagnnath as a result of which he fell down. There after accused Smt. Baktu, lifted a stone weighing 6 to 7 Kgs and threw it on Jagnnath and there after Jagnnath died on the spot. Appellant Jhoomla had a sword with him and after taking it out from the sheath he ran towards him in order to assault him out Deva snatched the sword from the hands of Jhoomla saying that Jagnnath had died and that they should now run away. Thereafter some of the accused persons threw away their lathies but others carried the lathies with them. The sheath of the sword was left their there but the sword was taken by the accused persons with them. 10. Dhanji P.W. 12 substantially corroborates the testimony of Senga, He has stated that on the date of the incident he was at the house and his father and his brother Jagnnath were working in the field, At about 4 P. M. appellant Gomna had come to his house and asked for Senga and he told him that he is in the field. Gomna told him to send Senga to collect the money which he was claiming from appellant Deva and Nanji. Dhanji told him to come to the field and that he took appellant Gomna to Senga in the field and Gomna asked Senga to come and collect his money from Deva and Nanji who were at their house. Thereupon Senga left with Gomna and when they had reached "Belimdi-wali-magri" the accused persons arrived there and they started assaulting Senga. Thereupon Senga raised an alarm on hearing which Jagnnath rushed there and he (Dhanji) followed Jagnnath. When Jagnnath reached there he was assaulted by the accused persons. Dhanji has also stated that when he reached there he entreated the accused persons not to assault them, and that one blow with a lathi was given on his right hand. He has also stated that apart from him, Bherulal, Vala, and Dharma had also arrived there. When Jagnnath reached there he was assaulted by the accused persons. Dhanji has also stated that when he reached there he entreated the accused persons not to assault them, and that one blow with a lathi was given on his right hand. He has also stated that apart from him, Bherulal, Vala, and Dharma had also arrived there. He has also stated that in his presence appellant Deva gave a lathi blow on the head of Jagnnath and appellant Nanji and Kanji gave blood was with lathies on both the sides of the neck of Jagnnath as a result of which Jagnnath fell down an J thereafter Smt. Baktu lifted a stone weighing 4 to 5 Kg. and dropped it on the chest of Jagnnath as a result of which he died on the spot. He has also stated that appellant had a sword with him and he took out the sword out of the sheath and ran towards Jagnnath but appellant Deva told him that Jagnnath had died and they should go away and Deva took the sword from the hands of Jhoomla, and thereafter the accused persons ran away and that while running some of the accused persons left their lathies on the spot and some took the lathies with them. 11. The other three witnesses, namely, Bherulal, Dharma and Vala have deposed about that part of the occurrence which took place after the arrival of Jagnnath deceased at "Belimidi-wali Magri' on hearing the alarm of. Senga. Bherulal P.W. 1 has stated that while he was at his house he heard cries of Senga and Jagnnath and on hearing those cries he went to "Belimdi-wali-magri'' and there he saw the accused persons assaulting Senga and Jagnnath. He has also stated that they had seen appellants, Deva, Nanji and Kanji assaulting Jagnnath with lathies as a result of which Jagnnath fell down and there after Smt. Baktu threw a stone over his chest. Bherulal has also stated that accused Ramji threw a stone at him which hit him on his head and some body else threw two stones which hit him on his right hand and right leg. Bherulal has also stated that accused Ramji threw a stone at him which hit him on his head and some body else threw two stones which hit him on his right hand and right leg. Bherulal has also stated that Jagnnath died on the spot and that appellant Jhoomla had a sword with him and that after Jagnnath had fallen down on the ground Jhoomla took out the sword from the sheath and tried to assault Jagnnath with it but Deva prevented him and told him that Jagnnath had died and thereafter accused Deva took the naked sword and they run away. To the same effect is the testimony of Dharma P. W. 2 and Vala P. W. 3, 12. A perusal of the testimony of Bherulal, Dharma, Vala, Senga and Dhanji thus shows that as regards the first part of the occurrence, namely, the visit of appellant Gomna to the field of Senga and his taking Senga with him by saying that appellant Deva and Nanji wants to pay the money which was owed by them to Senga and the assault on Senga by the accused persons at "Belimdi-wali-magri" and Jagnnath rushing to "Belimdi-wali-magri.'' on hearing the cries, of Senga there is the testimony of Senga P. W. 11 and Dhanji P. W. 12. But all the five witnesses have deposed with regard to the assault by the accused persons on Senga and Jagnnath at Belimdi-wali-magri and appellant Deva having given a blow on the head of Jagnnath with a lathi and appellant Kanji and Nanji each having given a blow with a lathi on the neck of Jagnnath as a result of which Jagnnath fell down and there after accused Smt. Baktu having thrown a stone on chest of Jagnnath resulting in his death on the spot. All the five witnesses have also deposed about appellant Jhoomla rushing with naked sword and accused Deva preventing him by saying that Jagnnath had already died and they should run away and snatching the sword from the hands of Jhoomla and thereafter all the accused persons running away from the scene of occurrence and some of the accused persons leaving behind their lathies on the spot, All the witnesses have also mentioned about the injuries inflicted on them by the accused persons during the occurrence. 13. 13. Shri Mathur the learned counsel for the appellants has submitted that the aforesaid version given by these witnesses viz P. Ws. 1, 2, 3, 11 and 12 with regard to the incident cannot be accepted as true and must be discarded. In this regard Shri Mathur has pointed out that the version given by these witnesses has not been accepted, in toto, by the Sessions Judge also and that the Sessions Judge has not accepted the testimony of these witnesses in so far as they have deposed that after Jagnnath had fallen on the ground Smt. Baktu lifted a heavy stone and threw it on the chest of Jagnnath. Shri Mathur has also submitted that the version given by these witnesses does not find support from the medical evidence in as much as while Senga P. W. 11 in his statement before the court, has stated that he had received injuries with lathies on his face and his teeth were broken and that he was also given a blow with a lathi on his back but according to the injury report Ex. P. 2 the only injuries found on the person of Senga were on the left fore arm and on the sternum and there was no injury on his mouth or on his back. Shri Mathur has also submitted that similarly all the witnesses have deposed that deceased Jagnnath was assaulted with lathies by all the accused persons but according to the post mortem report Ex. P. 1 only three injuries were found on the person of the deceased. Shri Mathur has also submitted that the version given by the aforesaid witnesses is liable to be rejected also for the reason that admittedly four of the accused persons, namely, Veerji, Kaliya, Nanji and Moga had sustained injuries during the course of incident but none of these witnesses has offered any explanation for the said injuries. The submission of Shri Mathur is that the incident had not taken place in the manner as alleged by these witnesses but had taken place in the manner as pleaded by the accused persons all the house of Veerji where Veer was assaulted by Jagannath and these witnesses. The submission of Shri Mathur is that the incident had not taken place in the manner as alleged by these witnesses but had taken place in the manner as pleaded by the accused persons all the house of Veerji where Veer was assaulted by Jagannath and these witnesses. In this regard Shri. Mathur has invited our attention to the testimony of Kaliya P. W. I who, during the course of cross-examination has stated that drops of blood were lying between the place of the occurrence and the house of appellant Veerji and that blood lying inside the house of appellant Veerji was shown to him and the Investigating Officer had the wife of Veerji and that the Investigating Officer had made t mention about the place where the blood was found in the house of Veerji in the memo. 14. After giving our careful consideration to the aforesaid submissions Shri Mathur we are unable to accept the same. In so far as the defence version d the occurrence is concerned, we are of the opinion that there is no material on the record to lend support to the said version. According to the defence version while appellant Veerji and Kalia and Moga were sitting at the house of Veerji, Senga P.W. 11, Jagnnath deceased, Dhanji P.W. 12, Bherulal P. W. 1. Dharma P. W. 2 and Vala P.W. 3 armed with lathies came there and Senga demanded money from Moga said that he did not owe anything all the accused psrsons started assaulting Moga with lathies and when Veerji and Kalia tried to intervene they were also assaulted with lathies and that the lot of blood had fallen in the house. Thus according to defence version the occurrence took place.at the house of appellant Veerji and not at Belimdi-wali-magri, Their fore said version is, however, not supported : by the site plan Ex. P. 12 and memo of the site inspection Ex.P. 11. According to the site plan the dead body of Jagnnath was found at a distance of about 105 feet from 'Belimidi-wali-magri' and earth was stained with blood. There is nothing in the said memos to show that drops of blood were found between Belimidi-wali- Jmagriand the house of appellant Veerji or blood was found inside the [ house of Veerji. According to the site plan the dead body of Jagnnath was found at a distance of about 105 feet from 'Belimidi-wali-magri' and earth was stained with blood. There is nothing in the said memos to show that drops of blood were found between Belimidi-wali- Jmagriand the house of appellant Veerji or blood was found inside the [ house of Veerji. The aforesaid memos were prepared by Investigating Officer, Madan singh P. W. 16 in the presence of Jamil Ahmed Kaji P.W. 15, Deputy Superintendent of Police, Dungarpur. Shri Jamil Ahmed Kaji has stated that signs of blood were found at places marked `A' `8' in the site plan Ex. P. 12 the placed marked `A' in the site plan Ex. P. 12 is Belimdi-wali-magri and placed marked `B' in the site plan is at a distance of 105 fee.t from place `A' and the dead body of Jagnnath was found there. Shri Jamil Ahmed Kaji has denied having gone inside the house of appellant Veerji and having found blood there. He has stated that no body had told him at that time that blood was lying inside the house of Veerji, or otherwise he would have gone inside the house of Veerji and would have prepared a memo after seeing the site. He has also denied that he had seen drops of blood between the place of the occurrence and the house of appellant Veerji, and has stated that if he had seen them he would have mentioned this fact in the memo. Similarly Madansingh P.W. 16 has stated that he did not see blood k in the house of appellant Veerji. He has also denied that blood was found lying between the place of the Occurrence and the house of appellant Veerji. He has stated that when he went to the house of appellant Veerji, the wife of Veerji was not there. Phula P.W. 16, who is an attesting witness of the site inspection, Ex. P. 11 and the site plan Ex. P. 12 has stated that he was not aware as to whether there was blood in the i house of appellant Veerji. Taking into consideration the evidence of Shri Jamil Ahmed Kaji P. W. 15, Madan singh P W. 16 and Phoola P W 6 and the memo of site inspection Ex. P. 11 and the site plan Ex. P. 12 has stated that he was not aware as to whether there was blood in the i house of appellant Veerji. Taking into consideration the evidence of Shri Jamil Ahmed Kaji P. W. 15, Madan singh P W. 16 and Phoola P W 6 and the memo of site inspection Ex. P. 11 and the site plan Ex. P. 12 we are of the opinion that no reliance caa be placed on the testimony of Kalia P. W. 7, that blood was found in the house of appellant Veerji as well as between the place of occurrence and the house of appellant Veerji and that it was also seen by the Investigating Officer and he had made a note of it in the memo. In our opinion, on the basis of the memo of site inspection Ex. P. II and the site plan Ex. P. 12 and the testimony of Shri Jamil Ahmed Kaji P. W. 15 and Madan Singh P. W. 16 it must be held that blood was found only at Belimdi-wali-magri and at the place where the dead body of Jagnnath was found and no blood was found either at the house of appellant Veerji or between the place of the occurrence and the house of appellant Veerji. Once it is held that no blood was found at the house of appellant Veerji the whole found a petition of the defence version of the occurrence falls to the ground. It cannot, therefore, IT be held that the defence version put forward by some of the appellants is a probable version. 15. We are of the opininon that the incident must have taken place in the manner as stated by the eyewitnesses examined by the prosecution in as much as the aforesaid version finds corroboration from other circumstances, namely, the finding of the dead body of Jagnnath near Belimdi-wali-majri as well as the recovery of a number of sticks bearing blood stains from near the place of the occurrence. It is true that the Sessions Judge, has not accepted the evidence of the eyewitnesses as regards throwing of stone on the chest of Jagnnath by accused Smt. Baktu. It is also true that there is some exaggeration in the testimony of the eyewitnesses with regard to the t injuries sustained by Senga P.W. 11 and Jagnnath deceased. It is true that the Sessions Judge, has not accepted the evidence of the eyewitnesses as regards throwing of stone on the chest of Jagnnath by accused Smt. Baktu. It is also true that there is some exaggeration in the testimony of the eyewitnesses with regard to the t injuries sustained by Senga P.W. 11 and Jagnnath deceased. But in our opinion the aforesaid infirmities are not of material significance, and that the evidence of the eyewitnesses as regards the main part of the occurrence viz. that the accused party I first assaulted Senga P.W 11 and that when Jagnnath deceased came to the rescue of Senga he also was assaulted and when Bherulal, Dharma, Vala and Dhanji tried to intervene they were also assaulted, finds ample support from the other circumstances, namely, medical evidence relating to the injuries found on the person of the deceased and the eyewitnesses and the finding of sticks at the scene of the occurrence and findings of blood at Be-limidi-wall-magri, the scene of the occurrence. 16. As regards the injuries that were found on the person of appellants Veerji, Kaliya, Manji and Moga it may be observed that the case of the prosecution is that the accused party consisted of 18 persons and the complainant party consisted of six persons and it is quite possible that during the course of the occurrence the who witnesses who came to the rescue of Senga and Jagnnath might also be weirded weapons as a result of which the said injuries were sustained by the aforesaid appeal Hants and the witnesses may not have noticed those injuries. In the facts and circumstances of the case we are of the opinion that the failure on the part of the eye witnesses to make a mention about those injuries found on the persons of the appellant Veerji, Kalia, Nanji and Moga or offering an explanation for"the said injuries cannot lead to the inference that the appellant were not the aggressors and the incident had not commenced in the manner as stated by the prosecution witnesses but in some other manner. On a careful perusal of the evidence Bherulal P. W. 1, Dharma P. W. 2, Vala P. W. 3, Senga P. W. 11 and Dhanji P. W. 12 we are safe filed that the reliance can be placed on the testimony of these witnesses and the version about the incident as given by them can be accepted in so far as they have stated that while Senga and Jagnnath were working in their field appellant Gomana came to call Senga and told him that he may collect the money which he was claiming from appellant Deva and Nanji and thereupon Senga accompanied appellant Gomana and when he reached `Belimdi-wali-magri' he was assaulted by some of the appellants and he raised an alarm where upon deceased Jagnnath rushed to his rescue and Jagnnath was also assaulted and oi hearing the alarm of Jagnnath and Senga the other witnesses, namely Bherulal, Dharma, Vala, and Dnanji reached then and they were also assaulted and that as a result of the injuries sustained by him during the course of the occurrence Jagnnath died on the spot. 17. The next question which arises for consideration as to the offence or offences which can be said to have been committed by the accused persons. In view of our finding that the incident had taken place substantially in the manner as stated by eye witnesses examined by the prosecution it must be held that the appellants constituted an unlawful assembly in as much as all of them had assembled armed with lathies with a prior concert and meeting of minds between them to teach lesson to Senga because he was demanding money from appellant Deva and Nanji and appellant Gomna was sent to call Senga in pursuance of the aforesaid common object. The assault on Senga by some of the appellants at `Belimdi-wali-Magri' was also in pursuance of the said common object of the unlawful assembly. When, Jagnnath deceased, came to the rescue of his father Senga, he was assaulted and when Bherulal, Dharma, Vala, and Dhanji came to the rescue of Jagnnath and Senga they were also assaulted. The aforesaid assault on Jagnnath deceased as well as on Bherulal, Dharma, Vala and Dhanji can also be said to have been committed in furtherance of the common object of the unlawful assembly. The aforesaid assault on Jagnnath deceased as well as on Bherulal, Dharma, Vala and Dhanji can also be said to have been committed in furtherance of the common object of the unlawful assembly. Since all the appellants were armed with lathies and injuries were inflicted on the persons of Jagnnath deceased and Senga, Bherulal. Dharma, Vala aad Dhanji, all the appellants have been rightly held guilty of the offences under section 148 IPC and section 323 read with section 149 IPC. Shri Mathur has also not been able to point out any infirmity in so far as the conviction of the appellants for the offences under section 148 and section 323 read with section 149 IPC is concerned. 18. Shri Mathur has however assailed the conviction of appellants Deva, Nanji, and Kanji for the offence under section 302/149 IPC. Shri Mathur has submitted that in view of the findings that the common object of the unlawful assembly was only to assualt Senga with a view to teach him lesson and the assualt on Senga and deceased Jagnnath and Bherulal, Dharma, Vala and Dhanji when they came to the rescue of Senga and Jagnnath was in furtherance of the aforesaid common object of the unlawful assembly, it must be held that the common object of the assembly was not to kill Jagnnath and it can also not be said that the members of the unlawful assembly knew that murder of Jagnnath may likely be committed in prosecution of the common object of the assembly. Shri Mathur, therefore, submitted that the act of some of the members of the unlawful assembly resulting in the death of Jagnnath could not be said to be acts done in prosecution of the common object of unlawful assembly attracting the vicarious responsibility of the other members of the unlawful assembly for these act and that only the persons who had inflicted the particular injury on Jagnnath could be held responsible for his individual act. Shri Mathur, therefore, submitted that the conviction of appellant Deva, Nanji and Kanji for the offence of murder under section 302 with the aid of section 149 IPC. cannot be sustained and the said appellant persons can be held guilty only in respect of there individual acts. We find considerable force in the aforesaid submission of Shri Mathur. Shri Mathur, therefore, submitted that the conviction of appellant Deva, Nanji and Kanji for the offence of murder under section 302 with the aid of section 149 IPC. cannot be sustained and the said appellant persons can be held guilty only in respect of there individual acts. We find considerable force in the aforesaid submission of Shri Mathur. Since we have found that the common object of unlawful assembly was only to assualt Senga and the assault on deceased Jagnnath and Bherulal, Dharma, Vala and Dhanji who had come to the rescue of Senga was in furtherance of the said common object it cannot be said that the common object of the unlawful assembly extended to the causing of death of Jagnnath or that the members of the unlawful assembly had the knowledge that murder of Jagnnath might likely be committed in the prosecution of the common object of the unlawful assembly. In the circumstances an act committed by any particular member of the assembly resulting in the death of Jagannath cannot be said to have been committed in prosecution of the common object of the assembly but must be said to have been committed in excess of the said common object and the particular member of the unlawful assembly who had committed the said act can be held responsible for the said act and the other members of the unlawful assembly cannot be held vicariously responsible for that act with the aid of section 149 I.P.C. We are, therefore, unable to appreciate as to how appellant Deva, Nanji and Kanji, three of the members of the unlawful assembly, have been held guilty of the offence of murder of Jagnnath under section 302 read with section 149 I.P.C. There was only one unlawful assembly of which the aforesaid three appellants were members. In our opinion, the conviction of appellants Deva, Nanji and Kanji for the offence of murder under section 302 read with section 149 I.P.C. cannot be sustained, and the aforesaid appellants can be held guilty only for their individual acts. It is, therefore, necessary to examine the evidence on record for the purpose of determining the nature of the individual act of these appellants. 19. In so far as appellants Nanji and Kanji are concered in the F.I.R. Ex. P. 7, it is stated that both of them had given blows with lathis on the body of Jagnnath. It is, therefore, necessary to examine the evidence on record for the purpose of determining the nature of the individual act of these appellants. 19. In so far as appellants Nanji and Kanji are concered in the F.I.R. Ex. P. 7, it is stated that both of them had given blows with lathis on the body of Jagnnath. In their testimony before the Court all the eyewitnesses, namely Senga P.W. II, Dhanji P.W. 12, Bherulal P.W. 1, Dharma P.W. 2 and Vala P.W, 3 have stated that Nanji and Kanji gave one blow each with a lathi on the neck of deceased Jagannath. The aforesaid testimony of these witnesses does not find support from the post mortem report Ex. P. 1. According to post mortem report only three injuries were found on the person of the deceased and there was no injury on the neck. In the circumstance appellant Nanji and Kanji cannot be held responsible for inflicting any injury on the person of deceased Jagnnath. 20. As regards appellant Deva all the eyewitnesses have stated that Deva had inflicted a blow with a lathi on the head of Jagnnath deceased. The aforesaid evidence of the eyewitnesses finds corroboration from the F.I.R. Ex. P. 7 wherein it is also stated that Deva had given a blow with a lathi on the head of Jagnnath. The aforesaid evidence also finds support from the medical evidence viz. the post mortem report Ex. P. 1 which shows that the deceased had a lacerated wound 2" x x bone deep on the vault of the skull. The post mortem report further shows that on removing the scalp there was extra cassation of blood all over the skull and there was longitudinal fracture of the middle frontal bone extending from the frontal part and going upto the junction of the right parietal bone and that the sagittal sutures were separate and there was a longitudinal fracture of the. right parietal bone upto the vault of the skull and there was an oblique fracture of the squamush part of the left temporal bone. This would show that accused Dava had inflicted a blow on the head of the deceased Jagnnath with a lathi and the said blow had resulted in fracture of the middle and frontal bone as well as the left temporal bone. 21. This would show that accused Dava had inflicted a blow on the head of the deceased Jagnnath with a lathi and the said blow had resulted in fracture of the middle and frontal bone as well as the left temporal bone. 21. The question which needs to be determined is whether by causing the aforesaid injury on the head of deceased Jagnnath, appellant Deva can be held to ^ have committed the offence of murder punishable under section 302 I.P.C. Shri p Mathur has submitted that from the evidence of the eyewitnesses examined by the prosecution it is clear that appellant Deva had inflicted only one injury on the person of Jagnnath deceased. Shri Mathur has also pointed out that when appellant Jhoomla had rushed to assault Jagnnath with a sword appellant Deva prevented him from doing so and had taken the sword from Jhoomla. Shri Mathnr has also pointed out that according to the post mortem report Ex. P. 1 the death of Jagnnath was due to shock and hemorrhage caused by the fracture of the skull over ribs and rupture of the lungs, which shows that the injury on the head as well an the injury on the chest had caused the death of Jagnnath and that on the basis of the medical evidence it cannot be said that the injury on the head was such as was sufficient in the ordinary course of nature to cause death. According to Shri Mathur, taking into consideration the facts and circumstances of the case, all that can be said is that the appellant Deva had the knowledge that the injury which was being in fluted by him on the person of Jagnnath with a lathi was such as was likely k to cause the death and, therefore, the appellant Deva can only be held guilty for the offence punishable under section 304 Part II I.P.C While we are in agreement with Shri Mathur that in the facts and circumstances of the case, the offence under section 302 I.P.C. is not made out against appellant Deva we are unable to agree with him that the offence that is made out against the appellant is one punishable under section 304 part If I P.C. Taking into consideration the facts that appellant Deva inflicted only one injury with a lathi and the said injury was inflicted during the course of a fight in which large number of persons were participating and injuries had been sustained by the persons belonging to both the sides, it cannot be said that appellant Deva when he gave the blow on the person of deceased Jagnnath with a lathi had the intention of causing death of Jagnnath or he had give a the said blow with intention of causing such bodily injury as was sufficient in the ordinary course of nature to cause death of Jagnnath. In our opinion, the present case is not covered by clause thirdly of section 300 I,P.C. and appellant Deva cannot, therefore, be held guilty of the offence of murder punishable under section 302 I.P.C. In view of the nature of the injury that was caused on the head of deceased Jagnnath by the blow that was given by appellant Deva, it can, however be said that in giving the said blow on the person of deceased Jagnnath appellant Deva had the intention of causing such bodily injury as was likely to death. In our opinion, therefore, appellant Deva is guilty of the offence punishable under section 304 Part I I.P.C. 22. In our opinion, therefore, appellant Deva is guilty of the offence punishable under section 304 Part I I.P.C. 22. On the question of sentence it has been pointed out to us that accused Deva was arrested on 20th September, 1971 and that he remained in custody during the course of investigation, inquiry and trial and after conviction also he continued to remain in custody till his sentence was suspended and he was ordered to be released on bail by the order of this Court dated 19th July, 1978. He has thus remained in custody for a period of nearly 7 years. As regards the other appellants, it has been submitted that they remained in custody for a period of about one year. Taking into consideration the facts and circumstances of the case we are of the opinion that the ends of justice would be served if in respect of the offence under section 304 part I, appellant Deva is sentenced to the period of imprisonment already undergone by him and in respect of the offences under section 148 and 323 read with section 149 (.P.C all the appellants except appellant Deva, are sentenced to the period of imprisonment already undergone by them. Since appellant Deva has already undergone imprisonment for a period in excess of the sentence imposed upon him for the offence under section 148, and 323 read with section 149 I. P. C. we are of the view that the sentence that has been imposed on appellant Deva does not need any interference. 23. In the result, the appeal is partly allowed. The conviction of the appellant for the offences under section 148 and 323/149 I. P C. is maintained. The conviction and sentence of appellant Deva, Nanji and Kanji for the offence under section 3o3/149 I. P. C. are set aside. Appellant Deva is convicted of the offence punishable under section 304 Part I I. P. C. The sentence for check offences under section 148, 323/149 I. P. C. awarded to all the appellants, except appellant Deva. is reduced to the period of imprisonment already undergone by them. The sentence of appellant Deva for the aforesaid offences under sections 148 and 323/149 I.P.C. is maintained. As regards the offence under section 304 part I I.P.C. appellant Deva is sentenced to the period of imprisonment already undergone. The aforesaid sentence of appellant Deva shall run concurrency. is reduced to the period of imprisonment already undergone by them. The sentence of appellant Deva for the aforesaid offences under sections 148 and 323/149 I.P.C. is maintained. As regards the offence under section 304 part I I.P.C. appellant Deva is sentenced to the period of imprisonment already undergone. The aforesaid sentence of appellant Deva shall run concurrency. All the appellants are on bail, they need not surrender and their bail bonds shall stand discharged.Appeal Partly Allowed. *******