JUDGMENT 1. - Learned Addl. Sessions Judge, Kishangarh Bas, District Alwar has convicted the accused-appellant Salem under Section 302, IPC and the others under section 302/149 and sentenced each of them to under go imprisonment for life and a fine of Rs. 200/- and in default of payment of fine to undergo one year's rigorous imprisonment. All the accused-appellants have also been convicted under Sections 148, 325/149 and 323, IPC. Under the aforesaid offences each of the accused-appellant was sentenced to undergo one year's rigorous imprisonment and to pay a fine of Rs. 100/-, in default of payment to further undergo 3 year's rigorous imprisonment; to pay Rs. 200 in default of fine to undergo further six months' rigorous imprisonment and further six months' rigorous imprisonment. All the substantive sentences were ordered to run concurrently. 2. In village Dameda, Police Station Tijara, district Alwar at 4 p.m. on 2Ith July, 1980, Dinu and Sardara were sitting at their house and some altercation took place in between them in connection with she-buffalo milk. At that time, Sardara accused gave beating to Dinu with shoes. The people present intervened and they were separated. At about 7.30 p.m. on that very day alter Namaz of Roza, Danu, Chav Khan, Chahat and Suleman were enjoying Htikka puffs. It is further alleged that all the five accused-appellants came there. Accused Salem was armed with farsi, Jumma, Ishaq and others were armed with lathis. They said that they should be beaten and saying so, Salem gave blows by farsi on the head of Chahat as a result of which he fell down on the ground. Others gave blows by lathis and jelly. When Dinu, Chav Khan and Suleman intervened, it is alleged that Sardar gave a lathi blow on the head of Dinu and Zuhur inflicted a lathi blow on his rilitt hand. Ishaq gave a jelly blow on the head of Chav Khan and Sardar, Jumma and Zuhur Khan beat him with lathis. Hearing the alaram. the other persons arrived there. A report of the incident (Ex. P/25) was lodged by Danu (PW/6) in the Police Station; Tijara on the same day at 11 p.m A case was registered and the investigation was set in motion. 3. Dr. Dinesh Chandra Sharma (PW/1) conducted autopsy on the dead body of Chahat. He found the following injuries on his person: 1. A report of the incident (Ex. P/25) was lodged by Danu (PW/6) in the Police Station; Tijara on the same day at 11 p.m A case was registered and the investigation was set in motion. 3. Dr. Dinesh Chandra Sharma (PW/1) conducted autopsy on the dead body of Chahat. He found the following injuries on his person: 1. Incised wound (obliquely) 6 cm x 3/4 cm x bone deep on upper part of left temporo-parietal region of the scalp. 2. Bruise (oblique) 6 cm x 2 cm on ventro medial surface of right fore-arm in the upper ⅓ part. 3. Incised wound (Longi indral) 2 cm x 1/2 cm x 1/4 cm on right leg anteriorly in the middle ⅓ part. All the injuries were ante-mortem in nature. Clotted blood was present under-neath the wound:. Clotted blood was also present under the wound lenior fracture of the left temporo-parietal bone. The cause of death was shock and haemorrhage due to ante-mortem injuries. In the occurrence Danu (PW 6), Subha (PW 9), Deenu (PW 8), Suleman (PW 2) and Chav Khan (PW 7) also received injuries. They received 4, 3, 4 and 5 injuries respectively. The injuries received by them were by blunt weapon. Injuries No. 1 and 3 were grievous. Out of the injuries received by Chav Khan injury No. 5 was grievous. Accused were arrested and challan was filed. They were tried by the learned Sessions Judge, who convicted and sentenced them as aforesaid. 4. The plea of the accused-appellants before the learned Sessions Judge was bare denial. They did not examine any witness in defence. 5. The only contention of the learned counsel for the accused-appellants is that in the facts and circumstances of the case, it cannot be said that the common intention of the members of the unlawful was to cause the death of Chahat. The learned counsel for the accused-appellants contended that there was no- previous enmity in between the deceased and any other accused and even at 4 p.m. of 21st July, 1980, in the occurrence which took place in connection with the milk of she-buffalo, the deceased was not involved. He, therefore, contends that the accused persons could not have intended to cause the death of Chahat and it cannot be said that the common object of the accused persons was to cause the death of Chahat. He, therefore, contends that the accused persons could not have intended to cause the death of Chahat and it cannot be said that the common object of the accused persons was to cause the death of Chahat. According to him, at best, it is a case in which it can be said that the common object of the members of the unlawful assembly was to cause grievous hurt, or the accused persons had the knowledge that the members of the unlawful assembly may cause grievous hurt to those who were present there, including the deceased. In support of his submission, the learned counsel for the accused-appellants has placed reliance on Gafoor & Ors. v. The State of Rajasthan, 1983 Cr. LR (Raj.) 599 , in which there were grievous injuries by sharp weapon also but it was held that it was a case only under Section 326/149, IPC and not under Section 302/149, IPC. 6. We have considered the submissions of the learned counsel for the accused-appellants in the light of the material on record. It appears that after having recorded the statement of the witnesses and after considering the same, the trial Court arrived at the conclusion that as per the facts of the case it can be said that on 21st July, 1980, at about 4.00 p.m. a quarrel took place in which some persons intervened and the accused was separated. At that time, Chahat deceased, was not present. At 7.30 p.m. on the same day, the accused persons armed with weapon, accused Salem with farsi and the others with lathis, came to the place of occurrence and started giving beating. It was dark and it cannot be said that the accused, Salem, intended to cause the death of Chahat. Under these circumstances, all that can be said is that the common intention of the members of the unlawful assembly in the instant case was to cause grievous hurt to Chahat. So far as the other accused persons are concerned, they received injuries. Two of the injured persons Chav Khan and Dinu received grievous injuries by blunt weapon. Under these circumstances, we are of the opinion that it can be said that the accused intended to cause the death of Chahat. So far as the other accused persons are concerned, they received injuries. Two of the injured persons Chav Khan and Dinu received grievous injuries by blunt weapon. Under these circumstances, we are of the opinion that it can be said that the accused intended to cause the death of Chahat. In the facts and circumstances of the case, all that can be said is that the common object of the members of the unlawful assembly was to cause grievous hurt by sharp weapon, and it can be said that one of the members of the said assembly, Salem was armed with farsi and the accused persons had the knowledge that he may cause grievous hurt by sharp weapon. 7. Under these circumstances, we partly allow this appeal and alter the conviction of the accused, Salem from under Sections 302, WC to Section 326, IPC and of the other accused from Section 302/149, IPC to Section 326/149, IPC. We maintain the conviction of accused Salem under Sec 148, IPC, but alter the conviction of the other accused-appellants to Section 147, IPC, and we maintain the sentences awarded to them under Sections 148, 323/149 and 323, IPC. We sentence each of them under Section 326/149 IPC to three years' rigorous imprisonment and a fine of Rs 100/- each, and in default of payment of fine to three month's rigorous imprisonment. Accused Salem is in jail and he has already undergone more then the sentence awarded to him. Therefore, he shall be released forthwith it not required in any other case. So far as accused Jam ma, Sardar, Ishaq and Zuhar are concerned, they shall be taken in to custody forthwith to undergo the remaining part of the sentence awarded to them by us.Appeal partly allowed. *******