JUDGMENT 1. - The learned Addl. Sessions Judge. Gangapur City, convicted the accused-appellant Hira under Section 148, 302 and 324, IPC. 2. The accused-appellant Kanchan has been convicted u/s 302/149, IPC, anti 148 and 325, IPC. The other accused-appellants Kishore, Harinarain and Chaina Ram have been convicted u/s 148, 323 and 302/149, IPC. 3. The accused-appellant Hira under section 302, IPC and the other accused-appellants u/s 302/149, IPC have been sentenced to undergo life imprisonment and to pay a fine of Rs 200/- Each of the accused-appellants has been sentenced to 3 months imprisonment u/s 149, IPC. The accused-appellants Hira has been sentenced to 3 months simple imprisonment under Section 324, IPC, and Kanchan u/s 325, IPC has been sentenced to 7 months simple imprisonment and a fine of Rs. 700/-. The other accused-appellants Kishori. China Ram and Harinarain u/s 323, IPC have been sentenced to pay a fine of Rs. 100/-, or in default of payment of fine Hira has been ordered to suffer 2 months imprisonment, Kanchan 4 months imprisonment and Kishori, Chainaram and Harinarain one month's simple imprisonment. The substantive sentences of all the accused-appellants have been ordered to run concurrently. 4. The case of the prosecution is that Ramkishan (PW 3) son of Hazari (deceased) was a married man, but the wife of Ramkishan (PW 3) was not living with him for some time and had gone to her parents. All efforts of Hazari (deceased) and Ramkishan to bring hack the wife of Ramkishan did not succeed. Hazari deceased suspected that because of the accused persons the in-laws of Ramkishan were not sending his wife, and and a letter in that connection had been addressed by some of the accused persons to the in-laws of Ramkishan (PW 3). A Panchayat was called in that connection in village Dalpura on 29.4-80 in the night by the accused persons at their house. A Panchayat was called in that connection in village Dalpura on 29.4-80 in the night by the accused persons at their house. The houses of the accused persons are not far off from the house of Hazari (deceased), but Hazari (deceased) refused to go to attend the Panchayat at the house of accused persons As a result of it the Panchas including the accused persons in order to resolve the dispute went to the house of Hazari (deceased) and there Hazari (deceased) is said to have given out to the Panchas that the accused persons had written a letter to in-laws of Ramkishan (PW 3) that they should not send the wife of Ramkishan. The accused persons denied to have written any such letter and asked Hazari to produce the letter before them, but Hazari did not produce any such letter. There was exchange of abuses and stones were hurled from both the sides. The case of the prosecution further is that thereafter the accused persons went to their houses and returned from there with axe and lathis and gave beating to Hazari (deceased) with axe and lathis as a result of which Hazari died at the spot. Mst. Keshar widow of Hazari (deceased) (PW 8), Smt. Rumali daughter of Hazari (deceased) (PW 2), Ramkishan son Hazari (PW 3), Perbhati (PW 4), and Badri (PW 4) witnessed the occurrence. 5. A report of the incident from the side of Panchas of village was got scribed by Srinarain (PW6) from Rameshwar (PW7), and the same is Ex.P 2. It was also signed by PW 4 Perbhati and PW 5 Badri. PW 8 Pholiram peon took Ex. P 2 to the police station, Garhmoura on 30-4-80, but the report was not found to be clear and no case was immediately registered. Mohammed Shard AS[ (PW 12) reached the spot and got clarification which was noted by him on Ex. P 2 and sent the same to the Police Station through Rambabu constable for registration of the case. At the police station a case NJ 38/80 under Section 302, IPC was registered and investigation was set in motion. 6. Dr. Mohanlal Sharma (PW 11) was posted as Medical Officer Incharge, Primary Health Centre, Gurachandraji on 30-4-80, and he conducted post-mortem on the dead body of Hazari, and found the following external injuries : 1. At the police station a case NJ 38/80 under Section 302, IPC was registered and investigation was set in motion. 6. Dr. Mohanlal Sharma (PW 11) was posted as Medical Officer Incharge, Primary Health Centre, Gurachandraji on 30-4-80, and he conducted post-mortem on the dead body of Hazari, and found the following external injuries : 1. Incised wound 11/2" x 1/2" x external ear deep on left car middle part from upper part of ear to ear louble, transverse in direction two pieces of ear attached only at car lobule. 2. Incised wound 21/2" x 1/4" x bone deep on the left parietal bone to back of ear transvere in direction. 3. Incised wound 1" x 1/4" x bone deep on the middle part of occipital, bone transverse in direction. 4. Contusion 4" x 1/2" from the upper part of right parietal bone to frontal bone verticle in direction. 5. Contusion 3" x 1" on the right upper arm posteriorly just above the elbow joint verticle it direction. 6. Contusion 3" x 2" on the anterior aspect of right leg 3" below the knee joint. 7. Contusion 6" x 1/2" on the left title] outer side vertical direction. 8. Contusion 6" x 1" on the left side of back just below the shoulder blade, oblique in direction. 9. Contusion 7" x I" on the left side of back I" below the shoulder blade and 3" from mid line, oblique in direction. 10. Contusion 5 /2" x 1 on the left side of back 1/2" below the above injury, oblique in direction. 11. Contusion 4" x 1" on the middle part of left Scapul,i. 12. Contusion 8" x 1" on the left side of hack to abdomen anteriorly 3" below the left scapula, oblique in direction. 13. Contusion 3" x 1" on the posterior aspect of left arm at middle part, verticle in direction. 7. In the opinion of Dr. Mohanlal Sharma injuries I to 3 were caused by sharp weapon, whereas injuries 4 to 13 were caused by blunt weapon. 8. On opening the Spinal Cord, the doctor found that there was fracture of left parietal bone, left occipital bone, left temporal bone, and there was separation of suture between frontal bone and right parietal bone. Dura matter was ruptured in fractured area. Blood had accumulated between skull bone and memberanes. 8. On opening the Spinal Cord, the doctor found that there was fracture of left parietal bone, left occipital bone, left temporal bone, and there was separation of suture between frontal bone and right parietal bone. Dura matter was ruptured in fractured area. Blood had accumulated between skull bone and memberanes. There was a fracture of right Tibia bone 3" below knee joint. In the opinion of Dr. Sharma, the cause of death was fracture of skull bone causing internal haemorrhage and injury to brain matter leading to death immediately. All the injuries were ante mortem in nature and the time since death was 12 to 18 hours before the examination. 9. On examining the injuries of Ramkishan, the doctor found that he had 10 injuries and out of them injuries 1 and 2 were incised wounds, on the left side of frontal bone 6 c.m. above the medial end of left eye brow vertically, and on the upper part of left parietal bone verticle in direction respectively. The other injuries were by blunt weapon on the middle part of occipital hone, on the anterior part of right leg 8 cm. above the ankle joint transversely, on the left shoulder joint vertically, on the posterior part of right fore-arm 3" above the wrist joint, on the anterior part of left leg 3" above the ankle joint, on the left leg just below the knee joint, and on the posterior part of the right elbow joint. In the opinion of Dr. Sharma, injuries 3,6,8,9 and 10 were simple in nature and caused by blunt weapon, and for rest of the injuries ex-ray was advised. The injuries were received within a duration of 24 hours. The ex-ray report was received by Dr. Sharma and the same is Ex. P 14, and according to it injury No. 4 fracture of lower end of right tibia and febula bones was grievous, and rest of the injuries were simple. Thus the injuries by sharp weapon were also simple. 10. On examining Mst. Rumali (PW 2) Dr. Sharma found that there was a lacerated wound 3 cm x .3 cm x .5 cm on the left side of frontal bone 2" above the middle part of left-brow vertically oblique. The injury was simple and caused by blunt weapon within 24 hours. 11. Dr. Sharma further examined Mst. 10. On examining Mst. Rumali (PW 2) Dr. Sharma found that there was a lacerated wound 3 cm x .3 cm x .5 cm on the left side of frontal bone 2" above the middle part of left-brow vertically oblique. The injury was simple and caused by blunt weapon within 24 hours. 11. Dr. Sharma further examined Mst. Kesher widow of Hazari (deceased) the same day and found 3 injuries, 2 contusions on right shoulder vertically and on the posterior and right fore-arm vertically, and one abrasion on left knee joint. All the injuries were simple and were caused by blunt object within 24 hours. 12. The S.H.O. did the usual inspection of the site, prepared inquest report of the dead body, and seized and sealed the blood smeared earth. On 2-5-80 the S.I. Shri Himmat Singh (PW 14) took over the investigation from Mohd. Sharif (PW 12) and arrested accused Kanchan vide arrest memo (Ex. P 22), accused Hira vide arrest memo (Ex. P 23), Kishori vide arrest memo (Ex. P 24), accused Harinarain vide arrest memo (Ex. P. 25), and Chainaram vide (Ex. P 26). Accused Hira while in police custody on 4-5-80 made a discovery statement to Himmat Singh (PW 14) that he had concealed an axe and he could get it recovered, and his statement was recorded in Ex. P 27. Accused persons Hari Narain, Kanchan and Chaina Ram also made discovery statements to Shri Himmat Singh (PW 14) for getting recovered an axe, a lathi and Jell respectively. Consequent to their information, accused Hira and Chainaram got recovered an axe and Jeli respectively, whereas the other accused Harinarain and Kanchan got recovered the lathis. They were seized and sealed in presence of Motbirs. 13. The seized and sealed blood smeared earth, the clothes, Kulhari and lathi were sent for chemical examination and under Ex. P 32 the Assistant-Director, State Forensic Science Laboratory, Jaipur found that the blood smeared earth, the clothes, kulhari and lathi were stained with blood. The matter was reported to the Serologist and his report (Ex. P 33) is available on record, and as per that report so far as the blood stains on kulhari and lathi are concerned, they were disintegrated and their origin could not be determined. 14. After investigation a charge-sheet was filed and charges were framed against the accused persons. The matter was reported to the Serologist and his report (Ex. P 33) is available on record, and as per that report so far as the blood stains on kulhari and lathi are concerned, they were disintegrated and their origin could not be determined. 14. After investigation a charge-sheet was filed and charges were framed against the accused persons. They did not plead guilty to the charges and claimed trial. The prosecution examined as many as 14 witnesses. Thereafter, the accused persons were examined u/s 313 Cr. PC to explain the circumstances appearing against them in the evidence of the prosecution witnesses. The accused persons stand on a bare plea of denial. Accused Hira has stated that he was not in the village at the time of incident. He had gone to the S.D.M. Court at Gangapur and in the evening stayed in village shop and returned to the village after 2-3 days. Accused Kishori stated that his father Chainaram accused had convened the Panchayat in the Bakhal of Hazari (deceased). He Kishore was at his house. He was present at his house when the Panchayat was held there but did not go to the house of Hazari when the Panchayat took place at his house. He has further stated that Hazari (deceased) Keshar, Ramkishan, and Rumali came to his house and threw stones as a result of which he and his father received injuries. Accused Hari Narain took a plea of alibi to the effect that on the day of incident he was in village Carhkhera at the house of his in-laws and returned to the village only after 2-3 days of the incident. He had gone to attend the marriage of his brother-in-law (Sala) Accused Kanchan also took a plea of alibi and stated that he was out of the village on the day of incident. Accused Chainaram took a plea that at about 10-12 in the night he had convened a Panchayat at his house in which Rameswher, Mithiya, Shambhu, Kishori, Badri, Chamandi and Perbhati were Panchas. Hazari (deceased) did not come to attend it. He called the Panchayat at his house and the Panchas went to his house, but he did not go. Then at about 11-12 in the night Hazari, Rumali, Perbhati etc. 4-5 persons came to his house and threw stones as a result of which he received injuries and became unconscious. Hazari (deceased) did not come to attend it. He called the Panchayat at his house and the Panchas went to his house, but he did not go. Then at about 11-12 in the night Hazari, Rumali, Perbhati etc. 4-5 persons came to his house and threw stones as a result of which he received injuries and became unconscious. He only regained consciousness in the morning. According to him, Harinarain and Kanchan were not at his house. The accused persons examined Ramsarup, Moolya, Ramsahai, Manohari, Prahlad and Kalu as PW 1 to PW 6 respectively. 15. The learned Addl. Sessions Judge after hearing the arguments convicted and sentenced the accused appellants, as stated above. 16. We have heard learned counsel for the appellants in both the appeals as well as the learned P.P., and have gone through the material on record. 17. The contention of the learned Advocate for the accused appellants is that PW 4 Perbhati and PW 5 Badri did not actually witness the occurrence and the learned Addl. Sessions Judge has wrongly placed reliance on their statements It also contended by him that two of the accused persons Chainaram and Kishore received injuries and in this connection he has referred to the statements of those accused persons recorded u/s 313, Cr. PC as well as to the statements of Dr. Mohanlal Sharma (PW 11) who on examining the accused persons Chainaram and Kishori found on their person two injuries each. Dr. Sharma on examining Chainaram on 3-5-80 found two contusions on the middle and inner part of right thigh and middle part of the right shoulder blade of Chainaram and also found two abrasions on the middle part of right shoulder and on the posterior aspect of left below joint. The injuries of both the accused persons as per Dr. Sharma were caused by blunt object within 3-4 days and were simple in nature. The learned counsel submits that the prosecution has failed to explain the injuries of the accused persons and it probablises the defy ice case that the deceased and others came to the house of Chainaram accused and threw stones as a result of which they received injuries. He further submits that the prosecution has not come out with the true genesis of the incident. He further submits that the prosecution has not come out with the true genesis of the incident. All the witnesses Keshar (PW 1), Rumali (PW 2) and Ramkishan (PW 3) belong to the same family and are interested being the wife, daughter and son of the deceased Hazari. So far as the two witnesses Perbhati (PW 4) and Badri (PW 5) are concerned,the contention of the learned Advocate is that they did not witness the occurrence and cannot be relied upon. It is also contended by him that in the facts and circumstances of this case, Sec 149, IPC is not attracted in as much as the occurrence took place all of a sudden and, therefore, the accused persons cannot be held vicariously liable for the acts of others. He, therefore, contends that even assuming though not accepting the accused Hira was armed with an axe and gave blow with it, as a result of which Hazari died. The other accused persons cannot be held liable under Section 302/149, IPC. According to him, the common object of the accused persons could not be and was not to cause the death of Hazari (deceased). At any rate, according to the learned Advocate, no case under Section 302 IPC is made out against any of the accused persons. The learned P P. on the other hand has supported the judgment of the learned Addl. Se, ions Judge and contends that it has been unanimously stated that all the accused persons came together from their houses armed with axe and lathis and Jeli, gave beating to the deceased Hazari and a large number of injuries were caused to him. Not only this, when Mst. Keshar widow of Hazari (PW 1), Mst. Rumali daughter of Hazari (deceased) (PW 2) and Ramkishan son of Hazari (deceased) (PW 3) intervened, they were beaten. He, therefore, submits that it can be easily said that the common object of the accused persons was to cause death of Hazari and whosoever came to intervene. She submits that the accused parsons have been rightly convicted. 18. Before we proceed to consider the various points involved in this case, we will like to make an observation that the learned Addl. Sessions Judge has not correctly framed the points for determination in this case. She submits that the accused parsons have been rightly convicted. 18. Before we proceed to consider the various points involved in this case, we will like to make an observation that the learned Addl. Sessions Judge has not correctly framed the points for determination in this case. The only points framed for determination are two ; (1) which offence against which of the accused has been proved beyond reasonable doubt ; and (2) what punishment shall be justified and legal for the offence found proved against the accused parsons. Under Section 354, Cr. PC every judgment in every trial in any criminal court of original jurisdiction shall contain the point or points of determination, the decision thereon and the reasons for the decision. In a case where the case of the prosecution is that the accused persons were members of unlawful assembly, a point for determination must be framed as to whether the accused persons formed an unlawful assembly, and that what was the common object of such assembly. In case there are more than one deceased or injured persons, points for determination should also be framed in relation to these and evidence should be discussed in connection with each and every point so framed for determination. The learned Addl. Sessions Judge, as already stated earlier, has only framed one point for determination so far as the facts are concerned, and that is, as to which offence is proved against which of the accused. This is hardly a compliance with Section 354, Cr. PC. 19. Now we shall refer to the discussion of the points involved in this case. 20. The first question is, as to whether PW 4 Perbhati and PW 5 Badri are the eye-witnesses of the occurrence or not? The learned Addl. Sessions Judge in para 8 of his judgment has discussed the evidence of these witnesses and has held them to be the eye witnesses of the occurrence. He has further observed that there was no enmity with these witnesses and the accused persons, they were illiterates and, therefore, merely because in the FIR (Ex. P 2) to which they are also signatories, it is not mentioned that they witnessed the occurrence, they cannot be held to be unreliable witnesses. We are unable to agree with the learned Addl. Sessions Judge. Ex. P 2) to which they are also signatories, it is not mentioned that they witnessed the occurrence, they cannot be held to be unreliable witnesses. We are unable to agree with the learned Addl. Sessions Judge. Ex. P 2 is a written report signed by the Panchas of village Dalpura and in that capacity the two witnesses Perbhati (PW 4) and Badri (PW 5) also signed Ex. P 2 A look at Ex. P 2 will show that it is not mentioned therein that these witnesses witnessed the occurrence and all that is stated therein is that at about 12 in the night on some matter a quarrel took place amongst Chhainram, Hira, Kanchan, Harinarain, Kishori and Hazari son of Ramdhan and Ramkishan son of Hazari. A beating took place in that quarrel and when the villagers reached the spot on hearing the cries, they saw that Hazari was lying dead and his family members were sitting nearby. It is not mentioned therein that Badri (PW 5) and Perbhati (PW 4) or any of the signatories to Ex. P 2 witnessed the occurrence. It is also not mentioned therein as to which of the accused was armed with which weapon. PW 4 Perbhati in cross-examination stated that he did not tell Srinarain that he witnessed the occurrence and did dot tell him that he had seen Hazari being beaten with lathi and axe. He further states that he is unable to say as to hew many axe blows were given by Hira and how many lathi blows were given by the other accused persons to Hazari. He further states that he only saw the axe blow of Hira landing on the head of Hazari & cannot say any about others. Hazari fell down as a result of the injuries and he (Perbhati) ran away. He had left Badri and Rammu at the spot. The report was scribed by Srinarain (PW 6). Srinarain (PW 6) states that he did not talk to Badri and Perbhati. He further states that Perbhati, Rammu and Badri did not tell him that they had seen the accused persons beating Hazari and that is why he did not write so in the report. The report was scribed by Srinarain (PW 6). Srinarain (PW 6) states that he did not talk to Badri and Perbhati. He further states that Perbhati, Rammu and Badri did not tell him that they had seen the accused persons beating Hazari and that is why he did not write so in the report. He further states that the report was read over to the Panchas and Perbhati and Badri were also present at that time, and even at that time they did not say that they had seen the accused persons beating Hazari with axe and lathis. PW 5 Badri in cross-examination states that when the report was being written he had said as to which accessed has given blows with an axe and which accused with lathis. He, Perbhati, and Rammu had witnessed the occurrences, but he is unable to say as to why thne things are not mentioned in Ex. P 2. Contrary to the statement of Srinarain (PW 6) he states that he had disclosed to Srinarain before he dispatched the report to the police station that he had witnessed the occurrence. He is unable to say as to which of the accused gave blows on which part of Hazari as well as Ramkishan. Smt. Rumali (PW 2) in cross-examination (page-2-top) states that when the accused came with axe and lathi, at that time Badri and Perbhati were not present at the spot. He further states that Badri and Perbhati came to the spot after the incident and when the accused persons had left. Mst. Keshar (PW 1) states that Perbhati, Rammu and Badri are her Jeths and their houses are far away from her house. They were present in the Bakhal of Chinaram accused. She further states that (page-2-middle) in cross-examination that Perbhati, Rammu and Badri went to a distance and might have come only when they (Mst. Keshar and others) had become unconscious. She again states (bottom of page 2 and top of page 3) that when the accused came with their arms to the spot, Perbhati, Badri and Rammu were not there and they came only afterwards. She states that when they came the accused had run away. Ramkishan (PW 3) states that when beating was administered to them.none else from the village was present at that time. She states that when they came the accused had run away. Ramkishan (PW 3) states that when beating was administered to them.none else from the village was present at that time. It can, therefore, be said that Perbhati (PW 4) and Badri (PW 5) did not witness the occurrence and, therefore, no reliance can be placed on their statements. The learned Addl. Sessions Judge has wrongly held them to be the eye witnesses of the occurrence. 21. But, even if the evidence of Perbhati (PW 4) and Badri (PW 5) is excluded, in our opinion, so far as the other three witnesses Mst. Keshar (PW 1), Mst. Ramali (PW 2) and Ramkishan (PW 3) are concerned, there is no reason to hold that they did not witness the occurrence. The occurrence took place inside the house of Hazari (deceased). Mst. Keshar is the wife of Hazari, Mst. Rumali is his daughter and Ramkishan is his son. The occurrence took place at about 12 in the night, and their presence at the time of incident in the house of Hazari is most natural. That apart, all the three of them also received injuries. Ramkishan also received injuries by sharp weapon. Therefore, there can be no manner of doubt that they witnessed the occurrence and were in a position to witness the occurrence. 22. It is the case of the prosecution and the defence that first the Panchayat took place at the house of Chainaram accused and the cause for convening the Panchayat was, as per the prosecution case, that Hazari deceased suspected that the accused persons were instrumental in not allowing the in-laws of Ramkishan (PW 3) to send the wife of Ramkishan to him. There is also no dispute that Hazari (deceased) did not attend the Panchayat at the house of accused person and then the Panchayat took place at the house of Hazari to resolve the dispute. Though the accused persons have stated that they did not attend the Panchayat at the house of Hazari, but there is no reason to disbelieve the statements of Mst. Kesher (PW I) Mst. Rumali (PW2) and Ramkishan (PW 3) that the accused persons also took part in the Panchayat. Though the accused persons have stated that they did not attend the Panchayat at the house of Hazari, but there is no reason to disbelieve the statements of Mst. Kesher (PW I) Mst. Rumali (PW2) and Ramkishan (PW 3) that the accused persons also took part in the Panchayat. That apart, it also appears to be natural that the accused persons will attend the Panchayat, as even at their house the Panchayat had been convened to resolve the dispute in which they were suspected by Hazari (deceased). Therefore, we are of the opinion that the accused persons or atleast some of them also took part in the Panchayat at the house of Hazari (deceased). It is the case of the prosecution and the defence also that there was exchange of abuses at the house of Hazari and stones were also hurled and, therefore, the possibility that the two accused persons Kishore and his father Chainaram received injuries at that time can not be excluded. That apart, we have already made reference to the injuries of these two accused and the injuries are of minor nature, and even if it is assumed that the prosecution has not been able to explain the injuries, which too to our mind have been explained, as they would have been received when the stones were being thrown at each other, even then it does not affect the case of the prosecution, because the injuries are of minor and superficial nature. 23. Mst. Kesher (PW 1) states that when her husband refused to attend the Panchayat at the house of the accused persons, the Panchas came to the house of her husband. She further states that when her husband told the Panchas that the accused persons had written a letter to the in-laws of Ramkishan, and that is why they were not sending the wife of Ramkishan, the accused persons said that Hazari should produce witness to that effect. There was exchange of abuses in between the accused persons and deceased Hazari and stones were thrown from both the sides. She further said that the accused persons went to the house. Mst. Rumali on this paint states similarly. Ramkishan (PW 3) has also made a similar statement. PW 1 Mst. There was exchange of abuses in between the accused persons and deceased Hazari and stones were thrown from both the sides. She further said that the accused persons went to the house. Mst. Rumali on this paint states similarly. Ramkishan (PW 3) has also made a similar statement. PW 1 Mst. Keshar in cross-examination has stated that when the accused persons came to the Bikhal of Hazari (deceased) alongwith the Panchas they were unarmed,and only after stones were thrown or exchanged,the accused persons went to their houses and returned with axe, lathis and Jeli. I t has been stated by all three of them that accused Hira came armed with an axe, and the other four accused persons were armed with lathis. All the witnesses stated that Hira accused gave blows by axe on the head of deceased Hazari and the other accused persons gave lathi blows to him. They have also stated that the accused persons gave lathi blows even when Hazari had fallen on the ground. They have also stated that when they intervened, the accused persons gave beating to them. Learned counsel for the appellants has referred to the cross-examination of Ramkishan (PW 3) wherein he has stated that Kanchan also give an axe blow to him when he intervened. He submits that the accused Kanchan was not armed with an axe and therefore, the statement of Ramkishan cannot be relied upon. In our opinion, the statement of the witness has to be read as a whole and if so read, it can be said that Ramkishan has stated that Kanchan was armed with a lathi and he has also stated that Kanchan gave blow with a lathi to Hazari. We, therefore, do not attach much significance to the statement of Ram Kishan in cross-examination that Kanchan gave a blow by axe. We have already referred to the statements of the doctor Mr. Sharma (PW 11) who on conducting the autopsy on the dead body of Hazari found as many as 13 injuries, 3 by sharp weapon on the parietal bone, occipital bone and on the external ear dividing the ear in two pieces and the ear was attached only at ear lobule. Injury No. 4 by blunt weapon was also on the right parietal bone up to frontal bone. Injury No. 4 by blunt weapon was also on the right parietal bone up to frontal bone. The doctor has also stated that in the ordinary course of nature the injuries were sufficient to cause the death. It can, therefore, be said that all the accused persons gave blows to deceased Hazari as well as caused injuries to Ramkishan who had as many as 10 injuries. The accused or some of them caused simple injuries to Mst. Keshar, and Mst. Rumali, when they intervened. The plea of alibi of some of the accused persons in support of which they have examined defence witnesses has not been rightly relied upon by the learned Addl. Sessions Judge. We, therefore, place reliance on the evidence of injured persons Mst. Keshar, Mst. Rumali, and Ramkishan and hold that accused Hira was armed with an axe, whereas others were armed with lathis and they gave blows with their respective weapons to deceased Hazari, Ramkishan and others. 24. The question is, as to what offence is made out against the accused persons. The contention of the learned Advocate for the accused is that when the Panchayat was convened at the house of Hazari, to resolve the dispute, referred to in the earlier part of the judgment, the accused persons were not carrying any arms; as has been admitted by the prosecution witnesses. He further contends that stones were hurled and both the parties threw stones as a result of which accused Kishori and Chainaram also received injuries. According to him, the house of all the accused persons are not in the same direction as appears from the site plan (Ex.P I), in which the house of Hira is in the north of Bakhal of Hazari (deceased), whereas the house of Chainaram is in the south. In other words, in between the houses of Chainaram and Hira is situated the house of Hazari (deceased).He, therefore, contends that the accused persons, even if received injuries of stones, which were thrown at their house, came armed with weapons, and even if Hira was armed with an axe and others with lathis, it cannot 1,e said that the common object of the accused persons was to cause the death of Hazari or that beating to Hazari was given in prosecution of that common object. Referring to the statement of Dr. Referring to the statement of Dr. Sharma (PW 1I) and more so to his cross-examination wherein Mr. Sharma has stated that if the injuries caused by sharp weapon might not have been inflicted on the person of Hazari, he would not have died, and that fracture of partietal bone was caused by injury No. 2 and fracture of occipital bone was the result of injury No. 3, and the fracture of temporal bone was the result of injury No. 2, he submits that the other accused persons cannot be held liable under Section 149, IPC, and at best it can be said that the common object, if at all developed to cause grievous injuries by sharp weapon. Dr. Sharma has also stated that had there been only incised wound No. I mentioned in Ex. P 12, there would have been no death of the injured, and all the three incised wounds were the result of separate blows. From the statement of Dr. Sharma it can be said that the death was the result to injury No. 2 and 3. which were caused by sharp weapon with which Hira accused alone was armed. 25. We have already given the facts of this case, and at the cost of repetition, it may be slated that when the Panchayat was taking place at the house of Hazari deceased at about 11 or 12 in the night, the accused persons were unarmed. There was exchange of abuses in between the accused and Hazari (deceased). The accused persons then went to their house. There was also exchange of stones and stones were thrown by both the sides. Two of the accused persons Kishori and Chainaram also received injuries, the house of Hira accused is in the north, and of the other accused Chainaram and his sons in the south, and in between both the houses is situated the house of Hazari deceased. Perhaps when the stones were being thrown and two of the accused persons received injuries, the accused persons came armed, accused Hira with an axe and others with lathis. There could not have been any common object to cause the death of Hazari, and all that can be said is that the members of the assembly only knew that grievous injury or injuries by sharp weapon might be caused. Under Section 149, IPC. There could not have been any common object to cause the death of Hazari, and all that can be said is that the members of the assembly only knew that grievous injury or injuries by sharp weapon might be caused. Under Section 149, IPC. if an offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly, or such as the members of the unlawful assembly knew to be likely to be committed in pursuance of their common object, every person who at the time of committing that offence, is a member of the same assembly is guilty of that offence. Therefore, in our opinion, all that can be said is that the unlawful assembly which the accused formed, or developed the common object which the members of the assembly knew to be likely to be committed was that a grievous hurt may be caused by sharp weapon. Therefore, Hira accused, who is responsible for the fatal injury to deceased Hazari, which fatal injury was sufficient in the ordinary course of nature to cause the death is liable under Section 302, IPC, whereas the other accused persons Harinarain, Kishori, Kanchan and Chainaram are liable under Section 326/149 IPC. So far as accused Hira is concerned, he is liable u/s 148, IPC and the other accused, persons under section 157, IPC. Hira accused is also liable under Section 324, IPC for causing injury by sharp weapon to Ramkishan and also under section 323/149, IPC for simple injuries caused to Mst. Keshar and Mst. Rumali by blunt weapon. 26. Thus, in the result, we hereby dismiss the appeal of Hira accused appellant. His conviction and sentence under section 302, IPC is upheld. The conviction and sentence of Hira accused under Sections 148, 324 and 323/149, WC are also maintained. 27. The appeal of other accused-appellants Hari N.train, Kishori, Kanchan and Chaina Ram is partly allowed. Their conviction is altered from Section 302/149, IPC to Section 326/149, IPC, and each of them is sentenced to undergo 7 years rigorous imprisonment and a fine of Rs. 100/- each in default of payment of which each of the accused-appellants shall further suffer 3 months rigorous imprisonment. The conviction of accused Kanchan under section 325, IPC & of the other accused Harinarain,Kishori and Chainaram under section 325/149, IPC and the sentences awarded to them are maintained. 100/- each in default of payment of which each of the accused-appellants shall further suffer 3 months rigorous imprisonment. The conviction of accused Kanchan under section 325, IPC & of the other accused Harinarain,Kishori and Chainaram under section 325/149, IPC and the sentences awarded to them are maintained. The conviction and sentence of accused Kishori, Harinarnin and Chainaram under section 323, IPC are also maintained. The conviction of accused Kanchan, Kishori, Harinarain and Chainaram under Section 148, IPC is altered to Section 147, IPC, but the sentences awarded to them are maintained. All the substantive sentences of all the accused shall run concurrently. 28. Accused-appellant Hira is in Jail He shall serve out the sentence awarded to him. Accused-appellants Harinarain, Kishori, Chainaram, and Kanchan are on bail. They shall surrender to their bail bonds to serve out the sentence awarded to them.Order accordingly. *******