JUDGMENT 1. - These three appeals arise out of the common judgment of learned Additional Sessions Judge, Deeg convicting and sentencing the accused appellants as under: Samsu, Sabu, Deenu & Medli & Bashir Under Section 302 Rule with 149 I.P.C. -- life imprisonment and a fine of R s. 200/- each, in default of payment of fine, 2 months SI; Under Section 148 I.P.C. -- 2 Years RI; Deenu -- Under Section 323 I.P.C. -- 6 months RI. 2. The prosecution case, briefly stated, is as follows: Sardar (PW 1) submitted a written report (Ex. P 1) regarding an incident which had happened on 8-9-1983 between 6-7 a.m. The said report was registered at the Police Station Pahadi at 1.30 p.m. and marked as Ex. P 2. According to this report, Nuruddin, Abdul s/o Med Singh, Asu, Umar Mohd. s/o Moti and Jumma Khan s/o Rahim Khan were sitting at the residence and were taking Hookah. Accused persons came there suddenly. Samsu had a country, made pistol and Pharsa in his hand, Sabu had a Farsa in his hand while other accused persons had lathies. Samsu fired the country made pistol, and on hearing the sound of fire, Sardar who was on the field, went to the residence and saw that Samsu and Sabu inflicted Farsa blows to Nuruddin and Abdul, and others inflicted lathi blows to Asu, Umar Mohd. Sardar made hue and cry, on which other villagers also arrived at the spot, and the accused ran way. The police registered a case under Sections 147, 148, 323, 307, and 452 I.P.C. and after investigation, put up the challan in the court of Magistrate who committed the case to Sessions. Learned Additional Sessions Judge, Deeg, after recording evidence, convicted and sentenced the accused appellants as aforesaid. 3. Accused Samsu. Sabu, Deenu and Medli filed appeal Mo. 479/84 and accused Medli also preferred an appeal through jail which has been registered as Appeal No. 109/85 which Mr. R.N. Sharma has been appointed as Amicus Curiae, where as accused Bashir preferred appeal No. 442/1985. 4. We have heard learned Counsel for the parties as well as Public Prosecutor, Mr. Biri Singh on behalf of the complainant, and have also perused the judgment of the learned trial court. 5. Since the accused persons in their reply to the questions put to them under Section 313 Cr. 4. We have heard learned Counsel for the parties as well as Public Prosecutor, Mr. Biri Singh on behalf of the complainant, and have also perused the judgment of the learned trial court. 5. Since the accused persons in their reply to the questions put to them under Section 313 Cr. P.C. have taken the plea that the complainant attacked the accused persons and gave them beating, and it was by way of right of private defence that they assaulted the complainant party, it is not necessary for us to give any detail of the prosecution evidence because it is admitted that the incident happened on 8-9-1983 at the relevant time. The accused were arrested after about three weeks and they were medically examined on 28-9-1983, where as injury reports Ex D 6 to Ex. D 10 show that the accused persons had received some injuries Some of them were more than two week's duration. Noor Mohd. died on 11-9-1983, whose injury report is Ex. P 29; post mortem of Noor Mohd. was conducted by Dr. Gopal Singh, (PW 12) and the post-mortem report is Ex. P 30. The injury report of Noor Mohd. deceased shows that he received 9 injuries in all, out of which three were grievous and 6 were simple by blunt object Out of three grievous injuries, one was on the face and the teeth had broken and the other was on the finger which was fractured. The third injury was on the head of the deceased which proved fatal. The prosecution has examined six eye witnesses in support of its case. PW 1 Sardar who has also filed the FIR has stated that accused Medli, and Samsu, had inflicted lathi blows on the head of the deceased, whereas PW 2 Abdul and PW 6 Khumani wife of deceased, do not say anything as to who had inflicted the fatal blow on the head of the deceased. PW 7 Umar Mohd. have assigned the fatal blow to accused Medli, where as PW 5 Jumme Khan has stated that both Samsu & Medli inflicted lathi blows on the head of the deceased. PW 7 Umar Mohd. have assigned the fatal blow to accused Medli, where as PW 5 Jumme Khan has stated that both Samsu & Medli inflicted lathi blows on the head of the deceased. On a perusal of the FIR, we have noticed that the accused Samsu has been alleged to have a country made pistol as well as a Farsa, and it is not understandable as to how Samsu could have inflicted a lathi blow on the head of the deceased because it is not the case of the complainant party that Samsu inflicted blow by Farsa from the reverse side. It is not believable that accused Samsu will have a county made pistol, Farsi as well as lathi in his hand and therefore, we do not think that the evidence of Sardar PW 1 or Jumme Khan PW 5 implicating Samsu that he inflicted lathi blow on the head of the deceased, can be believed. 6. Thus, we find that there is over-whelming evidence of the prosecution witnesses that the fatal injury was inflicted on the head of the deceased by accused Medli. 7. Learned Additional Sessions Judge has convicted the accused appellants under Section 302 read with Section 149 I.P.C. because he was of the opinion that it was not possible to say definitely as to whether it was Samsu or Medli who had inflicted the fatal blow on the head of the deceased. Moreover, since the trial court has come to the conclusion that the accused persons were all members of an unlawful assembly, he convicted all of them under Section 302/149 I.P.C. 8. Having gone through the entire prosecution evidence we are also of the view that the learned trial court was right in convicting the accused appellants under Section 148 I.P.C. as their common object obviously was to give beating to the complainant party. They cannot be assigned any common object of causing death of any of the member of the complainant party because Samsu had a country made pistol in his hand and according to the prosecution, he actually fired the pistol but there are no injuries to any of the persons by this pistol. Samsu and Sabu are alleged to have Farsi in their hands but we find that there are no injuries by farsa, except one in the foot of the deceased where finger has been cut. Samsu and Sabu are alleged to have Farsi in their hands but we find that there are no injuries by farsa, except one in the foot of the deceased where finger has been cut. If the accused persons had any intention of causing death of Noor Mohd. or any other member of the complainant party, they could have inflicted more fatal injuries to the complainant party and on the vital parts of the body. Therefore, it cannot, it cannot be said that they had any intention of causing death and none of them can be convicted under Section 302 or 302/149, I.P.C. 9. After going through the prosecution evidence, we find that the prosecution has been able to prove that it was Medli who inflicted the fatal blow on the head of the deceased by lathi. We, therefore, convict accused Medli under Section 325 I.P.C. Since he is in jail since September, 1983, we are of the option that the ends of justice will be met if he is sentenced to imprisonment already undergone. 10. As regards Samsu and Sabu, since they were both members of an unlawful assembly, they are also convicted under Section 325 I.P.C. r/w Section 149 I.P.C. Other accused person has also remained in jail for more than 15 days before the release on bail by this court after filing the appeal. In our opinion, the ends of justice will be met if they are sentenced to imprisonment already undergone and each of them is made liable to pay a fine of Rs. 2000/-; in default of payment of fine, further RI for two years. 11. Accused Bashir is in jail. He is convicted under Section 325/149 I.P.C. and sentenced to imprisonment already undergone. 12. Learned Counsel for the appellants has brought to our notice Ramlal v. Delhi Administration ( AIR 1972 SC 2462 ) and Yogendra Morarji v. State of Gujarat ( AIR 1980 SC 660 ) . We have also considered these authorities while coming to the above conclusion. 13. In the result, these appeals are partly allowed, conviction of the accused appellants Under Section 302/149 I.P.C. is set aside. Accused Medli is convicted under Section 325 I.P.C. and sentenced to imprisonment already undergone; accused Samsu, Sabu and Deenu are convicted under Section 325/149 I.P.C. and sentenced to imprisonment already undergone, and to pay a fine of Rs. 2,000/-each. 13. In the result, these appeals are partly allowed, conviction of the accused appellants Under Section 302/149 I.P.C. is set aside. Accused Medli is convicted under Section 325 I.P.C. and sentenced to imprisonment already undergone; accused Samsu, Sabu and Deenu are convicted under Section 325/149 I.P.C. and sentenced to imprisonment already undergone, and to pay a fine of Rs. 2,000/-each. Since they are on bail, they are given two month's time to deposit the above amount of fine, failing which they will be apprehended for undergoing two years rigorous imprisonment. If they deposit the amount of fine within 2 months, their bait bonds shall stand discharged. Accused Bashir is convicted under Section 325/149 I.P.C. and is sentenced to imprisonment already undergone. Conviction and sentence of the accused appellants under Section 148 I.P.C. is maintained. 14. Medli and Bashir are in jail. They will be released immediately, if not required in any other case.Appeal partly allowed. *******