JUDGMENT 1. - These two appeals are disposed of by this common Judgment as they arise out of the same order passed by the learned Sessions Judge, Sirohi dated 25-11-1985. 2. These appeals have been directed against the Judgment of learned Sessions Judge Sirohi dated 25-11-1985 in Sessions Case No. 33 of 1984 whereby he convicted accused Jeewa for offences Under Sections 302, 325, 143, 323 and 341 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 500/-, in default of payment of fine to further undergo one year's rigorous imprisonment on the first count, one year's rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine three months' rigorous imprisonment on the second count, one years rigorous imprisonment on the third count, three months rigorous imprisonment on the fourth count and fifteen days simple imprisonment on the fifth count. Substantive sentences were ordered to run concurrently. 3. Accused Natha, Achla, Hatha, Rama, Manra, Lumha, Bhera and Leela were convicted for offences Under Sections 148, 323 and 341 Indian Penal Code and each of them were sentenced to one year's rigorous imprisonment on the first count, three months rigorous imprisonment on the second count and fifteen days simple imprisonment on the third count. Accused Bhera was additionally convicted for offence Under Sections 325 Indian Penal Code and sentenced to one year's rigorous imprisonment and a fine of Rs. 100/-. in default of payment of which three months further rigorous imprisonments was awarded. All the substantive sentences awarded to each of the accused were ordered to run concurrently and further that all the accused were given benefit of Section 428 of the Code of Criminal Procedure. 4. The facts leading to these appeals are that a First Information Report Ex. P. 21-A was lodged at Police Station, Rohida, District Sirohi on 9th of June, 1982 at 2 a.m. by Rama S/o Teja (PW 12) wherein it was alleged by him that his brother Malta S/o. Teja, his nephew Sam a S/o Mana, Bhima S/o Mana and Deva S/o Rama were returning to their house for evening meals from Arath at about 9 p.m. When they were near on way Arath Nala they were way laid by Natha, Jeewa, Leela, Hatha, Rama, Hameera, Lumba, Maura and Bhera resident of Dhanari and Achla S/o Leela resident of Mandwara. They were all armed with axes and lathies with iron rights. His brother Mana, his nephew Sana, Bhima and Deva were mercilessly beaten by lathies and axes and they been resulting in multiple injuries, when they cried for, help f Hatha S/o Roopa, his mother Holi and Hatha's wife Kesi along with Gamma's wife Puri arrived at the place of occurrence and all the ten accused persons inflicted injuries on their persons also. He further mentioned in the report that details about the persons who initiated the occurrence can be given by the injured person specially Rama. He was only at Arath and be thereafter rushed on the place of occurrence and saw the injured persons lying in a pool of blood. A number of persons from village has gathered there. Thereafter, they were taken for treatment and he went for lodging the report. However, on the way when they were going to Rohida, Mana succumbed to injuries. Motive of crime as given in the report was that there are two parties in the village and there had been previous court cases also between them On receipt of this report, Police to glistered the case for offence Under Sections 147, 148, 149, 302, 307, 325, 323 and 341 Indian Penal Code. Investigation commenced and nine persons after investigation, were charge sheeted It is pertinent to mention that during investigation, the police got all the injured medically examined and on complainant side Smt. Puri, Smt. Keshi, Sama. Hatta, Holi and Deva were found to have sustained injuries Autopsy of corpse of deceased' Mana was got done and Dr. Noor Mohd. (PW 4) who performed the post-mortem, found six injuries on his person. According to him two injuries were by blunt object and rest were by sharp edged weapon, The cause of death in his opinion was shock due to excessive loss of blood from the wounds and multiple fractures. All the nine accused persons who were charge-sheeted were committed to the Court of Sessions by learned Judicial Magistrate, Abu Road. At trial, prosecution examined nineteen witnesses in support of its case The accused who denied the occurrence, examined four witnesses in their defence. The learned Sessions Judge, found the offence Under Section 302 Indian Penal Code proved against the accused-appellant Jeewa on the strength of the statement of Bhima (PW 6), corroborated by medical evidence i.e. the statement of Dr. At trial, prosecution examined nineteen witnesses in support of its case The accused who denied the occurrence, examined four witnesses in their defence. The learned Sessions Judge, found the offence Under Section 302 Indian Penal Code proved against the accused-appellant Jeewa on the strength of the statement of Bhima (PW 6), corroborated by medical evidence i.e. the statement of Dr. Noor Mohd (PW 4) and the recovery of knife in pursuance of the information given Under Section 27 of the Evidence Act Ex. P. 43, He further convicted and sentenced the other accused-appellant as indicated above. Aggrieved of the conviction and sentence all the nine appellants preferred the represented appeal while accused Jeewa also sent the jail appeal and as mentioned above both the appeals are being disposed of by this common Judgment. 5. Learned Counsel for the appellants while pressing the appeal for Jeewa, submitted that the findings arrived at by the trial court are not in consonance with the evidence which has come on record is thus perverse. His submission is that prosecution has examined as many Sis six injured eye witnesses but except for Bhima none of them attributed any sharp weapon of offence to Jeewa, and Bhima too has not attributed knife in the bands of accused-appellant Jeewa in his statement Under Section 164, Cr.PC. It is submitted that on all-important points he has changed his statement. He has also resiled from his police statement regarding various sequences. There is no other ocular evidence to connect the accused with the offence Under Section 302 Indian Penal Code commenting on the medical evidence also, the learned Counsel's submissions is, that a perusal of the post-mortem report indicates that three types of weapons have been used while injuries on the person of Mana. It is submitted that P.W. 4, on. Noor Mohd. in his statement admitted that injuries Nos. 1, 3 and 4 could be caused by knife but injury No. 2 could not be caused by knife and particularly the Article 6, which has been recovered at the instance of the accused. Dr. Noor Mohd. has also stated that injuries No. 5 and 6 were caused by lathi. It is submitted that another significant fact is that according to medical evidence, it was the cumulative effect of all the injuries which was the cause of death and no single injury could cause death in the instant case. Dr. Noor Mohd. has also stated that injuries No. 5 and 6 were caused by lathi. It is submitted that another significant fact is that according to medical evidence, it was the cumulative effect of all the injuries which was the cause of death and no single injury could cause death in the instant case. It is, therefore, submitted that prosecution has miserably failed to connect the fatal blow with accused appellant Jeewa. Regarding the recovery of the knife it is submitted that it has wrongly been connected with the injury caused, in as much as, there is no evidence on record to suggest that the knife was stained with with human blood. In this view of the matter, the submission of the learned Counsel is there is no evidence to connect the accused for the offence Under Section 302 Indian Penal Code and his case is not distinguish able than that of other accused persons who have been convicted for the offence Under Section 323, 341 and 148 Indian Penal Code. 6. Arguing the appeal on behalf of Natha, Achla, Hatha Rama, Manra, Lumba Bhera and Leela it is submitted that the evidence is too weak to connect them with the allegations of forming an unlawful assembly and also that since the incident took place at dark hour it was not possible to identify the accused persons. 7. Mr Suresh Kumbhat appearing on behalf of the complainants vehemently argued that as many as four incised wounds have been caused on the person of deceased and that too on his face. He submits that there is no reason to disbelieve the statement of Hameera who has categorically stated that accused-appellant Jeewa struck a lathi blow on the head of deceased Mana who fell down and even after becoming his helpless, the accused did not rest and thereafter inflicted knife blows on his face. He submits that there are seven witnesses in the case and six of them are injured whose injuries have been proved by Dr. Noor Mohd. P.W. 4 and as such his presence at the place of occurrence cannot be disputed. 8. We have given our anxious consideration to the rival contentions and perused the entire record. We would first deal with the appeal filed by Jeewa who has been convicted for offence Under Section 302 Indian Penal Code. Prosecution has given an aggresive picture of the incident. 8. We have given our anxious consideration to the rival contentions and perused the entire record. We would first deal with the appeal filed by Jeewa who has been convicted for offence Under Section 302 Indian Penal Code. Prosecution has given an aggresive picture of the incident. While giving the details, be has stated that Jeewa had given a lathi blow on his head as a result of which he fell down. He stated that Jeewa and Rama along with all others have inflicted injuries on the person of Mana, Jeewa sat on him and inflicted knife blows on his face and head. He stated that 8 to 10 injuries had been inflicted on the person of deceased Mana. This witness in cross examination had to admit that he has not stated that he attributed knife injury on the person of deceased either in his police statement Ex.D 3 or his statement Under Section 164, Cr.PC record by the Magistrate. He in his statement under C 164, Cr. PC had stated that Hameera, Bhera, Jeewa and Rama all the four were armed with knives-which is no body's case. He resiled from this statement. After being confronted with several parts of previous statement, he hand to admit that be does not know who inflicted injury on which part of the body. He has also tried to shift the time of occurrence by starting that when the incident took place it was dot dark and it was almost dusk. A perusal of the entire statement of this witness does not inspire confidence and at any rate he is not a wholly reliable witness. So far as the other injured eye witnesses namely P.W. 7, Smt. Keshi wife of Hatta, P.W. 8, Hatta S/o Roopa, P.W. 9. Smt. Puri W/o Gamna, P.W. 13 Samiya S/o deceased Mana and P.W. 15 Deva S/o Dungra, none of them come forward with the story of accused Jeewa inflicting knife injuries on the face and head of the deceased Mana. They give an omnibus statement attributing the injuries on the person of deceased by all the accused and have further admitted only lathi blow on the head by accused Jeewa. Thus, the statement of Bhima is not corroborated by the evidence of any other eyewitness. If we look at the medical evidence that too does not corroborated the statement of Bhima as Dr. Noor Mohd. Thus, the statement of Bhima is not corroborated by the evidence of any other eyewitness. If we look at the medical evidence that too does not corroborated the statement of Bhima as Dr. Noor Mohd. (PW 4) has categorically stated that the injury No. 2 could not be caused by the knife and that there were injuries by blunt object also on the person of the deceased. Thus, we are left only with the evidence of recovery of knife which in our opinion is of hardly any significance in view of the fact that prosecution has failed to show that it was smeared with human blood. Therefore, looking from any angle, we are left with no legal and convincing evidence to connect the accused with, the offence punishable Under Section 302, Indian Penal Code. How ever, in view of the fact that there is overwhelming evidence that he was a member of the unlawful assembly which has attacked the complainant party injuring as many as seven persons, he is vicariously liable for causing injuries on the person of the deceased as well as other persons and cannot escape the liability as has been fastened on the other accused who have been convicted: and sentenced in this case Hence his case will have to be taken at par with that of all other accused appellants. There is overwhelming evidence on record to suggest that the complainant party was attacked by the accused appellant and they inflicted injuries on person of Bhima, Keshi, Hatta, Puri, Samiya, Deva and Mana, Injuries on the persons of all these persons have been proved by Dr. Noor Mohd. (PW 4). The statements of these witnesses are further corroborated by the First Information Report lodged by Rama where the manner of incident alleged is identical to the one stated in the court. 9. We have gone through the reasoning given by the learned trial Court while holding all these persons guilty of offence Under Section 323, 341 and 148, Indian Penal Code and see no reason to take a different view of the matter. The Conviction of all these accused including that of Bhera Under Section 325, Indian Penal Code therefore, is sustainable and is maintained. 10. The Conviction of all these accused including that of Bhera Under Section 325, Indian Penal Code therefore, is sustainable and is maintained. 10. The result of the aforesaid discussion is that we partly allow the appeal filed by Jeewa, set aside his conviction for offence Under Section 302, Indian Penal Code, and instead convict him for offence Under Section 323, Indian Penal Code to which offence he has also been convicted for inflicting injuries to other injured persons. Therefore, there is no need for recording any other sentence on him. The imprisonment for life given to him, is therefore, reduced to one year for offence Under Section 323, Indian Penal Code and maintain the conviction and sentence for offences Under Section 148 and 341, Indian Penal Code as awarded by the trial court. The accused-appellant Jeewa is in jail since 12-6-1982 and thus has suffered imprisonment for a period much more than awarded to him. He shall be released forthwith if not required in any other case. We do not find force in the appeal of accused appellants Natha, Achla, Hatla, Rama, Mana, Lumha, Bhera and Leela and dismiss the same.Appeal partly allowed. *******