JUDGMENT 1. This appeal is directed against the judgment dated July 19, 1988 of the learned District & Sessions Judge, Jhalawar in Sessions Case No. 198/1987, whereby he convicted and sentenced the accused appellants, in the following manner:- Rama S/o Uma u/S 302 IPC- Life imprisonment with a fine of Rs. 500/-, (in default of the payment of fine, further six months RI). Each of appellants Rama S/o Baga, Rodu, Baga, Lalu, Madan & Kishan Singh u/S 302/149 IPC -do- All appellants u/S 147 IPC 'Two years' RI. -do- u/S 323 IPC One year's RI with a fine of Rs. 200/- (in default, further two months RI). All the sentences were ordered to run concurrently. 2. Brief facts giving rise to this appeal are that one Shiv Lal arrived at police station. Dug at 10.30 p.m. on 12-9-1987 informing of the incident which took place on 19-9-1987 in between 7 and 8 p.m. in village-Mahudi Kheda. In the F.I R., eight persons were named as accused and on the basis of which, a case for offences under Sections 147, 148 307 and 149 IPC was registered. It was alleged in the F.I.R. that Shiv Lal alongwith his father-Kishan Lal, mother-Ghambir Bai and younger brother - Pura Lal were being returned from their well, then the accused persons named therein, came at the place of incident and started beating the complainant party. In this incident Shiv Lal (PW-8), Ghambhir Bai (PW-9) and Pura (PW-10) sustained injuries, besides deceased Kishanlal. 3. The case of the prosecution further is that deceased Kishan Lal succumbed to the injuries. Injury No. 1 has been shown as cause of death, by Dr. Ashok Tiwari, who conducted post mortem of the deceased. Injury No. 1 is assigned to appellant Rama S/o Uma by saying that he inflicted a `gandassi' blow on the head of the deceased which proved as fatal. The case of the prosecution further is that all the accused appellants were armed with weapons. One of accused Lalu S/o Uma was armed with a gun but it is an admitted position that he did not use the same. Dr Ashok Tiwari (PW-3). Who appeared in witness box, proved injuries found on the persons of Ghambhir Bai, Shiv Lal and Pura, and also proved the injury inflicted by accused appellant Rama S/o Uma on the head of the deceased. As per the statement of Dr. Dr Ashok Tiwari (PW-3). Who appeared in witness box, proved injuries found on the persons of Ghambhir Bai, Shiv Lal and Pura, and also proved the injury inflicted by accused appellant Rama S/o Uma on the head of the deceased. As per the statement of Dr. Ashok Tiwari, deceased Kishan Lal sustained only five injuries. Two of the injuries were lacerated wound in nature and the other injures were either bruises or abraisons. He further stated that all the injuries except injury No. 1 sustained by the deceased were simple in nature. 4. As said earlier, in the report as well as in the statement of the prosecution witnesses, the allegation against the accused appellants is that they were armed with weapons and had participated in the beating. In the evidence, it has also come that two of accused, namely, Rodu S/o Baga and Baga S/o Gulab were present but did not cause any injury to any member of the complainant party. 5. A look at the statement of Shiv Lal (PW-8), Ghambhir Bai (PW-9), Pura (PW-10) and Jatan Bai (PW-12) shows that the incident took place but looking to the specific overt act alleged against the appellants, the nature of the injuries sustained by the complainant party and the fact that two of the accused, though were present armed with weapons, did not participate in the beating of the complainant party and one of accused Lalu S/o Uma though was armed with the gun but did not use it. 6. It is a settled law that merely because of the presence at the incident does not mean that a person present at the scene of incident formed an unlawful assembly. In such a situation, it is for prosecution to prove specific overt act against each of the accused persons. But, in the instant case, neither any specific overt act is alleged nor has been proved against the present accused appellants. 7. Moreover, the conduct of the accused appellants in causing injuries, which were meagre in number, whom that there was no common object on the part of the accused appellants either to cause any fatal injury on the person of Kishan Lal or to commit his murder. 7. Moreover, the conduct of the accused appellants in causing injuries, which were meagre in number, whom that there was no common object on the part of the accused appellants either to cause any fatal injury on the person of Kishan Lal or to commit his murder. Had they such common object or culpable intention then accused appellant Lalu would have used the gun and other accused would have used sharp side of the gandasi which is alleged to have been used by appellant Rama S/o S/o Uma. But, according to the evidence analysed above, as is evident from the size nature and number of injuries on the injured and deceased persons, no common object or intention can be imputed to the act of the appellants so as to convict them for the offence charged. Rather, all the circumstances, therefore, go to show that no inference can be drawn against the accused appellants that they either formed an unlawful assembly for a common object or they had given beating to the complainant party with any premeditation after forming an unlawful assembly. From the evidence of the eyewitnesses and the circumstances of the case, it appears that the incident did take place and deceased Kishan Lal sustained fatal injury at the hands of accused appellant Rama S/o Uma. But, it has come on record that accused Rama S/o Uma was armed with the gandasi, and as per the statement of eye witnesses the sharp side of the gandasi was used for inflicting the injury, in question, but the statement of the eye witnesses is not corroborated by the statement of Medical Jurist (Dr. Ashok Tiwari). Who prepared the injury report and conducted the post-mortem. Ashok Tiwari). Who prepared the injury report and conducted the post-mortem. The learned trial Court has recorded a finding that accused appellant Rama S/o Uma did not use the sharp side of the weapon (gandasi) and caused the injury from the reverse side and the witnesses might not have noticed this fact as the incident took place in the night at about 8.30 p.m. In this circumstances, this possibility cannot be ruled out that appellant Rama S/o Uma used blunt side for causing the injury on the head of the deceased and because of the said discrepancy, appellant Rama S/o Uma cannot get his acquittal nor can go unpunished for his act proved on record, but in view of the fact that blow was not repealed and that appellant Rama S/o Uma did not use sharp side of the gandasi, it can be held that appellant Rama S/o Uma was not having any intention to commit the murder of deceased Kishan Lal, otherwise he would have caused the injury by sharp side of the gandasi. In this regard, the statement of the eye witnesses is consistent. Learned counsel for the appellants failed to point out any infirmity so as to disbelieve their testimony. In these circumstances, there is no reason to observe that the occurrence had not taken place as alleged by the prosecution. But, from the testimony of the eye witnesses, it appears that definitely `maar peet' took place and the appellants inflicted the blow on the head of the deceased by lethal weapon. So, looking to the specific overt act alleged against accused appellant Rama S/o Uma, this can be said that accused appellant Rama S/o Uma used a lethal weapon but his intention was not to commit murder of the deceased. 8. A look at the record shows that the appellant except Rama S/o Uma remained in jail for some time, so the ends of justice would met in case they are sentenced for the period already undergone by them. 9. In the result, this appeal is, therefore, partly allowed. The conviction and sentence under Section 147, 302, 302/149 IPC passed by the trial Court against the appellants (Rama S/o Baga, Lalu and Madan) except Rama S/o Uma, are set aside but their conviction under Section 323 IPC is maintained. 9. In the result, this appeal is, therefore, partly allowed. The conviction and sentence under Section 147, 302, 302/149 IPC passed by the trial Court against the appellants (Rama S/o Baga, Lalu and Madan) except Rama S/o Uma, are set aside but their conviction under Section 323 IPC is maintained. However, appellant Rama S/o Uma is acquitted of the charge under Section 302 IPC, so his conviction & sentence under Section 302 IPC are set aside,he is held guilty of the offence under Section 304-II IPC, and he is sentenced to five years RI with a fine of Rs. 200/-(Rupees two hundred), in default of the payment of fine, appellant Rama S/o Uma shall further undergo one months rigorous imprisonment. Since the remaining accused appellants have been found guilty of the offence under Section 323 IPC, their conviction is maintained but their sentence under Section 323 IPC is reduced to the term which they have already undergone. Appellants except Rama S/o Uma are on bail and need not surrender. Their bail bonds stand cancelled. 10. Accused appellant Rama S/o Uma is in jail. He shall entitled to the benefit of Section 428 Cr.P.C. A copy of this judgment be sent to the Central Jail, Jaipur with a direction that if Rama S/o Uma has undergone the substantive sentence and fine awarded by this Court as indicated above, then he shall be set at liberty forthwith. *******