Judgment K. JAYACHANDRA REDDY, J. (1) A gruesome rioting took place on 18/08/1979 at about 6 a.m. in Narasinguballi Village of Srikakulam District. One Panga Sreeramuly, deceased 1 was killed in a cruel manner on the main street of the village and his younger brother Panga Bairagi, deceased 2, was chased, killed and beheaded and the head was thrown away somewhere and the trunk was found in a canal. In respect of this occurrence, 15 accused persons were tried for offences punishable under S. 147, 148, 302, 302/149, 341 and 201 Indian Penal Code. The learned trial Judge convicted A-1 and A-2 under Section 302 Indian Penal Code simpliciter and sentenced each of them to undergo imprisonment for life and acquitted them of all other charges. The remaining 13 accused were acquitted. The convicted accused preferred an appeal challenging their sentence and the State also filed an appeal challenging the acquittal of the 13 remaining accused in the High court. The High court dismissed the appeal filed by the State but altered the conviction of A-1 and A-2 to one under S. 302/149 and maintained the sentence of imprisonment for life. Hence the present appeal. (2) THE prosecution case is as follows: All the accused, two deceased persons and the material witnesses belong to the same village. The accused are all interrelated. Deceased 1 Panga Sreeramuly was the brother of deceased 2 Panga Bairagi. Public Witness 2 is the widow of deceased 1 and among the witnesses PWs 3 and 6 are brothers. Public Witness 1 is their sister and Public Witness 5 is the son of Public Witness 1. The house of the accused was situated on the opposite side of the house of the deceased. (3) PUBLIC Witness 6, Bavajee was appointed as Village Munsif of Narasinguballi Village in 1976 and after he took charge, he got the properties of A-1, A-6 and A-10 attached for realisation of arrears of land revenue. Since then the accused bore grudge against him. About five months prior to the date of occurrence, the brother of A-1 was murdered. In that case the two deceased in the present case, Public Witness 6 and some others figured as accused. They were released on bail and since then the accused were threatening to kill the two deceased persons and Public Witness 6. About five months prior to the date of occurrence, the brother of A-1 was murdered. In that case the two deceased in the present case, Public Witness 6 and some others figured as accused. They were released on bail and since then the accused were threatening to kill the two deceased persons and Public Witness 6. Public Witness 6, being afraid of being killed, left the village and was staying in his father-in-laws house in a different village. On the date of occurrence at about 6 a.m. deceased 1 was proceeding in the main street towards the eastern side of the village to attend to agricultural operations. At that time, deceased 2 was at a nearby well. Public Witness 1 was proceeding behind deceased 1 to call women coolies. Public Witness 3 having gone to answer the call of nature was under the banyan tree about 126 feet away from the place of occurrence. PWs 2 and 4 were sitting on the pial near the cattle shed of Public Witness 6 which was only 70 feet away. Public Witness 5 was standing in front of the house and Public Witness 7 and another were on their way to the village. When deceased 1 was proceeding in front of the house of A-4, A-1, A-2, A-3, A-5 and A-10 came out from the house of Gondu Venkati. A-1 was armed with a knife, A-2 was armed with a battle axe, A-3 was armed with a kattuva and A-5 and A-10 were armed with spears. A-1 cut deceased 1 on the neck with the knife. A-2 axed him with the battle axe. While deceased 1 was falling down, A-10 pierced him with the spear on his head. Then the other accused dealt blows with the sticks in their hands. They all surrounded and indiscriminately wounded him. Deceased 1 died instantaneously. After killing deceased 1, the accused ran towards East saying that they would also kill his brother Panga Bairagi, deceased 2. On seeing the accused, deceased 2 started running but was chased and they put a rope around the neck of deceased 2 and dragged him to the field. Thereafter nobody has seen as to how deceased 2 was killed and only the trunk was found in the canal. Seeing the accused dragging deceased 2, Public Witness 1 immediately proceeded to Narasannapet Police Station and gave a report Ex. Thereafter nobody has seen as to how deceased 2 was killed and only the trunk was found in the canal. Seeing the accused dragging deceased 2, Public Witness 1 immediately proceeded to Narasannapet Police Station and gave a report Ex. P-1 to the Head Constable Public Witness 15 at about 9.30 a.m. The case was registered and the FIR was issued. The Circle Inspector, Public Witness 18 on receipt of the FIR left Narasannapet and reached Narasinguballi Village by 1 1.00 a.m. He held the inquest over the dead body of deceased 1 and examined PWs 1 to 5. The dead body was sent for post-mortem. He received an express FIR relating to the missing person Panga Bairagi, deceased 2. He got the information on 19/08/1979 that the headless body of deceased 2 was seen floating in the canal. The Circle Inspector held the inquest and that dead body was also sent for post-mortem. The accused were arrested and after completion of the investigation, the charge-sheet was filed. The prosecution mainly relied on the evidence of the eyewitnesses PWs 1, 2, 4, 5 and 7. PWs 3 and 8 were also examined mainly to speak about the chasing of deceased 2. The accused denied the offence. The trial court was not prepared to rely on the evidence of PWs 3 and 8 but relying on the evidence of PWs 1, 2, 4, 5 and 7 convicted only A-1 and A-2. The trial court acquitted other accused on the ground that the allegation against them was omnibus and vague and that the prosecution has not established beyond all reasonable doubt that they were also members of the unlawful assembly. The trial Judge also pointed out that in Ex. P-1, only A-1s name was mentioned and the other names were not mentioned. The learned trial Judge took into consideration the specific overt acts attributed to A-1, A-2 and A-10 by the eyewitnesses. A-10 was acquitted on the ground that there were some variations and discrepancies in the evidence of the eyewitnesses regarding the part played by him. The trial court, however, convicted A-1 and A-2 since specific overt acts were attributed to both of them. A-10 was acquitted on the ground that there were some variations and discrepancies in the evidence of the eyewitnesses regarding the part played by him. The trial court, however, convicted A-1 and A-2 since specific overt acts were attributed to both of them. Regarding the attack on deceased 2, the trial court held that the prosecution has not established as to who were the assailants on the ground that no witnesses were examined to speak about the attack on deceased 2. (4) IT may be mentioned that the acquittal of A-3 to A-15 has become final since the State appeal was dismissed by the High court and the State has not preferred any appeal here. Therefore we are concerned only with the conviction of A-1 and A-2 under Section 302 read with Section 149 Indian Penal Code. (5) THE trial court as well as the High court relied on the evidence of PWs 1, 2, 4, 5 and 7 and held that their evidence established that A-1 armed with a knife, inflicted the injury on the neck of deceased 1 and A-2 dealt a blow with the battle axe on his mouth. The medical evidence also corroborates the same. The trial court convicted both of them under Section 302 simpliciter. Before the High court, it was argued that the injuries inflicted by A-1 and A-2 did not cause death as per the medical evidence and since all the accused were charged under S. 302/149, A-1 and A-2 alone cannot be convicted under Section 302 simpliciter unless the injuries inflicted by them individually were sufficient to cause death. The High court did not consider the said submission in detail but, however, held that there was an unlawful assembly consisting of 15 persons and the common object of the unlawful assembly was only to kill the two deceased and that the other accused were acquitted only after being given the benefit of doubt and that membership of A-1 and A-2 of the said assembly alone has been established and therefore they could be convicted under S. 302/149 Indian Penal Code. (6) SHRI Santosh Hegde, learned counsel appearing for the appellants submits that the appellants were acquitted of the charges under S. 147 and 302/149 Indian Penal Code even by the trial court and the acquittal under those charges has not been challenged before the High court by the State and consequently A-1 and A-2 again could not have been convicted under S. 302/149 by the High court. The learned counsel also submitted that the two appellants cannot also be convicted under Section 302 simpliciter in view of the medical evidence that the fatal injury which resulted in the death was attributed to A-10 who was acquitted. Therefore the appellants cannot even be convicted under S. 302/34 and they can be convicted at the most under S. 324 or 326 Indian Penal Code. His further submission is that since A-2s name was not mentioned in Ex. P-1 he is also entitled to the benefit of doubt like other acquitted accused. (7) THE evidence of the eyewitnesses PWs 1, 2, 3, 5 and 7 establishes beyond all reasonable doubt that A-2 inflicted the injury with a battle axe. Even though his name is not specifically mentioned in the FIR, but that by itself is not a ground to disbelieve his presence. Public Witness 1, who gave the FIR, was an illiterate woman. In her deposition she stated that when D-2 was being chased, she left the place and went to the police station where she found only one Head Constable and that she informed him about the occurrence and also about the assailants but the Head Constable who recorded Ex. P-1 did not even read it out. A perusal of the format of the FIR would show that the Head Constable has not fully recorded the statement of Public Witness 1. As a matter of fact, Public Witness 15 the said Head Constable was cross-examined by the prosecution and it was suggested to him that Public Witness 1 stated the names of all the accused but he has written the name of A-1 only and that as per the orders of his superior officers, he was punished by stopping increments for two years. It is rather surprising that he has mentioned only one name i.e. A-1s name and no other names though several persons participated in the occurrence. In this state of affairs, the FIR cannot be given much importance. It is rather surprising that he has mentioned only one name i.e. A-1s name and no other names though several persons participated in the occurrence. In this state of affairs, the FIR cannot be given much importance. (8) ACCORDING to the evidence of the prosecution witnesses. A-1, who was armed with a knife, dealt a blow on the neck of D-1 and A-2 dealt a blow with an axe on the. mouth of D-1 and when he was falling down, A-10 pierced his spear on D-1 s head and other accused thereafter attacked him. The Doctor, Public Witness 11, found 12 injuries on the dead body of D-1. Injury No. 1 was an incised wound which was on the scapular region. Injury No. 3 was an incised wound on the right angle of the mouth and this injury was attributed to A-2. Injury No. 5 was an incised wound on the left side of the nape of the neck and injury No. 6 was a lacerated wound on the head which resulted in the depressed comminuted fracture of the left parietal bone causing injury to the brain. The rest were all contusions. The Doctor opined that injury No. 3 attributed to A-2 could be caused by a battle axe and injury No. 5 attributed to A-1 could be caused by a knife. The Doctor, however, opined that the death was due to cumulative effect of all the injuries including injury No. 6 (attributed to A-10 which was sufficient in the ordinary course of nature to cause death. The learned Sessions Judge acquitted A-10 giving him the benefit of doubt since there were variations in the statements of the eyewitnesses regarding the part played by him.. So far as the parts played by A-1 and A-2 are concerned, the evidence is consistent and the same is supported by the medical evidence. The learned Sessions Judge, as already mentioned, convicted them under Section 302 JPC simpliciter. No doubt, it was contended before the High court that their conviction under Section 302 Indian Penal Code simpliciter was illegal as the fatal injury 6 was not caused by either of them. The learned Sessions Judge, as already mentioned, convicted them under Section 302 JPC simpliciter. No doubt, it was contended before the High court that their conviction under Section 302 Indian Penal Code simpliciter was illegal as the fatal injury 6 was not caused by either of them. The High court has not gone into the medical evidence in detail and has also not considered the question whether the conviction of the appellants under Section 302 Indian Penal Code simpliciter can be maintained or whether it can be altered to one under Sections 302/34 Indian Penal Code. The High court, on the other hand, after having examined the evidence reached the conclusion that there was an unlawful assembly of more than five persons of which the two appellants were members and in that view, they could be convicted under S. 302/149 Indian Penal Code and accordingly convicted the appellants. Learned counsel for the appellants again contended before us that since A-1 and A-2 did not cause the fatal injury, they cannot be convicted under Section 302 Indian Penal Code simpliciter nor can they be convicted under S. 302/149 Indian Penal Code since all of them were acquitted under S. 147 and 148 thereby disbelieving the prosecution story regarding the formation of an unlawful assembly. (9) THE doctor, who conducted the post-mortem, no doubt in the cross-examination further admitted that apart from injury No. 6, the other injuries either individually or collectively do not cause death but in the further re-examination he again admitted that if injury No. 6 is inflicted followed by other injuries, then the death might he instantaneous. Therefore, we see no reason why these two appellants should not be convicted under S. 302/34 Indian Penal Code. Taking the entire case as such, there cannot be any doubt that there was a prior concert among these accused and armed with deadly weapons, they inflicted the injuries along with the other assailants. Though they have not caused the fatal injury as such, still they participated in the attack sharing the common intention of causing the death along with the assailant who caused that fatal injury and to that extent the medical evidence also supports the case. They were specifically charged under Section 302 Indian Penal Code simpliciter. Therefore there is no legal impediment to convict them under S. 302/34 Indian Penal Code. They were specifically charged under Section 302 Indian Penal Code simpliciter. Therefore there is no legal impediment to convict them under S. 302/34 Indian Penal Code. Accordingly we set aside the conviction of the appellants under S. 302/149 Indian Penal Code and instead convict them under S. 302/34 Indian Penal Code and confirm the sentence of imprisonment for life. The appeal is accordingly dismissed.