JUDGMENT S.K. Chawla, J. 1. This is an appeal by as many as 11 accused persons who were convicted under Sections 147, 342/149 and 304-II/149, Indian Penal Code and sentenced to R.I. for 6 months, 6 months and 7 years respectively by Additional Sessions Judge, Shivpuri in Sessions Trial No. 133/85 by judgment dated 22-10-1986. 2. The prosecution story was that a theft had occurred at the house of appellant No. 1 Randhirsingh Lodhi @ Randhira, which deceased Keshav, among some others, was suspected to have committed. Appellant Randhir Singh had for that reason beaten deceased Keshav and the latter had also reported the matter at Pichhore Police Station. A Panchayat was held in village Pichhore which had imposed a fine of Rs. 4,000/- on deceased Keshav for committing that theft. Deceased Keshav had failed to pay any amount of fine. The accused persons had, therefore, started to nurture ill-will against deceased Keshav. Stones began to be pelted on the house of deceased Keshav who was compelled to leave his village Daviya Govind and shift to village Bhonti. On 3-6-1985 deceased Keshav with his Samdhi Patua (PW 12) again visited village Daviya Govind. On the following day, i.e., on 4-6-1985 at about 7.30 a.m. when deceased Keshav was at the house of Paltu (PW 3) in that village, all the 11 accused persons armed with lathi, Lohangi etc., came to the house of Paltu and forcibly carried deceased Keshav to the house of one of them, i.e., to the house of accused/appellant No. 1 Randhir Singh. The deceased was shut inside that house and beaten there. The deceased's son Nihalsingh (PW 1) reached that house and found that sound of beating was coming from behind the closed doors. He rushed to lodge a report (Ex. P/1) at Bhonti Police Station. The report was lodged at about 9.30 a.m. On the same day the Police reached the house of accused/appellant No. 1 Randhirsingh when the dead body of deceased Keshav was found lying in front of the door of that house. Two of the accused, namely, Randhir Singh and Kallua were arrested by the Police from the village on the same day and a Mogri and a lathi were respectively recovered on their information and at their instance. The rest of the accused persons were arrested after lapse of some days. Two of the accused, namely, Randhir Singh and Kallua were arrested by the Police from the village on the same day and a Mogri and a lathi were respectively recovered on their information and at their instance. The rest of the accused persons were arrested after lapse of some days. Lathis were recovered on the information given by each of the accused. Post mortem examination of deceased Keshav revealed 9 wounds on his body coupled with fracture of right tibia and fibula bones and right ulna bone. The death, according to the doctor, was on account of shock due to multiple injuries and fracture of bones. Presence of blood was confirmed on Mogri and lathi seized, as stated above, at the instance of accused Randhir Singh and Kallua vide report of Chemical Examiner, Ex. P/38. Blood-stains on these weapons had however disintegrated and origin could not be determined vide report of serologist, Ex. P/37. On these facts, all the accused persons were charged of the offences under Sections 148, 342/148 and 302/149, Indian Penal Code. At the conclusion of the trial, the learned Additional Sessions Judge however convicted the accused persons of the offences under Section 147 in place of Section 148, Indian Penal Code, Sections 343/149, Indian Penal Code and Section 304-II/149, Indian Penal Code in place of Sections 302/149, Indian Penal Code and sentenced them in the manner already indicated. 3. Shri B. Raj Sharma, learned counsel for the appellants, argued mainly to contend that the prosecution story was not proved. With regard to the main part of the prosecution story that deceased Keshav was beaten to death inside the room of the house of appellant No. 1 Randhir Singh behind closed doors, it was submitted that there was no eye-witness account to show who were present inside the room and who actually beat the deceased. It was submitted that there was also no circumstantial evidence to establish the presence of any of the accused in the room at that time or indicating participation of any of the accused in the allged beating. It was submitted that there was also no circumstantial evidence to establish the presence of any of the accused in the room at that time or indicating participation of any of the accused in the allged beating. Even though the dead body of deceased Keshav in a battered condition was recovered by the police soon after the incident lying near the door of the house of appellant No. 1 Randhir Singh, it was stressed that the exact place where the dead body was found was a common compound of a number of houses called a Bakhal. With respect also to the remaining part of the story, the point sought to be made out was that some of the prosecution witnesses had turned hostile; and others who supported it, were interested and related witnesses. It was also pointed out that F.I.R. (Ex. P/1) of the incident was lodged by deceased's son Nihalsingh (PW 1), who had not witnessed any part of the incident. He had lodged the report on the information given to him by his brother Gyansingh, who was not examined by the prosecution. Learned counsel also took this Court through the entire evidence in support of the above submissions. 4. The weakest part of the prosecution case no doubt consists of the circumstance that there is no evidence to show who were present inside the closed doors of the room of appellant No. 1 Randhir Singh and who actually participated in the alleged beating of the deceased. Nihalsingh (PW 1) no doubt tried to say in his evidence that before proceeding to lodge a report, he had reached the house of appellant No. 1 Randhir Singh and had actually peeped through the crevice of the closed doors of the house. He claimed in his evidence that he had seen some of the accused persons holding different weapons and actually beating the deceased inside the room. There is no difficulty in holding that this part of his evidence was an improvement. Nihalsingh was contradicted both by report, Ex. P/1, and his police statement, Ex. D/1, showing that he had not done any kind of peeping nor seen any part of the actual assault taking place inside the room. He had at best heard only sound of beating emanating from that room. Nihalsingh was contradicted both by report, Ex. P/1, and his police statement, Ex. D/1, showing that he had not done any kind of peeping nor seen any part of the actual assault taking place inside the room. He had at best heard only sound of beating emanating from that room. He had shouted for opening of the door but when it was not opened, he had hastened to the Police Station to lodge a report. He brought the Police to the room. 5. It was the evidence of Sub-Inspector Shri J. S. Kushwaha (PW 14) that he had gone to the place of occurrence and got the door of the house in question opened. But it was not his evidence that any of the accused persons was actually found present in the house. Panchanama (Ex. P/3) prepared by him on the occasion of getting the door opened, does read that appellant Randhir Singh had opened the chain of the door from inside. This fact was however not elicited from Shri Kushwaha with reference to the Panchanama prepared by him. Instead the learned Additional Sessions Judge Shri A. N. Vijay allowed the Panchanama to be treated as substantive evidence by getting it simply exhibited in the evidence of the witness. It is indeed unfortunate that the learned Judge after such experience should have committed such a rudimentary mistake in the recording of evidence. Be that as it may, taking the evidence of Shri J. S. Kushwaha (PW 4) .as it is, his evidence does not show whether any persons were found inside the house in question, when he got its door opened. He however deposed to the fact that dead body of deceased Keshav was found lying just in front of the door of the house of appellant No. 1 Randhirsingh. He also deposed that he arrested appellants Randhir Singh and Kallua on the same day from the village and got a Mogri and a lathi respectively recovered at the instance and on the information of these accused persons. 6. It is also true that neighbours having their houses in the locality in question and examined as prosecution witnesses turned hostile and had to be cross-examined by the prosecution. Those witnesses were Maniram (PW 2), Palturam (PW 3), Mohanlal (PW 4) and Anandilal (PW 5). 6. It is also true that neighbours having their houses in the locality in question and examined as prosecution witnesses turned hostile and had to be cross-examined by the prosecution. Those witnesses were Maniram (PW 2), Palturam (PW 3), Mohanlal (PW 4) and Anandilal (PW 5). It was understandable that they felt great reluctance to depose against the accused persons, who belonged to their own village. Considering such reluctance, their evidence to the extent it supported the case of the prosecution could be safely relied upon as truth wrenched out of their lips. 7. There were also some prosecution witnesses who were related to the deceased. In this category belonged the evidence of Nihalsihgh (PW 1), and Kamal Singh (PW 13) both sons of the deceased, Premabai (PW 6), daughter-in-law of the deceased and Patuwa (PW 12) Samdhi of the deceased. The fact that they were relatives should not however detract from the value to be attached to their evidence, because naturally enough, they could also be expected to be interested in seeing that the real culprits were punished. They could not be expected to adopt a course by which innocent persons got substituted for the persons really guilty of the crime. The fact that these witnesses were not merely related witnesses but perhaps also shared hostility towards the accused persons, may make it necessary however to scrutinise their evidence carefully before the same is accepted. 8. To begin with, there was the evidence of Palturam (PW 3), a hostile witness, on the initial part of the prosecution story. His evidence was that some 2 or 3 months prior to the death of the deceased, a theft had taken place in the house of appellant No. 1 Randhirsingh. Deceased Keshav, among others, was suspected to have committed that theft. The deceased was actually beaten by accused Randhir Singh and Harprasad on that occasion. A report against the accused persons was made by deceased Keshav. One of the suspects of that theft was Ramdayal (PW 11), who was also examined by the prosecution. The evidence of Ramdayal was also to the effect that Randhir Singh and others had beaten Keshav at that time and deceased Keshav on his part had made a report in the police station. Palturam (PW 3) further went on to state that a Panchayat was held which imposed a fine of Rs. The evidence of Ramdayal was also to the effect that Randhir Singh and others had beaten Keshav at that time and deceased Keshav on his part had made a report in the police station. Palturam (PW 3) further went on to state that a Panchayat was held which imposed a fine of Rs. 4,000/- on deceased Keshav on the charge of having committed that theft. Deceased Keshav paid no money towards that fine, with the result that he was compelled to leave the village. It was only a day prior to his murder that the deceased had come to visit the village in question. 9. There was also the evidence of Mohanlal (PW 4), another hostile witness, to the effect that on the day of occurrence, 11 accused persons arraigned in the present case had come armed with lathis to the house of Paltu and had forcibly carried away deceased Keshav, who was sitting in that house, towards the direction of the house of appellant Randhir Singh. This was also the evidence of Premabai (PW 6), daughter-in-law of the deceased. Her evidence does not contain any exaggeration. If she were minded to exaggerate the story, she could have easily stated that she had also gone to the house of appellant No. 1 Randhir Singh to see what was actually taking place there, but she candidly admitted that she had thereafter not gone to the house of appellant Randhir Singh. She was a new person in the village and being a young married woman had not thought it proper to stir out of the house of the deceased, her father-in-law. She had seen all the accused persons forcibly taking away her father-in-law, the deceased Keshav, from the neighbouring house of Paltu. Ramdayal (PW 11) gave a vivid description. He stated that three or four of the accused were catching hold of deceased Keshav when forcibly carrying him away from Paltu's house while the remaining accused persons were giving jabs by lathis to the deceased. 10. There was good evidence to show that when the Police arrived at the house of appellant No. 1 Randhir Singh, the dead-battered body of deceased Keshav was found just outside the door of that house. The house of appellant Randhir Singh is situated among a cluster of houses with a common gate, which is called Bakhal. 10. There was good evidence to show that when the Police arrived at the house of appellant No. 1 Randhir Singh, the dead-battered body of deceased Keshav was found just outside the door of that house. The house of appellant Randhir Singh is situated among a cluster of houses with a common gate, which is called Bakhal. Naturally the compound where the body was found lying, was a common compound of the said cluster of houses. The fact remains that the dead body was found just outside the door of the house of appellant No. 1 Randhir Singh. There was also the evidence of Shri J. S. Kushwaha (PW 14) that he had arrested the accused/appellants Randhir Singh and Kallu on the very day of the incident and further that a Mogri (a wooden log used for washing clothes) was recovered by him on the information and at the instance of appellant Randhir Singh and a lathi on the information and at the instance of appellant Kallu. These articles were found to be blood stained on the report of Chemical Examiner, Forensic Science Laboratory, Sagar (Ex. P/13), though the origin of the blood could not be determined vide the report of Serologist (Ex. P/37). 11. It is no doubt true that prosecution did not examine the deceased's son Gyansingh, who had allegedly seen the accused persons in a body forcibly carrying away the deceased from the house of Paltu. There was however on this point the evidence of Kamalsingh (PW 13), another son of the deceased. On this point, there was also the evidence, as already indicated, of Mohanlal (PW 4), Premabai (PW 6) and Ramdayal (PW 11). 12. It may be proper here to notice the kind of injuries sustained by the deceased. The evidence of Dr. Choudhary (PW 7), who performed post mortem examination on the deceased, would show that there were, as may as 9 ante mortem injuries found on the body of the deceased. Those injuries were : (i) Contusion 32 cm X 6 cm on the right leg with fracture of both tibia and fibula at the upper ends. (ii) Contusion 30 cm X 6.5 cm on the left leg. (iii) Swelling 15 cm X 5 cm on the right dorsal of foot. (iv) Swelling 12 cm X 4 cm on left dorsal of foot. (ii) Contusion 30 cm X 6.5 cm on the left leg. (iii) Swelling 15 cm X 5 cm on the right dorsal of foot. (iv) Swelling 12 cm X 4 cm on left dorsal of foot. (v) Contusion 3 cm X 4 cm on right elbow with fracture of ulna. (vi) Contusion 10 cm X 6 cm on left buttock. (vii) Contusion 8 cm X 6 cm on left buttock. (viii) Contusion 10 cm X 5 cm on right buttock. (ix) Lacerated wound 4 X 1 X 1 cm on parietal region at the middle. In the opinion of the doctor, the deceased had died due to shock on account of multiple injuries and fracture of bones. It is evident that the deceased was brutally beaten to death. Learned Sessions Judge considering the non-vital parts on which injuries were caused, thought that not murder but the offence of culpable homicide not amounting to murder under Part II of Section 304, Indian Penal Code was committed. The State has not come up in appeal to challenge the acquittal of the accused for the offence of murder. Recapitulation 13. It would be proper to sum up at this stage the various circumstances brought out in the prosecution evidence. Some 2 or 3 months prior to the death of deceased Keshav, appellant No. 1 Randhir Singh had beaten deceased Keshav on the ground that it was he who had committed theft at his (Randhir Singh's) house. A Panchayat was also convened in the village, which punished deceased Keshav to pay a fine of Rs. 4,000/- for the alleged theft. The deceased was unable to pay anything towards fine. His house in the village thereafter started to be stoned by the villagers. The deceased was forced to leave the village, that is village Daviya Govind. One day prior to the incident, i.e., on 3-6-1985, deceased Keshav with his Samdhi Patuwa (PW 12) had come back to visit the village in question. On the date of the occurrence i.e. on 4-6-1985, at about 7.30 a.m. when deceased Keshav was sitting in the neighbouring house of Palturam (PW 3), all the 11 accused persons came there in a body armed with lathis. They forcibly carried away deceased Keshav from that place towards the house of one of the appellants, i.e. towards the house of appellant No. 1 Randhir Singh. They forcibly carried away deceased Keshav from that place towards the house of one of the appellants, i.e. towards the house of appellant No. 1 Randhir Singh. The deceased's son Nihalsingh (PW 1) went outside that house. He found the doors of the house closed. He shouted for the door of the house being opened. It was of no avail. He heard the noise of beating coming from inside the closed room of appellant No. 1 Randhir Singh. He rushed to lodge a report (Ex. P/1) stating that his father was being beaten and may be saved. The Police reached the place of occurrence with him. The dead battered body of the deceased Keshav was found lying in the common compound just outside the door of the house of appellant No. 1 Randhir Singh. Appellant Randhir Singh and Kallu were arrested from the village on the same day who got a blood stained Mogri and lathi recovered in that order, at their instance. 14. On the above facts, it was clearly established that all the accused/appellants had committed rioting in forming an unlawful assembly and in forcibly and physically carrying away deceased Keshav from the house of Palturam towards the house of appellant No. 1 Randhir Singh. All the accused/appellants were rightly convicted of the offence under Section 147, Indian Penal Code. There may be an element of conjecture in holding that all the accused had gone inside the room of appellant No. 1 Randhir Singh and had actually participated in the beating or at least shared the common object of beating of the deceased. It is also doubtful if there were at least 5 of the accused persons inside the room to form an unlawful assembly. There is however no doubt that at least appellant Randhir Singh and Kallu had participated in beating of the deceased and wrongly confined him, while the beating was taking place. Not only the dead body was found lying just outside the door of the house of appellant Randhir Singh, but also blood stained Mogri and lathi respectively were recovered from them by the Police on the very day of the occurrence. Appellant No. 1 Randhir Singh had also a very strong motive to beat the deceased. These two appellants, viz., Randhir Singh and Kallu had committed also offences under Sections 342/34 and 304 (part 11)/ 34, Indian Penal Code. 15. Appellant No. 1 Randhir Singh had also a very strong motive to beat the deceased. These two appellants, viz., Randhir Singh and Kallu had committed also offences under Sections 342/34 and 304 (part 11)/ 34, Indian Penal Code. 15. It is true that the learned Sessions Judge failed to frame substantive charges under Sections 342 and 302, Indian Penal Code against the accused persons. The charges framed were for constructive liability for these offences with the help of Section 149, Indian Penal Code. The charges when framed with the help of Section 149, Indian Penal Code, amount to telling the accused that they are constructively being held liable for offence committed by another, who was a member of the unlawful assembly, in which they were also the members. It also amounts to telling them that they are not being accused of committing the offences with their own hands or of any participation in the commission of the said offences. In such a situation, if the' charge under Section 149, Indian Penal Code fails either by reason of the fact that unlawful assembly of five or more persons was not proved or some such reason, it is not open to the Court to convict the accused persons of the substantive offence or offences, except when no prejudice would be caused to them if that course is adopted. Reference may be made to the decisions in Nanak Chand v. State of Punjab in AIR 1955 SC 274 and Surajpal v. State of U. P. in AIR 1955 SC 419 . 16. In the present case, I find that although charges were framed against the accused persons under Sections 342 and 302, Indian Penal Code with the help of Section 149, Indian Penal Code, the language of the charges framed against each accused person stated that he too had committed the said offence, beside being vicariously liable for that offence by reason of having been committed by another, being a member of the unlawful assembly. They were in substance charges framed for both substantive as well as constructive liability. The accused persons could not therefore complain of any prejudice if they arc convicted of substantive offences vis-a-vis the offences under Sections 342 and 304 (part II), Indian Penal Code. 17. They were in substance charges framed for both substantive as well as constructive liability. The accused persons could not therefore complain of any prejudice if they arc convicted of substantive offences vis-a-vis the offences under Sections 342 and 304 (part II), Indian Penal Code. 17. It would however be harsh if the appellants after a lapse of about 8 years from the date of occurrence are sent back to jail to suffer short sentence of jail imposed on them for the offence of rioting under Section 147 Indian Penal Code. It would be proper to reduce that sentence to a sentence of substantial fine. The sentences visited for the other offences are commensurate with the gravity of the crime and need no interference. 18. For the foregoing reasons, this appeal is partly allowed. The conviction of the appellants for the offence under Section 147, Indian Penal Code is maintained. The sentence of 6 months' R.I. visited for the offence thereunder is reduced to a fine of Rs. 500/- each. In default of payment of fine, each appellant shall undergo R.I. for 6 months. The convictions of appellant No. 1 Randhir Singh and appellant No. 2 Kallu are further altered from Sections 342/149 and 304 (part II)/149, Indian Penal Code to Sections 342/34 and 304 (part II)/34, Indian Penal Code. The sentences of 6 months' R.I. and R.I. for 7 years for these offences on these .two appellants are maintained. The conviction of the remaining appellants for offences under Sections 342/149 and 304 (part II)/149, Indian Penal Code are set aside and they are acquitted of those offences. Appellants 1 and 2 Randhir Singh and Kallu shall surrender to custody to serve out their sentences. The substantive sentences of imprisonment awarded on them shall run concurretly. The fines imposed shall be deposited by the appellants within 2 months from today.