JUDGMENT 1. - This appeal is directed against the order dated 7.5.91 passed by the Addl. Sessions Judge, Raisingh Nagar in Sessions case No. 17/87 convicting the accused-appellants for the offence under Sections 302, 307, 326,324, 323, 452,148,149 and 379 Indian Penal Code. 2. Facts giving rise to the appeal stated briefly are that on 30th August, 1986, the informant Nathu Singh was sleeping on the terrace on his farm house, his cousin brother-in-law and maternal uncle were also sleeping in the house. His tenant Purkha Ram and family of Purkha Ram were sleeping in the Court yard in front of the farm house. Between 3 and 3.30 a.m., the informant awake due to commotion. He saw Puran Singh, Dharam Singh, Bhagwan Singh, Kashmir Singh, Bhagwan Singh II, Hamir Singh, Mahendra Singh and Gurdat Singh assaulting the family of Purkha Ram. Gurudat Singh had a gun, Dharm Singh and Hamir Singh had `Kripan' (sword), other had `Gandasi'. On hearing this commotion, Jora Singh was asking Bhag Singh to get the gun. Then informant saw Harmir Singh giving a blow of sword to jagan Ram on the head, others were attacking Purkha Ram and his sons. Gurdat Singh who was standing with the gun said Natha Singh and Jora Singh etc. are in the house and should be caught. On that, Hamir Singh, Kashmir Singh, Dharam Singh, Puran Singh then attacked Jora Singh. Bhag Singh and Darshan Singh who were sleeping with Jora Singh jumped the wall and ran away. The informant continued to be on the terrace due to fear. Then taking the victims as dead, the assailants left the place carrying with them the gun of Bhag Singh, thereafter, the informant came down and given water to the injured and lodged F.I.R Investigation was taken up. The accused persons were arrested and on completion of investigations, they were charged for the offences as aforesaid. The prosecution has examined 13 witnesses in support of his case and murder. No defence evidence was led. The learned Addl. Sessions Judge on appreciation of the evidence came to the conclusion of guilt and sentenced the accused persons as aforesaid. The appeal is directed against this order. 3. The prosecution has examined 13 witnesses in support of his case and murder. No defence evidence was led. The learned Addl. Sessions Judge on appreciation of the evidence came to the conclusion of guilt and sentenced the accused persons as aforesaid. The appeal is directed against this order. 3. Shri M.L. Garg, learned counsel appearing on behalf of the accused-appellants submitted that this is not a case of murderess assault, even if, the entire prosecution evidence is accepted, offence under section.302 Indian Penal Code cannot be spelt out. He submitted that the evidence is of interested persons and does not inspire confidence. He submitted that enimity if any was with the family of the owners of the land and not with the tenant cultivator and consequently there is no motive to assault Purkha Ram and his family. According to the learned counsel, the entire prosecution is false implication and the accused-appellants deserve to be acquitted. 4. It was then submitted by the learned counsel that in any event conviction under Section 302 is unsustainable. Even if, it is assumed that the accused persons had a common object, it could not be murderess assault on any of the victims as his evidence from the fact that the accused-persons always had a gun which was never used. The police have covered from the spot wooden pieces of the butt, though the police have failed to establish the origin of the wooden pieces, this wooden part of the gun was used more as a `Lathi' then the gun which goes to show that none of the assailants had any intention of causing or attempting to cause injury sufficient to the ordinary course of nature to cause death. It was the submission of the learned counsel, therefore, that the conviction as recorded by the learned Sessions Judge is unsustainable in law. 5. It was then argued by the learned counsel that even if, the prosecution evidence in totally accepted, the injuries caused to each of the victims are simple in nature as deposed to by PW 2 Dr. Kailash Chandra Sharma and, therefore, the conviction and sentence cannot go beyond Section 324 read with 149 of the Indian Penal Code. 6. Replying this contention, it was argued by the learned Public Prosecutor that the incident has occurred in the night and no other witnesses than the victims could be present, their testimony is natural. Kailash Chandra Sharma and, therefore, the conviction and sentence cannot go beyond Section 324 read with 149 of the Indian Penal Code. 6. Replying this contention, it was argued by the learned Public Prosecutor that the incident has occurred in the night and no other witnesses than the victims could be present, their testimony is natural. They have no reason to falsely implicate the accused persons and, therefore, the Judgment of conviction is proper. We will have to consider the rival contentions on appreciation of the evidence on record. 7. PW 1, Dr. K.N. Markande is the radiologist who took the X-ray photograph of Bhanwarlal and Om Prakash. He has proved the report, his report read with the examination by Dr. Sharma PW 2 proves that the injuries caused to these persons were simple in nature. 8. PW 2 is Dr. K.C. Sharma who examined all the victims and has opined that injuries on all the victims were generally simple except that the injuries on Purkha Ram was grievous. He has deposed after conducting the post mortem of deceased Jagna Ram that death was caused due to the head injury. A careful scrutiny of this evidence of PW 2 discloses corroboration on material particulars on all the victims witnesses and thus, lends prudence to the oral testimony. The injuries as described by the Doctor do correspond to the statements made by the persons received the injuries. There is thus the total corroboration of the oral evidence on record. 9. PW 3 Natha Singh is an independent witness who saw the entire incident from the terrace after he was awakened by the cries of the victims. He is the person who has lodged the F.I.R., he is the person who owns the land in question. He saw the accused-persons assaulting the victims. He has deposed the manner in which the appeal has taken place, the manner in which assailants were armed. He has basically stated that Jora Singh was attacked by Dharm Singh, Kashmir Singh and Hamir Singh. He states that the others were assaulting the family of Purkha Ram. He then has said that taking injured to be dead, the assailants left carrying with them gun of Bhag Singh. This witness has been throughly cross-examined. 10. PW 4 Om Prakash is a 11 years old son of Purkha Ram and one of the injured in the assault. He states that the others were assaulting the family of Purkha Ram. He then has said that taking injured to be dead, the assailants left carrying with them gun of Bhag Singh. This witness has been throughly cross-examined. 10. PW 4 Om Prakash is a 11 years old son of Purkha Ram and one of the injured in the assault. He has also deposed that a person had a gun, two persons had swords and the rest had `Gandasi'. He submits that he was awakened by the assault on him and he knows the assailants by sight not by name. The witness obviously appears to be truthful. His testimony does not suffer from any material omission, contradictions or improvements. 11. PW 5 is the Police Constable who deposited 5 packets in Malkhana. PW 10 is Jaipal, Asst. Sub-Inspector who recovered a `Gandasi' at the instance of accused Mahendra. PW 11 Ram Gopal took 16 packets to FSL, Jaipur for analysis. PW 12 Sukhdeo Singh is the Investigating Officer. 12. PW 6 Purkha Ram, PW 7 Bhanwar Lal, PW 8 Jora Singh are eye- witnesses who have been injured in the assault. Purkha Ram states that he was awakened from sleep by blow on his body and cries of his children. He then names all the accused persons mentioned in the F.I.R. He states that Dharm Singh and Hamir Singh had swords, Gurdat Singh had gun and others had `Gandasi'. According to him, Dharm Singh hit the witness on the head and deceased was hit on the head by Hamir Singh. Then he heard Jora Singh calling Bhag Singh to bring the rifle. He thus, materially corroborates, PW 3 Natha Singh. This witness has stated that accused Bhagwan Singh had also assaulted deceased Jagna Ram. According to this witness, Jagna Ram was assaulted by Bhagwan Singh and Hamir Singh. 13. PW 7 is Bhanwar Lal son of Pukha Ram, he was injured in the assault. He states that his brother Jagna Ram (deceased) was hit by Hamir Singh. He says that he was injured by Puran Singh and another whose name he does not know. This witness also is very truthful. His deposition is not blamished by any improvement, contradiction or omission. The overall testimony inspires confidence and appears to be genuine. 14. PW 8 Jora Singh is the brother-in-law of PW 3 Natha Singh. He says that he was injured by Puran Singh and another whose name he does not know. This witness also is very truthful. His deposition is not blamished by any improvement, contradiction or omission. The overall testimony inspires confidence and appears to be genuine. 14. PW 8 Jora Singh is the brother-in-law of PW 3 Natha Singh. This witness was injured in the assault. He knows the assailants. He states that he was awakened from sleep by the commotion out side and he saw the assailants whom he has named assaulting Purkha Ram and family. He saw Purkha Ram, Jagna Ram, Bhanwar Lal and Om Prakash receiving blows, he, therefore, asked to bring the gun, hearing this, Gurdat Singh said that Natha Singh and Jora Singh are in the house and be caught. He then saw that Hamir Singh gave blow by sword on the head of Jagna Ram, then Dharm Singh, Puran Singh, Hamir Singh and Kashmir Singh started assaulting the witness, on receiving the injuries, the witness fell to the ground, the assailants thought him to be dead and left. This witness has also stated that he saw only Hamir Singh assaulting Jagna Ram. The entire appreciation of evidence on record will show that the accused persons did assault the victims causing them injuries of different kind. There is no reason why this witness should be discarded. At the same time, it is obvious that the accused did not have the intention of committing murder or of attempting to murder any of the victims. It is a proved fact that Gurdat Singh was armed with gun, from the movement of arrival assaulting on the scene of offence, the gun was not used. It is also in evidence that wooden pieces gun-butt were found meaning thereby that the gun was used if at all as `Lathi'. PW 2 Dr. Kailash Chandra has deposed in very clear term that injuries caused to all the victims were ordinary injuries none of it could result any death, none of it was so grievous as to require medical attendance for more than 20 days. At the same time, Purkha Ram and Jora Singh were seriously heart because of the multiple injuries caused to them. In these circumstances, no error can be found in the order of conviction. At the same time, Purkha Ram and Jora Singh were seriously heart because of the multiple injuries caused to them. In these circumstances, no error can be found in the order of conviction. However, it is obvious that all the accused persons cannot be held guilty under Section 302 read with Section 149 of the Indian Penal Code. There is no evidence on record to show that it was a common object of these persons to kill Jagna Ram. It has come in evidence that Jagna Ram was assaulted by Hamir Singh alone, no doubt. It has been stated by some witnesses that Bhagwan Singh has also assaulted him but which Bhagwan Singh of the two, committed the assault on deceased Jagna Ram has not been deposed to any one, therefore, a serious doubt arose as to which Bhagwan Singh of the two accused by the same name assaulted Jagna Ram. Benefit must go, therefore, to each of them. In our opinion, therefore, conviction of the accused under Section 302 read with 149 Indian Penal Code is unsustainable and same is, therefore, set aside. 15. The judgment and order of the trial convicting the accused Hamir Singh under section. 302 Indian Penal Code is just and proper in view of the injuries caused by Hamir Singh. It is obvious that he intended to cause such badly injury as was sufficient in the normal course to cause death. His conviction under section. 302 is, therefore, liable to be maintained and is hereby, maintained. 16. In the result, the appeal is partly allowed. The judgment of conviction of all the accused persons under section 302 read with Section 149 Indian Penal Code is set aside. Instead each of them is convicted as under; (1) Hamir Singh under Section 302 of the Indian Penal Code concurring that the Addl. Sessions Judge has sentenced him to imprisonment for life and maintained all others sentences inflicted on him by the trial Court. (2) Puran Singh conviction and sentence under Section 302 read with Section 149 is set aside. The conviction under Section 326 read with Section 149 Indian Penal Code is maintained. The conviction under Section 324 read with Section 149 Indian Penal Code is maintained. The fine imposed and the sentence in default of payment of fine are maintained. The conviction under Sections 148, 452 and 379 is maintained. The conviction under Section 326 read with Section 149 Indian Penal Code is maintained. The conviction under Section 324 read with Section 149 Indian Penal Code is maintained. The fine imposed and the sentence in default of payment of fine are maintained. The conviction under Sections 148, 452 and 379 is maintained. (3) Bhagwan Singh s/o Kaka Singh; the conviction and sentence of accused under Section 302 read with Section 149 is set aside rest of the conviction under section 326 read with Sections 149, 324/149,323/149, 148 and 452 is maintained. The sentence of each of these convictions are also maintained. (4) Mahendra Singh; the conviction and sentence under Section 302 read with Section 149 is set aside, rests are maintained. (5) Bhagwan Singh s/o Baryam Singh; the conviction and sentence under Sec- 302 read with Section 149 is set aside, rest maintained. (6) Kashmir Singh; the conviction and sentence under Section 302 read with Section 149 is set aside, rest maintained. All the sentences shall run concurrently. The accused were in Jail from 16th October, 1986 and have undergone by now more than 8 years of imprisonment. They have thus already served the sentence awarded to them. They are liable to be released forthwith except of course accused Hamir Singh who shall suffer imprisonment for life as aforesaid.Appeal partly allowed. *******