JUDGMENT : 1. 13 persons were tried by the Sessions Judge Dholpur for the offence under Sections 147, 148, 324/149, 323/149 and 302/149 of the Indian Penal Code. By the judgment dated 26th May, 1992 seven persons were acquitted while the remaining six namely Hari Narain, Kesra, Narain, Ramlal, Gopal and Ranglal have been convicted and sentenced as under U/s. 148 IPC : One year's rigorous imprisonment. U/s. 323/149 IPC : 6 months' R.I. U/s. 324/149 IPC : One year's rigorous imprisonment. U/s. 302/149 IPC : Life imprisonment and fine of Rs. 100/- from each; in default of payment of fine each has to undergo one month's R.I. 2. All the substantive sentences have been ordered to run concurrently. 3. All these six persons have preferred this appeal. 4. T he incident out of which the case arises occurred on 12th September, 1989 in village Vijaypura Police Station Lalsof. The first information report was lodged by Ranjit P.W.7 which is Ex.P.18. The report made by him states that in village Vijaypura, he has his Khatedari Siwai Chack land and on 11th September, 1989 he had ploughed the field then on 12th September, 1989 the accused persons came there armed with weapons like lathies, gandasa and Kulhadies and entered the field and upset the field, which was ploughed by him on the previous day. When the informant and his brothers asked them not to do so then the accused persons gave blows to Hari and Faili by gandasi and Kulhadi; They were taken to the hospital with several injuries. This report was made at the police station Lalsof on 12th September, 1989 at 12.45 p.m. and after registering the case usual investigation was started Faili who was admitted to the Hospital had the following injuries : 1. Lacerated wound of 2 cm. x 1 cm. X ⅙ cm., on Occipital region of skull-simple-blunt. 2. A swelling of 6 cm. o 6 cm. on right temporal region of skull-opinion after X-ray report-blunt. 5. On X-ray there was evidence of fractures of fronto parietal bones on right side. 6. Fail died on 21st September, 1989 and post-mortem on his body was conducted, the report of which is Ex.P.27. The injuries found at that time are as under 1. Lesion with pealed off scab of size 2 x 1.5 cms. on right parietal region. 2. On X-ray there was evidence of fractures of fronto parietal bones on right side. 6. Fail died on 21st September, 1989 and post-mortem on his body was conducted, the report of which is Ex.P.27. The injuries found at that time are as under 1. Lesion with pealed off scab of size 2 x 1.5 cms. on right parietal region. 2. Lesions two in number of size 1 X 1/2 cm. and 1/2 X 1/2 cms. on back of right elbow with brownish hand scab formation. 3. Lesions 4 in number of size 1.5 X 1 cm. on medial aspect of left thigh lower ⅓rd part, 1/2 X 1/2 cm. on left knee cap; 1/2 X 1/2 cms. medially on left leg upper ⅓ part and 1/4 X 1/2 cms. on medial aspect' of left knee joint all with hard scab formation. 4. Lesion 3x2 cms. over sacral region with slough formation. 5. Diffused swelling on right prior to occipital region. On dissection subscalp haematoma on right side half of scalp brownish red in colour further there multiple communated depressed fractures of right parietal bone extending upto right side occipital bone. Further there is thick layer of dark brownish black coloured extradural haematoma over right parietal frontal and temporal region, and left occipital and middle cranial fossa. The tractual line was also extending upto left posterior cranial fossal. Brain showing laceration of left temporal lobe with depression over right parietal region. 7. The cause of death was result of ante mortem injuries to the skull and brain and these injuries were sufficient to cause death. 8. The prosecution examined as many as 14 witnesses in support of its case and on the basis of the oral evidence and other materials placed on record, the learned Sessions Judge convicted and sentenced the accused appellants as stated above. 9. The case of the appellants is that Khasra No.95 of complainant's Khatedari is adjacent to, Khasra No. 102 of the appellants and there is no boundary wall in between the two. According to the accused, the incident occurred in their part of the field. In the same incident three persons received injuries on the side of the accused also for which a cross case was instituted. According to the accused, the incident occurred in their part of the field. In the same incident three persons received injuries on the side of the accused also for which a cross case was instituted. There was a dispute between the parties as to who was the owner of the land Which has led to the incident in which both the sides received injuries. It has also been pointed out that the injury report of Faili Ex.P.25 contains only two injuries and they were also not considered to be serious but subsequently after his death the number of injuries have increased and even fracture line has extended. Thus, according to the appellants, first of all the case has not been proved and in the alternative the offence under Section 302 IPC is not made out. 10. The evidence of the eye-witnesses produced in this case may be looked into. P.W.2 Ramnath has stated that in the morning at about 8/9 a.m. on the relevant day he and Ranjita were ploughing field and Faili and Heera were cutting grass in their field when the accused persons came in a tractor armed with lathies and gandasies and entered the Khatedari land of Faili. Ranglal and Hari Narayan gave lathi blows on the head of Faili, Ramlal gave a blow by reverse side on the temple of Faili. Heera Was beaten by Gopal on the hands and shoulders by Narayan on the back and by Kesra on the head by a Kulhadi. Faili died after seven days. He is the real brother of the deceased and injured and Ranjita is their fourth brother. He has admitted that near his field, there is a Siwai Chack land of the river, which was cultivated by both the sides and they had their separate fields. He denied the suggestion that he had gone to cultivate the land of the accused party and at that time the incident occurred. Similar is the statement of PW.3 Ramsahai, and P.W. 7 Ranjita. Besides this, P.W.4 is Heera Lal who himself was injured. He has also given out the roles of each accused. Ranglal and Hari Narayan gave lathi blows on the head of Faili. Ram Lal gave a blow by the reverse side of Kulhadi on the temple region. Gopal and Narayan gave blows to him by lathi and Kesra gave a blow on his head by Kulhadi. He has also given out the roles of each accused. Ranglal and Hari Narayan gave lathi blows on the head of Faili. Ram Lal gave a blow by the reverse side of Kulhadi on the temple region. Gopal and Narayan gave blows to him by lathi and Kesra gave a blow on his head by Kulhadi. He has admitted that there was no boundary wall between his field and the Siwai Chak land of the river on south. According to him there was no enmity with the accused but the relations were very good. 11. One of the witnesses P.W.6 Birbal has turned hostile. 12. The injury reports of the accused persons have been produced and they are Ex.D.3, D.5 and D.6 and thus, both sides have received injuries in the incident. The injury report of Heera has not been produced and it may be taken that his injuries were minor and superficial. The injuries of Faili have to be looked into to find out as to what were the injuries when he was admitted to the hospital and what were the injuries when he died. The injury report Ex.P.25 shows lacerated wound on the occipital region, swelling on the right temporal region of skull. Under this second injury there was fracture of fronto and parietal bones. The injury report was prepared at Dausa and the post mortem was conducted at SMS Hospital, Jaipur. It appears that the patient Faili was later admitted in the SMS Hospital, Jaipur where he died. The minor injuries on right elbow may be ignored as not attributed to the accused but the injuries on the head are the same which were found at the time the injuries were examined. It is only on the opening of the body that exact particulars can be known and it cannot be said that the injuries at the time of post mortem are more than the number of injuries which were assessed by the doctor soon after the incident. It is for the injury on the right parietal region and occipital region for which the accused are to be made liable. 13. First of all it will have to be seen as to whether all the accused can be made liable with the aid of Section 149 IPC. It is for the injury on the right parietal region and occipital region for which the accused are to be made liable. 13. First of all it will have to be seen as to whether all the accused can be made liable with the aid of Section 149 IPC. There is no discussion of liability under Section 149 IPC in the judgment of the learned Sessions Judge and he has only written that it is not clear as to who caused injuries to Faili therefore, the charge has been framed with the aid of Section 149 IPC. This cannot be a ground for invoking Section 149 IPC. The learned counsel for the appellants has placed reliance on Joginder Singh and Ors. v. State of Punjab in which it has been held that when five accused were acquitted on the ground that they were falsely implicated by eye-witnesses the remaining three could not be convicted on the evidence of the witnesses who were not believed in respect of five accused. 14. In Jamna and Ors. v. State of U.P. 1994 Supp. (1) SCC 185 , the common object of the unlawful assembly was to cause grievous hurt-some of the members caused death by inflicting ballam injuries and the appellant who caused a lathi blow was not held constructively liable for causing death of the deceased. In Durgalal v. State of Raj. 1991 RCC 363 , it was difficult to predicate with certainty as to which of the three injuries was caused by the appellant which proved to be fatal. There was no common intention to cause death. The appellant was held guilty under Section 323 IPC only. In Harish Kumar v. State (Delhi Admn. AIR 1993 SC 1973 , the deceased died two days after infliction of the injures and in the circumstances it was held that though, injury resulted in death of deceased, it could not conclusively be said that it was sufficient to cause death. The conviction was altered to Section 304 Part II. 15. Looking to the evidence in the present case it can be said, that there is no evidence worth the name on basis of which it can be said that the accused had the common intention of causing death of Faili or anyone else. The conviction was altered to Section 304 Part II. 15. Looking to the evidence in the present case it can be said, that there is no evidence worth the name on basis of which it can be said that the accused had the common intention of causing death of Faili or anyone else. The nature of the incidence as alleged by both the sides is a dispute as to who was entitled to cultivate the particular portion of land. This dispute arose because there was no boundary between the two fields. In such circumstances the accused persons attacked thinking that the complainant had entered their field for purposes of ploughing. In any case if there was mistake on the part of the either side there was no occasion of the accused party to start inflicting injuries which would result in death. The accused would be liable for their own act and cannot be made liable for the act of others with the aid of Section 149 IPC without evidence of formation of an unlawful assembly with the common object of causing death. With this background when we look into the evidence produced in this case, it can be said that only the injuries caused by Hari Narayan and Ranglal have been corroborated by medical evidence. The injury attributed to Hiralal does not stand corroborated. The injuries caused by Hari Narayan and Ranglal both were on the head of the deceased. There was fracture of the fronto-parietal bone On the right side. It cannot be said that these two accused, had the intention of causing death or causing such bodily injury as was sufficient in the ordinary course of nature to cause. death but knowledge can be attributed to them that the injury inflicted by them would cause death and as such, their offence would fall under section 304 part 13 IPC. 16. As the result of the above discussion we acquit the appellants Kesra, Narain, Ramlal and Gopal from all the charges. Conviction of Hari Narain and Rang Lal is altered from Section 302/149 IPC to 304 Part II IPC and they are sentenced to four years' rigorous imprisonment. The period during which they have remained in custody shall be calculated and they shall be released as soon as they complete their sentence. Conviction of Hari Narain and Rang Lal is altered from Section 302/149 IPC to 304 Part II IPC and they are sentenced to four years' rigorous imprisonment. The period during which they have remained in custody shall be calculated and they shall be released as soon as they complete their sentence. Accused appellants Kesra, Narain, Ram Lal and Gopal are on bail and need not surrender to their bail bonds.