Judgment GYAN SUDHA MISRA, J. ( 1 ) THIS appeal has been preferred against the judgment and order dated 26-3-1993 passed by the Addi. Sessions Judge, Karauli in Sessions Case No. 13/1992, whereby he was pleased to convict the appellant for the offence under Section 302, I. P. C. for committing the murder or one Butram and sentenced him to undergo life imprisonment alongwith a fine of Rs. 1,000/- and in default of payment of fine to further undergo six months rigorous imprisonment. The appellant herein was also convicted for an offence under Sections 307 and 325, I. P. C. holding him guilty of the charge of attempt to commit murder by inflicting grievous injuries on Bharat Lal Meena, son of deceased Gutram and, therefore, sentenced him to 10 years rigorous imprisonment alongwith a fine of Rs. 500/ - in default of which to further undergo six months rigorous imprisonment under Section 307, I. P. C. He has also been sentenced to three years, rigorous imprisonment under Section 325. I. P. C. alongwith a fine of Rs. 300/-, in default of which to further undergo one months rigorous imprisonment. The appellant has also been sentenced to one years rigorous imprisonment under Section 148, I. P. C. All the sentences have been ordered to run concurrently. ( 2 ) THE facts of the case, in which the appellant stood convicted relates to an incident which took place on 13-11-1991 in the morning at 9. 30 a. m. , regarding which PW 3 Head Constable Kishan Mohan Sharma recorded a Parchabayan of Bharat Lal Meena, son of Gutram who was injured in the incident. It was stated, by him in the. Parchabayan that he alongwith his father Gutram Harphool on 12-11-1991 at 2 p. m. was ploughing his field, during which the accused Prakash, his wife, Smt. Prem and his mother Mangani were also working in the adjoining field and Mangani - mother of Prakash, put the fansrast (dry stems of crop) into the field of the informant Bharati, to which he objected and told them to keep it on the boundry-wall. The wife and the mother of Prakash, Smt. Prem and Mangani threatened him that they will see him after some time. Thereafter accused Prakash, Jagmohan, Mangani, Prem and Kamleshi who were armed with lathis and gandasis arrived there. The wife and the mother of Prakash, Smt. Prem and Mangani threatened him that they will see him after some time. Thereafter accused Prakash, Jagmohan, Mangani, Prem and Kamleshi who were armed with lathis and gandasis arrived there. Prakash was armed with gandasi, Jagmohan was armed with an axe (kulhari), Mangani, Prem and Kamleshi were armed with lathis and all of them entered into the field of the informant. On seeing them, Gutram told the informant that all the accused persons have come to kill them and, therefore, they should run away to save their lives, after which they started running. While the informant and his father were running to save their lives and reached into the field of Mithu Singh, the accused persons surrounded them and Prakash inflicted gandasi blow on his head as a result of which he fell down and further inflicted three gandasi blows on his head. Jagmohan inflicted a Kulhari blow on his left leg, Mangani, Prem and Kamleshi also started- beating them with lathis. It is further stated that when he fell down, then all the five accused pounced upon his father and assaulted him, but he could not see who inflicted which blow or which part on the body of his father. It is further stated in the parchabayan that the occurrence had been seen by Hira Lal and Ram Lal. Thereafter, the nephew and his father were brought to the hospital by the villagers where his father is still unconscious. It was further stated that there were litigations pending in between the accused and the informant. ( 3 ) THE police registered the First Information Report on the basis of the parchabayan under Sections 147, 447, 323, 324 and 307, I. P. C. Subsequently, Gutram died and, therefore, the case was converted into Section 302, I. P. C. The police after investigation submitted charge-sheet accused against Jagmohan, Mst. Mangani and Smt. Prem in the Court of the Chief Judicial Magistrate, Karauli and, against Kamleshi charge sheet was submitted by the Juvenile Court, Bharatpur. Mangani and Smt. Prem in the Court of the Chief Judicial Magistrate, Karauli and, against Kamleshi charge sheet was submitted by the Juvenile Court, Bharatpur. The charges were thereafter framed against the appellant alongwith others for the offence under Sections 302, 302/149, 307, 307/149, 148, 325, 325/149, 324, 324/149 and 323/149, I. P. C. ( 4 ) THE prosecution in order to substantiate its case examined 16 witnesses out of, which P. W. 1 Hira Lal is the witness who was ploughing the field adjacent to the field of the deceased Gutram and injured Bharati. He deposed that first of all Mst. Mangani with Gutram and Bharati and Jagmohan had altercation. Thereafter this got subsided and Mangani inflicted one or two lathi blows on Bharati, after which Jagmohan fled to his house and called his elder brother Prakash who both were armed with lath is. This witness further deposed that after assaulting them, they fled away after which he reached at the place of occurrence and noticed Gutram who was unconscious and Bharati who was semi-conscious. He stated that the police prepared the site-plan in front of him, on which he signed from A to B. In the cross-examination, he has further stated that the assault took place in the field of Mst. Misariya and Bharati and he fell on account of assault. He accepted that he could not identify the lathi, which was used by Prakash and Jagmohan for assaulting. ( 5 ) P. W. 2 Ram Lal is also another witness who deposed almost similarly and stated that Prakash was armed with lohari, which is similar to gandasi. Jagmohan, Mangani, Prem and Kailashi were armed with lathis. This witness also claimed to have seen deceased Gutram falling down after assault and Bharati also was assaulted after which he fell down. He stated that he had gone to them and offered water to drink and further deposed that when the accused persons left, the victims were not in a state to speak anything. PW 3 Amar Singh also deposed similarly, but both these witnesses stated that they did not know why the quarrel took place. PW 4 Ratan Lal also deposed similarly. PW 5 is the informant Bharati Lal who was also injured and is the son of the deceased Gutram. In his deposition, he substantially repeated his version in the First Information Report, but elaborated the whole incident. PW 4 Ratan Lal also deposed similarly. PW 5 is the informant Bharati Lal who was also injured and is the son of the deceased Gutram. In his deposition, he substantially repeated his version in the First Information Report, but elaborated the whole incident. Deposing on this, it had been stated by him that while they were fleeing and reached in the field of Misariya, all the accused persons surrounded them and the accused Prakash inflicted gandasi blow on his head and Jagmohan inflicted one blow on his leg which hit his calf due to which he fell down. In his deposition he stated that accused Prakash hit his father with gandasi on his head and he regained a little bit of consciousness then Jagmohan hit with a Kulhari on the leg and when his father fell down, then all the ladies started assaulting his father Gutram with lath is. He has then given a detailed account of the whole incident. PW 6 Shrawan and PW 8 to PW 10 are the police officers who had associated with the investigation. PW 11, Dr. Nand Lal Sharma is the Medical Officer who prepared the injury report of Bharat Lal Meena and deceased Gutram. He had also conducted the post mortem on the deceased and gave his opinion that the injuries on the head of the deceased were sufficient in the ordinary course of nature to cause death. PW 12 Krishna Mohan Sharma collected the blood-stained earth vide Ex. P2 and stated that there was also a counter case registered in regard to this incident. PW-13 Mohd. Khan had seized the clothes of the deceased Gutram. PW 14 Kanhaiyalal is the Constable who seized Kulhari from the possession of Jagmohan vide Ex. P7 and also seized gandasi from the possession of accused Prakash vide Ex. P 8 and also prepared the site-plan of the seizure vide Ex. P-9, PW 15 Chiranji Lal is the witness in whose presence the police prepared the inquest report and PW 16 Chandra Bhan is the SHO who prepared Ex. P 11 to Ex. P 18. P7 and also seized gandasi from the possession of accused Prakash vide Ex. P 8 and also prepared the site-plan of the seizure vide Ex. P-9, PW 15 Chiranji Lal is the witness in whose presence the police prepared the inquest report and PW 16 Chandra Bhan is the SHO who prepared Ex. P 11 to Ex. P 18. ( 6 ) THE learned Additional Sessions Judge, Karauli, who conducted the trial, on consideration of the evidence on record and the circumstances was pleased to record a finding that the accused persons did not constitute unlawful assembly whose common object was to kill the deceased Gutram and according to the learned Additional Sessions Judge no evidence on record to this effect was available. He has further observed that if the accused persons had the object of killing Gutram, then all of them would have inflicted kulhari and gandasi from the sharp edged side and would have repeated he blows. But the belows were inflicted from the blunt side of the weapon, which caused fractures and the injuries from the side of the sharp edged weapon were inflicted only on the hands and legs. On these findings, he acquitted all the accused persons of the charges under Section 302/149, IPC, but at the same time, the learned Sessions Judge was of the opinion that the death of the deceased Gutram took place on account of blows inflicted by the accused Prakash, which were grievous in nature and the deceased Gutram sustained blows on fronto-parietal and temporal bone and there was blood clot inside the head and the brain matter was also damaged, which was proved as per the deposition of PW 5 Bharat Lal Meena and PW 11 Dr. Nand Lal Sharma. Hence, the learned Sessions Judge held the accused Prakash individually guilty of the charge under Section 302. IPC simpliciter and further held him guilty of the charge under Section 307. IPC for attempting to commit murder of Bharat Lal Meena as he also sustained grievous injuries, but survived. He was, therefore, pleased to hold accused Prakash guilty of the charge under Sections 302, 307 and 325 with the aid of Section 148. IPC and sentenced him as described hereinabove. The learned Sessions Judge. However, was pleased to acquit all the accused persons of the charge under Section 302/149. IPC and instead convicted Jagmohan under Section 324. He was, therefore, pleased to hold accused Prakash guilty of the charge under Sections 302, 307 and 325 with the aid of Section 148. IPC and sentenced him as described hereinabove. The learned Sessions Judge. However, was pleased to acquit all the accused persons of the charge under Section 302/149. IPC and instead convicted Jagmohan under Section 324. IPC and two ladies Mangani and Prem were convicted under Section 323, IPC. They were also convicted under Section 148, IPC. Jagmohan. Mangani and Prem were released under the Probation of Offenders Act. 1958 and, in view of Section 4 of the Act were ordered to execute a bond in a sum of Rs. 1,000/ - for a period of two years for keeping peace and be of good behaviour. ( 7 ) CHALLENGING the judgment and order of the learned Sessions Judge, it has been submitted by the learned counsel Mr. N. A. Naqvi that according to the parchabayan the informant was unable to identify the persons who had caused injuries on the body of his deceased father. But he made improvements in his deposition before the Court as he has assigned specific role to each and every accused with regard to the beating of the deceased and hence, no reliance should be placed on his statement, especially when other witnesses have not corroborated the version of the complainant. Conviction, therefore, is solely based on the deposition of PW 5, which is wholly untrustworthy and the conviction and sentence should not be upheld on his sole testimony. ( 8 ) IT has been further urged that the prosecution has failed to establish as to who has caused the fatal injuries and hence, role for causing the injury to the deceased cannot be assigned to Prakash and his conviction under Section 302. IPC simpliciter is not legally sustainable and hence, is fit to be quashed and set aside. ( 9 ) THE next argument in support of the defence, that the accused Smt. Mangani also sustained injuries vide injury report Ex. P4, which was produced before the trial Court, which injuries sustained by Smt. Mangani have not been explained by the prosecution and the prosecution witnesses have failed to explain as to how the injuries were received by Smt. Mangani. P4, which was produced before the trial Court, which injuries sustained by Smt. Mangani have not been explained by the prosecution and the prosecution witnesses have failed to explain as to how the injuries were received by Smt. Mangani. Hence, no reliance can be placed on the statement of such witnesses who have not spoken the entire truth otherwise they were bound to explain the injuries on the person of Smt. Mangani. The conviction is based solely on the statement of PW15, which was recorded after one day of the alleged incident who had specifically stated that he had become unconscious and was unable to identify the accused who had caused injuries to the deceased. But he subsequently improved his version before the trial Court, which is not legally sustainable and such improvements should not be treated as trustworthy enough so as to record an order of conviction of the accused. The incident is also alleged to have taken place all of a sudden without any pre-meditation on a trivial matter. Moreover, the trial Court itself has recorded a finding that the accused persons did not share any common object and, hence, the prosecution case does not travel beyond the scope of Section 304 II, IPC. ( 10 ) IT has finally been submitted that the appellant was alleged to be armed with gandasi and is also alleged to have inflicted gandasi blow on the head of the deceased, whereas according to the post-mortem report, there was a blunt injury on the head of the deceased. Hence, his submission is that the statement of PW 5 is not corroborated by the post-mortem report, which shows blunt injury on the head of the deceased. The appellant, it is submitted therefore, cannot be held responsible for causing fatal injury. ( 11 ) IN support of his submission learned Counsel has also relied upon Nageshwar Prasad v. State of Andhra Pradesh, wherein 15 persons were specifically charged of forming an unlawful assembly and committing murder in prosecution of common object of the assembly, but 11 of them were acquitted. Under the circumstances, a bench of three Judges were pleased to hold that the remaining four cannot be convicted under Section 302/149, I. P. C. on the ground of being member of unlawful assembly along with some other unidentified persons. Under the circumstances, a bench of three Judges were pleased to hold that the remaining four cannot be convicted under Section 302/149, I. P. C. on the ground of being member of unlawful assembly along with some other unidentified persons. It was also held therein that when 11 other accused were acquitted, it means that their involvement in an offence had not been proved. Hence, it was held that it was not permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of the common object. Reliance has also been placed on Amar Singh v. State of Punjab, wherein the conviction under Sections 148 and 149, I. P. C. was not sustained, where three out of seven accused were acquitted, two by the trial Court and one by the High Court against whom no appeal had been preferred in the Supreme Court by the State and when the prosecution had not alleged involvement of any other accused known or unknown. The testimony of the prosecution witnesses also were totally inconsistent with the medical evidence as no injuries conforming to the alleged weapon used was found on the body and inconsistency had not even been explained by the prosecution. In this situation, the entire prosecution was discredited by the learned Judge and it was held that testimony of such witnesses having been uncorroborated, the accused was entitled to the benefit of doubt. ( 12 ) THE next case relied upon is the case of Nain Singh v. State of Rajasthan, which was considered in 1991 (2) S. C. C. 5374, referred to above. The accused in this case had been convicted under Section 302/34, I. P. C. and there was no indication either in the F. I. R. or in the evidence of any other person unnamed or unidentified other than the five to have participated in the crime. The accused in this case had been convicted under Section 302/34, I. P. C. and there was no indication either in the F. I. R. or in the evidence of any other person unnamed or unidentified other than the five to have participated in the crime. The appellant had challenged the conviction based on Section 34, I. P. C. Under the circumstances, it had been held that even if in a given case, the charge disclosed only the named person as coaccused and the prosecution witnesses confined their testimony to them, even then it would be permissible to come to the conclusion that others named or unnamed besides those mentioned in the charge, or the evidence of the prosecution witnesses acted conjointly with one of the charged accused if there was evidence to lead to that conclusion, but not otherwise. Learned Counsel further relied on A. I. R. 1976 S. C. 1322, and 1974 (3) S. C. C. 656. In Sukhram v. State of U. P. , conviction had been recorded with the aid of Section 34, I. P. C. wherein the evidence was certain that the appellant was one of the three appellants. On the facts therein, it was found that no prejudice was caused to the accused in the trial Court by reason of such a charge and, hence it was held that his conviction under Section 307 read with Section 34, I. P. C. is maintainable. On the facts therein, it was found that no prejudice was caused to the accused in the trial Court by reason of such a charge and, hence it was held that his conviction under Section 307 read with Section 34, I. P. C. is maintainable. ( 13 ) THE aforesaid decisions, however, are of no assistance to the appellant for it is apparent that in all the cases referred to hereinabove, only one of the accused was held guilty of the charge under Section 302 read with Section 149, I. P. C. , as a result of which the Court had interfered with the conviction and sentence of a single accused since in that event the charge of constituting unlawful assembly could not be sustained and a single accused could not be convicted under Section 302/ 149, I. P. C. In the case at hand, all the accused persons, including the appellant herein have been acquitted of the charge under Section 302/149, I. P. C. as the learned Sessions Judge was pleased to record a finding that from the genesis and manner of the occurrence as also the evidence of the prosecution witnesses, the common object was not to kill Gutram and the object was merely to use force and on the basis of this finding, he held all the accused persons guilty under Section 148, I. P. C. and also held the accused persons liable for conviction for their individual acts and consequently, while the accused Prakash was convicted under Sections 302, 307 and 325/148, I. P. C. , the other accused persons were convicted under Sections 323 and 324 with the aid of Section 148, I. P. C. ( 14 ) IT is well established that even if the constitution of the unlawful assembly is not held to be proved, the accused individually can be convicted for the injuries caused by him as was held in the case of Maria Dasan v. State of Tamil Nadu, as also in Pooran v. State of Rajasthan, wherein the ratio of the decision is that in a case of sudden mutual Right between the two parties, there call be no question of invoking the aid of Section 149, I. P. C. for the purpose of imposing constructive criminal liability of an accused, but the accused in such case can be convicted only for the injuries caused by him for his individual acts. ( 15 ) WE, therefore, now proceed to examine whether the accused-appellant has rightly been convicted under Sections 302 and 307, I. P. C. apart from Section 325/148, I. P. C. In this context, we examined the injury reports of the deceased as also his injured son Bharat Lal Meena and the post-mortem report. In so far as the injuries sustained by the deceased Gutram are concerned, we have noticed that he had sustained as many as 6 injuries, which are as under1. Contusion 7 cm. x 4 cm. on left fronto parietal and temporal part of skull with mark swelling and deformity of left side of skull and face, with clotted dark red blood from nose and mouth with fracture of underlined bones of skull. 2. Oblique incised wound 3 cm. x 1/2 cm. x skin deep on left side of face with clotted dark red blood. 3. Contustion 10 cm. x 4 cm. over right forearm lower 1/3rd with swelling and deformity up to and over the right wrist joint. 4. Oblique incised wound 10 cm. x 4. cm. into skin muscle and up to bone deep on right leg upper 213rd part, with clotted dark red blood with deformity and abnormal movements with fracture of underlined bones tibia and fibula. 5. Oblique incised wound 7 cm. x 2 cm. into skin muscle and upto bone deep with clotted dark red blood on left forearm upper 1/3rd part with deformity with fracture of underline bone ulna. 6. Contusion 7 cm. x 2 cm. on back of chest. All injuries are ante-mortem in nature and injury Nos. 1 and 3 and 6 are caused by blunt object, and injury Nos. 2, 4 and 5 are caused by sharp weapon. This report further discloses that injury Nos. 1, 3 and 6 were caused by blunt object and injury Nos. 3, 4 and 5 were caused by sharp weapon and in his deposition, P. W. 11 Dr. Nand Lal has stated that the injury Nos. 2, 4 and 5 were grievous and serious in nature. He had further deposed that the injuries were sufficient in the ordinary course of nature to cause death. ( 16 ) BESIDES the deceased, the injured Bharat Lal Meena also sustained injuries on his left elbow, nose and on his head which caused fracture and were serious in nature, out of which injury Nos. He had further deposed that the injuries were sufficient in the ordinary course of nature to cause death. ( 16 ) BESIDES the deceased, the injured Bharat Lal Meena also sustained injuries on his left elbow, nose and on his head which caused fracture and were serious in nature, out of which injury Nos. 6, 8, 9 and 10 were sustained by sharp edged weapon. Thus, from a perusal of the injury report of Bharat Lal Meena and the post-mortem report of deceased Gutram, it is clearly disclosed that the deceased had died due to serious injuries sustained on account of the fracture of bone as also the injuries sustained by sharp edged weapon and his son Bharat Lal Meena also sustained multiple injuries by sharp edged and blunt weapon. ( 17 ) HOWEVER, coming to the genesis and manner of occurrence as also from the finding recorded by the learned Sessions Judge, it is clear that the common object was not to kill the deceased or his son and this finding has not been challenged by the State preferring any appeal. Hence, if the common object was not to kill the deceased Gutram or his son which held all the accused persons entitled to acquittal of the charge under Section 302/149, I. P. C. then it is difficult for this Court to uphold the conviction of the appellant only under Sections 302 and 307, I. P. C. for in the same transaction, if the common object to kill was missing, then it would be contradictory to hold that the intention to kill Gutram and his son was present in only one member of the assembly merely because some of the injuries out of several injuries sustained by the deceased was sufficient in the ordinary course of nature to cause death, although the deceased and the injured both had received serious injuries like fracture of bones on vital part caused by blunt weapon. ( 18 ) IF the common object, therefore, to kill the deceased or his son Bharat Lal Meena was missing, which finding has been recorded by the trial Court and is not under challenge, we are unable to uphold the conviction of the appellant under Sections 302 and 307, I. P. C. as the deceased and his injured son had received multiple serious injuries and all those injuries cannot be attributed to the weapon gandasi with which the accused was armed. Further according to the evidence, the incident, first of all, erupted on account of petty quarrel which was later on followed by the actual incident of assault on the deceased and his son and out of two, one ultimately died. As already stated, if the appellant could not be held guilty under Section 302 read with Section 149, I. P. C. and from the medical evidence, the deceased did not die due to a single blow which can be said to be inflicted with the intention to kill Gutram as the appellant has been acquitted of the charge of sharing common object and since common object and common intention clearly overlapping each other, the conviction under Section 302, I. P. C. is difficult to maintain. ( 19 ) THE injured Bharat Lal Meena also sustained injuries by blunt and sharp edged weapon, out of which all the injuries cannot be attributed to the appellant Prakash. Moreover, the common object to kill the deceased and his son has been held to be missing. Hence, the appellant in our opinion, can be held guilty only under Section 304-11, I. P. C. for the injuries inflicted by him in his individual capacity for, although, he may not be presumed to be sharing the common object to kill the deceased, he was definitely having sufficient knowledge that the injuries were likely to cause death. Out of the multiple injuries sustained by the deceased the injuries which resulted in his death had been clearly inflicted by sharp edged weapon and the evidence of the prosecution witnesses also clearly prove that the appellant was armed with sharp edged weapon - gandasi. Out of the multiple injuries sustained by the deceased the injuries which resulted in his death had been clearly inflicted by sharp edged weapon and the evidence of the prosecution witnesses also clearly prove that the appellant was armed with sharp edged weapon - gandasi. The conviction of the appellant, in our opinion, therefore, can surely be maintained under Section 304-11, I. P. C. as the appellant, although, may not be sharing the common object to kill Gutram and his son, under the facts and circumstances of the instant case, he can definitely be presumed to be having sufficient knowledge that a blow by Tgandasi was likely to cause death of the deceased. The injured Bharat Lal Meena, however, has sustained only simple injuries by a sharp edged weapon and the grievous injuries sustained by him was with a blunt weapon. ( 20 ) WE, therefore, set aside the conviction and sentence of the appellant under Sections 302 and 307, I. P. C, and alter his conviction into one under Section 304-11, I. P. C. The sentence of life imprisonment is accordingly set aside and the same is substituted with a sentence of seven years rigorous imprisonment looking to the nature of the weapon and gravity of the injuries sustained by the deceased. ( 21 ) WITH this modification in conviction and sentence the appeal is partly allowed. The appellant shall surrender to serve out the sentence, if he is on bail. Appeal allowed partly.