RAJEEV GUPTA, J. ( 1 ) THE appellants have preferred this appeal against their conviction under sections 148 and 302/ 149 of the Indian Penal Code, and sentences of 2 years rigorous imprisonment and imprisonment for life each respectively, recorded by Additional Sessions judge, Shahdol vide judgment dated 5-9-1988, in Sessions Trial No. 89/1987. During the pendency of the appeal, appellant No. 4 Dayal Singh had died and, therefore, the appeal so far as it relates to him stand abated, vide order dated 9-1-1995. ( 2 ) FEW essential facts, necessary for the disposal of this appeal, are that Dayalugiri (since deceased) was maintaining the members of his family by begging, and used to camp in the tents. 4-5 days prior to the fateful day of 4-6-1987, Dayalugiri had come to village Nigora from village Jareli, and had camped in a tent, near a Tmahua tree. His daughter Draupadi Bai and her husband Munnagiri also used to reside with him. Both of them had left his house when he was camping in village Jareli. In this background, in the noon of 4-6-1987, his wife Ramwati had asked him to go in search of her daughter Draupadi Bai. Dayalugiri, on account of paucity of funds, refused point blank. On the repeated insistence of his wife Ramwati, he got annoyed and slapped her. Ramwati, reacting to his above conduct, raised hue and cry. The accused persons, whose houses were in the nearby locality, came to his camp, and abusingly asked him to remove his camp from there. Dayalugiri asked the accused persons not to interfere in the matter, as it was his internal matter with his wife. Thereupon the accused persons pulled out lathist add dandas, kept inside the camp, and started as saulting him. He tried to saved himself, but he was chased by the accused persons and was assaulted from place to place till he fell down near Khodriha Talab. The accused persons then fled away. His son Srimangiri, who had tried to intervene was also assaulted by the accused persons. Srimangiri lodged the First Information Report at P. S. Jaithari, giving rise to the registration of a case under section 147/148 and 307, of the Indian Penal Code, Dayalugiri succumbed to his injuries and thereafter the case was converted to one under section 302, of the Indian Penal Code. Srimangiri lodged the First Information Report at P. S. Jaithari, giving rise to the registration of a case under section 147/148 and 307, of the Indian Penal Code, Dayalugiri succumbed to his injuries and thereafter the case was converted to one under section 302, of the Indian Penal Code. This court does not deem it necessary to reproduce the details of the step-by- step investigation of the case, which are contained in paras 4, 5 and 6, of the trial courts judgment. Suffice it to say that during the course of investigation, the accused persons were arrested and the dead body of deceased Dayalugiri was sent for post-mortem examination, and the autopsy surgeon had found 9 external injuries on his body, and he was found to have died a homicidal death. After completing the investigation, Police Jaithari filed charge-sheet against the acctised persons for the commission of the offence under sections 147/148 and 302/149, of the Indian Penal Code (for short the IPC ). ( 3 ) THE accused persons abjured their quilt and pleaded false implication to the charges, framed by the trial Court, under sections 148 and 302/ 149, of the IPC, against them. ( 4 ) AT the trial, prosecution examined as many as 18 witnesses. The accused persons did not examine any witness in their defence. Of the above 18 witnesses, Srimangiri (PW 2), Domari (PW 3), Paras ram (PW 6), Banslal (PW 7), Babugiri (PW 8), Tehria Bai (PW 9) Bahura Bai (PW 10), Ramwati (PW 12), Hirmat (PW 13) and Lallan Singh (PW 14) were examined as eye-witnesses of the incident of assault on deceased Dayalugiri. On a close scrutiny of the evidence 1e9 by the prosecution, the trial court found it proved that deceased Dayalugiri had sustained 9 (external injuries and had died a homicidal death, on 4-6-1987. On the, evidence of the above named eyewitnesses, the trial court further found it proved that the accused persons had formed an unlawful assembly with the common object of the commission of murder, and in furtherance of the above common object, murder of deceased Dayalugiri was committed by all, or some of the members of the unlawful assembly. On the above finding, the trial court had convicted and sentenced the accused persons as mentioned above. On the above finding, the trial court had convicted and sentenced the accused persons as mentioned above. ( 5 ) SHRI Laxmi Narayan Shale the learned counsel for the appellants, contended that the finding, recorded by the trial court, that the accused persons had formed an unlawful assembly with the common object of commission of murder of deceased Dayalugiri is exfacie illegal, as admittedly the incident of murder had taken place all of a sudden and there was no background of enmity between the accused persons and deceased Dayalugiri. The learned counsel further submitted that from the prosecution evidence itself, it is evident that appellants 1, 2 and 3, namely Budwa alias Anand, Samharu and Dalam Singh, did not participate in the assault on deceased Dayalugiri, and the allegations of actual assault are only against appellant Sheo Nandan Singh and appellant Dayal Singh (since deceased ). The learned counsel, therefore, submitted that appellants Budawa Anand, Samharu and Dulan Singh deserve to be acquitted of the charges under Section 148 and 302/149, of the IPC, and the individual act of appellant Sheo Nandan Singh can at the most make him liable for an offence under section 304 (1), of the IPC. Shri B. P. Athya, the learned Government Advocate, supported the impugned judgment of conviction. ( 6 ) THE fact that deceased Dayalugiri had sustained 9 external injuries and had died a homicidal death was neither in dispute at the trial, nor is under challenge in this appeal, and even otherwise, in view of the overwhelming evidence, the above facts stand fully proved and. therefore, we uphold the finding, recorded by the trial court in that behalf. ( 7 ) FROM the narration of the facts, in the First Information Report, and the statements of the eyewitnesses, it is evident that the accused persons were attracted and had come to the camp of deceased Dayalugiri, on account of the hue and cry raised by his wife, Ramwati. There is no material to indicate that the accused persons had any animust against deceased Dayalugiri. From the evidence, it can also be safely gathered that the accused persons, while coming to the camp of deceased Dayalugiri, were unarmed. There is no material to indicate that the accused persons had any animust against deceased Dayalugiri. From the evidence, it can also be safely gathered that the accused persons, while coming to the camp of deceased Dayalugiri, were unarmed. To us, it appears that the accused persons, who were residing in the nearby locality, on account of being disturbed by the nuisance, resulting from the quarrel between the deceased and his wife, had come to request them not to create any further nuisance. It is obvious that the above request of the accused persons was not taken by the deceased in that spirit, and he went to the extent of challenging their authority of interfering in his personal matter. It is in this background that a petty matter flared up, and took the toll of one human life. On the above broad facts of the case, it is difficult to hold that the accused persons had formed an unlawful assembly, much less one with the common object of commission of murder of deceased Dayalugiri. Therefore, in our opinion, none of the appellants can legally be made liable either under Section 148, of the IPC, or with the aid of section 149, of the IPC. Nevertheless, those accused persons cannot escape their liability, whose individual acts of, causing injuries to deceased Dayalugiri stand proved from the evidence of the eye-witnesses. ( 8 ) NOW, we shall examine the evidence of the eye-witnesses in regard to the individual acts of the appellants. In the First Information Report (Ex. p 5), lodged by Srimangiri (PW 2), who is son of deceased Dayalugiri, specific overt acts of causing injuries to his father, Dayalugiri, were attributed to appellants Sheo Nandan Singh and Dayal Singh. In his deposition though an omnibus allegation has been made against all the appellants by Srimangiri (PW 2), but specific overt act of causing an injury on the head region of deceased Dayalugiri has been made against appellant Shea Nandan Singh only. Domari (PW 3) categorically stated that appellants Sheo Nandan Singh and Dayal Singh were armed with lathis, and the three other appellants were unarmed. Paras ram (PW 6), Banslal (PW 7), Tehria Bai (PW 9) and Bahura Rai (PW 10) did not support the prosecution case and were declared hostile. Domari (PW 3) categorically stated that appellants Sheo Nandan Singh and Dayal Singh were armed with lathis, and the three other appellants were unarmed. Paras ram (PW 6), Banslal (PW 7), Tehria Bai (PW 9) and Bahura Rai (PW 10) did not support the prosecution case and were declared hostile. Ramwati (PW 12) also makes omnibus allegations against all the appellants, but specific overt acts were attributed to appellant Sheo Nandan Singh and Dayal Singh only. Lallan Singh (PW 14) also attributed specific overt act to appellants Sheo Nandan Singh, of causing injury on the head region of deceased Dayalugiri. ( 9 ) FROM the above churning of the evidence of the eye-witnesses, it emerges out that the evidence of all the eye-witnesses is consistent so far as the individual overt act of appellant Sheo Nandan Singh is concerned. His overt act of causing one injury on the head region of deceased Dayalugiri, stands fully proved. The next question which arises for concatenation is about the nature of the offence against appellant Sheo Nandan Singh. On post-mortem examination, 9 external injuries were found on the body of the deceased. Of these, three were on his head region. Only one of these three injuries had resulted in the fracture of his parietal bone. From the evidence of the Autopsy Surgeon, Dr. B. N. Satnami (PW 1), it is evident that the head injury with the corresponding fracture of parietal bone proved fatal. The ocular evidence of the eye-witnesses fall short of establishing that appellant Sheo Nandan Singh had caused that head injury which resulted in the corresponding fracture of the parietal bone, and proved fatal. From the evidence of the eyewitnesses, only this such is established that the appellant Sheo Nandan Singh had caused one out of the three injuries, found on the head region of deceased Dayalugiri. The other two injuries, found on the head region, did not result in any corresponding fracture, or damage to any of the internal organs and are, therefore, simple in nature. As the ocular evidence is not sufficient for holding appellant Sheo Nandan Singh responsible for causing the fatal injury on the head region of the deceased, in our opinion, he can safely be convicted under section 323, of the IPC, only for causing the simple hurt on the head region of deceased Dayalugiri. As the ocular evidence is not sufficient for holding appellant Sheo Nandan Singh responsible for causing the fatal injury on the head region of the deceased, in our opinion, he can safely be convicted under section 323, of the IPC, only for causing the simple hurt on the head region of deceased Dayalugiri. ( 10 ) AS regards appellants 1, 2 and 3; namely, Budawa Anand, Samharu and Dulan Singh, though some of the eye-witnesses have made omnibus allegations against them of their having participated in the incident of assault on deceased Dayalugiri, but the evidence of Domari (PW 3) fully exonerates them. Domari (PW 3) had categorically deposed that these three appellants were unarmed, and did not assault deceased Dayalugiri. On the above contradictory evidence of the eyewitnesses, and in the absence of any positive evidence about the specific over-tacts of these appellants, of causing any particular injury on the deceased, we find it quite unsafe to hold these appellants guilty even on the charge of 323, of the IPC. Therefore, appellants 1, 2 and 3, namely, Budawa Anand, Samharu and Dulam Singh, deserve to be acquitted of all the charges. ( 11 ) FOR the foregoing reasons, the appeal, filed by the appellants, is partly allowed. The conviction of the appellants under sections 148 and 302 read with 149, of the Indian Penal Code, are hereby set aside. Appellants 1, 2 and 3; namely Budawa Anand, Samharu and Dulam Singh, are acquitted of all the charges. Appellant Sheo Nandan Singh is also acquitted of the charges under section 148 and 302/read with 149, of the Indian Penal Code. Instead he is convicted under section 323, of the Indian Penal Code, and is sentenced to 1 year rigorous imprisonment. ( 12 ) APPELLANTS 1, 2 and 3, namely. Budawa Anand, Samharu and Dulam Singh, are on bail. Their bail bonds are discharged. ( 13 ) APPELLANT Sheo Nandan Singh is in custody since his conviction, vide judgment dated 5-9-1988, and as such has already undergone much more than the sentence of 1, year rigorous imprisonment, awarded to him, under section 323, of the Indian Penal Code he be set at liberty forthwith, if not wanted in connection with any other case. Appeal disposed off accordingly. .