JUDGMENT 1. -The above three appeals arising out of the judgment dated 30.1.1980 passed by learned Sessions Judge, Merta in Sessions Case No. 24/77 have been heard together and are being disposed of by this common judgment. The learned Sessions judge tried 13 accused persons for various offences and by his impugned judgment recorded the conviction of nine accused persons and acquittal of remaining four accused persons as under : "(1) Jhoomar was convicted of the offences under sections 302, 148, 448, 325/149, 324/149 & 323/149 IPC. He was sentenced to various terms of imprison-ment. He filed the appeal No. 94/80 which stands already disposed of as abated on his death by order dated 9.7.1997. (2) Deva Ram, Shanker, Rama Ram, Hari Ram, Ram Niwas, Ghisa Ram, Jagdish and Gopal were convicted of the offences under sections 148, 448, 323/149, 324/149 & 325/149 IPC and sentenced to various terms of imprisonment. They have been acquitted of offence under sections 302 & 302 r/w Section 149 IPC which has been challenged by State of Rajasthan. All these accused persons have called in question their conviction in Appeal No. 55/80. (3) Bhagirath, Mohan, Sohan and Ridh Karan have been acquitted of all the charges levelled against them under sections 148, 448, 302/149, 325/149, 324, 324/149 & 323/149 IPC. State of Rajasthan has put in issue their acquittal and also the acquittal of above named eight accused under sections 302 & 302 r/w 149 IPC in Appeal No. 452/80. 2. Appellants-Shanker, Ghisa Ram, Jagdish and Gopal, have died during the pendency of the appeal and the appeals preferred by them and against them by State of Rajasthan stand abated and disposed of accordingly. Therefore, the appeal of only remaining appellants Deva Ram, Rama Ram, Hari Ram and Rani Niwas survives for consideration in appeal No. 55/80. The appeal of State of Rajasthan is also to be decided in respect of eight accused persons i.e. Deva Ram, Rama Ram, Hari Ram and Ram Niwas partly acquitted of some of the charges and Bhagirath, Mohan, Sohan and Ridh Karan having been acquitted of all the offences alleged against them. 3. The prosecution case is that Pabu, Jairam (deceased), Rajuram, Mehram, Mst. 3. The prosecution case is that Pabu, Jairam (deceased), Rajuram, Mehram, Mst. Jhamku and Ram Niwas were sitting in the 'Bala' of Jairam in the morning at 6.00 a.m. on N.5.1976, while they were talking all the 13 accused-Jhoomar, Gopal, Deva Ram, Shanker, Rama Ram, Hari Ram, Ram Niwas, Ghisa Ram, Jagdish, Bhagirath, Mohan, Sohan and Ridh Karan armed with lathis, pharsies and axes entered the 'Bada' and assaulted them. The hue and cries raised by the injured persons attracted Heera Ram, Ram Prasad and Govind Ram at the scene of occurrence. When they tried to intervene the accused persons also inflicted injuries to them. It is further alleged that all the accused persons were crying that the complainant party should be finished. Jairam fell down and accused-Jhoomar and Ram Niwas gave a violent blow by a big stone on his head who died thereat. The First Information Report Ex. P/22 was lodged by Ram Niwas at 6.15 p.m. at Police Station, Mundwa. The case was registered and investigation was taken up by Jayant Singh PW 18. On completion of the usual investigation, challan was submitted and all the accused were committed to the Sessions for trial. 4. In order to prove its case, prosecution examined 18 witnesses. The accused persons also examined in defence four witnesses to prove that accused-Ram Niwas and Deva Ram were not present at the scene of occurrence as they had gone to Takhatgarh. Rama Ram was working in his field and Ghisa Ram had also gone to Mundwa fair. The prosecution witnesses Hari Ram PW 7, Smt. Jhamku PW 10, Ram Prasad PW 11, Govind Ram PW 12, Ram Niwas PW 13, Raja Ram PW 14 and Pabu Ram PW 16 are injured eye-witnesses. Dr. Paras Ram Joshi has proved in his evidence injury reports Ex. 0/8, Ex. P/14 and also the post-mortem report Ex. P/15. It is proved from the statements of the injured witnesses, the injury reports and the post-mortem report that Ram Niwas, Pabu Ram, Raja Ram, Hari Ram, Govind Ram Ram Prasad and Smt. Jhamku received ample injuries by blunt weapon. Moreover, Pabu Rani was inflicted with one grievous injury by blunt weapon causing fracture of left ulna whereas Ram Prasad and Smt. Jhamku received one injury each by sharp edged weapon in the assault made by the accused persons. Moreover, Pabu Rani was inflicted with one grievous injury by blunt weapon causing fracture of left ulna whereas Ram Prasad and Smt. Jhamku received one injury each by sharp edged weapon in the assault made by the accused persons. All the injuries were caused by the accused persons in prosecution of the common object of the unlawful assembly which was to hurt all the aforesaid injured witnesses. We have perused the statements of all the injured witnesses and we are of the opinion that the learned Sessions Judge has arrived at the correct finding in convicting the appellants for the offences under sections 148, 448, 324 r/w 149, 325 r/w 149, 323 r/w 149 IPC. No. sustainable submissions have been made in favour of the appellants to upset the said conviction. Therefore, the appeals of remaining appellants-Deva Ram, Rama Ram, Hari Ram and Ram Niwas bearing No. 55/80 and 56/80 deserve to be dismissed. 5. Now, we proceed to consider the appeal preferred by State of Rajasthan against the acquittal under section 302 IPC recorded by the learned Sessions Judge in favour of Hari Ram and Ram Niwas and also under section 302 r/w 1491PC against all the four remaining appellants i.e. Deva Ram. Rama Ram, Hari Ram and Ram Niwas. The learned Sessions Judge has appreciated the statements of the injured eye-witnesses and contradictions appearing therein regarding the alleged violent throw of stone by Jhoomar, Hari Ram and Ram Niwas and also FIR Ex. P/22 as well as statements of Raja Ram and Pabu Ram Ex. P/I 6 & P/17 recorded as dying declaration by the Judicial Magistrate, Nagaur before lodging the FIR. The learned Sessions Judge has come to the conclusion that witnesses have exaggerated their statements to implicate Hari Ram and Ram Niwas because the first version in the statement Ex. P/16 given by Raja Ram was against Jhoomar accused that he, while the assault was going on, threw a big stone on the head of Jai Ram, who had already fallen on the ground. We do not see any fault in the appreciation of the evidence by the learned Sessions judge in this regard and we agree that in view of the contradictions in the statements the charge under sections 302 IPC is not proved against Hari Ram and Ram Niwas. They have been rightly acquitted of the offence under section 302 IPC. 6. We do not see any fault in the appreciation of the evidence by the learned Sessions judge in this regard and we agree that in view of the contradictions in the statements the charge under sections 302 IPC is not proved against Hari Ram and Ram Niwas. They have been rightly acquitted of the offence under section 302 IPC. 6. The learned Public Prosecutor vehemently argued that the learned Sessions judge has committed grave error in not convicting the appellants for the offence under section 302 IPC with the aid of 149 IPC because all the accused persons had formed an unlawful assembly, armed with lethal weapons with a common object to kill Jai Ram and the act of Jhoomar to pick up a big stone out of the stones lying there and to throw on the head of deceased-Jai Ram was in prosecution of the common object of the unlawful assembly. We have carefully gone through the evidence of the injured eye-witnesses which reveal that none of the members of the unlawful assembly was armed with stone. All the accused persons, according to the prosecution, were armed with lathies, Pharsies and axes and assaulted the injured witnesses. Jhoomar accused during the course of the assault, picked up a big stone from the place of occurrence and threw on the head of deceased-Jai Ram when he had already fallen on the ground and this injury resulted in his death due to multiple fractures of the skull bones and laceration of the brain. If the common object of the assembly was to kill Jai Ram then there was no reason that accused persons would not have used lethal weapons with them to inflict severe injuries to the deceased. The appellants could not have the knowledge that one of the members of their unlawful assembly, Jhoomar would cause fatal injury to deceased-Jai Ram by a stone by picking it from a heap of stones at the place of occurrence. We agree with the conclusion arrived at by the learned Sessions Judge that it was an individual act of accused-Jhoomar exceeding the common object of the unlawful assembly and, therefore, in the facts and circumstances of this case the appellants could not be held liable for his act i.e. an offence under section 302 IPC. We agree with the conclusion arrived at by the learned Sessions Judge that it was an individual act of accused-Jhoomar exceeding the common object of the unlawful assembly and, therefore, in the facts and circumstances of this case the appellants could not be held liable for his act i.e. an offence under section 302 IPC. The learned Sessions Judge has recorded adequate and cogent reasons in taking this view of the matter for acquitting the appellants of the offence under section 302 r/w 149 IPC. 7. Similarly the participation in the occurrence of accused-respondents-Bhagirath. Mohan, Sohan and Ridh Karan is also not proved by the evidence led by the prosecution. It is disclosed from the prosecution evidence that aforesaid four accused-respondents have no concern or relation with other accused persons. There was no previous quarrel with these accused-respondents. The learned Sessions Judge while appreciating the evidence found that the names of the accused-respondents were not mentioned in the compliant under section 107 Cr.P.C. filed by Pabu on 19.5.1976 a day prior to the occurrence. There is no material to hold that Bhagirath used the alleged sharp edged weapon to inflict injury. No overt act has been assigned to Bhagirath and his three sons Mohan, Sohan and Ridh Karan in the FIR lodged after 11 hours of the occurrence to injured Ram Ni was PW 13. Therefore, the learned Sessions Judge has not erred in coming to the conclusion that false implication of the above four accused-respondents due to land dispute cannot be altogether ruled out. We do not see good and cogent reason to differ with the finding of acquittal recorded by the learned Sessions Judge in favour of above four accused-respondents-Bhagirath, Mohan, Sohan and Ridh Karan. Hence, the appeal filed by State of Rajasthan is devoid of any merit and deserves to be dismissed. 8. In the result, the appeal preferred by State of Rajasthan No. 452/80 is hereby dismissed. The appeal No. 55/80 & 56/80 of accused-Deva Ram, Rama Ram, Hari Ram and Ram Niwas are hereby dismissed to the extent of their conviction. Hence, the appeal filed by State of Rajasthan is devoid of any merit and deserves to be dismissed. 8. In the result, the appeal preferred by State of Rajasthan No. 452/80 is hereby dismissed. The appeal No. 55/80 & 56/80 of accused-Deva Ram, Rama Ram, Hari Ram and Ram Niwas are hereby dismissed to the extent of their conviction. However, appellants-Deva Ram and Gopal (who later on died) effected compromise with the injured persons on 27.2.1984 for the offences under sections 448, 325/149, 324/149 & 323/149 IPC and it is not necessary to pass any sentence against them except for the non-compoundable offences under section 148 IPC and, therefore, the impugned sentence passed against them for the compoundable offences is set aside. The appeal of accused persons Shanker, Gopal, Ghisa Ram and Jagdish has already abated on their death. The conviction of appellants-Rama Ram, Hari Ram and Ram Ni was by the impugned judgment is hereby maintained, but the sentence awarded to each of them to run concurrently in all the offences is reduced to the period already undergone. The sentence awarded to appellant-Deva Ram for the offence under section 148 is also reduced to already undergone. The bail bonds are cancelled.Both appeals rejected. *******