A. L. DAVE, J. ( 1 ) THIS appeal arises out of the judgment and order rendered in Sessions Case No. 125 of 1992, on 26th February, 1993, by the learned additional Sessions Judge, Mehsana, wherein the present appellants came to be convicted for offences punishable under Sec. 302 read with Secs. 141, 143 and 149 of I. P. C. . The appellants were ordered to undergo R. I. , for life. ( 2 ) THE facts of the case can be narrated as under : an F. I. R. , came to be lodged by Bhaluji Nagarji Thakor of village dhanavada, Taluka-Sidhpur, District-Mehsana, on 29th January, 1992, before the Police Sub-Inspector, Kakoshi Police Station camping at Dhanavada. ( 3 ) IN the F. I. R. , it is stated that on the previous day i. e. , 28th January, 1992, when the complainant along with his father Nagarji and brother Naluji were at their home, his father came to him and told him to go to the field for watering. His father was returning to the house of Naluji. When his father was near the house of Kantiji Anarji accused No. 1, he started abusing his father nagarji. The complainant, therefore, started towards them and asked Kantiji not to use abusive language. On this, the accused No. 1-Kantiji said that "you do not have a right of way from here and why do you pass through this street. " kantiji was annoyed and he gave a Lathi blow to Nagarji. Nagarji raised a shout and the witnesses, therefore, immediately rushed there. Hearing the shout, naluji also came out of his house. At that time, Premjiji Varsangji, who was armed with Dhariya and his brothers Jodhaji Varsangji, Jayantiji Varsangji and surajmalji Anarji who were armed with sticks, they all came there to assault them. At that time, the light in the house of the complainant was on and the complainant saw that Premjiji Varsangji gave a Dhariya blow on the head of nagarji, as a result, Nagarji fell on the floor. The complainant and his brother tried to intervene. At that time, Jodhaji Varsangji gave a stick blow on the head of Nagarji, and therefore, he also fell down. At that point of time, all the assailants pounced on his father and Naluji fell down. The complainant and his brother tried to intervene. At that time, Jodhaji Varsangji gave a stick blow on the head of Nagarji, and therefore, he also fell down. At that point of time, all the assailants pounced on his father and Naluji fell down. Hearing the hubbub, dalsangji and Vaghaji came there to their rescue, and therefore, all the six assailants ran away. Both the injured persons were bleeding heavily, and therefore, they were brought to the house of Naluji. They were not in a position to speak. It was stated that nobody else was injured in the incident. On the basis of this f. I. R. , offence was registered and was investigated upon. The Investigating agency, after having completed the investigation, found that there was sufficient evidence against the accused persons, and, therefore, a charge-sheet was filed in the Court of the learned Judicial Magistrate (First Class), Sidhpur. Since the case was exclusively triable by the Court of Sessions, the case was committed by the learned J. M. F. C. Sidhpur to the Court of the Sessions, and was registered by the Sessions Court as Sessions Case No. 125 of 1992. On the matter coming up for hearing, charge was framed against the accused at Exh. 2. ( 4 ) THE accused were charged to have committed offences punishable under secs. 141 and 143 of I. P. C. , for forming an unlawful assembly and armed with deadly weapons. The accused were also charged for having a common object of committing murder of Nagarji and Naluji. It was charged that the accused no. 2. Premjiji Varsangji was armed with Dhariya and caused injury on the head of Naluji with Dhariya, whereas the accused No. 1 was armed with a stick and caused injury on on head of Nagarji with stick, and other accused persons were charged to have caused other injuries and thereby having committed an offence punishable under Sec. 302 read with Sec, 149 of I. P. C. , or in the alternative, they have committed an offence punishable under Sec. 302 read with sec. 34 of I. P. C. ( 5 ) THE accused persons pleaded not guilty to the charge and expressed their desire to face the trial. 34 of I. P. C. ( 5 ) THE accused persons pleaded not guilty to the charge and expressed their desire to face the trial. ( 6 ) AFTER considering the evidence led by the prosecution, the trial Court came to the conclusion that the prosecution could successfully prove the charges levelled against the accused persons and ultimately recorded conviction for those offences and sentenced the accused persons to undergo Rigorous Imprisonment for life. ( 7 ) BEING aggrieved by the said judgment and order, original accused personsappellants have preferred the present appeal. ( 8 ) THE learned Advocate Mr. A. R. Thacker appearing for the appellants has raised a number of contentions. According to him, the prosecution case even if accepted at face value, is not sufficient to convict a person for the charge of murder. He submitted that there are three eye-witnesses put forward by the prosecution. They claim to be eye-witnesses, but when their depositions are seen, they are self-contradictory. They have made improvement in their original version and their version does not get any supportive corroboration from independent medical evidence. Mr. Thacker contended that there is erroneous application of secs. 141, 143 and 149 of I. P. C. Even if the prosecution case is accepted at its face value, there is nothing to indicate forming of unlawful assembly. There is nothing to indicate that such an unlawful assembly had common object of causing death of the two deceased. The circumstances indicate that by coincidence, deceased Nagarji went to the house of Bhaluji and while he was returning, the incidence occurred. While that incident was in progress, Naluji came to the spot. Therefore, the accused could not have shared the common object of causing death of both the deceased persons as charged. Mr. Thacker submitted that the incident started between accused Kantiji and deceased Nagarji, but other accused persons came subsequently. There is nothing to indicate that they had formed an unlawful assembly, and therefore, all the persons are wrongly convicted for offences punishable under Sec. 302 I. P. C. , read with Secs. 141, 143 and 149 of I. P. C. ( 9 ) IT is contended that the muddamal articles have not been sent to F. S. L. , for analysis by the Investigating Agency which would also cause defect in the proceedings. ( 10 ) MR. 141, 143 and 149 of I. P. C. ( 9 ) IT is contended that the muddamal articles have not been sent to F. S. L. , for analysis by the Investigating Agency which would also cause defect in the proceedings. ( 10 ) MR. Thacker, therefore, submitted that the trial Court committed an error in concluding that the prosecution had successfully proved the charges against the appellants. There are circumstances which give rise to reasonable doubt and benefit of doubt ought to have been given to the accused persons. To substantiate his arguments, Mr. Thacker has taken us through the records and proceedings threadbare. He has closely read the depositions of witnesses Bhaluji, Kantaben and Parbatji, who claimed to be the eye-witnesses. He has drawn our attention to the fact that these witnesses have changed their version and have tried to mould their depositions in a manner suitable to the prosecution. They, therefore, ought not to have been believed by the Court below. Mr. Thacker, therefore, urged that the appeal be allowed and the conviction be set aside. ( 11 ) OPPOSING this appeal, Mr. Bukhari, the learned A. P. P. , submitted that the minor discrepancies are bound to creep in. He submitted that there are three eye-witnesses, one of whom is an independent witness, and there is no reason to disbelieve the deposition of these eye witnesses. The depositions of eye witnesses are consistent with F. I. R. , and medical evidence. There is some variance in the charge framed by the Court. But that may not be taken as fatal to the prosecution case as no contention is raised in statement under Sec. 313 of Cr. P. C. , or in argument before the trial Court. At times, sifting of evidence becomes necessary. He, therefore, urged that the trial Court has correctly come to a conclusion of convicting the accused persons and there being no apparent error in evaluation of the evidence, the conviction may be upheld and the appeal may be dismissed. ( 12 ) WE have given a thoughtful consideration to the contentions raised by both the sides. We have subjected the evidence to a close scrutiny. We find that there is some discrepancy between the prosecution case and the charge framed by the trial Court. ( 12 ) WE have given a thoughtful consideration to the contentions raised by both the sides. We have subjected the evidence to a close scrutiny. We find that there is some discrepancy between the prosecution case and the charge framed by the trial Court. The evidence led by the prosecution is consistent with the f. I. R. , and the medical evidence, and as such, in our view, unless prejudice is intended to have been caused to the accused, no much importance can be attributed to such procedural lapse. However, we find some substance in the arguments advanced by Mr. Thacker that the accused persons have wrongly be held to have formed unlawful assemply with the common object of causing death of the deceased Nagarji and Naluji. ( 13 ) THE Court, therefore, would be required now to examine whether any offence can be said to have been made out against the appellants whether individually or collectively. ( 14 ) ). In this regard, if the evidence is seen, we find that when the incident occured, the deceased Nagarji had gone to the house of witness Bhaluji. While he was returning from his house, accused Kantiji was sitting in front of his house. He objected to the deceased passing through the way. The deceased said that he has a right to pass through that way, which infuriated the accused kantiji and he started giving abuses and then assaulted the deceased Nagarji with a stick and caused an injury on the head. Thereafter, Premjiji caused injury with Dharia to Nagarji. Thereafter, hearing the hubbub, Naluji comes to the scene, who is assaulted by accused No. 3 Jodhaji Varsangji with a stick, and thereafter, all the accused assaulted both the deceased who had fallen to the floor. There is evidence to indicate that the accused No. 1 and accused no. 6 are staying in the same house. There is also evidence to indicate that accused Nos. 3, 4 and 5 are real brothers. The houses of accused Nos. 2 to 6 are situated at a distance of about 30 to 35 steps i. e. , houses of Dalsangji sardarji, Ratuji Gambhirji, Sahdevji Fatehsinh, Shobhaji Dargaji and Dharsangji dargaji fell between the houses of Kantiji and accused Nos. 2 to 6. 3, 4 and 5 are real brothers. The houses of accused Nos. 2 to 6 are situated at a distance of about 30 to 35 steps i. e. , houses of Dalsangji sardarji, Ratuji Gambhirji, Sahdevji Fatehsinh, Shobhaji Dargaji and Dharsangji dargaji fell between the houses of Kantiji and accused Nos. 2 to 6. There is nothing in the evidence to indicate that all the accused persons were sitting together, armed with respective weapon, waiting for the deceased. The presence of the accused persons at that point of time is noted to be accidental because in cross-examination Bhaluji admits that whole day deceased Nagarji and deceased Naluji and other were working in the field and when they departed after the work was over, till then Nagarji had not discussed about working in the field at night. After they went home, Nagarji came to the house of Bhaluji after about hour and half and asked him for watering the field. This would indicate that arrival of the deceased Nagarji at the place of the incident was not planned, but accidental. It would, therefore, be not possible to accept that the accused persons had a knowledge about arrival of nagarji at the place of the incidence at that point of time. They, therefore. could not be considered to have formed an unlawful assembly with the object of causing death of Nagarji and Naluji since there is no evidence to indicate that they were waiting there collectively, since arrival of Nagarji at the place of the incident is found to be accidental and since the deceased Naluji comes to the scene only after the incident qua Nagarji has begun. We, therefore, find substantial force in the contention of Mr. Thakkar that there is no evidence neither any circumstance to indicate that the accused persons had formed an unlawful assembly and that the assembly was formed with a common intention of causing death of the deceased Nagarji and the deceased Naluji. The conviction of the appellants, therefore, for offences punishable under Sec. 302 read with Secs. 141, 143 and 149 of I. P. C. , cannot be upheld and needs to be quashed and set aside. ( 15 ) IF we see the evidence of the eye-witness Bhaluji (Exh. The conviction of the appellants, therefore, for offences punishable under Sec. 302 read with Secs. 141, 143 and 149 of I. P. C. , cannot be upheld and needs to be quashed and set aside. ( 15 ) IF we see the evidence of the eye-witness Bhaluji (Exh. 40), it is found that he states that Kantiji caused head injury to Nagarji with a stick and Jodhaji varsangji caused head injury to Naluji with a stick. He also states that Premjiji caused injury to Nagarji on his head with a Dharia, as a result of the injuries, both the victims fell on the floor. Thereafter, all the assailants pounced on them with their respective weapons and caused injuries. He says that he saw this as he was following Nagarji who had come to his house and was going to the house of Naluji. In his cross-examination, he states that Kantiji gave a stick blow to his father, whereupon he (the witness) raised shouts, but he did not question Kantiji as to why he was assaulting his father. He did not even intervene. He further admits that none of the accused persons were assaulted upon by anyone, nor did anyone try to apprehend the assailants-accused. He denies that Naluji caused injury on right shoulder, left wrist and left thigh of Amrutji with a stick. He also denies that in this quarrel Nagarji and Naluji sustained injuries and many people had gathered. ( 16 ) THE witness Kantaben Naluji is examined at Exh. 42. She is the widow of Naluji. She claims to have seen the incident. She says that Kantiji gave a stick blow on head of Nagarji. Premjiji gave a Dhariya blow on head of Nagarji, and therefore, he fell down. Naluji was also assaulted upon by Jodhaji with a stick on head and he also fell down, and, therefore, all the assailants rounded them up and pounced on them with respective weapons. During the cross- examination, she states that she has not stated in her police statement that Premjiji gave Dhariya blow on head of her father-in-law i. e. Nagarji. She also admits that she has not stated in her police statement that on being assaulted Nagarji fell down. She also admits to have not stated in the police statement that the accused persons rounded up the victims and pounced on them with their respective weapons. She also admits that she has not stated in her police statement that on being assaulted Nagarji fell down. She also admits to have not stated in the police statement that the accused persons rounded up the victims and pounced on them with their respective weapons. ( 17 ) THE third witness is Parbatji Dalsangji who has been examined at Exh. 46. He says that Kantiji gave a stick blow on the head of Nagarji. Premjiji gave a Dhariya blow on head of Nagarji and on arrival of Naluji, Jodhaji gave a stick blow on head of Naluji. He also says in his cross-examination that all the assailants rounded up the victims and started beating them indiscriminately with their respective weapons. He says that he will not be able to state as to after how many blows Naluji fell down, but he says that the accused persons continued to inflict blows even after Nagarji and Naluji fell down. ( 18 ) IF the medical evidence is seen, the post mortem note of Nagarji is at Exh. 45. He had sustained three external injuries. The post mortem Note of Naluji is at Exh. 39, which indicates that Naluji had sustained five external injuries. It may be noted that the incident occurred on 28th January, 1992. Nagarji expired on 4th February, 1992, and Naluji expired on 13th February, 1992. It therefore, becomes important to examine the medical evidence as to the injuries found immediately after the incident. Dr. Rakeshkumar Kansal is examined at exh. 26. He states that he had examined Naluji on 28th January, 1992 at about 10-40 p. m. He found that Naluji had a depressed fracture on head, retina were dilated and were not responding to light, the injuries found on the person of naluji were possible by hard and blunt substance. ( 19 ) ). The witness also states that he had examined Nagarji who gave history of having sustained injuries in a fight. He had four external injuries, one incised wound, two contused lacerated wounds and one hematoma. According to him, the injury No. 1 was possible with hard and blunt substance, whereas the other injuries were possible with sharp cutting instruments. ( 20 ) THE medical certificate of the accused-appellant Kantiji and Amrutji are produced at Exhs. 30 and 31 respectively, both of which speak of history of assault with Lathi. According to him, the injury No. 1 was possible with hard and blunt substance, whereas the other injuries were possible with sharp cutting instruments. ( 20 ) THE medical certificate of the accused-appellant Kantiji and Amrutji are produced at Exhs. 30 and 31 respectively, both of which speak of history of assault with Lathi. Kantiji had two blunt injuries, whereas Amrutji had two blunt injuries and a fracture of left Ulna. 18-12-2000. . ( 21 ) IT is therefore, very clear from the above evidence that there is consistent evidence led by the prosecution to implicate the accused No. 2. Premjiji for causing head injury with a Dhariya to the deceased Nagarji. There is consistent evidence to indicate that accused No. 3 Jodhaji Varsangji caused head injury with a stick to the deceased Naluji. The injuries to both these victims are proved to be fatal. They are also proved to be sufficient in the ordinary course of nature to cause death. The force with which the injuries are caused indicate the presence of intention of causing death. Under the circumstances, in our view, the prosecution has proved the guilt of accused Premjiji Varsangji and Jodhaji varsangji so far as the offence of murder of deceased Nagarji and deceased naluji are concerned. ( 22 ) THERE is consistent evidence to indicate that accused Kantiji caused an injury with a stick on head of Nagarji. Thereafter, Dhariya injury was caused by Premjiji. If the post-mortem note of Nagarji (Exh. 45) is seen, four external injuries are found on his person. He has expired on 4th February, 1992, i. e. , about a week after the incident. There is medical certificate (Exh. 28) indicating initial condition of Nagarji, issued by Medical Officer, Patan General Hospital. The injuries are : (1) Incised wound 4" x 1" x bone deep over forehead; (2) lacerated wound irregular in shape over the right side of the forehead; (3) lacerated wound 1/2" deep over base of right ear; and (4) Haematoma over right and left upper eye lid. This medical certificate is proved by Dr. Rakeshkumar kansal who is examined at Exh. 26. He says that injury No. 1 is possible with sharp-cutting instrument and other injuries are possible with hard and blunt substance. ( 23 ) DR. Nayankumar is examined at Exh. 44. He had performed post mortem of Nagarji. This medical certificate is proved by Dr. Rakeshkumar kansal who is examined at Exh. 26. He says that injury No. 1 is possible with sharp-cutting instrument and other injuries are possible with hard and blunt substance. ( 23 ) DR. Nayankumar is examined at Exh. 44. He had performed post mortem of Nagarji. According to him, the cause of death was head injury and shock due thereto. This doctor in his deposition further states that the internal injuries were corresponding to external injury No. 6 which has a lacerated wound on the right side of the skull. ( 24 ) ). With the above medical evidence, it is clear that death of Nagarji is caused by head injury sustained to him by accused Nos. 1 and 2. They both, therefore, would be guilty of offence of murder. ( 25 ) SO far as injury to deceased Naluji is concerned, the medical certificate is at Exh. 27, which indicates a depressed fracture over forehead, the patient was drowsy, pupils were dilated and were not reacting to light. Dr. Rakeshkumar kansal (Exh. 26) who had examined Naluji initially states the same think in his deposition. Dr. Haresh Paleka Exh. 38) had performed post mortem. The post marten notes are at Exh. 39, which indicate a healing abrasion on the left side of the head, a healing abrasion on the occiptoral region, a healing abrasion on the back of left elbow, a healing abrasion on the lower part of left forearm and a healing abrasion on the left knee. The internal injuries indicate fracture on left side of the skull involving left perital, left temporal and left frontal skull open. There was thick subdural haematoma on both parital and occipital lobes, there was haemorrage present all over surface of the brain. There was a laceration and necrosis of entire right temporal lobe size of about 6 x 3. 5 cm. The cause of death is certified to be shock as a result of head injury. He also certified that injuries are possible by hard and blunt substance. If this medical evidence is seen in light of the oral testimony, it is clear that the head injury was caused by accused Jodhaji Varsangji. He would, therefore, be responsible for murder of Naluji. ( 26 ) SO far as other accused persons are concerned i. e. , accused Nos. If this medical evidence is seen in light of the oral testimony, it is clear that the head injury was caused by accused Jodhaji Varsangji. He would, therefore, be responsible for murder of Naluji. ( 26 ) SO far as other accused persons are concerned i. e. , accused Nos. 4, 5 and 6 are concerned, viz. Jayantiji Varsangji Thakor, Surajmalji Varsangji Thakor and Amrutji Anarji Thakor are concerned, there is no specific evidence as to who caused which injury and to whom. In view of the fact that we have found that there was no formation of unlawful assembly as alleged, and in view of the fact that there is no evidence to indicate as to who caused which injury, these persons could not have been convicted as has been done by the trial Court for offence punishable under Sec. 302 read with Secs. 141, 143 and 149 of I. P. C. The medical certificate of Naluji does not speak of any other injury on his person, nor does the medical certificate of Nagarji speak of any injuries other than the injuries found on his head. The version of the eye-witnesses, therefore, that all the accused persons surrounded the decesed and assaulted them indiscriminately with their respective weapon seems to be an exaggeration, which can not be accepted in absence of medical evidence and in light of the above discussed evidence. These three accused persons, therefore, need to be acquitted of the charges levelled against them. ( 27 ) WE may make it it clear that in the charge framed by the trial Court, there is no specific charge against accused No. 3 Jodhaji Varsangji of having caused head injury to Naluji, but there is charge to the effect that he caused injury to the deceased with stick. Therefore, in our opinion, no prejudice is caused to the accused on this defect in the charge cannot result into setting aside the conviction. Differently put, it cannot be considered as fatal to the prosecution case resulting into his acquittal. ( 28 ) IT would also be appropriate to note that, though formation of unlawful assembly is not found to have been proved by prosecution, there is evidence to indicate that both accused No. 1 Kantiji Anarji Thakor, and accused No. 2 Premji Varsangji Thakor, acted in a concert caused such injuries to deceased Nagarji which resulted into his death. ( 28 ) IT would also be appropriate to note that, though formation of unlawful assembly is not found to have been proved by prosecution, there is evidence to indicate that both accused No. 1 Kantiji Anarji Thakor, and accused No. 2 Premji Varsangji Thakor, acted in a concert caused such injuries to deceased Nagarji which resulted into his death. This reflects presence of common intention at the time of commission of crime. ( 29 ) IN view of the foregoing discussion, the appeal deserves to be partly allowed. ( 30 ) THE appeal in respect of the accused No. 4 Jayantiji Varsangji Thakor, accused No. 5 Surajmalji Varsangji Thakor and accused No. 6 Amrutji Anarji Thakor is allowed. Their conviction under Sec. 302 read with Secs. 141, 143 and 149 of I. P. C. , in the impugned judgment and order is quashed and set aside. They be set at liberty, if not required in any other case. ( 31 ) ACCUSED No. 1 Kantiji Anarji Thakor, and accused No. 2 Premjiji Varsangji Thakor are held guilty of offence of committing murder of Nagarji Dhamaji and are convicted under Sec. 302 read with Sec. 34 of I. P. C. ( 32 ) ACCUSED No. 3 Jodhaji Varsangji Thakor is convicted for offence of committing murder of Naluji punishable under Sec. 302 of I. P. C. ( 33 ) ). Accused Kantiji Anarji Thakor, Premjiji Varsangji Thakor and Jodhaji Varsangji Thakor are sentenced to undergo imprisonment for life and are ordered to pay a fine of Rs. 500. 00 each. In the event of default in payment of fine, they are ordered to undergo further imprisonment for one month. The appeal stands disposed of accordingly. .