JUDGMENT 1. - This appeal is directed against the Judgment dated 30.10.96 passed by learned Addl. Sessions Judge No. 1, Bhilwara convicting the appellant Balunath for the offence under Section 302 IPC and rest of the accused appellants i.e. Mangu Nath, Raju Nath, Mohan Nath, Gang Nath and Badu Nath @ Madhu Nath of offence under Section 302/149 IPC and sentenced them to imprisonment for life and to pay each of them fine of Rs. 500/- and in default of payment to further undergo six months rigorous imprisonment. The appellants have also been convicted under Secs. 307, 148 and 147 IPC. They have also been convicted of offences under Secs. 325, 323 and 341 IPC. No separate sentence have been awarded for the said offence. 2. The prosecution case as disclosed during the trial is that there is a joint well owned by five sharers. Accused appellant Mangu Nath S/o complainant party comprising of Mangu Nath, Hazari Nath, and Mohan Nath are also sharers There were other sharers also. It is the prosecution case that accused party of Marigu Nath S/o Daya Ram Nath used to draw water from the well by means of removable motor and the complainant party by means of Persian wheel. The further case of the prosecution is that the Motor while lying inside the well used to cause hindrances in drawing water by the complainant party as the well was narrow and the Persian wheel could cause damage to the motor, therefore, whenever there was the turn of drawing water by the complainant party, they used to remove the motor and draw the water. On the date of the incident, the turn of drawing the water was of the complainant party and they removed the motor and were drawing the water, it is alleged that at that time, appellants arrived with sticks and caused injuries to Hazari Nath, Mangu Nath and Mohan Nath. Hazari Nath succumbed to injuries. The information of incident was lodged by PW-15 Shankar Nath at P.S. Raipur, on which a case was registered for the offence under Sec, 302 and 307 IPC. After usual investigation, police laid charge-sheet against the appellants for the aforesaid offences. 3. The accused persons denied all the charges levelled against them and claimed trial. Hazari Nath succumbed to injuries. The information of incident was lodged by PW-15 Shankar Nath at P.S. Raipur, on which a case was registered for the offence under Sec, 302 and 307 IPC. After usual investigation, police laid charge-sheet against the appellants for the aforesaid offences. 3. The accused persons denied all the charges levelled against them and claimed trial. The prosecution in support of its case, examined as many as 21 witnesses and produced certain appellants in their statements under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against them. The trial court rejected the evidence with regard to recovery of weapon of offence as the prosecution failed to produce report of F.S.L. with respect to the presence of blood on the weapon of offence. However, learned Trail Judge relying on the testimony of eye witnesses PW-1 Nandlal, PW-2 Mangu Nath, PW-6 Samundra Nath and PW-16 Ladu Nath, found the prosecution case proved. The learned Judge accordingly, convicted and sentenced the appellants as noticed above. 4. We have heard Mr. P.N. Mohanani and Mr. V.D Vyas, learned counsel for the appellants and learned Public Prosecutor for the State. We have scrutinised, analysed and evaluated the prosecution evidence and considered the rival contentions. It is contended that there is only an omnibus allegation against all the accused persons. A careful reading of the statement of witnesses shows that all witnesses have given version of incident in parrot like manner. It is further submitted that incident took place ail not sudden on a very trivial issue between Mangu Nath S/o Daya Ram and complainant party and, as such, it cannot be said that at the first instance there is unlawful assembly and secondly, even if there was an unlawful assembly, the intention was not to commit murder of Hazari Nath. It is also submitted that version given by prosecution witnesses does not find corroboration from the medical evidence inasmuch as the injuries on the dead body of Hazari Nath are only abrasions and bruises. Thus the case against the appellants does not travel beyond Section 304-11/149 IPC. On the other hand, learned Public Prosecutor has supported the judgment of trial court. 5. PW-12 Dr. Satish Dabi has stated that he was one of the Member of the Medical Board which conducted the post mortem of dead body of Hazari Nath. Thus the case against the appellants does not travel beyond Section 304-11/149 IPC. On the other hand, learned Public Prosecutor has supported the judgment of trial court. 5. PW-12 Dr. Satish Dabi has stated that he was one of the Member of the Medical Board which conducted the post mortem of dead body of Hazari Nath. He found the following injuries on the person of dead body of Hazari Nath : (i) Lacerated wound, oblique, clotted Blood, size 13x1.0 Oxbone deep on left parietal area, just upper to left ear. (ii) Lacerated wound, oblique, clotted blood size 3.0x1.0 Oxbone deep on left side of fore head near hair line. (iii) Abrasion, oblique, clotted blood on upper to chin. (iv) Abrasion, oblique, size 2.0x 1.0 cm on upper part right back region. (v) Lacerated wound size, 3.5x1.0x 1.0 cm on lower ⅓ part of left arm, clotted blood on posterior aspect. (vi) Lacerated wound size 1.0x0.5x0.5 cm on lower ⅓ part of left arm posterior aspect clotted blood. (vii) Bruises with lacerated wound. Lacerated wound size 1.0x0.5 xmuscle deep, oblique, clotted blood, bruise size 10x6.0 cm on lower 1/2 part of right arm and lower 1/2 part of arm disfingar and there is fracture of Humeras bone lower ⅓ part. (viii) Abrasion, size 4.0 x 1.0 cm on mid of right knee (ix) Abrasion, size 3.5 x 1.5 cm on just lower to right knee (x) Lacerated wound size 3.5x1.o Oxbone deep, clotted blood on upper 1⅓ part of left leg. Anterior lacerated aspect and fracture of tibia & fibula in upper 1⅓ part. (xi) Bruise on upper left eye. He has proved the post mortem report Ex. P/3, in the opinion of Medical Board, cause of death of Hazari Nath was due to head injury. It is also stated that all the injuries were anti mortem in nature. PW-4 Dr. Om Prakash has stated that he was Medical Officer at Raipur. He was also one of the Member of the Board which conducted the post mortem of Hazari Nath. He has also proved the post mortem report Ex. P-3. 6. PW-5 Dr. Yashpal Singh has stated that he was Medical Jurist in the hospital at Bhilwara. PW-4 Dr. Om Prakash has stated that he was Medical Officer at Raipur. He was also one of the Member of the Board which conducted the post mortem of Hazari Nath. He has also proved the post mortem report Ex. P-3. 6. PW-5 Dr. Yashpal Singh has stated that he was Medical Jurist in the hospital at Bhilwara. He had examined appellant Mangu Nath and found the following injuries on his person : 1- yslsjsVM oqUM rhu bap x ,d bap] vksu vksDlhihVy jhtu vkWQ LdSYiA 2- yslsjsVM oqUM rhu bap x ,d bap x vk/kk bap] flj ds QzUVksVsEiksjy Hkkx ij lkFk gh mlesa fMizslM QzsDpj vkWQ QzUVy cksu Hkh FkkA 3- yslsjsVM oqUM nks bap x vk/kk bap x vk/kk bap] vkWu jk;V vkeZ ,.M ,ycksA 4- yslsjsVM oqUM ,d bap x vk/kk bap x vk/kk bap] tLV ,ckm jkbV uh TokbUVA He has proved the injury report Ex. P-5. He also stated that injuries No. 1 and 2 were dangerous to life. Injury No. 3 was grievous; whereas injury No. 4 was simple in nature. All the injuries were caused with blunt object. He also stated that on the same day, he examined Mohan Nath and found the following injuries on his person : 1- yslsjsVM oqUM ftlds lkFk QzsUd CyM Fkk vFkkZr lkQ [kwu cgrk gqvk FkkA rhu bap x ,d bap x ,d bap] ckbZ ckg dh dksguh ijA 2- yslsjsVM oqUM pkj bap x ,d bap x ,d bap [kksiM+h ij ck;ha QzUVksisjk;Vy Hkkx esa] bl dqpys gq, ?kko esa QzUVy cksu dk fMizSLM QzsDpj FkkA 3- yslsjsVM oqUM rhu bap x ,d bap x vk/kk bap LdSYi flj ij ihNs dh rjQ vksDlhihVy Hkkx esaA 4- yslsjsVM oqUM 6 bap x 2 bap x 1 bap] nkfguh vxz ckag ijA 5- dUV;wtu rhu bap x rhu bap nkfgus iSj ij vksj lkFk gh nkfgus ?kqVus ijA 6- dUV;wtu pkj bap x rhu bap] ck;ha ?kqVus ijA 7. PW-1 Nand Lal @ Nand Nath is the son of Hazari Nath. He has stated that accused persons are residents of village Tolas and his father used to cultivate the land in village Tolas. On the date of incident, his father alongwith his elder father Mangu Nath were drawing water by means of parsian wheel. They were having share alongwith accused persons in the well for watering the fields. He has stated that accused persons are residents of village Tolas and his father used to cultivate the land in village Tolas. On the date of incident, his father alongwith his elder father Mangu Nath were drawing water by means of parsian wheel. They were having share alongwith accused persons in the well for watering the fields. They used to draw water by means of parsian wheel; whereas accused persons used to draw water from the well by means of motor. On the date of incident, water was drawn by two parsian wheels. It was not possible to operate two parsian wheels with the presence of motor in the well. Thus the motor was taken out of the well and kept outside. The different sharers used to take water on the scheduled dates as per their agreement. The date of incident was the day scheduled for them to drawn the water. At that time, he was working in the field. His uncle Mohan Nath had arrived at the field at about 10.30 AM with food. At that time Shaker Nath was taking both. After half and hour, all the accused came running from the side of village. They were armed with lathies. They assaulted his father, his elder father Mangu Nath and uncle Mohan Nath and Shankar Nath. Balu Nath gave lathi blow on the head of his father Hazari Nath, on account of which he fell down. There was bleeding from his head. Raju Nath gave lathi blow on the head of Mohan Nath. Laxman Nath gave lathi blow on the head of Mangu Nath. All injured fell down on receiving the blows. He has also stated that Mangu Nath was exerting other accused persons. 8. PW-2 Mangu Nath is the brother of Hazari Nath. He has stated almost in the line of PW-1 Nand Nath. He has also stated that he alongwith deceased Hazari Nath were drawing water from the well by means of parsian wheel. While they were drawing water, accused persons arrived there, armed with lathies. Seeing them, he alongwith other brothers ran away from the well. However, there were chased. They were caught. He stated that Laxman Nath gave lathi blow on his head. Gang Nath struck injuries on the elbow. Accused Mangu Nath also gave lathi blow which struck on the left elbow of the hand. Seeing them, he alongwith other brothers ran away from the well. However, there were chased. They were caught. He stated that Laxman Nath gave lathi blow on his head. Gang Nath struck injuries on the elbow. Accused Mangu Nath also gave lathi blow which struck on the left elbow of the hand. It is also stated that Balu Nath gave lathi blow on the head of Hazari Nath. In cross-examination, nothing has been elicited to dis-credit the testimony of this witness. Similarly, PW-3 Mohan Nath has also narrated the incident in the same manner. The statement of other eye witnesses namely PW-6 Samundra Nath and PW-15 Shanker Nath are almost on the same line. Nothing has been pointed out to dis-credit the testimony of this witness. 9. A reading of the statements of the eye witnesses shows that statements are omnibus in nature. It appears that the cause of the incident was a trivial issue. When accused persons came to know that complainant party has taken the water from the well, they lost tamper and entered into a verbal altercation with the complainant party. The post mortem report shows that all the accused persons did not intend to commit the murder of Hazari Nath; otherwise he would not have sustained minor injuries like abrasions and bruises, it cannot be said that accused persons in any way have acted in cruel manner. The offence against the appellants does not travel beyond Section 304-II IPC except accused Mangu Nath. 10. A far as accused appellant Mangu Nath is concerned, his name does not fine place in the FIR. The witnesses have stated that Mangu Nath was standing at a short distance from the place of occurrence and that he was exerting other accused persons to inflict injuries to Hazari Nath and others. The alleged incident took place on 20.3.1993; whereas statements of eye witnesses were recorded on 23.3.93 and in that also, name of appellant Mangu Nath does not find place. In view of this, we do not consider it fate to uphold the conviction of Mangu Nath for the offence under Section 302/149 IPC. In view of this, he is acquitted of the offence under Section 302/149 IPC. 11. Consequently, this appeal is partly allowed. The conviction of appellants except Mangu Nath under Secs. 302 and 302/149 IPC is converted into Section 304-11/149 IPC. In view of this, he is acquitted of the offence under Section 302/149 IPC. 11. Consequently, this appeal is partly allowed. The conviction of appellants except Mangu Nath under Secs. 302 and 302/149 IPC is converted into Section 304-11/149 IPC. The appellants have already undergone the sentence of 7 years. The ends of justice would meet, if the sentence is reduced to the period already undergone. The conviction of appellants under Section 307/149 IPC is maintained. The appellants Raju Nath, Laxman Nath, Balu Nath, Gang Nath and Badu Nath are in jail. They be released forthwith, if not required in any other case. The appellants Mangu Nath is on bail. His bail bonds stand discharged.Appeal partly allowed. *******