JUDGMENT - VISHNU SAHAI, J.:---Through this appeal, the appellants challenge the judgment and order dated 1-8-1996 passed by the Additional Sessions Judge, Malegaon in Sessions Case No. 48 of 1994 whereby they have been convicted and sentenced in the manner stated hereinafter:--- (i) Under section 143 r/w section 149 I.P.C. to suffer 3 months R.I. and to pay a fine of Rs. 100/- each in default to suffer one month R.I.; (ii) Under section 147 r/w section 149 I.P.C. to suffer 1 year R.I. and a fine of Rs. 200/- each, in default to suffer R.I. for 2 months; (iii) Under section 302 r/w section 149 I.P.C. to suffer imprisonment for life and to pay a fine of Rs. 2000/- each in default to suffer 6 months R.I. In addition, the appellant-Asadbin has been convicted for offences punishable under section 148 r/w 149 I.P.C. and 307 I.P.C. On the former count, he has been sentenced to undergo 1½ years R.I. and to pay a fine of Rs. 500/- in default to undergo 3 months R.I. and on the latter, 7 years R.I. and to pay a fine of Rs. 1000/- in default to suffer R.I. for 3 months. The substantive sentences of the appellants have been ordered to run concurrently. 2. Shortly stated the prosecution case runs as under:--- The informant Sayeed Ahmed Mohammed Hanif P.W. 1 was the real brother of the deceased Rafiq Ahmed. They had a brother Nasir Ahmed who at the time of the incident had two shops called Indore Motor Parts and Deluxe Auto-Electricals, situated at Manmad square, Malegaon. The said shops were managed by the informant, his brother Nasir Ahmed and Abdul Majid Mohammed Hanif. They had employed one servant called Akhtar Khan Pathan P.W. 5. Near the shops, there was a garage called Baba Motor garage which belonged to the appellants, juvenile accused Sabirbin and Talibin. The said garage was engaged in repairs of vehicles of Tata make. On 16-2-1994, at about 4 p.m. one ambassador car came to Deluxe garage. Akhtar Pathan P.W. 5 was asked to locate the fault. The deceased Rafiq was not present at the garage at that time. While he was repairing the water pump of the car, co-accused Talib and Sabirbin accompanied by the appellants Khalikbin and Galibbin came. They started saying that they would repair the car. Akhtar Pathan P.W. 5 was asked to locate the fault. The deceased Rafiq was not present at the garage at that time. While he was repairing the water pump of the car, co-accused Talib and Sabirbin accompanied by the appellants Khalikbin and Galibbin came. They started saying that they would repair the car. There was an exchange of blows between Nasir and Majid on one hand and Talib on the other. The police arrived and picked all three of them. Thereafter, the deceased Rafiq came and Akhtar Pathan P.W. 5 disclosed as to what had happened to him. At about 6/6.30 p.m. the informant Sayeed came in the garage. On seeing Sayeed, the appellants Talib, Sabir and one unknown person started abusing them. Thereupon, the appellants along with Sabirbin and one unknown person came towards Deluxe garage. The appellant-Khalikbin and Sabir caught hold of the informant Sayeed. The unknown person and the appellant Galibbin caught hold of the informant's brother Rafiq Ahmed. In the meantime, the appellant-Asadbin took out a knife from his pocket and started inflicting blows on the person of Rafiq with the same and when the informant rushed to his brother's rescue, the appellant Asadbin dealt a knife blow on his stomach. On receiving the injuries. Rafiq fell down on the spot. Thereafter, the appellants and others ran away. Apart from Sayeed P.W. 1, this incident was seen by Babulal Mahajan P.W. 2 and Akhtar Pathan P.W. 5. The informant chased the appellants and others but, could not apprehend them. The informant hired a auto-rickshaw of one Sanjay Mohite P.W. 3 and on the same proceeded along with Rafiq to N.N. Wadia Hospital, Malegaon. 3. The evidence of Dr. Bharat Wagh P.W. 6 shows that on 16-2-1994, at 6.45 p.m. while he was working as Medical Officer at N.N. Wadia Hospital, Malegaon an injured who gave his name as Sayeed Mohammed Hanif and who gave history of assault came. On examining him, he found that he had a stab wound on left lumbar region on lateral aspect, 1 "in length at level of umbilicus. It was obliquely placed and penetrating in abdomen. In his substantive evidence, Dr. Wagh stated that the injury was fresh, grievous in nature and attributable to a hard and sharp weapon. Dr. On examining him, he found that he had a stab wound on left lumbar region on lateral aspect, 1 "in length at level of umbilicus. It was obliquely placed and penetrating in abdomen. In his substantive evidence, Dr. Wagh stated that the injury was fresh, grievous in nature and attributable to a hard and sharp weapon. Dr. Wagh also stated that the said injury was possible by a knife and had the victim not been treated, death was certain. At 7 p.m. Dr. Wagh examined Rafiq and found him to be dead. After examining Sayeed and Rafiq, Dr. Wagh informed Killa Police Station. 4. The evidence of P.S.I. Sharad Gavane P.W. 7 shows that on 16-2-1994 at 7.05 p.m. he was attached to P.S. Killa and received a telephonic call from Dr. Bharat Wagh of N.N. Wadia dispensary, Malegaon that one Rafiq and Sayeed were brought from Manmad-square Malegaon in a injured condition and Rafiq was already dead. Consequently, he rushed to N.N. Wadia dispensary and recorded the F.I.R. of Sayeed in the said hospital. 5. The autopsy on the corpse of the deceased Rafiq was conducted on 16-2-1994 at 8.45 p.m. by Dr. Wagh P.W. 6 who found on it the following ante mortem injuries:--- (i) Stab wound over chest, anteriorly "below mammary gland, vertically and obliquely placed on left side. Probe tried to pass, it was about 3½" in depth, and it was at the level of 7th intercostal space. (ii) Stab wound over chest on right side just below clavicle vertically placed 2 "in length ½" in depth. (iii) Stab wound over cervical region on left side ¾th in length vertically placed with superficial scratch at top of the wound deep at the lower end. ½" in depth tried with probe. On internal examination, Dr. Wagh found as under:--- (i) A penetrating wound in the chest wall in the 7th intercostal space. (ii) Pericardium: tear of pericardium anteriorly. (iii) Heart: Penetrating injury over anterior surface of heart leading to internal bleeding in thoracic cavity. In the opinion of Dr. Wagh, the deceased died due to shock and haemorrhage due to stabbing by a sharp cutting object and his injuries were attributable to Article No. 9 (knife). In his substantive statement, Dr. Wagh stated that injury No. 1 was individually sufficient in the ordinary course or nature to cause death. 6. In the opinion of Dr. Wagh, the deceased died due to shock and haemorrhage due to stabbing by a sharp cutting object and his injuries were attributable to Article No. 9 (knife). In his substantive statement, Dr. Wagh stated that injury No. 1 was individually sufficient in the ordinary course or nature to cause death. 6. The case was investigated in the usual manner by P.S.I. Sharad Gavne P.W. 7. After recording the F.I.R. he conducted the inquest over the dead body of Rafiq and since it was night time, he could not carry out the spot panchanama and deployed a constable to guard the place of the incident. On 17-2-1994, he visited the place of the incident and prepared the spot panchanama Exhibit 79, the genuineness of which has been admitted by the defence. He interrogated the witnesses other than witnesses Akhtar Pathan who was interrogated by him on 21-2-1994. On 18-2-1994, the appellant-Asadbin was arrested. He was putting on a blood-stained shirt which he seized under a panchanama Exhibit 30 in the presence of public panch. On 28-2-1994, during the course of interrogation, the appellant-Asadbin expressed his willingness to get the weapon of assault which he had concealed on the rear side of Maharashtra garage in one shrub recovered. Consequently, P.S.I. Gavne sent for public panchas, out of whom one namely Bhalchandra Jadhav P.W. 4 has been examined. He recorded the said willingness under a panchanama and thereafter along with the appellant Asadbin and the panchas proceeded in a jeep. The appellant asked the jeep to be stopped at Maharashtra garage. From beneath a shrub situated near the said garage, he took out a knife. The said knife had blood stains and was recovered under a panchanama. The blood stained shirt seized from the appellant-Asadbin the knife recovered on his pointing out and other articles were sent to the Chemical Analyst. On 2-6-1994, after completing the investigation, P.S.I. Gavne submitted the charge-sheet against the appellants and some others. 7. The case was committed to the Court of Sessions in the usual manner where the appellants were charged on a large number of counts to which they pleaded not guilty and claimed to be tried. During trial, in all the prosecution examined seven witnesses. Three of them namely Sayeed Hanif P.W. 1, Babulal Mahajan P.W. 2 and Akhtar Pathan P.W. 5 were examined as eye-witnesses. During trial, in all the prosecution examined seven witnesses. Three of them namely Sayeed Hanif P.W. 1, Babulal Mahajan P.W. 2 and Akhtar Pathan P.W. 5 were examined as eye-witnesses. The evidence in respect of recovery of knife recovered at the instance of the appellant-Asadbin was furnished by P.S.I. Gavne P.W. 7 and public panch Balchandra Jadhav P.W. 4. The learned trial Judge believed both the ocular account and the evidence relating to recovery of knife and convicted and sentenced the appellants in the manner stated in para 1 above. Hence, this appeal. 8. We have heard learned Counsel for the parties and perused the entire evidence on record. In our view, this appeal deserves to be partly allowed. So far as the involvement of the appellants in the incident is concerned, we have not even an iota of doubt that the same has been squarely established through the ocular evidence furnished by Sayeed Hanif P.W. 1, Babulal Mahajan P.W. 2 and Akhtar Pathan P.W. 5. The appellant-Asadbin's involvement is further established by the recovery of the blood stained knife on his pointing out. We now propose examining the said evidence. 8-A. We begin with the ocular account. In para 2 of our judgment, we have set out the prosecution story on the basis of the recitals emerging from the ocular account and consequently do not intend graphically reiterating the details. The ocular account shows that on account of a quarrel, between the informant and others, who owned two shops namely Indore Motor parts and Deluxe Auto-Electricals and the appellants and others who owned Baba Motor garage, on 16-2-1994 at 4.30 p.m., at 6 p.m. same day, the appellants Talib, Sabir and an unknown person came at the shop of the informant and started abusing him. Thereafter, the appellant-Khalikbin and Sabir caught hold of the informant and the appellant-Galib and an unknown person caught hold of Rafiq Ahmed. Then the appellant-Asadbin took out a knife from his pocket and started inflicting blows with the same, on the person of Rafiq. When the informant rushed to Rafiq's rescue, the appellant Asad inflicted a blow on his stomach. We have examined the said account furnished by the eye-witnesses and in our view, it inspires confidence. Then the appellant-Asadbin took out a knife from his pocket and started inflicting blows with the same, on the person of Rafiq. When the informant rushed to Rafiq's rescue, the appellant Asad inflicted a blow on his stomach. We have examined the said account furnished by the eye-witnesses and in our view, it inspires confidence. It is pertinent to mention that the medical evidence to which we have referred to earlier, shows presence of injuries attributable to the said knife (Article No. 9) on the person of the deceased Rafiq, and the informant Sayeed. It is also pertinent to mention that the place of the incident furnished by the eye-witnesses is corroborated by the circumstance that the Investigating Officer recovered blood therefrom. It is also pertinent to mention that the three eye-witnesses have explained their presence on the place of the incident, which was the shop of the informant. It should be borne in mind that the informant Sayeed and the deceased Rafiq were owners of the shop and their presence was hence, understandable and for the same reason, presence of their servant Akhtar Pathan also understandable. So far as Babulal Mahajan P.W. 2 is concerned, his presence on the place of the incident is also understandable because, he had a shop near Deluxe garage and Baba Garage which belonged to the informant and the deceased respectively. He stated that at 6.30 p.m. on the date of the incident, he heard a quarrel between the persons from Deluxe garage and Baba garage, consequently came out from the shop and saw the incident. 8B. Mr. Mundargi, learned Counsel for the appellants vehemently contended that the evidence of the eye-witnesses should not be believed as they have not explained the injuries suffered by the appellant Asadbin Chaus. He contended that the said appellant was examined on 18-2-1994 at 1.55 p.m. by Dr. Wagh P.W. 6 who found on his person the following injuries:--- (1) Superficial scratch mark over norsal surface of right index finger blood clot over scratch (2) C.L.W. over left lower limb antixiorly in middle third. Vertically placed about 1" in length. (3) Contusion over back in left scapular region ¼ in breadth. Mr. Mundargi urged that on the other hand, the defence in cross-examination of the injured Sayeed has furnished the manner in which the said injuries were sustained. Vertically placed about 1" in length. (3) Contusion over back in left scapular region ¼ in breadth. Mr. Mundargi urged that on the other hand, the defence in cross-examination of the injured Sayeed has furnished the manner in which the said injuries were sustained. He invited our attention to para 6 of the statement of Sayeed where the suggestion given to him is that at the time of the incident the appellant-Asadbin Chaus was alone at Baba garage and Sayeed and his brother Rafique (deceased) abused Asadbin and assaulted him. Sayeed rushed towards Asadbin to inflict a blow on his person by means of a half broken bottle and Rafiq also rushed towards Asadbin to assault him. At that time, an unknown person emerged there to save Asadbin and assaulted Sayeed and Rafiq. Mr. Mundargi urged that the said defence suggestion, though denied by Sayeed, appears to be plausible because, the panchanama of the place of the incident which was prepared on the following morning shows that a blood stained portion of a broken bottle was lying on the place of the incident. Mr. Mundargi urged that since the evidence of the Investigating Officer Gavne P.W. 7 shows that a constable was deployed to guard the place of the incident throughout the night. It was not possible for the accused persons to plant this half broken bottle to carve out the defence for themselves. We have examined the submission of Mr. Mundargi and we do not find any merit in it for reasons enumerated hereinafter:--- Firstly, it is pertinent to mention that the injuries of the appellant-Asadbin were proved during cross-examination of Dr. Wagh by the defence, it is also pertinent to mention that Dr. Wagh was not asked whether the said injuries could be caused by a half broken bottle. It is also pertinent to mention that neither in the injury report of the appellant-Asadbin (Exhibit 53) nor in his substantive statement, Dr. Wagh has deposed to about the manner in which the said injuries could be caused. Secondly, in our view, half broken glass bottle would not cause contused lacerated wound and contusion but, would cause either irregular shape lacerated wounds or incised wounds. Wagh has deposed to about the manner in which the said injuries could be caused. Secondly, in our view, half broken glass bottle would not cause contused lacerated wound and contusion but, would cause either irregular shape lacerated wounds or incised wounds. Thirdly, in our view, the said injuries are superficial and trivial and the defence has failed to establish on a pre-ponderance of probabilities that they were caused in the same incident in which the prosecution party received the injuries. In such a situation, bearing in mind that there is no cross F.I.R. from the side of the defence; the said case saw the light of the day for the first time when the informant Sayeed was examined in the trial Court, the said case was not pleaded by the appellant-Asadbin Chaus in his statement under section 313 Cri.P.C.; and no defence witness was examined to substantiate it, in our view, failure of the eye-witnesses to explain the injuries of the appellant Asadbin would not discredit their evidence. In this connection, it would be pertinent to refer to para 7 of the decision of the Supreme Court reported in A.I.R. 1977 Supreme Court page 2252 (Bhabha Nand Sarma and others v. State of Assam)1. It would be pertinent to extract the following lines from the said para:--- "In a case of this nature before an adverse inference is drawn against the prosecution for its alleged suppression or failure to explain the injuries on the person of an accused, it must be reasonably shown that in all probability the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused." In our view, in the said circumstances, nothing turns on the failure of the prosecution to explain them. 9. Mr. Mundargi, learned Counsel for the appellants strenuously urged that the story furnished by the eye-witnesses that the appellant-Galibbin caught hold of the deceased Rafiq while he was being assaulted by the appellant-Asadbin does not inspire confidence. 9. Mr. Mundargi, learned Counsel for the appellants strenuously urged that the story furnished by the eye-witnesses that the appellant-Galibbin caught hold of the deceased Rafiq while he was being assaulted by the appellant-Asadbin does not inspire confidence. He urged that P.W. 7 Babulal Mahajan has made no mention of it and Akhtar Pathan P.W. 6 who though made a mention of it should not be believed because, he was interrogated under section 161 Cri.P.C. five days after the incident i.e. on 21-2-1994 and is a interested witness in-as-much as he was in the employment of the informant Sayeed at the time of the incident. We have reflected over Mr. Mundargi's submission and we are constrained to observe that we do not find any merit in it. So far as the evidence of Babulal is concerned, his evidence shows that he was inside the shop when the quarrel took place between the persons of Baba garage and Deluxe garage and by the time he came out from the shop, the appellant-Asadbin had dealt blows to Rafiq with a knife. So far as the infirmities pointed out in the evidence of Akhtar Pathan P.W. 5 are concerned, the said infirmities are undoubtedly there but, in our view merely on account of them, the evidence of the said witness cannot be rejected. The circumstance that he was the servant of the informant Sayeed at the time of the incident would only make us examine his evidence with caution and not mechanically reject it. We have exercised that caution and find that it inspires confidence. As far as the belated interrogation of this witness is concerned, we find that no question has been put to the Investigating Officer as to why there was delay in interrogating him. At any rate, if the Investigating Officer was lax in investigation, then benefit cannot accrue to the accused. The Supreme Court in the oft quoted case of (Chandrakant Laxman, Appellant v. State of Maharashtra, respondent)2, reported in A.I.R. 1974 Supreme Court page 220, has held in para 10 that for the remissness of the investigating agency, the ocular account, provided it inspires confidence cannot be brushed aside. At any rate, when Mr. The Supreme Court in the oft quoted case of (Chandrakant Laxman, Appellant v. State of Maharashtra, respondent)2, reported in A.I.R. 1974 Supreme Court page 220, has held in para 10 that for the remissness of the investigating agency, the ocular account, provided it inspires confidence cannot be brushed aside. At any rate, when Mr. Mundargi canvassed this submission about the role of the appellant-Galibbin catching hold of the deceased while the appellant-Asadbin was assaulting him with a knife, he was oblivious to two circumstances:--- Firstly in the F.I.R. of the incident, which was lodged immediately after the incident by the informant Sayeed. There is a clear and categorical mention that the appellant-Galibbin caught hold of the deceased Rafiq while the appellant-Asadbin was assaulting him with a knife. Secondly, the informant being a injured witness was the best witness of the incident and he has clearly stated that appellant-Galibbin had caught hold of the deceased while appellant-Asadbin assaulted him. 10. We now come to the evidence of recovery of the blood stained knife on the pointing out of the appellant-Asadbin. In the earlier part of our judgment we have furnished the details in respect of recovery and consequently we do not want to burden our judgment by reiterating it. As seen earlier, the said recovery was made by the appellant-Asadbin from beneath a shrub. We have also earlier seen that the said knife was stained with blood. It is pertinent to mention that although P.S.I. Gavne P.W. 7 and public panch Bhalchandra Jadhav P.W. 4 in whose presence the knife was recovered, were cross-examined at length but, nothing could be extracted therefrom which could render this recovery doubtful. Neither of these witness had any rancour against him. In our view, unless the said recovery was made on the pointing out of the appellant-Asadbin, they would not have foisted it upon him. It is pertinent to point out that the said knife was sent to the Chemical Analyst who found on it human blood. In this connection, it may be mentioned that the Supreme Court in para 10 of the oft. quoted decision of (Surendra @ Khujji v. State of M.P.)3, reported in A.I.R. 1991 S.C. page 1853 has held that presence of human blood on a recovered article is a incriminating evidence. 11. In this connection, it may be mentioned that the Supreme Court in para 10 of the oft. quoted decision of (Surendra @ Khujji v. State of M.P.)3, reported in A.I.R. 1991 S.C. page 1853 has held that presence of human blood on a recovered article is a incriminating evidence. 11. For the said reasons, in our view, the involvement of the appellants in the incident has been established beyond all shadow of doubt. 12. Mr. Mundargi strenuously urged that the trial Judge erred in convicting all the appellants for offences punishable under sections 143 r/w 149 I.P.C. and 147 r.w. 149 I.P.C. and the appellant-Asadbin for the offence under section 148 r/w 149 I.P.C. He urged that only an offence under section 143 I.P.C. and 147 I.P.C. would be made out against the appellants and one under section 148 I.P.C. would be made out against the appellant-Asadbin. Mr. Mundargi further urged that the learned Judge erred in convicting the appellant-Khalikbin Chaus and Galibbin Chaus for the offence under section 302 r/w 149 I.P.C. He urged that against the appellant-Khalikbin only an offence under section 143 I.P.C. and 147 I.P.C. would be made out and against the appellant-Galibbin Chaus, one under sections 143 I.P.C., 147 I.P.C. and 304(2) I.P.C. would be made out. Mr. Dhakephalkar, learned Counsel for the appellant No. 1 (Asadbin) strenuously urged that even against appellant-Asadbin, only an offence punishable under sections 143 I.P.C., 147 I.P.C., 148 I.P.C., 307 I.P.C. and 304(2) I.P.C. would be made out. He contended that no offence under section 302 r/w 149 I.P.C. would be made out against the appellant Asadbin. We have reflected over the said submission. We find merit in Mr. Mundargi's submission but, are constrained to observe that we find Mr. Dhakephalkar's submission that an offence under section 304(ii) I.P.C. is made out against appellant-Asadbin to be devoid of substance. In our view, an offence under section 302 I.P.C. simplicitor would be made out against him. In the instant case, the evidence of the eye-witnesses shows that the appellants who were connected with Baba garage had formed an unlawful assembly with the object of abusing the informant and others who owned Deluxe garage because of the incident which had taken place 1½ hours earlier, referred to above. In the instant case, the evidence of the eye-witnesses shows that the appellants who were connected with Baba garage had formed an unlawful assembly with the object of abusing the informant and others who owned Deluxe garage because of the incident which had taken place 1½ hours earlier, referred to above. Their evidence further shows that at the time of the incident, it was not in the knowledge of any of the appellants that any of them was carrying a weapon. The evidence of the eye-witnesses shows that it was the appellant-Asadbin who after abuses had been hurled took out a knife from the pocket of his pant and while the appellant-Galibbin was catching hold of the deceased Rafiq, inflicted three to four knife blows on him and when the informant Sayeed ran to the rescue of Rafiq, the appellant-Asadbin inflicted a knife blow on him. In such a factual matrix, the assault on Rafiq and Sayeed was beyond the common object of unlawful assembly or the knowledge that they could be assaulted. As mentioned earlier the common object was of hurling abuses on informant and others. But, since the exact words used in the abuses have not been furnished by the eye-witnesses, the appellants cannot be convicted for the offence under section 504 r/w 149 I.P.C. On the facts of this case it cannot be said that the appellants, other than Asadbin, had the knowledge that Asadbin was carrying a knife with which he could assault Rafiq or Sayeed. Hence, in our view the appellant-Khalikbin would only be liable for the offence under section 143 I.P.C. and 147 I.P.C. and the appellant Galibbin would only be liable for the offence punishable under section 143 I.P.C., 147 I.P.C. and 304(2) I.P.C. In our view, Khalikbin and Galibbin would be liable for the offence under section 143 I.P.C. because, they were members of an unlawful assembly and under section 147 I.P.C. because they committed the offence of rioting. We are also of the view that when the appellant-Galibbin caught hold of the deceased Rafiq, it would be reasonable to infer that he did not know that appellant-Asadbin intended inflicting fatal injuries on him in terms of section 300 I.P.C. But, it would be reasonable to infer that he had the knowledge of his death contemplated by section 304(2) I.P.C. Our view is fortified by the decision of the Supreme Court rendered in the case of Bhabha Nanda Sarma and others, appellants v. State of Assam, respondent, reported in A.I.R. 1977 Supreme Court page 2252. In that case, three persons armed with lathi, dolibara (wooden hammer) and iron rod had been convicted by the trial Court for the offence punishable under section 302 r/w 34 I.P.C. and the High Court had confirmed their convictions on the said count. All of them are said to have chased the deceased. Thereafter, one of them, Bhaba Nanda Sarma, caught hold of the deceased from behind and Fanidhar who was armed with a dolibara inflicted a blow on the head and Harengra who was armed with a iron rod inflicted a blow on the head and other parts of body. In the said factual matrix, the Supreme Court took the view that when the appellant-Bhaba Nanda Sarma had caught hold of the deceased, he did not share the common intention of the other two accused to murder the deceased but, had the knowledge of his death contemplated by section 304(2) I.P.C. The said reasoning equally applies to the facts of this case. 13. We now come to the case of the appellant-Asadbin. It is crystal clear that the said appellant would be liable for the offence punishable under sections 143 I.P.C., 147 I.P.C., 148 I.P.C., and 307 I.P.C. He would be liable for the offence under section 143 I.P.C. because, he was a member of unlawful assembly; for the offence under section 147 I.P.C. because he committed the offence of rioting; for the offence under section 148 I.P.C. because he committed the offence of rioting armed with a deadly weapon namely knife; and for the offence under section 307 I.P.C. because he inflicted injuries with a knife on the person of the injured Sayeed and the evidence of Dr. Wagh P.W. 6 who examined Sayeed shows that Sayeed had suffered a stab wound on left lumbar region on lateral aspect 1" in length penetrating towards abdomen and had he not been treated, death would have been certain. 14. We however do not agree with Mr. Dhakephalkar's submission that against appellant-Asadbin also only an offence under section 304(2) I.P.C. would be made out. In our view, the act of the said appellant would be squarely covered by Clause Thirdly of section 300 I.P.C. the breach of which is punishable under section 302 I.P.C. To invoke the said clause, two essentials have to be established:--- (a) there should be intention to inflict the injuries which were inflicted in contradistinction to their being accidential; and (b) the injuries inflicted should be sufficient in the ordinary course of nature to cause death. Both the elements are satisfied in the instant case. The evidence of the eye-witnesses, to which we have referred to earlier, shows that intentionally the appellant-Asadbin inflicted injuries on vital parts of the person of Rafiq. The evidence of the Autopsy Surgeon Dr. Wagh P.W. 6 shows that injury No. 1 was individually sufficient in the ordinary course of nature to cause death. Considering the internal damage which accompanied the ante mortem injuries suffered by the deceased, to which we have referred to earlier, we endorse the opinion and the evidence of Dr. Wagh P.W. 6. Hence, in our view, an offence under section 302 I.P.C. simplicitor would be made out against the said appellant. We feel that no prejudice would be caused to him if we convict him under the said section because in the alternative, the learned Judge has charged him under section 302 I.P.C. simplicitor. 15. The only question which remains is the quantum of sentence to be awarded to the appellants. So far as the appellant-Khalikbin Ahmedbin Chaus is concerned, in our view for offences punishable under sections 143 I.P.C. and 147 I.P.C. a fine of Rs. 500/- on each of the two counts and six months R.I. in default on each of the two counts would meet the ends of justice. Coming to the case of the appellant-Galibbin Ahmed Chaus, in our view so far as offences under sections 143 I.P.C. and 147 I.P.C. are concerned, he should be awarded the same sentence as the appellant-Khalikbin Ahmedbin Chaus. Coming to the case of the appellant-Galibbin Ahmed Chaus, in our view so far as offences under sections 143 I.P.C. and 147 I.P.C. are concerned, he should be awarded the same sentence as the appellant-Khalikbin Ahmedbin Chaus. So far as the offence punishable under section 304(2) I.P.C. is concerned, in our view, a sentence of five years R.I. would meet the ends of justice. So far as the appellant-Asadbin Isa Chaus is concerned, in our view, for offences punishable under sections 143 I.P.C. and 147 I.P.C., he should be awarded same sentence as appellant-Khalikbin Ahmedbin Chaus. So far as the offence punishable under section 148 I.P.C. is concerned he should be awarded a sentence of 1½ years R.I. and a fine of Rs. 500/-, in default to under to three months R.I. So far as the offence under section 307 I.P.C. is concerned, in our view, the sentence awarded to him by the trial Court is not excessive and should be confirmed. So far as the offence under section 302 I.P.C. is concerned, he should be sentenced to undergo imprisonment for life. 16. Before parting with the judgment, we would like to point out that the learned trial Judge greviously erred in convicting all the appellants for offences under section 143 read with 149 I.P.C. and 147 read with 149 I.P.C. and appellant-Asadbin for the offence under section 148 read with 149 I.P.C. It should be borne in mind that a perusal of the language of sections 143 I.P.C., 147 I.P.C. and 148 I.P.C. would show that the liability for the said offences is individual and not vicarious. Hence, the learned trial Judge could not have convicted for the said offences, with the aid of section 149 I.P.C. 17. IN THE RESULT:--- This appeal is partly allowed. We set aside the conviction and sentence of the appellant-Khalikbin Ahmedbin Chaus on all the three counts namely 143 r/w 149 I.P.C., 147 r/w 149 I.P.C. and 302 r/w 149 I.P.C. In case he has paid the fine thereunder, it shall stand refunded to him. We however, find him guilty for offences punishable under sections 143 I.P.C. and 147 I.P.C. We sentence him to pay a fine of Rs. 500/- on each of the two counts and in default to undergo six months R.I. on each of the two counts. He is on bail. We however, find him guilty for offences punishable under sections 143 I.P.C. and 147 I.P.C. We sentence him to pay a fine of Rs. 500/- on each of the two counts and in default to undergo six months R.I. on each of the two counts. He is on bail. In case he pays the said fine within six months from today, his bail bonds shall stand cancelled and sureties discharged. We set aside the conviction and sentence of the appellant-Galibbin Ahmed Chaus on all the three counts, namely under section 143 r/w 149 I.P.C., 147 r/w 149 I.P.C. and 302 r/w 149 I.P.C. In case he has paid the fine, it shall stand refunded to him. Instead we convict him for the offence punishable under sections 143 I.P.C., 147 I.P.C. and 304(2) I.P.C. We Award him the same sentence as appellant-Khalikbin Ahmedbin Chaus for the offences under section 143 I.P.C. and 147 I.P.C. For the offence under section 304(2) I.P.C. We direct him to suffer a sentence of five years R.I. He is on bail and shall be taken into custody forthwith to serve out the sentence. We set aside the convictions and sentences of the appellant-Asadbin Isa Chaus for the offences punishable under sections 143 r/w 149 I.P.C., 147 r/w 149 I.P.C., 148 r/w 149 I.P.C. and 302 r/w 149 I.P.C. In case he has paid the fine thereunder, it shall stand refunded to him. We instead find him guilty for the offences punishable under sections 143 I.P.C., 147 I.P.C., 148 I.P.C. and 302 I.P.C. For the offence punishable under section 143 I.P.C. and 147 I.P.C. We Award him the same sentence as appellant-Khalikbin Ahmedbin Chaus. For offence punishable under section 148 I.P.C. We sentence him to undergo 1½ years R.I. and to pay a fine of Rs. 500/- in default to undergo three months R.I. For the offence under section 302 I.P.C. we sentence him to undergo imprisonment for life and to pay a fine of Rs. 2000/- in default to undergo six months R.I. We confirm his conviction and sentence for the offence under section 307 I.P.C. The substantive sentences of the appellant-Asadbin Isa Chaus on all the counts shall run concurrently. He is in jail and shall serve out the sentence. Appeal partly allowed. -----