JUDGMENT 1. - The abovenamed accused appellants have preferred this appeal against the judgment and order dated 27.8.1982 passed by the learned Sessions Judge, Pratapgarh in Sessions Case No. 29/81 by which he convicted and sentenced the accused appellants in the following manner:- Name of accused. appellants Convicted under Section Sentence awarded 1. Bhogji 2. Doolji 304 Part-II IPC instead of 302 IPC Five Years' R.I. and a fine of Rs. 250/-, in default of payment of fine, 3 months R.I. 147 IPC 3 Months R.I. 323/149 IPC 3 Months R.I. 3. Narji 304 Part-II r/w Five Years R.I. and a fine of Rs. 250/-, in default of payment of fine, 3 Months R.I. 4. Hurji 149 IPC 3 Months R.I. 5. Mangoo 147 IPC 3 Months R.I. 323/149 IPC All the sentences were ordered to run concurrently 2. It arises in the following circumstances:- PW 1 Bheemji lodged an oral report Ex.P/1 at the Police station Salamgarh, District Chittorgarh on 18.1.1981 stating inter-alia that on 18.1.1981, PW 1 Bheemji along with his mother PW 2 Mst. Gendi, his father Amra (hereinafter referred to as deceased), his brother Kamji, PW 4 and Babaal. PW 5 went to village Dalot in a fare. After the fare was over, when they were coming they stopped near the hotel of Ramu Teli. When they were preparing to go back to their village, accused persons Narji, Doolji, Bhogji, Hurji, and Mangoo having lathies in their hands came there. At that time, accused appellant Mangoo was also having a farsi of wood. Accused appellants told that since they have filed a civil suit against them, therefore, they would beat them and, thereafter, they all beat them. Deceased Amra received head injuries and other persons also received injuries. Deceased Amra was not in a position to speak. At that time, Nagji. PW 3 was also there. On this report, the police registered a case under section 147/307 IPC etc. and started investigation. Deceased Amra died on 21.1.1981. Thereafter, the case was converted into 302 IPC. The post-mortem of the dead body of the deceased Amra was conducted and the post mortem report is Ex.P/8. Before post-mortem, deceased Amra was got medically examined and his injury report is Ex.P/11. The injured persons were also medically examined. The injury report of PW 5 Babaal is Ex.P/16, injury report of PW 2 Mst. The post-mortem of the dead body of the deceased Amra was conducted and the post mortem report is Ex.P/8. Before post-mortem, deceased Amra was got medically examined and his injury report is Ex.P/11. The injured persons were also medically examined. The injury report of PW 5 Babaal is Ex.P/16, injury report of PW 2 Mst. Gendi is Ex.P/17 and injury report of PW 4 Kamji is Ex.P/18. After usual investigation, police submitted challan under sections 302, 147, 148, 149 and 323 IPC against the accused appellants before the Court of Magistrate and, thereafter the case was committed to the Court of Session.The learned Sessions Judge, vide order dated 29.7.1981 framed charges against the accused appellants for the offence under sections 302-323-147 & 302-323/149 IPC. The charges were read over and explained to the accused appellants. They pleaded not guilty and claimed trial.In support of its case, the prosecution examined as many as 13 witnesses and produced some documents and, thereafter, statements of accused appellants under section 313 Cr.P.C. were recorded. One witness was produced in defence. The accused appellants also produced some defence documents including their injury reports.Thereafter, the learned Sessions Judge, after recording evidence and conclusion of evidence, vide his judgment and order dated 27.8.1982 convicted and sentenced the accused appellants in the manner as stated above holding inter-alia:- 1.That the death of the deceased Amra was homicidal. 2. That no right of private defence is available to the accused appellants and the injuries which were found on the person of accused appellants, were of simple nature. 3. That the offence under section 304 Part II IPC is proved beyond reasonable doubt against accused appellants Doolji and Bhogji, while offence under section 304 Part II r/w 149 IPC is proved against accused appellants Narji, Mangoo and Hurji. 4. That the prosecution has proved offence under section 323 r/w 149 IPC against all accused appellants. 5. That charge under section 147 IPC also stands proved against all the accused appellants. Against the said judgment and order dated 27.8.1982 passed by the learned Sessions Judge. Pratapgarh, the accused appellants have preferred this appeal. Note:- During the pendency of this appeal, two accused appellants No. 1 Narji and No. 2 Doolji have died and, their appeal stands abated as per the order of this Court dated 30.3.2000. 3. Against the said judgment and order dated 27.8.1982 passed by the learned Sessions Judge. Pratapgarh, the accused appellants have preferred this appeal. Note:- During the pendency of this appeal, two accused appellants No. 1 Narji and No. 2 Doolji have died and, their appeal stands abated as per the order of this Court dated 30.3.2000. 3. In this appeal, the learned counsel for the accused appellants has made the following submissions:- 1. That the learned Sessions Judge has acted illegally in not taking into considerations the injuries received by accused appellants in the same incident and these injuries have not been explained by the witnesses of the prosecution and thus, the case of the prosecution should not be accepted. 2. That the learned Sessions Judge has further committed illegality in convicting the accused appellants Doolji and Bhogji for the offence under section 304 Part II IPC, as the prosecution witnesses have contradicted with each other on the point as to who has caused injury to the deceased Amra. 3. That the learned Sessions Judge had further committed illegality in convicting other three accused appellants, namely, Narji, Hoorji and Mangoo for the offence under section 304 Part II read with 149 IPC. 4. That the learned Sessions Judge has wrongly convicted the accused appellants with the aid of Section 149 IPC, as there was no unlawful assembly, the object of which, was to kill deceased Amra. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order of the learned Sessions Judge. 5. I have heard the learned counsel for the accused appellants and the learned public prosecutor and perused the record of the case. 6. Before proceeding further and to appreciate the contentions raised by the learned counsel for the accused appellants, it would be worthwhile to discuss here the medical evidence produced by the prosecution in this case. 7. The injury report of the deceased Amra is Ex.13/11, for that, statement of Dr. Mahesh Kumar, PW 12 may be referred to. 8. On 18.1.1981, PW 12 Dr. Mahesh Kumar being the Medical Jurist of General Hospital, Pratapgarh, examined deceased Amra and found the following injuries on his body:- "1. The lacerated wound 3/4" x 1/4" x bone deep Lt. Parietal region. Simple by blunt object. 2. Lacerated wound fracture of underlying bone 3/4 1/1 1/2 " x 1/4 " x bone deep Lt. Mahesh Kumar being the Medical Jurist of General Hospital, Pratapgarh, examined deceased Amra and found the following injuries on his body:- "1. The lacerated wound 3/4" x 1/4" x bone deep Lt. Parietal region. Simple by blunt object. 2. Lacerated wound fracture of underlying bone 3/4 1/1 1/2 " x 1/4 " x bone deep Lt. Parietal region 1'' behind injury No. (1) by blunt object. 3. Haematoma 2" x 2" Rt. frontal region, by blunt object. 4. Haematoma 4" x 3" Left frontal-parietal & temporal region. by blunt object. 5. Abrasion 1/2 " x 1/2 '' over left knee Simple by blunt object." He has proved the injury report Ex.P/11. He also took the X-rays of the head injury of the deceased Amra and found injury No. 2, which is on the head, to be grevious one and he has also proved the X-ray report Ex.P/12, which shows fracture of left parietal bone. 9. Thus, it is amply proved from the statement of Dr. Mahesh Kumar, PW 12 that deceased Amra had five injuries and out of these five injuries, injuries Nos. 1 to 4 were on the head and injury No. 2 was grevious in nature. 10. The deceased Amra, who was admitted in the hospital on 19.1.1981 being in the state of unconscious, died on 21.1.1981. PW 8 Dr. Om Prakash conducted the post mortem of the body of the deceased and the cause of death given by Dr. Om Prakash, PW 8 in the post mortem report Ex.P/8 is as follows:- `'In my opinion the deceased died due to intra cranial haemorrhage with compound communated fracture on left side of skull (Head Injury)." PW 8 Dr. Om Prakash has proved the post-mortem report Ex.P/8. 11. Thus, from Ex.P/8, it appears that the cause of death of deceased Amra is head injury and, therefore, his death was homicidal in nature and he had received many injuries on his head. 12. Before proceeding further, injuries of other injured witnesses should also be mentioned here and for that again. statement of PW 12 Dr. Mahesh Kumar has to be referred to. 13. On 18.1.1981, PW 12 Dr. Mahesh Kumar examined PW 5 Babaal and found following injuries on his person:- "(1) Painful `swelling 21/2" x 11/2" over dorsal of Pt. Parnarm just below elbow Simple by blunt object. (2) Abrasion 1/4" x 1/10 over dorsal of Rt. hand. statement of PW 12 Dr. Mahesh Kumar has to be referred to. 13. On 18.1.1981, PW 12 Dr. Mahesh Kumar examined PW 5 Babaal and found following injuries on his person:- "(1) Painful `swelling 21/2" x 11/2" over dorsal of Pt. Parnarm just below elbow Simple by blunt object. (2) Abrasion 1/4" x 1/10 over dorsal of Rt. hand. Simple by blunt object. He has proved the injury report Ex.P/16. 14. Thus, from the injury report Ex.P/16, it appears that PW Babaal has received two injuries of simple nature by blunt object. 15. Similarly, on the same day, PW 12 Dr. Mahesh Kumar examined PW 2 Smt. Gendi and found the following injury on her person:- "Lacerated wound 1/4" x 1/4" x 1/4" terminal phalanx of Rt. ring finger Simple by blunt object." He has proved the injury report Ex.P/17. 16. Thus, from the injury report Ex.P/17, it appears that PW 2 Smt. Gendi has received on injury of simple nature by blunt object. 17. On the same day, PW 12 Dr. Mahesh Kumar examined PW 4 Kamji and found the following injuries on his person:- 1. Abrasion 1/2" x 1/4" over back of Rt. forearm. Simple by blunt object. 2. Haematoma 2" x 11/2" lower third over left frontal region. Simple by blunt object. 3. Abrasion 1" x 1/4" over injury No. 2 Simple by blunt object. 4. Abrasion 1/4" x 1/4" over middle of Rt. Chin Simple by blunt object. 5. Abrasion 1/2" x 1/4" 2" over injury No. 4 Simple by blunt object. 6. Abrasion 11/2" x 1/4" Over Rt. Chin lower third. Simple by blunt object. 7. Abrasion 3" x 1" Middle of Rt. back. Simple by blunt object." He has proved the injury report Ex.P/18. 18. Thus, from the injury report Ex.P/18, it appears that PW 4 Kamji has received seven simple injuries by blunt object. 19. On the same day, PW 12 Dr. Mahesh Kumar examined PW 1 Bheemji and found the following injuries on his person:- 1. Lacerated wound 1/2" x ⅛" x ⅛" over proximal inter phalageal jt. on rt little finger (dorsum) Simple by blunt object. 2. Lacerated wound 1" x 1/2" x ⅛" over distal interphalageal jt. On rt little finger dorsum & medial aspect. Simple by blunt object. 3. Haematoma 11/2" x 1" over left frontal region. Simple by blunt object. He has proved the injury report Ex.P/3. 20. on rt little finger (dorsum) Simple by blunt object. 2. Lacerated wound 1" x 1/2" x ⅛" over distal interphalageal jt. On rt little finger dorsum & medial aspect. Simple by blunt object. 3. Haematoma 11/2" x 1" over left frontal region. Simple by blunt object. He has proved the injury report Ex.P/3. 20. Thus, from the injury report Ex.P 13, it appears that PW 1 Bheemji has received three injuries of simple nature by blunt object. 21. Before proceeding further, the injuries of the accused appellants should also be mentioned here. 22. To prove the injuries on the person of the accused appellants. DW 1 Dr. Mahesh Chandra has been examined on behalf of the accused appellants. He states that on 20.1.1981, he examined accused appellants and found following injuries on their person:-Accused Appellant-Dulji (Now Died) 1. Lacerated wound 1" x 1/4" x 1/4" on central of the scalp. 2. Swelling 1" x 1" on left forearm. 3. Abrasion 1/2" x 1/2" on the middle of left leg. All injuries were simple and caused by blunt object." His injury report is Ex.D15.Accused Appellant-Hurji 1. Lacerated wound 1" x 1/2" x 1/4" on left parietal region of the scalp. 2. Bruise 2" x 2" on right scapular region. Both injuries were simple and caused by blunt object. His injury report is Ex.D/6.Accused Appellant-Mangu 1. Swelling x 1" on middle of right leg. 2. Lacerated wound 1/2" x 1/4" x 1/4" on injury No. 1. Both the injuries were simple and caused by blunt object.His injury report is Ex.D/7.Accused Appellant-Narji (Now Died)Contusion Black eyes (Both eyes) 11/2' x 1'' Rt. side of Forehead Grevious by blunt object.His injury report is Ex.D/8.Accused Appellant-Bhogji 1. Lacerated wound 1/2" x 1/4" x 1/4" middle and dorsal surface of left index finger: 2. Swelling x 1/2" on right parietal region of scalp. Injury No. 1 was simple by blunt object and injury No. 2 was grevious in nature. His injury report is Ex.D/12 and X-ray report is Ex. D/13." Note: -What would be the result of these injuries on the person of the accused appellants would be discussed later on.Case of Prosecution for the Offence Under section 147 & 149 IPC 23. Injury No. 1 was simple by blunt object and injury No. 2 was grevious in nature. His injury report is Ex.D/12 and X-ray report is Ex. D/13." Note: -What would be the result of these injuries on the person of the accused appellants would be discussed later on.Case of Prosecution for the Offence Under section 147 & 149 IPC 23. The first essential element of Section 149 IPC is the commission of an offence by any member of an unlawful assembly and the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. 24. In order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. 25. For application of Section 149 IPC, prosecution has to prove presence and participation of each one of the accused in an unlawful assembly. Mere presence is not enough. 26. In the present case, PW 1 Bheemji has admitted in his cross examination that accused Mangoo was standing there and he did not cause any injury to him. This shows that each and every accused did not take part in the incident. Similar is the statements of PW 2. Mst. Gendi, PW 3 Nagji, PW 4 Kamji and PW 5 Babaal. Mere presence of accused Mangoo does not make him member of assembly and on the other hand, he has received injuries on his person. This shows that there was no assembly consisting of five person. Further, since all the five accused appellants were injured, therefore, it cannot be said that whatever they did they did after forming an unlawful assembly and thus, the charge for the offence under section 147 IPC cannot be said to have been proved beyond reasonable doubt against accused appellants and hence, they are entitled to acquittal of the charge under section 147 IPC and the findings of the learned Sessions Judge in this respect are liable to be set aside. 27. 27. The next point for consideration is as to what would be the effect if charge under section 147 IPC goes off. 28. The first would be that nobody would be convicted with the aid of Section 149 IPC. Thus, accused appellants Nap, Hoorji and Mangoo, who were convicted under section 304 Part II with the aid of Section 149 IPC are liable to be acquitted of the said charge and similarly, all accused appellants, who were convicted under section 323/149 IPC are liable to be acquitted of the said charge.Now, the case of accused appellants Doolji and Bhogji, who were convicted under section 304 Part II IPC 29. On this point, the case of the learned counsel for the accused appellant is that accused appellant Doolji has died and evidence of the prosecution is that injuries received by deceased Amra on the head were caused by accused appellant Doolji and so far as the accused appellant Bhogji is concerned, he did not give any injury on the head of the deceased and there is evidence that he gave blow on his leg and thus, he cannot be convicted under section 304 Part II IPC. 30. In this case, PW 1, Bheemji, PW 2 Smt. Gendi, PW 4 Kamji and PW 5 Babaal are the injured witnesses and their presence on the spot cannot be doubted. 31. PW 1 Bheemji states in his statement that accused appellant Bhogji gave a lathi blow on the head of deceased Amra and accused appellant Doolji also gave lathi blow on the head of the deceased Amra. Deceased Amra was not beaten by accused Hurji and Mangoo. In his cross examination, he has admitted that he was first beaten by accused Bhogji and he gave blow on back and, thereafter, Doolji gave blow on his forehead and no other accused gave any blow on his forehead. 32. PW 2 Smt. Gendi states that accused Bhogji gave blow on the forehead of the deceased Amra and Doolji also beat him with lathi on the forehead. 33. PW 3 Nagji states that accused Bhogji gave a lathi blow on his back and thereafter, accused Doolji gave blow on his head. 34. PW 4 Kamji states that accused Bhogji gave blow on the back of deceased Amra. 35. 33. PW 3 Nagji states that accused Bhogji gave a lathi blow on his back and thereafter, accused Doolji gave blow on his head. 34. PW 4 Kamji states that accused Bhogji gave blow on the back of deceased Amra. 35. PW 5 Babaal states that Bhogji gave blow on the back of the deceased and Doolji gave blow on the head of the deceased Amra. 36. Thus, there is a consistent evidence in this case that both accused Bhogji and Doolji gave blows on the person of deceased Amra and as stated earlier, the deceased Amra had five injuries and out of these five injuries, injuries Nos. 1 to 4 were on the head and injury No. 5 was on the left knee. Thereafter, it is amply proved by the prosecution that accused Bhogji and Doolji beat deceased Amra and it is wrong to say that head injuries which are four in numbers were only caused by accused appellant Doolji and not by accused appellant Bhogji. 37. Thus, it is held that both accused appellants Bhogji and Doolji caused injuries on the body of the deceased Amra including head injuries. 38. Since it is held that both accused appellants caused injuries to deceased Amra, it is not clear which injury was caused by which accused. In this respect, it may be stated here that both accused appellants were charged under section 302 and alternatively 302/149 IPC. In this case, charge under section 149 IPC has not been held to be proved against these two accused appellants Bhogji and Doolji. The learned Sessions Judge convicted these accused appellants under section 304 Part II IPC alone and not with the aid of Section 149 IPC, though the learned Sessions Judge had come to the conclusion that charge under section 147 IPC was proved against all accused appellants and that is why he convicted rest three accused under section 304 Part II with the aid of Section 149 IPC. This Court has come to the conclusion that charge under section 149 IPC has not been proved beyond reasonable doubt and thus, no accused appellant could be convicted to with the aid of Section 149 IPC. 39. This Court has come to the conclusion that charge under section 149 IPC has not been proved beyond reasonable doubt and thus, no accused appellant could be convicted to with the aid of Section 149 IPC. 39. The next point that arises for consideration is whether these two accused appellants, namely, Bhogji and Doolji can be convicted under section 304 Part II IPC with the aid of Section 34 IPC or not in a case where specific offence under section 149 IPC is not proved and if they can be convicted under section 304 Part II IPC with the aid of Section 34 IPC, then, the question as to which injury was caused by which accused becomes irrelevant. 40. To understand whether in the present case, Section 34 IPC is applicable or not, it may be stated that Section 34 IPC speaks of principle of joint liability. The Hon'ble Supreme Court had an occasion to say something about Section 34 IPC in Pandurang v. State of Hyderabad ( AIR 1955 SC 216 ) , where the following principle was laid down:- "Now in the case of Section 34 we think it is well established that a common intention pre supposes prior concern. It requires a pre arranged plan because before a man can vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them. Accordingly, there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a prearranged plan." 41. Before a person can be convicted under section 34 IPC, the prosecution has to establish the following two points:- "(1) There was common intention in the sense of a pre-arranged plan between the two; and (2) The person sought to be so held liable had participated in some manner in the act constituting the offence. Unless common intention and participation are both present, this section cannot apply. 42. Unless common intention and participation are both present, this section cannot apply. 42. It may be stated here that Section 34 IPC does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. It is true that in order to convict persons vicariously liable under section 34 it is not necessary to as prove that each and every one of them had indulged in overt acts. Ever so, there must be material to show that the overt act or acts of one or more of the accused was or were done in furtherance of the common intention of all the accused. The common intention is to be inferred from the circumstances, particularly the part played by the accused and the surrounding so circumstance namely, nature of the weapon used and the injury inflicted as well as the meeting of the minds among the accused who are being held instructively liable. 43. In order to attract Section 34 IPC, it is not sufficient to prove that each of the participating culprits had the same intention to commit a certain act. What is the requisite ingredient of section 34 is that each must share the intention of the other, when the common intention is established, it is irrelevant who gave the vital blow. 44. It is not necessary that a pre-arranged plan must exist and such consensus can be developed at the spot. 45. Looking to the above principles of law, in the present case, there is ample evidence that both accused appellants Bhogji and Doolji beat deceased Amra with danda and caused injuries which resulted in his death. Therefore, it can be said in this case that there was consensus between Bhogji and Doolji to murder deceased Amra on the spot and it was shared by both accused appellants, namely, Bhogji and Doolji and with that common intention both accused appellants Bhogji and Doolji caused injuries on the body of the deceased Amra. 46. Thus, it is a fit case where it can be said that both accused appellants Bhogji and Doolji were animated by a common intention to cause death of the deceased Amra and thus. Section 34 IPC would be applicable in the present case and in such circumstances, it is not necessary which injury was caused by which accused. 47. 46. Thus, it is a fit case where it can be said that both accused appellants Bhogji and Doolji were animated by a common intention to cause death of the deceased Amra and thus. Section 34 IPC would be applicable in the present case and in such circumstances, it is not necessary which injury was caused by which accused. 47. The Hont'le Supreme court in Dhanna etc. v. State of M.P., AIR 1996 SC 2478 has held that Court can take recourse to Section 34 even if said section was not specifically mentioned in the charge. It is open to the court to take recourse to section 34 IPC even it the said section was not specifically mentioned in the charge and instead section 149 IPC, has been included. 48. In the present case, the situation is similar and both accused appellants Bhogji and Doolji were charged under section 302 and alternatively 302/149 IPC and since charge under section 149 IPC has not been proved beyond reasonable doubt both these accused appellants, therefore, they can be easily convicted under section 304 Part II read with 34 IPC, inasmuch as, the prosecution has proved that both these accused appellants Bhogji and Doolji had common intention and in furtherance of common intention, the injuries were caused on the body of the deceased Amra by them. 49. In this respect, law laid down by the Hon'ble Supreme Court in Baital Singh and anr. v. State of U.P., AIR 1990 SC 1982 may also be seen. 50. For the reasons stated above, the argument of the learned counsel for the accused appellant that accused appellant Bhogji did not cause any injury on the head of deceased Amra, becomes irrelevant as both accused Bhogji and Doolji beat deceased Amra in furtherance of common intention. 51. Thus, the conviction which was recorded by the learned Sessions Judge against accused appellants Bhogji and Doolji under section 304 Part II simpliciter is to be read now 304 Part II read with Section 34 IPC. 52. It may be stated here that so far as the injuries on the person of the accused appellants Bhogji and Doolji are concerned, they would not give the benefit to them as deceased kora received four head injuries, out of them one head injury was grevious, whereas injuries of the accused appellants were simple in nature. 52. It may be stated here that so far as the injuries on the person of the accused appellants Bhogji and Doolji are concerned, they would not give the benefit to them as deceased kora received four head injuries, out of them one head injury was grevious, whereas injuries of the accused appellants were simple in nature. Thus, no right of private defence would be available to them for causing such grevious and another injuries on the head of deceased Amra. 53. In view of the above discussion it is held:- 1. That all the accused appellants are entitled to acquittal for the offence under section 147, 323/149 IPC. 2. That accused appellants Mangoo and Hurji are also entitled to acquittal for the offence under section 304 Part II 149 IPC. 3. That accused appellants Bhogji is liable to be convicted under section 304 Part II read with section 34 IPC instead of 304 Part II IPC. Note:- Since accused appellants Narji and Doolji have died, therefore, nothing is said about them. In the result:- 1. The appeal of the accused appellants Hurji and Mangoo is allowed and the judgment and order of sentence dated 27.8.1982 passed by the learned Sessions Judge, Pratapgarh so far as they relate to them are set aside and they are acquitted of the charges for the offence under sections 304 Part II/149 IPC, 147 and 323/149 IPC. Since they are on bail, they need not surrender and their bail bonds stand cancelled. 2. So far as the appeal of accused appellant Bhogji is concerned, it is partly allowed. He is acquitted of the charges under section 147, and 323/149 IPC and therefore, the judgment and order dated 27.8.1982 passed by the learned Sessions Judge convicting him under sections 147 and 323/149 are set aside. However, the appeal of accused appellants Bhogji against his conviction under section 304 Part II IPC (now 304 Part II/34 IPC) and order of sentence dated 27.8.1982 passed by the learned Sessions Judge for the offence under section 304 Part II IPC (now 304 Part II/34 is dismissed. The learned trial court is directed to ensure that accused appellant Bhogji serves out the remaining period of sentence as awarded against him for the offence under section 304 Part II IPC (now 304 Part II/34 IPC). Order accordingly. *******