JUDGMENT 1. The appellants, five in number were indicated before the learned Special Judge (Fake Currency Note) Cases, Jaipur City, Jaipur for having committed murder of Latif in Sessions Case No. 26/97. The learned trial judge vide his judgment dated June 28, 1999 convicted and sentenced the s appellants as under:-Assu @ Ashraf:- Under Section 148 IPC- to undergo one year rigorous imprisonment and fine of Rs. 100/-. Under Section 302 IPC- to undergo life imprisonment and to pay fine of Rs. 500/-. In default of payment of fine to further undergo rigorous imprisonment for two months. Anwar @ Annu, Altaf, Mohd. Saddique and Islam:- Under Section 148 IPC- to undergo one year rigorous imprisonment and fine of Rs. 100/- each. Under Section 302 IPC- to undergo life imprisonment and to pay fine of Rs. 500/- each. In default of payment of fine each of them to further undergo rigorous imprisonment for two months. All the sentences were ordered to run concurrently. 2. The prosecution case is woven like this:-Latif (now deceased) was admitted in SMS Hospital, Jaipur on February 16, 1996 in injured condition. Parcha Bayan of Latif (Ex.P 11) was recorded by SHO, Police Station Kotwali, Jaipur at 11.30 P.M. on the said day wherein Latif stated that around 10.00 PM. on the said day, finding his children picking up quarrel with the children of Saddique and Islam, when he went to the street, Islam, Assu, Altabh, Annu and Saddique caught hold of him and Assu inflicted knife blows on his right hand and abdomen. On the basis of Parcha Sayan, a case under Sections 147, 323 and 307 IPC was registered and investigation commenced. Latif died on February 27, 1996 and the case was converted into one under Section 302 IPC. On completion of investigation, charge sheet was filed and in due course the case came up for trial before the learned Special Judge (Fake Currency Note) Cases, Jaipur City, Jaipur. Charges under Sections 148, 302, 302/149 IPC and under Section 4/25 Arms Act were framed against the appellants, who denied the same, pleaded not guilty and claimed to be tried. The prosecution examined as marry as witnesses. In their explanation under Section 313 Cr.PC. the appellants claimed innocence. One witness was examined in defence. On hearing final submissions, the learned trial judge convicted and sentenced the appellants as indicated hereinabove. 3. The prosecution examined as marry as witnesses. In their explanation under Section 313 Cr.PC. the appellants claimed innocence. One witness was examined in defence. On hearing final submissions, the learned trial judge convicted and sentenced the appellants as indicated hereinabove. 3. We have heard the submissions advanced before us and scanned the material on record. 4. On February 16, 1996 itself the injuries sustained by Latif got examined by Dr. Suneesh Goyal PW 12 and as per the injury report Ex.P. 16, Latif sustained two injuries thus:- (i) incised wound 2.5 X314 cm. over right side of abdomen; (ii) incised wound 1.5 x 1/2 Cm over back of right wrist. Both the injuries were caused by sharp edged weapon. 5. Dr. Sheetal Jain PW 9 performed autopsy on the dead body of Latif and vide post mortem report Ex.P. 10, the following ante mortem injuries were found to have been sustained by the deceased:- (1) Stitched wound 4 Cm. in length, placed over rt. iliac region; (2) Lesion 3 X2 Cm. X muscle deep (perennial cavity deep) placed over right iliac region near to the injury No. 1: (3) Stitched wound 12 Cm. in length, vertically placed over rt. side part of abdomen. The cause of death according to the post mortem report was shock as a result of peritonitis to transverse colon on account of cumulative effect of the injuries which were sufficient in the ordinary course of nature to cause death 6. In his deposition Dr. Sheetal Jain stated that as he found infection on the wound, he was not in a position say as to by which weapon the injury was caused. He further stated that the death of deceased was resulted because of infection on the wound which could be caused by any reason. 7. Dr. Suneesh Goyal PW 12 also did not depose that the injuries sustained by deceased were sufficient in the ordinary course of nature to cause death. 8. Mr. Sunil Tyagi, learned counsel for the appellants canvassed that from the material on record, the prosecution has not been able to establish that there was any unlawful assembly, the common object of which was to cause death of Latif. Learned counsel further contended that from the nature of the injuries it could be inferred that the appellant Assu did not intend to causE death of Latif. Learned counsel further contended that from the nature of the injuries it could be inferred that the appellant Assu did not intend to causE death of Latif. The incident had occurred on a spur of moment and Assu did not acted in a cruel manner and no undue advantage was taken by him. As deceased died on account of infection, charges under Sections 149 and 302 IPC and 4/25 Arms Act have not been established against the appellants beyond reasonable doubt. 9. Per contra. Mr. B.M. Sharma, learned PP supported the impugned judgment and urged that as Assu repeated the blows, his intention to kill Latif is apparent. Learned PP further contended that all the appellants had common object to kill Latif and they have been rightly convicted. 10. Coming to the evidence adduced by the prosecution we find that Mohd. Ikram PW 1 in his deposition, has stated that after children of deceased and Saddique, Ishlam and Kullad picked up quarrel, Latif arrived at the street and asked as to what was the reason of quarrel. Thereafter all the appellants started beating Latif with legs and fists. In the meanwhile Assu @ Ashraf went inside his house and came back with a Katar and inflicted blow with it on the abdomen of Latif and another blow on his hand. Aslam PW 2 also repeated the version narrated by Mohd. Ikram. Other witness Kailu PW 4, Abdul Hameed PW 5, Bundu PW 6, Hulled PW 7 and Asraf PW 8 but they did not support the prosecution case and they were declared hostile. 11. From the testimony of prosecution witnesses we find that incident occurred when Latif with his bullock-cart came at the place of occurrence. The appellants who were already there when asked by Latif as to what was the cause of quarrel between the children the appellants alleged to have hurled abuses thereafter, Assu went inside the house and came back with knife and inflicted injuries on the abdomen and hand of the deceased. We, to thus, find that there was no unlawful assembly, which had shared common object. Sections 148 and 149 IPC are not attracted in the facts of this case. In sofar as the allegation against the individual appellant is concerned, we find that the story narrated in Parcha Bayan and the version of the prosecution witnesses at the trial are inconsistent. Sections 148 and 149 IPC are not attracted in the facts of this case. In sofar as the allegation against the individual appellant is concerned, we find that the story narrated in Parcha Bayan and the version of the prosecution witnesses at the trial are inconsistent. In the Parcha Bayan it was stated that Islam, Assu, Altaf, Annu and Saddique caught hold of Latif whereas Mohd. lkram (PW 1) and Aslam (PW 2) deposed at the trial that all the appellants started beating Latif by fists and legs and thereafter, Assu went inside his house and came back with Katar and inflicted blows on the person of Latif. The fact of causing injuries by fists and legs has not been corroborated by the medical evidence. Looking to the fact that Latif and the appellants were close relatives and their relations were strained, the possibility of over implication can not be ruled out and participation of appellants Anwar, Altaf, Saddique and Islam in committing the offence becomes doubtful. 12. That takes us to the accusation of related to the appellant Assu Ashraf against whom the prosecution has established that he inflicted blows with sharp edged weapon on the abdomen and hand of the deceased who died after eleven days of the incident because of infection. As per the testimony of Dr Suneesh Goyal PW 12 and Dr. Sheetal Jain PW 9 we find that there is no nexus between the injuries sustained by the deceased and the cause of death Dr. Sheetal Jain specifically deposed that infection was not as a result of injury but could be caused by any reason and it was not possible for him to say with certainty that the death was caused by injuries sustained by deceased. In view of the fact that the incident occurred suddenly and the injuries attributed to Assu were not found fatal, we are of the opinion that offence committed by appellant Assu comes within the purview of culpable homicide not amounting to murder punishable under Section 304 part II IPC. Appellant Assu @ Ashraf is in jail for a period of more than 5 years and 5 months and ends of justice would be met in sentencing him to the period undergone by him. 13. In view what we have discussed hereinabove, we dispose off the instant appeal in the following terms:- (i) Appeal of Anwar @ Annu, Altaf, Mohd. Appellant Assu @ Ashraf is in jail for a period of more than 5 years and 5 months and ends of justice would be met in sentencing him to the period undergone by him. 13. In view what we have discussed hereinabove, we dispose off the instant appeal in the following terms:- (i) Appeal of Anwar @ Annu, Altaf, Mohd. Saddique and Islam is allowed and they stand acquitted of the charges under Sections 148 and 302 with the aid of Section 149 IPC. They are on bail and need not surrender and their bail bonds are cancelled. (ii) Appeal of appellant Assu @ Ashraf is partly allowed. While acquitting him of the charges under Sections 148 and 302 IPC, we convict him under Section 304 part II IPC and sentence him to the period already undergone by him in confinement. Appellant Assu Ashraf is in jail. He be set at liberty forthwith if not required in any other case. Appeal of Al, A2, M and I Allowed & That of A3 Partly Allowed. *******