Honble SHIV KUMAR SHARMA, J.–As many as 13 accused were indicted before the learned Additional Sessions Judge No. 1 Alwar in Sessions Case No. 24/95 for having committed murder of Pyaro Bai. The learned Judge vide judgment dated May 4, 1998 convicted and sentenced the appellants as under : 1. Hakim Singh : U/s. 148 IPC One year R.I. with fine of Rs. 300/- and in default further sentence of one month S.I. U/s. 302 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324/149 IPC 3 Years R.I. with fine of Rs. 1000 and in default to further sentence of 3 months S.I. U/s. 323/149 IPC One year R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. U/s. 3/25 Arms Act 3 years R.I. fine of Rs. 1000 in default to further sentence of 3 months S.I. 2. Kartar Singh : U/s. 148 IPC One year R.I. with fine of Rs. 300/- and in default further sentence of one months S.I. U/s. 302/149 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324 IPC 3 Years R.I. with fine of Rs. 1000 and in default to further sentence of 3 months S.I. U/s. 323 IPC One year R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. 3. Gurjit Singh, 4. Jeeto Bai, 5. Darbar Singh, 6. Swaran Singh. + U/s. 148 IPC One year R.I. with fine of Rs. 300/- and in default further sentence of one month S.I. U/s. 302/149 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324/149 IPC 3 Years R.I. with fine of Rs. 1000 and in default to further sentence of 3 months S.I. U/s. 323/149 IPC One year R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. 7. Pooran Singh, 8. Mehar Singh, 9. Avtar Singh + U/s. 302/149 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324/149 IPC 3 Years R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. 7. Pooran Singh, 8. Mehar Singh, 9. Avtar Singh + U/s. 302/149 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324/149 IPC 3 Years R.I. with fine of Rs. 1000 and in default to further sentence of 3 months S.I. U/s. 323 IPC One year R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. 10. Veer Singh : U/s. 302/149 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324/149 IPC 3 Years R.I. with fine of Rs. 1000 and in default to further sentence of 3 months S.I. U/s. 323 IPC One year R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. 11. Nattho Bai: U/s. 302/149 IPC Life Imprisonment with fine of Rs. 1000/- and in default of payment of fine to further sentence of 3 months S.I. U/s. 324/149 IPC 3 Years R.I. with fine of Rs. 1000 and in default to further sentence of 3 months S.I. U/s 323/149 IPC One year R.I. with fine of Rs. 1000 in default to further sentence of 3 months S.I. All the sentences were ordered to concurrently. Accused Jeet Singh and Kashmir Singh were however acquitted. (2). The investigation of the case set in motion on the basis of the written report dated May 20, 1995 Ex. D.2 instituted by informant Gurucharan Singh (PW1). It was interalia stated in the report that on the said day around 4.30- 5 p.m. when Ishwar Singh, younger brother of informant, alongwith Lal Singh and Gurudeo Singh were installing hand pump in the house belonging to Meos, the accused Hakim Singh, Mehar Singh, Veer Singh, Pooran Singh, Avtar Singh, Kartar Singh, Darbar Singh Swaran Singh, Smt. Jeeto, and Smt. Naino armed with pistols, farsis, lathies and spears, came over there. Hakim Singh opened fire with pistol that hit Pyaro Bai, who died at the spot. Veer Singh opened fire that hit Amar Kaur. Kartar Singh inflicted blow with spear on the person of Ishwar Singh. Smt. Jeeto gave farsi blow to Kulvanto. Darbar Singh caused injury by farsi on the person of Rano Bai. Hakim Singh opened fire with pistol that hit Pyaro Bai, who died at the spot. Veer Singh opened fire that hit Amar Kaur. Kartar Singh inflicted blow with spear on the person of Ishwar Singh. Smt. Jeeto gave farsi blow to Kulvanto. Darbar Singh caused injury by farsi on the person of Rano Bai. Mehar Singh, Pooran Singh and Avatar Singh inflicted lathi blows to informant, whereas Gurjit Singh and Darbar Singh gave farsi blow on the person of Sarvan Singh. Case under sections 147, 148, 149, 323, 324, 307 and 302 IPC was registered. On completion of investigation charge sheet was filed. In due course the case came up for trial before learned Additional Sessions Judge No. 1, Alwar. Charges under Sections 148, 302, 326 read with 149, 324 read with 149, 323 read with 149 IPC and 3/25 Arms Act against Hakim Singh, against Kasmir Singh 148, 302/149, 326, 324/149, 323/149 IPC, against accused Kartar Singh under Sections 148, 302/149, 326/149, 324, 323/149, and against accused Veer Singh 148, 302/149, 326/149, 324/149, 323/149, and accused Gurjit Singh, Mehar Singh, Jeet Singh, Pooran Singh, Nanine Bai, Avtar Singh, Jeeto Bai, Darbar Singh and Swaran Singh under Sections 148, 302/149, 326/149, 324/149 and 323/149 IPC were framed. All the accused denied the charges and claimed to be tried. The prosecution in support its case examined as many as 22 witnesses and produced 77 documents. In the explanation under Section 313 Cr.P.C. the accused claimed innocence. Two witnesses were examined in defence. The learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated herein above. (3). We have heard the submissions advanced before us and scanned the material on record. (4). At the outset it will be appropriate to consider the nature of injuries sustained by the deceased and other persons. As per post mortem report (Ex.P-30) Pyaro Bai received following ante mortem injuries:- ``(1) Multiple gun shot wounds pallets like one left side, renal area 8" x 6" lower part of chest and nod, part as well as lat. small rounded and oral shape wounds with blacking present in some wounds with blood present. The margins of the wounds inverted simple of wounds is 1cm in diameter. small rounded and oral shape wounds with blacking present in some wounds with blood present. The margins of the wounds inverted simple of wounds is 1cm in diameter. Internal injuries: (1) There is multiple small oval shape wounds resembling pallets on the lower part of post aspect of left lung, the injuries congested cavity containing blood mided thid. patels present in lung. (2) There is multiple small wounds on liver lower part with blood oozing+ palents present. (3) There is multiple memorary pallets present in operation and left side kidney with blood oozing. The whole abdominal cavity contains blood. (5). As per Injury report (Ex.P-32) Amro Bai (PW5) received following injuries:- ``1. Lacerated wound: clotted blood present 4cm x 0.8cm x scalp deep On the lt. half of scalpal Lt. parietal bone. (6). As per Injury report (Ex.P-33) Guru Charan Singh (PW1) received following injuries:- ``1. lacerated wound with clot present 1 x 0.2 x 0.2cm On the mid line of scalp Ist 2cm away from hair 1m. 2. Abrasion: on the Rt. half of scalp 1 x 0.5cm 3. Abrasion: on the lateral surface of Lt. arm at middle joint. 5 x 0.5cm 4. Bruise: On the vertical surfact of it, blood joint. 7 x 2.5cm 5. Abrasion: On the lateral surface of Lt. fore arm at its lower 1/3rd. 2 x 0.2cm (7). Ishwar Singh (PW6) received following injuries vide injury report (Ex.P.34):- ``1. Incised Wound: on the part of fore head imomary from nasal bridge 4.5 x 0.5 x 0.5cm 2. Swelling: On the back of Lt. elbow joint 10 x 4cm (8). As per Injury report (Ex.P-36) Smt. Kulwanto Bai (PW4) received following injuries:- ``1. Lacerated wound: On the Rt. half of scalp-clot. Tagha bone Rt. parietal bone 0.5 x 0.2 x 0.2cm 2. Swelling: On the dorsal surface of Lt.fore arm of upper 1/3rd 10 x 6 3. Abrasion: On the dorsal surface of Rt.arm of lower 1/3rd 1 x 0.5cm (9). As per Injury report (Ex.P-37) Swaran Singh received (PW3) following injuries:- ``1. Lacerated wound: On the Rt. half of scalp 4 x 0.5 2. Abrasion: On the dorsal surface of Lt. thing 1 x 0.3cm 3. Swelling: On the lateral margin of Lt. elbow soft 5 x 3cm (10). As per Injury report (Ex.P-39) Kartar Singh (PW2) received following injuries:- ``1. Lacerated wound: On the Rt. half of scalp 4 x 0.5 2. Abrasion: On the dorsal surface of Lt. thing 1 x 0.3cm 3. Swelling: On the lateral margin of Lt. elbow soft 5 x 3cm (10). As per Injury report (Ex.P-39) Kartar Singh (PW2) received following injuries:- ``1. Lacerated Wound: On the mid line of skull 4cm of rom lasarmin 4 x 0.5 x scalp deep 2. Lacerated Wound: On the Rt. half of skull two obliqu occipital bone 3 x 0.5 x scalp deep 3. Incised wound: On the dorsal rentriz surface of Lt. ring preni 7 x 1 bone (11). Bhagwan Singhs wife Rano Bai (PW11) vide injury report (Ex.P40) received following injuries:- ``1. Lacerated Wound: On the mid line of skull 5cm away from later line. 1.5 x 0.5 x scalp deep 2. Bruise: On the Rt. half of lower back region 9 x 4cm (12). Accused appellants Gurjit Singh, Mehar Singh, Pooran Singh, Hakim Singh and Veer Singh also sustained injuries. As per Injury report (Ex.P-41) Gurujeet Singh received abrasion on the occipital region of skin 1 x 0.2cm. Mehar Singh vide injury report Ex.P.42 sustained abrasion on the Lt. half of Lt. parietal bone 1.5 x 0.2cm. (13). As per Injury report (Ex.P-43) Pooran Singh received abrasion on the Lt. half of skull 1 x 0.2cm and abrasion on the Lt. Mandible bone 0.5 x 0.5cm., whereas Hakim Singh and Veer Singh received one abrasions each on Rt. Thumb and the nose respectively. (14). It is contended by the learned counsel for the appellants that the prosecution utterly failed to consider the injuries received by the accused persons in the course of the incident. Dr. Raj Kumar Mishra (PW15) examined the injuries of five accused persons and specifically deposed that the injuries were neither self inflicted nor caused by fell. It is further alleged that the informant Gurucharan made improvement in his statement at the trial. It is established that the deceased Smt. Pyaro Bai was an intervenor and the accused had no intention to cause death. It is also borne out from the record that Ishwar Singh Kidnaped the daughter of Kartar Singh and meeting of villagers was called in which Ishwar Singh was found guilty and he was asked to leave the village and this was the cause of the incident and the accused had been falsely implicated. It is also borne out from the record that Ishwar Singh Kidnaped the daughter of Kartar Singh and meeting of villagers was called in which Ishwar Singh was found guilty and he was asked to leave the village and this was the cause of the incident and the accused had been falsely implicated. It is further contended that the accused had right of private defence of person and liberty. The prosecution failed to prove that the accused were the aggressors. Reliance is placed on Lalloo and Anr. vs. State of Uttar Pradesh (1), Deepak Kumar vs. Ravi Virmani and Another (2), Thangavelu vs. State of Tamil Nadu (3), Gurmail Singh and Others vs. State of Punjab (4), and Buta Singh vs. State of Punjab (5). (15). Per contra, learned Public Prosecutor supported the impugned judgment and canvassed that the appellants were rightly convicted and sentenced. (16). Turning on to the testimony of the witnesses of the prosecution we find that informant Gurucharan Singh (PW1) gave graphic version of the incident and repeated what he stated in the FIR. Gurucharan Singh (PW8) stated that on the fateful day around 4.00 p.m. he along with Ratan Singh and Lal Singh had gone to install hand pump. Ishwar Singh was sent by him for fetching water from the boring of Deenu Meo. On the way Ishwar Singh and Hakim Singh had altercation. Lal Singh, and Ratan Singh then pursuaded Ishwar Singh to come back. In the meanwhile Hakim Singh went to his house and came back with his family members. Seeing them coming Gurdeo Singh bolted Ishwar Singh inside the house of Rajak Meo. Hakim Singh opened fire that hit on the waist of Pyaro Bai. Hakim Singh was accompanied by Kashmir Singh, Swaran Singh, Mehar Singh, Jeet Singh, Darbar Singh, Gurjit Singh and Pooran Singh. Kashmir Singh and Mehar Singh were having farsis Sarvan Singh was having sword. Gurjit Singh had a lathi and Jeet Singh was having Kasia. Swaran Singh, Gurucharan Singh, Kantibai, Amrobai, Ishar Singh and Kartar Singh also sustained injuries. Kashmir Singh inflicted farsi blow on the hand of Kartar Singh. Ratan Singh (PW9) stated that Hakim Singh opened fire which hit at the back of Pyaro Bai. Veero also opened fire that hit Amrobai. Kashmir gave farsi blow on the hand of Kartar Singh and other inflicted lathi and farsi blows. Kashmir Singh inflicted farsi blow on the hand of Kartar Singh. Ratan Singh (PW9) stated that Hakim Singh opened fire which hit at the back of Pyaro Bai. Veero also opened fire that hit Amrobai. Kashmir gave farsi blow on the hand of Kartar Singh and other inflicted lathi and farsi blows. Lal Singh (PW10) stated that when he reached at the spot after hearing hue and cry he found Pyaro as dead. Hakim Singh and Veero were having kattas. Veero opened fire that hit on the head of Amro. Kashmir Singh gave farsi blow that cut two fingers of Kartar. (17). Kartar Singh (PW2), Swaran Singh (PW3), Kulwanto Bai (PW4), Amro Bai (PW5), Ishar Singh (PW6) and Rajjo Bai (PW7) all are members of Ishwar Singhs family and they almost repeated the versions narrated by Gurudeo Singh (PW8). (18). A close look at the cross examination of Gurucharan Singh (PW1) goes to show that he initially gave oral version of the incident at the police station, thereafter on the pursuation of the police, report was got written by him through Buddha Lal. Gurucharan also disowned many parts of his police statement Ex.D.2. He further stated that he had gone to Buddhalal twice as Buddhalal did not incorporate the names of Jeet Singh and Kashmir Singh in the report. He (Gurucharan Singh) had gone to second time seeking correction in the report. He further stated that his mother was ahead of them and was intervened and Hakim Singh opened fire at a distance of five feet. Gurudeo Singh (PW8) and Ratan Singh (PW9) also disowned major parts of their police statements Ex.D.8 and Ex.D.9. (19). From the scrutiny of the testimony of the eye witnesses it appears that common object of the assailants was to kill Ishwar Singh. Killing Pyaro Bai was no part of the common object of unlawful assembly. There was no nexus between the common object and the act of causing injuries to Pyaro Bai by the accused Hakim Singh and other members of unlawful assembly could not be punished for the acts of Hakim Singh. They however, are liable for their individual acts. The Apex Court in Allauddin vs. State of Bihar (6), indicated that in order to invoke Section 149 IPC it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. They however, are liable for their individual acts. The Apex Court in Allauddin vs. State of Bihar (6), indicated that in order to invoke Section 149 IPC it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. In the instant case the common object of the assailants was to kill Ishwar Singh and for accomplishing the common object it was not necessary to kill Pyaro Bai. We are, therefore, of the opinion that the other appellants Gurjit Singh, Mehar Singh, Pooran Singh, Kartar Singh, Nattho Bai, Avtar Singh, Jeeto Bai, Darbar Singh, Swaran Singh and Veer Singh could not be convicted for the injuries caused to Pyaro Bai with the aid of Section 149 IPC. (20). We also find from the record that the assailants had gone to the house where one member of complainant party was installing the hand pump but the incident had not occurred at that place as Ishwar Singh was not there. When the assailants were returning back after their common object stood frustrated and abandoned, free fight ensued between the assailants and the members of the complainant party and members of both the sides sustained injuries. Therefore, the appellants can not be held vicariously liable for the injuries caused to other injured persons with the aid of Section 149 IPC. They cannot be held guilty under Section 148 IPC also as there was no unlawful assembly when the incident occurred. (21). Coming to the allegations against appellant Hakim Singh, we find that the prosecution has established that Hakim Singh opened fire that killed Pyaro Bai. It was contended on behalf of Hakim Singh that he did not intend to cause that particular injury which in fact was found to have been caused. Placing reliance on Gurmail Singh vs. State of Punjab (7), it was canvassed that para III of Section 300 IPC is not attracted in the facts of the instant case as Hakim Singh never intended to kill Pyaro Bai. Having closely analysed the evidence collected against Hakim Singh we find ourselves unable to agree with the submission of learned counsel. Placing reliance on Gurmail Singh vs. State of Punjab (7), it was canvassed that para III of Section 300 IPC is not attracted in the facts of the instant case as Hakim Singh never intended to kill Pyaro Bai. Having closely analysed the evidence collected against Hakim Singh we find ourselves unable to agree with the submission of learned counsel. Section 301 IPC embodies what the English authors describe as the doctrine of transfer malice or the transmigration of motive. Section 301 makes it clear that culpable homicide may be committed by causing the death of a person whom the offender neither intended, nor knew himself to be likely to kill, a rule which though it does not lie on the surface of Section 299, yet is deducible from the generality of the words ``causes Death. Section 301 IPC applies only to a case where an act fails to have its full intended or known to be likely effect upon the victim aimed at but has that very effect upon another unintentionally. The effect or known to be likely effect, for which the accused can be held liable, has necessarily to be judged with reference to the intended and not the unintended victim. (22). In the instant case as already noticed that Hakim Singh opened fire at a instance of five feet that hit on the waist of Pyarobai and the said act of Hakim Singh comes within the definition of culpable homicide as defined under section 301 IPC. Thus Hakim Singh is guilty for the offence under section 302 IPC and the learned trial judge has not committed any illegality in convicting and sentencing Hakim Singh under Section 302 IPC. (23). In view of what we have discussed hereinabove we dispose of the instant appeals in the following terms : (i) Appeal of appellants Gurjit Singh, Jeeto Bai, Darbara Singh, Swaran Singh and Nattho Bai is allowed and all these appellants stand acquitted of the charges under sections 148, 302/149, 324/149 and 323/149 IPC. They are on bail, they need not surrender and their bail bonds stand cancelled. (ii) Appeal of appellant Veer Singh stands abated as he died during the pendency of the appeal. (iii) Appeal of Kartar Singh, Pooran Singh, Mehar Singh, and Avtar Singh is partly allowed. They stand acquitted of the charges under sections 148, 302/149 and 324/149 IPC. They are on bail, they need not surrender and their bail bonds stand cancelled. (ii) Appeal of appellant Veer Singh stands abated as he died during the pendency of the appeal. (iii) Appeal of Kartar Singh, Pooran Singh, Mehar Singh, and Avtar Singh is partly allowed. They stand acquitted of the charges under sections 148, 302/149 and 324/149 IPC. The conviction of Kartar Singh under sections 323 and 324 IPC, Pooran Singh, Mehar Singh and Avtar Singh under section 323 IPC stands confirmed. However in the facts and circumstances of the case, we sentence each of them to the period already undergone by them in confinement. All these appellants are on bail, they need not surrender and their bail bonds stand cancelled. (iv) Appeal of appellant Hakim Singh stands partly allowed. He is acquitted of the charges under sections 148, 324/149 and 323/149 IPC. His conviction under section 302 IPC and sections 3/25 of the Arms Act stands confirmed. He is already in confinement and shall have to serve sentence awarded to him by the learned trial judge. (24). The impugned judgment of the learned trial judge stands modified as indicated hereinabove.