JUDGMENT 1. - As these two appeals arise out of the judgment and order dated 29.11.1997 of the learned Additional Sessions Judge, Dholpur passed in Sessions Cases No. 64/95 and 04/96, they are decided by this common judgment. Two Sessions Cases were registered but it is not in dispute that these arise out of one F.I.R. No. 129/95 which was registered at Police Station Kolari, District Dholpur. It appears that one of the accused Birji @ Brij Kishore had absconded and was arrested later on. 2. The case of the prosecution is that on 26th of June, 1995 Ram Prasad Tyagi gave a parch bayan Ex.P-3 to (PW-10) Pyare Lal, Police Sub Inspector, Police Station Kotwali, Dholpur in the General Hospital, Dholpur and on the basis of the same First Information Report Ex.P-16 was chalked out and a case No. 129/95 under Sections 147, 148, 323 and 302, IPC. was registered at Police Station Kolari, District Dholpur. This F.I.R. was registered at 7.10 PM. on 26th of June, 1995. The Parch Bayan was recorded at 9.00 AM on 26th of June, 1995. Ram Prasad is alleged to have stated in his parcha bayan (dying declaration) that on 26th of June, 1995 at about 5.45 A.M. when he was returning to his house after meeting out the call of nature and came near to the filed of Ram Khiladi, accused appellants Sukha, Mahaveer, Kaluti, Brij Kishore and Kampotar were sitting at their fields. They were having lathies and kattas with them. The accused appellants came running to him from their field and started giving beating to him with lathis. Accused appellant Brij Kishore gave lathi blow on his head due to which he fell down on the ground and thereafter all the accused gave many injuries to him. Babu Lal (PW-5) came running towards him making hue and cry and the accused appellants, after seeing him coming towards them, ran away leaving him. Janki Prasad (PW-2), the elder brother of Ram Prasad, had taken him and got admitted in the General Hospital, Dholpur. Ram Prasad died in the General Hospital on the same day at about 12.20 PM. 3. The investigating agency after making usual investigation filed challan against the accused appellant in the court of area Judicial Magistrate, 1st Class Dholpur for the offences under Sections 147, 148, 149, 323 and 302, I.PC. Ram Prasad died in the General Hospital on the same day at about 12.20 PM. 3. The investigating agency after making usual investigation filed challan against the accused appellant in the court of area Judicial Magistrate, 1st Class Dholpur for the offences under Sections 147, 148, 149, 323 and 302, I.PC. As the case was exclusively triable by the Court of Sessions, the area Judicial Magistrate committed it to the Court of Sessions Judge, Dholpur. Ultimately, it came to be transferred to the Court of Additional Sessions Judge, Dholpur for trial and decision. 4. The learned trial court framed charges against the accused appellant Birji @ Brij Kishore for commission of offences under Sections 148 and 302, I.PC. Other accused appellants Kampotar son of Nadaria, Mahavir son of Chhitaria, Kaiuti son of Har Narayan, Sukha son of Chhitaria have been charged for the offences under Sections 148 and 302 read with 149, I.PC. The accused appellants pleaded not guilty and claimed to be tried. 5. The prosecution, to prove its case against the accused appellants, produced both, ocular as well as documentary evidence. The details of the ocular and documentary evidence produced by the prosecution are as follows, 1. Hakim Singh (PW-1) 2. Janki Prasad (PW-2) 3. Deep Chand (PW-3) 4. Pooran Singh (PW-4) 5. Babu Lal (PW-5) 6. Dev Singh (PW-6) 7. Banwari (PW-7) 8. Dr. R.C. Goyal (PW-8) 9. Buddha (PW-9) 10. Pyare Lal (PW-10) 11. Dr. S.K. Garg (PW-11) 12. Ram Babu (PW-12) 13. Liladhar (PW-13) 14. Virendra Singh (PW-14) 15. Sugad Singh (PW-15) 16. Ramesh Chand (PW-16) DOCUMENTARY EVIDENCE: Ex.P-1 Memo of taking into custody dead body of Ram Prasad. Ex.P-2 Inquest report of deceased Ram Prasad. Ex.P-3 Seizure memo of blood stained safi and Tehmad of deceased. Ex.P-4 Application of Janki Prasad to S.H.O. Kotwali Dholpur regarding taking possession of dead body. Ex.P-5 Site plan with its description of place from where one lathi was recovered from accused Mahavir. Ex.P-6 Site plan with its description of place from where one lathi was recovered from accused Sukha. Ex.P-7 Site plan with its description of place from where one lathi was recovered from accused Kaiuti. Ex.P-8 Site plan with its description of place from where one lathi was recovered from accused Kampotar. Ex.P-9 Recovery memo of one lathi at the instance of accused Mahaveer. Ex.P-10 Recovery memo of one lathi at the instance of accused Sukha. Ex.P-7 Site plan with its description of place from where one lathi was recovered from accused Kaiuti. Ex.P-8 Site plan with its description of place from where one lathi was recovered from accused Kampotar. Ex.P-9 Recovery memo of one lathi at the instance of accused Mahaveer. Ex.P-10 Recovery memo of one lathi at the instance of accused Sukha. Ex.P-11 Recovery memo of one lathi at the instance of accused Kaiuti. Ex.P-12 Recovery memo of one lathi at the instance of accused Kampotar. Ex.P-13 Post mortem report of deceased Ram Prasad. Ex.P-14 Letter written by Doctor to the S.H.O. Kotwali Dholpur. Ex.P-15 Injury report of Ram Prasad. Ex.P-16 F.I.R. No. 129/95 registered at Police Station Kolari District Dholpur. Ex.P-17 Memo of arrest and personal search of accused Sukha. Ex.P-18 Memo of arrest and personal search of accused Kaiuti. Ex.P-19 Memo of arrest and personal search of accused Mahaveer Singh. Ex.P-20 Memo of arrest and personal search of accused Kampotar. Ex.P-21 Memo of information under section 27 of Evidence Act given by accused Sukha. Ex.P-22 Memo of information under section 27 of Evidence Act given by accused Kaiuti. Ex.P-23 Memo of information under section 27 of Evidence Act given by accused Kampotar. Ex.P-24 Memo of information under section 27 of Evidence Act given by accused Mahavir. Ex.P-25 Report of State Forensic Science Laboratory. Ex.P-26 Acknowledgement receipt given by State Forensic Science Laboratory, Jaipur. DEFENCE EXHIBITS Ex.D - 1 Statement of Janki Prasad under section 161 Cr.PC. Ex.D - 2 Site plan with its description. Ex.D - 3 Statement of Babulal under section 161 Cr.PC. Ex.D - 4 Letter of Police Station Kotwali Dholpur to Medical Jurist Sadar Hospital Dholpur. Ex.D - 5 Photo copy of indoor bed head ticket of injured Ram Prasad. Ex.D - 6 Bed head ticket of injured Ram Prasad. 6. The learned trial court recorded the statements of the accused appellants under Section 313, Cr.PC. 7. After hearing the learned Public Prosecutor and the learned counsel for the accused appellants, the learned trial court under its judgment and order convicted and sentenced the accused appellants as aforesaid. Thus, this appeal. 8. Heard learned counsel for the accused appellants and the learned Public Prosecutor. We have perused the judgment and order of the learned trial court and carefully and minutely gone through the entire evidence on the record. 9. Thus, this appeal. 8. Heard learned counsel for the accused appellants and the learned Public Prosecutor. We have perused the judgment and order of the learned trial court and carefully and minutely gone through the entire evidence on the record. 9. Shri K.C. Sharma, counsel for the accused appellants and Shri Anil Kumar Jain, counsel for accused appellant Birji @ Brij Kishore contended that the prosecution has utterly failed to make out any case under Section 148 Cr.PC. against the accused appellants. It has next been contended that the dying declaration Ex.P-3 of deceased Ram Prasad is a concocted and manufactured document and no reliance could have been placed thereon. It is a case where accused appellants have falsely been implicated in the matter. 10. Lastly it is contended that the case against the accused appellant Birji @ Brij Kishore does not travel beyond Section 304 Part II, I.PC. 11. Learned Public Prosecutor, on the other hand, supported the judgment and order of the learned trial Court. 12. Ex.P-3 parcha bayan (dying declaration) of deceased Ram Prasad was undisputedly recorded by the police officer. It was recorded at General Hospital, Dholpur. The parcha bayan was recorded, as per the prosecution case, at 9.00 A.M. on 26.6.1995. 13. Pyare lal (PW-10) Sub Inspector posted at Police Station Kotwali, Dholpur recorded his parcha bayan, as said earlier. He admitted in the cross - examination on the suggestion put to him by the learned counsel for the accused appellant that many judicial and executive magistrates were residing in Dholpur. He also admitted in the cross examination on the suggestion made to him that within an hour any executive or judicial magistrate could have been contacted and called in the Hospital. He deposed that he attempted to bring some judicial or executive magistrate in the hospital to record the statement of deceased but nobody was available. He went to Mr. Abrar Ahmed, the then S.D.M., Dholpur. He, on being further examined, made a categorical admission that he did not went to call any judicial magistrate except Mr. Abrar Ahmed, the then S.D.M., Dholpur. From this deposition of Pyare Lal (PW-10) we are satisfied that the judicial magistrate were available in Dholpur on that day but he did not make any attempt to call any of them to record the statement of deceased Ram Prasad. Abrar Ahmed, the then S.D.M., Dholpur. From this deposition of Pyare Lal (PW-10) we are satisfied that the judicial magistrate were available in Dholpur on that day but he did not make any attempt to call any of them to record the statement of deceased Ram Prasad. He did not approach to the District Judge or the Chief Judicial Magistrate, Dholpur to make available a judicial magistrate for recording the statement (dying declaration) of Ram Prasad. 14. Ex.D - 3 at page A8/7 is the application submitted by Pyare Lal (PW-10) to the medical jurist, Sadar Hospital, Dholpur for taking his opinion re the physical and mental fitness of Ram Gopal to give the statement. In the cross - examination Pyare Lal (PW-10) admitted that the doctor had given the opinion on his application that Ram Prasad was not in a position to give the statement. On the document Ex.D - 3 though time is not mentioned but from the statement of Pyare lal (PW-10) we fine that it would have, been given by him to Doctor to take his opinion, in the circumstances of the case, at least before one hour of recording the statement of the deceased Ram Gopal. He admitted that after taking the doctor's opinion on Ex.D - 3 he did not return to the police station and remained at Hospital waiting Ram Prasad to gain conscious and to record his statement. He waited for an hour in the hospital. Thus, from his statement we find that more than sufficient time was available to Pyare Lal, (PW-10) to call the judicial magistrate to record the statement of Ram Prasad. Pyare Lal (PW-10) did not make any effort nor he was desirous and interested to call the judicial magistrate to record the statement of Ram Prasad. Pyare Lal (PW-10) in his cross - examination admitted that he has not taken any opinion of the doctor except Ex.D - 3 the physical and mental fitness of deceased Ram Prasad to give the statement. In the cross - examination he admitted that on the basis of this parch bayan unnumbered F.I.R. has not been drawn at the police station Kotwali. He also shown his inability to state at what time this parch bayan was sent to police station Kolari. In the cross - examination he admitted that on the basis of this parch bayan unnumbered F.I.R. has not been drawn at the police station Kotwali. He also shown his inability to state at what time this parch bayan was sent to police station Kolari. In the cross - examination a suggestion was made to him that Ram Prasad was not in a fit mental and physical condition to give the statement and he prepared this parcha bayan after his death in collusion with his brother Janki Prasad (PW-2). On this document Ex.P-3 there are signatures of Dr. S.K. Garg (PW-11). However, on this document, he has not certified that deceased Ram Prasad was in a fit mental and physical condition to give the statement. 15. In the cross - examination, Dr. S.K. Garg (PW-11) admitted that at the relevant time Mahindra Singh was compounder in the hospital. He shown his ignorance that Mahindra Singh, compounder, came to him in connection with treatment of deceased Ram Prasad or for other work. He admitted that he was acquainted with Mahindra Singh Tyagi. On the suggestion put to him that Ram Prasad was not conscious but he made statement at the instance of Mahindra Singh, he denied. He also denied that he put his signatures on document Ex.P-3 at the instance of Mahindra Singh. 16. Babu lal Tyagi (PW-5) admitted that Mahindra Singh is his son and at the relevant time he was posted at the General Hospital, Dholpur. Dr. S.K. Garg (PW-11) admitted that at 7.40 A.M. the condition of the deceased Ram Prasad was serious. Ex.P-14 the document written by the doctor to the S.H.O. Kotwali Dholpur and therein it is mentioned that the condition of patient is serious. 17. Dr. S.K. Garg (PW-11) further admitted that on the document Ex.P-3 it is not mentioned that the statement has been taken in his presence. He further admitted that he has not mentioned time on the document Ex.P-3 under his signature. Dr. S.K. Garg (PW-11) deposed that while giving treatment, the condition of the deceased Ram Prasad was not improving. He further admitted that the treatment given to Ram Prasad had not resulted in any improvement in his condition. He had not recorded the blood pressure of the deceased in between 7.30 to 10.00 A.M. He made a categorical statement that in between 7.30 to 10.00 A.M. that Dr. He further admitted that the treatment given to Ram Prasad had not resulted in any improvement in his condition. He had not recorded the blood pressure of the deceased in between 7.30 to 10.00 A.M. He made a categorical statement that in between 7.30 to 10.00 A.M. that Dr. S.C. Jain had given treatment to deceased Ram Prasad. Dr. S.C. Jain was not produced by the prosecution in the witness box. Ex.D - 5 is the bed head ticket of Ram Prasad. He was admitted at 7.02 A.M. and at that time his blood pressure and pulses were not recordable and he was very serious. At 7.30 A.M., though, it is mentioned that patient was conscious but it is difficult to accept him to be in a position to give statement. After 7.30 A.M., there is the record of that day before 10.00 A.M. but that part of the slip where time is mentioned, is torn at 10.00 A.M. it is stated that patient was in shock and his blood pressure and pulses were not recordable. From the bed head ticket we find that Ram Prasad was in shock and pulses were not palpable. Thus, tearing of the part of bed head ticket where time is mentioned, appears to have been done deliberately. From the document Ex.P-14 which was written at 7.40 A.M., the condition of Ram Prasad was stated to be serious. Thus from a conjoint reading of the document Ex.P-14, the statement of Dr. S.K. Garg (PW-11) and the bed head ticket of Ram Prasad we are satisfied that there is no evidence on record that after 7.40 A.M. Ram Prasad was in fit mental and physical condition to give his statement. In the facts of this case we are satisfied that the prosecution has utterly failed to prove to our satisfaction that the deceased Ram Prasad was in a fit mental and physical condition to give the statement. This conduct of Dr. S.K. Garg (PW-11), prima facie, appears to be suspicious. Possibly he would have put this note of patient's condition read with tearing of portion where time was mentioned on the bed head ticket at 7.30 A.M. on that date under the influence or to oblige Mahindra Singh Tyagi, the compounder posted at the Government Hospital, Dholpur which is a relation of the deceased Ram Prasad. 18. Possibly he would have put this note of patient's condition read with tearing of portion where time was mentioned on the bed head ticket at 7.30 A.M. on that date under the influence or to oblige Mahindra Singh Tyagi, the compounder posted at the Government Hospital, Dholpur which is a relation of the deceased Ram Prasad. 18. Having gone through the bed head ticket of deceased Ram Prasad, document Ex.P-14, the statement of Pyare Lal (PW-10) and Dr. S.K. Garg (PW-11) we have already held that the deceased Ram Prasad was not in a fit mental and physical condition to give the statement. A dying declaration recorded by a police officer, though, is admissible in the evidence, however, recording of dying declaration by the police officer/investigation officer has been discouraged by their Lordships of the Hon'ble Supreme Court. Their Lordships of the Hon'ble Supreme Court has given the note of the caution that the investigation officer has to avail the services of the magistrate for recording the dying declaration if it was possible to do so and only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer. The reference may have to the decision of the Apex Court in the case of Laxman v. Om Prakash, 2001 (6) SCC 118 . In this case, as discussed in the earlier part of the judgment, the condition of the deceased was very serious. He was reported not in a fit physical and mental condition to give the statement and the police officer had waited for a long time for gaining of consciousness by the deceased and gave statement and though had enough time to call the magistrate that he had not done. Thus, it is not safe to place any reliance on this dying declaration (Ex.P - 3) to bring home the guilt against the accused appellant. 19. In the case of Oka Ram v. State of Rajasthan, AIR 2001 SC 1814 their Lordships of the Hon'ble Supreme Court held that as the maker of the statement is not subject to cross - examination it is essential for the court to insist that the dying declaration should of such a nature as to inspire full confidence of the court in its correctness. The Hon'ble Supreme Court further observed that the court is obliged to rule out the possibility of the statement being the result either of tutoring, prompting or vindictive or project of imagination. Before relying upon a dying declaration the court should be satisfied that the deceased was in a fit state of mind to make the statement. Only when the court is satisfied that the dying declaration was made voluntarily and not influenced by an extraneous consideration, it is base its conviction without any further corroborating, as a rule requiring corroboration is not a rule of law but only a rule of prudence. 20. There is no dispute that the alleged statement of deceased Ram Prasad were recorded in the presence of his brother Janki Prasad. Janki Prasad (PW-2) has signed this document Ex.P-3 as a witness. He deposed in the statement that the police Inspector had recorded the statement (Ex.P - 3) of the deceased in his presence and his signatures are there on this document marked A to B. He further deposed that ten to fifteen members of his family came to the hospital to look after deceased Ram Prasad. Janki Prasad (PW-2) stated that Mahindra Singh also accompanied Ram Prasad while he was taken to the hospital for his treatment. Half of his family members are residing at Dholpur. He further admitted that at the time when the alleged dying declaration of deceased was recorded, many of his family members were present. He has given out the names of those persons who were present - Hari Kant, Krishna Kant, Jai Prakash, Babu Lal, Mahindra Singh , Surendra Singh and Pappu. Babu Lal (PW-5) is the uncle of deceased Ram Prasad. Jai Prakash is the son of Janki Prasad (PW-2). Mahindra Singh and Surendra Singh are the sons of Babu Lal (PW-5). Mahindra Singh son of Janki Prasad, who was posted in the General Hospital, Dholpur as compounder, was also present there. In fact he got deceased Ram Prasad admitted in the hospital. 21. As per the prosecution case the motive of the accused appellants to kill Ram Prasad was with regard to some land dispute. Janki Prasad (PW-2);in his cross - examination admitted that there was enmity between the accused appellants and the deceased Ram Prasad in connection with the Nihal-Singh-wala field. 21. As per the prosecution case the motive of the accused appellants to kill Ram Prasad was with regard to some land dispute. Janki Prasad (PW-2);in his cross - examination admitted that there was enmity between the accused appellants and the deceased Ram Prasad in connection with the Nihal-Singh-wala field. The registry of that field has not been produced nor he knows about the date of registry but he has given out that about five years back the registry was got done. He further stated that the registry was made in the names of Mahindra Singh, Surendra Singh and Jai Prakash. He further admitted that the land in dispute is in their possession. 22. Mahindra Singh and Surendra Singh sons of Babu Lal (PW-5) and Jai Prakash son of Janki Prasad (PW-2), admittedly, were in possession of the land in dispute. 23. Babu Lal (PW-5) admitted that the registry of the land was got done in the name of Mahindra Singh, Surendra Singh and Jai Prakash. He made a categorical admission that the registry of this land was not there in the name of Ram Prasad or his sons. Babu lal. (PW-5) further admitted that before this occurrence took place there was/ho litigation between the accused appellant and deceased Ram Prasad and Janki Prasad (PW-2). 24. From the evidence, it is clear that there was no enmity or dispute between the deceased Ram Prasad and the accused appellants re this land. The dispute might have possibly been in between the Babu Lal (PW-5) and Janki Prasad (PW-2) on the one hand and the accused appellants on the other hand. Thus, in the facts of this case this possibility of tutoring or prompting of Ram Prasad by his relations cannot be ruled out. The possibility also can not be ruled out that this statement would have come as a result of vindictive of these persons. This is yet another ground which supports that it is not safe to place reliance on this dying declaration. Section 148, I.P.C. reads, "Whoever is guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both." Section 141,1.PC. reads, "141. Unlawful assembly. Section 148, I.P.C. reads, "Whoever is guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extent to three years, or with fine, or with both." Section 141,1.PC. reads, "141. Unlawful assembly. - An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is Third - To commit any mischief or criminal trespass, or other offence; or Explanation - An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly." Rioting as per Section 146 means, "146. Rioting. - Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common, object of such assembly, every member of such assembly is guilty of the offence of rioting." 25. Thus, to punish the accused appellant under Section 148, I.RC., the prosecution has to establish that they formed an unlawful assembly and they are guilty of rioting being armed with deadly weapons or with anything which was used as a weapon of offence, is likely to cause death. The essence of the offence under Section 141, I.P.C. is the common object of the persons of the unlawful assembly. Whether the object is in their mind at the time they came together or whether it occurs to them afterwards is not material. But it is essential that the object should be common to the persons who compose the assembly, that is, they should all be aware of it and concur in it. 26. Babu Lal (PW-5), in cross examination, stated that Chhitaria had not sold the agricultural land with reference to which the enmity has been alleged by him between the parties nor Chhitaria wanted to purchase that agricultural land. Sukha and Mahavir sons of Chhitaria have nothing to do with the disputed agricultural land nor the complainant have any dispute with them. Janki Prasad (PW-2), in his cross - examination, stated that Sukha and Mahavir had not sold any agricultural land. He has shown his inability to state whether there was any enmity in between the deceased Ram Prasad on the one hand and Sukha and Mahavir on the other hand, re this agricultural land. Janki Prasad (PW-2), in his cross - examination, stated that Sukha and Mahavir had not sold any agricultural land. He has shown his inability to state whether there was any enmity in between the deceased Ram Prasad on the one hand and Sukha and Mahavir on the other hand, re this agricultural land. He further stated in the cross examination that when his children were watering in the agricultural field, Har Narayan and his sons had fired on them and for this incident he reported to the police before six months. Janki Prasad (PW-2) nowhere stated that these five accused appellants were staying there and formed an unlawful assembly and having a common object of killing deceased Ram Prasad. 27. Similarly, Babu Lal (PW-5) has also not stated that these accused appellants have formed an unlawful assembly. 28. Janki Prasad (PW-2) stated that when he was going for meeting out the call of nature, on that fateful day, his uncle Babu Lal raised a hue and cry that Ram Prasad has been killed. On this he rushed to the place of occurrence and when he reached near to that field, accused appellant Birji @ Brij Kishore had inflicted lathi blow on the head of deceased Ram Prasad, second lathi blow was inflicted by him on the left hand of Ram Prasad. Accused appellant Kaiuti also inflicted one lathi blow on the leg of Ram Prasad. Ram Prasad fell down on the ground and thereafter the accused appellants inflicted several lathi blows. From this deposition we find that he specified only three injuries of lathi inflicted on the body of deceased Ram Prasad i.e. two by accused appellant Brij Kishore and one by Kaiuti. He further deposed that the field of the accused appellants was purchased by Nihal Singh and from Nihal Singh the filed was purchased by him and for this the accused appellants were having enmity with them. He was confronted with his police statement and the inquest report. He admitted that he has not stated to the police that all the accused had inflicted lathi blows on the body of deceased Ram Prasad after he fell down on the ground. Accused Kaiuti alleged to have inflicted one lathi blow on the leg of Ram Prasad, but in the inquest report he was not named. He admitted that he has not stated to the police that all the accused had inflicted lathi blows on the body of deceased Ram Prasad after he fell down on the ground. Accused Kaiuti alleged to have inflicted one lathi blow on the leg of Ram Prasad, but in the inquest report he was not named. Similarly it is also not there in Ex.P-2 that Kampotar, Kaiuti, Mahavir, Sukha and Birji @ Brij Kishore inflicted lathi blow on the deceased while he was lying on the ground. 29. Babu Lal (PW-5) stated that Birji @ Brij Kishore inflicted lathi blow on the head of Ram Prasad. Another lathi blow had been inflicted by him on his left hand. Deceased Ram Prasad fell down and then all the five accused appellants inflicted lathi blows on him. It is not in dispute that near to the place of this incident the fields of the accused - appellants are there. In the cross - examination he admitted that he is not in a position to state how many 1 blows were inflicted by accused appellants Kampotar, Kaiuti, Sukha and Mahavir. Injury report of deceased Ram Prasad is Ex.P-15 at page no.97 of the paper book. Dr. S.K. Garg (PW-11) found five injuries; all injuries are simple caused by blunt weapon. The injuries are as follows, 5 (1) Lacerated wound - Size 2 cm x 1/2 cm x deep Bone over left frontal region of scalp. (2) Lacerated wound - Size 1/2 cm x 1/2 cm with swelling around its at left upper arm. (3) Swelling - All around the upper ⅔ of left leg with lacerated 1 wound 1/2 cm x 1/2 cm tibiae tubercle. (4) Abrasion - Size 1/2 cm x 1/2 cm and 1 cm x 1/2 cm over right leg upper ⅓ cm anteriorly. (5) Bruise - Size 5 cm x 1 cm over left arm medially. The post mortem report gives out the following injuries, i (1) Lacerated wound - Size 2 cm x 1/2 cm x deep Bone over left frontal region of scalp near mid line 12.00 cm above the ear. (2) Bruise - Size 5 cm x 4 cm over right forearm lower ⅓rd post aspect with fracture of lower ⅓rd of shape of bone. (2) Bruise - Size 5 cm x 4 cm over right forearm lower ⅓rd post aspect with fracture of lower ⅓rd of shape of bone. (3) Lacerated wound - Size 1/2 cm x 1/2 cm with swelling around 2 its at left upper arm lower 1 /3rd anterior aspects, deep bone with fracture of human shaft. (4) Lacerated wound - Size 1/2 cm x 1/2 cm x deep muscle over left leg upper 1 /3rd anteriorly close to knee with fracture of both tibiae & fistula bone. (5) Abrasion - Size 1/2 cm x 1/2 cm and 1 cm x 1/2 cm over right leg upper ⅓ cm anteriorly. (6) Bruise - Size 15 cm x 2.1/2 cm over left thigh middle ⅓rd anterior medially. (7) Bruise - Size 5 cm x 1 cm over left upper arm medially ⅓rd : anteriorly. 30. The post mortem on the body of the deceased had been conducted by Dr. R.C. Goyal (PW-8). He opined that the cause of death is due to head injury no.1. 31. From this evidence we are satisfied that the prosecution has utterly failed to establish that the accused appellants have formed any unlawful assembly. Thus the conviction of the accused appellants under Section 148, I.P.C., as ordered by the learned trial court is not sustainable. 32. From the prosecution evidence we find that the a prosecution has failed to prove that the other accused appellants except Birji @ Brij Kishore has inflicted any injury on the body of the deceased. It is true that there were more than two injuries on the body of the deceased but merely on these number of injuries it cannot be taken that other accused appellants other than Birji @ Brij Kishore had inflicted injuries on the body of the deceased Ram Prasad. They cannot be made responsible for the injuries on the body of the deceased Ram Prasad. 33. As regards to accused appellant Birji @ Brij Kishore we find from the prosecution evidence that he had inflicted two lathi blows on the body of the deceased Ram Prasad, one is on the vital part by blunt weapon which has resulted in his death. 34. The prosecution has faiied to prove or establish any motive or intention of Birji @ Brij Kishore, to kill Ram Prasad. 34. The prosecution has faiied to prove or establish any motive or intention of Birji @ Brij Kishore, to kill Ram Prasad. From the evidence of Janki Prasad (PW-2) and Babu Lal (PW-5), it is not borne out that the accused appellant Birji @ Brij Kishore would have any enmity with the deceased Ram Prasad in connection with land dispute. Thus it is a case of culpable homicide not amounting to murder. Looking to the nature of the weapon used and the fact that the accused appellant had no intention to kill the deceased Ram Prasad, this case does not travel beyond Section 304 Part II, I.PC. The reference here may have to the following decisions of the Apex Court, 1. AIR 1983 SC 185 , Hari Ram v. State of Haryana 2. AIR 2000 SC 1876 , Masumsha Hasanasha Musaiman v. State of Maharashtra 35. In the result the appeal no. 615/97 succeeds and the same is allowed. The judgment and order dated 29.11.1997 of the learned Additional Sessions Judge, Dholpur relates to convicting the accused appellants Mahavir son of Chhitaria and Sukha son of Chitaria, both by caste Tyagi, Resident of Pepehera, Police Station Basai Dang, District Dholpur, and sentencing them for the offences under Sections 148 and 302 read with Section 149, I.PC., is quashed and set aside. They are acquitted of the charges for the offence under Sections 148 and 302 read with Sections 149, I.PC. They are on bail. Their bail bonds stand discharged. 36. The appeal No. 641/97 of accused appellants Kampotar and Kaiuti succeeds and the same is allowed. The judgment and order dated 29.11.1997 of the learned Additional Sessions Judge, Dholpur in Sessions Case No. 64/95 relates to convicting the accused appellants Kampotar son of Nadariya and Kaiuti son of Har Narayan Kampotar son of Nadariya and Kaiuti son of Har Narayan (by caste Tyagi, Residents of Piphera, Police Station Kaulari, District Dholpur) for the offences under Sections 148 and 302 read with Section 149, I.PC. and sentencing for the offences, is quashed and set aside. They are acquitted of the charges under Sections 148 and 302 read with 149,1.PC. They are on bail. Their bail bonds stand discharged. 37. The appeal No. 641/97 of appellant Birji @ Brij Kishore son of Har Narayan, By Caste Tyagi, Resident of Piphera, Police Station Kaulari, District Dholpur succeeds in part. They are acquitted of the charges under Sections 148 and 302 read with 149,1.PC. They are on bail. Their bail bonds stand discharged. 37. The appeal No. 641/97 of appellant Birji @ Brij Kishore son of Har Narayan, By Caste Tyagi, Resident of Piphera, Police Station Kaulari, District Dholpur succeeds in part. The judgment and order dated 29.11.1997 of the learned Additional Sessions Judge, Dholpur in Sessions Case No. 4/96 convicting and sentencing the accused appellant Birji @ Brij Kishore for the offence under Sections 148 and 302, I.PC. is quashed and set aside. He is acquitted of the charges for the offence under Sections 148 and 302, I.P.C. and in stead we convict him under Part II of Section 304, I.PC. In regard to the sentence we are informed that the accused appellant Birji @ Brij Kishore has already undergone 6 years and one month of sentence. We substitute therefor a sentence for the period already undergone and a fine of Rs. 500/- (Rs. five hundred). In default of payment of fine, the accused appellant to further undergo rigorous imprisonment for one month. In case the accused appellant deposits the amount of fine and if not required in any other case, he may be set at liberty forthwith.Appeal No. 615/97 allowed/Appeal No. 641/97 with respect `K' allowed and with respect to `B' @ `BK', partly allowed. *******