Judgment ( 1. ) BEING dissatisfied with the judgment dated 13th February, 1996 rendered in Sessions Trial No. 234/1995 by the learned III Add1. Sessions Judge, dewas, thereby he convicted the appellants for the offence under Sections 302/149, 147, 148, 323/149, IPC and respectively sentenced to suffer imprisonment for life, R. I. for one year, R. I. for two years and R. I. for one year each, the appellants have preferred this appeal. All the sentences were directed to run concurrently. ( 2. ) BRIEFLY stated the prosecution case before the Trial Court was that on 29-4-1995, in the night at about 1. 00 a. m. appellants reached Village sirvi Rampura at the house of deceased Budhia. They tried to take away daughter of Budhiya, Leelabai (P. W. 3 ). When Budhiya obstructed, they all had assaulted him by bow and arrow, iron chain and lathis. Budhiya died on the spot. When his wife Gitabai (P. W. 1), Madan (P. W. 2), Tarachand (P. W. 4) and his father Rugnathsingh (P. W. 11) tried to save Budhiya, they too were assaulted by the appellants. The appellants could not succeed in their desire to take away Leelabai (P. W. 3 ). The FIR was lodged by Gitabai (P. W. 1) vide ex. P-l next day early in the morning at 7. 30 a. m. It is further stated by the prosecution that the marriage of Leelabai (P. W. 3), the daughter of deceased budhiya was settled with appellant Mahesh, the son of appellant Ramsingh but the marriage was not solemnised for about three year. Therefore, they broke the engagement and settled the marriage of Leelabai with one Chouhan son of Bharmal and were preparing for marriage. The police party reached on the spot and after preparing inquest, sent the dead body of Budhiya for post-mortem examination. Post-mortem was performed by Dr. K. K. Sharma (P. W. 20) who found three injuries on the person of deceased; one lacerated wound at left Pinna, second lacerated wound on occipital region having depressed fracture and third is incised wound at the left thigh at middle one third. Post-mortem report is at Ex. P-29. He also examined Gitabai (P. W. 1), madan (P. W. 2), Tarachand (P. W. 4) and Rugnathsingh (P. W. 11) and found simple injuries on their person. Their MLC reports are vide Exs. P-26, P-27, p-25 and P-28 respectively. Post-mortem report is at Ex. P-29. He also examined Gitabai (P. W. 1), madan (P. W. 2), Tarachand (P. W. 4) and Rugnathsingh (P. W. 11) and found simple injuries on their person. Their MLC reports are vide Exs. P-26, P-27, p-25 and P-28 respectively. After necessary investigation, charge-sheet was filed. The learned Trial Court framed the charges against the appellants for the above mentioned offences and the same were denied by the appellants. They claims trial. The prosecution has examined as many as 20 witnesses to prove its case whereas appellants have not examined any witness. The appellants have been convicted as mentioned above. ( 3. ) WE have heard Shri Bhagwansingh and Shri M. S. Chouhan, learned Counsel for appellants, Shri G. Desai, learned Dy. A. G. for State and also persued the entire record. ( 4. ) THE homicidal death of deceased Budhiya has not been disputed by the Counsel for appellants. Even otherwise, looking to the medical evidence of Dr. K. K. Sharma (P. W. 20), his post-mortem report (Ex. P-29) and eyewitnesses account, the deceased met homicidal death. He suffered three injuries on his person and died due to coma because of head injury and excessive bleeding from injury number three at his thigh. Therefore, our conclusion is that deceased met homicidal death. ( 5. ) THE conviction of the appellants is based on the eye-witnesses account of Gitabai (P. W. 1), Madan (P. W. 2), Tarachand (P. W. 4) and rugnathsingh (P. W. 11 ). All these four witnesses had also received injuries in the same incident. The other eye-witnesses Leelabai (P. W. 3), Navalsingh (P. W. 5) and Antarsingh (P. W. 6 ). Navalsingh (P. W. 5) and Antarsingh (P. W. 6), though supported the prosecution case about the occurrence at the house of deceased Budhiya but they did not name as well as identify any of the appellants. Tarachand (P. W. 4) has also not named and identified any appellant in Court but in cross-examination, he has identified appellants Daryao, mohan and Chhagan. Rest of the witnesses have named all the appellants. According to these eye-witnesses, appellant Ramsingh was having arrow and bow, Madan was possessing chain and rest were having lathi. The specific overtact has been attributed for causing injury by arrow to Ramsingh. On the person of deceased, at the thigh, the doctor has noted incised wound. Rest of the witnesses have named all the appellants. According to these eye-witnesses, appellant Ramsingh was having arrow and bow, Madan was possessing chain and rest were having lathi. The specific overtact has been attributed for causing injury by arrow to Ramsingh. On the person of deceased, at the thigh, the doctor has noted incised wound. But we are of the opinion that looking to the nature and depth of injury, this injury could not be an incised wound but it was a penetrating wound and the eyewitnesses have rightly stated about use of bow and arrow by appellant No. 1 ramsingh. Against other appellants, general and omnibus allegations have been levelled. It is said that when they tried to take away Leelabai (P. W. 3), deceased Budhiya objected, thereafter they assaulted the deceased Budhiya and when witnesses Gitabai (P. W. 1), Madan (P. W. 2), Tarachand (P. W. 4)and Rugnathsingh (P. W. 11) tried to save Budhiya, they too were assaulted. All these witnesses have received simple injuries. ( 6. ) WE have carefully gone through the cross-examination of all these witnesses and found nothing very material in favour of the appellants which may discredit the testimony of these eye-witnesses. The learned Counsel for appellants have also not pointed out any glaring defect in the evidence of these witnesses. Therefore, the presence and participation of all the appellants in the alleged incident is fully proved and upto this extent, we find the evidence of the eye-witnesses trustworthy. Except one injury at the thigh, for other injuries on the person of deceased and the witnesses, their evidence is also duly corroborated by medical evidence. The evidence of Gitabai (P. W. 1) is also corroborated by FIR (Ex. P-l ). ( 7. ) NOW the moot question before us is to decide whether all the appellants are responsible for commission of murder of Budhiya or for some other offence. Looking to the prosecution allegations, the appellants had grievance regarding backing out of the engagement of appellant Madan with leelabai (P. W. 3), daughter of Gitabai (P. W. 1) and deceased Budhiya and when they came to know that her marriage was settled with some other boy, they came to take away Leelabai (P. W. 3 ). Gitabai (P. W. 1) has also stated that at the time of marriage engagement, she had taken Rs. Gitabai (P. W. 1) has also stated that at the time of marriage engagement, she had taken Rs. 300/- from appellant ramsingh and was ready to return the same after backing out from marriage. Therefore, their common object was to take away Leelabai and in pursuant to the same, on putting obstruction by Budhiya and other persons, they assaulted them. Since all came together having with weapon in their possession, they were the members of unlawful assembly as defined under Section 141 of the ipc whose common object was to illegally take away Leelabai (P. W. 3) from the house of Gitabai (P. W. 1) and deceased Budhiya and for fulfilling their object, they entered inside the house and also caught hold of Leelabai (P. W. 3) for taking her. Thereafter when objection was raised by deceased and other witnesses, the unlawful assembly assaulted them. In the light of these evidence, unlawful assembly had developed common object on spot for causing simple and grievous injuries to the deceased and other witnesses and in prosecution thereof, caused the same. The common object to develop "eo instanit" the same was committed immediately connected with the common object of the unlawful assembly, Le. , taking away/abduction of Leelabai (P. W. 3 ). Therefore, it could not be said that the unlawful assembly was having common object of commission of murder of deceased Budhiya but at the same time in the fact and circumstances of the present case, since they were having bow, arrow, iron chain and lathis in their possession and also used the same, all could have developed common object of causing grievous and simple injuries to the persons obstructing in fulfilment of their main common object. ( 8. ) THUS, we are of the opinion that conviction of the appellants under Section 302/149 of the IPC is not sustainable. Therefore, same is hereby set aside. The conviction of all the appellants under Sections 147, 148 and 323/149 are hereby affirmed and ordered to run concurrently and by now they have also completed their sentences for these offences. The concerned jail authority is directed to release them forthwith if not required in any other case. However, conviction of the appellants under Sections 302/149 of the IPC is altered into one under Section 326/149 of IPC. The concerned jail authority is directed to release them forthwith if not required in any other case. However, conviction of the appellants under Sections 302/149 of the IPC is altered into one under Section 326/149 of IPC. At this stage, we may conveniently refer the following recent judgments of the Supreme Court on the question of determination whether the assembly was unlawful and the same could develop common object for commission of some other offence on the spot. Gangadhar Behera and others Vs. State of Orissa, (2002) 8 SCC 381 , amzad Ali @ Amzad Kha and others Vs. State of Assam, (2003) 6 SCC 270 and bhimrao @ Ramesh Pandhari Bhade and others Vs. State of Maharashtra, (2003) 3 SCC 37 . ( 9. ) AS regards the sentence, we have been informed by the learned counsel for parties that appellants No. 1 Ramsingh, No. 2 Mohan, No. 5 chhagan and No. 6 Daryao are in jail since last eight years and eight months. Therefore, they all are sentenced to the period already undergone for the offence under Sections 326/149 of IPC. ( 10. ) SO far as the appellant No. 3 Mahesh and No. 4 Bahadur are concerned, they are on bail. They remained in total 13 months and 10 months respectively. In the evidence of all the eye-witnesses, no specific overtact for causing any serious injury has been levelled against these two appellants. At the time of incident, they were aged about 20 years. The learned Counsel has submitted that now both are married and settled persons having responsibility of their wives and minor children. Therefore, in the fact and circumstances of the case, now it would not serve any purpose to sent them jail by imposing heavy punishment. Thus, we are of the opinion that the ends of justice would be made to sentence them to period already undergone in all the counts. They are on bail. Their bail bonds and surety bonds stand discharged. They come from Tribal Community (Bheel) and earning their livelihood by labour work; therefore, no useful purpose would be served to impose sentence of fine. ( 11. ) IN the result, the appeal is partly allowed in the terms indicated hereinabove. Criminal Appeal partly allowed.