JUDGMENT 1. - The present appeal has been filed against the judgment of the Court of the learned Additional Sessions Judge, Fast Track, Jalore in Sessions Case No. 50/2001 (old 12/2000) dated 11.2.2002. The trial Court has tried the five accused appellants of the offences under sections 447, 302, 302 read with 149 and 323 read with 149 Indian Penal Code and sentenced each of them as under: (i) 147 Indian Penal Code : Simple imprisonment for 2 years. (ii) 447 Indian Penal Code : Simple imprisonment for three months. (iii) 302 Indian Penal Code : (Appellant Mangilal):-Imprisonment for life and a fine of Rs. 3000/-. In default of payment of fine to further undergo simple imprisonment for six months. (iv) 302 read with 149 Indian Penal Code (Rest all the four appellants) :-Imprisonment for life and a fine of Rs. 3,000/- In default of payment of fine to further undergo simple imprisonment for six months. (v) 323 read with 149 Indian Penal Code : Simple imprisonment for one year. 2. The prosecution was initiated on the basis of a first information report lodged with Police Station, Aahore by PW-2 Hari Ram @ Harish on 20.3.2000 at 5.00 p.m. According to the first information report, at about 4.30 p.m., while the complainant was sitting at his well and his father Koia Ram deceased was sitting in the court-yard of the house of Hanja Ram, at that time, all the five accused persons came goether armed with lathies. At the time when they reached at the house of Hanja Ram, Mangilal exhorted that today is the occasion when they can be finished and while saying so, Mangilal inflicted a blow by lathi on the head of deceased Koia Ram. The other accused persons also started causing injuries. They caused injuries to Hari Ram, Hanja Ram and Narpart, who intervened. The deceased had sustained grievous heart (sic hurt) on the head. Due to the impact of the injury, Koia Ram became unconscious. The injured was taken to the hospital. Th.- doctor opined that it is not possible to treat Koia Ram at the local hospital and it was advised that he be taken at Jodhpur where better medical facilities are available. Koia Ram was shifted to Jodhpur where he succumbed to the injuries on 21.3.2002. The injuries sustained by Koia Ram in the incident are as follows: 1. Th.- doctor opined that it is not possible to treat Koia Ram at the local hospital and it was advised that he be taken at Jodhpur where better medical facilities are available. Koia Ram was shifted to Jodhpur where he succumbed to the injuries on 21.3.2002. The injuries sustained by Koia Ram in the incident are as follows: 1. Lacerated wound 7.5 x 1 x 3/4 cm., bleeding present. 2. Swelling over forehead. 3. Bruise 20 x 3 cm. 3. After post-mortem, the doctor had opined that cause of death was injury on head which was sufficient in ordinary course of nature to cause death. At the trial, prosecution examined as many as 16 witnesses and exhibited 39 documents. The accused, in their statements under section 313 Criminal Procedure Code denied their complicity. Accused Mangilal, under section 313 Cr.P.C., submitted that while he was going to purchase sweets to Aahore, near the house of Narpat, he was stopped and abused, therefore, he returned to home. At about 4.00 p.m., while he was going to perform doondh of his child, the accused persons stopped him and he was given beating by lathies. Koia Ram caused lathi injuries to his father. Narpat also caused injuries to his father. Koia Ram came in between and thus sustained the lathi blow. Bhura Ram, Vagta Ram, Hastimal, Sumermal and Bheema Ram intervened and got them released. Thus, according to this accused, assault was initiated by the accused persons. Similar is the defence of accused Tara Ram, Vagta Ram, Bhura Ram and Hastimal. The defence examined DW-1 and DW-2 and has exhibited 12 documents. 4. The trial Court, after considering the evidence on record, came to the conclusion that the case of the defence, wherein it has been alleged that the accused were the assailants is not established. The defence is not reliable because the accused Mangilal has not sustained any injuries. The injuries have been sustained by other accused. If Mangilal was the target, then he would have definitely received some injuries as the other accused have sustained. In this background, the defence of the accused have not been accepted. The defence is not reliable because the accused Mangilal has not sustained any injuries. The injuries have been sustained by other accused. If Mangilal was the target, then he would have definitely received some injuries as the other accused have sustained. In this background, the defence of the accused have not been accepted. The learned trial Court was of the opinion that the injury inflicted by Mangilal being responsible for causing death of deceased, he is responsible for his death and was convicted under section 302 Indian Penal Code as well other offences and the other accused persons were convicted with the aid of Section 149 Indian Penal Code and other offences. 5. Learned counsel for the accused assailing the judgment, urged that it is not a case of common intention. Had there been common intention of all the accused persons to eliminate the deceased Koia Ram, then Koia Ram would not have received only one serious blow on his head. The number of injuries on the person of Koia Ram also suggests that five persons never formed a common object to inflict such injuries on the person of Koia Ram because had there been a common object and they were present with their arms and had caused injuries as has been alleged by the prosecution, then the number of injuries would have been much more than what has been sustained by the deceased. 6. The injury report is suggestive of the fact that every person present in the unlawful assembly as alleged was not desirous of causing any such injury which was responsible for causing death. Thus, the implication of Section 149 is not made out. Further, out of the accused persons, only Mangilal had caused a serious blow on the head of the deceased. The others are alleged to have only formed an object, common to cause the death. From the facts and circumstances of the case wherein the accused persons have also received injuries, it would not be safe to conclude that it was the unlawful assembly of the accused persons alone with a common object. 7. It was in fact the day of Holi. Both the parties had deep seated crunch against each other because three months prior to the incident, there had been elections in the Gram Panchayat and both the persons fell in a political rivalry. 7. It was in fact the day of Holi. Both the parties had deep seated crunch against each other because three months prior to the incident, there had been elections in the Gram Panchayat and both the persons fell in a political rivalry. That being the position, the temper ran high on the day of the incident. In fact case of free fight is the legitimate description of the happenings of that day. If both the parties assaulted each other to settle the matter then no case of common object can be said to be made out. In fact what transpires is that to settle down their courses, they had assaulted each other. But all this is not sufficient to demonstrate that any common object was formed. It was only at the spur of the moment that Mangilal, who had not sustained any injury, inflicted a serious blow on the head of the deceased in his own wisdom. It can not be said that his intention was shared by the other accused persons. Thus, it would be safe to conclude that there was no common object of unlawful assembly to cause death. In this background, this would further be relevant to observe that this was only a kind of grievance settling matter wherein both the parties came in front of each other and thought of inflicting such blows which would satisfy them. 8. Since two injuries other than the one sustained by the deceased Koia Ram on the head are simple in nature, it can be safely inferred that the common object of the assembly was ! o cause simple hurts. One of them, namely, accused Mangilal had caused a grievous hurt on the head of the deceased. It became a case of free fight. Thus, each individual should be held responsible for the act committed by him and common object should not be read against the accused persons. 9. The learned counsel for the accused-appellants further urged that according to the first information report, it was Mangilal alone who caused injury on the head of the deceased. It became a case of free fight. Thus, each individual should be held responsible for the act committed by him and common object should not be read against the accused persons. 9. The learned counsel for the accused-appellants further urged that according to the first information report, it was Mangilal alone who caused injury on the head of the deceased. Though, at the later stage, another accused has also been named to have caused injuries but the same have not been supported by the contents of the FIR, it would be safe to conclude that it was Mangilal alone who was responsible for causing grievous hurt on the head of the deceased Koia Ram. Thus, the act of causing injuries to the deceased Koia Ram on head is assigned to Mangilal. 10. Only one injury has been assigned to Mangilal. It cannot be said that the offence of murder would be made out against him. The eye witness cannot be considered to mean that it was an intended injury caused to the deceased by Mangilal when a case of free fight is made out and both the parties caused injuries to each other necessary intention to cause death can not be inferred as of course. PW-2 Hari Ram says that an injury has been inflicted on the head of the deceased, but then, he is the son of the accused and he would naturally exaggerate and would blow out of the proportion the act committed by Mangilal. There being animus in the parties, there is always trend to assign such acts to the accused persons which would have the effect of bringing home a serious offence so as to get a serious sentence awarded to the accused. Such latitude should not be given to the prosecution because the deceased had sustained one injury on head. He had not died immediately and it was after 24 hours, when he was shifted to the Jodhpur Hospital, the man had died. 11. The learned counsel for the defence has further urged that since a hurt has been inflicted on the head of the deceased, it was not the direct result of the injury inflicted by the accused Mangilal that the deceased Koia Ram had died. It was the non-resolution of the hametoma which had ultimately caused the death of Koia Ram. 11. The learned counsel for the defence has further urged that since a hurt has been inflicted on the head of the deceased, it was not the direct result of the injury inflicted by the accused Mangilal that the deceased Koia Ram had died. It was the non-resolution of the hametoma which had ultimately caused the death of Koia Ram. Had the hametoma been dissolved by the treatment afforded to the deceased, the death might not have occurred. Thus, the learned counsel for the defence urged that the offence under section 302 is not made out and offence can only be said to be one wherein it can be said that the accused Mangilal is guilty of causing such injury which was not responsible in ordinary course to cause death and the offence should be held to be covered by Section 304 (1) or 304(2) Indian Penal Code. It was further urged that it was the blow of Narpat Singh, which had landed and thus Mangilal cannot be held responsible. 12. The learned counsel for the State urged that it would be wrong to say that the accused having formed an assembly, it can be said to be unlawful assembly because they were armed, they went to the house of Hanj a Ram where the deceased was sitting and they caused the injuries. Thus, they had already intended to cause harm to the deceased. The deceased alone was singled out in the first place to be inflicted injury and there was pronounced intention uttered by the accused Mangilal. The other accused persons accompanied him and also supported him by inflicting other injuries. Thus, it cannot be said that the accused were not part of an illegal gathering which had the object of eliminating the deceased Koia Ram. Thus, offence under section 302 read with Section 149 Indian Penal Code cannot be said to have been wrongly held by the trial Court. The injuries sustained by the accused persons are explainable when so many persons indulged into causing injuries, then such injuries may be sustained and, therefore, the case of self defence is not made out. 13. We considered the arguments advanced by the learned counsel for the appellant as well learned Public Prosecutor. We perused the record also. 14. So far as occurrence of the incident wherein one Koia Ram died is concerned, it is not in dispute. 13. We considered the arguments advanced by the learned counsel for the appellant as well learned Public Prosecutor. We perused the record also. 14. So far as occurrence of the incident wherein one Koia Ram died is concerned, it is not in dispute. The only dispute is that how Koia Ram die? According to the prosecution, the accused persons formed the unlawful assembly and had common object to eliminate the victim Koia Ram whereas the defence of the accused persons is that while accused Mangilal was going to purchase sweets and when he was passing through the house of Narpat, he stopped Mangilal and abused him, therefore, the accused Mangilal returned back to his home. At about 4.00 p.m, Mangilal was going for doondh of his child, then in front of the house of Narpat; Narpat, Harish, Hanja Ram, Koia Ram, Dilip Kumar and Uda Ram again stopped him and started beating with lathies. Koi Ram hit lathi blow to father of Mangilal while Narpat was hitting lathi upon the father of Mangilal, all of sudden Koia Ram came in between and the lathi blow was hit on the head of Koia Ram and Koia Ram died, therefore, accused appellants are not guilty for the offence. For this incident, an FIR Ex.D/11 was also lodged. 15. The prosecution produced witnesses in which witnesses PW-1 Smt. Tulsi, PW-2 Hari Ram @ Harish, PW-3 Hanja Ram, PW-4 Narpat and PW-5 Smt. Vimla who are the injured persons where as PW-9 is one more eye witness of the incident. All these witnesses fully supported the prosecution case and stated that when deceased Koia Ram was sitting with Hanja Ram, Narpat and Smt. Vimla in the court-yard of Hanja Ram, at about 4.00-5.00 p.m., accused persons Tara Ram, Mangilal, Vagta Ram, Hastimal and Bhura Ram came with lathies and Mangilal hit the lathi on the head of Koia Ram. He also uttered that today is the right occasion to kill Koia Ram. The FIR was lodged immediately by Hari Ram @ Harish S/o Koia Ram PW-2 at 5.00 p.m. As per the site inspection report Ex.P/3, blood was found in the court-yard of the house of Hanja Ram and as per the FSL Report Ex.P/29, the blood was human blood. Against this, the defence witnesses DW.1 Bhoma Ram and DW-2 Sumermal gave their statements in support of the defence story. Against this, the defence witnesses DW.1 Bhoma Ram and DW-2 Sumermal gave their statements in support of the defence story. As per the case set up by the defence, the incident took place outside the house of Narpat and in the fight, DW.2 Sumermal suffered injury in the head and according to DW.2 Sumermal himself, his blood fell on the ground. This statement is not supported by the site inspection report Ex.D-12 produced by the defence wherein there is no mention of blood on the spot. It is further relevant to mention here that according to defence, the intention of Narpart and others was to hit Mangilal and they were six in number but there is no injury on the person of Mangilal. If Mangilal was the target, then he would have definitely received some injuries. It is also clear from the statement of injured persons as well as eye witness that nothing has come out from the cross-examination of these witnesses which may caste any doubt upon the credibility of the statements of the said witnesses which ae supported by the other evidence also. The trial Court, therefore, was right in holding that in fact incident took place in the chowk of the house of Hanja Ram and also was right in holding that the incident did not occurred on main road outside the chowk of Hanja Ram. 16. In the light of the statements of the witnesses produced by the prosecution, it is fully proved that Koia Ram suffered injuries from the blow of lathi hit by the accused Mangilal. The doctor also opined that Koia Ram died because of the injury on the head which caused the hametoma and as per the opinion of the doctor, in ordinary course, the injury was sufficient to cause death. The defence tried to submit that the said injury might have caused by felling of Koia Ram while he was taken in vehicle or while bringing him out of vehicle but there is no evidence in support of such a suggestion. 17. From the evidence of the prosecution as well as from the evidence of the defence, it is clear that both the parties had deep crunch against each other and before the incident, about three months ago, there were Panchayat Elections and both the parties developed some political rivalry. 17. From the evidence of the prosecution as well as from the evidence of the defence, it is clear that both the parties had deep crunch against each other and before the incident, about three months ago, there were Panchayat Elections and both the parties developed some political rivalry. The reason for rivalry may be different, but it is not in dispute that temper ran high on the day of incident. It appears from the facts that to settle down the old score, at the spur of moment, Mangilal had inflicted a serious blow on the head of the deceased which ultimately resulted into death of the victim Koia Ram. Gathering of all persons of a common group at the occasion of Holi festival in the village appears to be more logical. The moving with lathi at the occasion of Holi is not uncommon, rather it is more common. Therefore, it would not be safe to conclude that there was common object of all the accused and they formed unlawful assembly to cause death of Koia Ram. It appears from the evidence produced on record that to settle the old score, both the parties came in front of each other to teach lesson to others inflicted the lathi blow. It appears that common object of the assembly was to cause simple hurts but the accused Mangilal shown his intention by uttering the words that this is the right time to eliminate Koia Ram and it shows that the accused Mangilal had intention to kill Koia Ram. Therefore, the other accused persons Tara Ram, Vagta Ram, Bhura Ram and Hastimal cannot be held guilty of sharing common object to kill Koia Ram. 18. Apart from above, the number of injuries on the person of Koia Ram is only one. If five persons had common object to kill Koia Ram, he would have suffered more injuries as they all were having arms with them. Therefore, no case under section 149 Indian Penal Code is made out. It is clear from the evidence that out of all, only Mangilal had caused serious injury on the head of the deceased. If five persons had common object to kill Koia Ram, he would have suffered more injuries as they all were having arms with them. Therefore, no case under section 149 Indian Penal Code is made out. It is clear from the evidence that out of all, only Mangilal had caused serious injury on the head of the deceased. It is clear from the force used by Mangilal for hitting on the head of Koia Ram that he new (sic knew) it well that in the ordinary course if such a force is used and blow is on the head, in ordinary course, the victim is bound to die. We do not find any force in the submission of the learned counsel for the appellant that the injury was not sufficient in ordinary course to cause death of a person and, therefore, the contention of the learned counsel for the appellant that at the most, the offence is covered under sections 304(1) or 304(2) Indian Penal Code is rejected. 19. Therefore, the trial Court though rightly convicted the accused appellant Mangilal under section 302 Indian Penal Code and under Sections 147, 447 and 323 of the Indian Penal Code. It was not resulted in convicting the other accused appellants under section 302/149 Indian Penal Code. 20. In view of the above discussions, the appeal of the accused appellant Mangilal is dismissed. He is behind the bars, he should serve out his sentence. The appeal of the accused appellants Tara Ram, Vagta Ram, Bhura Ram and Hastimal is partly allowed. Their conviction and sentences under section 302/149 Indian Penal Code is set aside. Their conviction under sections 147, 447 and 323 Indian Penal Code is maintained. They are sentenced to period already undergone. They are on bail. Their bail bonds stands cancelled.Appeal partly allowed. *******