JUDGMENT 1. - This appeal was filed by six accused persons namely Heera, Mehga, Soji, Mangi Lal, Pyara and Naru who were tried by the Court of Addl. Sessions Judge (Fast Track), Bhilwara in Sessions Case No. 47/01. The accused persons were convicted and sentenced by the judgment passed by the Anil. Sessions Judge, Bhilwara dated 29.11.2001 which is as under : Name of The Accused Punished & Sentenced As Under 1. Heera Under Section 147 IPC one year R.I. & Rs. 100/- and in default of fine 7 days R.I. u/s. 148 IPC two years R.I. and fine of Rs. 200/- & in default of fine 15 days R.I. Offence u/s. 302 IPC r/w 149 IPC L.I. And Rs. 500/- fine and in default of fine three months R.I. For offence u/s. 3/27 of the Arms Act. 2 years R.I. & imposed fine of Rs. 200/- & in default of fine one months S.I. 2. Megha 3. Soji 4. Mangi Lal 5. Naru 6. Pyara For offences falling u/s. 147 IPC One year R.I. & fine of Rs. 100/- each and in default of fine 7 days R.I. For offences u/s. 148 IPC 2 years R.I. And fine of Rs. 200/ each & in default of fine 15 days R.I. For offences u/s. 302 r/w 149 IPC L.I. & in default of fine Rs. 500/- and in default of fine order to three months R.I. All the sentence so awarded to the accused-appellants in the above manner were ordered to be run concurrently. 2. Being aggrieved by the conviction and sentence the accused-appellants filed this appeal. During the pendency of appeal, accused-appellant-Pyare died, therefore his appeal was held to be abated. Presently, the appeal is considered on behalf of five accused persons Heera, Megha, Soji, Mangi Lal and Naru. The prosecution story as given out in First Information Report Ex.P/8 narrates that complainant near the Govata Dam had sown wheat in about 5 Bigha of land. He lives there is a hut alongwith his mother, brother and sister-in-law. Shanker who is uncle in relation, of the informant came at about 9.30 a.m. in the morning. He brought wheat seeds, at that time informant alongwith Madhu, Harla and Shanker were smoking Bidi. 3. At about 10.00 a.m. all the accused persons Heera, Pyara, Naru and Megha came there. They were accompanied by Mangi Lal and Soji. Shanker who is uncle in relation, of the informant came at about 9.30 a.m. in the morning. He brought wheat seeds, at that time informant alongwith Madhu, Harla and Shanker were smoking Bidi. 3. At about 10.00 a.m. all the accused persons Heera, Pyara, Naru and Megha came there. They were accompanied by Mangi Lal and Soji. Heera was armed with gun others were armed with axe. On their arrival they abused Shanker. Heera fired his gun which hit Shanker, when Shanker started running he was followed by accused persons and axe injuries were inflicted by the accused. He fell near the hut of Dhokera, Shanker, was tried to be rescued, but he succumb to his injuries. At that time, Madhu was sent to inform the police. The information of Madhu was recorded by police as report in Roznamcha as Ex.P/22 and not considered as FIR. The information given by the complainant was latter on recorded in detail. On such report, investigation was started. After completion of the investigation by police station Mandalgarh, charge-sheet was filed against these six accused persons. The trial was held against them. Accused-Pyara has died during the pendency of appeal. The present appeal is being considered on behalf of remaining five accused persons. At the trial, charges were framed against all the accused persons under following Secs. 147, 148, 302/148 IPC and against accused-Heera additional charge u/s. 3/27 of the Arms Act. Accused denied the charges and claimed trial. 4. At the trial, prosecution examined twenty witnesses and exhibited 34 documents and tendered articles in evidence. The accused were examined u/s. 313 Cr.P.C. wherein they submitted that the evidence against them is false and denied their implication. The trial Court after considering the case of the accused persons and evidence of the eye-witnesses examined PW-6 Madhu PW-7 Balu, PW-8 Foren and PW-12 Rukma convicted the accused. On the statement of eye-witnesses participation of the accused persons to the effect that Heera fired gun shot, accused-Megha and Naru gave axe blows. Accused-Pyara inflicted injuries by lathi and accused-Soji and Mangi Lal inflicted injuries by stones was held proved. The medical report showed that deceased has following injuries on his person : "Injuries. - 1. Incised wound 03 x 1 cm and deep to skill bone on frontal area with fractured underlying bone. 2. Accused-Pyara inflicted injuries by lathi and accused-Soji and Mangi Lal inflicted injuries by stones was held proved. The medical report showed that deceased has following injuries on his person : "Injuries. - 1. Incised wound 03 x 1 cm and deep to skill bone on frontal area with fractured underlying bone. 2. Incised wound size 05 x 20 cm and skill bone on right parietal area, with fractured underlying bone. 3. Incised wound 2 x 3 cm on right parietal area. 4. Incised wound 41/2 x 2 x 1 cm on right temporal area. 5. Incised wound 5 x 1 cm deep to kill bone or area with fractured underlying bone. 6. Oval shaped entrance wound of 1/4 x 1/4 inches with collar abrasion above left iliac crest in mid axillary. 7. Oval shaped wound of 1/4 x 1/4 inches with collar abrasion on left gluteal area. 8. Abrasion 3 x 2 cm on left leg middle ⅓ part. 9. Abrasion 4 x 3 cm on right side of back. 5. Out of nine injuries which were allegedly inflicted by the accused, five were incised wounds, two were gun shot and remaining two were abrasions. According to the medical opinion of the doctor the death had occurred due to axe injuries on the person of the deceased. The axe injuries were inflicted primarily on or around head. The trial Court has observed that the testimony of eye- witnesses as given in the Court has remained intact. The trial Court also found that at about 10.00 a.m. accused came in a group having formed a common object of finishing the deceased-Shanker. The recoveries of the weapons have also been believed by the trial Court. Since the accused come armed with lethal weapons, offences u/s. 148 IPC was held proved by the trial Court. 6. The trial Court also considered that number of gun shots fired by Heera. Though the number as deposed was discrepant but the witnesses have seen Heera firing the gun. The discrepancy can occur in describing the number of shots. It is very difficult to conceive as to how many gun shot were released when accused fired from gun. There are gun shot injuries, therefore, the fact is corroborated by medical evidence. 7. The trial Court has also came to the conclusion that accused-Megha and Naru used their axes. The discrepancy can occur in describing the number of shots. It is very difficult to conceive as to how many gun shot were released when accused fired from gun. There are gun shot injuries, therefore, the fact is corroborated by medical evidence. 7. The trial Court has also came to the conclusion that accused-Megha and Naru used their axes. The injuries were inflicted on the vulnerable part of the body. According to the medical opinion the cause of death was head injuries. The participation of accused-Pyara by lathi was also held proved because there were two abrasions. The trial Court also considered the participation of the Mangi and Naru and came to the conclusion that they have thrown stones. Their being injuries on the head they could be sustained by stones and therefore their implication has also been held proved and thus, the trial Court was of the opinion that design of the accused persons sharing in common object is properly established. The trial Court held that offence u/s. 302/149 IPC is proved against the accused. Offence u/s. 147 and u/s. 148 IPC also held proved against accused. Offence u/s. 3/27 of the Arms Act was held against the accused-Heera. Against the other accused persons offence u/s. 3/27 of the Arms Act was not considered as the gun was only with Heera. Thus, the trial Court found the case of the prosecution is established. 8. Learned counsel for the appellants assailing the conviction urged that the prosecution case is wrongly held proved by the trial Court. The story has not been faithfully narrated by the prosecution witnesses. The case of the prosecution ignored the fact that there was no immediate cause coming forward, wherein the accused persons could have form the common object. Thus, the trial Court fell in error in convicting all the accused persons with the aid of Section 149 IPC. 9. According to the learned counsel for the appellants it was a not consorted attack by the accused persons. Infact it was a "Lathi Bhatta Jung" in between both the groups i.e. accused and the complainant party. There have been injuries sustained by the accused-Heera, Naru and Pyara. To establish his point learned counsel for the appellants has relied on Ex.P/18, P/19, P/20, these are the injury report of Pyara, Heera and Naru. Infact it was a "Lathi Bhatta Jung" in between both the groups i.e. accused and the complainant party. There have been injuries sustained by the accused-Heera, Naru and Pyara. To establish his point learned counsel for the appellants has relied on Ex.P/18, P/19, P/20, these are the injury report of Pyara, Heera and Naru. The learned counsel for the appellants has stressed that prosecution has failed to explain the injuries sustained by the accused persons. If the injuries of the accused persons are not explained then it should be held that the prosecution has failed in discharging its obligation. It was required to explain as to how these accused persons sustained injuries. According to the learned counsel for appellant failure on the_part of the prosecution to explain the injuries of the accused persons knocks out the bottom of the prosecution case. Finding of the trial Court that there was a common object of all the accused persons cannot be sustained. This is a case where both the parties indulged in a fight. If there is a fight in which both the parties indulged then it becomes a case of free fight and each of the accused should be held responsible for the injuries caused by them. 10. Learned counsel for the appellants further urged that there was a bone of contention in between the parties. Accused-Heera had enticed daughter of Madhu consequence of enticing away of the girl resulted into a fight in which death of Shanker occurred. Shanker was the uncle of Madhu. In this manner it was an act which resulted into launching of a false case. Learned counsel for the appellants further submits that independent witness. PW-7 Balu who had deposed that there was a feast, where around 300-400 persons were there on the fateful day, at the relevant hour, but none out of the crowd have been produced. The prosecution has deliberately withheld the independent eye-witness. 11. Learned counsel for the appellants further stressed that all the eye- witnesses who has supported the prosecution case are related witnesses. Madhu is the uncle of the deceased. PW-8 Feru is the sister and all other witnesses are also stated to be very closely related and therefore, the prosecution rests only on interested relative witnesses and cannot be believed. Being interested witnesses, they were interested in falsely implicating the accused persons. Madhu is the uncle of the deceased. PW-8 Feru is the sister and all other witnesses are also stated to be very closely related and therefore, the prosecution rests only on interested relative witnesses and cannot be believed. Being interested witnesses, they were interested in falsely implicating the accused persons. Learned counsel further submitted that First Information Report was sent late to the Court and no explanation is coming forth why the FIR was sent late to the Court. Learned counsel for the appellants was of the opinion that no case has been made out against the accused as alleged by the prosecution witnesses. They are entitled to acquittal. 12. Per contra, learned Public Prosecutor have urged that it is plain and simple case wherein the accused persons gather together armed with lethal weapons and caused the desired injuries. Injuries resulted into death of Shanker. They came together and caused such injuries and such causing of injuries resulted into death. Thus, case is established and found proved by the trial Court cannot therefore be considered to be one which is not rightfully concluded by the trial Court. The offence as alleged have been found proved by the trial Court at rightful stage. The sentence awarded too are correct and therefore, no fault can be found out with the prosecution case. 13. We have considered the arguments advanced by the learned counsel for the appellants and learned Public Prosecutor. Perused the material available on record. The most important aspect of the case which requires examined by us is medical report. 14. According to the post-mortem report there were five incised wounds on or around head of the deceased. It was alleged to have been inflicted by the accused-Megha and Naru who were armed with axes. The injuries sustained on the head are incised wounds. According to the eye-witness account, these accused persons had caused injuries to the deceased by axes. Thus their implication if believed then there are the persons responsible for causing head injuries on the person of deceased-Shanker. These injuries have resulted into the death of deceased. The eye-witnesses has given an account of the case of the prosecution. They have established that accused-Naru and Madhu caused axe injuries, after Heera had fired gun at the deceased-Shanker. In cross-examination, participation of these three accused persons have not been knocked out. These injuries have resulted into the death of deceased. The eye-witnesses has given an account of the case of the prosecution. They have established that accused-Naru and Madhu caused axe injuries, after Heera had fired gun at the deceased-Shanker. In cross-examination, participation of these three accused persons have not been knocked out. The eye-witnesses account appears to be correct and thus participation of these accused, by infliction of injuries by axe, cannot be found to be false. Infliction of injuries by the two accused persons preceded gun shot fired by Heera. Gun shot have been effective and there were injuries on the person of the deceased by gun shot. By eye-witnesses account participation of Heera on this count also stands established. It cannot be said that eye-witnesses account on this aspect is not trustworthy. 15. If we looked at the post-mortem report out of nine injuries, seven comes in the share of Heera, Naru and Megha. This leaves us with two injuries which were abrasions. According to the eye-witnesses, these abrasions were caused by lathi blow given by Pyara to deceased-accused. Pyara is the accused who had died during the pendency of the appeal. All the nine injuries sustained by the deceased stands assigned to the three accused-appellants and one deceased-accused. Four are caused said to be by Megha, Naru, Heera has caused gun shot wound, Pyara is responsible for abrasions. Now remains the case of Soji and Mangi Lal. 16. Allegations against them are that they inflicted injuries by stones. No blood stained stones were recovered. It was further alleged that they were sharing the accused common object with other accused. Failure of the establishment of the fact that there was any blood on the stones dilutes the case of prosecution. Further nature of injuries do not suggest that there was any injuries by stones. It may also be noticed that when weapons like axe and gun are used, stones will be a mild proposition. 17. Thus as far as the participation of the accused-Soji and Mangi Lai become doubtful. Inflicting of actual injuries are concerned no corroboration is available in this regard. These accused have been convicted with the aid of Section 149 IPC. As the prosecution story goes no pre-meditation or per-concerned of the accused has been deposed by any of the prosecution witnesses. Prosecution case is that they came together and caused injuries. Inflicting of actual injuries are concerned no corroboration is available in this regard. These accused have been convicted with the aid of Section 149 IPC. As the prosecution story goes no pre-meditation or per-concerned of the accused has been deposed by any of the prosecution witnesses. Prosecution case is that they came together and caused injuries. First injury was caused by Heera by firing a gun shot. His firing the gun shot was not sufficient to finish Shanker and therefore, the other accused persons caused injuries. It has been said that accused-Megha and Naru who caused injuries to the deceased by axes after the deceased wanted to make his escape good. Shanker has already been hit by a gun shot. These two accused persons cannot be said to have shared intention with Heera. These two accused persons were there only. The accused- Soji and Mangi Lal having been alleged with participation. It has not been found established by medical evidence. It shows that they had not participated in the actual assault. 18. The documents produced at the trial showed that the accused have also sustained some injuries though simple. None of the eye-witness have shown as to how these injuries were sustained by the accused persons. Sustaining of the injuries by the accused persons is recorded as Ex.P/18, 19 & 20 injury reports of Pyara, Heera and Naru. It shows that story as given by the prosecution lacks the faithful deprecation of the beginning of the story. The version has not been deposed correctly from its beginning. It would be hazardous to conclude that there was a common object of all the accused persons. It can be said to be established. This leads us to infer that the findings of the learned Single Judge regarding sharing of the common intention of the accused persons is not based on correct apprehension of facts. These two accused persons are entitled to benefit of doubt. 19. Witness of the prosecution that prosecution has not correctly demonstrated as to how the quarrel started. If there are doubts about the beginning of the prosecution story then naturally we will have to look forward as to what could be the next course of action in the instant case. The injuries sustained by the accused are of the minor character but none the less they are the injuries sustained in the same occurrence. If there are doubts about the beginning of the prosecution story then naturally we will have to look forward as to what could be the next course of action in the instant case. The injuries sustained by the accused are of the minor character but none the less they are the injuries sustained in the same occurrence. That being the position we are persuaded that each individual accused should be assessed for his individual participation, instead of going for a finding that they shared a common object. The confusion which have been left by the prosecution unexplained excludes the possibility of their being any common object. 20. If the findings of the common object is disturbed by us then that leads us to the fact that these two accused persons namely Soji and Mangi Lal are not liable to be convicted with the aid of Section 149 IPC. 21. The aforesaid being the position, if we look at the individual participation of Soji and Mangi Lal then they are alleged to have caused injuries by stones which are missing. This leaves us to conclude that they did not participate in causing any injury to the deceased thus their conviction u/s. 302/149 IPC cannot be sustained so also their conviction u/ss. 147 & 148 IPC also cannot be sustained. 22. Considering the case of the accused-Megha and Naru these accused were armed with axe, having inflicted five injuries to the deceased which resulted into death. They were the persons responsible for causing death of the deceased. By injuries inflicted by them. Prior to them Heera alleged to have fired gun shot. A person using a gun when fires at a man cannot be considered to be one who would not have intending to cause such injury which would be sufficient to cause the death of the victim. The victim has infact died. The injured has infact died by head injuries inflicted by Naru and Megha but this fact cannot be lost sight the that Heera started the assaulted. These three persons were convicted with the aid of Section 149 IPC alongwith two accused persons. The participation of the two accused persons have been held to be not established the common object ceases to remain. We are left with these three accused persons namely Heera, Megha and Naru they cannot be convicted with the aid of Section 149 IPC. These three persons were convicted with the aid of Section 149 IPC alongwith two accused persons. The participation of the two accused persons have been held to be not established the common object ceases to remain. We are left with these three accused persons namely Heera, Megha and Naru they cannot be convicted with the aid of Section 149 IPC. Being less in number we persuaded that their conviction deserves to be altered from Section 302 IPC r/w Section 149 IPC to Section 302 r/w Section 34 IPC. The injuries have been inflicted by Naru and Megha were after Heera had already fired with intention of knowing the deceased-Naru and Megha had intended to cause death so also the same intention can be attributed to Heera accused. He has fired a gun shot which has become effective. The two accused persons seeing that the gun shot has not been effective persuaded the 'injured Shanker ultimately caused his death. Therefore, their implication alongwith Heera stands proved. Their conviction is altered from Section 302/149 IPC to 302/34 IPC. No prejudice can be seen in converting the charges. Their conviction is modified and altered from Section 302/149 to Section 302/34 IPC. 23. In the result appeal is partly allowed. Appeal of Heera, Megha and Naru is rejected. They will serve out the sentence awarded to them by the trial Court. Appeal of accused-Soji and Mangi Lal is accepted. Judgment of the trial Court against appellant-Soji and Mangi Lal is set aside. They are released forthwith, if not required in any other case.Appeal partly allowed. *******