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2005 DIGILAW 728 (AP)

Kokkula Srinivas v. State Of A. P.

2005-08-08

B.PRAKASH RAO, P.SWAROOP REDDY

body2005
P. SWAROOP REDDY, J. ( 1 ) THESE appeals are filed against the judgment of the learned III Additional Sessions Judge, karimangar in S. C. No. 278 of 2003. The learned Judge convicted and sentenced : a-1 to A-5 Section 148 IPC rigorous imprisonment for two years and pay fine of Rs. 1,000-00 in default to suffer simple imprisonment for one month each. A-1 to A-5 Section 302 r/w 149 IPC imprisonment for life and fine of rs. 1,000-00 in default to suffer simple imprisonment for one month each. A-1 to A-5 Section 307 r/w 149 IPC rigorous imprisonment for five years and pay fine of Rs. 1,000-00 in default to suffer simple imprisonment for one month each. ( 2 ) THE present for appeals - cr. A. No. 1066 of 2003 is preferred by A-2; crl. A. No. 1067 of 2003 are preferred by a-3 and A-5; Crl. A. No. 1068 of 2003 is preferred by A-4 and A-1 filed Crl. A. No. 1079 of 2003. As the four appeals are directed against the one and same judgment, they are heard together and are being disposed of by this common judgment. ( 3 ) THE prosecution case is that A-1 to A-5, the deceased - Satyam @ satyanarayana and PWs. 1 to 5 are all residents of Godavarikhani. On 15-8-2002, after flag hoisting ceremony, PW-1, Avula gattaiah, the deceased and some others of the locality went to picnic towards 6-inlcine mine and returned home at 5-00 p. m. Thereafter PWs. l to 3 and the deceased etc. , were playing songs on deck and dancing in front of the house of PW-1. After 6-00 p. m. , they got tired and stopped it. At that time all the accused came there and asked to play songs on deck as they also wanted to dance. PW-1 told them that as by then all of them were tired, it was not possible for them to continue playing deck. The accused forced PW-1 and others to continue playing songs and on their refusal, they threatened PW-1 and went away. PW-1 told them that as by then all of them were tired, it was not possible for them to continue playing deck. The accused forced PW-1 and others to continue playing songs and on their refusal, they threatened PW-1 and went away. On the same day at about 8-30 p. m. , the accused were searching for the house of PW-1 and PW-1 on learning about it, around 9-00 or 9-30 p. m. , went to the house of his friends, PW-2 and the deceased and informed them that A-1 to a-5 were searching for him and location of his house. Then all of them went to the house of PW-3 and informed him about a-1 to A-5 searching for PW-1. In the meanwhile, A-1 to A-5 went there. There, when A-1 tried to stab PW-1 with knife, the deceased intervened to save PW-1, and that blow fell on the chest of the deceased, who collapsed. A-1 and A-2 stabbed PW-2 on the left hand, waist and back with a knife. All the accused then beat PW-1, PW-3. After attacking the deceased, the accused ran away. The deceased was immediately shifted to Surya Hospital, Godavarikhani, where pw-2 was also admitted and the deceased died within fifteen minutes. ( 4 ) THUS, as the prosecution party refused to play songs on the deck the accused got angry, went in the search of pw-1, went to the house of PW-3, while pws-1to 3 and the deceased were present there attacked them (PWs. l to 3 and the deceased ). ( 5 ) ALL the accused pleaded not guilty. ( 6 ) ON behalf of the prosecution pws. 1 to 14 were examined and Exs. P-1 to P-20 were marked, apart from MOs. 1 to 5. Out of these witnesses, PW-1 is the injured eye-witness, whom the accused originally wanted to attack. PW-2 is also an injured - eye-witness. PW-3 is another eye-witness who was in the company of pws. 1 and 2 at the time of the incident. PW-4 is another injured - eye-witness, who was in the company of PW-1 and the deceased throughout. Out of these witnesses, PW-1 is the injured eye-witness, whom the accused originally wanted to attack. PW-2 is also an injured - eye-witness. PW-3 is another eye-witness who was in the company of pws. 1 and 2 at the time of the incident. PW-4 is another injured - eye-witness, who was in the company of PW-1 and the deceased throughout. PW-5 is the father of the deceased, who spoke about the incident, of the prosecution party going to picnic, about their dancing to the tune of music on deck the accused coming there, requesting to continue playing the deck about the prosecution party refusing and the accused going away threatening and other circumstances of the incident. He is not an eye-witness. PW-6 is the mother of the deceased, whose evidence is also similar to the evidence of PW-5. P-7 is another eye-witness to the incident and he was throughout with PW-1 starting from picnic to the assault. PW-8 is another person that participated in the picnic and dancing at the house of PW-1. He spoke about the accused coming to the house of PW-1 initially and going away after threatening pw-1, on their refusal to play deck etc. His further evidence is about A-1 to A-5 coming to his house at 8-00 p. m. , and asking about the house of PW-1 his sending away the accused and his informing PW-1 about the same. Later he learning about the attack on the deceased and going to the hospital. PW-9 is a panch witness for observation of scene of offence report, ex. P-7, under which the police seized MOs. 1 and 2, blood stained earth and control earth respectively and for Ex. P-8, inquest held on the dead body of the deceased, during which the police seized MO-3, bloodstained cloths of the deceased. PW-10 is a panch for recovery of MO-4, knife from A-2 under Ex. P-9 panchamma, and for recovery of MO-5, knife at the instance of A-1 under panchamma Ex. P-10. PW-11 is the doctor at Surya Hospital, who examined the deceased and PW-2 that night at about 9-45 p. m. As per his evidence and the case-sheet Ex. P-11, PW-2 suffered the following injuries: (i) Lacerated wounds over the left arm (a) to the left forearm 3 x 1 cm and deep to muscle (b) Below the left elbow 4x1 cm. (c) Over the left arm post aspect. P-11, PW-2 suffered the following injuries: (i) Lacerated wounds over the left arm (a) to the left forearm 3 x 1 cm and deep to muscle (b) Below the left elbow 4x1 cm. (c) Over the left arm post aspect. (ii) Over the left thigh and buttock deep injury measuring about 4x1 cm at muscle exposure; (iii) Injury to the back of the chest 1 x. cm pw- 12 is the doctor that conducted autopsy over the dead body of the deceased and found the following injuries : (i) A stab wound on the left side of chest 2 cm, medially from the left nipple between the 4th and 5th ribs in seen. Size of the wound is 1. 5 x 6 cm. The injury has cut the intercostals muscles entered the thorax - cut the pericardium. Cut the arterial wall of ventricle and pierced the posterior wall of the ventricles - exist wound is 3 mm only. (ii) An abrasion on the right dorsum of the hand. Internal Injuries. (i) On chest, a punctured wound (stab) on the 4th inter costal space; (ii) Pericardium was cut 1" and was filled with blood. an incised wound on the arterial wall of the left ventricle 1" in length and exit wound 3 mm was seen on posterior wall of the left ventricle, through which blood is leaking according to him the death was account of shock and haemorrhage due to stab injury. PW-13 is the Sub-Inspector of Police of godavarikhani at the relevant time, who received Ex. P-1 from PW-1 and issued FIR. PW-14 is the CI of Police that investigated into the case and filed the charge-sheet. ( 7 ) AFTER closing the prosecution evidence, the accused was examined under section 313 Cr. P. C. , the accused denied all the incriminating material appearing against him in the prosecution case. ( 8 ) THE learned trial Judge believed the evidence of PWs. 1 to 8, who spoke about the circumstances of the case and about the actual incident and held the accused guilty, by holding that the accused are liable for punishment under Sections 148 and 302 read with Sections 149 and 307 read with 149 IPC. ( 8 ) THE learned trial Judge believed the evidence of PWs. 1 to 8, who spoke about the circumstances of the case and about the actual incident and held the accused guilty, by holding that the accused are liable for punishment under Sections 148 and 302 read with Sections 149 and 307 read with 149 IPC. ( 9 ) NOW the contention of the learned counsel for the appellants/accused is that the evidence of prosecution witnesses cannot be relied on, as they are all interested witnesses; that no offence under section 302 IPC is constituted, as admittedly, the intention of A-1 and not to cause the death of the deceased, and, in fact, he attacked PW-1, but, by accident, when the deceased came in the way, he received the injury and that no offence under Section 307 read with Section 149 IPC is constituted. ( 10 ) ON the other hand the learned public Prosecutor contended that the evidence of the eye-witnesses PWs. 1 to 8, who spoke about the entire circumstances of the incident, including the incident of stabbing is consistent and reliable; there are, absolutely no circumstances to disbelieve their evidence and that the circumstances show that the offence under sections 302, 307, as well as 149 IPC are constituted. ( 11 ) NOW, the point for consideration is whether there are any grounds for allowing the appeal. ( 12 ) THE evidence of PWs. 1 to 8 prove the motive - PWs. 1 to 4 and the deceased etc. , going for picnic on 15-8-2002; after coming home their playing deck and dancing in front of the house of PW-1; then accused coming there and asking the prosecution party to continue playing deck for which PW-1 etc. , refusing; the accused getting annoyed, going away threatening pw-1 and others and later their going and enquiring with PWs-3 and 8 about the house of PW-1; PW-1 knowing about the same and then going to the house of pw-3 along with PW-2 and the deceased to discuss about the issue and A-1 to A-5 coming there and attacking the deceased. Thus, there is absolutely no reason to disbelieve the prosecution case with regard to motive. Thus, there is absolutely no reason to disbelieve the prosecution case with regard to motive. ( 13 ) COMING to the actual incident, the evidence of PW-1 is that while they were at the house of PW-3, A-1 to A-5 came thereto, A-4 and A-5 caught PW-1 and A-1 tried to stab him with a knife and when the deceased came to his rescue, the blow fell on the deceased and he collapsed on the spot. He also stated that a-1 and A-2 stabbed PW-2 on the left hand, waist and back. The accused also beat him and PW-4 and ran away. At about 11-00 p. m. , he went to Police Station and gave complaint, Ex. P-1. PW-2 also stated similarly with regard to the attack on the deceased and about A-1 and A-2 stabbing him on his left hand at three places, left leg, left buttock and on back on the left side. He also stated that A-3 to a-5 beat PWs. 1 and 4 with hands. PW-3 stated that A-1 to A-5 came to his house, while he was questioning A-2; A-1 tried to stab PW-1, meanwhile the deceased came across to rescue PW-1 and A-1 stabbed on his chest on account of which the deceased fell down. A-3, 4 and 5 caught hold of pws. 1 and 2 and A-1 and A-2 stabbed pw-2 on his left hand, buttocks and on back. PW-7, also stated that A1 to A-5 came to the house of PW-3; A-1 trying to stab PW-1 and when the deceased came across to rescue PW-1, A-1 stabbed the deceased with a knife on the chest and the deceased collapsed with bleeding injuries. A-1 and A-2 stabbed PW-2 on left hand and other parts of the body and A-3 to A-5 beat PWs. 1 and 4 with hands. Thus, though there are minor discrepancies in the evidence of these witnesses with regard to main attack on the deceased, there is consistency in the evidence. PW-4 has stated that A-1 stabbed the deceased stating as to why he came across when he was stabbing pw-1; whereas the evidence of PW-1 is that when A-1 was trying to stab him, the deceased tried to rescue him and A-1 stabbed the deceased on his chest. He did not say about A-1 questioning the deceased as to why he came across, while he was attacking PW-1. He did not say about A-1 questioning the deceased as to why he came across, while he was attacking PW-1. He did not even say that when the deceased came across, the blow fell on him; but he has stated that A-1 stabbed the deceased. PW-2 has stated that while A-1 was trying to attack PW-1, the deceased came across to rescue PW-1 and A-1 stabbed the deceased. This is similar to what PW-1 has stated. PW-3 has stated that when the deceased came across to rescue PW-1 from being stabbed, A-1 stabbed the deceased on his chest, which is also similar to the evidence of PW-1. In the cross- examination, PW-1 admitted that he stated before the learned Magistrate that when a-1 came upon him (PW-1), the deceased came across and the knife landed in his (deceased s) chest. In the cross-examination, pw-2 also stated that he stated similarly before the learned Magistrate. PWs. 3 and 4 also stated similarly in their cross- examination. Thus, in their statement recorded under Section 164 Cr. P. C. , PWs. 1 to 4 have stated that while A-1 was stabbing PW-1, the deceased came across and the blow landed on the chest of the deceased, which is not at all stated in their evidence during trial. Other than this, there are no major inconsistencies in the prosecution case to disbelieve the attack. As referred above, in cross-examination pws. 1 to 4 have admitted that in their statements recorded under Section 164 cr. P. C. , they have stated that while A-1 was trying to stab PW-1, as the deceased came across, the blow landed on the chest of the deceased. As such it has to be held that A-1 intended to stab PW-1, but, when the deceased came in between, accidentally, the blow fell on the chest of the deceased causing his death. ( 14 ) THUS the evidence is consistent and no infirmities or major discrepancies are brought out in the evidence of the eyewitnesses; as such we do not find any reason to disbelieve the prosecution evidence to hold that on 15-8-2002 around 9-30 p. m. , at the house of PW-3, the accused attacked the deceased, PWs. 1 and 2 etc. , and caused death of the deceased and injuries to PW-2, as found by the learned trial Judge. 1 and 2 etc. , and caused death of the deceased and injuries to PW-2, as found by the learned trial Judge. ( 15 ) NOW, two important questions would arise for consideration : (a) What offence is constituted in the act of A-1 stabbing the deceased? (b) Whether the learned Judge is correct in holding that Sections 148 and 149 are consisted in the above circumstances? ( 16 ) THE trial Judge in Paragraphs 34 to 40 of his judgment discussed on this aspect saying that the accused, who are five in number were armed with deadly weapons; that from the beginning i. e. , from 6-00 p. m. , onwards, A-1 to A-5 were together; they went to the place where pw-1 and others were dancing, later they went together to the house of PW-8 at 8-00 p. m. , and enquired about the house of PW-1 and again at 9-00 p. m. , they went together to the house of PW-3, attacked the deceased, PWs. 1 and 2. Thus, as from the beginning all the five members were together Sections 148 and 149 are attracted. ( 17 ) THERE is no dispute about A-1 to a-5 going together first to the place where pw-1 and others were dancing and then going to the house of PW-8, enquiring about the house of PW-1 at 8-00 p. m. , then again going to the house of PW-3 and attacking the deceased and PW-1. ( 18 ) THE learned Counsel for the appellants contends that there is no common intention or object for the accused to cause the death of the deceased or attacking and causing injuries to PW-1 and as such sections 148 and 149 are not attracted. ( 19 ) IN support of his contention, the learned Counsel for the appellants relied on the decision of the Hon ble Supreme Court in State of Maharashtra v. Kashirao, AIR 2003 SC 3901 . In Paragraphs 12 to 16 of the above judgment, extracted below: "12. A plea which was emphasized by the respondents relates to the question whether section 149 IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. In Paragraphs 12 to 16 of the above judgment, extracted below: "12. A plea which was emphasized by the respondents relates to the question whether section 149 IPC has any application for fastening the constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in section 141. Whether common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word object means the purpose or design and, in order to make it common , it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression in prosecution of common object, as appearing in section 149 have to be strictly construed as equivalent to in order to attain the common object . It must be immediately connected with the common object by virtue of the nature of the object. It may be modified or altered or abandoned at any stage. The expression in prosecution of common object, as appearing in section 149 have to be strictly construed as equivalent to in order to attain the common object . It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only upto a particular stage, and not thereafter. Members of an unlawful assembly may have community of object upto certain point beyond the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command; but also according to the extent to which he shares the community of object and as a consequence of this effect of Section 149 ipc may be different on different members of the same assembly. 13. common object is different from a common intention as it does not require a prior concert and common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The common object of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant consideration. What the common object of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant consideration. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intention is not material. An assembly which, at its commencement of even for sometime thereafter, is lawful may subsequently become unlawful. It is not necessary that the intention or the purpose which is necessary to render an assembly an unlawful one come into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement of even for sometime thereafter, is lawful may subsequently become unlawful. In other words, it can develop during the course of incident at the spot eo instanti. 14. Section 149 IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one, which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is shared by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard and fast rule can be laid down under the circumstances from which the common object can be called out, it may be reasonably be collected from the nature of the assembly, arms it carries and behaviour at or before or after the scene of incident. The word knew used in the second branch of the section implies something more than a possibility and it cannot be made to hear the sense of might have been known . Positive knowledge is necessary. When an offence is committed in prosecution of the common object, it would generally be an offence, which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That however, does not make the converse proposition true; there may be cases, which would come within the second part but not within the first part. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely offences which the parties knew to be likely committed in the prosecution of the common object (See: Chikkarange v. State of Mysore, AIR 1956 SC 731 ). 15. However, there may be cases which would be within first offences committed in prosecution of the common object would be generally, if not always, with the second, namely offences which the parties knew to be likely committed in the prosecution of the common object (See: Chikkarange v. State of Mysore, AIR 1956 SC 731 ). 15. In State of U. P. v. Dan Singh, 1997 (1) ald (Crl.) 470 (SC) = 1997 (3) SCC 747 , it was observed that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Reference was made to Lalji v. . State of UP, 1989 (1) SCC 437 , where it was observed that : "wile overt act and active participation may indicate common intention of the person perpetrating the crime the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. " 16. This position has been elaborately stated by this Court in Gangadhar v. State of orissa, 2002 (2) ALD (Crl.) 794 (SC) = 2002 (8) SCC 381 . The Hon ble Supreme Court explained as to under what circumstances Section 149 is attracted and ultimately held that in that case the ingredients of Section 149 IPC have been established. Relevant facts in the above case are that PW-1 went to a village, which he earlier deserted. The accused had enmity with him. PW-1 was preparing for lunch along with his friends and asked his friends to come to his house. At that time all the accused armed with weapons went to the house of PW-1 with a common object of killing PW-1 and his friends. All the accused hurled stones on the house of PW-1 and threatened to kill him and his friends; when the deceased tried to escape from the rear door, being afraid of assault, the accused chased, assaulted him with deadly weapons and killed him. Thereafter they came back to the house of PW-1 pelted stones and when PW-1 tried to run away to save his life, the accused chased him and gave blows. As a result of assaults given, left arm of PW-1 severed and injuries were caused on his right arm and another friend of PW-1 was also chased; but he could manage to escape without injuries. As a result of assaults given, left arm of PW-1 severed and injuries were caused on his right arm and another friend of PW-1 was also chased; but he could manage to escape without injuries. Again the accused came back to the house of pw-1 and shouted that they have killed one person from Amaravathi and others had run away and now they would kill pw-1. PW-1 tried to save, himself, but the accused chased him and assaulted and assuming that he was dead, they went away along with severed arm of PW-1 and showed it to the mother of PW-1. ( 20 ) THE learned Public Prosecutor also relied on the same decision for applicability of Section 149 IPC as against the accused. ( 21 ) THE learned Counsel for the appellants also relied on a decision of this court in In re Girada Narayana, AIR 1963 AP 146, where it was held that "a person causes the death of a person whose death was not intended, others are not liable under Section 149 IPC . ( 22 ) IN the present case, the accused first went to the house of PW-1, while pw-1 and his friends were dancing, quarrelled with them; then all of them again went to the house of PW-8, enquired about pw-1 and then again went to the house of PW-3 and attacked the deceased and pw-1. Here the accused may not have intended to kill PW-1; but, definitely, they did not intend to kill the deceased and there is no dispute that they wanted to assault pw-1 and others. Thus as the facts of the case in Kashi Rao (supra) are more closely applicable to the facts of the present case, that being the latest decision; where all the ingredients that constitute an offence under section 149 are thoroughly discussed, we are not inclined to rely on the decision in in re Girada Narayana (supra ). ( 23 ) THE next question is what offence is constituted in A-1 stabbing the deceased. ( 24 ) FROM the evidence it is clear that while A-1 was stabbing PW-1, the deceased came in the way and the below landed in the chest of the deceased causing his death. ( 23 ) THE next question is what offence is constituted in A-1 stabbing the deceased. ( 24 ) FROM the evidence it is clear that while A-1 was stabbing PW-1, the deceased came in the way and the below landed in the chest of the deceased causing his death. As observed, while dealing with the question of applicability of Section 149 IPC, obviously, there was no intention for the accused to cause the death of the deceased or any member of the prosecution party. They never had that motive. There was a small fight and probably, they wanted to beat up the prosecution party, as they did not oblige them by playing deck to facilitate them to dance, as was done by the prosecution party, till they went there. These circumstances, coupled with the circumstance of the intended blow against pw-1, landing on the chest of the deceased and causing his death, would constitute an offence under Section 302 IPC or not is the question. Firstly, it has to be considered whether the act of A-1 in accidentally stabbing the deceased, while aiming the blow at PW-1 would make any difference as far as Section 302 IPC is concerned. ( 25 ) THE learned Counsel for the appellants relied on the decision of the hon ble Supreme Court in Ramesh vithalrao Thakre v. State of Maharashtra, air 1995 SC 1453 . The facts of that case are very closely applicable to the facts of this case. In that case, when the deceased was sitting at her house along with her mother and brothers, the accused trespassed into their house; A-1 abused pw-1 and made an attempt to assault him with a knife, the deceased intervened with a view to save her brother from being assaulted and in that process received an injury with a knife at the hands of A-1, on her chest, which caused her death. In those circumstances, the Hon ble Supreme Court held that the offence constituted is only under Section 304 Part-II IPC. In Paragraph 7 of the judgment, extracted below, the Hon ble supreme Court discussed the position : "there is no denying the fact that one single injury was caused to the deceased by ramesh when Rekha intervened to save her brother Ashok being assaulted. The primary target of Ramesh was Ashok, who got saved when Rekha received the injury on her chest. The primary target of Ramesh was Ashok, who got saved when Rekha received the injury on her chest. After causing the single injury to Rekha, it is the prosecution case itself, that Ramesh did not cause any other injury to Rekha nor even to Ashok, PW-1. From the evidence on the record and the established circumstances, it is not possible to any with certainty that the appellant intended to cause the death of Rekha. Even though the principle contained in section 301 IPC would be applicable to the case, it appears to us that the appellant can only be clothed with the knowledge that the injury which he was causing was likely to cause the death of Rekha but without any intention to cause her death or to cause such bodily injury as is likely to cause death. The offence, under the circumstances, would be one which would fall under Section 304 Part-II IPC. " ( 26 ) IN re Girada Narayana (supra) relied on by the learned Counsel for the appellant, with regard to applicability of section 149 IPC, it was held that a person while attempting to cause death of a person, causes death of another person the offence that is constituted is under section 302 IPC only. ( 27 ) IN the present case not only the death of person other than the person, whose death was intended has occurred; but only one blow was caused and our finding has been that the accused never intended to kill any member of the prosecution party; but what they wanted was only to beat them up. In such circumstances, following the principle laid down in the case of Ramesh Vithalrao thakre (supra), we hold that the act of a-1 stabbing the deceased would constitute only an offence under Section 304 Part-II ipc, consequently all the accused would be liable under Section 304 Part-II read with section 149 IPC. ( 28 ) EX. P-12 the wound certificate shows that PW-2 suffered three simple injuries on left forearm; left elbow and left thigh. Ex. P-11 case sheet in respect of pw-2 maintained at Surya Hospital shows an injury of 1 cm x cm in the back of the chest. ( 28 ) EX. P-12 the wound certificate shows that PW-2 suffered three simple injuries on left forearm; left elbow and left thigh. Ex. P-11 case sheet in respect of pw-2 maintained at Surya Hospital shows an injury of 1 cm x cm in the back of the chest. Thus, the injuries suffered by PW-8 are simple in nature and our findings has been that there was no intention on the part of the accused to cause death of any member of the group of PW-1. Thus, we hold that no offence under Section 307 read with Section 149 ipc is constituted; but only an offence under Section 324 IPC is constituted for the assault on PW-2 and all the accused are accordingly liable under Section 324 read with Section 149 IPC. ( 29 ) ACCORDINGLY, we hold that the conviction of the appellants shall be under section 148 IPC and Section 304 Part-II read with Section 149 IPC and Section 324 read with Section 149 IPC. Consequently, the sentence is reduced to rigorous imprisonment for five years and fine of rs. 1,000-00 in default to suffer simple imprisonment for one month each and rigorous imprisonment for six months and fine of Rs. 1,000-00 each in default to suffer simple imprisonment for one month each for the offences punishable under Section 304 part-II read with Section 149 IPC and section 324 read with Section 149 IPC respectively. The conviction and sentence imposed by the trial Court for the offence under Section 148 IPC on the appellants is sustained. All the sentences shall run concurrently. The period of detention, if any, already undergone by the appellants-accused shall be given set of. ( 30 ) WITH the above modifications in convictions and sentences imposed on the appellants by the learned trial Judge, the appeals shall stand dismissed.