JUDGMENT Rakesh Saksena, J. 1. The following Judgment shall govern the disposal of Cr. A. Nos. 936 of 1997, Jaikaran and Others v. State of M.P., 1141 of 1997, Mithua @ Mithaiya v. State of M.P. and Cr. A. No. 1237 of 1997, Sadasi v. State of M.P. which arise out of the same judgment of conviction dated 12th April, 1997 passed by learned Special Judge, Chhatarpur, in Spl. Case NO. 19 of 1995, convicting the appellants under sections 147, 148, 302/149, Indian Penal Code and section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentencing them to undergo for six months, one year, imprisonment for life and RI for 5 years respectively on each count. All sentences were directed to run concurrent. 2. In brief, the prosecution story is that on 25-11-1994, at about 6.00 p.m., when complainant Sawaliya (PW 6) and his son Ramkishore were cutting fodder in their house, they heard sound of gun shot fire. On hearing such sound, they went toward the house of his brother Swamideen Kori and saw the dead body of Swamideen lying on passage in front of his house having a gun shot wound on the back of the neck. He asked his brother's wife Ujji as to who killed Swamideen, whereupon Ujji told him that Mithua Ahir, Rampal Ahir, Rampyare Ahir, Gola Ahir, Dadda Ahir, Sadasi Ahir, Shivram Ahir and some other outside people had come armed with lathi and guns and had shot dead her husband. She also informed that they had also beaten Kamtu, Tijola, Shambhu and Manohar. He and his brother Chunvad picked up the dead body and kept it in the courtyard of the house. Sawaliya went to Police Station, Sarbai and lodged first information report at about 11.00 a.m. on 26-11-1994. According to him, there was enmity between them and accused Mithua Yadav because of which accused had killed his brother. It was also said that due to night, he could not go for lodging report on the same day. On report being lodged by Sawaliya, the first information report, Ex. P. 25 was recorded. During investigation, police went at the spot and prepared inquest of the dead body and sent the dead body for post mortem examination. Injured persons, viz. Ujji @ Ujiyari Bai, Kamtu, Tijola and Shambhu were also referred for medical examination. 3. On report being lodged by Sawaliya, the first information report, Ex. P. 25 was recorded. During investigation, police went at the spot and prepared inquest of the dead body and sent the dead body for post mortem examination. Injured persons, viz. Ujji @ Ujiyari Bai, Kamtu, Tijola and Shambhu were also referred for medical examination. 3. During investigation, spot map, Ex. P. 26 and another spot map, Ex. P. 24, drawn by Patwari were prepared, blood-stained earth and plain earth were seized from the spot, empty cartridges of 12 bore gun and a fired pellet were seized from the wall vide seizure memo, Ex. P. 28 and statements of witnesses were recorded. PW 11 Mukesh Tiwari, Station House Officer of Police Station Sarbai arrested accused Jaikaran, Mangaliya, Sadasi, Shivram, Rampal on 4-12-1994 and seized lathi and Lohangi from them, vide seizure memo, Exs. P. 6, P. 7, P. 8, P. 9 and P. 10. On 4-1-1995 accused Mithua Yadav was arrested and a lathi was seized from him vide seizure memo, Ex. P. 34. On 29-1-1995 accused Maiyadeen was arrested and a 12 bore gun with licence and a live cartridge were seized from him vide seizure memo Ex. P. 11. All the seized articles were sent for chemical examination to Forensic Science Laboratory. Report of FSL, Sagar and ballistic expert, Exs. P. 37 and P. 38 were received. 4. On post-mortem examination of dead body of Swamideen, Dr. Pradeep Kumar Soni (PW 3) found : (1) Wound of Entry - oval in shape 2 cm x 1 cm in size, over left infra scapular region at the back at the level of T6 T9 just left to vertebral column. Margins inverted, dark blood coming out from the wound some clots also present. (2) Wound of Exit - oval in shape 3 cm x 2 cm Margins averted at the left side of infraclavicular region of chest at the level of IInd and IIIrd rib level. The wound situated on mid clavicular line. On internal examination, he found 6th, 7th and 9th ribs fractured. He also found posterior surface of lower lobe of liver extensively lacerated. Injury directed upward. In his opinion, the wounds were antemortem in nature and were caused by gun shot injury. The death was due to shock caused by excessive haemorrhage due to gun shot injury. The time since death was 18 to 48 hour. He also found posterior surface of lower lobe of liver extensively lacerated. Injury directed upward. In his opinion, the wounds were antemortem in nature and were caused by gun shot injury. The death was due to shock caused by excessive haemorrhage due to gun shot injury. The time since death was 18 to 48 hour. The post-mortem was performed on 27-11-1994. Post-mortem report is Ex. P. 23. 5. On the same day, Dr. Soni examined injuries of Ujariya Bai, Kamtu, Tijola and Shambhudayal. He found one contusion 6 x 5 cm on left thigh of Ujariyabai caused by hard and blunt object. Injury report is Ex. P. 16. On examination of the injuries of injured Kamtu, Dr. Soni found : (1) contusion oh left shoulder 4 cm x 3 cm (2) contusion on lower shoulder 3 cm x 3 cm (3) contusion on left thigh above gluteal part 5 cm x 4 cm (4) contusion on left arm 1 cm x 2 cm, and (5) contusion on left thigh 4 cm x 3 cm. Injury report is Ex. P. 18. On the body of injured Tijola, Dr. Soni found : (1) Contusion with tenderness over posterior aspect of right fore-arm, size 5 cm x 3 cm, vide injury report Ex.P. 20. Dr. P. K. Soni also examined Sambhudayal and found : (1) Lacerated wound on right parietal part of his skull 2 cm x 0.5 cm. and (2) contusion with tenderness on right ring finger 1 cm x 1 cm, vide injury report Ex. P. 22. 6. After requisite investigation, police filed the charge-sheet and in due course the case was committed for trial. Accused Malkhe could not be arrested, therefore, he could not be tried along with the arrested accused persons. 7. During trial, the prosecution mainly rested its case on the testimony of PW5 Kamtu, PW 7 Ujji @ Ujiyari, PW 8 Tijola and PW 9 Dadu as eye-witnesses and PW 6 Sawaliya, the complainant and PW 13 Shambhudayal as witnesses who reached at the scene after the incident. PW 3 Dr. Pradeep Kumar Soni was examined to prove the injuries of deceased and other injured persons, PW 10 Shivprakash, Head Constable, PW 11 Mukesh Tiwari, Station House Officer of the Police Station and PW 12, Rakesh Chandra Mishra, the Head Constable were examined to prove the investigation conducted in the case. PW 3 Dr. Pradeep Kumar Soni was examined to prove the injuries of deceased and other injured persons, PW 10 Shivprakash, Head Constable, PW 11 Mukesh Tiwari, Station House Officer of the Police Station and PW 12, Rakesh Chandra Mishra, the Head Constable were examined to prove the investigation conducted in the case. The evidence of PW 5 Kamtu, PW 7 Ujji @ Ujiyari, PW 8 Tijola and PW 9 Dadu before the trial Court is more or less similar. PW 7 Ujji stated that she knew all the eleven accused persons, viz., Mithua, Sadasi, Gola, Dadda, Shivram, Mangaliya, Jaikaran, Ramkaran, Rampal and Maiyadeen by their names and faces. She said that accused Malkhe was absconding. According to her, on the day of the incident, at the time of sun-set, she had come back from the field and was sitting and warming at fire place at her door. Kamtu, Tijola and Chhote were also warming up there. All the accused persons including Malkhe came from the side of the village. Accused Maiyadeen and Malkhe had guns and all other persons were armed with lathis. Mithua warned that everybody who was sitting there should not move if moved, would be shot dead and who were inside the house should not come out. Mithua inflicted a lathi blow on the shoulder of Kamtu and thereafter all the accused, who were armed with lathi, started assaulting her and Tijola by lathi. Chhote ran away from the spot, Mithua had caused injury on her leg, therefore, she fell down. Tijola had also suffered injuries. She further said that in the meanwhile her husband came out of the house and asked Mithua as to why he was beating the people. Mithua said that they had 'not voted for Maiyadeen in election, then accused Malkhe said that the leader of "Koris" (community) has now come, he should be disposed of. This was said referring to her husband Swamideen therefore Swamideen tried to run away and by the time he covered about 8 to 10 steps, suddenly Malkhe fired his gun at him the shot whereof hit him at back. He fell down on the ground and thereafter all the accused persons ran away from the spot. This was said referring to her husband Swamideen therefore Swamideen tried to run away and by the time he covered about 8 to 10 steps, suddenly Malkhe fired his gun at him the shot whereof hit him at back. He fell down on the ground and thereafter all the accused persons ran away from the spot. She further stated that after sometime, Sawaliya, Dadu, Laxmi and number of other persons came there and inquired about the incident whereupon she narrated the incident to them and asked Sawaliya to lodge the report with the police. Swaliya said that he will not go in the night and thereafter all persons present there picked up the dead body from the passage and kept it in the house. She further stated that accused Maiyadeen had fought Panchayat election, but was defeated whereupon it was said that we had got him defeated and therefore, the accused persons had killed her husband. In cross-examination, she was confronted with the police statement, Ex. D. 3 wherein it was not mentioned that the accused persons had come from the direction of village. It was also pointed out that the fact that Mithua had cautioned everybody not to move from the place was not mentioned in Ex.D. 3. Some other minor contradictions that the name of Mithua was not mentioned in her police statement and that the lathi blow inflicted on Kamtu fell on his shoulder were also not mentioned in her police statement, Ex. D. 3. However, the name of Mithua was very well found mentioned in her police statement, Ex.D. 3. No other material contradictions were found in the statement of this witness. In para 10 of her cross-examination, she stated that at the time of election there had been no quarrel between them and anybody. She also said that deceased had not filed any case against accused Malkhe and Dwarka Patel in the past. She deicide the suggestion put by the defence that some outsider miscreants had come in the village for committing robbery and they had looted some ornaments of one Chamaria and her husband Swamideen had indulged in scuffle with the miscreants, therefore, the miscreants had shot him dead. 8. She deicide the suggestion put by the defence that some outsider miscreants had come in the village for committing robbery and they had looted some ornaments of one Chamaria and her husband Swamideen had indulged in scuffle with the miscreants, therefore, the miscreants had shot him dead. 8. Similar statements were made by PW 5 Kamtu, PW 8 Tijola and PW 9 Dadu wherein they stated that except accused Maiyadeen and Malkhe, who were armed with gun, all other accused were armed with lathi and had assaulted them and when deceased came out of the house and asked Mithua as to why they were beating them, Malkhe had said that the leader of "Koris" had come and should be set right and thereafter Malkhe had fired a shot on the back of Swamideen who was trying to run away from the spot and Swamideen after being hit by the bullet on the back, fell down dead. 9. Before the trial Court, the defence highlighted the fact that the first information report of the incident was lodged after inordinate delay, on the second day of the incident by PW 6 Sawaliya. It was also pointed out that in the first information report only 7 persons, viz., accused Sadasi, Gola, Daddu, Mithua, Rampyare and Rampal were mentioned and the names of Maiyadeen and Malkhe were not mentioned and on the contrary it was mentioned that besides the named accused some other outside people had come armed with gun and lathi and they had killed Swamideen. In the statement of PW 6 Sawaliya before the trial Court only six persons were named. However, the witness said that when Ujji was narrating the incident, in the end her voice had become feeble and as he is hard of hearing, he could not hear as to what further she had told. He was confronted from the FIR, Ex. P. 25 on the fact that Ujji had asked him to go and lodge the report but he had declined to go to the police station due to darkness. This fact was also missing in his statement, Ex. D. 2 recorded by the police under section 161, Criminal Procedure Code. The fact that while narrating the occurrence the voice of Ujji had gone feeble, therefore, he could not hear rest of the part of the story, was also missing from FIR. This fact was also missing in his statement, Ex. D. 2 recorded by the police under section 161, Criminal Procedure Code. The fact that while narrating the occurrence the voice of Ujji had gone feeble, therefore, he could not hear rest of the part of the story, was also missing from FIR. On the ground of the omissions of mentioning the names of Maiyadeen, Malkhe, Jaikaran and Mangaliya in the first information report, it was contended that the prosecution story was concocted one and was an afterthought and was not reliable. It was said that some outsider miscreants had killed the deceased. But after consultations and deliberations, the report was lodged against the accused persons due to enmity. 10. After considering the oral evidence, the medical evidence of PW 3 Dr. Pradeep Kumar Soni and other documentary evidence, learned trial Court found the appellants guilty and convicted and sentenced them as aforesaid. 11. Aggrieved by their conviction, appellants have preferred these appeals. 12. Learned counsel for the appellants, Senior Advocate Shri Surendra Singh and Shri L. N. Sakle have assailed the conviction of appellants on the ground that the first information report lodged by PW 6 Sawaliya did not contain the names of Maiyadeen, Malkhe, Jaikaran and Mangaliya. The important fact of the prosecution story that Malkhe had fired gun shot at the deceased and that Maiyadeen was also armed with gun was not mentioned in the first information report. The first information report was lodged after inordinate delay, i.e., on the next day of the incident and there was no reasonable explanation about the delay in lodging the first information report. It was also contended that the evidence of eye-witnesses was not consistent with the medical evidence. Except on the point of election, there is no allegation about any serious enmity between the parties. There is no allegation of use of gun by appellant Maiyadeen though he is said to be armed with gun. Lastly, it was submitted that the act of accused Malkhe was his individual act for which other accused are not liable. Except on the point of election, there is no allegation about any serious enmity between the parties. There is no allegation of use of gun by appellant Maiyadeen though he is said to be armed with gun. Lastly, it was submitted that the act of accused Malkhe was his individual act for which other accused are not liable. Deceased was not present at the place of incident at initial stage, he had come out of the house at later stage when the assault by lathi on ethers had already begun and then accused' Malkhe said that he should be set right and Malkhe himself fired the gun shot at the deceased when he is said to have been running away from the spot. Mr. Surendra Singh, Senior Advocate contended that the appellants cannot be said to have the common object with Malkhe to cause the death since the act of firing at deceased from the circumstances appears to be the individual act of Malkhe. 13. Refuting the contention advanced by learned counsel for the appellant, Shri G. P. Singh, learned Deputy Government Advocate for the State contended that the omission of mentioning the names of some of the accused persons in the FIR lodged by PW 6 Sawaliya does not materially affect the prosecution story as Sawaliya does not happen to be the eye-witness of the incident and further he had explained that the voice of Ujjibai who narrated the incident to him had become feeble which is quite natural in the circumstances. Immediately after the incident, while suffering the agony of the death of her husband, it is quite probable that voice of Ujji @ Ujariyabai would have gone feeble. Sawaliya had also given explanation about the delay in lodging of the first information report that he entertained fear in the night to go to the police station. Learned counsel submitted that the evidence of all the eye witnesses, viz., PW 5 Kamtu, PW 7 Ujji, PW 8 Tijola and PW 9 Dadu is quite natural, their presence on the spot is fully established in view of the fact that Kamtu, Ujji and Tijola received the injuries at the hands of accused persons. Learned counsel submitted that the evidence of all the eye witnesses, viz., PW 5 Kamtu, PW 7 Ujji, PW 8 Tijola and PW 9 Dadu is quite natural, their presence on the spot is fully established in view of the fact that Kamtu, Ujji and Tijola received the injuries at the hands of accused persons. Though there may be some discrepancies about the number of injuries found on the persons of injured witnesses, yet merely by that it cannot be presumed that the appellants had not participated in the incident in the form of an unlawful assembly. It was also submitted that since the names of all the accused persons have been mentioned by the eye-witnesses and that their evidence about the role of Malkhe is categorical at the point that he had fired gun shot at the deceased, prosecution story has been amply proved. Since all the accused persons had come at the spot together armed with the weapons and after the incident had gone together clearly shows that the common object of the assembly was to kill the deceased. 14. We have heard the learned counsel of the parties at length. In view of the rival contentions, referred to above, of the learned counsel of the parties, before we advert to the evidence on record, it is relevant at the very outset to dilate on the evidence of medical witness. On going through the evidence of PW 3 Dr. P. K. Soni, it is apparent that the deceased Swamideen had suffered single gun shot injury having one entry wound and one exit wound on the left scapular region. As a result of injury, 6th, 7th and 9th ribs of the deceased were fractured and at right lung had suffered excessive laceration. Out of other injured persons, Kamtu was found to have 5 contusions on various parts of his body like shoulder, thigh and arm. Ujiyaribai was found to have suffered one contusion 6 cm x 5 cm in size on left thigh. Tijola was also found to have suffered one contusion measuring 5 x 3 cm on his right arm. In the opinion of doctor, the injury of deceased was caused by gun shot and injuries of Kamtu, Ujiyaribai and Tijola had been caused by hard and blunt objects. 15. Tijola was also found to have suffered one contusion measuring 5 x 3 cm on his right arm. In the opinion of doctor, the injury of deceased was caused by gun shot and injuries of Kamtu, Ujiyaribai and Tijola had been caused by hard and blunt objects. 15. When we come to the evidence of eye-witnesses, viz., PW 5 Kamtu, PW 7 Ujji @ Ujiyaribai, PW 8 Tijola and PW 9 Dadu, they have categorically stated that accused Mithua, Sadasi, Gola, Dadda, Mangaliya, Jaikaran, Rampyare and Rampal had come armed with lathi and all of them had assaulted injured persons by lathi. So far as appellant Maiyadeen is concerned, he is said to be armed with a gun, though no specific act of assault has been attributed to him. On going through the evidence of aforesaid eye-witnesses, it is abundantly clear that the appellants, who had been armed with lathi, had caused simple injuries to them. 16. So far as the contention of learned counsel for the appellants that since only names of 7 accused persons were mentioned in the first information report and the names of accused Maiyadeen, Malkhe, Jaikaran and Mangaliya were not mentioned in it, the participation of aforesaid accused in the incident was doubtful, on going through the evidence of Sawaliya (PW 6), it is apparent that Sawaliya was not an eye-witness of the occurrence. He had come at the spot after the incident was over and all the assailants had already left the spot. The first information report was lodged by him on the basis of information which came to his knowledge from Ujji, wife of the deceased. The report of the incident was lodged next day. Witness Sawaliya has said that he was hard of hearing and since the voice of Ujji had also gone feeble, he could not hear some part of the facts narrated to him by her. Though this part of his evidence is an omission in the first information report and also in police statement, but, in view of the condition of a wife whose husband has been killed just a few minutes ago, it appears quite probable that at the time of weeping and crying her voice would have become feeble and some names might not have been heard by Sawaliya. The statement of Ujji @ Ujiyari wherein she has categorically mentioned the names of all the accused persons and has clearly stated that it was accused Malkhe who had fired gun shot at her husband, amply stands corroborated by the evidence of other eyewitnesses, viz., Kamtu, Tijola and Dadu. All the aforesaid witnesses have categorically stated that Mithua, Sadasi, Gola, Shivram, Mangaliya, Jaikaran, Rampyare and Rampal had come armed with lathi and assaulted the injured persons. It has also been clearly mentioned that Maiyadeen and Malkhe were armed with guns and that when deceased had come out of his house and that when he asked Mithua as to why they were assaulting them, then accused Malkhe had asked to set right the deceased and had fired gun shot at him. Thus, the version given by the aforesaid eye-witness, whose presence at the spot is amply established, is fully consistent and merely the fact that names of some of the accused persons were not mentioned in the first information report will not discredit their testimony which appears to be otherwise reliable and stands amply corroborated by the medical evidence, It is settled position that the first information report can be used only to corroborate or confront the evidence of its maker. The first information report cannot be used to discredit the evidence of other witnesses. 17. So far as the suggestions put by defence in the cross-examination of the witnesses that some outsider miscreants had come to village and had looted some ornaments from the wife of one Manohara and that the deceased indulged in scuffle with the miscreants and, therefore, the miscreants had shot him dead, is concerned, there is nothing on record from which it can be gathered that there was any substance in such suggestions. Mere suggestion cannot take place of the proof. We have also gone through the evidence of DW 1 Sipahilal, DW 2 Lale and DW 3 Ramratan. DW 1 Sipahilal has said that when he had gone to his house in the night then his wife had informed him that she had heard sound coming from the house of Chunnoo Kori that miscreants had entered his house. She had also informed that she had heard the sound of firing of the gun. DW 1 Sipahilal has said that when he had gone to his house in the night then his wife had informed him that she had heard sound coming from the house of Chunnoo Kori that miscreants had entered his house. She had also informed that she had heard the sound of firing of the gun. He said that thereafter he had gone to the house of Swamideen and had seen his dead body lying there and his wife weeping. According to him, wife of Swamideen had told him that some miscreants had entered the house of Manohara and snatched "Bicchiya" from his wife and they had killed Swamideen. In cross-examination, this witness has admitted that he had not disclosed this fact to police. DW 2 Lale said that he was informed by children that some miscreants had-entered the house of "Koris". After sometime he had gone towards the house of Swamideen where his dead body was lying. He has said that the aunt of Kamtu informed him that some miscreants had killed the Swamideen. In cross-examination, he has admitted that he did not see the injuries of other persons and he had not talked to the injured persons, he had talked only to the aunt of Kamtu. He had not disclosed anybody that aunt of Kamtu told him that miscreants had killed Swamideen. DW 3 Ramratan has said that Shyamaliya and Nanda Kori had come to him and informed that some outsider miscreants had killed Swamideen. According to him, he had taken Shyamaliya to police station whereupon Station House Officer had sent his Munshi to village Singarpur. In cross-examination, this witness has admitted that Shyamaliya Kori and Sawaliya Kori are different persons. He has further made it clear by saying that he had not talked with Sawaliya. In view of the weight of evidence of injured prosecution witnesses, the evidence of defence witnesses does not appear to be reliable. On going through the evidence of injured prosecution witnesses, it is amply proved that all the accused persons named by them had participated in the occurrence wherein accused Malkhe had fired his gun at the deceased. 18. Another important question before us is whether the accused persons had formed an unlawful assembly and if yes, what was the common object of that unlawful assembly. 18. Another important question before us is whether the accused persons had formed an unlawful assembly and if yes, what was the common object of that unlawful assembly. From the evidence of PW 5 Kamtu, PW 7 Ujji, PW 8 Tijola and PW 9 Dadu, it is apparent that when Ujji, Tijola and Chhote were warming at the fire place, in front of the house, all the 11 accused persons had come together armed with lathis and guns, accused Maiyadeen and Malkhe were armed with guns. It is in their evidence that accused Mithua had cautioned them not to move and thereafter all the accused persons had assaulted these witnesses. All the witnesses have categorically stated that at the time when the assault was launched, deceased was not present at the scene of occurrence. He was inside the house. Deceased had come out of the house while the prosecution witnesses were being assaulted and then he had objected their beating by the accused persons by asking Mithua as to why they were beating them. It is in their evidence that Mithua said that since they had not voted for Maiyadeen, therefore, they were being beaten. It is at this stage that accused Malkhe said that leader of Koris has come, he should be done away with and when Swamideen tried to run away, accused Malkhe fired a gun shot at him which hit on his back and he fell down dead. On appreciating the evidence of eye-witnesses in correct perspective, it is explicitly clear that at the initial stage of the assault, assailants had formed an unlawful assembly with an object to teach a lesson by giving a beating to the persons who were present at the place of occurrence, but, when deceased Swamideen came out of the house then only accused Malkhe took into his mind to kill the deceased. From the conduct of all other members of the unlawful assembly, it does not appear that they had in any manner any intention or object to kill the deceased. There is no evidence that any other accused in any manner exhorted or assisted accused Malkhe in firing his gun at Swamideen. Since all the accused persons had come together, it was but natural that after Malkhe had fired his gun, they all fled away together. There is no evidence that any other accused in any manner exhorted or assisted accused Malkhe in firing his gun at Swamideen. Since all the accused persons had come together, it was but natural that after Malkhe had fired his gun, they all fled away together. From the fact that all the accused persons came together with accused Malkhe and left the spot together, it cannot be inferred that they had shared the intention of the object of accused Malkhe. In the circumstances, it cannot be held that the common object of the assembly was to cause the death of deceased, though in the facts and circumstances appearing from the evidence, it is amply proved that they had formed an unlawful assembly to cause hurt to prosecution witnesses viz. Ujji @ Ujaria, Kamtu and Tijola who were present at the spot. The act of accused Malkhe being his individual act, the appellants cannot be held liable for it. Thus, the conviction of the appellants for the offence under section 302 read with section 149, Indian Penal Code deserves to be set aside. Instead, the appellants are found guilty for the offence under section 323 read with section 149, Indian Penal Code. 19. Since the lathi cannot be said to be a lethal weapon, conviction of all the appellants, except appellant Maiyadeen, under section 148, Indian Penal Code is also set aside. Their conviction under section 147, Indian Penal Code is however affirmed. Conviction of appellant Maiyadeen who was armed with a gun, under section 147, Indian Penal Code is set aside. However, his conviction under section 148, Indian Penal Code is affirmed. 20. So far as the conviction of appellants under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, after holding the appellants not guilty for the offence punishable under section 302/149, Indian Penal Code, is not possible. Section 3(2)(v) of the Act is reproduced as under : 3. 20. So far as the conviction of appellants under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, after holding the appellants not guilty for the offence punishable under section 302/149, Indian Penal Code, is not possible. Section 3(2)(v) of the Act is reproduced as under : 3. Punishment for offences of atrocities : (1) x x x x (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - (i) to (iv) x x x x (v) commits any offence under the Indian Penal Code (45 of 1860 punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine; On going through the provision, it is apparent that since the offence under section 302/149, Indian Penal Code has not been found proved against the appellants, the aforesaid provisions shall not be applicable as offences which have been found proved against them are not punishable with imprisonment for the term of ten years and more. Hence, the conviction of the appellants under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act deserves to be set aside. 21. In the result, the conviction and sentence of the appellants under section 302/149, Indian Penal Code is set aside. Conviction and sentence of the appellants under section 147, Indian Penal Code (except appellant Maiyadeen) is affirmed. Conviction of appellant Maiyadeen under section 147, Indian Penal Code is set aside. His conviction under section 148, Indian Penal Code is affirmed. However, his sentence under section 148, Indian Penal Code is reduced to RI for six months. Conviction of all the appellants under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is set aside. Appellants are sentenced to undergo rigorous imprisonment of 3 months for the offence under section 323 read with section 149, Indian Penal Code. 22. The sentences of the appellants shall run concurrent and the period of custody already suffered by the appellants shall be given set off. 23. The order passed by the trial Court directing confiscation of the 12 bore licensed gun seized from appellant Maiyadeen is set aside. 22. The sentences of the appellants shall run concurrent and the period of custody already suffered by the appellants shall be given set off. 23. The order passed by the trial Court directing confiscation of the 12 bore licensed gun seized from appellant Maiyadeen is set aside. On production of valid licence, the gun seized from appellant Maiyadeen shall be' returned to him. However, this order of disposal of property shall be subject to the decision of appeal, if any.