Judgment ( 1. ) THE appellants, above named, have challenged the judgment dated 19th December, 1996 of the learned Additional Sessions Judge, Shujalpur (District Shajapur) in Session Trial No. 378/1992 by which the appellants have been convicted under Section 148 and each has been sentenced to rigorous imprisonment for one year; under Section 302/149 and each has been sentenced to imprisonment for life; under Section 325/149 and sentenced to one years rigorous imprisonment, as also under Section 323/149 of the Indian Penal Code to rigorous imprisonment for six months. All the sentences have been directed to run concurrently. ( 2. ) THE case arises from an incident dated 22nd of July, 1992 of which report was made at 6. 30 p. m. , by Rajjupuri (P. W, 5) at Police Station, Shujalpur. According to the case of the prosecution, at 12. 00 noon, on that date, deceased Vinod was in the field called nania Khedi in the company of Madhu (P. W. 10) and Sumer Singh (P. W. 8) where he had gone with the Tractor of Narayan Singh Parmar for sowing operation. While he was sowing Soybean with the help of Dilip and others who had accompanied him, at about 4. 00 or 4. 30 in the afternoon, accused Dropadibai and Leelabai and other members of their family namely; accused Vipda Prasad, Geeta Prasad, Shambhulal and Chunnilal arrived and started quarreling. Vipda Prasad and Geeta Prasad assaulted them with Axe and Ballam and caused injury to Vinod with a Sword with the result Vinod fell down. The other persons tried to save themselves but they were belaboured. Vipda Prasad and Geeta Prasad and their companions and also Dropadibai and Leelabai started shouting. Vinod fell down. Rajjupuri (P. W. 5) ran towards Mandi and thereafter boarded a Bus and came to the Hospital with Narayan Singh. Vinod Singhvi was assaulted by Vipda Prasad and Geeta Prasad by weapons like Axe and Ballam (spear), while Shambhulal and Chunnilal also assaulted him with lathi. As a result of the assault, he died. ( 3. ) ON the basis of the report (Ex. P-6), an offence under Section 302/34 of the IPC was registered. The body of the deceased Vinod was forwarded to the Hospital for examination and post-mortem examination while the injured were sent to the Hospital for treatment of their injuries. As a result of the assault, he died. ( 3. ) ON the basis of the report (Ex. P-6), an offence under Section 302/34 of the IPC was registered. The body of the deceased Vinod was forwarded to the Hospital for examination and post-mortem examination while the injured were sent to the Hospital for treatment of their injuries. The accused persons were arrested and on the basis of the disclosure made by them, weapons were recovered at their instance. The seized articles were sent to the Forensic Science Laboratory for examination and after completion of the investigation, the accused were prosecuted. On being charged for offences under Sections 148, 149, 302, 149/323, 149/325 and 149/327 of the IPC, the accused denied having committed any offence and pleaded that they were innocent and that they had been falsely implicated on account of enmity. However, they did not adduce any evidence in their defence. On trial, the learned Addl. Sessions Judge, found them guilty as hereinabove stated and convicted and sentenced them. The appellants have, therefore, challenged the said judgment. ( 4. ) THOUGH the learned Counsel for the appellants has not appeared, in all fairness, learned Dy. Advocate General has brought to our notice all aspects of the matter and taken us through the entire record. ( 5. ) INSOFAR as the homicidal death of Vinod is concerned, there is evidence of eye-witnesses Rajjupuri (P. W. 5), Radheshyam (P. W. 6), Sumer Singh (P. W. 8), Anand Agrawal (P. W. 9), Madhu (P. W. 10) and Sunil (P. W. 11) to the effect that while he was in the field, he was attacked by accused Vipda Prasad and Geeta Prasad and he had fallen down on the ground and died. B. L. Soni (P. W. 14) was posted as Town Inspector, Shujalpur. On receipt of the report (Ex. P-6), lodged by Rajjupuri. He issued subpoena to witnesses and held inquest of which he prepared report Ex. P-23. He sent the dead body under requisition Ex. P-24. This requisition was received by Dr. Shivnarayan Gupta (P. W. 3 ). Shivnarayan Gupta (P. W. 3) was posted as Asstt. Surgeon in the Civil Hospital, Shujalpur, on 23-7-1992. He performed the autopsy in which he gave report Ex. P-5. P-23. He sent the dead body under requisition Ex. P-24. This requisition was received by Dr. Shivnarayan Gupta (P. W. 3 ). Shivnarayan Gupta (P. W. 3) was posted as Asstt. Surgeon in the Civil Hospital, Shujalpur, on 23-7-1992. He performed the autopsy in which he gave report Ex. P-5. He recorded the following external injuries on the body of Vinod: (1) Lacerated wound 4" x 1" x scalp deep on left side occipital parietal region; (2) Lacerated wound 2" x 1" x scalp deep on left occipital region; (3) Incised wound 2" x 1" x 1-1/2" over left side of neck cutting sternum mastoid muscles; (4) Incised wound 1-1/2" x 1" x 1-1/2" sternum mastoid, jugular veins below external and internal left carotid artery is also cut; (5) Incised wound 1-1/2" x 2" left side of neck 1" below injury No. (4) cutting steroid masloid muscle and vessels; (6) Incised wound 1-1/2" x 1" x 1-1/2" left side of neck in the supra clavicular region cutting muscles underlying it; (7) Incised wound 1-1/2" x 1" x 1-1/2" over the left scapular; (8) Incised wound 1-1/2" x 1" x 1" on left shoulder; (9) Incised wound 1-1/2" x 1" x 1" on left side of neck posteriorly; (10) Bruise 6" x 1" on left arm oblique; (11) Bruise 6" x 1" on left arm oblique 2" below injury No. (10); (12) Bruise 4" x 2" on left elbow; (13) Bruise 6" x 2" on left buttock; (14) Bruise 6" x 2" on right thigh laterally; (15) Bruise 6" x 1-1/2" on thigh laterally; (16) Lacerated wound 2" x 1" x skin deep on left elbow laterally; (17) Contused abrasion 6" x 1" on left buttock laterally; (18) Contused abrasion 4" x 1" on left leg laterally; (19) Contusion 4" x 2" left chest 2" below nipple; (20) Contusion 3" x 2" left side of chest near nipple; and (21) Contusion over the whole of back and lumber region. In the opinion of the Doctor, the cause of death of Vinod was haemorrhage and shock as a result of injuries to major vessel left carotid artery. We may notice here that none of the injuries has been described by the Doctor as a stab wound or a penetrating wound which could be ascribed to having been caused by a spear. We may notice here that none of the injuries has been described by the Doctor as a stab wound or a penetrating wound which could be ascribed to having been caused by a spear. From the description of the injuries and the opinion of the Doctor, death of Vinod was undoubtedly homicidal . ( 6. ) IN order to prove its case, the prosecution has examined Rajjupuri (P. W. 5), Radheshyam (P. W. 6), Sumer Singh (P. W. 8), Anand Agrawal (P. W. 9), Madhu (P. W. 10) and Sunil (P. W. 11) as eye-witnesses. It is seen from their testimony that insofar as Radheshyam is concerned, he has not fully supported the prosecution and he has been declared hostile. Rajjupuri (P. W. 5) was himself injured in the incident as is evident from the medical evidence adduced in this case. He was forwarded by the police to the Civil Hospital, Shujalpur, for examination and treatment of his injuries. His injuries were seen by Dr. V. P. Dube (P. W. 2) who found as many as seven injuries on his person of which he gave report Ex. P-3, in which the injuries described by him read as follows: (1) Lacerated wound 2" x 1/4" x muscle deep on scalp right parietal region; (2) Contused lacerated wound 2" x 1/4" on left forearm 2-1/2" below elbow; (3) Contusion 3" x 1/2" on left upper arm; (4) Contusion 3" x 1/2" on scapular region; (5) Contusion 4" x 1/2" on left thigh; (6) Contusion 3" x 1/2" on right thigh above knee; and (7) Contusion 3" x 1/2" above injury No. (6) . ( 7. ) RAJJUPURI (P. W. 5) has deposed that he had gone along with Vinod to the land for sowing but there ensued a quarrel in which there were four persons whom he could identify but did not know by name. The accused persons including the two women were also present. He pointed out the person (Shambhulal) who assaulted with a Stick; (Vipda Prasad) with axe; (Geeta Prasad) with a Pirana (goad); and, (Chunnilal) with a Stick. He also pointed out Shambhulal as the person who had assaulted him with a stick with the result he had fallen down. He further deposed that the accused persons also belaboured him with sticks after he had fallen down. He also pointed out Shambhulal as the person who had assaulted him with a stick with the result he had fallen down. He further deposed that the accused persons also belaboured him with sticks after he had fallen down. He has not been able to say as to who caused the injuries to Sumer Singh. He has clearly stated that the women accused did not do anything except stopping them from sowing the field and calling the male accused. He, then, became unconscious. When he regained consciousness, he went to the house of Narayan Singh who sent him to the Police Station where he lodged report (Ex. P-6 ). He was sent to the Hospital where he was treated. ( 8. ) RADHESHYAM (P. W. 6) has deposed that he was standing at a distance when at about 4. 00 or 5. 00 in the evening while Vinod, Madhu, Sunil, Anand Agrawal and Driver Sumer Singh were running a Tractor in the field, two ladies stopped them. He, however, could not identify the lady accused. The ladies said that the land belonged to them and called male members. However, he could not see the persons who assaulted Vinod. He was declared hostile. ( 9. ) SUMER Singh (P. W. 8) is also an eye-witness. He had gone with the deceased and his other companions on being told that complainant side had taken the possession of the land. While they were sowing the land, two women had asked them to stop the Tractor. They discussed the matter with Vinod and suddenly shouted called the male member with the result accused Vipda Prasad, Geeta Prasad, Shambhulal and Chunnilal arrived. Vipda Prasad was armed with an Axe, Geeta Prasad with a goad and Shambhulal and Chunnilal, each, had a stick. Vipda Prasad assaulted Vinod with the Axe at the level of his neck and repeated the blow at various other parts, four-five times, while others assaulted him with Pirana (goad) and sticks. He was assaulted by Vipda Prasad from the blunt side of the Axe while Geeta Prasad assaulted him with Lathi causing fracture. Rajjupuri, Tractor Driver, was also beaten, but he could not say, who caused him the injury. Madhu also received injuries. ( 10. ) PRESENCE of Sumer Singh cannot be doubted. He sustained injuries in the transaction. He was sent for medical examination and seen by Asstt. Surgeon Dr. Rajjupuri, Tractor Driver, was also beaten, but he could not say, who caused him the injury. Madhu also received injuries. ( 10. ) PRESENCE of Sumer Singh cannot be doubted. He sustained injuries in the transaction. He was sent for medical examination and seen by Asstt. Surgeon Dr. Satish Kumar Shrivastava (P. W. 1 ). Upon examination, Dr. Shrivastava had given report (Ex. P-1 ). As per the deposition of Dr. Shrivastava, he had sustained the injuries mentioned in the report Ex. P-1, which read as under: (1) Lacerated wound 4 cm x 1/2 cm x 1/2 cm vertically over the left side of parietal part of scalp; (2) Contusion 10 cm x 3 cm horizontal over the upper 1/3rd of right forearm; and (3) Contusion 6 cm x 2 cm vertical over the dorsum of right hand towards thumb side with diffused swelling . ( 11. ) ANAND Agrawal (P. W. 9) has also deposed that he had seen Vipda Prasad causing injury on the neck of deceased Vinod by means of an Axe while others were assaulting Sumer, Sunil, Radheshyam, Madhu and Rajjupuri. He was also assaulted. Apart from Vipda Prasad, others had also assaulted Vinod with the result Vinod had died instantaneously. He has further deposed that Vinod had taken possession of the land through the Court. The testimony of Madhu (P. W. 10) and Sunil (P. W. 11) also shows that on being called by the ladies of their family, the accused persons rushed towards the place and Vipda Prasad assaulted with Axe while Geeta Prasad with Pirana (goad ). ( 12. ) AS rightly pointed out by the learned Dy. Advocate General, the dispute between the parties was the agricultural land on which the complainant party was performing agricultural operation. It is also not disputed by the prosecution that there was long litigation between the parties and the complainant, on the allegation that they were Bhumiswami and on account of their success in the litigation, they were put in possession of the land, they were entitled to plough it, they were within their rights to cultivate the same. In this connection the prosecution has projected the relevant material through Gyanchand (P. W. 4), father of the deceased. He has deposed that the land was purchased by him along with Sobhagmal Jain from Fulsingh Gehlot, about 25 years ago. In this connection the prosecution has projected the relevant material through Gyanchand (P. W. 4), father of the deceased. He has deposed that the land was purchased by him along with Sobhagmal Jain from Fulsingh Gehlot, about 25 years ago. This land was in joint possession of Nannulal and Mishrilal. Share of Nannulal had been auctioned by the Bank which was purchased by Fulsingh and this witness. Since it was a joint holding, they had applied for partition. The proceedings had continued for about 16-17 years and after decision they were given possession on 26-6-1992. Possession was given by Girdavar and Patwari on the spot. In this connection, a copy of the decision of the Civil Court was brought on record as Ex. P-13, copy of the auction sale and the decision and the order of the High Court as Ex. P-14, copy of the sale deed as Ex. P-15, copy of the decision of the Civil Court in the suit filed by Nannulal and others, as Ex. P-16, and, copy of order passed by Tehsildar for partition as Ex. P-17. In addition to the above documents, copy of the possession receipt was placed on record as Ex. P-18 and Panchnama as Ex. P-19. ( 13. ) FROM the above evidence, though it is clear that there was dispute in which the complainant side succeeded, it is equally clear that the delivery of possession of the land, as evidenced by Exs. P-18 and P-19, shows that the opposite party was not present and it was stated that the opposite party had refused to accept the notice sent to it by the Revenue Authorities in this behalf. Nothing has been brought on record to show that such a notice was tendered to the other party and was not accepted to attribute knowledge to the other party about possession having been given to the complainant party. Under these circumstances, it is quite possible that the accused were under the impression that they were still in possession of the land and, it was quite possible that the two women accused namely; Dropadibai and Leelabai may have tried to stop the complainant side and in doing so, may have called the male members of their family. Under these circumstances, it is quite possible that the accused were under the impression that they were still in possession of the land and, it was quite possible that the two women accused namely; Dropadibai and Leelabai may have tried to stop the complainant side and in doing so, may have called the male members of their family. Though it is said that these two women had incited the male accused by saying as to whether they were wearing Bangles, the same cannot be construed as an exhortation to attack the complainant party or to cause them any injury. Their remarks being pungent were, no doubt, intended to bring them out from their moorings, but not for causing the death of any person. It is also clear from the testimony of the witnesses that after the initial call the two women accused did not participate in the incident in any manner whatsoever. They did not have any weapon. Since evidence with regard to the possession is silent on the question of the knowledge to the accused of the possession having been given to the complainant party, there is no evidence that during the period of about a month from the date the symbolic possession was given, any other action concerning the land was taken by the complainant party and there is nothing to suggest that the accused had been physically ousted from the possession of the land. Therefore, it cannot be said that the accused Dropadibai and Leelabai were acting contrary to law in stopping the complainant party from continuing with the ploughing/sowing of the field. The initial entry of Dropadibai and Leelabai, thus, not having been proved illegal and there being no evidence to the effect that they had participated in the incident in any manner whatsoever except having remained still on the place where they were standing, it cannot be said that on account of their mere presence they had become members of an unlawful assembly and were liable for the acts of other members. We are, therefore, of the opinion that conviction of Dropadibai and Leelabai with the aid of Section 149 of the IPC cannot be sustained. ( 14. We are, therefore, of the opinion that conviction of Dropadibai and Leelabai with the aid of Section 149 of the IPC cannot be sustained. ( 14. ) THE two women accused Dropadibai and Leelabai having not been the members of the group that allegedly participated in the felonious activities alleged by the prosecution, the case of the prosecution that there was an unlawful assembly fails as the number of the accused with the deletion of the above two, falls below five. We have, therefore, to see as to whether the prosecution has succeeded in showing that the act of the accused persons was in furtherance of their common intention to cause death of Vinod, thus, attracting the provisions of Section 34 of the IPC and making them constructively liable therefor. ( 15. ) IN so far as the act of Vipda Prasad is concerned, all the eyewitnesses have consistently deposed that Vipda Prasad on arrival, caused injury to the deceased Vinod by means of an axe. The evidence of Rajjupuri (P. W. 5), Sumer Singh (P. W. 8), Anand Agrawal (P. W. 9), Madhu (P. W. 10) and Sunil (P. W. 11) is consistent on this point. Some of the eye-witnesses namely; Rajjupuri (P. W. 5), Sumer Singh (P. W. 8) and Madhu (P. W. 10) were themselves injured. Nothing has been shown to doubt their evidence. It is thus proved beyond any shadow of doubt that the injury was caused to Vinod by means of an axe. Though Sumer Singh (P. W. 8) has been confronted with his statement under Section 161 (Ex. D-1) with regard to the injury having been caused by Vipda Prasad on head, in view of the fact that all the witnesses are consistent with regard to his participation and the medical report confirms it and so also the FIR (Ex. P-6), we are of the view that insofar as participation of Vipda Prasad and causing injuries to Vinod by means of an axe is concerned, the prosecution has fully succeeded in establishing its case. Against Geeta Prasad also the witnesses have made categorical statement with regard to his participation and causing of injuries. However, there is discrepancy as to whether he caused injury with a Ballam, Sword, Pirana or Lathi. Anand Agrawal (P. W. 9) has also attributed participation to him. Against Geeta Prasad also the witnesses have made categorical statement with regard to his participation and causing of injuries. However, there is discrepancy as to whether he caused injury with a Ballam, Sword, Pirana or Lathi. Anand Agrawal (P. W. 9) has also attributed participation to him. The evidence also shows that on being called, Vipda Prasad and Geeta Prasad had come ahead of the other accused persons. It is, therefore, clear that before the accused Shambhulal and Chunnilal had arrived after the assault had already begun in which only Vipda Prasad and Geeta Prasad had participated. It is for this reason that in his initial statement. Anand Agrawal (P. W. 9), does not attribute any assault by Shambhulal and Chunnilal insofar as assault on Vinod is concerned. It is only when a leading question is put, he makes an omnibus statement involving all the accused including the women accused which is not the case of the prosecution. We are, therefore, of the view that only Vipda Prasad and Geeta Prasad can be held responsible for the murder of Vinod and convicted under Section 302 read with Section 34 thereof for the same. ( 16. ) FROM the evidence on record, it is clear that the injury was caused to Sumer Singh (P. W. 8) by Vipda Prasad with axe from its blunt side and Geeta Prasad with a stick resulting in fracture of metacarpal. Only these two persons are liable for the same. Accordingly, their conviction under Section 325/149 is affirmed and sentence of one year rigorous imprisonment is maintained. As regards conviction of the appellants under Section 323/149 in causing injuries to Rajjupuri (P. W. 5) and Madhu (P. W. 9), since the evidence is not clear as to. which accused caused them injury, the benefit of doubt is given to the accused persons. ( 17. ) IN the result, this appeal is partly allowed. While the accused Shambhulal, Chunnilal, Dropadibai and Leelabai are acquitted of the charge under Section 302/149, the accused Vipda Prasad and Geeta. Prasad are held guilty under Section 302 read with Section 34 of the IPC and the sentence of imprisonment for life is maintained. The accused Vipda Prasad and Geeta Prasad are held guilty under Section 325/149 and sentence of one year rigorous imprisonment passed against them is maintained. ( 18. Prasad are held guilty under Section 302 read with Section 34 of the IPC and the sentence of imprisonment for life is maintained. The accused Vipda Prasad and Geeta Prasad are held guilty under Section 325/149 and sentence of one year rigorous imprisonment passed against them is maintained. ( 18. ) ALL the other accused are acquitted of the charges against them. Appellants Shambhulal, Chunnilal, Dropadibai and Leelabai are on bail. Their bail bonds shall stand discharged. Appellants Vipda Prasad and Geeta Prasad shall submit to their bail bonds to serve out the sentence.