JUDGMENT NARAYAN ROY, J.- Heard counsel, for the parties. 2. This appeal arises out of the judgment and order of conviction and sentence dated December 23, 1987 passed by the 14th Additional Sessions Judge, Munger in Sessions Trial No. 51 of 1981 against the appellants for the offences under section 302, 302/149, 148 and 324 of the Indian Penal Code. Appellant no. 6 Hasim Nuit has been convicted for the offence under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment. He has been also convicted for the offence under section 148 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and also under section 324 of the India Penal Code but no separate sentence has been passed whereas rest of the appellants have been convicted under section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They have further been convicted under section 148 and 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years under section 148 but no separate sentence has been passed for the offence under section 324 of Indian Penal Code. However, the sentences were directed to run concurrently. 3. According to the Fardbeyan on the basis of which a formal first information report (Exht. 1) was drawn. Case of the prosecution, briefly stated, is that on 14.5.1980 at about 10.30 A.M. Botal Mandal reported to the villagers that while he was going to Lakhisarai for treatment of his wife, Ismail nut, Gama Nut, Moti Nut and Sahanzar Nut alias Boka Nut way laid them, assaulted and snatched a sum of rupees two hundred and his wrist watch from his person. The villagers thereafter decided to lodge a complain with the village Mukhia and accordingly they started going to the house of Mukhia and while they were passing through the house of Ajab Nut at about 11 A.M. they saw about 25-30 persons near the Darwaja of Ajab Nut. No sooner they had reached the Darwaja of Ajab Nut, they were questioned as to where they were going on which Huro Yadav said that they were going to Mukhia to lodge a complain about the assault of Botal Mandal and snatching away of Rs.200 and his wrist watch. On this, accused persons started abusing them which was protested. No sooner they had reached the Darwaja of Ajab Nut, they were questioned as to where they were going on which Huro Yadav said that they were going to Mukhia to lodge a complain about the assault of Botal Mandal and snatching away of Rs.200 and his wrist watch. On this, accused persons started abusing them which was protested. On this Gama Nut asked his associates, who were armed with gun and pistols and Bijar, to assault the prosecution side. Gama fired from his double barrel gun which hit Siri Mandal as a result of which he fell down and died on the spot. Awadhesh Pandey (P.W. 5) who went to rescue Siri was also hit by Izharul Nut by means of gun. Thereafter, Hasim Nut opened fire hitting at the neck of Bundi Yadav who also fell down and succumbed to the injuries on the spot. Thereafter, Ibrail Nut opened fire which hit the informant (P.W. 4) on his hip and back. Moti Nut, Jakir Nut, Sahur Nut, Jubair Nut, Bullu Nut, Lothu Nut also opened fire from their pistols as a result of which Huro Yadav, Kedar Yadav, Nakat Yadav, Jogeshwar Yadav, Mahendra Yadav, Bhiwan Mandal, Bino Yadav, Puna Yadav, Bauna Tanti, Lorik Yadav, Ram Autar Yadav and Suro Mandal sustained fire arm injuries. On halla being raised by the villagers and on seeing the police party coming, the accused persons retreated. The informant thereafter, lodged his Fardbeyan on the basis of which Exht. 1 was drawn and a case was registered for investigation for the offences under sections 147, 148, 149, 302, 324 and 307 of the Indian Penal Code and section 27 of the Arms Act. 4. After completion of investigation, police submitted charge-sheet against twenty accused persons including the appellants but ultimately eighteen accused persons including the appellants were tried where they were found guilty for the offences as referred to above and accordingly were convicted. 5. The defence of the accused persons was a plea of innocence and false implication and that they had also sustained injuries at the hands of the prosecution side and the prosecution side were the aggressors. 6. The prosecution, in support of its case, examined 11 witnesses out of whom P.W. 1 Siya Ram Singh is a formal witness who proved Exht. 1, the First Information Report and the Fardbeyan. P.Ws. 6. The prosecution, in support of its case, examined 11 witnesses out of whom P.W. 1 Siya Ram Singh is a formal witness who proved Exht. 1, the First Information Report and the Fardbeyan. P.Ws. 7, 8, 9 and 10 namely Huro Yadav, Jageshwar Yadav, Ram Autar Yadav and Kedar Yadav respectively have been declared hostile. The eye witnesses of the occurrence are P.Ws. 2, 3, 4, 5 and 6 namely Nakkat Yadav, Puna Yadav, Kishun Vadav, Awadhesh Pandey and Mahendra Yadav respectively. 7. P.Ws. 2 and 3 in their evidence, have supported the prosecution version of the case by saying that while they were going to the house of Mukhia Basudeo Prasad to lodge a complain for the assault part of the occurrence where Botal Nut was assaulted and he was relieved of' his wrist watch and rupees two hundred, they were waylaid and shots were fired by the appellants. The specific evidence of P.Ws.2 and 3 is that Gema Nut opened fired from his gun hitting Siri Mandal who succumbed to the injuries on the spot whereas Hasim, opened fire on Bundi Yadav hitting him in the neck as a result of which he fell down and succumbed to the injuries. P.Ws. 2 and 3 in their evidence has also stated that they also sustained fire arm injuries at the hands of the accused persons including P.W. 4 Kishun Yadav, P.W. 5 Awadhesh Pandey and P.W. 6 Mahendra Yadav. They have further stated that the appellants had shot fire hitting the prosecution side. 8. P.W. 4 Kishun Yadav is another injured eye witness of the occurrence who has also Deposed on the line of P.Ws. 2 and 3 but slightly he resiled from his previous statements made in the First Information Report to the extent that it was Jakir who shot at Bundi Yadav as a result of which he succumbed to the injuries. He in his cross examination stated that near the house of Ajab Nut the incident took place where firings were made from both the sides as a result of which accused Naushad and others also sustained injuries. 9. P.W. 5 Awadhesh Pandey is another injured eye witness who supported the prosecution version of the case and deposed in the line of P.Ws. 2, 3 and 4. 9. P.W. 5 Awadhesh Pandey is another injured eye witness who supported the prosecution version of the case and deposed in the line of P.Ws. 2, 3 and 4. However, he went one step further to say in his cross-examination that a proceeding under section 107 Cr.P.C. was going on n between the accused side and the prosecution party and on information being given by Botal Mandal about assault on him, they started from the village with a mob towards the Tolas of Nuts. He has also stated in his cross examination that accused Naushad and his mother Noor Jahan and others also sustained fire arm injuries. However, he was unconscious at the time of firing made on them. He has also stated in his cross examination that a counter case filed by the accused persons is also pending in the court of law where he and Kishun Yadav have been made accused. 10. PW. 6 Mahendra Yadav is another injured eye witness who in his evidence firstly stated that Gama opened fire on Siri Mandal as a result of which he succumbed, to the injuries whereas Hasim fired on Bundi Yadav hitting on the neck as a result of which he also succumbed to the injuries. Thereafter, the other accused persons indiscriminately opened fire hitting him and the other injured persons. But in his cross examination he has stated that the prosecution side had formed a mob of 30-40 persons to go to the house of Mukhia to report the matter about the first incident as referred to above. No sooner they had reached near the house of Ajab Nut, there was firing and cross firing in between the parties. 11. PWs. 7 to 10 namely Huro Yadav, Jageshwar Yadav, Ram Autar Yadav and Kedar Yadav respectively who have been declared hostile, in the first instance, supported the prosecution version of the case to some extent and thereafter they were declared hostile. P.W. 11 Suresh Mandal alias Suro Mandal is another injured witness who has stated that Gama Pahalwan, Ibrar and Sahoor were seen at the place of occurrence and he had seen Gama Pahalwan opening fire which hit him in his neck and leg. Thereafter he fell down and became unconscious. In cross examination, he states that when he had reached the place of occurrence, firing and cross firing was being resorted to by the parties. Thereafter he fell down and became unconscious. In cross examination, he states that when he had reached the place of occurrence, firing and cross firing was being resorted to by the parties. He also stated that male and female members of the accused persons had also sustained injuries for which a separate case was registered where he is also one of the accused. 12. The defence has examined D.W. 1 namely Ganga Lal who has proved Exht. A and B, the fardbeyan and First information report lodged by Naushad Mian in the counter case. 13. The doctor who held autopsy over the dead body of Siri Mandal and Bundi Yadav and the doctor who had examined the injured persons have not been examined nor the Investigating Officer of the case was examined by the prosecution. However, the postmortem report (Exht. 6 and 6/1, injury reports (Exhts. 7 to 7/11) and the inquest reports were marked exhibits under section 294 of the Code of Criminal Procedure whereas formal F.I.R. (Exht. 1) has been proved by P.W. 1 namely Siya Ram Singh, A.S.1. 14. It is contended by counsel for the appellants that the prosecution has not proved the charges against the appellants beyond all reasonable doubts. He further submitted that there was case and counter case and it were the prosecution party who had aggressed upon them where both sides resorted to firing resulting into certain deaths and injuries caused on the prosecution side. He also submitted that many of the persons in the accused side sustained fire arm injuries out of the same incidence and, therefore, the firing made by the accused persons can safely be said to be in right of private defence. It is also submitted that in view of the evidence of P.W. 4, the charges are not proved against the appellant Hasim as P.W. 4 has not stated the factum of firing made by this appellant upon Bundi Yadav and since many contradictions have been found in the evidence of the witnesses, they are not reliable evidence and it would not be safe to sustain the orders of conviction and sentence passed against them. 15. Counsel for the state, on the contrary, submitted that the prosecution has proved the charges against the appellants beyond all reasonable doubts and in view of the evidence of P.Ws. 15. Counsel for the state, on the contrary, submitted that the prosecution has proved the charges against the appellants beyond all reasonable doubts and in view of the evidence of P.Ws. 2, 3, 5 and 6, the judgment and order of conviction and sentence passed by the appellants (sic?) are well sustainable. State counsel emphatically stated that the eye witnesses who were also injured, have given vivid picture of the occurrence by saying that Siri Mandal was killed by firing made by Gama whereas Bundi Yadav was killed as a result of firing made by Hasim and since Gama died prior to the trial, the guilt has fully been proved, against the appellant Hasim for committing murder of Bundi Yadav. Counsel for the state further submitted that the evidence has fully proved the case of homicidal death and therefore, conviction of Hasim under section 302 of the Indian Penal Code need not be interfered with nor his conviction under the other counts be set aside. 16. We have scrutinised the evidence of the injured eye witnesses with all objectivity and carefully. From the evidence of eye witnesses, it appears that the prosecution side had formed an unlawful assembly for going to the house of village Mukhia to lodge a complain for the first part of the occurrence where Botal Mandal was assaulted and he was relieved of his wrist watch and rupees two hundred. It is also manifest from the evidence that no sooner they had gone near the house of Ajab Nut, they were questioned as to where they were going which resulted into firing made by the accused persons but at the same time it also appears from their evidence that there was firing and cross firing Where both sides sustained injuries. However, two persons Bundi Yadav and Siri Mandal were killed at the hands of the accused persons. The evidence appears to be telling one so far killing of Siri Mandal is concerned at the hands of Gama but we find insufficient evidence for fastening the guilt of murder of Bundi Yadav upon appellant Hasim in view of the postmortem report. 17. The evidence appears to be telling one so far killing of Siri Mandal is concerned at the hands of Gama but we find insufficient evidence for fastening the guilt of murder of Bundi Yadav upon appellant Hasim in view of the postmortem report. 17. From the postmortem report it is manifest that deceased Bundi Yadav had sustained fire arm injuries in both sides of his neck and at the same time he had also sustained pellet injuries on the chest and abdomen as a result of which the lungs were badly damaged. Altogether three pellets were taken out from the pleural cavity. The prosecution has not explained in its evidence about the injuries sustained by the deceased Bundi Yadav on his chest which resulted into complete damage of his lungs having three penetrating wounds. It is specific case of the prosecution and the prosecution witnesses that Hasim opened fire hitting Bundi Yadav on his neck as a result of which he died. However, on close scrutiny the evidence were found stray suggesting that other accused persons had also fired hitting at Bundi and other injured but nothing specific has been said about the injuries caused on the chest of the deceased Bundi. The antemortem injuries which were found around the neck of deceased Bundi, are also not suggestive of the fact as per the postmortem report, that they were fatal nor the doctor who held the autopsy, has opined as to which of the injury is proved fatal. 18. The evidence as referred to above, suggests that the prosecution side had formed an unlawful assembly to go to the house of Mukhia crossing through the mohalla of Nuts (accused persons), the evidence is also suggestive of the fact that no sooner they had reached near mohalla of the Nuts, there was firing and cross firing but at the same time we do not find sufficient evidence to show that the accused persons had formed unlawful assembly and they were lying in ambush to attack on the prosecution side. It appears rather that the accused persons, who were in their maholla, had questioned the prosecution side as to where they were going which resulted into some altercation and ultimately it turned into a sort of riot hitting persons of both the sides. It appears rather that the accused persons, who were in their maholla, had questioned the prosecution side as to where they were going which resulted into some altercation and ultimately it turned into a sort of riot hitting persons of both the sides. The evidence, on this question, is telling one and the material exhibits about loding of First Information Report and Fardbeyan by the accused persons have also been proved by D.W. 1 Ganga Lal Some of the prosecution witnesses have also stated about pendency of the counter case lodged by the accused side where some of the prosecution parties are accused. 19. Now, so far the question of order of conviction so far appellant Hasim is concerned, the learned trial court has held him guilty for the offences under section 302 simplicitor besides the offences under sections 148 and 324 of the Indian Penal Code. As we have already discussed above, the evidence of the prosecution, both ocular and documentary, we are left with no option but to hold that it is not a case of homicidal death of Bundi Yadav nor appellant Hasim had any intention to kill him as the injuries caused on the person of the deceased at the hands of this appellant are not said to be fatal by the prosecution evidence. The other injury which was found rJ8.maging the lungs of the deceased Bundi Yadav, rather appears to be fatal though no such opinion has been given by the expert who held the autopsy. 20. For the reasons aforementioned, the conviction of appellant Hasim under section 302 of the Indian Penal Code is not proved beyond all reasonable doubts. However, in view of the evidence we hold him guilty for the offence under section 304 Part II of the Indian Penal Code as he had no intention to kill Bundi Yadav though he inflicted injuries on his person. The conviction and sentence of appellant Hasim under section 302 of the Indian Penal Code is accordingly set aside and he is convicted under section 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. His conviction under sections 148 and 324 of the Indian Penal Code is upheld but there will be no separate sentence for the same. 21. His conviction under sections 148 and 324 of the Indian Penal Code is upheld but there will be no separate sentence for the same. 21. So far rest of the appellants are concerned, we do not find sufficient reason to sustain the order of conviction and sentence passed against them for the offences under sections 302/149 of the Indian Penal Code as evidences do not suggest that they had common intention to achieve the common object rather the evidence proves the charges against all the appellants for the offences under sections 148 and 324 of the Indian Penal Code. 22. Regard being had to the facts and circumstances of the case, the judgment and order of conviction and sentence passed against rest of the appellants under section 302 read with section 149 of the Indian Penal Code are set aside and the} are convicted for offences under sections 148, and 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for the period already suffered by them. 23. With the aforementioned alteration and modification in the conviction and sentence, the appeal is dismissed. 24. Appellant Hasim is on bail. His bail bonds are accordingly cancelled. I agree.