ORAL JUDGMENT Per D.D.Sinha, J : 1. Heard Mr. V.M.Deshpande, learned counsel for the appellant/accused in Criminal Appeal No. 643 of 2002 and for the respondents/accused in Criminal Appeal No.23 of 2003 and Mr.A.V.Gupta, learned counsel for the appellants in Criminal Appeal No.708 of 2002 and Mr. D.B.Patel, Additional Public Prosecutor for the State in all the three Criminal Appeals. 2. The material particulars of the prosecution case in nutshell are as follows : On 2.6.1998, Security Officer Pundlik Januji Mohod (PW-3) learnt that some cattle entered into the premises of Amravati University campus. Pundalik (PW 3) along with his six associates namely Dinkar Chandekar (PW 4), Kishor Raut (deceased), Dilip Bhosale, Bhagwant Sawarkar, Gautam Bapurao Shirsat (PW 5) and one Rupesh Rajurkar went to the spot where cattle were grazing at about 4.00 A.M. Complainant Narhari Namdeorao Wankhade (PW 1), at the relevant time, was watchman of Orange Garden which was situated on the eastern side of University Campus. The above referred witnesses asked him to accompany them. While these people were proceeding towards the place where the cattles were grazing, they saw that part of the fencing of barbed wire on the eastern side was removed. These witnesses, therefore, suspected that the cattles might have entered in the campus from there. 3. When these persons reached the spot, they saw some cattle grazing in the premises of the University and one person was looking after these cattles. It is the prosecution case that, on seeing these witnesses, the said person ran away from the spot. At about 4.30 A.M., these witnesses started taking the cattles towards the administrative side of building of the University in order to put them in cattle pound. When they reached near the department of Zoology, two persons i.e. accused Dilip s/o. Ramchandra Vaidya and Kishor Kukde came near them. Accused Dilip was having stick in his hand and accused Kishor was armed with axe. As per the prosecution case, these prosecution witnesses prevented the accused from taking cattles to the cattle pound. At that time, two more persons namely accused Gajanan s/o. Bhimrao Vaidya, who was armed with axe and accused Deveshwar s/o. Ramchandra Vaidya, who was armed with spear, also came there and joined the other accused in preventing these prosecution witnesses (Security people) from taking cattle to the cattle pound. At that time, two more persons namely accused Gajanan s/o. Bhimrao Vaidya, who was armed with axe and accused Deveshwar s/o. Ramchandra Vaidya, who was armed with spear, also came there and joined the other accused in preventing these prosecution witnesses (Security people) from taking cattle to the cattle pound. Accused Dilip asked other accused to launch attack on the employees of the University (Security personnel). Thereupon accused Deveshwar gave a blow with spear which resulted in causing injury on the waist of the complainant. Accused Dilip dealt a blow with stick 7 which resulted in causing injury on his finger of right hand as well as left lower leg of Narhari (PW 1). Pundlik Mohod (PW 3) intervened and wanted to help the complainant Narhari. However, accused Dilip gave a blow of stick on the person of Pundlik Mohod, who sustained injury on his left leg. 4. It is the case of prosecution that Pundlik Mohod (PW 3) asked Kishor (deceased) to call Registrar of the Amravati University. While Kishor Raut was on his way to call the Registrar, accused Kishor, Gajanan and Deveshwar all of a sudden rushed towards him, caught hold of him and assaulted him with axes and spear. Kishor Raut fell down on the ground in a pool of blood. Registrar Vandan Mohod also reached on the spot and arranged vehicle for taking the injured Kishor Raut to the General Hospital, Amravati. On examination, the Doctor declared Kishor Raut dead. 5. It is the case of prosecution that while the Security Guards were taking cattle towards administrative building of the University, accused Prakash gave a blow with stick on the person of Gautam Shirsat (PW 5) and accused Deepak gave a blow with stick on the person of Dinkar (PW 4) and thereafter, they left the spot and went away towards village Rajura. It is the case of prosecution that, at that time, the prosecution witnesses noticed that three persons with spears, axes were returning from the spot of incident and going towards village Rajura; they were accused Deveshwar, Kishor and Gajanan. Kishor Raut was lying on the ground in front of Guest house of University in a injured condition. By that time Registrar Mohod also reached there and shifted injured Raut to the General Hospital where Doctor declared him dead. 6. Kishor Raut was lying on the ground in front of Guest house of University in a injured condition. By that time Registrar Mohod also reached there and shifted injured Raut to the General Hospital where Doctor declared him dead. 6. Police, on receipt of telephonic information from the General Hospital, Amravati, registered offence against original accused no.1 Kishor s/o. Punjabrao Kukde, accused no.2 Deveshwar s/o. Ramchandra Vaidya, accused no.3 Gajanan Bhimrao Vaidya and accused no.6 Dilip s/o. Ramchandra Vaidya initially. Police visited the spot and seized the articles and collected earth mixed with blood, part of denture of teeth of accused Dilip and his slippers The spot panchanama was also recorded. 7. During the course of investigation, Police have also seized the weapons such as spears, axes on the basis of the Memorandum statements of accused Deveshwar, Gajanan and Kishor. The sticks were seized from the houses of accused Prakash and accused Deepak. Accused Dilip was caught by witness Pundlik on the spot along with the stick. Police have also seized clothes of deceased Kishor, injured Narhari Wankhade (PW 1) as well as accused persons, in presence of panchas. Muddemal property seized in the crime was sent to Chemical Analyser. After completing the investigation, police have submitted charge sheet against all the six accused for the offences punishable u/ss. 147, 148, 324 r/w. Section 149 of the Indian Penal Code, u/s. 307 r/w. 149 and u/s. 302 r/w. 34 of the Indian Penal Code. 8. Charge was framed against all the six accused for the offences punishable u/ss. 147, 148 and 302 r/w. Section 149 of the Indian Penal Code, Section 307 r/w. Section 149 of the Code, Section 324 r/w. Section 149 of the Code against all six accused persons. Charge u/s. 324 r/w. 149 of the Indian Penal Code was separately framed for causing injuries to Dinkar Chandekar (PW- 4), Gautam Shirsat (PW 5), Dilip Bhosale, Pundlik Mohod (PW- 3) and Charge u/s. 353 r/w. Section 149 of the Code was also framed against all the accused persons. Similarly, the charge was also framed against all the accused persons for the offence punishable u/s. 447 r/w. Section 149 of the Code. The contents of the charge were read over and explained to the accused in vernacular, to which all the accused pleaded not guilty and claimed to be tried. Defence of the Original accused nos. Similarly, the charge was also framed against all the accused persons for the offence punishable u/s. 447 r/w. Section 149 of the Code. The contents of the charge were read over and explained to the accused in vernacular, to which all the accused pleaded not guilty and claimed to be tried. Defence of the Original accused nos. 1 to 4 i.e. accused Kishor, Deveshwar, Gajanan and Deepak was that they were implicated in the crime only on suspicion. Defence of the Original accused no.6 Dilip was that there was a scuffle/free fight between the two groups in which he sustained injuries. Defence of Original accused no.5 Prakash was that relations between him and Dinkar Chandekar were strained. Hence, he was falsely implicated. 9. Mr. A.V.Gupta, Adv. for the and Mr. V.M.Deshpande, Adv. for the respective appellants have contended that, so far as the evidence of complainant Narhari Namdeorao Wankhade (PW- 1) is concerned, there are material omissions in his statement. Though it is contended that Narhari (PW 1) has stated in his substantive evidence that accused Dilip and accused Kishor Kukde were armed with stick and axe respectively, however, there is omission in this regard in his police statement. Similarly, in the statement of Narhari (PW 1) recorded by the Special Judicial Magistrate, there is a omission that accused Kishor Kukde was armed with axe at the relevant time. Similarly, this witness has also not stated before Police that said accused instigated accused Kishor, Deveshwar and Gautam to assault Narhari (PW 1) and others. Defence counsel have further contended that Narhari (PW 1) in his substantive evidence before the Court though stated that accused Dilip Vaidya asked this witness and other Security men how can they take cattles towards the administrative building and thereafter, he also asked accused Kishor, Deveshwar and Gajanan to assault this witness and others, however, there is omission in this regard in his statement which was recorded by the Special Judicial Magistrate. It is further contended by the defence that Narhari (PW 1) though stated in his evidence before the Court that accused Deveshwar wanted to inflict injury by spear on his stomach, however, it has accidentally landed on the wrist of Narhari (PW 1), he did not state so in his statement which was recorded by the Special Judicial Magistrate. It is further contended by the defence that Narhari (PW 1) though stated in his evidence before the Court that accused Deveshwar wanted to inflict injury by spear on his stomach, however, it has accidentally landed on the wrist of Narhari (PW 1), he did not state so in his statement which was recorded by the Special Judicial Magistrate. Similarly, there is omission in the said statement that accused Dilip Vaidya had given blow of stick on the person of Narhari (PW 1) which was landed on his finger of right hand and left leg. It is contended that Narhari (PW 1) has specifically stated in his evidence that he cannot assign any reason as to why these facts are not mentioned in his statement. 10. Counsel for the defence further contended that there is another material omission in the testimony of Narhari (PW 1) i.e. though this witness claims that when deceased Kishor Raut was on his way to call Assistant Registrar, accused Kishor, Deveshwar and Gajanan chased him, caught hold of him near square and assaulted Kishor Raut with weapons which were in their hands, however, there is an omission in his statement recorded by the Special Judicial Magistrate about assault by accused Kishor Kukde by weapons. This witness has stated that he cannot assign any reason as to why the said fact is not finding place in his statement. It is contended that one of the accused i.e. Dilip has received six injuries in the assault. His injury certificate is Exh.86. He was admitted in the hospital on 3.6.1998 and was in the hospital almost for a month. Accused Dilip had suffered fracture of Tibia upper end. It is the case of the defence that the prosecution utterly failed to explain serious injuries sustained by accused Dilip and therefore, it is a fit case where adverse inference can be drawn against the prosecution. 11. Accused Dilip had suffered fracture of Tibia upper end. It is the case of the defence that the prosecution utterly failed to explain serious injuries sustained by accused Dilip and therefore, it is a fit case where adverse inference can be drawn against the prosecution. 11. It is the contention of defence that Narhari (PW 1) has not disputed in his evidence that the assailants were three in number and they had asked this witness and others not to take their cattle to cattle pound; however, this witness and other Security men did not listen to them and therefore, altercation had taken place between Narhari (PW 1) and others on one side and these three unknown persons on the other side, which has resulted in scuffle and fight between the two groups. It is, therefore, vehemently contended by Mr.Gupta, learned counsel for the appellants that, from the evidence of Narhari (PW 1), it is clear that, even if it is presumed that there was a scuffle and fight between these two groups, however, it was a sudden fight erupted at the spur of moment and there was complete absence of premeditation and therefore, the offence which has taken place in a sudden fight was without pre-meditation, coupled with the fact that accused Dilip has also suffered serious injuries and a major fracture and was required to be in the hospital for a period of one month. The entire prosecution is completely silent in respect of these injuries sustained by accused Dilip in the incident. 12. Learned counsel for the defence has further contended that, so far as evidence of Pundalik Mohod (PW 3) is concerned, he has admitted in his cross-examination that there were only four accused persons at the spot when the incident had taken place and names of two other accused persons were added by police subsequently. However, he has denied the suggestion that the name of accused Gajanan Vaidya was added in his statement subsequently and was written in the different ink. It is contended that this witness has also admitted in the cross-examination that he had given message to the police on phone that accused Dilip and his known companions assaulted deceased Kishor Raut and Narhari. It is contended that this witness has also admitted in the cross-examination that he had given message to the police on phone that accused Dilip and his known companions assaulted deceased Kishor Raut and Narhari. It is, therefore, contended by defence that this witness was not knowing the accused persons except accused Dilip Vaidya and in absence of identification parade, prosecution failed to establish complicity and identity of the accused persons except Dilip Vaidya. Since this witness has clearly admitted that police had added names of two accused at a latter point of time, creates serious doubt about authenticity of the evidence of this witness. 13. Learned defence counsel have further contended that, so far as the cross-examination of witness Dinkar (PW 4) is concerned, he has clearly admitted that he did not see the assailants while assaulting since the assault was launched by the assailants from the back side of this witness. It is contended that this witness has admitted in the cross-examination that accused Dilip Vaidya was taken by police to the hospital as he had sustained injuries on his person. It is contended by the defence that if Dinkar (PW 4) could not witness the assault on his himself, the statement made by this witness in his examination-in-chief that he has witnessed the assault on Dilip Bhosle and Gautam Shirsat by means of stick creates serious doubt about the prosecution case disclosed by him in his ocular testimony. It is submitted that in the examination-in-chief itself this witness has stated that he has only seen three persons running away from the spot of incident having axe and spear in their hands. It is further contended that, as per the prosecution case, the incident had taken place at 3.30 A.M. to 4.00 A.M. when it is normally dark and it is very difficult to identify persons in such a darkness even from close quarters and therefore, the prosecution story disclosed by this witness in the examination-in-chief that accused nos. 1 to 3 before the Court were the same persons whom he has seen running away from the spot at the relevant time with the weapons in their hands is improbable. 1 to 3 before the Court were the same persons whom he has seen running away from the spot at the relevant time with the weapons in their hands is improbable. It is submitted by the counsel for the defence that Gautam (PW 5) in his cross-examination has admitted that he was assaulted by stick from behind and when he turned his back, he saw assailants running away from the spot from a distance of about 20 to 25 ft. The defence counsel, therefore, vehemently argued that the evidence of this witness cannot be believed on two counts; firstly, he was unable to identify the assailants who are alleged to have given stick blow on his person and could identify those persons whom he saw running away from the spot from a distance of about 20 to 25 ft and secondly, the incident had taken place at about 4.00 A.M. when, because of darkness, visibility is poor and therefore, the evidence of this witness that he has seen accused Gajanan Vaidya was having axe in his hand, accused Deveshwar was having spear and Kishor Kukde was having axe in his hand is improbable. The evidence of this witness, therefore, creates doubt about the correctness of material particulars of the prosecution case. 14. Mr Gupta, Adv. and Mr. V.M. Deshpande, Adv. for the respective appellants have contended that the evidence of Dr. Sanjay Shriram Kherde (PW 15) no doubt shows that deceased Kishor Raut sustained four external injuries including fracture of frontal region of skull and has opined that death of the deceased was due to shock and injury to brain and the injuries were sufficient in the ordinary course of nature to cause death. However, that by itself does not establish that the appellants Kishor, Deveshwar and Gajanan were the authors of these injuries. 15. It is further contended by the defence counsel that, in the present case, Narhari (PW 1) has sustained injury on his wrist on account of assault given by accused Deveshwar as well as on his right finger and left leg on account of assault given by accused Dilip with stick. Similarly, Pundlik (PW 3) sustained injury on his left forearm which was alleged to have been caused by accused Dilip Vaidya by stick. Dinkar (PW 4) sustained injury on the thumb of his left hand in the scuffle. Similarly, Pundlik (PW 3) sustained injury on his left forearm which was alleged to have been caused by accused Dilip Vaidya by stick. Dinkar (PW 4) sustained injury on the thumb of his left hand in the scuffle. It is submitted that the prosecution evidence adduced by the injured witnesses clearly demonstrates that there was a scuffle between two groups which has culminated into fight in which members of both the groups were seriously injured. It is submitted that even if it is presumed that there was an incident of assault which had taken place, even then the same was not pre-planned or pre-meditated. It is contended that accused Dilip was seriously injured in the assault and sustained fracture and was indoor patient in the hospital for almost one month which clearly demonstrates that the prosecution witnesses (Security personnel) also assaulted the accused persons and in the sudden fight as well as in a heat of anger, the accused persons also retaliated. However, the assault which resulted in causing injury to the prosecution witnesses as well as to the deceased Kishor Raut was not pre-meditated nor inflicted with the intention to cause death. It is submitted that, looking to the nature of work the accused persons were doing, it was but natural that they would be armed with weapons like axe, spear etc. 16. The counsel for the defence have contended that, in the instant case, the evidence of so-called eye witnesses who also sustained injuries in the incident, does not inspire confidence and the prosecution case put-forth by them apart from being full of material omissions, it is improbable. So far as identification of the accused persons, particularly accused Kishor, Deveshwar and Gajanan is concerned, the prosecution case cannot be believed because at the time of incident it was dark and therefore, it was virtually impossible to identify the accused person in such a darkness from about 20 to 25 ft. It has also come in the evidence of one of the injured witnesses that prior to the incident he was not knowing the accused persons except accused Dilip Vaidya. This fact was also informed by him on telephone to the police. It has also come in the evidence of one of the injured witnesses that prior to the incident he was not knowing the accused persons except accused Dilip Vaidya. This fact was also informed by him on telephone to the police. It is contended that, in such a situation and in absence of identification parade, prosecution failed to establish identity of the accused persons and in absence thereof, the conviction awarded by the trial Court cannot be sustained in law. 17. It is further contended by the defence counsel that, in the instant case, the blood detected on the clothes of the deceased Kishor Raut was of .A. group and the blood group of Narhari (PW- 1), who is an injured witness, was also .A. and in the scuffle, the accused persons coming in contact with Narhari (PW 1) cannot be ruled out, and therefore, the blood detected on the clothes of accused Kishor, Deveshwar and Gajanan though was of A group, however, it cannot be conclusively held that it was that of deceased Kishor Raut only. Learned counsel for the defence have vehemently argued that the evidence adduced by the prosecution is not cogent and therefore, does not inspire confidence. Learned counsel for the defence have further contended that even if it is presumed that the incident of scuffle and sudden fight had taken place as alleged by prosecution between the accused on one side and the prosecution witnesses and deceased on the other side, even then the manner in which the incident of assault has taken place, it can be said that the incident had taken place in a sudden fight, without pre-meditation and therefore, the offence, if any committed by the appellants is not murder and at the most, it would fall within the ambit of provisions of Section 304-I of the Indian Penal Code. 18. Mr. D.B.Patel, Additional Public Prosecutor, on the other hand, has contended that the evidence adduced by the prosecution proves the charge of murder of Kishor Raut against appellants Kishor Kukde, Deveshwar Vaidya and Gajanan Vaidya. 18. Mr. D.B.Patel, Additional Public Prosecutor, on the other hand, has contended that the evidence adduced by the prosecution proves the charge of murder of Kishor Raut against appellants Kishor Kukde, Deveshwar Vaidya and Gajanan Vaidya. It is contended that the testimonies of injured witnesses like Narhari Wankhade (PW 1), Pundlik Mohod (PW 3), Dinkar (PW-4), Gautam Shirsat (PW 5) clearly demonstrate that the accused Kishor was armed with axe, accused Deveshwar was armed with spear, accused Gajanan was armed with axe and accused Dilip was instigating accused Kishor, Deveshwar and Gajanan to launch attack on the prosecution witnesses and also had a stick with him. It is contended that the evidence of these witnesses would demonstrate that accused Kishor, Deveshwar and Gajanan assaulted deceased Kishor Raut with deadly weapons like axe and spear and accused no.6 Dilip assaulted Narhari (PW 1) and Pundlik (PW 3) by means of stick. It is submitted that the blood detected on the clothes of the accused was of A. group which was the blood group of the deceased, which is a clinching circumstance and the injuries sustained by the deceased would show that the assault committed by the accused was pre-meditated. Similarly, the bodily injuries caused by the appellants on the person of deceased were sufficient in the ordinary course of nature to cause death, which shows that the appellants inflicted those injuries with the intention to cause death. It is further contended that the discovery of weapons is also another important circumstance which connects the appellants with the crime in question. The Additional Public Prosecutor has further contended that the injuries caused by the appellants to the deceased as well as other prosecution witnesses were caused in the scuffle and therefore, the prosecution witnesses had an opportunity to see the appellants from close quarters and therefore, merely because at the relevant time there was some darkness, it is futile to contend that the prosecution witness could not seen the appellants because of less visibility due to darkness. 19. The Additional Public Prosecutor further contended that deceased Kishor Raut suffered three incise wounds and two fractures, which are as follows : .i. Incised wound over frontal region of skull, vertical in direction in mid portion of size 4 ½ x ½' x ½' deep. 19. The Additional Public Prosecutor further contended that deceased Kishor Raut suffered three incise wounds and two fractures, which are as follows : .i. Incised wound over frontal region of skull, vertical in direction in mid portion of size 4 ½ x ½' x ½' deep. Incised wound over left shoulder tappering both the ends verticle in direction of size 3 ½' x 1' x 1'. iii. Incised wound over right forearm to lateral aspect near wrist joint verticle in direction tappering both the ends of size 1 ¾ x ½ inch x ½ inch deep. iv. Fracture of frontal region of skull found present fracture of right redious lower 3rd was found present. 20. Dr. Sanjay Shriram Kherde (PW 15) has opined that death of the deceased was due to shock due to injury to vital organ like brain and the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. It is, therefore, contended that the number of serious injuries sustained by the deceased, placement of injuries, deadly weapons used by the accused persons in the assault clearly show that the injuries were inflicted by the accused Kishor, Deveshwar and Gajanan on the deceased with the intention to cause death and therefore, the trial Court is justified in convicting them for the offence punishable u/s. 302 of the Indian Penal Code. 21. The Additional Public Prosecutor further contended that, in the instant case, the State has also preferred appeal against acquittal of three accused namely Deepak, Prakash and Dilip for the offence punishable u/s 302 of the Indian Penal Code. It is contended that the evidence adduced by the prosecution would show that all the six accused had formed unlawful assembly the common object of which was to commit murder of deceased Kishor Raut and therefore, though the actual assault by the deadly weapon on the deceased was committed by accused Kishor, Deveshwar and Gajanan, the remaining accused i.e. Deepak, Prakash and Dilip are also liable to be punished u/s. 302 of the Indian Penal Code with the aid of section 149 of the Code. It is contended that if the offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person who at the time of committing that offence is a member of the same assembly is guilty of that offence. It is contended that if the offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person who at the time of committing that offence is a member of the same assembly is guilty of that offence. The 27 Additional Public Prosecutor has, therefore, contended that, in the instant case, accused Deepak, Prakash and Dilip also shared common intention to commit murder of deceased Kishor Raut and therefore, they are vicariously liable with the aid of Section 149 of the Code for the offence of murder and therefore, the conviction awarded by the trial Court for a lessor offence is not just and proper and needs to be modified to Section 302 r/w. Section 149 of the Indian Penal Code. 22. We have given our anxious thoughts to the various contentions canvassed by the respective counsel. In the instant case, prosecution has examined number of witnesses to establish the charge of murder against the appellants. However, the important prosecution witnesses are Narhari Wankhade ( PW- 1)(injured witness), Pundlik Mohod (PW 3) (injured witness), Dinkar (PW 4)(injured witness), Gautam Shirsat (PW 5), Madhav Natthuji Harle (PW 5) (on discovery of axe at the instance of accused Gajanan), Rajendra Taide (PW 7) (on seizure of stick from 28 accused Deepak), Dr. Manish Rathi (PW 8) (who had examined Pundlik (PW 3) on 3.6.1998 and issued injury certificate Exh.49), Babulal Dhande (PW 11) (on seizure of blood stained clothes of Narhari (PW 1) Exh.57), Gajanan Bahenkar (PW 12) (panch on seizure of clothes of deceased), Arvind Malasne (PW 13) (discovery of stick from original accused no.4. Deepak and original accused no.5 Prakash), Dr. Sanjay Kherde (PW 15) (who has conducted post mortem examination), Dr. Kishor Deshmukh (PW- 16) (who examined Narhari (PW 1) and found incise wound and abrasion), Dr. Seema Sune (PW 17) (who advised medical treatment to Narhari (PW 1). 23. It will be appropriate at this stage to carefully scrutinize the evidence of important prosecution witnesses in order to find out whether the prosecution has succeeded in proving the charges framed against the appellants. 29 24. Seema Sune (PW 17) (who advised medical treatment to Narhari (PW 1). 23. It will be appropriate at this stage to carefully scrutinize the evidence of important prosecution witnesses in order to find out whether the prosecution has succeeded in proving the charges framed against the appellants. 29 24. Narhari Namdeorao Wankhade (PW 1) in examination in- chief has stated that, on the day of incident and at the relevant time, Pundlik Mohod, Assistant Security Officer and his six assistants namely Dinkar Chandekar, Kishor Raut, Dilip Bhosle, Bhagwant Sawarkar, Gautam Shirsat and Rupesh Rajurkar came to the house of this witness and told him that some cattle have entered into the University campus and this witness accompanied them to catch those cattle in order to take those cattle to the cattle pound. He has further disclosed in the examination-in-chief that, at about 4.30 AM, they saw one person present near the cattle and on seeing them, the said person fled away from the spot. This witness along with other Security personnel started taking the cattle towards the Administration building of the University in order to put them in the cattle pound. When this witness and others along with the cattle came near the Zoology department of the University, accused Dilip Vaidya, Kishor Kukde armed with stick and axe respectively came on the spot and tried to prevent 30 this witness and others from taking cattle to the cattle pound. Narhari (PW 1) has further deposed in his examination-in-chief that accused Deveshwar Vaidya and accused Gajanan, who were armed with spear and axe respectively, also came on the spot and prevented this witness and other Security men from taking cattle to the cattle pound. This witness has further stated that accused Dilip Vaidya asked this witness and others why were they taking the cattle towards the Administrative building and asked accused Kishor, Deveshwar and Gajanan to assault this witness and others. Thereupon, accused Deveshwar tried to inflict blow of spear on the stomach of Narhari (PW 1). However, since this witness bent forward, the blow did not land on his stomach and landed on his waist region. According to this witness, accused Dilip inflicted blow by stick on his person and caused injury to his right hand and left leg. Thereupon, accused Deveshwar tried to inflict blow of spear on the stomach of Narhari (PW 1). However, since this witness bent forward, the blow did not land on his stomach and landed on his waist region. According to this witness, accused Dilip inflicted blow by stick on his person and caused injury to his right hand and left leg. According to him, when Pundlik Mohod (PW 3) intervened to rescue this witness, accused Dilip Vaidya also assaulted Pundlik Mohod by stick, who sustained injury on his left leg. 25. Narhari (PW 1) has further disclosed in his examinationin- chief that Pundlik Mohod asked deceased Kishor Raut to call Assistant Registrar of the Amravati University on the spot and therefore, Kishor Raut was proceeding towards the house of Assistant Registrar; at that time, accused Kishor Kukde, Deveshwar Vaidya and Gajanan Vaidya assaulted deceased Kishor Raut with weapons who sustained bleeding injury and was declared dead by the Medical Officer, General hospital, Amravati. This witness identified spear (Art.15), Axe (Art.11), Bamboo stick (Art.21), two other sticks (Arts. 22 and 23) before the Court. Perusal of the cross-examination of this witness shows that there are number of omissions brought out in his cross-examination. However, it is difficult to treat the same as material ones since the defence has not seriously disputed the incident of scuffle, fight and the assault. 26. So far as the evidence of Pundlik Mohod (PW 3) (Assistant Security Officer), Dinkar (PW 4) and Gautam (PW 5) is concerned, the testimonies of these witnesses corroborate the material particulars of the prosecution case and the omissions appearing in the testimonies of these witnesses, for the similar reason as referred to hereinabove, cannot be treated to be material since the occurrence has not been seriously disputed by the defence. 27. Similarly, discovery of axe and sticks as well as evidence of finding of blood of .A. group on the clothes of accused Kishor, accused Deveshwar and accused Gajanan further establish their presence and complicity in the crime, though the blood group of Narhari (PW 1) was also .A.. However, the injuries suffered by Narhari (PW 1) though were incise wound and abrasion, however that by itself does not render the corroborative piece of evidence of finding of blood on the clothes of accused persons of .A. group doubtful. However, the injuries suffered by Narhari (PW 1) though were incise wound and abrasion, however that by itself does not render the corroborative piece of evidence of finding of blood on the clothes of accused persons of .A. group doubtful. It is no doubt true that normally at about 3.30 A.M. to 4.00 A.M. there is darkness and visibility is also less, however, as we have already observed that since presence of appellants on the spot as well as the incident of scuffle, fighting and assault is not seriously disputed by the defence, some variation in identification in the instant case does not adversely affect the material particulars of the prosecution case, particularly because the testimonies of the injured witnesses are also corroborated by the evidence of Dr.Manish Rathi ( who has conducted post mortem ) and Dr.B.K.Deshmukh. 28. While considering the totality of prosecution evidence, we are of the view that the prosecution in the present case has succeeded in establishing complicity of the appellants in the crime in question. However, it will be appropriate at this stage to consider whether the offence committed by the appellants Kishor, Deveshwar and Gajanan is murder or it falls within the exception (4) of Section 300 of the Indian Penal Code and amounts to culpable homicide not amounting to murder, which is punishable u/s. 304-I of the Indian Penal Code. 29. In order to attract exception (4) to Section 300 of the Indian Penal Code, the evidence adduced by the prosecution must show that the incident occurred in a sudden fight without premeditation, in a heat of passion and the assailant has not taken any undue advantage or acted in a cruel manner. The cause of quarrel is not relevant nor it is relevant who offered provocation or started assaulting. Similarly, number of injuries caused during the occurrence also cannot be a decisive factor. However, what is important is that the occurrence must be sudden without premeditation and the assailant must have acted in a fit of anger. Similarly, the offender must not have taken any undue advantage or acted in a cruel manner. Similarly, number of injuries caused during the occurrence also cannot be a decisive factor. However, what is important is that the occurrence must be sudden without premeditation and the assailant must have acted in a fit of anger. Similarly, the offender must not have taken any undue advantage or acted in a cruel manner. Where the evidence on record shows that culpable homicide was committed without pre-meditation in a sudden fight, in a heat of passion, upon sudden quarrel and when the offender has taken undue advantage or acted in a cruel or unusual manner, then exception (4) to Section 300 of the Indian Penal Code, in our view, shall be attracted and the offence of murder shall be reduced to culpable homicide not amounting to murder. 30. In the backdrop of the above legal position, we would like to consider the prosecution evidence available on record. In the instant case, the trial Court has framed the charge against all the accused persons including present appellants, which reads thus: That you accused nos. 1 to 6 on the aforesaid date, time and place were members of unlawful assembly and in prosecution of common object of the said assembly to wrongfully restrain Security Officers by using force against them and preventing them from taking the live stock to the cattle pound and at that time, you accused specifically, intentionally and knowingly committed murder of Kishor Raut and thereby committed an offence punishable u/s. 302 r/w. Section 149 of the Indian Penal Code ?. 31. Plain reading of the above referred charge framed against the appellants clearly demonstrate that the common object of the unlawful assembly was to retrain the Security Officers from taking the cattle/live stock to the cattle pound by using force against them. It is nodoubt true that the provisions of Section 149 of the Indian Penal Code creates vicarious liability and makes every member of the unlawful assembly at the time of committing an offence guilty of the offence. The said Section creates vicarious liability for the unlawful acts committed pursuant to the common object by any other member of the assembly. In the case in hand, the common object of the unlawful assembly was to use force against the Security Officers and prevent them from taking cattle to the cattle pound. The common object of the unlawful assembly was not to commit murder of deceased Kishor Raut. In the case in hand, the common object of the unlawful assembly was to use force against the Security Officers and prevent them from taking cattle to the cattle pound. The common object of the unlawful assembly was not to commit murder of deceased Kishor Raut. However, in the incident of assault, deceased Kishor Raut suffered serious injuries on his person and succumbed to those injuries. It is nodoubt true that even if specific charge indicating applicability of Section 149 of the Indian Penal Code is not framed for the substantive offence, however all the ingredients of Section 149 of the Code are clearly indicated in the charge framed against the appellants, omission to mention Section 149 of the Indian Penal Code specifically in the charge is only an irregularity, provided it does not cause prejudice to the accused. At the same time, if there is a sudden and free fight between the two groups in which members of both the groups sustain injuries, in such a case conviction of a member of one of the groups or for substantive offence with the aid of Section 149, would be improper and each of the accused person would be liable for his individual act, provided there is a specific evidence led by the prosecution in this regard. In any case, the common object of the unlawful assembly was to prevent the Security Officers from taking the live stock to the cattle pound and if necessary, use force against them. In this background, let us analyse the evidence adduced by the prosecution about the genesis and actual incident of assault. 32. In the instant case, the evidence of witnesses Narhari (PW-1), Pundlik (PW 3), Dinkar (PW 4) would show that when they reached the spot at the relevant time and place, the cattle belonging to the appellants were grazing inside the premises of the 38 Amravati University. Narhari Wankhade (PW 1) along with the other prosecution witnesses as well as Security Personnel wanted to take the cattle to the cattle pound and while doing so, appellant Kishor, Deveshwar and Gajanan came on the spot armed with weapon, spear and stick. It is the case of the prosecution that all these appellants tried to prevent Narhari (PW 1) and other prosecution witnesses from taking their cattle to the cattle pound. It is the case of the prosecution that all these appellants tried to prevent Narhari (PW 1) and other prosecution witnesses from taking their cattle to the cattle pound. However, these prosecution witnesses did not pay any heed to it and therefore, there was some scuffle ensued between the appellants on one side and prosecution witness like Narhari (PW 1), Pundlik (PW 3) and Dinkar (PW 4) on the other. The scuffle resulted in assault and in the said incident of assault, these witnesses were injured and accused no.6 Dilip also sustained serious injuries including fracture and was required to be admitted in the hospital as an indoor patient for one month. It is pertinent to note that, in the case in hand, prosecution has completely failed to explain serious injuries sustained by accused no.6 Dilip. Prosecution, therefore, has suppressed the genesis of actual incident of assault and therefore, though there is an evidence to demonstrate that accused no.6 Dilip has inflicted injury on deceased Kishor Raut, however, same has been done in a sudden fight, without pre-meditation and in the heat of passion. Similarly, serious injuries sustained by the accused Dilip would demonstrate that the appellants did not take undue advantage or acted in a cruel manner. The prosecution evidence on record, in our view, shows that the appellants have committed the act of culpable homicide without pre-meditation, in a sudden fight and in a heat of passion, upon a sudden quarrel and without taking undue advantage. At the same time, looking the manner in which the entire incident has taken place, particularly serious injuries sustained by accused no.6 Dilip, it is difficult for us, in the fact and circumstances of the present case, to hold that the appellants acted in cruel and unusual manner. 33. The prosecution evidence on record would show that the act committed by the appellants would be punishable u/s. 304-I of 40 the Indian Penal Code since the appellants caused such bodily injuries on the person of the deceased which were likely to cause death of deceased Kishor Raut. It is well settled that even the act is done with knowledge that it is likely to cause death, but without any intention to cause death or cause such bodily injury as is likely to cause death, the offence would fall within the ambit of Section 304-I of the Indian Penal Code. It is well settled that even the act is done with knowledge that it is likely to cause death, but without any intention to cause death or cause such bodily injury as is likely to cause death, the offence would fall within the ambit of Section 304-I of the Indian Penal Code. In the instant case, for the reasons stated hereinabove, the offence committed by the appellants falls within the ambit of exception (4) to Section 300 of the Code and therefore, the offence is punishable u/s. 304-I of the Indian Penal Code. Hence, the Criminal Appeal Nos. 643 of 2002 and 708 of 2002 are partly allowed. Conviction of the appellants i.e. Original accused no.1 Kishor s/o. Punjabrao Kukde, Original accused no.2 Deveshwar s/o. Ramchandra Vaidya and Original accused no.3 Gajanan s/o. Bhimrao Vaidya for the offence punishable u/s. 302 r/w. 34 of the Indian Penal Code is hereby quashed and set aside. The said 41 appellants/accused are now convicted for the offence punishable u/s. 304-I of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for a period of ten years. So far as the sentence of fine imposed by the trial Court is concerned, the same is confirmed. So far as the appeal filed by the State bearing Criminal Appeal No.23 of 2003 challenging acquittal of the Original accused no.4 Deepak s/o. Punjabrao Kukde, Original accused no.5 Prakash s/o. Bakaram Mahalle and Original accused no.6 Dilip s/o. Ramchandra Vaidya for the offence punishable u/s. 302 of the Indian Penal Code is concerned, it is well settled that merely because on re-appreciation of evidence another view is possible, that does not render the view already taken by the trial Court perverse or improbable unless the finding of acquittal recorded by the trial Court is perverse and by ignoring the substantive evidence available on record to prove the guilt. The evidence of Narhari Wankhade (PW 1), Pundlik Mohod (PW 3) and Dinkar (PW 4) does not establish complicity of Original accused no.4 Deepak Kukde, Original accused no.5 Prakash Mahalle and Original accused no.6 Dilip in respect of assault on deceased Kishor Raut. The evidence of Narhari Wankhade (PW 1), Pundlik Mohod (PW 3) and Dinkar (PW 4) does not establish complicity of Original accused no.4 Deepak Kukde, Original accused no.5 Prakash Mahalle and Original accused no.6 Dilip in respect of assault on deceased Kishor Raut. Neither the evidence of injured witnesses nor any other prosecution witness attribute any overt act to these accused in respect of assault on deceased Kishor Raut and in absence thereof, the finding of acquittal recorded by the trial Court for the offence punishable u/s. 302 of the Indian Penal Code against these accused, in our view, is just and proper and is also sustainable in law and therefore, the Criminal Appeal bearing No.23 of 2003 filed by the State against the order of acquittal of the Original accused no.4 Deepak Kukde, Original accused no.5 Prakash Mahalle and Original accused no.6 Dilip, for the reasons stated hereinabove, is dismissed.