JUDGMENT 1. - This is an appeal against the judgment of the learned Additional Sessions Judge, Sojat Camp Jaitaran, Pali, dated 18.6.2002, whereby he convicted accused appellant Sukha Ram of the offences u/ss.148 & 302 IPC and rest of the accused appellants viz; Nimba Ram, Chautha Ram, Teja Ram, Dayal, Mana Ram and Shrawan of the offences u/ss.148 and 302 read with 149 IPC. For the offence u/s.148 IPC, each of the accused appellants was sentenced to undergo one year's R.I. alongwith a fine of Rs.1000/- & in default, to further undergo one month's R.I. Accused Sukha Ram u/s.302 and rest of the accused appellants u/s.302 read with 149 IPC were sentenced to undergo life imprisonment together with a fine of Rs.5000/- and in default, to further undergo six months' R.I. All the substantive sentences were ordered to run concurrently. Out of the amount of fine to be recovered from all the accused, Rs.25,000/- was ordered to be paid to wife of deceased Chandra Ram. 2. Brief facts leading to this appeal are that on 24.2.99, the complainant Narayan filed a written report, Ex.P.1 that on that day in the morning, he alongwith Bhanwar Singh went from village Patan to D.L.F.Mines and came back at 10 AM. When they reached near the 'Hathai' (platform for gossiping) of the village, they were told by Raju that his brother Chandra Ram was being beaten at the well of Narayan. Upon this, they reached on the spot, where they saw their sister Shravni weeping and also noticed accused Sukha Ram with axe and rest of the accused appellants with lathis beating Chandra Ram. On seeing them, the accused party ran away from the spot. Accused appellants Chandra and Shravan were empty handed but they were giving fist blows. Papudi (PW 2) was also present there. According to the F.I.R., the accused appellants killed Chandra Ram and threw the dead body near the bushes. On this report, the police registered a case u/ss.302 and 148 IPC and commenced investigation. During investigation, the police recovered one axe from accused Sukha Ram and lathis from rest of the accused appellants. The recovery of blood stained clothes and soil was also made, which were sent for chemical examination. After investigation, the police filed challan against the above seven accused appellants but the police left accused Chandra. During investigation, the police recovered one axe from accused Sukha Ram and lathis from rest of the accused appellants. The recovery of blood stained clothes and soil was also made, which were sent for chemical examination. After investigation, the police filed challan against the above seven accused appellants but the police left accused Chandra. The learned Magistrate committed the case to the Court of Sessions, where the charges were framed. Accused Sukha Ram was charged u/ss.148 and 302 IPC and rest of the accused appellants under ss.148 and 302 read with 149 IPC. The prosecution examined 17 witnesses. The statements of the accused were recorded under Section 313 CrPC. They produced three witnesses in their defence. After hearing the arguments, the learned trial Judge convicted & sentenced the accused appellants as above. 3. While assailing the judgment of the learned trial Judge, it has been contended by the learned counsel that out of 17 witnesses examined by the prosecution, there were six eye witnesses of the case viz; Narayan (PW 1), Papudi (PW 2), Raju Singh (PW 3), Bhanwar Singh (PW 5), Shravni (PW 7) and Mugna Ram (PW 15). Out of these six eye witnesses, three witnesses viz; Papudi (PW 2), Raju Singh (PW 3) & Bhanwar Singh (PW 5) have turned hostile, who were named in the F.I.R. itself as eye witnesses, and Mugna Ram (PW 15), whose name was not there in the FIR as eye witness, has been disbelieved by the learned trial Court. Thus according to him, there remains only two eye witnesses of the case viz; Narayan, PW 1 and Shravni, PW 7, whose evidence is also unreliable, as Narayan, PW 1 reached on the spot after the incident took place as per the FIR itself and Shravni, PW 7 was not present on the spot in view of the defence led by the accused appellants. He has further submitted that according to the doctor, the axe, by which accused Sukha Ram is alleged to have given blow on the deceased Chandra Ram, was not found blood stained and it was not sent for chemical examination. He has further submitted that according to the doctor, the axe, by which accused Sukha Ram is alleged to have given blow on the deceased Chandra Ram, was not found blood stained and it was not sent for chemical examination. He has also drawn the attention of the Court towards the site plan Ex.P.2 and Ex.P.3 by asserting that the place where the incident took place, is the joint well of the complainant and the accused party and there was a previous murder case lodged against some of the prosecution witnesses of this case and on this account, the accused appellants have been falsely implicated on the trivial matter of taking water for agricultural purposes from the well. He has further submitted that in all, there are 12 injuries and not a single injury is incised wound, as all the injuries are lacerated wounds and abrasions. According to him, Dr.Laxmikant, PW 9, who conducted the post mortem report Ex.P.24, has also stated that no injury was caused by the sharp edged weapon and that if the deceased would have been given medical treatment, he could have been saved. According to the doctor, except the lacerated wound on the right side of the scalp, death could not have been caused by rest of the injuries. He has further submitted that there is no question of formation of unlawful assembly, as the place where the incident took place, is the joint property of the complainant and the accused party. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. We have heard the arguments of both the parties at length and re-appraised the evidence brought on record. First of all, we will discuss the conviction of the accused appellants under Section 148 IPC, which provides punishment for rioting, armed with deadly weapons. For constituting the riot, there must be use of force or violence by the members of the unlawful assembly. Unlawful assembly has been defined under Sec.141 IPC, which defines an assembly of five or more persons having a common object composing the assembly to do any of the five criminal acts laid down in the Section. The Explanation of this Section also says that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. Unlawful assembly has been defined under Sec.141 IPC, which defines an assembly of five or more persons having a common object composing the assembly to do any of the five criminal acts laid down in the Section. The Explanation of this Section also says that an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly. Therefore, in the light of the definition given in Section 141 IPC, an assembly of five or more persons also becomes an unlawful assembly subsequently, if they are having a common object to do a criminal act. 6. The common object has to be inferred from the facts and circumstances of each individual case like weapons used and the nature of injuries caused. In sudden attack pursuant to a quarrel, the Court cannot infer pre-planned attack and in such case, every individual offender is guilty for his separate act. In the above light, if the facts & circumstances of the present case are looked into, it is clear from the site plans Ex.P.2 and Ex.P.3 that 'Bera Gorva' is on the joint land of the complainant and the accused party in which there are three wells. At point-1, there is water engine of deceased Chandra Ram, at point-2 there is water engine of accused Teja Ram and at point-3, there is water engine of accused Chautha Ram and his brothers. This shows that on the well, marked portion 'X', there are three water engines, one belonging to the complainant and rest two of the accused party. The presence of the accused party at their water engines is quite natural, as the well was in the joint possession. When the presence of the accused is natural, then the Court has to gather as to how unlawful assembly has been formed. According to the FIR and the statements of two eye witnesses who have been relied upon by the learned trial Judge viz; Narayan, PW 1 who is the author of the FIR and Shravni, PW 7, the accused appellants were beating deceased Chandra Ram at the well. Both these witnesses have not said anything as to how these accused persons formed the unlawful assembly. The evidence of Narayan, PW 1 is that he was told by Raju that his brother has been beaten by the accused appellants. Both these witnesses have not said anything as to how these accused persons formed the unlawful assembly. The evidence of Narayan, PW 1 is that he was told by Raju that his brother has been beaten by the accused appellants. When he reached on the spot, accused Sukha Ram inflicted axe blow and rest of the accused gave lathi blows. Shravni, PW 7, said that her brother deceased Chandra Ram was operating engine on the well, where accused Nimba Ram started fighting and rest of the accused inflicted lathi blows alongwith accused Sukha, who was having axe in his hand. In the cross examination, she has stated that when her brother went on the well, accused Nimba Ram, who was already there, started verbal altercation with her brother and rest of the accused were sitting near the bushes. If the evidence of these eye witnesses is scrutinised in right perspective, the only inference which can be drawn is that the assembly of the accused persons was not unlawful but was the natural one. So far as the common object is concerned, it is true that a criminal case against some of the witnesses particularly Narayan,PW 1 is pending with regard to murder of father of accused appellant Teja Ram in which accused Chautha Ram, Sukha, Shrawan and Teja Ram are the witnesses. When such is the situation with regard to pending case against the witness Narayan, PW 1 in which four of the accused appellants are the witnesses, it is quite possible that he might have exaggerated the story by implicating the accused for common object. Though enmity is a double edged weapon but when in a particular case, motive is lacking except that deceased Chandra Ram came on the well and fight started there, where accused appellants were already sitting on their wells, the only inference which can be drawn is that it was the individual act of the accused to resist him from taking water from the well. Such an act of the accused cannot be termed as a common object in forming an unlawful assembly. This can be further strengthened from the fact that one Chandra, who was named in the FIR as accused, has not been charge-sheeted by the police and no weapon has been shown in the FIR Ex.P.1 with Chandra and Shrawan. Such an act of the accused cannot be termed as a common object in forming an unlawful assembly. This can be further strengthened from the fact that one Chandra, who was named in the FIR as accused, has not been charge-sheeted by the police and no weapon has been shown in the FIR Ex.P.1 with Chandra and Shrawan. In view of the above discussion, we are of the view that formation of unlawful assembly with common object as defined u/s.141 IPC has not been proved and the learned trial Judge has not rightly appreciated the evidence in the above light. 7. When the unlawful assembly and common object have not been proved, then it has to be seen as to what is the individual act of the accused. In this regard, out of the two witnesses relied upon by the learned trial Court, Narayan (PW 1) has stated that accused Sukha Ram inflicted axe blow on the head and rest of the accused gave blows on other parts of the body of deceased with lathis. In the cross examination, he has stated that he and Bhanwar Singh reached on the spot together. Bhanwar Singh, PW 5, has turned hostile and according to Narayan, PW 1, when he reached on the spot, thereafter the accused ran away, therefore, he did not try to intervene. In the later part of his cross examination, he has stated that he saw accused Sukha Ram inflicting axe blow on the head of the deceased and then the accused ran away, the relevant portion of his statement is extracted as under: " ----- esjs ns[krs gh flj ij pksV dqYgkM+h dh ekjh Fkh vkSj ckn esa ogka ls Hkkx x;sA " Shravni, PW 7 has stated that axe blow was given by accused Sukha and rest of the accused inflicted blows on ribs and rear side, upon which her brother fell down.If the evidence of these two witnesses is looked into in the light of the medical evidence of the Dr.Laxmikant, PW 9, who conducted the post mortem vide Ex.P.24, it is clear that there were in all 12 injuries. Injury No.1 is lacerated wound on right parietal region of scalp, injuries No.2 and 3 are lacerated wounds, injury No.4 is on the right knee joint, which is abrasion and rest of the eight injuries are bruises on the right & back side of chest of deceased. The doctor has also stated in his cross examination that none of the injuries could have been caused by sharp edged weapon. He has further stated that except injury No.1, which is the lacerated wound on the right scalp, it was not possible to have caused death by rest of the injuries. He has further stated had there been medical treatment in time, the deceased could have been saved. Thus, taking into account the evidence of the eye witnesses coupled with the testimony of the doctor, the only conclusion which can be arrived-at is that the accused were having no intention to kill the deceased and it was accused appellant Sukha Ram, who inflicted one axe blow on the head resulting in death of deceased Chandra Ram but he could have been saved, had there been any proper medical treatment in time. This act of accused Sukha Ram cannot be described as an intentional act of causing death or intentionally causing an injury, which is sufficient in the ordinary course of nature to cause death. His act can be attributed only to the extent that he was having knowledge that by inflicting axe blow from its rear side, which is not sharp, death might have been caused. Therefore, the act of accused Sukha Ram can be punishable under Section 304 part II IPC, which is culpable homicide not amounting to murder. So far as the rest of the accused appellants are concerned, they have simply inflicted injuries in the nature of abrasions and bruises, which are simple in nature, caused by blunt weapons. Therefore, the individual act of rest of the accused can be made punishable only under Section 323 IPC. 8. So far as the rest of the accused appellants are concerned, they have simply inflicted injuries in the nature of abrasions and bruises, which are simple in nature, caused by blunt weapons. Therefore, the individual act of rest of the accused can be made punishable only under Section 323 IPC. 8. Consequently, we allow this appeal in part & while setting aside the judgment dated 18.6.02 passed by learned Addl.Sessions Judge, Sojat Camp Jaitaran (Pali), convicting accused appellant Sukha Ram of the offences u/ss.148 & 302 IPC and rest of the accused appellants Nimba Ram, Chautha Ram, Teja Ram, Dayal, Mana Ram and Shrawan of the offences u/ss.148 and 302 read with 149 IPC, accused appellant Sukha Ram is convicted of the offence u/s.304 part II IPC & sentenced to the period already undergone, which is more than seven years, together with a fine of Rs.5000/- and rest of the accused appellants Nimba Ram, Chautha Ram, Teja Ram, Dayal, Mana Ram and Shrawan are convicted of the offence u/s.323 IPC and sentenced to the period already undergone, which is about three months, together with a fine of Rs.5000/- each. The order of the learned trial Judge in awarding the amount of Rs.25,000/- to the wife of deceased Chandra Ram, out of the amount of fine recovered from all the accused appellants, is maintained. Accused Sukha Ram is in custody, he shall be set at liberty forthwith, if not required in any other case, on depositing the amount of fine, awarded. Rest of the accused appellants shall deposit the amount of fine of Rs.5000/- each within a period of fifteen days from today, if they have not already deposited the same so far, failing which each of them would undergo six months' R.I. in default of payment of fine, imposed as above.Appeal partly allowed. *******