JUDGMENT 1. - This appeal on behalf of 16 accused appellants is directed against the judgment and order dated 8th January, 2002 passed by learned Additional Sessions Judge, Deeg District Bharatpur in Sessions Case No. 76/90 whereby the accused appellants have been convicted and sentenced as under : Accused appellant Abdul Rehman: U/s. 302 IPC : to undergo imprisonment for life and to pay a fine of Rs. 1,000/-. In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 307/149 IPC : to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,000/- In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 148 IPC : to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo simple imprisonment for three months; Accused appellant Majid: U/s. 302/149 IPC : to undergo imprisonment for life and to pay a fine of Rs. 1,000/. In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 307 IPC : to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,000/-. In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 148 IPC : to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo simple imprisonment for three months; Accused appellants : Iliyas, Surajmal, Kaasam, Sumer Khan, Sirdar, Dalsher, Janu, Fazru, Deen Mohammad, Jumme Khan, Sheru, Abdul, Ajmat & Ruzdar : U/s. 302/149 IPC : to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each. In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 307/149 IPC : to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,000/-. each. In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 148 IPC : to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- each. In default of payment of fine, to further undergo simple imprisonment for three months; 2. All the substantive sentences have been ordered to run concurrently. 3. In default of payment of fine, to further undergo simple imprisonment for one year; U/s. 148 IPC : to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- each. In default of payment of fine, to further undergo simple imprisonment for three months; 2. All the substantive sentences have been ordered to run concurrently. 3. Briefly stated the facts of the case are that Jahur Khan (PW.1) lodged a written report Ex.P.1 at Police Station Pahadi on 13.11.1989 at about 8.30 P.M. wherein it was alleged that on that date in the evening at about 6.00 P.M. one Ajmat son of Munshi of his village came to him and told that he may be given his tube well to supply water in his agriculture fields, on this, he told him that he had started supply of water in his fields, therefore, he will give the same as and when his agriculture fields are supplied with water. Thereafter he went away telling that he will get water for his fields from other persons. Ajmat told this fact to Ruzdar S/o Asru. However, he told that the well belongs to him also and he will keep the engine on well and will see that who prevents him from taking water. On hearing it, his son Ishaq told that why he was giving threatening and how the well belongs to him. He has started supplying water today itself then how it is possible to him to supply water in his field. Thereafter 15-16 persons came armed with lathi, Ballam, Farsa, Katta (country made pistol) and gun, out of them Sirdar S/o Surajmal, Sumer Khan S/o Murad Khan, Majeet S/o Samay Singh, Deen Mohammad S/o Gatta, Abdul S/o Saprat Khan, Kaasam S/o Abdul were armed with guns and Sheru S/o Surajmal was armed with a Katta, Janu S/o Surajmal, Abdul Rehman S/o Sarpat Khan were armed with Farsa, Surajmal S/o Bhure Khan, Khursheed S/o Surajmal, Jumme Khan S/o Murad, Umar S/o Samay Singh, Fazru S/o Gatta, Dalsher S/o Abdul and lliyas S/o Saprat Khan were armed with lathies came there, surrounded his son Isaq and attacked on his person and also started firing. Some persons named in the report came to their rescue but they were also beaten. Some persons named in the report came to their rescue but they were also beaten. It was also alleged that his sister Juhuri W/o Karim Khan came in his rescue and she also sustained gun fire injuries and she died at the spot. Her dead body is lying at the spot. It was requested that a case be registered and legal action be taken. On the basis of the above written report, First Information Report No. 163/1989 (Ex.P2) was registered under Sections 147, 148, 149, 323, 307, 302 and 336 IPC and investigation commenced. Accused persons were arrested. Eight accused persons furnished information under Section 27 of the Evidence Act and in pursuance thereof recovery of weapons was made. After completion of investigation, the police filed challan in the matter. The case was committed for trial. On the basis of the evidence collected by the Investigating Agency, the trial court framed charges against the accused appellants who denied the same and claimed trial. 4. To prove its case, the prosecution examined 15 witnesses namely; Juhur Khan PW.1, Kareem Khan PW.2, Nabbi PW.3, Badlu PW.4, Ishaq PW.5, Roozdar PW.6, Aasin PW.7, Imamkhan PW.8, Ibrahim PW.9, Harish Chand PW.10, Deen Mohammad PW.11, Dr. PP Singhal PW.12, Kallu PW.13, Phool Singh PW.14 and Dr. Amar Singh Meena PW.15 and produced documentary evidence Ex.P.1 to Ex.P55. After recording evidence of the prosecution, statements of the accused appellants under Section 313 of Criminal Procedure Code were recorded wherein it was stated that the prosecution evidence is false. However, no evidence in defence was led. The learned trial judge after considering the submissions of the parties and record, by the impugned judgment dated 8th January, 2002 convicted and sentenced the accused appellants as mentioned hereinabove. 5. Mr. Z.A. Naqvi, learned counsel for the appellants submitted that the trial court has committed illegality in convicting and sentencing the accused appellants in the facts and circumstances of the present case. 5. Mr. Z.A. Naqvi, learned counsel for the appellants submitted that the trial court has committed illegality in convicting and sentencing the accused appellants in the facts and circumstances of the present case. He argued that 16 persons were named in the FIR and all were armed with weapons but during investigation weapons were recovered from eight persons only and no weapons were recovered from eight persons only and no weapons were recovered from rest of the eight persons; as per the written report, six persons namely Sardar, Sumer Khan, Majeet, Deen Mohammad, Abdul Rehman and Kaasam were armed with guns whereas no gun was recovered from five accused persons and gun was recovered from accused, appellant Abdul only pursuant to the information furnished by him under Section 27 of the Evidence Act; accused appellants Surajmal, Khursheed, Jumme Khan, Umar, Fazru, Dalsher and Illiyas were armed with lathies but the same were not recovered from all the named five accused persons. Learned counsel for the appellants contended that accused Janu was arrested and he furnished information (Ex.P.22) under Section 27 of the Evidence Act and a Farsa was recovered on 4.2.1990 vide recovery memo Ex.P32 but the recovery was made from open field and there was no blood stains on the same and there is no FSL report in this regard. Both the witnesses of the recovery namely; Hajar Khan and Sohrali were also not examined by the prosecution. Accused Fazru was arrested and on the basis of information (Ex.P.23) furnished by him on 4.2.1990 under Section 27 of the Evidence Act, recovery of a lathi was made on the same day vide recovery memo Ex.P33 but the same was also from open field and without blood stains on it. There was no FSL report also in this regard and both the witnesses namely; Mamraj and Jwala of the recovery were not examined by the prosecution. Accused Deen Mohammad was arrested and on the basis of the information (Ex.P.24) furnished by him under Section 27 of the Evidence Act, a lathi was recovered on 4.2.1990 vide recovery memo (Ex.P34) but the recovery was from open field and witnesses namely; Mamraj and Jwala of the recovery were not examined by the prosecution. Accused Abdul was arrested and on the basis of the information (Ex.P25) furnished by him under Section 27 of the Evidence Act, a gun was recovered vide. Accused Abdul was arrested and on the basis of the information (Ex.P25) furnished by him under Section 27 of the Evidence Act, a gun was recovered vide. recovery memo (Ex.P36) dated 4.2.1990 but there is no FSL report about the fact to this effect that fire can be made from the same and the same was used in the occurrence. Witnesses of the recovery namely; Hajar Khan and Sohrali were also not examined by the prosecution and no charge under the Arms Act was framed against him. Accused Sheru was arrested and on the basis of the information (Ex.P26) furnished by him under Section 27 of the Evidence Act, a Katta was recovered on 4.2.1990 vide recovery memo (Ex.P35) but the recovery was from open field, the details of which were not mentioned in information memo, Ex.P26 and both the witnesses of the recovery were also not examined by the prosecution. No charge under the Arms Act was framed against him. Accused Jumma Khan was arrested vide arrest memo Ex.P20 and on the basis of the information (Ex.P.27) furnished by him under Section 27 of the Evidence Act, a lathi was recovered on 4.2.1990 vide recovery memo Ex.P35. However, the witnesses of the recovery were also not examined by the prosecution. (It seems that due to mistake Ex.P.35 has been put on two recovery memos i.e. recovery of lathi at the instance of accused Jumme Khan and Katta at the instance of accused Sheru). Accused Ajmat was arrested vide arrest memo Ex.P.29 and on the basis of the information (Ex.P30) furnished by him under Section 27 of the Evidence Act on 7.2.1990, a lathi was recovered on the same day vide recovery memo Ex.P37. No blood was bound on the lathi and it was not sent to the FSL for chemical examination and no FSL report is available on record. The witnesses of the recovery namely; Mohd. Yusuf and Hameeda were also not examined by the prosecution. Accused Roozdar was arrested vide arrest memo Ex.P29 and on the basis of the information (Ex.P.31) furnished by him,a lathi was recovered on the same day vide recovery memo Ex.P38. Both the witnesses of the recovery namely; Mohd. Yusuf and Hameeda were not examined by the prosecution. Yusuf and Hameeda were also not examined by the prosecution. Accused Roozdar was arrested vide arrest memo Ex.P29 and on the basis of the information (Ex.P.31) furnished by him,a lathi was recovered on the same day vide recovery memo Ex.P38. Both the witnesses of the recovery namely; Mohd. Yusuf and Hameeda were not examined by the prosecution. Therefore, learned counsel for the appellants contended that these recoveries are not proved by the independent witnesses as the motbirs of the recoveries were not examined by the prosecution for the reasons best known to them. So far as the remaining eight accused appellants are concerned, neither they furnished any information under Section 27 of the Evidence Act nor any recovery of weapon was made at their instance whereas as per the allegations in the written report Ex.P1, all the 16 accused appellants were armed with weapons, therefore, the prosecution story becomes false or the correct story is not brought on record by the prosecution. 6. Learned counsel for the appellants further contended that although there are eight injured persons namely; Ishaq, Kallu Khan, Gani Mohammad, Idrish, Roozdar, Deen Mohammad, Ibrahim and Imam Khan but their injury reports Ex.P.5, Ex.P12, Ex.P47, Ex.P.48, Ex.P49, Ex.P50, Ex.P51 and Ex.P.52 show that all of them sustained simple injuries. He also pointed out that although injured Ibrahim sustained fire arm injury but Dr. Amar Singh Meena PW.15 did not describe the said injury as grievous or dangerous to life. Therefore, for the injuries sustained by the injured persons, the offence does not travel beyond Section 323 or 324 IPC and it is an admitted fact that both the parties entered into a compromise for offence under Sections 323 and 324 IPC during trial of the case itself and vide order dated 7th January, 2002 the trial court acquitted all the accused persons of the offence under Sections 323 and 324 IPC. This fact finds place in the impugned judgment of the trial court itself. 7. He further argued that so far as the injuries sustained by deceased Smt. Juhuri are concerned, she sustained four injuries. (1) Incised wound (Oblique) 2" x 1/4" x bone deep at the Rt. parietal region of the skull-by sharp weapon; (2) Fire Arm wound size 0.5 cm x 0.5 cm, only wound of. entry and no wound of exit on right lumber region; round in shape, blackening is present. Injury Nos. (1) Incised wound (Oblique) 2" x 1/4" x bone deep at the Rt. parietal region of the skull-by sharp weapon; (2) Fire Arm wound size 0.5 cm x 0.5 cm, only wound of. entry and no wound of exit on right lumber region; round in shape, blackening is present. Injury Nos. 3 and 4 are only bruises. As per the statement of Dr. Amar Singh Meena PW.15 who initially opined that she died due to cumulative effect of injury nos. 1 and 2 but in his cross-examination he categorically admitted that gun shot injury was simple in nature and injury no. 1 (incised wound) was grievous which was sufficient in the ordinary course of nature to cause death of deceased Smt. Juhuri and death was not possible because of injury no. 2 (gun shot injury). As per the statement of the prosecution witnesses, injury no. 1 i.e. the incised wound was inflicted by accused Abdul Rehman and the trial court itself has convicted accused i appellant Abdul Rehman under Section 302 IPC simplicitor, meaning thereby the trial court found injury no. 1 sufficient to cause death of deceased Smt. Juhuri in the ordinary course of nature. So far as the injury no. 2 i.e. the fire arm injury is concerned, in view of the statement of the doctor the same was treated as simple in nature. He contended that as per the prosecution evidence, the fire arm injury was inflicted by accused Sardar but no recovery of gun was made at the instance of accused Sardar. Similarly, the allegation of causing injury by Farsa was against accused appellant Abdul Rehman but no Farsa was recovered at his instance. He therefore, contended that the prosecution has failed to prove case against the appellants beyond 5 reasonable doubt and all the accused appellants are entitled to get the benefit of doubt. In the alternative, learned counsel for the appellants contended that even as per the prosecution case, it is clear that the dispute in the present case was between Juhur Khan PW.1 and his son Ishaq at one side and accused party at the another side on the question of supply of water D to their respective fields from the tube-well and there was no enmity or quarrel with the deceased Smt. Juhuri who, all of sudden came to rescue her brother Juhur Khan PW.1. Meaning thereby, the intervened in the incident a; intervenor and a blow by farsa alleged to have been inflicted on her b) accused appellant Abdul Rehman. Therefore, from the admitted facts of the case it is clear that there was no motive or intention of any accused including accused appellant Abdul Rehman or Sardar to cause death of the deceased Smt. Juhuri who, all of sudden came and intervened in the incident to savE her brother Juhur Khan PW 1 and she sustained injuries resulting in he death. In these circumstances no offence under Section 302 IPC or under Section 302/149 IPC at all is made out. He further contended that it was a case of free fight and there was no pre-meditation of mind on the part of the accused persons to inflict injury on the person of the deceased or any other injured person. Therefore, no offence under Section 148 or 149 IPC is made out. Learned counsel contended that in the facts and circumstances of the case, if any offence at all is made out, it can be against accused Abdul Rehman only and in that case also, he can be convicted for offence under Section 304 part II IPC only as there is no repetition of blow and since he has already remained in jail for more than nine years, the sentence already undergone by him in jail may be considered as sufficient punishment for the offence committed by him. 8. Learned Public Prosecutor supporting the impugned judgment passed by the trial judge contended that from the statement of Juhur Khan PW.1 and other prosecution witnesses it is clear that all the accused persons came with a planning to inflict injuries on the person of complainant party. Their intention to inflict injuries is clear from the fact that all the accused persons were armed with weapons like guns and started beating the members of the complainant party. The deceased Smt. Juhuri came to rescue her brother but she did not sustain injuries while she came in rescue but she had already reached at the place of incident and accused Abdul Rehman inflicted a farsa blow on her person while accused Sardar caused fire arm injury on her person. Learned PP. also contended that recovery of weapons was made at the instance of eight accused persons which is fully proved in the present case. Learned PP. also contended that recovery of weapons was made at the instance of eight accused persons which is fully proved in the present case. Therefore, there is no illegality in the impugned judgment of the trial court and submissions of the learned counsel for the appellants are of no avail and should not be accepted. He, therefore, prays for dismissal of the appeal. 9. We have considered the submissions of the learned counsel for the parties and minutely scanned the impugned judgment and record of the trial court. 10. As per the written report Ex.P.1 one Ajmat son of Munshi came to Juhur Khan PW.1 and told him to allow him to take water from the tube-well to irrigate his field but Juhur Khan told him that he has just started irrigating his field and he will allow him only after irrigating his field. It is correct that 16 persons have been named in the written report and all were alleged to be armed with weapons but arms were recovered from only eight accused persons namely; Janu, Fajru, Deen Mohd. Abdul, Sheru, Jumme Khan, Ajmat and Ruzdar and no arms were recovered from remaining eight accused persons. As per the written report, six accused person attacked with guns but only one gun from accused Abdul was recovered. The recovery of arms at the instance of eight accused persons was made in the presence of two witnesses but none of the witnesses has been examined by the prosecution. The recoveries were made from open fields and there is nothing on record to show that the said fields were in exclusive possession of the accused persons. Neither the description of the field nor the khasra numbers of the field were given/mentioned in the information memo. It is also clear that the arms so recovered were not sustained with blood and they were not sent for chemical examination as no FSL report is available on record. The incident took place on 13.11.1989 whereas recoveries of weapons were made on 4/7.2.1990. Juhur Khan PW.1 in his statement has stated that Ajmat came to him and asked him to allow him to irrigate his field by tube-well and when he refused then he went away and thereafter 15-16 persons came armed with weapons. It is relevant to mention that appellant Ajmat was not included in these 15-16 persons. Juhur Khan PW.1 in his statement has stated that Ajmat came to him and asked him to allow him to irrigate his field by tube-well and when he refused then he went away and thereafter 15-16 persons came armed with weapons. It is relevant to mention that appellant Ajmat was not included in these 15-16 persons. Meaning thereby, he did not come back. The name of appellant Ajmat was neither mentioned as accused in the written report Ex.P1 nor in the First Information Report Ex.P2. However, challan was filed against him. The evidence shows that when the quarrel was going on, deceased Smt. Juhuri came all of sudden and intervened in the incident, may be to rescue her brother Juhur Khan PW. 1 and she sustained injuries on her person by sharp edged weapon and gun shot resulting in her death but it is clear that there was no pre-planning on the part of the accused appellants to inflict injuries on the person of the deceased. There are eight other injured persons also but all have sustained simple injuries and it is an admitted fact that both the parties have entered into a compromise during trial of the case and on that basis, all the accused persons were acquitted of the offence under Sections 323 and 324 ]PC, which were compoundable by the trial court vide order dated 7th January, 202, which fact finds place in the impugned judgment itself. 11. We have considered the statements of Juhur Khan PW.1 brother of the deceased and Karim Khan PW.2 husband of deceased Smt. Juhuri and other prosecution witnesses. Karim Khan PW.2 in his cross-examination specifically admitted that a quarrel was going on between both the parties. In one party, accused persons were there and in another party the complainant party was there. He also admitted that it is correct that the place where the quarrel took place was the bungalow of Surajmal accused. He specifically admitted that it is correct that Smt. Juhuri came to intervene in the fight in between both the parties and she sustained injuries during her investigation. The exact words are as under : " ;g lgh gS fd tgwjh ml yM+kbZ esa chp&cpko djus vkbZ FkhA ml chp&cpko esa tgwjh ds xksyh yx xbZA " As per the post-mortem report Ex.P.53, deceased Smt. Juhuri sustained four injuries out of which injury Nos. The exact words are as under : " ;g lgh gS fd tgwjh ml yM+kbZ esa chp&cpko djus vkbZ FkhA ml chp&cpko esa tgwjh ds xksyh yx xbZA " As per the post-mortem report Ex.P.53, deceased Smt. Juhuri sustained four injuries out of which injury Nos. 3 and 4 are only bruises. Dr. Amar Singh Meena PW.15 in his cross-examination has admitted that the gun shot injury i.e. injury no. 2 was simple in nature and injury no. 1 i.e. incised wound was grievous in nature and was sufficient in the ordinary course of nature to cause death. As per the prosecution evidence it is clear that injury no.1 was inflicted by accused appellant Abdul Rehman. It is also correct that no sharp edged weapon was recovered at the instance of appellant Abdul Rehman but there is consistent oral evidence that he inflicted injury by farsa on the person of deceased i.e. injury no. 1. The incident started when Ajmat came to meet Jahur Khan PW.1. However, there is no agriculture field of Ajmat nearby the place of incident. He was not named as an accused either in the written report Ex.P1 nor in the FIR Ex.P.2. Therefore, in the facts and circumstances of the case the following questions arise for consideration by this Court : 1. Whether, offence under Section 148 IPC can be said to be made out or not? 2. Whether, accused appellant Majid is liable to be convicted under Section 307 IPC and other accused appellants U/s. 307/149 IPC ? 3. Whether, accused appellant Abdul Rehman is liable to be convicted under Section 302 IPC and the other accused appellants under Section 302/149 IPC ? 12. So far as the offence under Section 148 IPC is concerned it is relevant to mention here that in the written report Ex.P1 as well as in his court statement, Juhur Khan PW.1 stated that Ajmat came and met him at about 6 0' clock and told him to allow him to irrigate his field from the tube-well and when he refused to allow him then he went away. It is an admitted fact that thereafter 15-16 persons came. It is not clear either from the written report, chalked FIR or the statement of Juhur Khan PW.1 that Ajmat was one of the 15-16 persons. Meaning thereby, he did not come back. It is an admitted fact that thereafter 15-16 persons came. It is not clear either from the written report, chalked FIR or the statement of Juhur Khan PW.1 that Ajmat was one of the 15-16 persons. Meaning thereby, he did not come back. If Ajmat would have come along with 15-16 persons then the matter would have been different and it would have been presumed that he brought 15-16 persons to teach lesson to Juhur Khan PW.1 or his son Ishaq but presence of Ajmat is not shown in 15-16 persons specifically. Therefore, we are of the opinion that the prosecution has not been able to prove genesis of the occurrence beyond reasonable doubt. In the written report it is mentioned that 15-16 persons came armed with weapons and started beating with the complainant and the members of his side. The injury reports of the injured persons of the complainant party further reveal that although there are eight injured persons but they all sustained simple injuries on their person. A compromise has already taken place in between both parties and accused- appellants have already been acquitted from the offence u/ss. 323, 324 IPC. However, for inflicting of injuries or causing of death of Smt. Juhuri there is not an iota of evidence that there was any enmity of the accused appellants with the deceased and the accused persons came to kill her or to inflict even simple injury on her person. In these circumstances, we are of the view that there was no common intention or object of the accused appellants to inflict injury on the person of the deceased. Even as per the statement of Juhur Khan PW.1 and Karim Khan PW.2, who are brother and husband respectively of the deceased, she herself intervened in the incident and sustained injuries resulting in her death. In view of this, we find that the learned trial judge has committed illegality in convicting the accused appellants under Section 148 IPC. 13. So far as appellant Majid is concerned, the trial judge has convicted him simplicitor under Section 307 IPC for injury sustained by Ibrahim. Ex.P.51 is the injury report of injured Ibrahim and according to it he sustained three injuries. Injury no. 1 was fire arm wound. 13. So far as appellant Majid is concerned, the trial judge has convicted him simplicitor under Section 307 IPC for injury sustained by Ibrahim. Ex.P.51 is the injury report of injured Ibrahim and according to it he sustained three injuries. Injury no. 1 was fire arm wound. Ex.P8 is the X-ray report of injured Ibrahim according to which one single metallic dense rounded radio opaque shadow was seen in anterior chest wall in between 4th and 5th ribs on left side. From the X-ray report Ex.P8 it is clear that none of the injuries including injury no.1 of injured Ibrahim was shown as grievous or dangerous to life. Even if injury no. 1 was fire arm injury but in case it is not described as grievous or dangerous to life then offence is to be determined by the nature of the injury and at the best it can be taken as a simple injury. As per the case of the prosecution, the said fire arm injury was inflicted by appellant Majid. Dr Amar Singh Meena PW.15 in his statement, has not stated that the injury sustained by injured Ibrahim was grievous or dangerous to life. In these circumstances, we find that the trial court has committed an illegality in convicting appellant Majid for offence under Section 307 IPC simplicitor. Thus, appellant Majid at the most can be convicted for offence under Section 323 IPC for having caused simple injury to injured Ibrahim. As mentioned hereinabove, the parties have already entered into a compromise and on that basis the trial court vide its order dated 7th January, 2002 has already acquitted all the appellants of the offence under Sections 323 and 324 IPC. Therefore, appellant Majid is also liable to be acquitted from the offence under Section 323 IPC on the basis of compromise. 14. So far as the question as to whether the appellant Abdul Rehman is liable to be convicted under Section 302 IPC simplicitor and other appellants u/s. 302/149 IPC is concerned,first of all it is relevant to mention that we have already held hereinabove that no offence u/s. 148 IPC is made out against any of the accused appellant, therefore, convicting of appellants u/s. 3021149 IPC becomes illegal or bad in law and the same is liable to be set aside. Now we will consider the case of Abdul Rehman. Now we will consider the case of Abdul Rehman. As per prosecution case including the statement of Juhur Khan PW.1, brother of deceased and Karim Khan PW.2, husband of the deceased it is clear that deceased Smt. Juhuri herself came and intervened in the matter. From the statements of both the above cited witnesses it is also clear that when the deceased saw that accused persons are quarreling with her brother Juhur Khan then she came and intervened in the matter. It was but natural for the deceased that when she saw that her brother is being beaten by the accused persons then she came to rescue him. However, she sustained a blow by sharp edged weapon as well as fire arm injury on her person. While discussing the issue relating to 'unlawful assembly' with common object for offence under Section 148 IPC it has come on record that there was no enmity of the accused persons with the deceased and there was no common object or intention on the part of the accused persons to inflict any injury on the person of the deceased. She came all of sudden and intervened in the incident and sustained injuries on her person but in absence of any intention on the part of the accused persons to inflict any injury on the person of the deceased it cannot be said that it was culpable homicide amounting to murder. However, it can be gathered that the accused had knowledge that the injury No.1 inflicted by him may be sufficient to cause death of the deceased in the ordinary course of nature. In these circumstances we are of the view that author of injury No. 1 on the person of deceased is liable to be convicted under Section 304 Part II IPC and not under Section 302 IPC simplicitor. It is pertinent to mention here that from the written report Ex.P.1 and the statements of Juhur Khan PW.1 and Karim Khan PW.2 it is clear that appellant Abdul Rehman inflicted a farsa blow on the person of deceased although the weapon farsa has not been recovered at his instance but the statements of Juhur Khan and Karim Khan and other prosecution witnesses in this regard are corroborating the statements of each other and by the medical report. Injury no.1 is incised wound which is inflicted by a sharp edged weapon like farsa. Injury no.1 is incised wound which is inflicted by a sharp edged weapon like farsa. Therefore, there is no doubt that injury no. 1 was inflicted by appellant Abdul Rehman, Dr. Amar Singh Meena PW.15 initially opined that the cause of death of the deceased was cumulative effect of injury nos. 1 and 2 both but in his cross- examination he specifically admitted that the deceased could have died of injury no. 1 which was a incised wound, grievous in nature and was sufficient to cause death in the ordinary course of nature. The trial court has also believed this evidence and convicted the appellant Abdul Rehman simplicitor under Section 302 IPC for injury no.1. We are also of the view that injury no. 1 on the person of the deceased was inflicted by appellant Abdul Rehman but as discussed hereinabove, there was no intention on the part of any of the accused persons including Abdul Rehman to inflict such injury on the person of deceased and in absence of any intention about it, the trial court has committed an illegality in convicting appellant Abdul Rehman under Section 302 IPC simplicitor while he is liable to be convicted under Section 304 Part II IPC. 15. In Gurmail Singh & Ors. v. State of Punjab, AIR 1982 SC 1466 the Hon'ble Apex Court in similar circumstances where one Tej Singh attempted to intervene to save Boga Singh and Gura Singh from further harm, a blow with Barcha was given by accused on Gurmail Singh which lended on Tej Singh. Considering the provisions of para I and III of Section 300 IPC and its earlier judgments in Virsa Singh v. State of Punjab, AIR 1958 SC 465 and Jagrup Singh v. State of Haryana, AIR 1981 SC 1552 , observing that in order to bring the case within Para III of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. Their Lordships of the Apex Court considered the facts that the accused party never intended to inflict injury on the person of Tej Singh who intervened in the incident, acquitted the accused persons from the offence under Section 302 IPC but presuming that it was in the knowledge of the accused that the said injury was likely to cause death, convicted the accused for the offence under Section 304 Part II IPC. The relevant paras 7 to 10 of the judgment are being reproduced as under : 7. The facts found by the High Court are that an indecent joke being cut by accused 4 with Jagir Kaur, wife of P.W. Bogha Singh on the day previous to the date of occurrence. P.W. Bogha Singh and his brother P.W. Gura Singh both went to the house of the accused to complain against the misbehaviour of accused 4. That is the genesis of the quarrel. Dispute thus was between Bogha Singh and Gura Singh on the one hand and the accused on the other. Deceased Tej Singh was nowhere in the picture. There was no animosity against him. There could not have been even a passing thought of causing any injury to Tej Singh. The High Court found as a fact that Tej Singh appeared on the scene after the accused assaulted Bogha Singh and Gura Singh. In fact, according to the High Court when Tej Singh attempted to intervene to save Bogha Singh and Gura Singh from further harm a blow of barchha was given by accused 1 Gurmail Singh which lended on Tej Singh. There is nothing to indicate in the evidence that Gurmail Singh ever intended to cause any injury to Tej Singh assuming transmission of malice is inferable. Undoubtedly there could be presumption of transmission of malice but in the facts found could it ever be said that accused 1 Gurmail Singh intended to commit murder of Tej Singh ? The answer obviously being in the negative, para 1 of Section 300 would not be attracted. But it was said that the case would be covered by para 3 of Section 300 in that Gurmail Singh intended to cause an injury and the injury intended to be inflicted was proved to be sufficient in the ordinary course of nature to cause death. But it was said that the case would be covered by para 3 of Section 300 in that Gurmail Singh intended to cause an injury and the injury intended to be inflicted was proved to be sufficient in the ordinary course of nature to cause death. This argument is often raised for consideration by this Court and more often Reliance is places Virsa Singh v. State of Punjab, 1958 SCR 1495 : AIR 1958 SC 465 . We would have gone into the question in detail but in Jagrup Singh v. State of Haryana, Criminal Appeal decided on May 7, 1981, reported in AIR 1981 SC 1552 . Sen, J. after examining all the previous decisions on the subject, observed that in order to bring the case within para III of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. This view was further affirmed in a decision rendered in Randhir Singh alias Dhire v. State of Punjab, Criminal Appeal arising out of SLP (Cri.) No. 890 of 1981 decided on 18.9.1981, reported in AIR 1982 SC 55 . We are of the opinion that in the facts found by the High Court it could not be said that accused 1 Gurmail Singh intended to cause that particular bodily injury which in fact was found to have been caused. May be, the injury inflicted may have been found to be sufficient in the ordinary course of nature to cause death. What ought to be found is that the injury found to be present was the injury that was intended to be inflicted. It is difficult to say with confidence in the present case keeping in view the facts found by the High Court that accused 1 Gurmail Singh intended to cause that very injury which was found to be fatal. 8. Now the question then is what is the offence committed by accused 1 Gurmail Singh. He had wielded a weapon like barchha. The injury landed on the chest and penetrated deep into the chest cavity. When accused 1 wielded a weapon like a barchha he must be presumed to know that he was likely to cause an injury which was likely to cause death. Undoubtedly, as it was pointed out by Mr. He had wielded a weapon like barchha. The injury landed on the chest and penetrated deep into the chest cavity. When accused 1 wielded a weapon like a barchha he must be presumed to know that he was likely to cause an injury which was likely to cause death. Undoubtedly, as it was pointed out by Mr. Mulla that accused 1 is a very young man shown to be aged about 19 years in the judgment of the learned Sessions Judge, having regard to all the circumstances and the facts found by the High Court, it may be said that accused 1 is shown to have committed an offence under Section 304 Part II, IPC. In our opinion the sentence of five years' rigorous imprisonment would be adequate sentence. 9. The only other accused whose case requires to be examined on the question of sentence is accused 3 Jagseer Singh who is convicted for having committed an offence under Section 325, IPC. In that he gave a blow on the middle phalax of right palm of Bogha Singh which resulted in a fracture of the middle phalanx of the right index finger. On this account he is convicted of an offence under Section 325, IPC. It is at this stage that we may point out that in this very occurrence accused 2, 3 and 4 have suffered injuries. Accused 2 had suffered three injuries, two of which were incised wounds and accused 3 and 4 each had suffered on injury. If in this back ground a blow with the blunt side of gandhali caused fracture of the phalanx, undoubtedly the offence would be under Section 325, IPC but in our opinion a sentence of 21/2 years appears to be one which requires reconsideration. In our opinion, having regard to all the circumstances of the case while affirming the conviction of accused 3 Jagseer Singh under Section 325, IPC his substantive sentence should be reduced to rigorous imprisonment for six months. We do not thin any other modification in the sentence awarded to any other accused in respect of other offences for which they were convicted and sentenced is called for. 10. Accordingly, this appeal is partly allowed. Conviction of accused 1 Gurmail Singh for having committed an offence under section 302, I.P.C. and sentence of rigorous imprisonment for life and a fine of Rs. 10. Accordingly, this appeal is partly allowed. Conviction of accused 1 Gurmail Singh for having committed an offence under section 302, I.P.C. and sentence of rigorous imprisonment for life and a fine of Rs. 3,000/- in default to suffer rigorous imprisonment for 11/2 years is set aside but he is convicted for an offence under Section 304, Part II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and a fine of Rs. 500 in default to suffer rigorous imprisonment for six months.'' 16. In the present case, from the prosecution evidence, particularly from the statement of Juhur Khan PW. 1 and Karim Khan PW.2 who are the brother 1 and husband of deceased Smt. Juhuri, it is clear that the deceased attempted to intervene in the incident to save her brother Juhur Khan PW.1 from further blow by accused persons. There was no intention of any of the accused persons including Abdul Rehman to inflict any injury.on the person of the deceased. There was no enmity between the deceased and the accused 1 persons. There was no motive of the accused persons to inflict any injury on the person of deceased. In these circumstances, the author of injury no. 1 on the person of deceased cannot be held liable for offence under Section 302 IPC but it can be presumed that appellant Abdul Rehman who inflicted injury no. 1 on the person of the deceased had knowledge that the said injury was likely to cause her death. The facts of Gurmail Singh's case (supra) considered by the Apex Court appear to be similar. Therefore, appellant Abdul Rehman is liable to be convicted for offence under Section 304 Part II IPC only. 17. So far as the sentence to be awarded to appellant Abdul Rehman is concerned, it is relevant to mention here that he remained in jail from 11.1.1990 to 15.9.1990 during trial of the case and since 8th January, 2002 i.e. the date of impugned judgment till date continuously. Thus he has already remained in jail for about 8 years 7 months and 14 days. Therefore, in our view, the ends of justice would be met if the period of imprisonment already undergone by him is awarded as sentence of imprisonment under Section 304 Part II IPC. 18. Thus he has already remained in jail for about 8 years 7 months and 14 days. Therefore, in our view, the ends of justice would be met if the period of imprisonment already undergone by him is awarded as sentence of imprisonment under Section 304 Part II IPC. 18. Consequently, the appeal of all the appellants (15 in number), except appellant Abdul Rehman is allowed. Their conviction and sentence under Section 302/149, 307 or 307/149 and 148 IPC is, set aside. Appellants (1) Iliyas, (2) Surajmal, (3) Kaasam, (4) Sumer Khan,(5) Sirdar, (6) Dalsher, (7) Janu, (8) Fazru, (9) Deen Mohammad, (10) Jumme Khan, (11) Sheru, (12) Abdul, (13) Ajmat, (14) Ruzdar and (15) Majid are on bail. Their bail bonds are discharged and they need not to surrender.The appeal of appellant Abdul Rehman is partly allowed. He is acquitted of the offence under Section 302,307 and 148 IPC. However, he is convicted under Section 304 part II IPC and is sentenced to the period of imprisonment already undergone by him. He is in judicial custody, therefore, it is directed that he be released forthwith, if his custody is not required in any other case.Appeal of A Partly Allowed - Appeal of other Allowed. *******