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2013 DIGILAW 1572 (RAJ)

Atar Singh v. State of Rajasthan

2013-09-09

MOHAMMAD RAFIQ, NISHA GUPTA

body2013
Hon'ble GUPTA, J.—These both matters are related to same incident and filed against a common order, hence, they are being decided by this common judgment. 2. Criminal Appeal and revision petition have been filed against the judgment and order 15.12.2003 passed in Sessions Case No.99/2003 (2/97) by Additional District Judge (Fast Track) No.3, Bharatpur Camp Bayana, by which the present appellants have been convicted and sentenced, as under: Appellant Nihal Singh: Under Section 447 IPC: to undergo three months simple imprisonment. Under Section 427 IPC: to undergo one year simple imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Section 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 325/149 IPC: to undergo three years rigorous imprisonment and a fine of Rs.500/- in default of payment of fine, he has to further undergo three months simple imprisonment. Under Section 326/149 IPC: to undergo five years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Appellant Atar Singh: Under Section 427 IPC: to undergo one year simple imprisonment. Under Section 447 IPC: to undergo three months simple imprisonment. Under Section 148 IPC: to undergo two years rigorous imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Section 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 325/149 IPC: to undergo three years rigorous imprisonment and a fine of Rs.500/- in default of payment of fine, he has to further undergo three months simple imprisonment. Under Section 326/149 IPC: to undergo five years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Appellant Bhagwat and Prakash @ Om Prakash: Under Section 148 IPC: to undergo two years rigorous imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Section 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 325/149 IPC: to undergo three years rigorous imprisonment and a fine of Rs.500/- in default of payment of fine, he has to further undergo three months simple imprisonment. Under Section 326/149 IPC: to undergo five years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Appellant Makhan: Under Section 148 IPC: to undergo two years rigorous imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Section 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 325/149 IPC: to undergo three years rigorous imprisonment and a fine of Rs.500/- in default of payment of fine, he has to further undergo three months simple imprisonment. Under Section 326/149 IPC: to undergo five years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Appellant Murari: Under Section 148 IPC: to undergo two years rigorous imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Sec. 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Appellant Murari: Under Section 148 IPC: to undergo two years rigorous imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Sec. 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 325/149 IPC: to undergo three years rigorous imprisonment and a fine of Rs.500/- in default of payment of fine, he has to further undergo three months simple imprisonment. Under Section 326/149 IPC: to undergo five years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. Appellants Member, Yadram, Lambari @ Arun Singh and Bhuripal: Under Section 147 IPC: to undergo one years rigorous imprisonment. Under Section 323 IPC: to undergo one year rigorous imprisonment. Under Sec. 324/149 IPC: to undergo two years rigorous imprisonment. Under Section 325/149 IPC: to undergo three years rigorous imprisonment and a fine of Rs.500/- in default of payment of fine, he has to further undergo three months simple imprisonment. Under Section 326/149 IPC: to undergo five years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 307/149 IPC: to undergo seven years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, he has to further undergo six months simple imprisonment. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. (All the sentences are to run concurrently) 3. During appeal, the appellant No.1-Nihal Singh expired, hence, his appeal stands abated vide order dated 7.3.2011. 4. Under Section 302/149 IPC: to undergo life imprisonment and fine of Rs.2500. In default of payment of fine, he has to further undergo one year simple imprisonment. (All the sentences are to run concurrently) 3. During appeal, the appellant No.1-Nihal Singh expired, hence, his appeal stands abated vide order dated 7.3.2011. 4. The short facts of the case are that on 18.8.1996 at about 11.30 p.m., Samunder Singh PW.1 has submitted a written report Ex.P/1 at Police Station Roopwas and it was stated that at about 5.00 p.m., Nihal Singh and his son Atar Singh had destroyed the Jwar Crop of his uncle. Lalaram had asked Nihal Singh as to why he had destroyed the crop. At that time, they went away. At about 6.00 p.m., Nihal Singh, Atar, Bhagwat, Makhan, Member, Prakash, Yadram etc. etc. 21 persons named in FIR came there armed with Pharsa, Lathi, Jeriya, Dhariya etc. entered in his house and told him that if he will cultivate the lands of his uncle, they will kill him. It was further stated in the written report that accused Member inflicted injury with a blunt side of Pharsa on the right hand of Samunder, then Lalaram, Mahendra, Laxman Kaur, Badlu, Bhagwan Singh, Shibbu, Akhe Singh, Sunder, Khema and Bhagwani came there to rescue the informant. Accused appellants have also inflicted injuries on them. Some of the overt acts have been narrated in the FIR. It has also been specifically narrated that Bhagwat has inflicted injury on the head of Akhe Singh with a Pharsa. On the basis of the above report, FIR No.241/96 was registered under Sections 147, 148, 323, 427, 447 and 307 IPC on 27.8.1996. Injured Akhe Singh succumbed to the injuries and offence under Section 302 IPC was added. After investigation, charge sheet was filed against 19 persons including the present appellants. The case was committed to the Court of Sessions, which was transferred to the Additional Sessions Judge (Fast Track) No.3, Bharatpur. Injured Akhe Singh succumbed to the injuries and offence under Section 302 IPC was added. After investigation, charge sheet was filed against 19 persons including the present appellants. The case was committed to the Court of Sessions, which was transferred to the Additional Sessions Judge (Fast Track) No.3, Bharatpur. The learned Court below framed charges against the accused Nihalsingh, Rajendra, Mohan, Manshi @ Man Singh, Bhanwar, Billa @ Bhagwan Singh, Bhurimal, Lambari @ Arun Singh, Shanker, Murari, Puranmal under Sections 148, 323, 324, 325/149, 326/149, 307/149, 302/149, 427, 447 IPC; accused Bhagwant and Prakash under Sections 148, 323, 324, 325/149, 326, 307/149, 302, 427, 447 IPC, accused Member under Sections 148, 323, 324, 325/149, 326/149, 307, 302/149, 427, 447 IPC, accused Lakhan and Makhan under Sections 148, 323, 324, 325/149, 326, 307/149, 302/149, 427, 447 IPC, accused Yadram under Sections 148, 323, 324, 325, 326/149, 307/149, 302/149, 427, 447 IPC, accused Atar Singh under Sections 147/148, 323, 324, 325, 325/149, 326/149, 307, 307/149, 302, 302/149, 427, 447 IPC and accused Murari under Sections 148, 323, 324, 325/149, 326/149, 307/149, 302/149, 427, 447 IPC who pleaded not guilty and prayed for the trial of the case. The prosecution has examined PW.1 Badlu, PW.2 Lalaram, PW.3 Bema, PW.4 Sundar, PW.5 Bhagwani, PW.6 Laxman Kaur, PW.7 Mahendra Singh, PW.8 Dr. B.L. Meena, PW.9 Bhagwan Singh, PW.10 Ram Singh, PW.11 Virjendra, PW.12 Surajmal, PW.13 Harinam Singh, PW.14 Dr. D.D. Gupta, PW.15 Vidhyadhar Dudi, PW.16 S.H.O./Investigation Officer, PW.17 Dr. Kedar Garg to support his case. Prosecution has also relied upon Ex.P1 to Ex.P/68 and Ex.P.104 post-mortem report. Statement of accused persons have been recorded under Section 313 Cr.P.C. DW.1 Dr. Rajendra Gupta and DW.2 Ramjilal have been produced by the defence and has relied upon Ex.D/1 to Ex.D/19. After trial, the present appellants have been convicted and sentenced, as referred above. Nine persons have been acquitted, hence, the appeal has been filed against conviction of the appellants, whereas complainant has filed revision against the acquittal of the nine respondents. 3. The contention of the present appellants is that learned Trial Court has erred in convicting the appellants. No independent witnesses have been produced to support the case. Appellants were in possession of the land. Complainant party was the aggressor, who was interfering in their possession. The appellants had a right of private defence to protect their property and persons. 3. The contention of the present appellants is that learned Trial Court has erred in convicting the appellants. No independent witnesses have been produced to support the case. Appellants were in possession of the land. Complainant party was the aggressor, who was interfering in their possession. The appellants had a right of private defence to protect their property and persons. Accused-appellant Bhagwat, Bhanwar Singh, Makhan Singh and Nihal Singh have also sustained injuries, but prosecution has not explained the injuries. Admittedly, the case of the prosecution is that appellants came there to fight with Samander Singh and Akhe Singh was only an intervener, hence, no intention could be attributed to the appellants to kill the Akhe Singh. Akhe Singh has not died on account of the injuries, but postmortem report clearly indicates that Akhe Singh has died on account of septicemia. Each of the accused did not have any intention of causing death of the Akhe Singh, hence, the conviction of the appellants is bad in law. 4. Per contra, contention of the learned Public Prosecutor is that eye-witnesses have specifically narrated the incident. Present appellants came there with deadly weapons. They formed an unlawful assembly and in furtherance of common object of unlawful assembly, incident has taken place. There is specific evidence that Bhagwat Singh has inflicted injury from sharp weapon on the head of the deceased and other appellants were also carrying deadly weapons. The Court below has rightly held that the common object of unlawful assembly was to liquidate the deceased and looking to the fact that one person has died and 10 persons have received injuries, some of them has received grievous injuries, which were dangerous to life and also grievous injuries from sharp weapon, hence, the conviction under the above offences could not be interfered. When number of persons have been assaulted, if accused persons have also sustained injuries, the case of the prosecution could not be seen with suspicious. Admittedly, the appellants were not in the possession of the property and they came there to dispossess the complainant party, hence, no case of private defence could be made out in favour of appellants and conviction could not be interfered. 5. Counsel for the complainant submitted that there is no infirmity in the conviction of the present appellants and respondents have been acquitted erroneously. 5. Counsel for the complainant submitted that there is no infirmity in the conviction of the present appellants and respondents have been acquitted erroneously. The case of the prosecution is proved that the respondents were also the member of the unlawful assembly, hence, it was not necessary for the prosecution to prove overt act of every respondents. When number of persons have attacked and number of persons received injuries it was not possible for prosecution to narrate overt act of the every member of the unlawful assembly the present respondents should be held liable on the principle of vicarious liability. 6. Heard the learned counsel for the appellants and learned Public Prosecutor as well as counsel for the complainant and perused the impugned judgment as well as the original record of the case. 7. PW.1 Samundar Singh has lodged the FIR and before the Court below his contention was that he and Lala Ram objected Nihal singh as to why he had destroyed the Crop. Thereafter on 6 p.m. Nihal Singh and 21 named persons in FIR came to his house having Dhariya, Pharsa and Lathi etc. and told him that if he will cultivate the land of his uncle, they will kill him and they started beating to Samundar Singh. The accused-appellant-Member has inflicted Pharsa blow on his right hand. Thereafter, Lalaram, Mahendra, Laxman Kaur, Badlu, Bhagwan Singh, Shibbu, Akhe Singh, Sunder, Kema and Bhagwani came there to intervene. Bhagwat Singh inflicted Pharsa blow on the head of the Akhe Singh and Prakash inflicted Lathi blow on his right hand. Thereafter this witness has also narrated the incident that which accused has caused which injury to which injured. PW.2 Badlu has also corroborated the same story and his contention is that Bhagwat Singh has inflicted Pharsa blow on the head of the Akhe Singh and Atar Singh has inflicted Dhariya on his right hand near the elbow and some other overt acts have also been narrated by the witness. PW.3 Lalaram has also narrated the same that Bhagwat Singh inflicted Pharsa blow on the head of the Akhe Singh and Lalaram has also received sharp weapon injuries. PW.3 Lalaram has also narrated the same that Bhagwat Singh inflicted Pharsa blow on the head of the Akhe Singh and Lalaram has also received sharp weapon injuries. Other eye-witnesses, who are also the injured i.e. PW.4 Khema, PW.5 Sundar, PW.6 Bhagwani, PW.7 Laxman Kaur, PW.8 Mahendra Singh, PW.10 Bhagwan Singh, have also supported the prosecution story that all the appellants came there with deadly weapons and they started assaulting Samundar Singh and when other persons came there to intervene, they were also beaten by accused-appellants and they received injuries. 8. The contention of the appellants is that they have not formed any unlawful assembly. They were in peaceful possession of the property and complainant party came there to dispossess them, but the contention of the prosecution is that complainant party was in possession of the land and attention has been drawn towards the statement of DW.2, who was the Sarpanch of the Village. He has issued Pattas in favour of the accused persons, but in cross-examination, he has narrated that when the concerned persons have got the possession is not in his knowledge. The cross-examination of PW.2 Badlu is very relevant in this regard. A specific question has been asked by the counsel for the appellants that complainant party was having illegal possession over the land and accused persons wan to dispossess him. This question has been denied by the PW.2 Badlu, but is speaks itself that the case of the appellants is that complainant party was in illegal possession of the land. This Court will not go into the legality and illegality of the possession, but the case of the prosecution is that complainant party was in possession of the land and this fact has been accepted by the defence also by putting the above cross-examination and when complainant party was in possession of the land may be it was illegal, the legal recourse was open for the appellants to have the possession back, but the accused appellants have formed an unlawful assembly to take the possession of the land and armed with deadly weapons, they reached on the land and started assaulting Samunder Singh and when Akhe Singh and others came there as interveners, they have also been assaulted and received injuries. 9. 9. The prosecution evidence is consistent on the point that Bhagwat Singh has inflicted Pharsa blow on the head of the Akhe Singh and Prakash has inflicted Lathi blow on his head. Postmortem report Ex.104 clearly speaks that the deceased sustained incised wound and lacerated wound on his head and cause of death is injury No.1 with septicemia. PW.17 Dr. Kedar Garg has conducted autopsy on the dead body and his opinion is that head injury with septicemia leading to shock and death is the cause of death. The deceased has received other injuries also, but out of the appellant who is the author of these injuries, could not be proved as the unlawful assembly contains large number of persons, but specific evidence has been placed by the prosecution that injury No.1 has been caused by Bhagwat Singh, whereas injury No.2 has been caused by appellant Prakash. PW.9 Dr. B.L. Meena has examined Lalaram, Badlu, Laxman Kaur, Sunde, Shhibo, Samundar, Khema and Bhagwani, Mahendra Singh, Bhagwan Singh and prepared Ex.P/50 to P.66, all the injuries caused to these injured persons have been proved by the evidence of Dr. Meena. The eye-witnesses have also stated some specific injuries caused to he specific injured. PW.1 Samundar Singh has stated that accused Member has inflicted Pharsa blow on his right hand. Atar Singh has inflicted Dhariya blow on the right hand of Bablu, whereas accused-Member has inflicted Pharsa Blow on leg of Lalaram and according to injury report of Lalaram Ex.P/50, he has suffered four injuries. Injury No.2 is inflicted on right hand, is by sharp weapon. Injury No.4, which has been attributed to Member is of sharp weapon and simple in nature. PW.2 Bablu has stated that Atar has inflicted Dhariya on his right hand near the elbow and Bhagwan has also received injury by sharp weapon. Injury report of Badlu Ex.P/54 also states that Badlu has received sharp weapon injury near his right elbow and Doctor has opined that injury was dangerous to life. As regard accused-appellant Makhan PW.10 Bhagwan Singh has stated that Makhan has inflicted Dhariya blow on his left hand and injury report Ex.P/66 also speaks that Bhagwan Singh has received cut injury on his left hand. As regard accused-appellant Makhan PW.10 Bhagwan Singh has stated that Makhan has inflicted Dhariya blow on his left hand and injury report Ex.P/66 also speaks that Bhagwan Singh has received cut injury on his left hand. As regard accused appellant Makhan PW.5 Sunder states that Makhan has inflicted Dhariya blow on his shoulder and Sunder has also received injury which has been dangerous to life, hence, the eye-witnesses has supported the prosecution story that injured persons have received specific number of injuries and some of injuries has been specifically attributed to the appellants Member, Atar Singh, Makhan and Yadram, whreas fatal injury to deceased have been attributed to appellant Bhagwat Singh and one injury on head of the deceased has also been attributed to appellant Prakash. 10. PW.9 Dr. B.L. Meena has testified that Lalaram has received four injuries out of which one was found to be grievous and one injury was of sharp weapon, whereas Badlu has received one injury by sharp weapon, which was dangerous for life. Laxman Kaur has received two injuries which were simple in nature and inflicted by blunt weapon. Sunder has received six injuries out of which injury No.1 was by sharp weapon and it was also dangerous to life. Shibba has also received two injuries, both were simple, but out of which one was of sharp weapon. Samundar has received four injuries, all were of blunt weapon and simple in nature. Khema has received four injuries out of which two were grievous and all were of blunt weapon. Bhagwani has received two injuries both were simple and by blunt weapon and Mahendra Singh has also received one simple injury with blunt weapon. Bhagwan Singh has received six injuries out of which one was of sharp weapon and also grievous. 11. The presence of eye-witnesses was natural on the spot as they were residing near the vicinity and on hearing cries of the Samundar Singh, they went there and the Court below has rightly relied upon the statements of eye witnesses, which have been further corroborated by the medical evidence. 11. The presence of eye-witnesses was natural on the spot as they were residing near the vicinity and on hearing cries of the Samundar Singh, they went there and the Court below has rightly relied upon the statements of eye witnesses, which have been further corroborated by the medical evidence. The Investigating Officer PW.16 has deposed that during investigation from Bhagwat, Member and Yadram, Pharsa has been recovered, whereas at the instance of Atra and Makhan Singh, Dhariya was recovered, whereas on the instant of Lambari, Bhuripal, Prakash and Murari lathis were recovered, hence, the recovery of the weapons also relate to the accused appellants with the crime. 12. The contention of the appellants is that they have also received injuries which have not been explained by the prosecution, hence, benefit of doubt be extended to them and they have acted in exercise of right of private defence. As considered earlier that the appellants were aggressor as they were not having the possession over the land and legal recourse was available to them, hence, they could not claim exercise of right of private defence. It is true that four accused have received injuries which have been testified by the DW.1, but looking to the nature of injuries that only two injuries are grievous in nature. All other injuries are simple in nature and when many persons are involved in the assault injuries of this nature could be received and further more Doctor was of the opinion that all injuries received by the accused persons could be caused by mere falling, hence, non explanation of injury could not be treated fatal for the prosecution. 13. The contention of the appellant is that admittedly as per the prosecution story, the appellants went at the spot to take the possession of the land and at the most. Their intention was to inflict injuries to Samundar Singh. It was not the intention of the appellants to liquidate the deceased Akhe Singh as he was the intervener. Primary target of the appellants to cause death of the deceased and reliance has been placed on (2009) 17 SCC 438 , Ramesh Vithalrao Thakre & Anr. vs. State of Maharashtra. Their intention was to inflict injuries to Samundar Singh. It was not the intention of the appellants to liquidate the deceased Akhe Singh as he was the intervener. Primary target of the appellants to cause death of the deceased and reliance has been placed on (2009) 17 SCC 438 , Ramesh Vithalrao Thakre & Anr. vs. State of Maharashtra. The averments of the counsel for the appellants seems to be sound on the fact of the present case that object of the assembly was to take the possession of the land and primary target was Samundar Singh and when Akhe Singh has intervened he received injuries. None of the appellants have repeated the blows. Bhagwat Singh has only inflicted one injury and same is the position with Prakash and other appellants have also not repeated any blow hence the intention of the appellants was not to kill the deceased. 14. The other contention of the appellants is that as per postmortem report and evidence of PW.17, Dr. Kedar Garg, the cause of death was not the injury alone, but head injury with septicemia is the cause of death and Dr. Kedar Garg has also admitted in his cross-examination that by good medical treatment, the patent could be saved, hence, the case does not fall under Section 302 IPC and reliance has been placed on 2007(3) R.C.C. 1046 = RLW 2005-06 (Suppl.) Raj. 844, Rajkumar @ Rajesh @ Raju & Anr. vs. State of Rajasthan. 15. Per contra, contention of the complainant is that according to Section 299 Explanation 2, the accused cannot raise the contention that he did not cause a death as they have been prevented by resorting to proper remedies and skilful treatment and his further contention is that the appellants have caused injury on vital part of the deceased and as a result of which the deceased has died, hence, defence of improper medical evidence is not available to the appellants looking to the law provided under Section 299 Explanation 2 and reliance has been placed on 1993(3) Crimes 967, Pappachan @ Joseph vs. State of Kerala. 16. 16. There is no dispute about this legal position, but here in the present case, the appellants have not raised the defence that due to ill treatment the deceased has died, but it is he case of the prosecution that injury No.1 along with septicemia is the cause of death and when something has intervened between the death and the injury caused and the medical opinion is hesitant with regard to the cause of death, the case will fall under Part 1 of 304 IPC and reliance can be placed on AIR 1977 SC 2267 , Kishore Singh vs. State of Madhya Pradesh, wherein para No.15, it has been held: "Having regard to the entire evidence and the circumstances of the case and in view of the somewhat hesitant medical opinion with regard to the cause of death given by the three doctors and the further fact that the deceased died a month after the occurrence, we think that clause "3rdly of Sec. 300, I.P.C. has not been established beyond reasonable doubt in this case. The evidence fulfils one of the ingredients of Section 299, namely, that the appellants caused the death by doing an act with the intention of causing such bodily injury as is likely to cause death as deposed to by the Surgeon (PW.12)". 17. Looking to the above, here in the present case, primary intention of the unlawful assembly was to dispossess the complainant party. Their aim was to assault Samundar Singh and when Akhe Singh and others have intervened, fatal injuries have been caused to Akhe Singh. There was no repetition of injury by any one of the appellants and cause of death was not only the fatal injury but along with septicemia which caused the death and that too after 11 days. The injury No.1 was not the immediate cause of the death, but after 11 days the deceased had died, hence, looking to the nature of the injury including the medical opinion and other evidence, the conviction of the appellants Bhagwant Singh be converted under Section 304 Part 1 and at the same time another appellant Prakash has not inflicted the fatal injury. Injury No.2 has not been opined by the Medical opinion as fatal, hence, his conviction be converted under Section 304 Part 1 read with Section 149. 18. Injury No.2 has not been opined by the Medical opinion as fatal, hence, his conviction be converted under Section 304 Part 1 read with Section 149. 18. As stated, the appellants Makhan, Member, Yadram and Atar Singh have also inflicted various injuries to the injured named above and Court below has rightly scanned the evidence available on record and also the injuries sustained by ten injured persons, specific injuries have been attributed to them. It cannot be said that other appellants were not sharing the common object of the assembly as they were having deadly weapons with them and all of them inflicted injuries to various injured. It can safely be concluded that they were also sharing the same object with Bhagwat Singh, Prakash etc. hence, conviction of Atar Singh, Makhan, Member and Yadram deserves to be converted from Section 302 IPC to Section 304 Part 1 read with Section 149. 19. As regard appellant Murari, Lambari @ Arun Singh and Bhuripal it has vehemently argued by the counsel for the appellants that of Lambari @ Arun Singh and Bhuripal, no specific role has been stated in FIR. None of the eye-witness has stated any overt act as regard Lambari @ Arun Singh and Bhuripal. Only PW.4 Khema has stated that for Bhuripal has inflicted lathi blow on his hand, but at the same time, this injury has also been attributed to Hansraj who has been acquitted by the trial Court, hence, no specific injury has been attributed to appellant Bhuripal and in FIR also no specific roll of Bhuripal has been stated. Same is the situation with appellant Lambari @ Arun Singh. As regard Murari in FIR, it has been stated hat he has inflicted Pharsa blow to Laxman Kaur, but Laxman Kaur has not stated that any Pharsa blow has been inflicted upon her and PW.9 Dr. B.L. Meena, who has examined Laxman Kaur and prepared the injury report Ex.P/56, speaks itself that Laxman Kaur has not received any sharp weapon injury. Laxman Kaur has received only one injury on right frontal region and which also by blunt weapon and simple in nature, hence, as regard Murari, Lambari @ Arun Singh and Bhuripal, the prosecution has failed to prove his guilt. Laxman Kaur has received only one injury on right frontal region and which also by blunt weapon and simple in nature, hence, as regard Murari, Lambari @ Arun Singh and Bhuripal, the prosecution has failed to prove his guilt. The contention of the learned public prosecutor and counsel for the complainant that these three were members of the unlawful assembly and hence without assigning any specific role, the conviction could be recorded. There is no dispute about this legal position, but as it can be gathered that there is a general tenancy to over implicate or false implication and without any specific role or attribution, conviction is not safe and here in the present case, no specific role or act has been attributed to these three appellants, hence, conviction of these three appellants could not be sustained. 20. The contention of the complainant is that respondent No.2 to 10 were also the part of unlawful assembly and they reached at the spot and caused the death of Akhe Singh and ten others were sustained injuries, hence, he acquittal of the respondents is bad in law. 21. Per contra, the contention of the respondents is that the Court below has rightly scanned the evidence. As regard respondent Rajendra Singh, Lalaram has stated that he inflicted Pharsa blow on his right leg, but this fact does not contain in FIR or statement of Rajendra. Injury to Bhagwani has also been attributed to this respondent, but corresponding injury has not been found to Bhagwani. As regard respondents Mohan, Lakhan and Shankar, no overt act has been attributed to them in FIR, and none of the witnesses has stated any overt act of them. Same is the situation with other respondents. No specific injury has been attributed to them in FIR or in the statement of the eye-witnesses. PW.4 Khema has stated that Bhuripal has inflicted Lathi blow on his hand, but in FIR this injury has been attributed to respondent Bhanwar hat he has inflicted Pharsa blow on Shibbo, but Shibbo has not been produced as prosecution witness, he was died and the Court below has rightly appreciated the evidence. 22. PW.4 Khema has stated that Bhuripal has inflicted Lathi blow on his hand, but in FIR this injury has been attributed to respondent Bhanwar hat he has inflicted Pharsa blow on Shibbo, but Shibbo has not been produced as prosecution witness, he was died and the Court below has rightly appreciated the evidence. 22. There is no dispute about the legal position that member of unlawful assembly sharing common object would be liable vicariously without proof of overt act, but there is a general tendency of false implication, hence, overt act or other connecting circumstance is always prudent to have and the Court below was conscious of the fact that anything more than only presence is needed in regard to particular accused. There is no infirmity in the finding of Lower Court as regard to the acquittal of the respondent Nos.2 to 10. The presumption of innocence was in favour of the respondents which has been further fortified by the Court below and to rebut this presumption a clinching evidence should be shown, but as scanned, there is no sound evidence to convict the respondents for the crime. There is no infirmity in reasoning and conclusion of the Court below qua the respondents. 23. In the conclusion, the appeal is partly allowed as under: Appellant Bhagwat Singh: His conviction is converted from 302 to 304 Part1; Appellant Prakash @ Omprakash: His conviction is converted from 302 to 304 Part 1 read with Section 149 IPC; Appellant Atar Singh: His conviction also stands converted for 304 Part 1 read with Section 149 IPC; Appellant Makhan: His conviction also stands converted for 304 Part 1 read with Section 149 IPC; Appellant Member: His conviction also stands converted for 304 Part 1 read with Section 149 IPC; Appellant Yadram: His conviction also stands converted for 304 Part 1 read with Section 149 IPC; 24. All the aforesaid appellants will suffer rigorous imprisonment of ten years and fine of Rs.2500/-; and in default of payment of fine one year simple imprisonment for all other charges, conviction and sentence of the above appellants is confirmed. 25. Appellants Makhan, Member, Atar Singh and Yadram will surrender before the Court below for serving the remaining sentence. 26. Appellant Murari is acquitted from the charges under Sections 148, 323, 324/149, 325/149, 326/149, 307/149, 302/149 IPC. He is on bail, his bail bonds stands cancelled; 27. 25. Appellants Makhan, Member, Atar Singh and Yadram will surrender before the Court below for serving the remaining sentence. 26. Appellant Murari is acquitted from the charges under Sections 148, 323, 324/149, 325/149, 326/149, 307/149, 302/149 IPC. He is on bail, his bail bonds stands cancelled; 27. Appellants Lambari @ Arun Singh and Bhuripal are acquitted from the charges under Sections 147, 323, 324/149, 325/149, 326/149, 307/149 & 302/149 respectively. They are on bail, their bail bonds are cancelled. 28. The revision petition filed by complainant stands dismissed. 29. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, accused-appellants Murari, Lambari @ Arun Singh and Bhuripal are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellants, on receipt of notice thereof, shall appear before the Supreme Court.