JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. The convicts-appellants are in appeal before us challenging the judgment and order dated 31.10.2009 rendered by learned Sessions Judge, Tehri Garhwal in Sessions Trial No.42 of 2007, “State Vs. Gautam Singh & others” (crime no.3 of 2007, Revenue Police Circle Kamand, Tehsil Tehri, District Tehri Garhwal). The said trial resulted into conviction of all the appellants/accused for the offences under section 147 and 302 r/w Section 149 IPC, wherefor they have appropriately been sentenced. 2. In the instant case, deceased Digpal Chand was a youth of 25 years who succumbed to his injuries allegedly caused by the accused persons on 21.3.2007 at about 6:20 PM by pelting pieces of bricks. At the relevant point of time, informant Shankar Chand (PW6) was proceeding for his home. Noticing the big assembly of persons at Chamba-Dharasu motor-road, he came at the spot where he found a boy in the injured state who was writhing in pains. The members of that crowd disclosed informant that the injured was severely beaten by 10-15 students hailing from village Bandrakoti, who were appearing in their examination at village Kamand. Subsequently thereafter, the complainant, with the help of PW1 Rajveer Chand and others, took the victim at Primary Health Center, Chham, where he was declared brought dead. With the same averments, Shankar Chand Ramola lodged the FIR (Ex.Ka-12) on the same day at 11:10 PM at the concerned Patwari outpost. Chick report thereof is Ex.Ka-3. 3. The criminal justice machinery then set into motion. On the next day (22.3.2007) at 8:30 AM, the inquest report (Ex.Ka-5) could be prepared. As per the opinion of members of that report, death of deceased took place on account of severe injuries which he sustained on the back of his head, nonetheless, they all advised for the post-mortem in order to detect the real cause of death. Thereafter, autopsy (Ex.Ka-1) was conducted in the District Hospital, Baurari, Tehri Garhwal by PW4 Dr. Manoj Badoni at 4:30 PM of the same day, who found the following ante-mortem injuries on the person of deceased:- A. “Lacerated wound- in center of upper part of occipital region- 3.0 cm x 2.0 cm x bone deep. On dissection- bone found fractured under the wound. On opening the skull, meninges are congested, brain is congested, haematoma present over both cerebral hemisphere. On dissection- bone found fractured under the wound. On opening the skull, meninges are congested, brain is congested, haematoma present over both cerebral hemisphere. B. Contusion over ante-lateral aspect of left side of chest- 10.0 cm x 8.0 cm – on dissection- 6, 7, 8, 9 and 10th ribs found fractured. C. Swelling present at left side of face and lips. On dissection- left ramus of mandible found fractured. D. Right black eye was found closed, reddish in colour. In the opinion of the medical officer, cause of death was Coma due to ante-mortem injury no.1, caused by blow of hard and blunt object.” 4. During the course of investigation, the Investigating Officer recovered the bloodstained and simple soil from the spot. Memo of that recovery is Ex.Ka-13. Ex.Ka-14 is the memo of recovery of five pieces of bricks, which were used in the crime, but those had been washed out by rains. The plain and bloodstained soil, besides the clothes of deceased, was sent by the police for the purpose of chemical examination. Report given by the Scientific Laboratory, Dehradun is Ex.Ka.11. The investigation culminated into submission of a chargesheet (Ex.Ka-17) against the appellants for the offences u/s 147/302/34 IPC. A separate chargesheet was filed against co-accused Praveen, Anil and Manoj being Juveniles on the date of occurrence and they were, accordingly, sent for being tried by the concerned Juvenile Justice Board. 5. On 19th September, 2007, learned Sessions Judge, Tehri Garhwal framed charge against the appellants u/s 147 and 302 r/w Section 149 IPC. They abjured their guilt and claimed trial. 6. Prosecution has examined as many as eight witnesses in this case, who are PW1 Rajveer Chand, PW2 Praveen Chand Ramola, PW3 Dalveer Chand Ramola, PW4 Dr. Manoj Badoni (who conducted autopsy), PW5 Patwari Sigrup Singh Negi (who started investigation), PW6 Shankar Chand (complainant), PW7 Sobat Singh (witness of inquest) and PW9 Patwari Dinesh Kumar Saini (who concluded the investigation). 7. After closure of prosecution evidence, statements of the appellants/accused were recorded u/s 313 Cr.P.C. They have simply pleaded false implication on the ground that they belong to schedule caste community whereas the witnesses are the members of upper caste. However, no oral or documentary evidence was led in defence. 8. The trial court, vide the impugned judgment and order, has convicted and sentenced the appellants/accused, as afore-stated. 9. However, no oral or documentary evidence was led in defence. 8. The trial court, vide the impugned judgment and order, has convicted and sentenced the appellants/accused, as afore-stated. 9. We have heard learned counsel for the parties and have rendered our anxious consideration on the merits of the case as well as perused the entire evidence available on record carefully nay findings recorded by the trial Judge. 10. On going through the evidence of PW4 Dr. Manoj Badoni, who conducted autopsy on the body of deceased, it transpires that the death of deceased had taken place on account of ante-mortem injury no.1 viz. a lacerated wound in the center of upper part of occipital region of victim. This injury, being on the vital part, was fatal one. In the opinion of the medical officer, that injury had been caused with a blow of some hard and blunt object i.e. piece of a brick allegedly thrown towards the victim. 11. PW1 Rajveer Chand has stated in his examination-in-chief that the assailants were few boys hailing from a nearby village Bandrakoti. Out of them, he could identify the present appellants viz. Gautam, Srikant, Sohan Lal, Pyar Singh, but there were few others also. He further states that these assailants were barehanded who were having a scuffle with the deceased. Efforts were made by PW1 along with others to mollify the quarrel but in vain. In his cross-examination, the witness states that he cannot remember as to who had thrown the brick which hit Digpal. He further states that the quarrel persisted for about 1-2 minutes. After felling Digpal on the earth, assembled crowd shattered from there. In the above conspectus, the testimony of PW1 is unable to pinpoint the criminal accountability, as he could not name decisively any of the assailants, who gave this fatal blow of brick whereby the injury no.1 was caused. He also could not disclose the name of all the assailants who participated in the quarrel, but at the same time, has not denied the presence of other accused persons, who could be find out by the Investigating Officer during investigation, and for them, a chargesheet was separately submitted to the Juvenile Board for trial, as afore-stated. Thus, we find that there was an assembly of seven persons, the object thereof was not though pre-meditated one but it was to beat the victim Digpal at any rate. Thus, we find that there was an assembly of seven persons, the object thereof was not though pre-meditated one but it was to beat the victim Digpal at any rate. This common object was developed at the spot itself, inasmuch as, the accused persons had some altercations with the deceased being envious that he was offered tea by some girl who was also appearing in the examination and residing in the neighbourhood. This offer of tea by some girl to the victim in the morning, made the accused persons envious and enraged, as has been disclosed by PW2 Praveen Chand Ramola in his cross-examination. So, it became the motive which drove the accused persons to assail the victim. 12. PW2 Praveen Chand Ramola is the eyewitness of the occurrence, who was well acquainted with the assailants. In his deposition, he names only these four appellants while does not deny the presence of their other companions on the spot at the relevant point of time. He has clearly stated that all these boys were quarreling and pelting stones upon Digpal. In such altercation, one of the brick caused this fatal injury. Digpal then fell on the earth. The witness further states that he along with Madan, who was also present on the spot, had sustained injuries due to blow of pieces of bricks. 13. PW3 Dalveer Chand Ramola is yet another eyewitness of the incident. He has corroborated the version, as deposed by PW1 and PW2. He has ratified the fact of offering tea by one Km. Deepa, who was residing along with her two companion girls in the adjoining rented accommodation for examination purpose. This scene was witnessed by the assailants which made them infuriated. The witness further deposes that these assailants began to quarrel, which escalated into beating of victim Digpal at that very moment. Somehow, the quarrel could be extinguished at the intervention of the witnesses. After the morning incident of beating, assailants with other companions, hailing from same village Bandrakoti, caught hold of victim in the evening and began to belabour him again with bricks/stones. Out of these assailants, appellants along with one Praveen (Juvenile) have specifically been named. PW3 again strived to intervene but could not successful because the assailants were plenty in number. After the morning incident of beating, assailants with other companions, hailing from same village Bandrakoti, caught hold of victim in the evening and began to belabour him again with bricks/stones. Out of these assailants, appellants along with one Praveen (Juvenile) have specifically been named. PW3 again strived to intervene but could not successful because the assailants were plenty in number. The above deposition clearly reflects that all the appellants, along with few others, were in the form of ‘unlawful assembly’ and their motive was at least to settle the score with the victim, since he could be saved in the morning by the interveners. The assailants, finding no weapon with them, began to shower pieces of bricks/stones against the victim from a close distance, which ultimately resulted into his death. 14. PW4 is Dr. Manoj Badoni, who conducted the autopsy on the person of deceased, and recorded the ante-mortem injuries, as afore-mentioned. 15. PW5 Sigrup Singh Negi is the Patwari who has conducted the investigation of the case in part. Later on, the investigation was transferred from him and was entrusted to PW8. 16. PW6 is Shankar Chand who reached at the spot when the seriously injured Digpal was writhing in pains lying on the road. This witness along with PW1 Rajveer Chand and others, shifted the victim to the Primary Health Center, Chham. The medical officer examined the victim and declared him dead. He has proved the fact of lodging report at the concerned Patwari outpost. 17. PW7 is Sobat Singh. He is the witness of inquest report (Ex.Ka-5), which he has proved. 18. PW8 is Patwari Dinesh Kumar Saini, who has concluded the investigation on submission of chargesheet (Ex.Ka-17) against the appellants/accused. 19. On a considerate analysis of the evidence available on record, we feel that all the appellants/accused did not have any pre-meditated plan to cause death of victim Digpal. Rather, they simply wanted to settle their scores with him, inasmuch as, in the incident of morning hours, the quarrel could be pacified by the interveners. So, in the evening of 21.03.2007, the appellants, with other accomplices, assembled and surrounded the victim. Quarrel started and in this scenario, either all, or most of the assailants, began to pelt stones/pieces of bricks lying nearby. One blow of piece of brick became fatal which caused the injury on the occipital region of head of the victim. So, in the evening of 21.03.2007, the appellants, with other accomplices, assembled and surrounded the victim. Quarrel started and in this scenario, either all, or most of the assailants, began to pelt stones/pieces of bricks lying nearby. One blow of piece of brick became fatal which caused the injury on the occipital region of head of the victim. Thus, in the light of evidence, as discussed hereinabove, we are of the view that all the appellants, though did not have any intention to cause death of the deceased, but they certainly had the knowledge that their such act may cause death or such fatal bodily injury as was likely to cause his death. Therefore, the appellants, being the members of an ‘unlawful assembly’, have rightly been held guilty with the application of Section 149 IPC. At the same time, as we have expressed view that this ‘unlawful assembly’ did not have any intention to commit the murder of victim, we deem it fit and proper to modify the conviction of the appellants from Section 302 IPC to Section 304 (Part II) IPC. 20. Now, looking to the fact that at the time of occurrence, the appellants were the students appearing either in their matriculation or intermediate examination, we are not inclined to send them to the gallows any further. 21. For the forgoing reasons, we allow the appeal in part, and modify the conviction and sentence of the appellants/accused as under: - All the appellants/accused are held guilty for the offences under Section 147 IPC and Section 304 (Part II) r/w Section 149 IPC. For these offences, they are sentenced for the period which has already been undergone by them, either at the stage of appeal, trial, or after their conviction from the trial court till they were set at large by this Court. 22. The appellants are already on bail. They, accordingly, need not surrender. Their bail bonds are cancelled and sureties are discharged. 22. Let a copy of this order along with LCR be sent to the court concerned.