JUDGMENT 1. - This matter relates to F.I.R. No. 104/2008 under Section 1302 of Indian Penal Code etc. lodged at Police Station, Sadar Pali. After I investigation, the police had submitted a charge-sheet under Section 302 of I India Penal Code etc. against all the five accused-appellants. Sessions Case No. 134/2008 was registered on the basis of the charge-sheet in the Court of Addl I Sessions Judge (Fast Track) No. 2, Pali and, after trial, by the judgment dated 128.2.2011, that Court has convicted and sentenced all the five accusedI appellants as follows:- (1) (2) Vajaram Bheemaram ) (i) Section 302 I.P.C. : Life imprisonment with a fine of Rs. 5000 and in default of payment of fine, six months' simple imprisonment ) (ii) Section 148 I.P.C. : Two years' rigorous imprisonment with a fine of Rs. 1000 and in default of payment of fine, two months' simple imprisonment (iii) Section 341 I.P.C. : Three months' simple imprisonment with a fine of Rs. 500 and in default of payment of fine, one month's simple imprisonment. (3) (4) (5) Jugtaram Rawatram Devaram) ) Section 325/149 302/149 I.P.C. : Life imprisonment with a fine of Rs. 5000 and in default of payment of fine, six months' simple imprisonment. ) ) (ii) Section 148 I.P.C. : Two years' rigorous imprisonment with a fine or Rs. 1000 and in default of payment of fine, two months' simple imprisonment (iii) Section 341 I.P.C. : Three months' simple imprisonment with a fine of Rs. 500 and in default of payment of fine, one month's simple imprisonment. 2. All the five accused-appellants have challenge the judgment dated 28.2.2011 in this D.B. Criminal Appeal and it has been argued on their behalf that if the plea of alibi raised by all the accused-appellants in the Trial Court is not believed by the Appellate Court also, then they may be punished at the most either under Section 325 or under Section 325/149 of Indian Penal Code in place of Section 302 or Section 302/149 of Indian Penal Code. No forceful argument has been raised on behalf of the accused-appellants against their convictions and sentences passed under Sections 148 and 341 of Indian Penal Code. 3. We have heard the arguments of both the sides. We have perused the record of the case and we have perused the impugned judgment as well. 4. No forceful argument has been raised on behalf of the accused-appellants against their convictions and sentences passed under Sections 148 and 341 of Indian Penal Code. 3. We have heard the arguments of both the sides. We have perused the record of the case and we have perused the impugned judgment as well. 4. As per the prosecution story, as given in the F.I.R. which was lodged by Sona Ram, who was younger brother of deceased Ugama Ram, on 19.6.2008 near Hanuman Temple, at about 8 P.M., he saw Vajaram, Jugtaram, Rawatram and Devaram all sons of Pabudan Devasi and Bheemaram S/o Devaram having lathis and 'khunt' in their hands and he saw that all the five accused-persons were beating his brother Ugamaram who was lying down on the floor in injured condition. All the accused ran away when they saw Hardev and Sonaram reaching the spot. It was further mentioned in the F.l.R that Hardev and Sonaram managed to call Neelam Singh to carry the injured in unconscious condition to the hospital on a motor cycle where he succumbed to his injuries. It was also mentioned in the F.I.R. that because of old enmity between the parties, there was an other criminal case also which was pending between the parties and for that reason Ugamaram was beaten by the accused-persons. All the accused- Persons had denied the charge in the Trial Court and they had also raised the plea of alibi at the time of the incident during trial. To substantiate the plea of ilibi DW-1 Praveen Singh, DW-4 Teja Ram, DW-5 Kheema Ram and DW-6 Bagh Singh have been produced as defence witnesses on behalf of the accused-appellants but we are sorry to say that none of these witnesses are reliable and it appears that for one reason or the other they want unlawfully to save the accused-appellants from the punishment and so they are telling false stories and so the plea of alibi raised by all the accused-appellants is not believable. 5. The alternative argument of the accused-appellants is that even if they were present on the spot, they were not seen by Sonaram (PW-2) or Hardev (PW-9) at the time of the incident. 5. The alternative argument of the accused-appellants is that even if they were present on the spot, they were not seen by Sonaram (PW-2) or Hardev (PW-9) at the time of the incident. It has been argued that Sonaram and Hardev are false eye-witnesses because as per the defence arguments, these witnesses lad reached after the incident had occurred and they had not seen any of the accused-appellants while beating Ugamaram. In this regard, we have examined the statement of PW-2 Sonaram and PW-9 Hardev. 6. PW-2 Sonaram is author of the F.I.R. He is brother of deceased Ugamaram. He has specifically narrated the full incident. He has stated that all the five accused-appellants were beating his brother. He cannot say the specific overt-act of each accused-appellant in specific words but he says that all the accused-appellants were conjointly beating his brother when he along with Hardev (PW-9) reached the spot, all the accused-appellants escaped and ran away from the spot. In the cross-examination of witness Sonaram (PW-2), nothing has come to disprove his presence on the spot. 7. PW-9 Hardev has also stated that his brother Ugamaram was badly crying and when he rushed to the spot along with Sonaram then he found that all the five accused-appellants were conjointly beating his brother and they managed to run away leaving his brother in an injured condition. He also states that Bheemaram and Vajaram were having 'khunts' in their hands. Even after lengthy cross-examination, the defence has not been able to disprove the presence of PW-9 Hardev on the spot and it can be said that Hardev also is not a false eyewitness as has been argued by the learned Counsel for the appellants 8. Then comes next argument of the learned Counsel for the appellants. It has been vehemently argued before us that the common object of the accused-persons might have been to give a severe beating to Ugamaram but their common object could not have been to cause death of Ugamaram because had it been so, they would not have run away from the spot and they being in large number could have faced Sonaram and Hardev also and would have left the spot only after killing their enemy. 9. In the light of the argument advanced by the learned Counsel for the appellants, we would like to go through the statement of Dr. 9. In the light of the argument advanced by the learned Counsel for the appellants, we would like to go through the statement of Dr. Narpat Singh Rajpurohit (PW-6), who states that on 20.6.2008 at 9.00 A.M. he had conducted the post-mortem of Ugamaram S/o Ghewarram Devasi aged 34 years resident of Giradada. He has stated that following injuries were found on the body of the deceased: (1) Incised wound of 4cm x 2cm 22cm on skull, (2) Lacerated wound 3cm x 2cm x 1cm on front part of left forehead. (3) Lacerated wound 2cm x 2cm x 1cm on the back of right side of head. (4) Lacerated wound 2cm x 1cm x 1cm on the back of right side of head. (5) Lacerated wound 1cm x 1cm x 1cm on left blow, (6) Lacerated wound 1cm x 1cm x 0.5cm on left leg, (7) Lacerated wound 1cm x 1cm x 0.5cm on right leg, (8) Contusion 2cm x 1cm on left eye (9) Contusion 6cm x 2cm on the waist, (10) Abrasion 2cm x 3cm on left side of forehead, (11) Abrasion 2cm x 4cm on right side of chest, (12) Fracture in fronto-parietal bone of skull, (13) Fracture in seventh, eighth and ninth rib of left side of chest. Following internal injuries were also found on the body of deceased Ugamaram:- (1) Contusion 4cm x 2cm x 1cm in frontal area of brain (2) Contusion 3cm x 2cm x 1cm in lung of right side, (3) Contusion 2cm x 1cm x 1cm in right lung with blood collected in (plura, (4) Cavity of brain was having collected blood, ((5) No legature mark on neck. 10. All injuries were ante-mortem and the death of Ugamaram was due to his head injury. The post-mortem report Ex.P-8 was exhibited by Dr. Narpat Singh. He states that Injuries Nos. 3, 4, 5, 6, 7, 8, 9, 10 and 11 were simple in nature and caused by blunt weapons. Injury No. 1 was simple in nature and caused by sharp-edged weapon. Injuries No. 2, 12 and 13 were grievous in nature and caused by blunt weapons. In his cross-examination. Dr. Narpat Singh has stated that if the injured would have been supplied blood in time, then his life could have been saved. 11. Thus, the statement of Dr. Injury No. 1 was simple in nature and caused by sharp-edged weapon. Injuries No. 2, 12 and 13 were grievous in nature and caused by blunt weapons. In his cross-examination. Dr. Narpat Singh has stated that if the injured would have been supplied blood in time, then his life could have been saved. 11. Thus, the statement of Dr. Narpat Singh (PW-6) is in support of the argument advanced by the learned Counsel of the appellants that none of the injuries caused to Ugamaram was in itself sufficient to cause his death and it was only the cumulative impact of all the injuries and particularly because of the head injury caused to the victim, he succumbed. 12. The prosecution witnesses have not been able to specify in their statements that which specific injury was caused by which of the accused-appellants. The witnesses have not been able to clarify that which of the accused-appellants was responsible for causing the head injury to Ugamaram. Common objected to cause death of Ugamaram has also not been duly proved by the prosecution witness before the Trial Court. 13. If we summarily go through the statements of the remaining prosecution witnesses in the case, then we come to know that PW-1 Kanaram, PW-14 Jai Kishan, LC and PW-15 Arjun Kumar are format witnesses carrying samples to FSL PW-10 Hari Singh, PW-11 Madan Singh and PW-14 Jai Kishan are hostile witnesses. PW-12 Achala Ram also states nothing about the incident. PW-13 Meherban Singh also states nothing about the incident. PW-17 Narayan Singh, ASI is a formal witness who had registered the F.I.R. No.104/2008. 14. DW-2 Hidayat Ali, Jailer of District Jail, Pali was examined by defence. He states nothing about the incident. DW-3 Hanwant Singh was also examined by the defence in the Trial Court and he states that he had seen Ugamaram in an injured condition who was saying that while cutting a neem tree, he had fallen down and got some injuries. He also does not appear to be a true witness in the circumstance of the case. 15. PW-2 Sonaram and PW-9 Hardev are brothers of Ugamaram and they have proved beyond reasonable doubt that Ugamaram succumbed because of the injuries caused to him conjointly by all the five accused-appellants, though they have not been able to specify the specific overt-act of each of the accused-appellant. 15. PW-2 Sonaram and PW-9 Hardev are brothers of Ugamaram and they have proved beyond reasonable doubt that Ugamaram succumbed because of the injuries caused to him conjointly by all the five accused-appellants, though they have not been able to specify the specific overt-act of each of the accused-appellant. Both these witnesses have not said anywhere in their statements that the common intention or common object of the accused-appellants was to cause the death of Ugamaram but both of them have repeatedly stated with firmness that all the accused-appellants had a common object of beating their brother Ugamram and because of cumulative effect of injuries caused during beating by lathis and 'khunts', their brother had expired. 16. PW-16, Gopal Singh is the then S.H.O of Police Station, Sadar Pali. He has proved the formalities of the investigation. He states that all the five accused-appellants were arrested by him. He further states that on lathi or 'khunt' had been recovered by him from each of the accused-appellants. 17. The FSL Report (Ex.P-51) has also been exhibited in this case which proves that stains of Blood Group-'O' of human origin were found in blood smeared soil, in all the three lathis recovered from the accused-appellants, in one 'khunt' and in 'kamij' and 'baniyan' of the deceased. Blood stains of human origin were also found on 'dhoti', under-wear and other 'khunt' but their blood group could not be detected. 18. Thus, in this case, it can be said that the prosecution had conclusively proved that because of common object and because of beating given by all the five accused-appellants, Ugamaram succumbed. It is also proved that common object of all the five accused-appellants was to give a severe beating only and they were not having any common intention or common object to cause the death of Ugamaram. All the accused-persons were having lathis or 'khunts' in their hands which may be called dangerous weapons for the purpose of Section 148 of Indian Penal Code. The complainant party also had suffered conviction in a case of Section 307 of Indian Penal Code sometimes back and for that reason both the parties were having inimical relations since long. 19. All the accused-persons were having lathis or 'khunts' in their hands which may be called dangerous weapons for the purpose of Section 148 of Indian Penal Code. The complainant party also had suffered conviction in a case of Section 307 of Indian Penal Code sometimes back and for that reason both the parties were having inimical relations since long. 19. In the circumstances of the case, we deem it fit to alter the conviction of all the five accused-appellant from Section 302 of Indian Penal Code and Section 302/149 of Indian Penal Code to Section 325/149 of Indian Penal Code. The conviction under Sections 148 and 341 of Indian Penal Code shall remain undisturbed. 20. Our view gets support from the following rulings also:- (1) State of Haryana v. Prabhu, AIR 1979 SC 1019 : (1979) 4 SCC 189 . In this case, common object of the unlawful assembly was found merely to give a beating to the members of the complainant party. There was no common object to commit the murder of the victim (since deceased). All the members of the mob were armed with lathis. They used their lathis in assaulting the complainant party. The nature of the injuries clearly showed, neither the common object was to kill nor it was possible to infer, that any member of the mob had the knowledge that death was likely to be caused in prosecution of the common object of the assault. It was held by the Apex Court that in the circumstances of the case, despite death of the victim, conviction under Section 325/149 of Indian Penal Code only was proper. (2) Ninaji Raoji Baudha & Anr. v. State of Maharashtra, AIR 1976 SC 1537 . In this case, there was no reliable evidence on record to prove whether the fatal blow on the head of deceased was caused by A or B. Their intention was also to cause injury to the son of the deceased and not to deceased himself. The other blow did not fall on any vital part of the body and in absence of evidence to establish that their common intention was to cause death, it appeared that the accused had the common intention of causing grievous injury with the lathi and the 'khunt'. They could therefore, be convicted of an offence only under Section 325/34 of Indian Penal Code. (3) Shri Kishan & Ors. to. They could therefore, be convicted of an offence only under Section 325/34 of Indian Penal Code. (3) Shri Kishan & Ors. to. State of U.P., AIR 1972 SC 2056 Common intention of the accused-persons was to give a severe beating. There was no material on record to show as to who gave the fatal blow. The injuries were caused by lathis only. In the circumstances of the case, Hon'ble the Supreme Court altered the conviction of the accused-persons from 302/34 of Indian Penal Code to 325/34 of Indian Penal Code. (4) Ram Lal v. Delhi Administration, AIR 1972 SC 2462 . In this case the prosecution evidence clearly disclosed that two lathi blows had been given on the head of the victim and there was no evidence that which of these two blows was given by the appellant, the benefit of doubt must go to him because he may have given the fatal blow or he may have given the blow which did not prove fatal. In the circumstances, the appellant's conviction under Section 302 of Indian Penal Code was plainly incorrect. He and his companions had the common intention to cause grievous hurt only and hence could be convicted only under Section 325 of Indian Penal Code. The conviction of the accused-appellant under Section 302 of Indian Penal Code was set aside by the Apex Court and he was convicted under Section 325/34 of Indian Penal Code only because the High Court had given the clear finding that common object of the accused-persons was not to cause death but only to cause grievous hurt. (5) Shailesh v. State, 1995 Cr.L.J. 914 (Bombay) In this case the accused caused injury to the deceased without any knowledge that such injury is likely to cause death. Conviction of the accused was charged from culpable homicide not amounting to murder under Section 304 Part II of Indian Penal Code to one under Section 325 of Indian Penal Code as the accused had used only the blunt weapon to cause the injuries. (6) Khagpati Gaunda v. State 1996 Cri.L.J. 2714 (Orrisa) In this case also, the accused were charged under Section 302/34 of Indian Penal Code and one of the accused was acquitted by the Trial Court on the ground of benefit of doubt. (6) Khagpati Gaunda v. State 1996 Cri.L.J. 2714 (Orrisa) In this case also, the accused were charged under Section 302/34 of Indian Penal Code and one of the accused was acquitted by the Trial Court on the ground of benefit of doubt. Since exact nature of injury caused by the remaining accused was not established, his conviction under Section 302 of Indian Penal Code simpliciter was altered to one under Section 325 of Indian Penal Code. 21. Hence, this criminal appeal filed by all the five accused-appellants is partly accepted and while upholding their convictions and sentences under Sections 148 and 341 of Indian Penal Code, as ordered by the Trial Court, their convictions and sentences under Section 302 or 302/149 of Indian Penal code are hereby quashed and set aside and in its place, all of them are hereby convicted under Section 325/149 of Indian Penal Code, for which each of them will have to suffer a sentence of seven years rigorous imprisonment along with a fine of Rs. 50,000/- (Rs. fifty thousand) each on this count, in default of payment of fine of Rs. 50,000/-, each of them will have to suffer ten months' additional rigorous imprisonment. All the substantive sentences will run concurrently. The amount of fine if deposited, will be paid to the widow of deceased Ugamarm S/o Ghewarram Devasi, resident of Giradada, District Pali through S.H.O. of Police Station, Sadar, Pali. It will be the duty of the S.H.O. of Police Station, Sadar, Pali to produce the widow of Ugamaram in the Trial Court for this purpose as and when called. The benefit of Section 428 of Code of Criminal Procedure will be available to all the accused-appellants as per the law and procedure. Copy of this judgment be given to each of the accused-appellants immediately as per the procedure, one copy of the judgment be sent to the concerned Jail Superintendent also where all the five accused-appellants are undergoing the sentence. One copy of this judgment be sent to the S.H.O. of Police Station, Sadar Pali by registered post. One copy of judgment along with the record of the case be sent back to the Trial Court immediately. The complainant party be also informed about contents of this judgment by the Registry.Appeal partly allowed. *******