JUDGMENT 1. Three appellants, namely Vijay Kumar son of Arjun Lal, Oma @ Omakant @ Vinod Kumar son of Arjun Lal and Mahesh Kumar son of Kalu Ram along with nine other accused, namely Jagdish son of Ramnath, Makhkhan Lal son of Arjun Lal, Babu Lal son of Prabhati Lal, Ghanshyam son of Jhabarmal, Ramchandra, Yadram, Prakash @ Om Prakash, and Kalu Ram son of Ramnath, and Mrs. Vimli @ Vimla daughter of Arjun Lal, were tried by the court of Additional Session Judge (Fast Track) No. 2, Sikar. The said court vide impugned judgment dated 30.9.2003, had acquitted nine persons, namely Jagdish son of Ramnath, Makhkhan Lal son of Arjun Lal, Babu Lal son of Prabhati Lal, Ghanshyam son of Jhabarmal, Ramchandra, Yadram, Prakash @ Om Prakash, and Kalu Ram son of Ramnath, and Mrs. Vimli @ Vimla daughter of Arjun Lal. However, the trial court convicted the appellants, namely Vijay Kumar son of Arjun Lal, Oma @ Omakant @ Vinod Kumar son of Arjun Lal and Mahesh Kumar son of Kalu Ram under Section 302 read with Section 34 IPC. The court held that since the accused are less than five in numbers, hence no unlawful assembly was constituted, therefore, had applied Section 34 IPC. The appellants, however, were acquitted for the offence under Sections 147, 148, 336, 323/149 and 307/149. 2. The trial court rejected the prayer made by Oma @ Omakant @ Vinod Kumar that due to retrospective operation of the amendment made in the Juvenile Justice Act, 2007, he is to be declared delinquent juvenile in conflict with law. The trial court having held the appellants guilty of offence under Section 302/34 IPC, sentenced them to undergo life imprisonment with fine of Rs. 1000/-; in default thereof to undergo six months' rigorous imprisonment. 3. Mr. A.K. Gupta, the learned counsel for the appellant has submitted that this Bench has to answer following three questions:- (a) whether evidence of witnesses is reliable to sustain conviction of the appellants? (b) If evidence is found trustworthy as to what offence has been committed by the appellants in the facts and circumstances of the case? (c) Whether the benefit of law enunciated in Hari Ram v. State of Rajasthan & Anr. reported in 2009(13) SCC 211 can be extended to the appellants Oma @ Omakant @ Vinod Kumar son of Arjun Lal and Mahesh Kumar son of Kalu Ram. (c) Whether the benefit of law enunciated in Hari Ram v. State of Rajasthan & Anr. reported in 2009(13) SCC 211 can be extended to the appellants Oma @ Omakant @ Vinod Kumar son of Arjun Lal and Mahesh Kumar son of Kalu Ram. 4. Before we answer the above said three questions, it will be necessary for us to notice brief facts of the case : 5. Criminal proceedings were set into motion on the basis of Exhibit P-27, Parcha Bayan of PW-13, Tejaram. The statement of Tejaram, PW-13, was recorded by Ramesh Chand, ASI, PW-17, who at relevant time was posted at police station Neem Ka Thana. ASI, Ramesh Chand, PW-17 stated that on early morning of 26.7.1996 at 2:00 AM, he was sent by SHO, Neem Ka Thana to Kapil Hospital, Neem Ka Thana for recording the statement of injured Tejaram, PW-13. The same was recorded between intervening night of 25/26.7.1996 at 2:50 AM. 6. In his statement, Tejaram, PW-13 stated that on the night of 25.7.1996, three daughters of Ramchandra Balai were to be married at about 10:30 PM. 2-3 persons came in front of their house. They gave abuses and an altercation had ensued. Tejaram and his brother made them see the reason and told them that since in the street daughters and ladies of house are residing, they should not give abuses. Tejaram and his brother had retired for rest in the night. At about 11:00 PM, Vijay Kumar son of Arjun Lal, his brother Oma @ Omakant and Makhkhan Lal, Jagdish, Mahesh, Babulal, Ghanshyam, Vimli, Ramchandra, Yadram, Kaluram and Prakash, who were armed with lathis, axe and empty bottles, came with common intention and started giving abuses while standing in the street. They shouted that Babu lal be called out of the house, as he has insulted their guests, therefore, he will be liquidated and taught a lesson. After hearing noise, brother of the first informant Babu lal came outside and asked as to why they are raising noise. At that time, Vijay Kumar son of Arjun Lal and Babu lal son of Prabhati Lal with an intention to murder had given lathi blow on the head of Babu Lal, brother of Tejaram. Other accused inflicted various injuries with lathis. Jagdish gave an injury with empty bottle. At that time, his brother due to receipt of injuries fell on the spot. Other accused inflicted various injuries with lathis. Jagdish gave an injury with empty bottle. At that time, his brother due to receipt of injuries fell on the spot. Vimli and Mahesh Kumar also gave injuries with lathis to first informant. The accused persons also caused injuries to Kalu, son of the complainant, who had intervened. Due to request made by the ladies, the accused persons left the spot. Occurrence was witnessed by the ladies also. Since the condition of Babu lal deteriorated, he was taken to the Hospital. A grievance was made by the informant that accused in consultation with each other had caused injuries with an intention to cause murder of Babu lal. The accused had also caused injuries on the waist of the first informant and while going had also pelted stones. 7. On the basis of statement made by Tejaram, PW-13, formal FIR, Exhibit P-36, was registered at police station Neem Ka Thana, District Sikar. The above FIR was investigated and charge-sheet was submitted against 12 persons, as stated by us earlier. After conclusion of the investigation, a report under Section 173 Cr.P.C. was submitted. After compliance of the due formalities, the said report along with the accused was committed to the court of Sessions and was entrusted for trial to the court of Additional Session Judge (Fast Track) No. 2, Sikar camp at Neem Ka Thana. The trial court charged the accused for the offence under Sections 147, 148, 323/149, 302/149, 336, and 307/149 IPC. The accused pleaded not guilty and claimed trial. The prosecution in all had examined 24 witnesses. 8. According to Mr. Gupta, the learned counsel for the appellant PW-8, Kalu Ram injured and first informant PW-13, Tejaram injured were examined by the prosecution as eye witnesses. They being stamp witnesses at the place of occurrence are material witnesses for consideration of the court. 9. PW-8, Kalu Ram, stated that about six years ago, the marriage of three daughters of Ramchandra Balai was fixed. The Barat had come from village Dayal ki Nangal, Patan. Welcome of the Barat was arranged in front of their house. At that time his uncle, deceased Babu Lal and his father were in the house. In the night at about 10:30 PM, baraties started exchanging abuses. The Barat had come from village Dayal ki Nangal, Patan. Welcome of the Barat was arranged in front of their house. At that time his uncle, deceased Babu Lal and his father were in the house. In the night at about 10:30 PM, baraties started exchanging abuses. At that time, the deceased Babu Lal and father of the witness PW-8, Kalu Ram, Tejaram, PW-13, told baraties that since in the street ladies are residing, they should not give abuses. At about 11:00 PM, Vijay Kumar, Omakant, Mahesh, Makhkhan Prakash, Jagdish, Yadram, Vimla, Ghanshyam, Babulal, Kaluram, accused came and stated that Babu Lal should be called out of the house. They will finish him, as he had insulted baraties. The accused were armed with wooden sticks. Jagdish was having empty bottle in his hand. Uncle of the witness, Babu Lal came out in the street. The accused said to Babu Lal that you had insulted our baraties, upon which his uncle replied that he had only made a request to the baraties. At that stage, Vijay Kumar gave a lathi blow on the head of Babu lal. Mahesh Kumar and Oma @ Omakant @ Vinod had also caused injuries on the body of uncle. The uncle fell down and Jagdish caused injury with bottle on the head of Babu Lal. PW-8, Kalu Ram and his father Tejaram intervened and they were also caused injures. In cross-examination, it was further stated that since Babu Lal had been profusely bleeding, he was taken to the personal Doctor, named Bodu Ram, who had referred him to Kapil Hospital, Neem Ka Thana. The doctors at Kapil Hospital, Neem Ka Thana, referred him to SMS Hospital, Jaipur. 10. Kalu Ram was cross-examined. Relevant to be noted for us is admission made in the cross-examination that when he came outside, Babu Lal was already lying injured on the ground and in the chowk stones and broken glass was lying scattered. The witness was duly confronted with the statement Exhibit D-29, made by him under Section 161 Cr.P.C., wherein it was not stated that accused came outside the house at 11:00 AM and had called injured outside the house. The witness was duly confronted with the statement Exhibit D-29, made by him under Section 161 Cr.P.C., wherein it was not stated that accused came outside the house at 11:00 AM and had called injured outside the house. The witness further stated that in statement Exhibit D-29, recorded under Section 161 Cr.P.C., he had stated to the police, that Vijay Kumar had given injury on the head and whereas, Jagdish had given injury with the bottle on the head of deceased Babu Lal. The witness could not satisfactorily explain this discrepency. 11. Tejaram, PW-13, reiterated as what was stated by his son Kalu Ram, PW-8. 12. In the cross-examination, the witness was duly confronted with statement Exhibit D-28, wherein it was not stated that Vijay Kumar had caused injury on the head. He further stated that he had told police that after Vijay Kumar had caused injury, Mahesh and Omakant had also caused injury on the head of Babu Lal. He was confronted with this portion of statement Exhibit D-28, where it was so recorded. The witness further stated that he had told the police that Jagdish had given injury with bottle on the head of Babu Lal. 13. Mr. Gupta, the learned counsel for the appellant, has drawn our attention to the testimony of Dr. P.C. Vyas. On 26.7.1996, who was posted as Medical Jurists at SMS, Hospital, Jaipur. This witness had conducted autopsy on the dead body of deceased Babu Lal. He had found seven injuries on the person of Babu Lal. Injury No. 1 was 6 cm long and there were three stitches applied on the front left side of the head and Injury No. 2 was 8 cm long wound having five stitches, on the left side of parietal region. Injuries No. 3, 4 and 5 were abrasion and Injuries No. 6 and 7 were contusion. 14. The learned counsel for the appellant had referred to the cross-examination of the witness, Dr. Injuries No. 3, 4 and 5 were abrasion and Injuries No. 6 and 7 were contusion. 14. The learned counsel for the appellant had referred to the cross-examination of the witness, Dr. P.C. Vyas, PW-22, wherein the witness stated as under:- " e`rd ds flj esa cka;s QzaVy Hkkx ls cka;s iSjkbZVy Hkkx rd yxkrkj QzsDpj vk;k gqvk Fkk] tks ,d gh QszDpj Fkk] flj esa ,d gh QzsDpj Fkk tks ,d gh pksV ls vkuk tkfgj gks jgk Fkk] flj ds mlh QzsDpj ds uhps dh rjg ,DlsV'ku Fkk] e`rd ds flj esa ,d gh mijksDr QszDpj Fkk] ilfy;ksa ds QzsDpj ds lkeus rFkk lkbZM okys Hkkx ij Fks vr% ,d lh/kkbZ esa ugha FksA " 15. It is contended that as per cross-examination of the witness, the injury on the left side of the head starting from frontal to parietal region was one fracture and was one injury. Thus, Mr. Gupta, the learned counsel for the appellant has contended that the injury on the head which had proved fatal is result of one blow. Mr. Gupta has vehemently canvassed that in the present case, fatal injury is attributed to two persons namely Vijay Kumar and Jagdish, therefore, two injured eye witnesses, PW-8, Kalu Ram and PW-13, Tejaram, who have in unison stated that after Vijay Kumar had given a lathi blow on the head of Babu Lal, Jagdish had given a blow with an empty bottle on the head of Babu lal, have not correctly described the occurrence. The learned counsel submits that empty bottle is a heavy weapon compared to the lathi. It is stated that the lathi blow attributed to Vijay Kumar will not cause impact commensurate to the blow caused by the blow given with an empty bottle with force. Counsel submits that the fatal injury on person of deceased Babu Lal has been caused by Jagdish, acquitted accused. 16. Examining wounds No. 1 and 2, which as per the opinion of the Doctor is one injury, we find merit in the contention raised by the learned counsel for the appellant. Injury No. 1, starts from the frontal portion of the left side of the head and goes towards parietal region. There was haematoma present beneath the injury and there was depressed fracture on the parietal region. Injury No. 1, starts from the frontal portion of the left side of the head and goes towards parietal region. There was haematoma present beneath the injury and there was depressed fracture on the parietal region. Thus, the said injury in all probability can be caused with a blow given with the back side of an empty glass bottle. 17. Mr. Gupta, has further submitted that this Court cannot ignore the admission made by the witnesses that in the chowk and in the house, pelted stones were lying and they were also found by the Investigating Officer vide memo Exhibit P.7, and have also been shown in the site plan. Mr. Gupta, stated that witnesses by improving the version had divided the occurrence into two parts i.e. firstly, at 10:30 PM and later at 11:00 PM. Mr. Gupta, stated that in fact, when baraties under the influence of liquor were giving abuses, at that time itself, occurrence had ensued and number of baraties, of whom 12 have been named as accused had caused injuries. Thus, it is contended that it will be difficult to ascertain as to who was the author of the fatal injury, especially when in the FIR, Tejaram had attributed fatal injury to Vijay Kumar and Babu Lal son of Prabhati Lal, acquitted accused. Thus, Mr. Gupta, stated that witnesses have been shifting author of the fatal injury. In the FIR the same was attributed to Vijay Kumar and Babu Lal son of Prabhat Lal, whereas, in the court, the said injury is attributed to Vijay Kumar and Jagdish, acquitted accused. It is contended that in all probability, occurrence had taken place at 10:30 PM, when hot words were exchanged, without any pre-mediation, on the spur of moments and spontaneously, and this fact is borne from pelting of stones by the accused and their recovery by the Investigating Officer. Thus, Mr. Gupta, submits that offence if any will fall under Section 325 IPC and not 302 IPC. 18. Mr. Gupta had relied upon the judgment of Shri Krishan & Others v. State of U.P., AIR 1972 Supreme Court 2056, wherein, it was held as under : "There was no previous enmity between the accused-appellants on the one hand and Seru deceased and Sadaphal PW on the other. The occurrence was the off-shoot of a trifling incident in the nature of a scuffle between two urchins. The occurrence was the off-shoot of a trifling incident in the nature of a scuffle between two urchins. Nandlal, it appears then went weeping and told his father that he had been beaten by Seru and Sadaphal. The four accused thereupon protested to Seru and Sadaphal for the beating given to Nandlal and also belaboured them with lathis. Five injuries were caused to Seru. Apart from the one injury on the head, which proved fatal, the other injuries were not of a very serious nature. Sadaphal had seven injuries all of which were simple in nature. The prosecution evidence, as observed by the High Court, does not indicate as to which one of the accused-appellants inflicted the fatal blow on the head of Seru. As such, none of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under Section 34 of the Indian Penal Code and, as such, we have to find out as to what was the common intention of the accused in furtherance of which they caused injuries to Seru and Sadaphal. In this context we find that the High Court has arrived at the following finding : "There could, therefore, be no doubt that the common intention of the appellants was to give a severe beating to Seru and Sadaphal." The above finding as well as the broad circumstances of the case go to show that the common intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are concerned, they can be held liable only for the injuries which were caused in furtherance of the common intention and not for the fatal injury. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence under Section 325 read with Section 34 Indian Penal Code. As it is not possible on the material on record to find out as to which one of the accused gave the fatal blow, there is no escape from the conclusion that each one of the four accused can only be guilty of the offence under Section 325 read with Section 34 Indian Penal Code. We accordingly alter the conviction of each of the accused-appellants from under Section 302 read with Section 34 Indian Penal Code to that under Section 325 read with Section 34 Indian Penal Code. Each of them is sentenced to undergo rigorous imprisonment for a period of five years on that count. The sentence of rigorous imprisonment for a period of one year awarded to each of the accused under Section 323 read with Section 34 Indian Penal Code would run concurrently with the above sentence. The appeal is allowed to that extent." 19. We have given serious thoughtful consideration to submissions advanced by the learned counsel for the appellant, the learned counsel for the complainant and the learned Public Prosecutor. 20. We cannot become oblivious of the fact that occurrence of the present case was a sudden affair. There was no pre meditation on the part of the accused. It had ensued on the spur of moments when baraties under the influence of liquor started giving abuses. The moment they were restrained, at that time only, in our opinion at 10:30 PM, occurrence had taken place. Considering that the witnesses had implicated number of accused and have named 12 persons and had shifted the author of the fatal injury on numerous occasion. We can safely say that witnesses suffer from blemish of dividing the occurrence into the two parts. The testimony of the witnesses to the extent that occurrence later ensued at 11:00 PM when the accused came and called Babu Lal out of the house is a made up affair. Furthermore, if 12 persons had given injury, the accused would have suffered much more harm. One injury on the head which is opined as Injury Nos. 1 and 2, and other five injuries which have bruises and contusions and fracture of ribs suggests that one member of the unlawful assembly which consisted of 12 persons had given injury on the head. Whether that injury has been given by Jagdish or by Vijay Kumar, it cannot be said with certainty. 1 and 2, and other five injuries which have bruises and contusions and fracture of ribs suggests that one member of the unlawful assembly which consisted of 12 persons had given injury on the head. Whether that injury has been given by Jagdish or by Vijay Kumar, it cannot be said with certainty. Furthermore, it cannot be ignored that occurrence in the present case had taken place 28 years ago. Taking totality of the circumstances, we convert the offence from Section 302/34 IPC to Section 325/34 IPC. 21. Hence, all the appellants, Vijay Kumar, Oma @ Omakant @ Vinod Kumar and Mahesh stand convicted under Section 325/34 IPC and are acquitted of offence under Section 302/34 IPC. 22. We are informed that Vijay Kumar is in custody since the date of judgment and has undergone 11 years, 5 months and 13 days. Maximum sentence which can be imposed under Section 325 IPC is seven years. Thus, we sentence the appellant Vijay Kumar under 325/34 IPC to undergo seven years Rigorous Imprisonment. 23. The learned counsel for the appellant stated that co-ordinate Bench on 10.2.2014, of which one of us J.K. Ranka J., was a member, has already held the accused Oma @ Omakant @ Vinod Kumar and Mahesh to be juvenile. It will be apposite here to reproduce the order dated 10.2.2014 passed by a co-ordinate Bench as under:- "Two separate applications have been filed by the accused appellants Vijay Kumar & Mahesh Kumar u/S.6(2), 7(A) & 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and it has been alleged that the date of birth of accused appellant Vijay Kumar is 10.03.1981 and that of Mahesh Kumar is 01.11.1979 and according to counsel for accused appellants both were above 16 years of age on the alleged date of incident (26.07.1996) but below 18 years and both are entitled to seek protection under the Juvenile Justice (Care & Protection of Children) Act, 2000 and may be declared juvenile. Counsel for the complainant & Public Prosecutor admit this fact that both the accused appellants, who have filed applications seeking determination of their age on the date of incident under the provisions of Act, 2000, were above 16 years but below 18 years on the date of incident i.e. 26.7.1996 and both are enlarged on bail, pending appeal, and what will be its effect where age of both the accused appellants is above 16 years but below 18 years on the date of incident and as regards provisions of the Act, 2000, that may be considered at appropriate stage since the question is no more remain in dispute regarding the age of accused appellants, as being admitted by the parties. Both the accused appellants are above 16 years but below 18 years of age on the date of incident which is 26.07.1996 and the question for determination of their age, in the facts & circumstances of the case, did not arise and both the applications, in terms as indicated above, stand disposed of." 24. Since, Oma @ Omakant @ Vinod Kumar and Mahesh had already been held to be juvenile, there case will be remitted to the concerned Juvenile Justice Board for passing appropriate sentence. Both the appellants shall appear before the Board within three months from today. Considering the fact that the appellants Oma @ Omakant @ Vinod Kumar and Mahesh have been convicted under Section 325/34 IPC, the concerned Juvenile Justice Board will deal with them in accordance with provisions of law and if required, will pass appropriate sentence. *******