JUDGMENT 1. The aforesaid criminal appeals are arising out of judgment of conviction dated 10th January, 1998, passed by the 6th Additional Sessions Judge, Bilaspur in S.T. No. 493/95 whereby learned 6th Additional Sessions Judge convicted each of the appellants under Sections 302, 148 and 323/149 of the IPC and sentenced them to undergo imprisonment for life, R.I. for 3 years and R.I. for 1 year respectively. 2. In Criminal Appeal No. 249/1998, appellant No. 3 Udhoram and appellant No. 8 Jeevrakhan have died during the pendency of the appeal, therefore, the appeal in respect of aforesaid appellants stands abated. 3. In an incident which occurred at 1 pm on 7.8.94 near Thakur Dev, Village Kaneri, deceased Jatau Satnami was murdered by the appellants. Merg intimation was lodged by PW-2 Gyandas. He also lodged FIR. (Ex.P/1) at 7 pm on 7.8.94 itself alleging that when he was sitting in his betel shop at 2 pm, his father came to him and informed that quarrel has taken place at Satnami para. He had gone there and came to know that appellant No. 3 Udhoram and appellant No. 4 Ganeshram have murdered deceased Jatau Satnami by assaulting him by means of club. His father also infom1ed him that Udho Satnami has confessed that they have killed the deceased. It is also stated in the FIR that at about 8 am in the morning Udho Satnami and Ganesh Satnami came to his betel shop and Ganesh Satnami informed his father that when they demanded contribution and 'Maadar' (one drum like local instrument), the deceased refused to contribute and handover the instrument and has also assaulted him by club. Ganesh Satnami was asking his father to accompany him for lodging an FIR against Jatau Satnami and because of this incident which occurred in the morning, Udho Satnami and Ganesh Satnami have murdered the deceased. 4. In course of investigation, the prosecution recovered one shirt each from appellant Ganesh Ram and Udhoram vide Ex.P/2 & P/3; prepared inquest of dead body vide Ex.P/7 The recovery of club was made from appellant Santosh Kumar vide Ex.P/9, Nehrulal vide Ex.P/10, Gendram vide Ex.P/11, Ganesh vide Ex.P/17 and Udho vide Ex.P/18. 5. The dead body of the deceased was sent for postmortem and report Ex.P/54 was submitted by PW-20 Dr. C.L. Chandrakar. 6. 5. The dead body of the deceased was sent for postmortem and report Ex.P/54 was submitted by PW-20 Dr. C.L. Chandrakar. 6. In the same incident 4 persons namely, PW-12 Sukhchand, PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai have received injuries. Medical report Ex.P/13 of Bhokai, Ex.P/12 of Bholwa, Ex.P/57 of Mohan and Ex.P/58 of Sukhchand was submitted by the doctors. These persons received simple injuries like abrasions and contusions on different parts of the body but not over any vital part. 7. After completion of investigation, charge-sheet was filed against the accused persons for committing offence under Sections 302, 148 and 323/149 of the IPC. 8. On the basis of evidence adduced by the prosecution, the trial Court convicted the appellants under Sections 302, 148 and 323/149 of the IPC. However, the appellants have been acquitted of the charge under Section 302/149 of the IPC. The prosecution has not filed any appeal challenging the judgment of acquittal with regard to charge under Section 302/149 of the IPC and thus the said acquittal has become final. 9. We have heard learned Senior counsel for the appellants and learned State counsel at length and perused the record. 10. In the absence of any challenge to the said part of the judgment whereby the appellants have been acquitted of the charge under Section 302/149 of the IPC, this Court is required to consider as to whether conviction of the appellants under Section 302 of the IPC simpliciter is sustainable. 11. To prove the charges leveled against the appellants, the prosecution has examined the following witnesses:- PW-1 Bhuribai. She is the widow of the deceased and is also an eyewitness. PW-2 Gyandas. He is the first informant. He is the son of village Kotwar Sukrit Das (PW-7). This witness has proved FIR Ex.P/1 and seizure memos from appellant Udhoram vide Ex.P/2 & P/3. PW-3 Pheku. He is an eyewitness as per the case diary statement vide Ex.P/4. However he has not supported the case of prosecution. PW-4 Mithai Singh. He is an eyewitness as per the case diary statement vide Ex.P/5. However he has not supported the case of prosecution. PW-5 Ghasia @ Borari. He is an eyewitness as per the case diary statement vide Ex.P/8. However he has not supported the case of prosecution. PW-6 Kasiram. However he has not supported the case of prosecution. PW-4 Mithai Singh. He is an eyewitness as per the case diary statement vide Ex.P/5. However he has not supported the case of prosecution. PW-5 Ghasia @ Borari. He is an eyewitness as per the case diary statement vide Ex.P/8. However he has not supported the case of prosecution. PW-6 Kasiram. This witness reached the place of incident after the assault was over, however, he speaks about extra Judicial confession made by Udhoram (appellant No. 3) and Ganeshram (appellant No. 4). PW-7 Sukrit Das. He is the Kotwar of the village and the father of PW-2 Gyandas who lodged FIR. This witness had informed Gyandas that Udho has made extra judicial confession. He has proved extrajudicial confession as also seizure memos vide Ex.P/9, P/10 & P/11. PW-8 Dr. B.D. Sonwani is the medical officer who had medically examined injured Bholwa and submitted report vide Ex.-P/12. He has also examined injured Bhokai and submitted medical report vide Ex.-P/13. The report regarding club seized from Bhokai is Ex.-P/14. The report of club seized from Bholwa is Ex.-P/15. PW-9 Adhari is a witness to the extra judicial confession made by Udhoram and Ganesh Ram to Sukrit Das, however, this witness has not supported the case of the prosecution. PW-10 Nizam is a witness to seizure memo Ex.-P/2 and Ex.-P/3. Although he admits his signature on Ex.-P/2 & P/3 but he has not supported the case of the prosecution. PW-11 A.L. Koshle is the Sub-Inspector, who has seized the club from appellant Ganeshram vide Ex.-P/17. PW-12 Sukhchand, PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai are injured eyewitnesses. They have supported the case of the prosecution. PW-16 T.S. Bisen is the Sub Inspector, who has effected seizure of club from appellant Santosh vide Ex.-P/9, from appellant Nehru vide Ex.-P/10 and from appellant Gendram vide Ex.-P/17. PW-17 B.M. Puri is the SHO who recorded merg intimation Ex.-P/19 and FIR Ex.-P/1 and has conducted the investigation. PW-18 Khuman is an eyewitness, however, he has not supported the case of the prosecution. PW-19 Bairagi Lal is the Head Constable. He has proved Rojnamcha Sanha and submitted charge sheet. PW-20 Dr. C.L. Chandrakar has conducted postmortem over dead body of deceased Jatau and has proved postmortem report Ex.-P/54. He has also submitted report regarding examination of number of clubs seized from the accused persons. PW-21 Dr. PW-19 Bairagi Lal is the Head Constable. He has proved Rojnamcha Sanha and submitted charge sheet. PW-20 Dr. C.L. Chandrakar has conducted postmortem over dead body of deceased Jatau and has proved postmortem report Ex.-P/54. He has also submitted report regarding examination of number of clubs seized from the accused persons. PW-21 Dr. Sunita Verma has medically examined injured Mohan and Sukhchand and has proved her medical report Ex.-P/57 and Ex.-P/58. She has also proved examination of clubs vide report Ex.-P/59 and P/60. 12. The accused persons have examined defence witnesses namely, DW1-Dr. B.D. Sonwani, DW-2 Godil Prasad and DW-3 Bhurwa. 13. In Barendra Kumar Ghosh Vs. Emperor AIR 1925 Privy Council 1, the following has been laid down with regard to the principles governing application of Sections 34 and 149 of the IPC:- "S.34 deals with the doing of separate acts similar or diverse by several persons; if all are done in furtherance of a common intention each person is liable for the result of them all as if he had done them himself, for "that act" and "the not" in the latter part of the section must include the whole action covered by "a criminal act" in the first part because they refer to it. There is a difference between object and intention; for though the object of an unlawful assembly is common, the intentions of the several members may differ and indeed may be similar only in the respect that they are all unlawful while the element of participation in action which is the leading feature of S.34, is replaced in S. 149 by membership of the assembly at the time of the committing of the offence. Both sections deal with combinations of persons, who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap, but S.149 cannot at any rate relegate S.34 to the position of dealing only with joint action by the commission of identically similar criminal acts, a kind of case which is not in itself deserving of separate treatment at all." 14. In Mahbub Shah Vs. Emperor AIR (32) 1945 Privy Council 118, the Privy Council has enunciated the concept and meaning of "common intention" in the following words:- "Common intention within the meaning of S.34 implies a pre-arranged plan. In Mahbub Shah Vs. Emperor AIR (32) 1945 Privy Council 118, the Privy Council has enunciated the concept and meaning of "common intention" in the following words:- "Common intention within the meaning of S.34 implies a pre-arranged plan. To convict the accused of an offence applying S.34 it should be proved that the criminal act was done in concert pursuant to the prearranged plan. It is no doubt difficult if not impossible to procure direct evidence to prove the intention of an individual; it has to be inferred from his act or conduct or other relevant circumstances of the case. Care must be taken not to confuse same or similar intention with common intention; the partition which divides "their bounds" is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. The inference of common intention within the meaning of the term in S.34 should never be reached unless it is a necessary inference deducible from the circumstances of the case." {Also see Mohan Singh and another Vs. State of Punjab AIR 1963 SC 174 , Ramashish Yadav and others Vs. State of Bihar (1999) 8 SCC 555 }. 15. In the FIR lodged by PW-2 Gyan Das, he derives information from his father PW-7 Sukrit Das to say that Udho Satnami and Ganesh Satnami have killed the deceased by means of club. His father also informed him that since the deceased assaulted Udho over his head, they have killed him. In the merg intimation also, the names of Udho Satnami and Ganesh Satnami are mentioned as assailants. PW-2 Gyan Das has fully supported the case of the prosecution and has named appellants Udho and Ganesh as culprits. He also proved Ex.-P/2 & P/3 by which club and Tabbal was seized from appellant Udho. His father Sukrit Das (PW-7) has also proved extrajudicial confession. PW-6 Kashiram is also a witness to the extra judicial confession made by appellants Udho and Ganesh. 16. Apart from extra judicial confession made by Udho and Ganesh, there are 4 eyewitnesses namely, PW-12 Sukhchand, PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai. 17. His father Sukrit Das (PW-7) has also proved extrajudicial confession. PW-6 Kashiram is also a witness to the extra judicial confession made by appellants Udho and Ganesh. 16. Apart from extra judicial confession made by Udho and Ganesh, there are 4 eyewitnesses namely, PW-12 Sukhchand, PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai. 17. PW-12 Sukhchand has named Udho, Ganesh, Jeevan, Sahas, Munwa, Bisliya, Purshottam, Sudhari, Sudhwa, Kunjram, Mukunda, Sunderwa, Donda, Boha, Santosh, Nehru, Buchnu, Mathura, Bhanu, Rekhlal, Santosh, Sonu and Raju, however, in examination-in-chief itself, he clearly names Udho and Ganesh as the persons who began assault but he does not take it further to say that after the assault made by Ganesh and Udho, other accused persons also assaulted the deceased by means of club, hand, fists or kicks. In para-4 of his examination-in-chief, he improves his statement by saying that apart from Udho and Ganesh, appellants Jeevan and Mukunda also assaulted the deceased whereas other accused persons had encircled him. However, in his cross-examination, he admits that in his case diary statement (Ex.-D/3), the names of Jeevan and Mukunda are not mentioned as assailants. 18. PW-13 Bholwa has stated that all the accused persons assaulted the deceased and he too was assaulted. Similar is the evidence of PW-14 Mohan and PW-15 Bhokai. 19. In view of two sets of evidence, one clearly implicating Udho and Ganesh as assailants, who began assault, as would be clear from the statements of PW-2 Gyan Das, PW-7 Sukrit Das, PW-12 Sukhchand and the other set of evidence of PW-13 Bholwa, PW-14 Mohan, PW-15 Bhokai, it is necessary to refer to the postmortem report and the evidence of PW-20 Dr. C.L. Chandrakar, who conducted the postmortem over dead body of the deceased. Dr. Chandrakar found the following injuries over the person of the deceased:- "Bruises in the size of 11 cm x 8 cm on right arm just above elbow. Bruises in the size of 18 cm x 2 cm elongated on back extended from right shoulder to medial angle of right scapula. Bruises in the size of 17 cm x 2 cm elongated on back extended from medial angle of right scapula to interior angle of left scapula. Lacerated wound on head in the size of 10 cm x 2 cm x bone deep. Occipital bone fractured. Bruises in the size of 17 cm x 2 cm elongated on back extended from medial angle of right scapula to interior angle of left scapula. Lacerated wound on head in the size of 10 cm x 2 cm x bone deep. Occipital bone fractured. Lacerated wound in the size of 8 cm x 2 cm x bone deep extended from junction of frontal and parietal bones posteriorly. Lacerated wound in the size of 9 cm x 2 cm x bone deep. Lacerated wound in the size of 7 cm x 2 cm x bone deep on right parietal region." 20. Out of the above 7 injuries, 4 were grievous head injuries whereas remaining 3 injuries were on other part of the body and were not serious. The deceased died on account of shock as a result of head injury as mentioned in the postmortem report Ex.-P/54. 21. In the matter of Budhwa alias Ramcharan and others Vs. State of Madhya Pradesh AIR 1991 SC 4 , it has been observed that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. The Courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to participation of any of those who have been roped in, the Court would be obliged to give benefit of doubt to them. It has also been held therein that in a melee where several people are giving blows at one and the same time, it will be impossible to particularize the blows. If any witness attempts to do it, his veracity is doubtful. But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross-examination. Therefore, the nature of injuries sustained by the victim assumes importance. The nature of injuries sustained (by the victim before the Supreme Court) in spite of assertion of concerted attack with lathis and tabbals by several assailants numbering over 15 renders the evidence doubtful about participation of such a large number of persons. When several blows with lathis and tabbals could produce only "7 injuries" on the person of the deceased, necessary inference is that not more than 7 persons might have participated in delivering blows. When several blows with lathis and tabbals could produce only "7 injuries" on the person of the deceased, necessary inference is that not more than 7 persons might have participated in delivering blows. In observing this, as mentioned above, the Supreme Court relied on judgments in the matters of Baldeo Singh Vs. State of Bihar AIR 1972 SC 464 and Raghubir Singh Vs. State of UP, AIR 1971 SC 2156 22. In Budhwa alias Ramcharan and others AIR 1991 SC 4 (Supra), the Supreme Court ultimately convicted 4 persons while acquitting remaining 11 other accused persons after observing that the apparent conflict between the medical evidence and eyewitness account could not be overlooked. 23. In the matter of Muthu Naicker and others Vs. State of Tamil Nadu (1978) 4 SCC 385 , it has been held that "where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Simultaneously, it is to be borne in mind that in such a situation the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. In such a situation Court should apply the working test of being assured about the role attributed to every accused." 24. In the case in hand, as many as 25 accused persons were sent for trial. Accused Sudner Lal @ Sundwa died during the pendency of trial and remaining 24 accused persons have been convicted under Section 302 IPC. It is difficult to comprehend as to how the deceased would receive 3 bruises and 4 lacerated wounds when he is attacked by 25 persons armed with club and Tabbal. Therefore, the evidence of PW-2 Gyan Das, PW-7 Sukrit Das and PW-12 Sukhchand, which is corroborated from the medical evidence appears more credible and reliable than the other set of evidence of PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai, who have made omnibus statement that all the accused persons assaulted the deceased. Therefore, the evidence of PW-2 Gyan Das, PW-7 Sukrit Das and PW-12 Sukhchand, which is corroborated from the medical evidence appears more credible and reliable than the other set of evidence of PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai, who have made omnibus statement that all the accused persons assaulted the deceased. This Com1 is, therefore, of the considered opinion that it is only 2 appellants i.e. Udho and Ganesh, who could be held guilty of committing murder of deceased Jatau and the other appellants could not have been convicted under Section 302 of the IPC. 25. The appellants have also been convicted under Sections 148 and 323/149 of the IPC. There is enough evidence on record that the accused persons were am1ed with club and have committed rioting and at the same time they have caused simple injuries to injured eyewitnesses namely, PW-12 Sukhchand, PW-13 Bholwa, PW-14 Mohan and PW-15 Bhokai. These witnesses have clearly stated about the presence of all the accused persons as member of unlawful assembly while they caused simple hurt to them, therefore, conviction under Sections 148 and 323/149 of the IPC is upheld. 26. In Cr. A. No. 249/1998, appellant No. 3 Udhoram has died during the pendency of the appeal. Therefore, the said appeal in respect of appellant No. 3 Udhoram is abated. The other appellant found guilty of committing offence under Section 302 IPC is appellant No.4 Ganeshram in Cr. A. No. 249/1998. The said appeal is dismissed in respect of appellant No. 4 Ganeshram. Ganeshram is on bail. His bail bonds are cancelled. He shall be taken into custody forthwith to serve out the remaining sentence imposed upon him. 27. The other appellants of Cr. A. No. 249/1998 namely, Bisliya alias Bisali, Jeevan, Santosh Kumar, son of Nanhe Satnami; Sahasram, Buchnu alias Roopdas, Munwa, Purshottam, Nehrulal, Santosh Kumar, son of Lalaram Satnami; Gendram alias Bouha, Bundram alias Konda and the appellants of Cr. A. No. 296/1998 namely, Kunjram, Sonou alias Sonu, Sudhari, Mathura, Mukundram, Bugnu, Bhanu, Raju alias Dhanaram, Rekhram and Sudhwa alias Sudhu are acquitted of the charge under Section 302 IPC. However, their conviction under Sections 148 and 323/149 IPC is maintained. A. No. 296/1998 namely, Kunjram, Sonou alias Sonu, Sudhari, Mathura, Mukundram, Bugnu, Bhanu, Raju alias Dhanaram, Rekhram and Sudhwa alias Sudhu are acquitted of the charge under Section 302 IPC. However, their conviction under Sections 148 and 323/149 IPC is maintained. Admittedly, these appellants have already undergone sentence of 3 years and 8 months whereas maximum sentence awarded to them under Section 148 IPC is RI for 3 years and under Section 323/149 is RI for 1 year, therefore, they have already undergone the entire sentence. The appeals on their behalf are allowed in part. Their bail bond shall remain in operation for a period of 6 months from today in view of the provisions contained under Section 437-A of the Cr. P.C. They shall appear before the higher Court, as and when directed. Appeals Partly Allowed.