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2014 DIGILAW 469 (RAJ)

Pappu alias Rajesh Meena v. State of Rajasthan

2014-02-12

NARENDRA KUMAR JAIN, RAGHUVENDRA S.RATHORE

body2014
JUDGMENT N.K. JAIN, J. 1. Heard learned counsels for the accused-appellants as well as the learned Public Prosecutor for the State. 2. Since both these appeals arise out of the judgment of conviction and order of sentence dated 29.03.2004 passed by the learned Additional Sessions Judge, No. 2 (Fast Track), Kota (hereinafter referred to as the Trial Court) in Sessions Case No. 99 of 2003, they were heard together and are being decided by this common judgment. 3. Instant appeals, under Section 374 Cr. P.C. have been preferred by the accused-appellants questioning the correctness of the judgment and order dated 29.03.2004 passed by the learned Trial Court in Sessions Case No. 99 of 2003, whereby it has, while acquitting the accused Pappu @ Rajesh Meena, Vijay Pandit, Pappu @ Bashir @ Prakash and Ram Gopal from the offences under Sections 324, 324/149, convicted and sentenced them as under:– NAME OF ACCUSED SECTION IMPRISONMENT (1) Pappu alias Rajesh Meena S/o Bhanwar Lal 148 IPC 302 IPC 323 IPC 4/25 Arms Act To undergo two years rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. To undergo life imprisonment with fine of Rs. 1,000/- in default of payment of fine to further undergo one month's additional simple imprisonment. To undergo three months simple imprisonment. To undergo one year's rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. (2) Vijay Pandit S/o Satyanarayan 148 IPC 302 IPC 323/149 IPC 4/25 Arms Act To undergo two years rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. To undergo life imprisonment with fine of Rs. 1,000/- in default of payment of fine to further undergo one month's additional simple imprisonment. To undergo three months simple imprisonment. To undergo one year's rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. (3) Pappu alias Prakash alias Bashir S/o Ramgopal 148 IPC 302/149 IPC 323/149 IPC To undergo two years rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. To undergo life imprisonment with fine of Rs. (3) Pappu alias Prakash alias Bashir S/o Ramgopal 148 IPC 302/149 IPC 323/149 IPC To undergo two years rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. To undergo life imprisonment with fine of Rs. 1,000/- in default of payment of fine to further undergo one month's additional simple imprisonment. To undergo three months simple imprisonment. (4) Ramgopal S/o Dhannalal 148 IPC 302/149 IPC 323/149 IPC To undergo two years rigorous imprisonment with fine of Rs. 250/- in default of payment of fine to further undergo seven days additional simple imprisonment. To undergo life imprisonment with fine of Rs. 1,000/- in default of payment of fine to further undergo one month's additional simple imprisonment. To undergo three months simple imprisonment. All the sentences were ordered to run concurrently. Learned Trial Court has also ordered that in this case another accused Ghanshyam Meena had not been arrested by the police and he is absconding. Therefore, the file and all the seized articles and material of the case be preserved. 4. The basic facts of the case and evidence have already been discussed in detail in the judgment passed by the learned Trial Court, therefore, it is not expedient for us to repeat the same all over again verbatim in this judgment. However, the basic facts which are necessary for discussion in this appeal are that the alleged incident had taken place on 20th June, 2003 at about 11.30 P.M. for which the injured complainant Shahjad @ Sheju (P.W.15) gave an oral Parcha Bayan (Exhibit P-15) to Pravesh Kumar (P.W.12), Sub Inspector, Police Station Railway Colony, Kota on 21.06.2003 at about 1.15 A.M. in M.B.S. Hospital, Kota stating therein that on 20.06.2003 at about 11.30 P.M., his brother Irshad, aged about 18 years, was sitting infront of the shop of Pandey Ji at the Circle (Crossing). While he was at his house, suddenly he heard some noise of quarrel from the direction of the circle. Thereafter, he ran towards the circle and saw that Pappu Meena, Ghanshyam Meena, Vijay Pandit, Pappu @ Bashir and Ramgopal Raigar were beating his brother Irshad with swords and knives. Pappu Meena, Vijay Pandit were having swords; Ghanshyam was having knife and Pappu and Ramgopal were also armed. Thereafter, he ran towards the circle and saw that Pappu Meena, Ghanshyam Meena, Vijay Pandit, Pappu @ Bashir and Ramgopal Raigar were beating his brother Irshad with swords and knives. Pappu Meena, Vijay Pandit were having swords; Ghanshyam was having knife and Pappu and Ramgopal were also armed. It was further stated by him that when he tried to save his brother, Pappu and Ghanshyam inflicted injuries on his waist. At that time, his brother Ajaj and Farid Khan, salesman of the liquor shop, came there. On seeing them, Ghanshyam, Pappu, Vijay Pandit and Pappu @ Bashir and his father Ramgopal Raigar fled away from the place of incident. Due to the beatings given by the accused, his brother Irshad sustained injuries on abdomen and head. The doctor declared him dead, on being taken to the hospital. 5. On the basis of the Parcha Bayan (Exhibit P-15), FIR No. 138 of 2003 (Exhibit P-16) was registered at Police Station Railway Colony, Kota. During the course of investigation, Pravesh Kumar (P.W.12) reached the spot and on inspecting the site, prepared a site plan (Exhibit P-1) and an inquest report (Panchnama) of the dead body of Irshad (Exhibit P-5). Postmortem (Exhibit P-13) of dead body of Irshad was conducted on 21.06.2003 by Dr. Govind Gupta (P.W.9), Medical Officer, M.B.S. Hospital, Kota. Injured Shahjad @ Sheju (P.W.15) was also examined by Dr. G.S. Vishnar (P.W.5) and injury report is on record as Exhibit P-10. Statements of the witnesses were recorded. Accused-appellants were arrested vide Exhibit P-3, Exhibit P-4, Exhibit P-18 and Exhibit P-19. On the basis of information (Exhibit P-20) supplied by accused appellant Vijay Pandit, one sword was recovered on 29.06.2003 vide recovery memo (Exhibit P-8) and on the basis of information (Exhibit P-21) supplied by accused-appellant Pappu @ Rajesh Meena, one sword was recovered on same day vide recovery memo (Exhibit P-9). Cloths, soil and swords were sent to F.S.L. for chemical analysis which was found to be sustained with human blood as per its report (Exhibit P-22). 6. On completion of the investigation, charge sheet came to be filed against all the four appellants before the concerned court for the offences under Sections 148, 302, 323, 324 IPC and under Section 4/25 Arms Act. 6. On completion of the investigation, charge sheet came to be filed against all the four appellants before the concerned court for the offences under Sections 148, 302, 323, 324 IPC and under Section 4/25 Arms Act. Thereafter, the case was committed to the Court of Sessions as the offence was triable by the Court of Sessions which was then transferred to the learned Trial Court. 7. Learned Trial Court, after hearing the arguments of the parties, framed charges against accused Pappu @ Rajesh Meena under Sections 148, 302, 324, 323 IPC and Section 4/25 Arms Act; against accused Vijay Pandit under Sections 148, 302, 324/149, 323/149 IPC and Section 4/25 Arms Act; accused Pappu @ Prakash @ Bashir and Ramgopal under Sections 148, 302 in the alternate under Sections 302/149, 324/149 and 323/149 IPC. The accused-appellants pleaded innocence and claimed for trial. To prove its case, the prosecution had examined 16 witnesses and exhibited 22 documents. Thereafter, an opportunity was given to the accused-appellants, as per the provisions of Section 313 Cr. P.C. to explain their conduct with regard to the adverse material available in the evidence adduced by the prosecution, wherein the accused-appellants denied the prosecution case and stated that the evidence produced is false and they have been wrongly implicated in this case. Appellant Pappu @ Rajesh Meena had stated that he was working in the street at the handpump and Irshad was abusing. On hearing the noise of quarrel, he ran to the spot and he has been falsely implicated as an accused in this case. Accused Vijay Pandit had stated that Pappu is his neighbour, so he had been falsely implicated in this case. Accused Ramgopal and Pappu @ Bashir Raigar have stated in their statements that they had been falsely implicated because there is old enmity between Mukesh and Shahjad and if fact, they were sleeping at their house when the incident took place. No witness was adduced in defence by the accused-appellants. However, they produced three documents, i.e. statements of Farid Khan, Ajaj Khan and Shahjad @ Sheju recorded by the police during investigation (Exhibit D-1 to Exhibit D-3). On appreciation, evaluation and analysis of the evidence led by the prosecution and after hearing the arguments of both the parties the learned Trial Court convicted and sentenced the accused-appellants, vide judgment and order dated 29.03.2004, in terms stated hereinabove. 8. On appreciation, evaluation and analysis of the evidence led by the prosecution and after hearing the arguments of both the parties the learned Trial Court convicted and sentenced the accused-appellants, vide judgment and order dated 29.03.2004, in terms stated hereinabove. 8. Feeling aggrieved with the impugned judgment and order passed by the learned Trial Court, accused-appellants have preferred these appeals which have come for hearing before this Court. 9. It is pertinent to mention here that at the time of filing of charge sheet against the present accused-appellants, co-accused Ghanshyam Meena was absconding and charge sheet against him was filed under Section 299 Cr. P.C. Thereafter when he was arrested a separate (Titamba) charge sheet, under Sections 302, 324, 323, 148 IPC and under Section 4/25 Arms Act came to be filed on 15.10.2009 before the concerned Court and then the case was committed to the Court of Sessions. Ultimately the case was assigned to the Additional Sessions Judge (Fast Track) No. 1, Kota for trial. After trial, co-accused Ghanshyam son of Bhanwar Lal had been acquitted from all the charges levelled against him vide separate judgment and order dated 25.05.2011. 10. In these appeals, learned counsels for the accused-appellants have mainly reiterated the contentions advanced before the learned Trial Court and further contended that the Trial Court has erred in relying upon the statements of prosecution witnesses and the prosecution has failed to prove its case beyond reasonable doubt. The findings arrived at by the learned Trial Court are erroneous, perverse as well as against the facts and circumstances of the case and evidence available on record. The impugned judgment suffers from misreading and non-reading of the vital piece of evidence available on record. The Trial Court has failed to consider that it was the duty of the prosecution to stand on its own legs to prove the case against the accused-appellants and the burden cannot be shifted on the accused persons and their duty is only of preponderance of probabilities in their favour. But the learned Trial Court, by not dealing with the explanation given by the accused-appellants in their statements recorded under Section 313 Cr. P.C. has totally failed to consider the vital aspect of the matter that they have been falsely implicated in this case. 11. Learned counsels for the accused-appellants further contended that the prosecution story as regards the incident is doubtful. P.C. has totally failed to consider the vital aspect of the matter that they have been falsely implicated in this case. 11. Learned counsels for the accused-appellants further contended that the prosecution story as regards the incident is doubtful. Learned Trial Court has erred in not properly appreciating the evidence on record; and has incorrectly applied the legal position. Therefore, the impugned judgment is bad in the eyes of law and the same deserves to be quashed and set aside. Learned Trial Court has failed to appreciate the provisions of Sections 148 and 149 IPC. 12. Learned counsels for the accused-appellants further submitted that the prosecution case is mainly based on the evidence of Shahjad @ Sheju (P.W.15); Ajaj (P.W.14) and Farid Khan (P.W.13) who are not trustworthy witnesses. There are material contradictions in the statements of these witnesses which make the prosecution case doubtful and no conviction can be based on such evidence. The prosecution witness Ajaj (P.W.14) who is the real brother of deceased Irshad; and informant Shahjad @ Sheju (P.W.15) and the witness Farid Khan (P.W.13) are not reliable witnesses. In the later Sessions Case (No. 28 of 2011 State of Rajasthan vs. Ghanshyam), both had been declared hostile by the prosecution as they had totally denied the facts of incident. The co-accused Ghanshyam was then acquitted by the trial court. This fact also goes against the prosecution. As per the prosecution, the occurrence took place at about 11.30 P.M. but the FIR was got registered by the complainant at about 2.15 A.M. after an inordinate delay of about three hours despite of the fact that the distance between the police station and the place of incident was only 1/2 K.M. It shows that the report had been prepared after deliberations with an intention to falsely implicate the appellants in this case. But the learned Trial Court has failed to appreciate this aspect of the matter. The prosecution has failed to produce the genesis of the incident and a false and concocted evidence had been produced by them with the object to implicate the appellants in this case. In fact, the incident took place in front of the house of Gopal Bairwa but the investigating agency changed the place and showed it before the shop of Pandey Ji situated at Circle (Crossing) which creates a serious doubt on prosecution story. In fact, the incident took place in front of the house of Gopal Bairwa but the investigating agency changed the place and showed it before the shop of Pandey Ji situated at Circle (Crossing) which creates a serious doubt on prosecution story. Thus, it is clear that the prosecution had falsely implicated the accused-appellants in this incident. 13. Learned counsel for the accused-appellants further submitted that in fact the deceased Irshad came in a drunken state to the house of Gopal Bairwa and started abusing and quarreling with the persons and was having a sword in his hand. He had gone there with the intention to kill Ramgopal, Bashir and residents of the Mohalla. But the prosecution changed the real genesis of the story as well as the place of occurrence. In these facts and circumstances of the present case, the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside. 14. It has further been contended by the learned counsels for the accused-appellants that the learned Trial Court has failed to appreciate the fact that there is no independent eye witness in the present case. Shahjad @ Sheju (P.W.15) as wellas Ajaj (P.W.14) are the real brothers of the deceased Irshad and Farid Khan (P.W.13) is the close relative and friend of Shahjad @ Sheju (P.W.15). They are highly interested and relative witnesses and their presence at the place of incident is doubtful and unnatural. Hence, their testimony cannot be relied upon. The prosecution has failed to produce the independent witnesses who had seen the occurrence. The investigation agency should have produced witnesses who were living in the nearby area of the place of incident. The prosecution had therefore failed to prove its case beyond reasonable doubt by not producing any independent eye witnesses, in support of its case. Shahjad @ Sheju (P.W.15), Ajaj (P.W.14) and Farid Khan (P.W.13), the alleged eye witnesses of the prosecution, had stated that they had lodged report at the police station. In other words three FIRs were lodged by the complainant party but the police had registered the case only on the report of Shahjad @ Sheju. Learned counsels for the accused appellants further submitted that alleged recovery of arms is also not proved by the prosecution. In other words three FIRs were lodged by the complainant party but the police had registered the case only on the report of Shahjad @ Sheju. Learned counsels for the accused appellants further submitted that alleged recovery of arms is also not proved by the prosecution. Brijraj Singh (P.W.3) and Bhanwar Lal (P.W.4), witnesses of the alleged recovery memos (Exhibit P-8 and Exhibit P-9) had been declared hostile and they did not support the prosecution case. The conviction therefore cannot be based on the recovered articles. As per the prosecution story, Shahjad @ Sheju, Ajaj and Farid Khan took the deceased to the hospital soon after the incident, but there were no blood stains on their cloths. This further shows that their presence at the time of incident is highly doubtful and the prosecution had produced these witnesses as an afterthought and have concocted the story. The prosecution has failed to explain the injuries sustained by the appellants. It is the duty of the prosecution to explain as to how the appellants had sustained the injuries but in the present case the prosecution has failed to do so. It also creates a doubt regarding real genesis of the incident. It is an admitted fact that accused Ramgopal and Pappu sustained five injuries. Vijay Pandit and Pappu @ Rajesh Meena were having two simple injuries and one injury was sustained by Vijay Pandit with a sharp edged weapon which was simple in nature. There is also material contradiction in evidence of medical jurist and alleged eye witnesses. Learned Trial Court has wrongly relied upon the evidence of Shahjad @ Sheju (P.W.15). He had stated that injuries were caused by the appellants by a sharp edged weapon but Shahjad @ Sheju had sustained only one sharp edged injury on his palm and rest of the injuries were by blunt weapon. In such a situation a possibility cannot be ruled out that the injury sustained by Shahjad @ Sheju was self inflicted with the intention to implicate the appellants. Therefore, the testimony of Shahjad @ Sheju is highly doubtful and not trustworthy. In these circumstances, the impugned judgment and order passed by the learned Trial Court is not sustainable in the eye of law and the same is liable to be quashed and set aside. 15. Therefore, the testimony of Shahjad @ Sheju is highly doubtful and not trustworthy. In these circumstances, the impugned judgment and order passed by the learned Trial Court is not sustainable in the eye of law and the same is liable to be quashed and set aside. 15. Learned counsels for the accused-appellants further submitted that FSL Report (Exhibit P-22) is not admissible in evidence for the reason that there is an over writing in the Malkhana Register. Learned Trial Court had also come to the conclusion that at the time of incident, no witnesses were present and deceased was alone. Hence, the testimony of Shahjad @ Sheju (P.W.15), Ajaj (P.W.14) and Farid Khan (P.W.13) cannot be relied upon and the entire prosecution evidence is liable to be discredited. 16. Learned counsel for the accused-appellant Ramgopal and Pappu @ Prakash @ Bashir has further contended that not a single prosecution witness has attributed any overt act against the said accused-appellants. All witnesses have specifically mentioned the role of other three accused which shows that Ramgopal and Pappu @ Prakash @ Bashir had not participated in the crime. There is no recovery of any weapon from the accused-appellants. All witnesses have stated that the accused-appellants Ramgopal and Pappu @ Prakash @ Bashir were having some thing like Patti but no specific thing has been named by the said witnesses. This material contradiction and improvement also makes the prosecution case doubtful. It is an admitted case of the prosecution that many independent witnesses were present at the place of occurrence but they were not produced which creates a doubt on the prosecution story. Therefore, the learned counsels for the accused appellants have prayed that the appeals be allowed and impugned judgment and order passed by the learned Trial Court be quashed and set aside. The accused-appellants be acquitted from the charges levelled against them. 17. While opposing the appeal, learned Public Prosecutor supported the judgment and order passed by the learned Trial Court and submitted that there is no reason to disbelieve the prosecution evidence of injured eye witnesses Shahjad @ Sheju (P.W.15), Ajaj (P.W.14) and Farid Khan (P.W.13); recovery of weapons from the accused-appellants Pappu @ Rajesh Meena and Vijay Pandit and the FSL report. It is also submitted that prosecution witnesses have fully supported the prosecution case and there is neither any improvement, nor any material contradiction or omission in their statements. They are natural, reliable and trustworthy witnesses in the facts and circumstances of the present case. Prosecution witnesses have narrated true facts of the incident. The occurrence took place in front of the house of Ramgopal and then on the circle (crossing). Shahjad @ Sheju (P.W.15) had also sustained injuries in this incident. FIR had been promptly lodged and there is no delay in lodging the same. Thus the case is fully established by the prosecution and guilt against all the accused is proved beyond any shadow of doubt. There is no reason to disbelieve the evidence of Shahjad @ Sheju (P.W.15), Ajaj (P.W.14) and Farid Khan (P.W.13). Only on the basis that other witnesses were not examined, evidence of injured eye witnesses cannot be discarded. Only on the basis that co-accused Ghanshyam has been acquitted by the trial court, in a separate trial, present appellants are not entitled for acquittal. Learned Trial Court has elaborately considered all the prosecution evidence and rightly convicted and sentenced the accused-appellants, as mentioned hereinabove. Hence, learned Public Prosecutor has submitted that the present appeals of the accused-appellants lack merit and the same are liable to be dismissed. 18. We have given our thoughtful consideration to the submissions made by learned counsels for the parties and carefully perused the entire oral and documentary evidence adduced by both the sides in the matter, as also the record of the Trial Court. 19. Investigating Agency, during the course of investigation, got the autopsy of the deceased done and as per the statement of Dr. Govind Gupta (P.W.9), Irshad was having following ante mortem injuries:- “(1) Incised wound 6 x 1 cm Bone cut vertically placed with clean cut margins on Lt. Frontal area of skull. (2) Abrasion 2½ x 1½ cm on Rt. Frontal area of skull. (3) Incised wound 2½ x ½ cm x bone cut on flexor aspect of 1st inter phaylyngial front of Rt. Index finger. (4) Incised wound 5 x 1 cm x muscle deep on flexor aspect of Lt. Thennar region. (5) Incised wound 1 x ½ cm x sabuitarieous deep on Lt. Wrist. (6) Incised wound 3 x ½ cm muscle deep Elyplical shape on upper half of Lt. Leg lateral aspect. Index finger. (4) Incised wound 5 x 1 cm x muscle deep on flexor aspect of Lt. Thennar region. (5) Incised wound 1 x ½ cm x sabuitarieous deep on Lt. Wrist. (6) Incised wound 3 x ½ cm muscle deep Elyplical shape on upper half of Lt. Leg lateral aspect. (7) Incised would 3 x 1 cm x muscle deep on Lt. Calf area (i.e. On Lt. Leg.) (8) Incised wound 8 ½ x ½ cm x skin deep posterior aspect Lt. Scafrulor area. (9) Stab wound 2½ x 1 cm x cavity deep on Lt. Scafrular area. (10) Stab wound 2½ x 1 cm x muscle deep. Transversely placed on posterior aspect of lower 1/3 part Lt. Thigh. (11) Stab wound 2½ x 1 cm x cavity deep in posterior aspect on Rt. Lumber area. (12) Stab wound 2½ x 1 cm x cavity deep posterior aspect of Rt. Shoulder. (13) Stab wound 2 ½ x 1 cm x cavity deep. Oblequely placed in left hypo chondric area (beloe ribs). Omentum coming out. This injury pearsed omentum, stomach through and through. (14) Stab would 2 ½ cm x 1 cm x cavity deep transversely placed in Rt. Renal area on front of abdomen which is pearsing through and through opening in ascenoning colan. (15) Stab wound 2 ½ x 1 cm cavity deep in posterior aspect of Rt. Lumber area which leads to perirenal haematoma. (Note Injury No. 11 and 15 in one injury). (16) Multiple abrasions 3 x ½ cm to 1 x ½ cm on Lt. Arm, Lt. Wrist, Rt. Knee, Rt. Leg and abdomen. (17) Abrasion 8 x 1 cm on Lt. Thigh posterior aspect. There is sub-sternal Haematoma with one opening underneath as a result of Injury No. 12.” As per the Postmortem Report (Exhibit P-13), Dr. Govind Gupta clearly stated that the cause of death of Irshad was syncope as a result of haemorrhage and the ante mortem injuries. 20. Shahjad @ Sheju (P.W.15) was also medically examined by Dr. G.S. Vishnar (P.W.5) and as per the Injury Report (Exhibit P-10) he was having following injuries: “(1) Incised wound 1/3”x1/10”x1/8” on Rt. Palm of hand-simple-sharp. (2) Abrasion 8”x1/4” longitudinally back of Rt. Arm U ½ -Simple-Blunt. (3) Abraded Bruise 1 1/2” x 3/4” lateral aspect of Rt. Shoulder. (4) Abraded Bruise 6 1/2” x 1/8” Tr. On back Rt. Side L 1/3-Simple-Blunt. Palm of hand-simple-sharp. (2) Abrasion 8”x1/4” longitudinally back of Rt. Arm U ½ -Simple-Blunt. (3) Abraded Bruise 1 1/2” x 3/4” lateral aspect of Rt. Shoulder. (4) Abraded Bruise 6 1/2” x 1/8” Tr. On back Rt. Side L 1/3-Simple-Blunt. (5) Scratch 7” Linear Rt. Lt. Side on back M 1/3-Simple-Sharp. (6) Bruise 3”x1-1/2” back of Lt. Shoulder Tr.-Simple-Blunt. (7) Bruise 4” x 1” Vertically Lateral Aspect of Lt. Shoulder-Simple-Blunt.” 21. It is also an admitted fact that accused-appellant Ramgopal sustained five injuries which were simple in nature and caused by blunt weapon. Pappu @ Prakash @ Bashir also sustained five injuries. Pappu @ Rajesh Meena was having two injuries out of which one was simple in nature and the other was caused by sharp edged weapon. Accused Vijay Pandit had also sustained one injury. 22. We have pondered over the statements of the prosecution witnesses as well as defence version also. We have also gone through the documentary evidence produced by the parties. The conviction of the accused-appellants in this case is mainly based upon the testimony of three eye witnesses, viz. Shahjad @ Sheju (P.W.15) the informant and injured eye witness; Ajaj (P.W.14) brother of the deceased Irshad and Farid Khan (P.W.13). 23. Shahjad @ Sheju (P.W.15) injured eye witness and informant of this case has reiterated the facts of the FIR and categorically deposed that Pappu Meena and Vijay Pandit were having swords, Ghanshyam was having knife, Pappu @ Bashir and Ramgopal were having weapons like Patti and they inflicted injuries to the deceased. Ghanshyam and Pappu Meena had inflicted injuries by knife and sword. On next day of incident, he came to know from Rajendra, Prakash and Ashok that before giving beating to Irshad at the circle (crossing), they had inflicted injuries in front of house of Ramgopal. He did not know as to why they had inflicted injuries to deceased Irshad. At the time of incident there were about 15-20-30 persons. 24. Ajaj (P.W.14) and Farid Khan (P.W.13) had also supported the statement of Shahjad @ Sheju and prosecution version. In cross-examination Ajaj admitted that he had not seen Pappu Raigar and Ramgopal inflicting injuries to the deceased. It is also an admitted fact that in the trial of co-accused Ghanshyam, both the witnesses Ajaj and Farid Khan turned hostile and Shahjad @ Sheju could not be examined because he had died. In cross-examination Ajaj admitted that he had not seen Pappu Raigar and Ramgopal inflicting injuries to the deceased. It is also an admitted fact that in the trial of co-accused Ghanshyam, both the witnesses Ajaj and Farid Khan turned hostile and Shahjad @ Sheju could not be examined because he had died. The co-accused Ghanshyam was then acquitted from all the charges levelled against him. The medical evidence of Dr. Govind Gupta (P.W.9) and the Postmortem Report (Exhibit P-13) fully establishes that Irshad died on account of injuries inflicted by the accused-appellants and that it was a homicidal death, is not disputed. The role of the accused-appellants is established on the basis of facts stated by the witnesses Shahjad @ Sheju (P.W.15), Ajaj (P.W.14) and Farid Khan (P.W.13) who had stated in specific terms that accused-appellants had inflicted injuries to deceased Irshad. It is true that each case has to be considered on its own facts. However, taking a holistic view of the matter, in such a case entire attending circumstances must be taken into consideration so as to find out the actual offence committed. In such circumstances, we do not find any thing wrong in the findings recorded by the learned Trial Court, to the extent of involvement of the accused-appellants in commission of the crime. 25. The only question which now requires consideration is that whether the act of the accused-appellants amounts to commission of an offence of murder, punishable under Section 302 IPC or an offence other than that. From the facts of the case and evidence available on record, it is established that accused-appellants have also sustained injuries in this case and no explanation for the same had been given by the prosecution. Deceased Irshad had come to the place of incident, armed with weapon and an incident of beating took place in front of house of Ramgopal. Thereafter, the beating between the parties took place and they reached upto the circle (crossing) where the deceased Irshad collapsed due to his injuries and died. Fatal injuries were inflicted in abdomen of the deceased by co-accused Ghanshyam by knife who had later been acquitted by the trial court, vide separate judgment and order dated 25.05.2011. Therefore, in our considered opinion, at the place of occurrence at circle (crossing) there were free fight between the parties and both parties had sustained injuries in this incident. Fatal injuries were inflicted in abdomen of the deceased by co-accused Ghanshyam by knife who had later been acquitted by the trial court, vide separate judgment and order dated 25.05.2011. Therefore, in our considered opinion, at the place of occurrence at circle (crossing) there were free fight between the parties and both parties had sustained injuries in this incident. This fact had also been admitted by the investigating officer Pravesh Kumar (P.W.12) in his cross examination. Looking to the facts of the case and evidence available on record no case of rioting is made out. There must be nexus between the common object and the offence committed and if it is found that the same was committed to accomplish common object, every member of the assembly will become liable for the same. But in this case, the prosecution has failed to prove the nexus. 26. In the case in hand, conviction of accused-appellants is based on the testimony of three witnesses, i.e. Shahjad @ Sheju (P.W.15), Ajaj (P.W.14) and Farid Khan (P.W.13). The accused Pappu @ Rajesh Meena and Vijay Pandit were convicted under Section 302 IPC and accused Pappu @ Bashir and Ram Gopal were convicted with the aid of Section 149 IPC. From examination of the evidence available on record, it is apparent that there must be five or more persons for formation of an unlawful assembly and some persons of that assembly were having arms. But merely on that count it cannot be inferred that every member of the assembly was intending to commit mischief or any offence. In absence of such intention, the assembly cannot be termed as unlawful. As per the evidence of Ajaj (P.W.14) at the time of incident he was at his house. Once the assembly has not been found unlawful, the conviction with the aid of Section 149 IPC is not sustainable. In this case, the incident had taken place in front of house of Gopal Bairwa and then it again took place at the circle (crossing). Looking to the facts and circumstances of the case and the evidence available on record, entire act of the accused-appellants acquires significance. In our considered opinion, the prosecution has failed to establish the object which is very important and essential to form an unlawful assembly. The prosecution has failed to establish true facts and genesis of the case and motive of the incident. In our considered opinion, the prosecution has failed to establish the object which is very important and essential to form an unlawful assembly. The prosecution has failed to establish true facts and genesis of the case and motive of the incident. No case under Sections 148 and 149 IPC is made out against the accused-appellants. 27. From the overall facts and circumstances of the case and evidence available on record we are of the view that death of the deceased Irshad was caused due to the injuries inflicted by the accused-appellants which constitutes culpable homicide not amounting to murder and the same is punishable under Section 304 IPC. Upon careful scrutiny of the evidence available on record, we find that it is only a case of assault in heat of the moment, without premeditation. The accused appellants inflicted bodily injuries to the deceased Irshad which resulted into excess bleeding and shock called Syncope. There can be no doubt that the accused appellants had knowledge and not the intention to cause murder and therefore, they are liable to be punished under Part II of Section 304 IPC. For this purpose, the principles are enunciated by the Hon’ble Supreme Court in the case of Jagriti Devi vs. State of H.P. AIR 2009 SC 2869 that Section 300 IPC provides for the explanation which will constitute culpable homicide not amounting to murder and punishable under Section 304 IPC. When there is intention and knowledge to cause murder and bodily injury, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Looking to the facts and circumstances of the present case and the evidence available on record, the act of the accused-appellants falls within the purview of offence punishable under Section 304 Part II IPC. 28. In view of the discussions made hereinabove, this appeal deserves to be allowed in part. The conviction and sentence of the accused-appellants under Section 148 IPC is quashed and set aside and they are acquitted from the offence under Section 148 IPC. 28. In view of the discussions made hereinabove, this appeal deserves to be allowed in part. The conviction and sentence of the accused-appellants under Section 148 IPC is quashed and set aside and they are acquitted from the offence under Section 148 IPC. The conviction and sentence of the accused-appellants Pappu @ Rajesh Meena and Vijay Pandit under Section 302 and Pappu @ Prakash @ Bashir and Ramgopal under Section 302/149 IPC is also quashed and set aside. Accused-appellants Pappu @ Rajesh Meena and Vijay Pandit are convicted under Section 304 Part II IPC instead of Section 302 IPC and sentenced to a period of imprisonment already undergone with fine as imposed by the Trial Court. Conviction and sentence awarded to the accused-appellants Pappu @ Rajesh Meena and Vijay Pandit under Section 323 IPC and 4/25 Arms Act is maintained. Conviction and sentence of accused-appellants Pappu @ Bashir and Ram Gopal under Section 323 is also maintained. 29. Consequently, the appeals are partly allowed. The conviction and sentence awarded to the accused-appellants Pappu @ Rajesh Meena, Vijay Pandit, Ramgopal and Pappu @ Prakash @ Bashir Raigar is modified as aforementioned. Their sentence is reduced to the period already undergone. The impugned judgment dated 29.03.2004 passed by the Additional Sessions Judge No. 2 (Fast Track) Kota in Sessions Case No. 99 of 2003 is accordingly modified. The accused Pappu @ Rajesh Meena S/o Bhanwar Lal, Vijay Pandit S/o Satyanarayan and Pappu @ Prakash @ Bashir Raigar are in jail and they shall be released forthwith, if not required in any other case. The accused Ram Gopal S/o Dhannalal Raigar is on bail and he need not surrender. His bail bonds stand discharged.