JUDGMENT 1. (Oral) - Charatlal son of Kishanlal, and his two brothers Bharatlal and Prahlad, Lakkhi son of Bhaurya and Ram Prasad son of Lakkhi, were sent for trial in the case arising out of FIR No. 782/2003 registered at Police Station Gangapur City for offence under Sections 147, 148, 149, 447, 302 and 323 IPC. Having tried the above said accused persons for the above offences, the court of Addl. Sessions Judge, Gangapur City, vide impugned judgment dated 9.5.2005 convicted Charatlal, Bharatlal, Prahlad and Lakkhi for offences under Section 147, 148, 302/149, 323/149 and 148 IPC. It is to be noted that during trial the fifth member of unlawful assembly, Ram Prasad, was declared as proclaimed offender. 2. Having convicted the accused persons for the above said offences, the trial court vide a separate order of even date, sentenced the accused as under:- Accused appellants Charatlal, Bharatlal, Prahlad and Lakkhi for offence punishable under Section 147 IPC, shall undergo one year's rigorous imprisonment and each to pay a fine of Rs. 1000/-, in default thereof, each to undergo further one month's simple imprisonment. For the offence punishable under Section 148 IPC, each accused shall undergo one year's rigorous imprisonment and to pay a fine of Rs.1000/-, in default thereof, each to undergo further one month's simple imprisonment. For the offence punishable under Section 302/149 IPC, each accused shall undergo life imprisonment and to pay a fine of Rs. 2000/-, in default thereof, each to undergo further one month's simple imprisonment. For the offence punishable under Section 323/149 IPC, each accused shall undergo six months' simple imprisonment and to pay a fine of Rs. 100/-, in default thereof, each to undergo further five days' simple imprisonment. For the offence punishable under Section 325/149 IPC, each accused shall undergo one year's rigorous imprisonment and to pay a fine of Rs. 1000/- each, in default thereof, each to undergo further fifteen days' simple imprisonment. 3. Aggrieved against their conviction and sentence, the accused have preferred two separate appeals. Criminal Appeal No. 550/2005 has been instituted by Lakkhi, whereas Criminal Appeal No. 782/2005 has been filed by Bharatlal and Prahlad, both sons of Kishanlal. The fourth convicted accused, Chratlal is stated to have died on 2.6.2005, i.e. before the limitation for filing of appeal had expired. 4. Criminal Appeal No. 550/2005 has been instituted by Lakkhi, whereas Criminal Appeal No. 782/2005 has been filed by Bharatlal and Prahlad, both sons of Kishanlal. The fourth convicted accused, Chratlal is stated to have died on 2.6.2005, i.e. before the limitation for filing of appeal had expired. 4. Criminal proceedings were set into motion on the statement made by Ratanlal (P.W.11) to Sub-Inspector Rajveer Singh (P.W.12), S.H.O. Police Station Gangapur City. In the statement (Exhibit-P.15), on the basis of which formal FIR (Exhibit-P.33) was registered, Ratanlal (P.W.11) stated that on 23rd of November 2003 at about 4:00 PM he, Ranglal, Surgyan and Jamnalal were ploughing their field for sowing wheat. At that time, Charta and Bharta sons of Kishanlal, Lakkhi son of Bhaurya, Ram Prasad son of Lakkhi, and Prahlad son of Kishanlal, came into his field. Charta Master was armed with dhariya, Bharta with kulhari, Ram Prasad with gandasi, and the remaining were armed with lathi. Immediately on reaching there, Charta Master gave an injury with dhariya on the head of Hansraj. Lakkhi also gave an injury with a lathi on the head of Hansraj. Thereafter, all accused caused injuries to Ratanlal, Ranglal, Surgyan and Jamnalal with lathi, dhariya, kulhari, and gandasi. Hansraj became unconscious. Panchya and Ramlal brought Ratanlal, Ranglal and Surgyan to the hospital at Gangapur City. Hansraj died on the way due to the injuries received. It was stated that the cause of grudge was a long pending dispute over the fields, and while the complainant and injured were sowing their field, they were given beating, and due to the beatings given, Hansraj had died. As a result of the beating, complainant Ratanlal received injuries on the foot and shoulder. Totla and Nanji were attracted to the spot. They had also seen the occurrence. Complainant further stated that Ranglal and Surgyan had made a separate statement qua injuries suffered by them. 5. The above said FIR was investigated. Report of investigation was submitted. The accused, along with the report of investigation, were committed to the court of Sessions. Trial of the case was entrusted to Addl. Sessions Judge, Gangapur City. 6. At this juncture we will notice the charges framed by the Trial Judge. 5. The above said FIR was investigated. Report of investigation was submitted. The accused, along with the report of investigation, were committed to the court of Sessions. Trial of the case was entrusted to Addl. Sessions Judge, Gangapur City. 6. At this juncture we will notice the charges framed by the Trial Judge. Shri D.G. Chaturvedi, learned counsel for the appellant Lakkhi, during the course of arguments has laid much emphasis on the fact that no charge has been framed to say specifically that murder was committed in furtherance of the common object of the assembly. Shri Chaturvedi has stated that the Trial Judge rightly had not formulated a charge that the common object of the assembly was to commit murder. To fortify his submission, our attention has been drawn to charge No.1 and charge No.3. Charge No.1 stated that on 23rd of November 2003 at about 4:00 PM, or at about the same time, the accused in Village Meenapada, falling within the jurisdiction of Police Station Gangapur City, in the field of Ratanlal, caused injuries to Ratanlal, Hansraj etc. and others and thereby constituted unlawful assembly being armed with kulhari, gandasi, and lathi, and the object of the said unlawful assembly was to commit rioting and thus, the accused were responsible for offence under Sections 147 and 148 IPC. Charge No.3 stated that on the said date, time and place, for causing death of Hansraj, the accused armed with lethal weapons voluntarily gave beating and caused injuries due to which Hansraj died and thus, they committed offence punishable under Section 302/149 IPC. 7. We will appreciate the distinction drawn by Shri Chaturvedi in the later part of this judgment. First we shall notice the evidence led by the prosecution. 8. On 24th of November 2003 at 10:15 AM, Dr. Satyanarayan Sharma (P.W.1) conducted autopsy on the dead body of Hansraj son of Surgyan. He had noted three injuries on the person of deceased in the Post Mortem Report (Exhibit-P.9). It will be apposite for us to reproduce injuries hereunder:- "1. Incised wound 5cm x 3cm x BD - on mid line parietal region posterior aspect of skull. 2. Contused swelling 6 x 6cm on frontal region skull forehead black eye. 3. Contused swelling 6 x 5cm Rt parieto-temporal region skull." 9. As per the opinion of the doctor, the injuries were ante mortem in nature. Incised wound 5cm x 3cm x BD - on mid line parietal region posterior aspect of skull. 2. Contused swelling 6 x 6cm on frontal region skull forehead black eye. 3. Contused swelling 6 x 5cm Rt parieto-temporal region skull." 9. As per the opinion of the doctor, the injuries were ante mortem in nature. On internal exploration a thick hematoma on frontal, right parietotemporal occipital region was found. There was a fracture of fronto parietal and both sides of temporal and occipital bones at the right side. According to the opinion of the doctor, the cause of death was injuries to vital organ 'brain', which led to coma and haemorrhagic shock. Injuries were ante mortem in nature and sufficient to cause death. The witness was cross-examined regarding the nature of injuries on the person of the deceased. He specifically denied suggestion that injuries No.2 and 3 on the person of the deceased were not independent injuries but impact of injury No. 1. 10. On the same day i.e. 24th of November 2003 at about 9:30 AM, this witness had medico-legally examined Rampati, wife of Surgyan, and had found one contusion accompanied by swelling on the right hand. After X-ray the injury was declared as simple. 11. On the same day at 9:10 AM this witness also found two injuries on the person of Jamnalal son of Ratanlal. Injury No. 1 was a contusion accompanied by swelling of dimension of 3x3cm on the left side of parietal region. Injury No. 2 was an abrasion 1/2 x 1/2 cm on the right foot. 12. On the same day this witness also examined Surgyan son of Ratanlal. He had found two injuries on his person. Injury No.1 was contusion with swelling 5x3cm on the left side of ear below the mastoid region. Injury No.2 was an abrasion 1/2 x 1/2 cm on the right leg. 13. On 23rd of November 2003 at night before Post Mortem at 9:30 PM, this witness examined Ratanlal. He had suffered a lacerated wound 5x1x1 cm on the left leg, and another injury contusion accompanied with swelling 3x2 cm on the left side of back. Injury No.1 was declared grievous. 14. Ranglal son of Ratanlal was also examined on 23rd of November 2003 at 9:40 PM. The witness (P.W.1) found three injuries on his person. He had suffered a lacerated wound 5x1x1 cm on the left leg, and another injury contusion accompanied with swelling 3x2 cm on the left side of back. Injury No.1 was declared grievous. 14. Ranglal son of Ratanlal was also examined on 23rd of November 2003 at 9:40 PM. The witness (P.W.1) found three injuries on his person. Injury No. 1 was a lacerated wound 2.5 x .5 x .5 cm on the left ear. Injury No. 2 was a contusion accompanied with swelling 4x3 cm on the right side of back on the scapula region. Injury No. 3 was a abrasion 1.5x1cm above left knee. 15. Prosecution examined Surgyan, injured, as P.W.5, Jamnalal as P.W.6, Ranglal as P.W.7, and Ratanlal as P.W.11. With little variations and improvements, all the witnesses have reiterated the version given in the F.I.R. In court, the witnesses have stated that Ramavtar Mali was ploughing the field with a tractor. Due to plying of the tractor, ridge between the boundary of the fields was damaged. It was stated that Ranglal was repairing the damaged boundary/ridge when Bharatlal objected to it and gave abuses on the name of mother and sister. Thereafter Bharatlal called Lakkhi, Ram Prasad, Chratlal and Prahlad, and all the five accused came to the field of Ratanlal and encircled Hansraj. He further stated that Chratlal had given a dhariya blow on the head of Hansraj. Thereafter, Lakkhi caused an injury with a lathi on the head of Hansraj, and Ram Prasad caused an injury on the head of Hansraj with reverse side of gandasi. 16. Shri D.G. Chaturvedi, appearing for the appellant Lakkhi, has stated that so far as the F.I.R. is concerned, it is completely silent qua the genesis of the occurrence. It is further contended that in the F.I.R. it was not stated that Bharatlal called his co-accused. It is further contended that in the F.I.R. no injury has been attributed to Ram Prasad, and after the Post Mortem was conducted, to be in consonance with the medical evidence, the witnesses have attributed the third injury on the head of Hansraj to Ram Prasad. 17. It is further contended that in the F.I.R. no injury has been attributed to Ram Prasad, and after the Post Mortem was conducted, to be in consonance with the medical evidence, the witnesses have attributed the third injury on the head of Hansraj to Ram Prasad. 17. Shri N.S. Dhakad, the learned Public Prosecutor, to rebut the arguments raised by Shri Chaturvedi, has submitted that in the present case the accused have caused injuries to Surgyan, his wife Rampati, Ratanlal and Ranglal, and the injured witnesses have deposed regarding the involvement of the accused. 18. We have given our thoughtful consideration to the rival submissions advanced before us. 19. To analyse the case of the prosecution, there is no denying the fact that for the first time in the court, witnesses have divulged the reason as to how the occurrence had originated. The witnesses have stated that while ploughing the field, as the complainant party intended to sow wheat, common ridge dividing the fields of Ratanlal and Bharatlal was damaged. Bharatlal objected to the same, and abused the complainant party. A perusal of site plan (Exhibit-P.14) reveals that at point 'O' is the common ridge/boundary between the fields of Bharatlal, Surgyan and Ranglal. The Investigating Officer has noticed that at point 'O' the common ridge/boundary between the fields was damaged. Perusal of the site plan further reveals that the fields of Surgyan, Ranglal, Bhartya and Lakkhi adjoin each other's field. It is worth noticing that the accused were armed with lathi, kulhari and dhariya, which are agricultural implements. Thus, we have no hesitation to hold that without any premeditation, on the spur of the moment, due to damage of the common boundary/ridge dividing the fields, the occurrence had ensued. Bharatlal and Lakkhi had raised protest due to damage of the ridge/boundary, which led to exchange of abuses. 20. The narration of the prosecution witnesses that Bharatlal, after giving abuses called other co-accused, seem to be an embellishment as we can take notice of the probability that all accused were working in the adjoining fields and when abuses were exchanged, they were attracted to the spot. When verbal altercation had ensued, at heat of the moment tempers ran high and in anger, accused caused injuries. We may notice that Rampati, Ranglal, Surgyan and Jamnalal had all suffered simple injuries. When verbal altercation had ensued, at heat of the moment tempers ran high and in anger, accused caused injuries. We may notice that Rampati, Ranglal, Surgyan and Jamnalal had all suffered simple injuries. Only one injury suffered by Ratanlal was a fracture of tibia and fibula. Thus, to us it is evident that the common object of the assembly was to give beating to the accused in heat of passion without any premeditation. We are of the considered opinion that common object of the assembly formulated at the spot was to give beating or sound thrashing and cause grievous injuries to the witnesses. However, Chratlal and Lakkhi exceeded the common object of the assembly and caused injuries to Hansraj leading to his death. As per witnesses, Chratlal, Ram Prasad and Lakkhi had caused solitary injury each on the head of Hansraj and all the three injuries were cumulatively responsible for causing death. We may specify that these injuries have caused fracture of parietal, occipital and frontal bone and had also resulted into hematoma. Having held that the common object of the assembly was to give beating or sound thrashing and cause grievous injuries, and Ram Prasad, Chratlal and Lakkhi exceeded the common object of the assembly, the question which confronts us is as to for what offence they will be responsible-Considering that the occurrence was a sudden affair, and the unlawful assembly formulated common object at the spot, we are of the view that for exceeding common object of the assembly, Charatlal, Ram Prasad and Lakkhi shall be responsible for offence under Section 304 Part-I IPC and not under Section 302 IPC. Thus, we hold that all the three appellants along with Charatlal, accused, who died subsequently and Ram Prasad, who was declared as proclaimed offender, constituted an unlawful assembly, common object of which was to cause grievous injuries, and Hansraj, Charatlal and Ram Prasad by exceeding the common object of the assembly made themselves individually liable for offence under Section 304 Part-I IPC. Consequently, we uphold the conviction and sentence of the appellants Bharatlal and Prahlad for offences under Sections 147, 148, 323/149, 325/149 IPC. However, so far as conviction of the appellants for offence under Section 302/149 IPC is concerned, we set aside the same qua all the three appellants. Consequently, we uphold the conviction and sentence of the appellants Bharatlal and Prahlad for offences under Sections 147, 148, 323/149, 325/149 IPC. However, so far as conviction of the appellants for offence under Section 302/149 IPC is concerned, we set aside the same qua all the three appellants. However, appellant Lakkhi instead of offence under Section 302/149 IPC, individually stand convicted for offence under Section 304 Part-I IPC. Having converted the offence under Section 302/149 to 304 Part-I IPC, qua appellant Lakkhi we sentence appellant Lakkhi to ten years' rigorous imprisonment and impose a fine of Rs. 10,000/-, in default of payment of fine Lakkhi appellant shall undergo one year rigorous imprisonment. 21. With the above modification in the offence and sentence, both the appeals stand disposed of.Appeal disposed of. *******