JUDGMENT Manindra Mohan Shrivastava, J. 1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 22-07-1998 by the 6th Additional Sessions Judge, Bilaspur in Sessions Trial No. 177/97, whereby and whereunder the appellants have been held guilty of commission of offence and ordered to undergo sentences as described below: Conviction Sentence Appellant No.1 Under Section 147 of IPC R.I. for one year Under Section 307 of IPC R.I. for three years and fine of Rs. 100/- in default, R.I. for one month Under Section 323 of IPC R.I. for six months Under Section 323/149 of IPC R.I. for six months Under Section 323/149 of IPC R.I. for six months Appellant No.2 Under Section 147 of IPC R.I. for one year each Under Section 307/149 of IPC R.I. for three years and fine of Rs.100/- in default, R.I. for one month each Under Section 323/149 of IPC R.I. for six months each Under Section 323/149 of IPC R.I. for six months each Under Section 323/149 of IPC R.I. for six months each All the sentences were ordered to run concurrently) PROSECUTION STORY 2. Case of the prosecution is that on the date of incident when the appellants were engaged in manufacturing bricks on a piece of land, Maikulal came in and obstructed by saying that the land belonged to him, as such, the appellants should not carry out any activity. It is said that thereafter in the evening; the appellants arrived in the house of Maikulal and started beating him with hands and fists. Dau Ram gave lathi blow on the head of Maikulal, P.W. 9, whereupon Maikulal fell down. It is further said that when other members of his family, Surit Ram, P.W. 1, Sushila Bai, P.W. 7 and Mahesh Ram, P.W. 7 came out to save and rescue Maikulal, they were also beaten up. FIR in Ex. P-1 was lodged at 6 p.m. on 16-02-1997 by Surit Ram, PW-1, wherein, he narrated the incident and stated that the appellants had arrived in his house and started beating his father Maikulal, PW-9 and Dau Ram gave a lathi blow on his head whereafter Maikulal fell down and started bleeding. After registration of FIR, the injured were sent for medical examination. Surit Ram, PW-1, Sushila Bai, PW-4, Mahesh Ram, PW-7 and Maikulal, PW-9 were examined by Dr. H.D. Dahire, PW-2. After registration of FIR, the injured were sent for medical examination. Surit Ram, PW-1, Sushila Bai, PW-4, Mahesh Ram, PW-7 and Maikulal, PW-9 were examined by Dr. H.D. Dahire, PW-2. After examining the four injured named above Dr. Dahire, PW-2 reported in his report, Ex. P-2 in respect of Mahesh Ram, Ex. P-3, in respect of Surit Ram, Ex. P-4 in respect of Sushila Bai, PW-4 and Ex. P-5 in respect of Maikulal. Plain soil and blood stained soil was seized from the spot vide Ex. P-10 and the club produced by Dau Ram, alleged to be used in the commission of offence, was also seized vide Ex. P-9. On a query made from the Doctor vide query Ex. P-1, Dr. Dahire, PW-2 stated that the injury on the head of Maikulal could be fatal. Maikulal was sent for X-Ray examination and the Radiologist gave report in Ex. P-12, no bone injury was found. Upon completion of usual investigation, charge-sheet was filed in the Court of Judicial Magistrate First Class, Katghora, who in turn, committed the case to the Court of Session, and thereafter, received on transfer by the Additional Sessions Judge, Bilaspur. 4. On the basis of material contained in the charge-sheet, learned trial Court framed charges on 21-07-1997 against the appellants for commission of offence alleged, as above. The appellants abjured guilt and they were put to trial. 5. The learned trial Court relying upon the evidence led by the prosecution held the appellants guilty of commission of offence and sentenced them as described above, giving rise to instant appeal. In order to prove its case, the prosecution examined ten witnesses. The appellants were also examined under Section 313 of Cr.P.C. in respect of incriminating circumstances appearing against them in the evidence led by the prosecution. The appellants denied having committed any offence. No defence witness was examined. 6. On the basis of material collected during investigation, the learned trial Court held the appellants guilty for commission of offence and sentenced them as described above. 7. Assailing legality and validity of impugned judgment of conviction and order of sentence, learned counsel for the appellants argued that from the evidence of prosecution witnesses and surrounding circumstances, no case for commission of offence under Section 307, IPC is made out against the appellant No. l-Dau Ram. 7. Assailing legality and validity of impugned judgment of conviction and order of sentence, learned counsel for the appellants argued that from the evidence of prosecution witnesses and surrounding circumstances, no case for commission of offence under Section 307, IPC is made out against the appellant No. l-Dau Ram. He submit that there was a dispute with regard to manufacturing of bricks and the whole incident shows that there was a quarrel and single blow was given by Dau Ram in the heat of moment without there being any intention to kill Maikulal because the blow was not inflicted with much force. The injury found on the head of Maikulal, was stated to be simple in nature and the Radiologist report also does not show any bone injury. He submits that even according to the prosecution, all the accused persons had surrounded Maikulal and if there is any intention to kill, nothing prevented them from inflicting many more injuries on the vital parts of the body. However, in the present case, Maikulal sustained simple injury on the head and all other injuries are found to be bruise or abrasion, which are simple in nature. He further submits that other accused are not alleged to have been armed with other weapon. It is next contended that there may be a common object to teach lesson to Maikulal for his obstruction toward manufacturing bricks but the evidence on record does not satisfy the requirement of common object so as to involve each and every appellant in commission of offence under Section 307, IPC and if at all it is held, at the most, it could only be said that it was Dau Ram alone who was liable for commission of offence under Section 307 of IPC. Learned counsel for the appellants submits that at the most, even if prosecution evidence is accepted, offence under Section 323 of IPC is made out. 8. On the other hand, learned State counsel submits that the appellants in a preplanned manner came to the house of the victim-Maikulal and started assaulting with hands and fists by stating that they would kill Maikulal on that day. He submits that repeated assaults though by fists and hands and blows, were given by all the appellants including lathi blow given by Dau Ram on Maikulal. He submits that repeated assaults though by fists and hands and blows, were given by all the appellants including lathi blow given by Dau Ram on Maikulal. The act of one of the members of unlawful assembly namely Dau Ram clearly manifest the intention to kill, therefore, irrespective of the nature of injury found on the head of Maikulal, a case for commission of offence under Section 307 of IPC is made out. He submits that all the appellants in a pre-planned manner gathered in the house of Maikulal and started assaulting, makes out a case of common object, and therefore, each of the appellants is responsible for criminal overt act committed by every member of the unlawful assembly. 9. Surit Ram, PW-1, Sushila Bai, PW-4, Mahesh Ram and Maikulal, PW-9 have deposed before the Court that the appellants arrived in the house of Maikulal in the evening and started abusing. Appellants started assaulting with hands, fists and legs whereafter Maikulal run away to save himself and at this stage, Dau Ram gave a lathi blow on his head, due to which, Maikulal fell down and started bleeding. Thereafter, he was taken to hospital and report was lodged by Surit Ram, PW-1 in the Police Station. The evidence of Surit Ram, PW-1 also shows that on the date of incident when Dau Ram was manufacturing bricks, his father, Maikulal had asked Dau Ram not to carry out the activity claiming that the lands belonged to him and no brick may be manufactured there. It is said that after 2-4 days of the incident, all the appellants arrived in his house, started abusing and then Maikulal was assaulted by Dau Ram on his head. It has also been deposed by the aforesaid witnesses that when an attempt was made to rescue and save Maikulal, Surit Ram, PW-1, Son of Maikulal, Sushila Bai, PW-4, Daughter of Maikulal, Mahesh Ram, PW-7, son-in-law of Maikulal were also assaulted. The evidence of all these witnesses is coherent on the aspect that the appellants had come to the house of Maikulal, they abused and then started assaulting with hands and fists and when Maikulal sought to escape away from the assault, then Dau Ram gave a lathi blow on his head. According to the evidence of all these witnesses, lathi blow was given to Maikulal by Dau Ram only. According to the evidence of all these witnesses, lathi blow was given to Maikulal by Dau Ram only. None of these witnesses have stated that the appellants except Dau Ram were holding lathi or any other kind of weapon in their hands. The specific allegation of holding lathi and giving lathi blow to Maikulal is only on Dau Ram. 10. The injuries sustained by Surit Ram, PW-1, Sushila Bai, PW-4, Mahesh Ram, PW-7 and Maikulal, PW-9 have been proved by Dr. H.D. Dahire, who have examined them. According to the reports, Ex. P-2, P-3, P-4 and P-5, all the injuries have been found to be simple in nature. The lacerated wound found on the head of Maikulal as stated in report Ex. P-5, was found to be simple and 2.5 x 1/4 Inches on the left parietal part of the head. In his examination, Dr. Dahire, PW-2 has deposed that he gave an opinion that the injury on the head of Maikulal was fatal because it is apparent on the face that at the time of medical examination even before X-Ray examination, he has clarified that as there was no X-Ray report, at that stage, he was not in a position to give definite opinion, therefore, he referred for X-Ray examination. In the X-Ray examination, no bone injury was found as stated by Dr. S. Chatterji, PW-8, in his report Ex. P-12. He has stated that upon X-Ray examination, no fracture was found and in cross-examination, he has admitted that the injury on the head of Maikulal was simple in nature. 11. It can, thus, be seen that all the injuries were simple in nature which included head injury sustained by Maikulal in the assault. 12. As to whether all the appellants had intention to murder Maikulal and they all formed unlawful assembly with the common object of murdering Maikulal, is required to be examined in the light of the evidence on record. 13. In the case of Hari Singh v. Sukhbir Singh and others (1988) 4 SCC 551 : ( AIR 1988 SC 2127 ), the Supreme Court held that while examining whether a case of commission of offence under Section 307, IPC is made out, the Court is required to see, whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under Section 307, the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner, in which, it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. The state of mind of the accused has to be established from surrounding circumstances and the motive would be relevant circumstance. Where the evidence is not sufficient to establish with certainty, existence of all requisite intention or knowledge of the accused, there can be no conviction under Section 307, IPC. The evidence on record, nature of injuries, if examined in the light of the aforesaid principle laid down by the Apex Court, it is difficult to hold that the appellants arrived in the house of the victim, Maikulal with an intention to cause death. 14. As has been discussed hereinabove, except, Dau Ram, all other accused were not holding any weapon in their hands much less deadly weapon, from which, it could be gathered that they had come with an intention to murder Maikulal. The background, in which, the incident happened is also not of such a grave nature. The appellants were manufacturing bricks on the agricultural field and Maikulal had arrived to register his objection. It is not a case that in the field, the appellants were assaulted or they had sustained any injury by Maikulal or receiving any threat of grave nature was held out to them by Maikulal, so as to invite their reaction in the form of intention to kill Maikulal. 15. As the evidence reveals, Maikulal was assaulted by fists and legs by all the accused. While he was leaving the place, Dau Ram came and gave him a single blow on his head. The impact of lathi blow was not much because in the medical report, no bone injury has been found nor the injury was bone deep. According to the prosecution witnesses including Maikulal himself, when lathi blow was given, he fell down. While he was leaving the place, Dau Ram came and gave him a single blow on his head. The impact of lathi blow was not much because in the medical report, no bone injury has been found nor the injury was bone deep. According to the prosecution witnesses including Maikulal himself, when lathi blow was given, he fell down. The surrounding circumstances would show that Maikulal while surrounded by the appellants including Dau Ram, holding lathi in hand but the blows were not repeated much less repetition of any blow on his head by Dau Ram. No other overt act has been alleged against the appellants by Maikulal, PW-9 and other injured witnesses. This would therefore; lead to inference that after lathi blow was given and Maikulal fell down, the appellants stopped from giving further blows and assault. Had there been any intention on the part of the appellants to kill Maikulal, with the members they were having, nothing prevented Dau Ram to give lathi blow repeatedly on the vital parts of Maikulal, who were lying helpless on the ground. In these circumstances, the only inference which can be drawn from the conduct of the appellants, is that the intention was only to teach a lesson to Maikulal because he had obstructed and resisted in manufacturing bricks on the field claiming that the lands belonged to him. 16. It is also to be noted that the injuries were found to be simple in nature including the head injury caused to Maikulal by Dau Ram. 17. In view of above discussion, I have no hesitation to hold that no case for commission of offence under Section 307 of IPC is made out against Dau Ram or any of the appellants. 18. Nevertheless, the presence of the accused in the house of Maikulal and then assaulting him with hands and fists, is clearly made out from the ocular testimony of the injured witnesses Surit Ram, PW-1, Sushila Bai, PW-4, Mahesh Ram and Maikulal, PW-9, corroborated from the medical evidence and the injury proved by Dr. H.D. Dahire, PW-2. As all the injuries are simple in nature, there being no grievous injury or use of dangerous weapon, the conviction of the appellants could be sustained only under Section 323 of IPC and nothing more. 19. H.D. Dahire, PW-2. As all the injuries are simple in nature, there being no grievous injury or use of dangerous weapon, the conviction of the appellants could be sustained only under Section 323 of IPC and nothing more. 19. Taking into consideration the totality of the circumstances, nature of injury sustained and that except the appellant No. 1-Dau Ram, have undergone three months of R.I. and that Dau Ram has undergone four months R.I., in the considered opinion of this Court, interest of justice would be served, if the appellants are convicted for commission of offence under Section 323 of IPC and sentenced to undergo R.I. for the period already undergone by each of them. 20. In the result, the appeal is partly allowed. The conviction of the appellants is altered to Section 323/147 IPC and 323/149 of IPC with sentence of four months R.I. to appellant No. 1 and three months to appellants No. 2 to 12. The appellant No. 1 has already undergone 4 months R.I. and appellants No. 2 to 12 have already undergone three months R.I. They need not surrender. Bail bonds stand discharged.