JUDGMENT : Mohammad Rafiq, J. 1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure (for short, ‘the CrPC’) has been filed by five accused-appellants, namely, Chhuttan alias Chhutya, Pappu, Hari Ram alias Hariya, Dhanna and Smt. Rani, assailing judgment and order dated 22.03.2010 passed by learned Additional Sessions Judge, Bandikui, District Dausa, in Sessions Case No. 12/2006, whereby learned trial court convicted accused-appellant Chhuttan @ Chhutya for offence under Sections 147, 148, 323/149, 324/149, 325/149, 326/149, 307/149 and 302 of the Indian Penal Code (for short, ‘the IPC’) and remaining accused-appellants, namely, Pappu, Hari Ram @ Harya, Dhanna and Rani for offence under Sections 147, 148, 323/149, 324/149, 325/149, 326/149, 307/149 and 302/149 of the IPC and sentenced them with rigorous imprisonment (for short, ‘RI’) as follows:- Accused-appellants Sentence under Section of the IPC Chhuttan alias Chhutya 147 – To undergo one year RI 148 – To undergo two years RI 323/149 To undergo one year RI 324/149 To undergo two years RI 325/149 To undergo three years RI with fine of Rs.2000/-; in default, to further undergo three months RI 326/149 To undergo five years RI with fine of Rs.3000/-; in default, to further undergo six months RI 307/149 To undergo ten years RI with fine of Rs.5000/-; in default, to further undergo six months RI 302 To undergo life imprisonment with fine of Rs.10,000/-; in default, to further undergo one year’s RI Pappu, Hari Ram alias Hariya, Dhanna and Smt. Rani 147 – To undergo one year RI 148 – To undergo two years RI 323/149 To undergo one year RI 324/149 To undergo two years RI 325/149 To undergo three years RI with fine of Rs.2000/-; in default, to further undergo three months RI 326/149 To undergo five years RI with fine of Rs.3000/-; in default, to further undergo six months RI 307/149 To undergo ten years RI with fine of Rs.5000/-; in default, to further undergo six months RI 302/149 To undergo life imprisonment with fine of Rs.10,000/-; in default, to further undergo one year’s RI 2. Briefly stated the facts of the case are that one Buddharam s/o Mr. Briefly stated the facts of the case are that one Buddharam s/o Mr. Kajod Mal, by caste Jogi, r/o Hingota, Police Station Bandikui, District Dausa, submitted a written report (Exhibit P-4) to the Station House Officer, Bandikui (Dausa) on 17.03.2006 at 9:30 AM stating therein that in the evening of 16.03.2006 at about 5:00 PM, he was at home with other members of the family. At that time, her aunt (‘mausi’ i.e. mother’s sister) Bhagwati Devi w/o Mr. Rameshwar was returning back from the forest with the she-goats after feeding them. Suddenly, the she goats reached at the platform (‘chabutra’) of Ghudyanath. Annoyed with that, Smt. Gulab Devi w/o Ghudyanath started abusing her. At that time, complainant’s uncle (‘tauji’) Ghudyanath and his four sons, namely, Dhannaram, Hariya, Pappu and Chhutya came there armed with weapons. Chhutya was armed with ‘ballam’, Dhanna was armed with ‘dhariya’, Pappu was armed with ‘barchhi’, Gorya was armed with ‘lathi’ and Smt. Rani was armed with ‘gandasa’. All these persons attacked them, as a result of which Banwari, Pooran, Hajari, Kamli, Bhagwati, Bavlya and Bhola received injuries. Women of accused-party were also throwing stones. The injured were taken to S.M.S. Hospital, Jaipur, where Banwari succumbed to the injuries. 3. Upon receipt of the report, the police registered regular F.I.R. No. 188/2006 for offence under Sections 147, 331, 336, 323, 324, 149 and 302 IPC and commenced investigation. From the side of the accused, Hari Ram also filed a complaint in the court about the same incident, which was forwarded under Section 156(3) of the Cr.P.C. at the Police Station Bandikui. The police registered cross F.I.R. No. 224/2006 for offence under Sections 143, 341 and 323 IPC and commenced investigation. In the incident, Hari Ram received as many as four injuries and on X-ray, fracture of 1st metacarpal bone was seen. 4. The police arrested the accused-appellants and filed challan against them for offence under Sections 147, 148, 323, 324, 325, 326, 307 and 302 IPC. The trial court framed charges for the said offences. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 22 witnesses and also exhibited 52 documents. The defence, in support of its case, examined Dr. Sua Lal Meena as DW-1 and got 14 documents exhibited. The trial court framed charges for the said offences. The accused denied the charges and claimed to be tried. The prosecution, in support of its case, examined 22 witnesses and also exhibited 52 documents. The defence, in support of its case, examined Dr. Sua Lal Meena as DW-1 and got 14 documents exhibited. Learned trial court, after hearing both the parties, vide impugned judgment and order, while acquitting co-accused Ghudya, Smt. Gulab Devi, Smt. Guddi and Smt. Phool Devi for the charges, convicted and sentenced the accused-appellants in the manner indicated above. Hence this appeal. 5. Mr. Biri Singh Sinsinwar, learned senior counsel for accused appellants, argued that the learned trial court has erred in convicting the accused-appellants with the aid of Section 149 IPC inasmuch as the incident had taken place all of a sudden on heated exchange of words, which took place between Bhagwati Devi of complainant party and Gulab Devi of accused-party. They quarreled because she-goat of the complainant party had climbed the platform of the house of the accused-party. Thereupon, it is alleged that Gulab Devi started abusing Bhagwati and then Ghudyanath and her four sons, namely, Chhuttan, Dhanna, Pappu, Hariya and Rani w/o Kishna also allegedly joined the quarrel. The incident had thus taken place all of a sudden at the spur of moment in front of the house of the accused-persons and without any premeditation on the part of the accused-appellants and the presence of the accused-appellants at their own house was natural. There can be no question of any common object, therefore conviction of the accused-appellant with the aid of Section 149 IPC was therefore not justified. It is argued that the injuries have been received by both the parties in the incident. There are six injured on the side of the complainant party, whereas Hari Ram of the accused side has also received four injuries at the hands of the complainant party. Reference is made to injury report (Exhibit D-13) of Hari Ram, according to which he sustained four injuries; one of which was fracture of metacarpal bone, which is clear from the M.L.C. X-ray Report (Exhibit D-14). Learned senior counsel therefore argued that the sequence in which the incident had taken place clearly shows that neither deceased Banwari nor injured Pooran (PW-7), and other injured who have sustained grievous injuries, were present when the incident took place. Learned senior counsel therefore argued that the sequence in which the incident had taken place clearly shows that neither deceased Banwari nor injured Pooran (PW-7), and other injured who have sustained grievous injuries, were present when the incident took place. As per the statements of prosecution witnesses, Banwari received injuries when he tried to intervene and save others. Even as per statement of informant Buddharam (PW-2), the incident had started owing to heated exchange of words between Bhagwati and Gulab Devi, who started abusing each other. Thereafter Ghudyanath and his four sons i.e. the accused-appellants no.1 to 4 joined the incident. 6. Learned senior counsel argued that accused-appellants were allegedly armed with weapons. Chhuttan @ Chhutya was armed with ‘ballam’, Dhanna Ram was armed with ‘dhariya’, Pappu was armed with ‘barchhi’ and Gorya was armed with ‘lathi’. Pappu inflicted a ‘barchhi’ blow on her hand. This witness then stated that thereafter his brother Banwari, on hearing hue and cry, came there and Chhuttan @ Chhutya inflicted a ‘ballam’ blow on his stomach, which resulted into rupture of skin of stomach, Pappu and Hariya also inflicted ‘barchhi’ blows on Banwari. Hariya also inflicted a blow on the person of Bhagwati. Hariya also inflicted a blow on the head of Banwari. Gorya inflicted a ‘lathi’ blow on the head of Pooran. Rani inflicted a ‘gandasa’ blow on the head of Bavlya and then Rani inflicted a ‘gandasa’ blow on the person of Banwari while he was lying on the ground. All this version is not corroborated from his earliest version given to the police on 18.03.2006 (Exhibit D-1). When this witness was confronted with what he stated to the police, he failed to furnish any explanation on the specific allegation. In cross-examination, he stated that the incident started on the dispute when the she-goats of the complainant party climbed on the platform (‘chabutra’) of the house of the accused party and thereupon Bhagwati started hurling abuses at the accused-party. There was no other reason. This witness and other witnesses of the prosecution have substantially improved upon their version to the police after they came across with the injury report and location of the injuries. 7. There was no other reason. This witness and other witnesses of the prosecution have substantially improved upon their version to the police after they came across with the injury report and location of the injuries. 7. Learned senior counsel referred to statement of Buddha Ram s/o Kajod (PW-2), who, in cross-examination, stated that injuries were already caused to the members of the complainant party before Banwari reached the place of incident and they were already lying on the ground. The accused started beating Banwari after he came there. Harmi (PW-3), in cross-examination, stated that the incident took place suddenly over the dispute of she-goat of the complainant party climbing the platform of the house of the accused party. This witness in last line of the cross-examination stated that whatever statement he was making was based on the information given to him by his sister and that he did not see the incident himself. Kamli w/o Kajod (PW-4), the injured witness, has also given a similar version that the incident took place all of a sudden and that when the incident started there were 5-6 person of the complainant side and four persons of the accused side present. The members of the complainant party having sustained injuries were lying on the ground when this witness reached the place of incident and the persons of the complainant party had already received injuries. They narrated to her as to what injury was caused to them by which accused. Bhagwati (PW-5) has stated that ‘chabutra’, on which the she-goats climbed, was of accused Ghudya. Ghudya started hurling filthy abuses at her. Thereupon her sons, namely, Pooran and Bhola came there and that sons of Kamli were not there. Upon hearing hue and cry, Banwari also came there later. Her sons asked Ghudya and other members not to abuse their mother but he persisted in abusing her. It is owing to this dispute that suddenly the incident took place. Jagdish @ Bhola (PW-6) has also corroborated this version in cross-examination when he stated that when their she-goats climbed the ‘chabutra’ of the accused, they started abusing them and the incident suddenly took place on this issue. Pooran (PW-7) has stated that owing to this dispute the incident suddenly took place. Babli (PW-8) has also similarly stated that the dispute occurred when the she-goats of the complainant party climbed the ‘chabutra’ of the accused. Pooran (PW-7) has stated that owing to this dispute the incident suddenly took place. Babli (PW-8) has also similarly stated that the dispute occurred when the she-goats of the complainant party climbed the ‘chabutra’ of the accused. At that time he was present in his house. Banwari arrived at the scene of occurrence after injuries were caused to other members of the complainant party. Hajari (PW-14), the injured witness, has also stated that when the incident started, he was not present at the place of occurrence but he reached there only on hearing hue and cry and so soon he reached there Hariya inflicted a ‘barchhi’ blow on his head, as a result of which he became unconscious and fell on the ground. He gained his consciousness at night in the Hospital at Bandikui. Thereafter other members of their party did not tell him as to which accused caused which injury. Learned senior counsel submitted that this witness cannot be said to be the eyewitness. Learned senior counsel argued that the postmortem report of Banwari (Exhibit P-33) has been proved by Dr. Sumant Dutta (PW-16), and if the postmortem report is carefully analyzed in the light of statement of Dr. Sumant Dutta (PW-16), there were total eight injuries sustained by deceased Banwari, out of which three were lacerated wounds, one was abrasion, two were stitch wounds, one was punctured wound and one was sigmoid colostomy. Injury no.7 of the deceased was the only injury which, as per the postmortem report, was the cause of death. With regard to injuries sustained by other members of the complainant party, learned senior counsel submitted that except Hajari (PW-14) and Pooran (PW-7), injuries sustained by others were simple in nature. Injury report of Hajari is Exhibit P-17, according to which he sustained nine injuries. The first three injuries sustained by him were incised wounds. As per Dr. Mahesh Vashistha (PW-9), X-ray was advised for injuries no.1, 2 and 3 and that remaining injuries were simple in nature. Injuries no.1 and 2 were caused by sharp edged weapon and remaining injuries were caused by blunt weapon. The X-ray report of Hajari (Exhibit P-22) shows that there was fracture of temporal-frontal region seen. Similarly, injury report of Pooran (Exhibit P-21) shows that he received five injuries; out of which three were incised wounds, one was lacerated wound and one was bruise. The X-ray report of Hajari (Exhibit P-22) shows that there was fracture of temporal-frontal region seen. Similarly, injury report of Pooran (Exhibit P-21) shows that he received five injuries; out of which three were incised wounds, one was lacerated wound and one was bruise. X-ray report (Exhibit P-26) of Pooran shows that there was fracture of base of distal phalanx of thumb on right side. There was a fracture of lateral end of clavicle on right side and that was corresponding to injuries no.4 and 5. Gopal sustained one simple injury. Bhola sustained one simple injury. Kamali sustained three simple injuries. Bhagwati sustained two simple injuries. The manner in which the incident took place and the nature of injuries sustained by the members of the complainant party hardly justify the finding of the trial court that the accused-appellants formed unlawful assembly with common object of committing murder of Banwari. 8. Learned senior counsel argued that at the maximum the accused-appellants can be held responsible for individual act because there was cross-fight between the parties in which one of the members of the accused-appellants, namely, Hari Ram sustained injuries, which would be evident from the injury-report of Hari Ram (Exhibit D-13). The X-ray report of Hari Ram is Exhibit D-14, which shows that there was fracture of first metacarpal bone. Dr. Sua Lal Meena (DW-1) has proved that Hari Ram sustained four injuries and after X-ray all were opined to be grievous. Learned senior counsel submitted that the sequence of events narrated by the prosecution witnesses clearly shows that the accused continuously stayed in their own and the members of the complainant party reached there one by one and not together and in that process they might have received injuries but this was a spontaneous reaction to incident of fight amongst the females of the family, which was later joined by the male members. Banwari and Hajari were the last once who reached there and therefore it cannot be said that the accused formed any unlawful assembly to commit murder of deceased Banwari. Even though he died in the incident but it was unintended death. As per the prosecution story, the incident has taken place all of a sudden on a very trifle issue of the she-goats of the complainant climbing on the platform of the house of accused. Even though he died in the incident but it was unintended death. As per the prosecution story, the incident has taken place all of a sudden on a very trifle issue of the she-goats of the complainant climbing on the platform of the house of accused. Therefore, it cannot at all be said that all the accused-appellants formed an unlawful assembly and gave beating to the deceased with common object. In the incident, accused-appellant Hari Ram also received four injuries including fracture at the hands of complainant party and therefore in the facts of the case the accused-appellants cannot be held liable vicariously for the act of others and can be held liable only for their own act. 9. It is argued that the cause of death of the deceased is injury no.7 on the stomach and that is attributed to accused-appellant Chhuttan, though there is no specific allegation against him in the F.I.R. Subsequently, after seeing the postmortem report, the prosecution witnesses levelled specific allegation against him. It is also argued that the incident has taken place all of a sudden in front of the house of the accused-persons and without any premeditation on the part of the accused-appellants and the presence of the accused-appellants at their own house was natural. The prosecution witnesses have not explained the injury received by accused Hari Ram and therefore adverse inference ought to be drawn against the prosecution for not explaining the injury on the person of accused. It is further argued that learned trial court has erred in not correctly appreciating the evidence on record in its true perspective. The prosecution witnesses have developed different case before the learned trial court. They made improvement in their statements as suited to them after seeing the postmortem report and the injury reports, though there was no specific allegation during the investigation as they levelled. The findings of the learned trial court are based on surmises and conjectures and therefore are liable to be set aside. 10. Learned senior counsel argued that the incident had taken place on 16.03.2006 at about 5:00 PM, whereas written-report (Exhibit P-4) was given to the Station House Officer, Police Station Bandikui on 17.03.2006 at 9:30 AM, which reached the ‘Ilaka’ Magistrate on 18.03.2006. There is no explanation of the delay in lodging the FIR nor in sending the written report to the ‘Ilaka’ Magistrate. There is no explanation of the delay in lodging the FIR nor in sending the written report to the ‘Ilaka’ Magistrate. Although it is true that the injured Pooran and Hajari sustained fractures but neither in the injury report nor in the statement of doctor the same are proved to be fatal nor the Dr. Suman Dutta (PW-16) has opined that any of the injuries individually or cumulatively were sufficient to cause death in the ordinary course of nature. Therefore the conviction for offence under Section 307 IPC was bad in law. 11. Learned Public Prosecutor opposed the appeal and supported the impugned judgment and referred to testimony of all the witnesses. He argued that the judgment passed by the learned trial court is perfectly justified and does not call for any interference. 12. We have given our anxious consideration to rival submissions of learned senior counsel for the accused-appellants as also learned Public Prosecutor and also minutely scanned the material on record. 13. Analysis of the statements of the prosecution witnesses clearly shows that the incident had taken place suddenly when the she-goats, which were taken to the forest by Bhagwati for grazing, while returning, climbed the ‘chabutra’ of the house of Ghudyanath. As per the first version in the written report, his wife Gulab Devi started abusing Bhagwati. Thereafter Ghudyanath and his four sons, namely, Dhannaram, Hariya, Pappu and Chhutya came there armed with weapons. Chhutya was armed with ‘ballam’, Dhanna was armed with ‘dhariya’, Pappu was armed with ‘barchhi’, Gorya was armed with ‘lathi’ and Smt. Rani was armed with ‘gandasa’. These persons suddenly attacked the members of the complainant party. The members of the complainant party, namely, Banwari, Pooran, Hajari, Kamli, Bhagwati, Bavlya and hola received injuries. Statements of most of the injured eye witnesses and other eye witnesses were recorded by the police on 17th and 18th of March, 2006. In their initial version, these witnesses made general allegation against accused allegedly armed with aforementioned weapons of causing injuries to the members of the complainant party and further that due to this, Banwari, Pooran, Hajari, Kamli, Bhagwati, Bavlya and Bhola received injuries and that Banwari succumbed to injuries. Thereafter, it was alleged that Banwari and Hajari intervened. In their initial version, these witnesses made general allegation against accused allegedly armed with aforementioned weapons of causing injuries to the members of the complainant party and further that due to this, Banwari, Pooran, Hajari, Kamli, Bhagwati, Bavlya and Bhola received injuries and that Banwari succumbed to injuries. Thereafter, it was alleged that Banwari and Hajari intervened. When Banwari came to save Kamli, Chhuttan @ Chhutya caused stab wound with ‘ballam’ in his stomach and thereafter Pooran and Hajari came there, who too were subjected to beating. In the court statement however the prosecution witnesses have made substantial improvement with regard to their version as to specific role assigned to the accused. All of them are unanimous as to the allegation against accused Chhutya that it was he, who caused stab wound in the stomach of Banwari by ‘ballam’. Learned counsel argued that Buddha Ram (PW-2) neither in the written report (Exhibit P-4) nor in his police statement (Exhibit D-1) has made any specific allegation against any other accused except assigning the weapons but in court statement he has come out with specific allegation that Pappu inflicted a ‘barchhi’ blow on person of Pooran. He also inflicted a ‘barchhi’ blow on the hand of Bhola. He further inflicted a ‘barchhi’ blow on the head of Hajari and also on the person of Banwari. With regard to Hari Ram @ Hariya, again in the improved version, he alleged that Hariya inflicted a ‘barchhi’ blow on the person of Hajari. Hariya and Pappu both inflicted ‘barchhi’ blows on the person of Banwari. Hariya inflicted a blow on the head of Banwari. Regarding accused Dhanna, Buddha (PW-2) has stated that Dhanna inflicted a ‘dharia’ blow on the right shoulder of Pooran. As regards accused Rani, this witness stated that she inflicted a ‘gandasa’ blow on the head of Bablya, and she also inflicted a ‘gandasa’ blow on the armpit of Banwari. Similarly, Kamli (PW-4), who in her police statement merely stated as to which accused was armed with which weapon, in her court statement, stated that Pappu inflicted a ‘lathi’ blow on her head as also on the head of Pooran and he inflicted a ‘barchhi’ blow on the hand of Bhola. Similarly, for accused Hari Ram, this witness stated that he inflicted a ‘barchhi’ blow on the head of Banwari and caused injury to Hajari. Similarly, for accused Hari Ram, this witness stated that he inflicted a ‘barchhi’ blow on the head of Banwari and caused injury to Hajari. For accused Dhanna, it is alleged by her that he inflicted a ‘dharia’ blow on the head of Pooran and inflicted a blow on the hand of Banwari and also caused injury to Hajari. With regard to accused Rani, this witness stated that she inflicted a ‘gandasa’ on the head of Gopal and on the armpit of Banwari. Her injury report (Exhibit P-19) shows that she sustained total three injuries. The first injury was incised wound with dimension 6cmx2cmxbone deep over left parietal region obliquely placed with fresh bleeding. Second injury was bruise (red) with dimension 6cmx4cm over left shoulder. Third injury was abrasion with dimension 1cmx1cm, red over right knee. All the injuries were simple in nature. If her injury report (Exhibit P-19) is analyzed in the light of her allegations in the court statement, the same cannot be attributed to anyone because even though she made allegation against five accused including Chhuttan @ Chhutya, this is not medically corroborated because there is no ‘lathi’ blow on her head. For the first injury, there is no specific allegation made by her in her statement. 14. Coming now to injured eyewitness Bhagwati (PW-5), she sustained two injuries. The first injury was incised wound with dimension 6cmx2cmxbone deep having fresh bleeding, clear cut, regular well defined margins, obliquely placed over right frontal parietal region, for which the doctor advised for X-ray. Second injury was bruise of 6cmx2cm, red over left knee, which was opined to be simple in nature. In her police statement, she made general allegation against all the accused including principal accused Chhuttan @ Chhutya but in court statement she has made tremendous improvement and alleged that Chhuttan inflicted a ‘ballam’ blow on the stomach of the deceased. For Pappu, she has stated that he inflicted a ‘barchhi’ blow on the head of deceased Banwari and also on her own head and on the hands of her sons. With regard to Hari Ram, her allegation was that he inflicted a blow on the thumb of the hand of Pooran and on the shoulder of the deceased. Then she alleged that Dhanna inflicted a blow on the shoulder of Pooran. With regard to Hari Ram, her allegation was that he inflicted a blow on the thumb of the hand of Pooran and on the shoulder of the deceased. Then she alleged that Dhanna inflicted a blow on the shoulder of Pooran. Then she alleged that Rani inflicted a ‘gandasa’ blow on the armpit of the deceased and on the forehead of Bablya. Jagdish @ Bhola (PW-6) has sustained only one incised wound in the size of 6cmx1cmxbone deep with fresh bleeding, transversely placed over right hand with clear cut, regular, well defined margins. His injury report is Exhibit P-18. His police statement (Exhibit D-5) contains general allegations and when confronted therewith, he failed to give any explanation. In court statement, he has alleged that Pappu inflicted a blow on her head, which he received on the hand. Then he alleged that Hari Ram inflicted a blow on the thumb of hand of Pooran and Dhanna inflicted a blow on the right hand of Pooran. Pooran (PW-7) himself has received five injuries. In the court statement, this witness remained consistent with what he stated before the police statement (Exhibit D-6) that Chhuttan caused stabbed wound by ‘ballam’ on the stomach of deceased Banwari but he further stated that Pappu inflicted a ‘barchhi’ blow on the hand of Bhola and on the head of Banwari and also caused injury by ‘barchhi’ on Hajari but in police statement (Exhibit D-6) his simple allegation is that Pappu inflicted a ‘lathi’ blow on his own right hand, which is marked improvement over his police statement. With regard to Hari Ram, he stated that Hari Ram inflicted a ‘barchhi’ blow on his right hand. In court statement again he stated that he inflicted a ‘barchhi’ blow on his thumb of the hand but then additionally added that Hari Ram inflicted a ‘barchhi’ blow on the head of Banwari and on the head of Hajari. For Dhanna, he originally alleged in police statement (Exhibit D-6) that he inflicted a blow of ‘dharia’ from reverse side on his shoulder but in court he alleged that Dhanna inflicted an injury on his right hand and also caused injury by ‘dharia’ on his shoulder and an injury on the hand of Banwari and on the head of Hajari. For Dhanna, he originally alleged in police statement (Exhibit D-6) that he inflicted a blow of ‘dharia’ from reverse side on his shoulder but in court he alleged that Dhanna inflicted an injury on his right hand and also caused injury by ‘dharia’ on his shoulder and an injury on the hand of Banwari and on the head of Hajari. As regards accused Rani, this witness did not make any specific allegation in the police statement but in court he stated that she inflicted a ‘gandasa’ blow on the armpit of deceased Banwari. Now when this statement is contrasted with his injury report, the injury no.4, which is a bruise of the size 6cmx4cm, red with swelling over right shoulder resulting into fracture, is approximate with the allegation against Dhanna that he inflicted a ‘dharia’ blow from reverse side on his shoulder. Injury no.5, an incised wound of 2cmx1cmxbone deep with fresh bleeding and clear cut well defined margins over right thumb which resulted into fracture, is approximate with the allegation against Hari Ram that he inflicted a ‘barchhi’ blow on his hand. But as regards the first three injuries, all were incised wounds caused on the head and there is no corresponding allegation in his statement as to which accused caused any of these injuries. 15. Babli @ Gopal (PW-8), though is not injured, but in the police statement (Exhibit D-7) has made general allegation against all other accused except Chhuttan that he inflicted a stabbed wound by ‘ballam’ on the stomach of Banwari and with regard to Rani, he alleged that she inflicted a blow on the forehead of this witness. She reiterated these two allegations in her court statement except with improvement that Rani inflicted a ‘gandasa’ blow on the forehead and also a ‘gandasa’ blow on the armpit of Banwari. The injury report of Babli has not been produced inasmuch as he has not been subjected to any medical examination, which shows that he did not receive any injury. Though in court statement, he has made allegation against Pappu that he inflicted a ‘barchhi’ blow on the head of Pooran and ‘barchhi’ blow on the hand of Bhola and on the heads of Hajari and Banwari. With regard to Hari Ram, this witness stated that he caused ‘barchhi’ blow on the hand of Pooran and on the head of Hajari and on the elbow of Banwari. With regard to Hari Ram, this witness stated that he caused ‘barchhi’ blow on the hand of Pooran and on the head of Hajari and on the elbow of Banwari. Then he stated that Dhanna caused a ‘dharia blow from reverse side on the person of Pooran and Hajari and also inflicted a blow on the head of Banwari. Apparently, Babli @ Gopal (PW-8) has made substantial improvement over his original version in the statement (Exhibit D-7) given to the police recorded on 19.03.2006, whereas he made only general allegations against other accused Pappu, Hari Ram and Dhanna. Geeta Devi (PW-12), in the court statement, has been consistent with her police statement (Exhibit D-9) that Chhuttan inflicted a ‘ballam’ blow on the stomach of Banwari but with regard to other accused this witness has also made substantial improvements over his original version and when confronted therewith she failed to give any satisfactory explanation. She has stated in the court that Pappu inflicted ‘barchhi’ blows respectively on the hand of her brother Banwari, on the head of Hajari, on the head of her mother Kamli and on the person of Pooran, but in police statement she only made allegation against accused Pappu that he caused injury on the person of her mother Kamli. For Hari Ram, this witness stated in the court that he inflicted ‘barchhi’ blows respectively on the head of Hajari, on the person of her mother and on the person of Pooran, but when confronted with her police statement (Exhibit D-9) where she only alleged that Hari Ram inflicted a ‘farsa’ blow on the head of Hajari and for other allegation, she failed to give any satisfactory explanation. For Dhanna, this witness in the police statement (Exhibit D-9) stated that Dhanna inflicted a blow on her back, which though she admitted in her court statement but additionally she stated that Dhanna inflicted a ‘dharia’ blows respectively on the head of her brother, on the head of Hajari, on the person of her mother and on the person of Pooran. 16. Geeta Devi (PW-12), contrary to what she alleged against accused Rani in police statement (Exhibit D-9), has, in her court statement, stated that Rani inflicted ‘gandasa’ blows respectively on the armpit of her brother (Banwari), on the armpit of Hajari and on the hand of Gopal. 16. Geeta Devi (PW-12), contrary to what she alleged against accused Rani in police statement (Exhibit D-9), has, in her court statement, stated that Rani inflicted ‘gandasa’ blows respectively on the armpit of her brother (Banwari), on the armpit of Hajari and on the hand of Gopal. Hajari (PW-14) has been consistent with his police statement (Exhibit D-10) as to the allegation against Chhuttan that he inflicted a ‘ballam’ blow and caused stabbed wound on the stomach of Banwari. However, in regard to other accused, this witness also made lot of improvement in his court statement. For example, his allegation against Pappu in the police statement (Exhibit D-10) is that he inflicted a ‘lathi’ blow on the head of this witness Hajari, but in the court statement he has additionally alleged that Pappu respectively inflicted ‘barchhi’ blows on the person of Bhola, on the right thumb of Pooran, on the head of Bhagwati, on the head of his mother and on the person of this witness. For Hari Ram, his allegation in the police statement was that he inflicted a ‘barchhi’ blow on the elbow of right hand of this witness but in the court statement he stated that Hari Ram caused a ‘barchhi’ blow on the head of this witness. For Dhanna and Rani, this witness in his police statement (Exhibit D-10) has made general allegation but in court statement he alleged that Dhanna inflicted ‘dharia’ blows respectively on the right shoulder of Pooran and on the head of this witness. For Rani, this witness in his court statement alleged that she inflicted ‘gandasa’ blows on the person of this witness and on the forehead of Bablya. Pappi w/o Shivdayal (PW-20) is also cited as eyewitness. Her statement as far as injury caused to Banwari by ‘ballam’ in the stomach is consistent but so far as other accused are concerned, however in the court, she has attributed specific injuries to them and despite being confronted with the police statement, she failed to give any satisfactory explanation for inconsistency therewith. For example, this witness Pappi (PW-20) in her police statement, made general allegations against Pappu, Hari Ram, Dhanna and Rani. For Pappu, this witness (PW-20) in her court statement, has stated that he inflicted ‘barchhi’ blows respectively on the hand of Banwari, on the head of Kamli and on the hand of Bhola. For example, this witness Pappi (PW-20) in her police statement, made general allegations against Pappu, Hari Ram, Dhanna and Rani. For Pappu, this witness (PW-20) in her court statement, has stated that he inflicted ‘barchhi’ blows respectively on the hand of Banwari, on the head of Kamli and on the hand of Bhola. She further alleged that Hari Ram inflicted ‘barchhi’ blows respectively on the head of Banwari and on the person of Bhagwati. For Dhanna, this witness alleged that he inflicted ‘dharia’ blows respectively on the forehead of Banwari and on the right shoulder of Pooran. For Rani, this witness alleged that she inflicted ‘gandasa’ blows respectively on the armpit of Banwari, on the hand of Hajari and on the forehead of Bablya. 17. Starting first with the case of accused-appellant Rani, although it is true that a ‘gandasa’ has been recovered at her instance on 20.03.2006 vide Exhibit P-13 but this ‘gandasa’ does not contain any blood stains. Allegation that she inflicted a ‘gandasa’ blow on the forehead of Bablya also is not substantiated because neither his injury report has been produced nor otherwise any material has been brought on record that she was ever subjected to medical examination. The allegation against her by some of the witnesses is that she inflicted a blow on the armpit of deceased Banwari while he was lying on the ground but the postmortem report of deceased Banwari (Exhibit P-33), which has been proved by Dr. Sumant Dutta (PW-16), does not indicate any such injury on the alleged location. However, as regards the role of other accused, namely, Chuttan, Pappu, Hari Ram and Dhanna is concerned, they have been throughout active and were found responsible for causing injuries on the body of the deceased. Kamli (PW-4), in cross-examination, has categorically stated that the incident has taken place suddenly when Bhagwati of the complainant party and Gulab Devi w/o Ghudyanath of the accused party quarreled with each other, Gulab Devi started abusing and thereafter her husband Ghudyanath and her sons also joined her in abusing Bhagwati. At that time there were only four accused on the side of the accused-party and there were 4-6 persons on the side of the complainant party. At that time there were only four accused on the side of the accused-party and there were 4-6 persons on the side of the complainant party. This is evident from the fact that in the statements of most of the witnesses, apart from major role assigned to Chhuttan, active role of Pappu, Hari Ram and Dhanna has appeared in the other form in the testimony of the prosecution witnesses but accused Rani has not been shown active either in the written report (Exhibit P-4) or even in the court statement, yet her name was mentioned as an accused on allegation that she was armed with ‘gandasa’. However, as far as accused Chhuttan, Pappu, Hari Ram and Dhanna are concerned, allegation against them finds corroboration from the postmortem as also medical report. Hajari (PW-14) has alleged that Pappu inflicted a ‘barchhi’ blow on the head of his mother Kamli. As per injury report (Exhibit P-19), Kamli (PW-4) has sustained three injuries. The first injury is incised wound in the size of 6cmx2cmxbone deep over left parietal region obliquely placed with fresh bleeding, clear cut, well defined, regular margins. As per her own police statement, Pappu caused a ‘lathi’ blow on her head. As per her court statement, Pappu caused a ‘barchhi’ blow on her head. Buddha (PW-2) and Pappi (PW-20) have also made this allegation that Pappu inflicted a ‘barchhi’ blow on the head of Kamli. Kamli has also has sustained two other injuries. Second injury is bruise in the size of 6cmx4cm over left shoulder and abrasion in the size of 1cmx1cm red over right knee. The same were simple in nature. If we go by injury report of Bhagwati (Exhibit P-20), she has sustained two injuries. The first injury was incised wound of 6cmx2cmxbone deep, having fresh bleeding, clear cut, regular, well defined margins obliquely placed over right frontal parietal region. Bhagwati (PW-5) herself has attributed this injury to Pappu by ‘barchhi’. Geeta Devi (PW-12) has alleged that Pappu inflicted a ‘barchhi’ blow on the head of her mother Bhagwati and such allegation is consistent with her previous original version given to the police (Exhibit D-9), where she alleged that Pappu has inflicted a blow on her mother Kamli. Geeta Devi (PW-12) has alleged that Hari Ram inflicted a ‘barchhi’ blow on the head of her mother and Dhanna inflicted a ‘dharia’ blow on her person. 18. Geeta Devi (PW-12) has alleged that Hari Ram inflicted a ‘barchhi’ blow on the head of her mother and Dhanna inflicted a ‘dharia’ blow on her person. 18. Coming now to the injuries sustained by Bhagwati (PW-5), she has sustained two injuries. Her first injury was incised wound in the size of 6cmx2cmxbone deep, having fresh bleeding, clear cut regular well defined margins, obliquely placed over right fronto arietal region. Bhagwati (PW-5) herself has alleged that this injury was caused to her by Pappu, who inflicted a ‘barchhi’ blow on her head. Hajari (PW-14) has alleged that Pappu inflicted a ‘barchhi’ blow on the head of Bhagwati. Jagdish @ Bhola (PW-6), who sustained one incised wound in the size of 6cmx1cmxbone deep with fresh bleeding transversely placed over right hand with clear cut, regular, well defined margins. Pooran (PW-7), Babli (PW-8) and Geeta Devi (PW-12) are consistent in alleging that Pappu inflicted a ‘barchhi’ blow on the hand of Jagdish @ Bhola. Hajari (PW-14) has stated that Pappu inflicted a ‘lathi’ blow on the person of Bhola. As regards injuries of Pooran (PW-7) are concerned, he sustained five injuries, out of which two were incised wounds. The first injury was incised wound in the size of 2cmx1cmxbone deep with fresh bleeding having clear cut, regular well defined margins over forehead above left eye. Second injury was incised wound in the size of 1cmxmuscle deep over frontal region having fresh bleeding and well defined clear cut margins. His third injury was lacerated wound in the size of 2cmx1cmxbone deep with fresh bleeding over parieto-occipital region. Pooran (PW-7) himself has alleged that Pappu inflicted a ‘barchi’ blow on the hand of Bhola. Hari Ram inflicted a ‘barchhi’ blow respectively on the thumb of Pooran, on the head of Banwari and on the head of Hajari. Fourth and fifth injuries of Pooran have been proved to be fatal. Injury no.4 was in the size of 6cmx4cm with swelling on right shoulder, which resulted into fracture. Injury no.5 was incised wound in the size of 2cmx1cmxbone deep with fresh bleeding and clear cut well defined margins over right thumb, which has also resulted into fracture. As far as injury no.4 is concerned, Buddha (PW-2) has alleged that Dhanna inflicted a ‘dharia’ blow on the right shoulder of Pooran. Bhagwati (PW-5) has also stated that Dhanna inflicted a blow on the shoulder of Pooran. As far as injury no.4 is concerned, Buddha (PW-2) has alleged that Dhanna inflicted a ‘dharia’ blow on the right shoulder of Pooran. Bhagwati (PW-5) has also stated that Dhanna inflicted a blow on the shoulder of Pooran. Babli (PW-8) has also stated that Dhanna inflicted a ‘dharia’ blow from reverse side on the person of Pooran. Geeta Devi (PW-12) has also stated that Dhanna inflicted a ‘dharia’ blow on the person of Pooran. Hajari (PW-14) has also stated that Dhanna inflicted a ‘dharia’ blow on the right shoulder of Pooran. As regards the injury no.5 sustained by Pooran which resulted into fracture, Buddha (PW-2) has alleged that Hari Ram inflicted a ‘barchhi’ blow on the right hand of Pooran. Bhagwati (PW-5) has alleged that Hari Ram caused an injury on the thumb of Pooran. Babli (PW-8) has alleged that Hari Ram inflicted a ‘barchhi’ blow on the hand of Pooran. Geeta Devi (PW-12) has alleged that Dhanna inflicted a ‘dharia’ blow on the person of Pooran. She further alleged that Pappu, Hari Ram and Dhanna caused injuries to Pooran. Hajari (PW-14) has alleged that Pappu inflicted a ‘barchhi’ blow on the right thumb of Pooran. Apart from this, Pooran has sustained two incised wounds respectively on forehead above left eye and on frontal region. Buddha (PW-2) has alleged that Pappu inflicted a ‘barchhi’ blow on the person of Pooran. Kamli (PW-4) has alleged that Hari Ram has inflicted a ‘barchhi’ blow on the person of Pooran. Babli (PW-8) has stated that Pappu inflicted a ‘barchhi’ blow on the head of Pooran. Geeta Devi (PW-12) has alleged that Pappu inflicted a ‘barchhi’ blow on the person of Pooran. She has made similar allegation against Hari Ram that he caused a ‘barchhi’ blow on the person of Pooran and Dhanna also caused a ‘dharia’ blow on the person of Pooran. 19. Coming now to the injuries sustained by Hajari (PW-14). He has sustained nine injuries. First three injuries have been opined to be grievous and others to be simple. Two injuries were incised wounds, two were lacerated, three were bruises, one was abrasion and one was swelling. First incised wound was in the size of 5cmx1cmxbone deep with fresh bleeding having clear cut regular well defined margins over occipital region central part transversely placed. First three injuries have been opined to be grievous and others to be simple. Two injuries were incised wounds, two were lacerated, three were bruises, one was abrasion and one was swelling. First incised wound was in the size of 5cmx1cmxbone deep with fresh bleeding having clear cut regular well defined margins over occipital region central part transversely placed. Second incised wound was in the size of 4cmx1cmxbone deep with fresh bleeding over upper part of occipital region, obliquely placed. Third injury was lacerated wound in the size of 2cmx1cmxbone deep with fresh bleeding over left parieto-occipital region. Fourth injury was also lacerated wound in the size of 3cmx1cmxmuscle deep over back. Buddha (PW-2) has alleged that Pappu inflicted a ‘barchhi’ blow on the head of Hajari and Hari Ram also inflicted a ‘barchhi’ blow on the head of Hajari. Kamli (PW-4) has alleged that Hari Ram inflicted a ‘barchhi’ blow on the person of Hajari and Dhanna inflicted a ‘dharia’ blow on the person of Hajari. Pooran (PW-7) has stated that Pappu has inflicted a ‘barchhi’ blow on the person of Hajari and Hari Ram inflicted a ‘barchhi’ blow on the head of Hajari and Dhanna inflicted a ‘dharia’ blow on the head of Hajari. Babli (PW-8) has stated that Pappu inflicted a ‘barchhi’ blow on the head of Hajari and that Hari Ram inflicted a ‘barchhi’ blow on the head of Hajari and that Dhanna inflicted a ‘dharia’ blow on the person of Hajari. Geeta Devi (PW-12) has alleged that Pappu inflicted a ‘barchhi’ blow on the head of Hajari and Hari Ram inflicted a ‘barchhi’ blow on the head of Hajari and that Dhanna inflicted a ‘dharia’ blow on the head of Hajari. Hajari (PW-14) has himself alleged that Hari Ram inflicted a ‘barchhi’ blow on his head. He further stated that Hari Ram inflicted a ‘barchhi’ blow on his head and that Dhanna inflicted a ‘dharia’ blow on his head and that Rani inflicted a ‘gandasa’ blow on his person. 20. As far as role of Rani is concerned, this court is not inclined to believe the allegation against her. He further stated that Hari Ram inflicted a ‘barchhi’ blow on his head and that Dhanna inflicted a ‘dharia’ blow on his head and that Rani inflicted a ‘gandasa’ blow on his person. 20. As far as role of Rani is concerned, this court is not inclined to believe the allegation against her. However, despite the fact that only ‘lathi’ has been recovered at the instance Pappu, in view of the enormity of evidence against him by testimony of all the witnesses and regarding Hari Ram, at whose instance ‘barchhi’ has been recovered vide Exhibit P-31, Dhanna, at whose instance ‘dhariya’ has been recovered vide Exhibit P-7, and Chhuttan alias Chhutya, at whose instance ‘ballam’ has been recovered vide Exhibit P-9, the court is inclined to believe the active participation of all these four accused in the incident. Despite therefore the minor contradictions and improvements in the statement of the prosecution witnesses, the role of these four accused is clearly proved. As far as the conviction of accused-appellant Chhuttan alias Chhutya for offence under Section 302 IPC simplicitor alongwith other accused-appellants for offence under Section 302 read with Section 149 IPC is concerned, this court is of the view that the incident in the present case has taken place suddenly on a dispute which arose because when Bhagwati Devi w/o Mr. Rameshwar was returning back from the forest with the she-goats after feeding them, suddenly, the she-goats reached at the platform (‘chabutra’) of Ghudyanath and annoyed with that, Smt. Gulab Devi w/o Ghudyanath started abusing her. At that time, Ghudyanath and his four sons, namely, Dhannaram, Hariya, Pappu and Chhutya came there armed with weapons and started hurling abuses at Gulab Devi. The family members of Bhagwati also joined the fray and then the unfortunate incident took place, which led to loss of one life and injuries to certain persons. The incident thus apparently has taken place at the spur of moment and in the heat of passion, where deceased Banwari in fact reached the place of incident to intervene in the matter after number of injuries had been caused to other injured. However, accused Chhuttan @ Chhutiya having used the deadly weapons would certainly be attributed intention as well as knowledge of the fact that the injuries which he caused to deceased were likely to cause his death. However, accused Chhuttan @ Chhutiya having used the deadly weapons would certainly be attributed intention as well as knowledge of the fact that the injuries which he caused to deceased were likely to cause his death. This offence therefore in the facts of the case would be culpable homicide not amounting to murder punishable under Section 304-I of the IPC considering that the role of only four accused has been found proved, it must be held that the accused, in view of the fact that the accused reached the house of the complainant party and arranged the weapons immediately when the incident started and developed a common intention at the spot to cause the alleged offence, which resulted into the death of Banwari. 21. None of the injuries sustained by Pooran and Hajari have been opined to be sufficient individually or cumulatively to cause death of the injured and therefore the conviction of the accused-appellants for offence under Section 307/149 IPC cannot be sustained and the same is set aside. However, their conviction for offence under Sections 323, 324, 325 and 326 IPC is liable to be sustained although with the modification that instead of upholding such conviction with the aid of Section 149 IPC, they would now stand convicted with the aid of Section 34 IPC. 22. Consequently, the conviction and sentence of the accused-appellants for offence under Section 147, 148 and 307/149 IPC is set aside. The conviction of accused-appellant Smt. Rani w/o Mr. Kishna for offences under Sections 323/149, 324/149, 325/149, 326/149 and 302/149 of the IPC is also set aside. She is acquitted of all the charges. She is on bail and need not surrender. Her sureties and bail bonds are discharged. The conviction of accused-appellant Chhuttan alias Chhutya for offence under Section 302 IPC is set aside and instead he is convicted for offence under Section 304-I read with Section 34 IPC and for that offence he is sentenced to undergo ten years rigorous imprisonment with fine of Rs.5000/-, and in default of payment of fine, he has to further undergo three months simple imprisonment. The conviction of accused-appellants, namely, Pappu, Hari Ram alias Hariya and Dhanna for offence under Section 302/149 IPC is set aside and instead they are convicted for offence under Section 304-I read with Section 34 IPC and for that offence each of them is sentenced to undergo ten years rigorous imprisonment with fine of Rs.5000/- each, and in default of payment of fine, each of them to further undergo three months simple imprisonment. The conviction of the accused-appellants, namely, Chhuttan alias Chhutya, Pappu, Hari Ram alias Hariya and Dhanna for offence under Sections 323, 324, 325, 326 with the aid of Section 149 IPC is altered and they are instead convicted for offence under Sections 323, 324, 325, 326 with the aid of Section 34 IPC. For offence under Section 323/34, they are sentenced to undergo one year’s RI. For offence under Section 324/34, they are sentenced to undergo two years RI. For offence under Section 325/34, they are sentenced to undergo three years RI with fine of Rs.2000/- each; in default each of them has to further undergo three months RI. For offence under Section 326/34, they are sentenced to undergo five years RI with fine of Rs.3000/- each; in default each of them has to further undergo six months RI. All the sentences shall run concurrently. Accused-appellants Pappu, Hari Ram @ Hariya and Dhanna are on bail, whereas accused-appellant Chhuttan alias Chhutya is in jail. Accused-appellants Pappu, Hari Ram @ Hariya and Dhanna have to surrender to serve out their remaining period of sentence, if not completed. If accused-appellant Chhuttan alias Chhutya has already undergone his period of sentence, he be released forthwith, if not required to be detained in any other case. 23. Accused-appellants Pappu, Hari Ram @ Hariya and Dhanna have to surrender to serve out their remaining period of sentence, if not completed. If accused-appellant Chhuttan alias Chhutya has already undergone his period of sentence, he be released forthwith, if not required to be detained in any other case. 23. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellants, namely, Chhuttan alias Chhutya son of Ghudyaram, Pappu son of Ghudya, Hari Ram alias Hariya son of Ghudyaram, Dhanna son of Ghudyaram and Smt. Rani wife of Kishna, are directed to forthwith furnish a personal bond in the sum of Rs.20,000/- each and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, with an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court. 24. The criminal appeal accordingly stands partly allowed. The impugned judgment and order of the learned trial court is modified.