JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the original accused who have been convicted for the offences punishable under sections 143, 147, 148, 149, 323, 324 and 302 of Indian Penal Code by the learned Additional Sessions Judge under his impugned judgment dated 20.03.2012. For the offence punishable under section 302 read with section 149, all the convicts have been sentenced to life imprisonment. Lesser sentences have been imposed for other offences. Originally, there were six accused who were being brought to trial. Accused No. 4-Jignesh Rajubhai Nayak died during the trial. The trial qua him therefore had abated. The remaining five accused have therefore filed this appeal challenging their conviction and sentence. 2. Briefly stated, the prosecution version was that on 24.06.2009, when the complainant Dharmeshbhai and his friends were standing outside their residential locality, at that time, Umesh Kalubhai @ Gulo-accused No. 1 was passing by. The complainant and Umesh had a few exchange of words, upon which, Umesh threatened to call his other friends to settle the score and left. No one came on that day. However, next day i.e. 25.06.2009, at about 9:30 at night, the complainant was called to a nearby place called Harichampa party-plot where he was assaulted by all the accused who were carrying different weapons such as hockey stick, iron pipes, sticks and metal chain. The other friends of the complainant tried to save him. One Arvindbhai Morarbhai also tried to intervene. Accused No. 1 gave a blow with his hockey stick on the head of Arvindbhai causing his death. One Urmilaben Ganpatbhai and several other witnesses also received various injuries. A charge was therefore framed against all the accused at Exh. 5 for commission of offences under sections 143, 147, 148, 149, 323, 324, 307, 302, 504 and 118 of Indian Penal Code. 3. We may record the gist of evidence. 4. Dharmeshbhai Rameshbhai, PW-13, Exh. 44, was an injured eyewitness and also the first informant. He deposed that he was working as a cleaner in Surat Municipal Corporation and knew Jayesh, Suresh, Girish (other witnesses residing in his locality). On 24th evening, he was standing outside the house of Sukhabhai alongwith his friends Jayesh, Jignesh, Kalu etc. At that time, Gulo passed by staring at them. The witness therefore asked him what the problem was. He deposed that he was working as a cleaner in Surat Municipal Corporation and knew Jayesh, Suresh, Girish (other witnesses residing in his locality). On 24th evening, he was standing outside the house of Sukhabhai alongwith his friends Jayesh, Jignesh, Kalu etc. At that time, Gulo passed by staring at them. The witness therefore asked him what the problem was. Gulo abused them and threatened to beat them up by calling his other friends. The witness and his other friends waited but, nobody came that night. Next day at night, when he was near a play-school, Ravi-accused No. 5 came to call him saying that his brother was calling for settling the dispute. He was taken to his house near Harichampa party-plot. When the witness went there, Ravi-accused No. 5, his brother Jignesh-accused No. 4, Gulo-accused No. 1, Lalu @ Nilesh-accused No. 2 and Guli-accused No. 6 and other persons (who are absconding) started beating him. When this was going on, his other friend Jayesh came alongwith Urmilaben, Arvindbhai, Girish and Jignesh. All these people therefore got more excited and Umesh who was carrying a hockey-stick, gave a blow on the head of Arvindbhai, upon which, Arvindbhai fell down. The witness stated that accused Ravi had an axe in his hand. Jignesh had a log of wood with which, he gave a blow on Urmilaben's head. Lalu had an iron pipe. Sanjay @ Bhuriya had iron knuckles. The witness identified all the accused before the Court. In the cross-examination, except for certain improvements, which are not very significant, nothing substantial has come out. 5. Urmilaben Ganpatbhai Rathod, PW-10, Exh. 41, is another injured eyewitness. She deposed that young boys were quarreling, upon which, Arvindbhai had gone to look for his son. She did not know what the cause of the fight was. Wondering whether her husband or her son were also involved in the fight, she had gone there. She found that the boys were beating her husband Dharmeshbhai and Arvindbhai. There were about eight or nine people. She identified four accused before the Court and stated that they had different weapons such as log of wood, sword etc. 6. Girish Babubhai, PW-11, Exh. 42, was also an injured eyewitness. He also gave a similar version of the incident starting from a brief quarrel with accused No. 1 the previous day. There were about eight or nine people. She identified four accused before the Court and stated that they had different weapons such as log of wood, sword etc. 6. Girish Babubhai, PW-11, Exh. 42, was also an injured eyewitness. He also gave a similar version of the incident starting from a brief quarrel with accused No. 1 the previous day. He also stated that Arvindbhai had come to look for his son Jignesh and Ravi had hit him on the head. He also identified all the accused before the Court. 7. Jayeshbhai Sureshbhai, PW-12, Exh. 43, was yet another eyewitness. He was also present the previous night when accused No. 1 had a sharp exchange of words with the complainant. He also gave very similar version of the events of 25th June including that accused No. 1-Umesh had a hockey stick with which, he had given a blow on the head of Arvindbhai and that Jignesh had hit Urmilaben on the head with a log of wood. 8. Dr.Bhaumesh Rajdev, PW-6, Exh. 26, had carried out the postmortem. He was the medical officer at new civil hospital, Surat. In the P.M. note, Exh. 29, he had recorded following external injuries: "1. Surgical stitch wound of size 24 cm 'c' shaped. Present over Right side of fronto parieto temporal region starting from midline frontal region 7 cm above nasion reach just above right ear 26 black stitch present on removal of stitch margin separated. 2. Surgical stitch wound of size 8 cm present on left temporal region situated 8 cm left to midline 8 cm above left eyebrow's black stitch and 5 staple pin present on removal of 3. Contusion of size 3 cm x 3 cm present on left fronto parietal regon 6 cm left to midline reddish coloured 4. Graze abrasion of size 3 cm x 1.5 cm present on right forehead situated 5.5 cm above Rt.eyebrow 4 cm Rt. to midline reddish in coloured 5. Graze abrasion of size 4 cm x 3 cm with underlying contusion in an area of 8 cm x 6 cm present on left temporo occipital region 4 cm behind inj. No. 2 reddish coloured 6. Mutiple abrasions size marging from 2 cm x 1 cm to 1 cm x 1 cm present on upper occipital region at midline in an area of 7 cm x 5 cm reddish in coloured 7. No. 2 reddish coloured 6. Mutiple abrasions size marging from 2 cm x 1 cm to 1 cm x 1 cm present on upper occipital region at midline in an area of 7 cm x 5 cm reddish in coloured 7. Abrasion of size 2 cm x 1 cm with underlying contusion of size 4 cm x 3 cm present on front of left pinna 8. Graze abrasion of size 3 cm x 1 cm with underlying contusion of size 3 cm x 3 cm present on front of Rt.upper chest 8 cm below top of shoulder 13 cm Rt. To midline 9. Contusion of size 12 cm x 10 cm present on left check 10. Abrasion 3 in No. 0.5 cm x 0.5 cm inch present on back of Rt. Hand at base of middle finger 11. Abrasion of size 0.5 cm x 0.5 cm present on back of Rt. Little finger near proximal phalanx 12. Abrasion of size 2 cm x 1 cm present on back of left index finger at proximal inter phalangal joint 13. abrasions of size 0.8 cm x 0.2 cm present on front of leg 8 cm below knee joint Note: All abrasions and contusions are reddish in colour palpable fracture of skull appreciated. 9. Corresponding to such external injuries, he had recorded following internal damage. Scalp haematoma present on frontal left parietal both temporal and occipital region both temporals contused Comminuted fracture of size 11 cm x 7 cm present on left parietal temporal bone fracture line extend to Rt. Parieto temporal region 10 cm surgically created crantiotony of size 10 cm x 7 cm present on Right parieto temporal region corresponding to craniotony dura cut dura also torn at places." 10. According to him, the cause of death was the head injury and that such injury was sufficient in ordinary course of nature to cause death. 11. Dr. Rajendrakumar Rangoonwala, PW-9, Exh. 34, was also a medical officer at new civil hospital, Surat. He had treated the four injured witnesses viz. Urmilaben, Rameshbhai, Jayeshbhai and Girishbhai. All these patients were brought before him alongwith police yadi. He had recorded one superficial head injury on Urmilaben which could be caused by hard and blunt substance. He had recorded minor injuries on other persons. He had issued the injury certificate accordingly. 12. Prabhatbhai Desai, PW-19, Exh. 56, was the Investigating Officer. Urmilaben, Rameshbhai, Jayeshbhai and Girishbhai. All these patients were brought before him alongwith police yadi. He had recorded one superficial head injury on Urmilaben which could be caused by hard and blunt substance. He had recorded minor injuries on other persons. He had issued the injury certificate accordingly. 12. Prabhatbhai Desai, PW-19, Exh. 56, was the Investigating Officer. He gave the detailed accounts of steps undertaken by him during the course of investigation. 13. Different articles collected during the course of investigation were sent for forensic analysis. FSL report read with serological report, Exh. 61, showed that the deceased had blood group-AB. Such blood was found from the scene of incident, from his clothes as well as from the hockey stick recovered by the investigating agency. 14. This, in the nutshell, is the evidence on record. From such evidence, presence and participation of all accused during the incidence of beating up Arvindbhai and others which took place on night of 25th June clearly emerges. Witnesses after witnesses have referred to the genesis of the incident. For example, the first informant Dharmesh, PW-13, Exh. 44, and his friend Girish PW-11, Exh. 42, both referred to a minor argument which they had with accused No. 1-Umesh on the night of 24th June, 2009. The complainant and his other friends were standing outside their houses when Umesh was passing by from there. Since these people thought that Umesh was looking at them in a threatening manner, one of them asked them what the problem was. Umesh got angry and threatened to settle the score by calling his other friends and supporters. He did not return the same night, but next day at night, the complainant was called near the house of the accused persons where some seven to eight people had gathered and they started beating him up. His other friends and residents of the locality tried to intervene. They were also beaten up. Barring minor inconsistencies, the depositions of injured witnesses Dharmesh PW-13, Jayesh Rathod PW-12, Girish PW-11, is largely consistent on all these material aspects. Urmilaben PW-10, though had no background of the incidence of 24th June and reached the scene of incident after the fight had started. When she tried to intervene, she was hit on the head by one of the accused. All these witnesses were treated for minor injuries by doctor Rangoonwala, PW-9. Urmilaben PW-10, though had no background of the incidence of 24th June and reached the scene of incident after the fight had started. When she tried to intervene, she was hit on the head by one of the accused. All these witnesses were treated for minor injuries by doctor Rangoonwala, PW-9. We therefore need not doubt their presence. On most material aspects of the matter i.e. the role played by the accused No. 1, all these witnesses were consistent. According to these witnesses, though stated in slightly different words or phraseology, when deceased Arvindbhai tried to intervene, accused No. 1 Umesh who was carrying a hockey stick, hit him on the head with the same. This version of the witnesses is duly corroborated by the medical evidence. Dr. Rajdev, PW-6, found a head injury which was the cause of death. According to the doctor, such injuries could be caused with a hard and blunt substance. Serological report Exh. 61, showed presence of blood of the group belonging to the deceased on the hockey stick. 15. Several things thus, get firmly established from such evidence on record. First is that, the accused called the complainant at a place slightly away from his house in the guise of settlement talk and then assaulted him. His other friends and people of his area when tried to intervene, were also beaten up. Second aspect is the presence and involvement of all the accused in the incident. Witnesses after witnesses have named these accused persons and also identified them before the Court and in most cases, by attributing specific role. Third is that Arvindbhai died during such assault due to head injury. This head injury was caused by a hockey stick and the fatal blow was given by the accused No. 1. It would further emerge that deceased Arvindbhai had as many as 13 different injuries including the head injury. Such injuries were spread over the entire body and varied in the impact and the seriousness. The injuries to the complainant, Urmilaben and other witnesses, however, were ranging from minor to superficial. The question is what would be the legal implication of such conclusions. First and easily arrivable conclusion is that the accused did form an unlawful assembly. They were more than five in number and had gathered at the appointed place armed with different weapons. The injuries to the complainant, Urmilaben and other witnesses, however, were ranging from minor to superficial. The question is what would be the legal implication of such conclusions. First and easily arrivable conclusion is that the accused did form an unlawful assembly. They were more than five in number and had gathered at the appointed place armed with different weapons. Their intention to commit illegal acts and offence is writ large on the face of the record. The fact that such unlawful assembly used force or violence in prosecution of their common object also is clearly established. Application of sections 143, 147, 148 of IPC is therefore fully justified. The crucial question is, was the common object of such unlawful assembly to commit murder. If this is established, only then can every member of such unlawful assembly be convicted for offence of murder with the aid of section 149 of Indian Penal Code. In this context, we may peruse the evidence more minutely. By all accounts it was accused No. 1-Umesh who was attributed with the fatal blow on Arvindbhai on his head with his hockey stick. The fact that Arvindbhai was assaulted and beaten up by others, also can be seen from other various injuries received by him on the entire body. However, by the manner in which the incident took place, the nature of injuries sustained by the witnesses and other attendant circumstances, it cannot be stated that the common object of this unlawful assembly was to commit murder. The group of accused had gathered at an appointed place where the complainant was brought with a view to teach him a lesson. The previous day, the two sides had a brief quarrel. To settle the score, the complainant was called there, he was followed by his other friends and neighbors. All of them were assaulted by the accused persons. By the manner in which the complainant and other witnesses received injuries and in fact, the kind of injuries received by deceased Arvindbhai would show that the members of this unlawful assembly did not share a common object of committing murder. At best, members of this unlawful assembly wanted to create trouble, beat up the complainant and others and at large, teach them a lesson. At best, members of this unlawful assembly wanted to create trouble, beat up the complainant and others and at large, teach them a lesson. Had the common object to cause murder, such intention would have manifested itself through the injuries caused by the accused on the complainant and other witnesses. It was Arvindbhai alone who received a serious injury, that too only one injury on the head. The remaining members of the complainant's side received very minor injuries. In our opinion, therefore, conviction of all the accused for offence of murder with the aid of section 149 of Indian Penal Code was an error on part of the learned Judge. 16. Insofar as accused No. 1 is concerned, undoubtedly his presence, role and the fact that he gave the fatal blow to Arvindbhai on his head with his hockey stick are circumstances firmly established. The medical evidence however suggested that the head injury was the only one which was responsible for the death of Arvindbhai. The remaining injuries, though multiple in nature, neither individually nor collectively would have been fatal. Even in case of the accused No. 1 therefore, we are inclined to believe that he did not intend to cause death. He however, cannot escape the liability of causing such bodily injuries as were likely to cause death. His conviction therefore would more appropriately be under part-I of section 304 of Indian Penal Code. 17. In the result, appeal is disposed of in following terms: "1. Conviction and sentence of accused Nos. 2, 3, 5 and 6 for offence under section 302 read with section 149 IPC is set aside. Their conviction and sentences for the remaining offences recorded by the learned Additional Sessions Judge are however sustained. If they have served out such sentences and are not required in any other criminal case, shall be released forthwith. 2. Conviction of accused No. 1 for offence under section 302 is converted into one under section 304 Part-I and he is sentenced to undergo rigorous imprisonment for ten years. Fine imposed by the trial Court shall remain unchanged." Appeal is allowed in part and disposed of accordingly. R & P, if lying with this Court, to be transmitted back to the concerned Trial Court. Appeal Partly Allowed