JUDGMENT : RAJIV SHARMA, J. 1. Since common questions of law and facts are involved, the present appeals have been taken up together and are being decided by this common judgment. 2. These appeals are instituted against the common judgment dated 28.11.2015 rendered by the First Additional Sessions Judge, Rishikesh in Sessions Trial Nos.130/2010, 130-A/2010 and 131/2010. In S.T. No.130 of 2010, appellants Ankur Chaudhary, Mahipal @ Bada, Jonny, Omwati, Sangeeta and Mausam Ali were charged with and tried for the offences u/s 147, 148, 323, 307, 34 and 302 IPC. In S.T. No.130-A/2010, appellant Mausam Ali was charged with and tried for the offences u/s 147, 148, 323, 307, 34, 302 IPC. In S.T. No.131/2010, appellant Mahipal was charged with and tried for the offence u/s 25/4 of the Arms Act. At the end of trial, the Trial Court convicted and sentenced the appellants as under:- Name of appellants Offence Substantive Sentence Sentence in lieu of payment of Fine Ankur Chaudhary 302/149 IPC Life imprisonment with fine of Rs.10,000/- One month S.I. 324/149 IPC Three years’ R.I. 148 IPC Three years’ R.I. Mahipal 302/149 IPC Life imprisonment with fine of Rs.10,000/- One month S.I. 324/149 IPC Three years’ R.I. 148 IPC Three years’ R.I. 25/4 Arms Act Three years’ R.I. with Fine of Rs.10,000/- One month S.I. Jonny 302/149 IPC Life imprisonment with fine of Rs.10,000/- One month S.I. 324/149 IPC Three years’ R.I. 148 IPC Three years’ R.I. Omwati 302/149 IPC Life imprisonment with fine of Rs.10,000/- One month S.I. 324/149 IPC Three years’ R.I. 148 IPC Three years’ R.I. Sangita 302/149 IPC Life imprisonment with fine of Rs.10,000/- One month S.I. 324/149 IPC Three years’ R.I. 148 IPC Three years’ R.I. Mausam Ali 302/149 IPC Life imprisonment with fine of Rs.10,000/- One month S.I. 324/149 IPC Three years’ R.I. 148 IPC Three years’ R.I. 3. All the aforesaid sentences awarded to all the appellants were ordered to run concurrently. 4. Case of the prosecution, in a nutshell, is that PW4 Pintu lodged an FIR to the effect that on 15.4.2010, accused, namely, Monu, Mahipal, Sachin, Jonny, Omwati and Sangeeta inflicted injuries to his brother Manish and mother Smt. Ramrati. 5. It would be apt to mention at this stage that since Sachin was minor, he was tried under the Juvenile Justice Act. 6. Injured Manish was taken to the Government Hospital. 5. It would be apt to mention at this stage that since Sachin was minor, he was tried under the Juvenile Justice Act. 6. Injured Manish was taken to the Government Hospital. Thereafter, he was referred to the Himalayan Hospital. He died in the hospital. Police recovered the Khukhri from the possession of Mahipal, Danda was recovered from Ankur Chaudhary and iron rod was recovered from Mausam Ali on 27.4.2010, 30.4.2010 and 19.6.2010 respectively. 7. The matter was investigated and Challan was put up before the Court after completing all the codal formalities. 8. Prosecution has examined as many as thirteen witnesses in support of its case. 9. Appellants were also examined u/s 313 Cr.P.C. They denied the case of prosecution. According to them, they were falsely implicated. 10. Appellants were convicted and sentenced by the Trial Court, as noticed hereinabove. Hence these appeals. 11. Learned Counsel, appearing on behalf of the appellants, has vehemently argued that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. 12. Learned Dy. Advocate General, appearing for the State, has supported the judgment dated 28.11.2015. 13. We have heard learned counsel for the parties and gone through the impugned judgment and lower court record very carefully. 14. PW1 Constable Nitish Kumar testified that on 27.4.2010, appellant Mahipal was apprehended. A Khukhri was recovered at his instance. It was sealed. He identified the Khukhri in the Court. 15. PW2 Smt. Ramrati is the eye witness. She testified that her son Manish had to receive Rs.3,500/- from Ankur Chaudhary. Manish had gone to receive money from Ankur. Ankur did not pay the money. Appellant Omwati had told two days before the incident that she would pay the money. On 15.4.2010 at 6:30 PM, she was at home. Her son Manish, daughter Sangeeta and another son Pintu were at home. Mahipal came and summoned Manish to receive the money. Manish went to the house of Mahipal. After some time, she came out of the house. Her son approached her shouting ‘Bachao Bachao’. Omwati, Sachin, Sangeeta and Jonny had caught hold of her son. Appellants Mahipal, Ankur and Mausam gave beatings to her son. Mahipal was having a Khukhri, Ankur was having a Danda and Mausam Ali was having a rod. Mahipal was hitting her son with Khukhri. Her son approached her shouting ‘Bachao Bachao’. Omwati, Sachin, Sangeeta and Jonny had caught hold of her son. Appellants Mahipal, Ankur and Mausam gave beatings to her son. Mahipal was having a Khukhri, Ankur was having a Danda and Mausam Ali was having a rod. Mahipal was hitting her son with Khukhri. She tried to save her son due to which she also received injuries on her right hand. Her daughter also tried to save Manish. When the people from locality gathered, appellants ran away. Her son died on 22.4.2010. She identified Mahipal and Ankur in the Court. She also identified the bloodstained clothes in the Court. She also identified the Danda carried by Ankur Chaudhary. She also identified the iron rod carried by Mausam Ali. 16. PW3 Km. Sangeeta is also an eye witness. She has corroborated the statement of PW2 Smt. Ramrati. She testified that on 15.4.2010 at 6:30 PM, Mahipal came to their house. He asked Manish to receive the money. Her brother went with Mahipal. After 10-15 minutes, she along with her mother went outside to get the water. Her brother came towards the house shouting ‘Bachao Bachao’. Jonny, Sachin, Omwati, Sangeeta, Mahipal, Ankur and Mausam were chasing him. Four of them, namely, Sachin, Jonny, Omwati and Sangeeta had caught hold of Manish. Mahipal, Ankur and Mausam Ali gave beatings to Manish. Mahipal was having a Khukhri, Ankur was having a Danda and Mausam Ali was having the rod. Mahipal struck rod on the head of her brother and Ankur hit him with Danda. Her mother tried to save her brother. She was also assaulted by Khukhri. Her brother was taken to the government hospital. Thereafter, he was taken to Himalayan Hospital. Her brother died during treatment. She recognized the bloodstained clothes of her mother in the Court. She also identified the Danda carried by Ankur. She also identified the iron rod carried by Mausam. She also identified the Khukhri carried by Mahipal. 17. PW4 Pintu is another eye witness. He is the brother of deceased. According to him also, Omwati, Sangeeta, Jonny and Sachin had caught hold of his brother. His brother was administered beatings by Mahipal, Ankur and Mausam Ali. He came out. In his presence, Ankur hit Danda on the head of his brother. His mother tried to save him. His mother also received injuries by Khukhri. He is the brother of deceased. According to him also, Omwati, Sangeeta, Jonny and Sachin had caught hold of his brother. His brother was administered beatings by Mahipal, Ankur and Mausam Ali. He came out. In his presence, Ankur hit Danda on the head of his brother. His mother tried to save him. His mother also received injuries by Khukhri. His brother received injuries upon his head, shoulders and chest. Mahipal, Ankur and Mausam were giving beatings to his brother. His brother died during treatment at Himalayan Hospital. 18. PW5 Dr. Richa Raturi medically examined the deceased. According to her, the patient was brought in the hospital at 7:30 PM. She noticed following injuries on his person: - 1. Abrasion .4 x .1 cm over frontal area of scalp. Fresh blood oozing. 2. Abrasion 2 x 1 cm over left side of cheek. 3. Complain of pain over chest. 4. Patient-drowsy with poor verbal response. Opinion- Injury was simple, fresh and caused by hard blunt object. Patient was admitted and referred to Surgeon for suspected head injury. 19. PW6 Dr. S.C. Pant, Senior Medical Officer has conducted the post-mortem examination. According to him, the injuries were sufficient to cause death of deceased. According to him, these injuries could be caused by Danda and iron rod. He has proved the post-mortem report. 20. PW7 Dr. Charitesh Gupta has testified that he was posted as Neuro-Surgeon in Himalayan Hospital in the month of April, 2010. The patient was in Coma. His pupils were dilated and he noticed lacerated wound on the right side of his head measuring 3 x 1 cm. It was in the right side of parietal region. Blood was oozing out from the wound. Patient had undergone the C.T. Scan. There was a clot in the brain. He was shown the Danda. According to him, the injuries received by deceased could be caused by Danda and iron rod. 21. PW8 S.I. Laxman Singh Kathait has arrested the appellants. He has got the Danda recovered from Ankur Chaudhary. 22. PW9 Jagdish is another eye witness. He is not the family member of complainant. He also deposed that on 15.4.2010 at around 6-6:30 PM, Omwati, Sachin, Jonny, Ankur Chaudhary, Mausam, Mahipal and Sangeeta had caught hold of Manish. Mahipal was carrying a rod. Ankur Chaudhary was having Khukhri. Mahipal hit Manish with Danda. Ankur Chaudhary took out Khukhri. 22. PW9 Jagdish is another eye witness. He is not the family member of complainant. He also deposed that on 15.4.2010 at around 6-6:30 PM, Omwati, Sachin, Jonny, Ankur Chaudhary, Mausam, Mahipal and Sangeeta had caught hold of Manish. Mahipal was carrying a rod. Ankur Chaudhary was having Khukhri. Mahipal hit Manish with Danda. Ankur Chaudhary took out Khukhri. Mother of Manish came to rescue him. She was also given blow of Khukhri. 23. PW10 Om Prakash Arya is the retired Sub Inspector. He recorded the statements of witnesses. He prepared the spot map and arrested the appellants. 24. PW11 Inspector J.P. Juyal also deposed that the appellant Ankur had got the Danda recovered. He also visited the spot. Mausam Ali has also got the rod recovered. 25. PW12 Constable Upendra Singh and PW13 Constable Suryakant are the formal witnesses. 26. According to the prosecution version, the incident has taken place on 15.4.2010. Manish (deceased) had gone with Mahipal to get recovered the amount of Rs.3,500/-. He came back shouting ‘Bachao Bachao’. He was caught hold by Omwati, Sachin, Sangita and Jonny. Mahipal, Ankur and Mausam gave beatings to Manish. Mahipal was carrying Khukhri, Ankur was having Danda and Mausam Ali was having the rod. PW2 Smt. Ramrati tried to save her son. She also received injuries. Manish was admitted in the hospital. He died on 22.4.2010. The incident was witnessed by PW2 Smt. Ramrati, PW3 Km. Sangeeta, PW4 Pintu and PW9 Jagdish. Statements of PW2 Smt. Ramrati, PW3 Km. Sangeeta, PW4 Pintu and PW9 Jagdish are duly corroborated by the medical evidence. PW5 Dr. Richa Raturi has medically examined Manish. She noticed the injuries on his body, as mentioned hereinabove. Manish was operated upon. Dr. Charitesh Gupta, Neuro-Surgeon, has appeared as PW7. According to him also, the injuries on the head of deceased could be received by Danda or iron rod. The post-mortem examination was carried out by PW6 Dr. A.C. Pant. He has proved the post-mortem report. According to him, the deceased died due to excessive loss of blood. The injuries caused to the deceased were sufficient to cause his death. The recoveries were effected from the appellants Mahipal, Ankur and Mausam Ali. PW2 Smt. Ramrati has identified the bloodstained clothes in the Court. The witnesses have also identified the weapons of offence i.e. Khukhri, Danda and iron rod, produced during trial. 27. The injuries caused to the deceased were sufficient to cause his death. The recoveries were effected from the appellants Mahipal, Ankur and Mausam Ali. PW2 Smt. Ramrati has identified the bloodstained clothes in the Court. The witnesses have also identified the weapons of offence i.e. Khukhri, Danda and iron rod, produced during trial. 27. On a perusal of the evidence of the witnesses, it appears that though, the eye witnesses have deposed that the appellants Jonny, Smt. Omwati and Smt. Sangita were on the spot but their version is not believable. The only motive attributed to these appellants namely Jonny, Smt. Omwati and Smt. Sangita is that they caught hold of the deceased. Appellant Omwati is an old lady aged about 59 years. Appellant Sangita is a young lady who is having a few months old child. Similarly, as per the evidence available on record, appellant Jonny had no role to play in the commission of offence. 28. Now, as far as appellant Mausam Ali is concerned, he was not even named in the first information report. He was the tenant of deceased. No motive has been attributed to him why he would attack the deceased. Even as per the prosecution story, appellant Ankur owned a sum of Rs.3,500/- to the family of deceased and not Mausam Ali. 29. Thus, in view of this, we are of the view that the prosecution has failed to establish its case beyond reasonable doubt as far as appellants Jonny, Smt. Omwati, Smt. Sangita and Mausam Ali are concerned and they are liable to be acquitted for the offences under which they were booked by giving them the benefit of doubt. 30. Since we have acquitted the appellants Jonny, Smt. Omwati, Smt. Sangita and Mausam Ali, the remaining two appellants, namely, Ankur Chaudhary and Mahipal cannot be convicted u/s 148 and 149 IPC. 31. However, the prosecution has led sufficient evidence on record to hold that the appellants Ankur Chaudhary and Mahipal have committed the offence in furtherance of common intention and thus, they are convicted for the offences under Sections 302/34 and 324/34 IPC. 32. Accordingly, the Criminal Appeal No.401 of 2015 is partly allowed. Appellants therein, namely, Jonny, Smt. Omwati and Smt. Sangita are acquitted for the charges levelled against them. 32. Accordingly, the Criminal Appeal No.401 of 2015 is partly allowed. Appellants therein, namely, Jonny, Smt. Omwati and Smt. Sangita are acquitted for the charges levelled against them. However, the conviction and sentence of the appellant Mahipal in Criminal Appeal No.401/2015 is substituted under Section 302 r/w Section 34 IPC and under Section 324 IPC r/w Section 34 IPC. 33. Criminal Appeal No.402 of 2015 preferred by the appellant Mahipal challenging his conviction u/s 25/4 of the Arms Act is dismissed. 34. Criminal Appeal No.8 of 2016 preferred by the appellant Mousam Ali is allowed in toto. He is acquitted from the charges levelled against him. 35. Criminal Appeal No.20 of 2016 filed by the appellant Ankur Chaudhary is dismissed by substiting the conviction and sentence Section 302 r/w Section 34 IPC and under Section 324 IPC r/w Section 34 IPC. 36. However, both the appellants namely Mahipal and Ankur Chaudhary are acquitted u/s 148 and 149 IPC. 37. Appellants Jonny and Mausam Ali are in jail. Let they be released forthwith if not wanted in connection with any other case. 38. Appellants Smt. Omwati and Smt. Sangita are on bail. They need not to surrender. Their bail bonds and sureties are discharged. 39. Let a copy of this judgment and order along with the LCR be transmitted to the Court for doing the needful.