JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Bhojraj, Kalu, Newalal, Khemraj and Gyarsi Lal, all five brothers being sons of Pratap along with Devi Lal S/o. Laxman and Dev Kishan S/o. Amar Lal were nominated as accused in written report, (Exhibit P21), presented by Ramlal (P.W.-9) before Head Constable Devkaran (P.W.-28). 2. Devkaran (P.W.-28) in Court deposed that on 08.01.2011 he was posted as Head Constable at Police Station Chechat. On receipt of the information at 3.00 pm, he along with his companion police officials reached at Village Hathona and took two injured Anandi Lal and Kishore to S.R.G. Hospital, Jhalawar. Upon reaching the hospital the attending doctor declared Anandi Lal as dead, whereas Kishore (P.W.-3) was medico legally examined. 3. Thus from the above deposition it is apparent that in the occurrence Anandi Lal due to injuries caused by seven accused, named above, succumbed to the injuries, whereas Kishore, the injured (P.W.-3), suffered various injuries. Khemraj and Gyarsi Lal, sons of Pratap, named in the FIR, were not sent for the trial. Bhojraj, Kalu and Newalal, all three sons of Pratap, Devi Lal S/o. Laxman and Dev Kishan S/o. Amar Lal were tried by the Court of Additional Sessions Judge, Ramganjmandi, District Kota and the said Court vide impugned judgment dated 12.08.2015, convicted all the five accused for offences under Sections 148, 323/149, 325/149 and 302/149 IPC. Having convicted the accused-appellants for above-said offences, the trial Judge vide separate order of even date sentenced the appellants as under:- S. No. Offence under Section Sentence awarded 1. 148 IPC Rigorous imprisonment for 3 years with a fine of Rs. 1,000/-, in default of payment of fine to further undergo additional one month's simple imprisonment. 2. 323/149 IPC Rigorous imprisonment for 6 months with a fine of Rs. 500/-, in default of payment of fine to further undergo additional 15 days simple imprisonment. 3. 325/149 IPC Rigorous imprisonment for 5 years with a fine of Rs. 2,000/-, in default of payment of fine to further undergo additional two month's simple imprisonment. 4. 302/149 IPC Imprisonment for life with a fine of Rs. 5,000/-, in default of payment of fine to further undergo additional three month's simple imprisonment. 4. All the sentences were ordered to run concurrently. 5. Aggrieved against their conviction and sentence, the present appellants have filed D.B. Criminal Appeal No. 827/2015. 6. 4. 302/149 IPC Imprisonment for life with a fine of Rs. 5,000/-, in default of payment of fine to further undergo additional three month's simple imprisonment. 4. All the sentences were ordered to run concurrently. 5. Aggrieved against their conviction and sentence, the present appellants have filed D.B. Criminal Appeal No. 827/2015. 6. As already noted above, criminal proceedings were set into motion on the basis of written report, (Exhibit P21), submitted by Ramlal (P.W.-9) before Head Constable Devkaran (P.W.-28). On the basis of above written report, (Exhibit P21), formal FIR, (Exhibit P38), bearing No. 8/2011 was registered at Police Station Chechat, District Kota Rural. Initially FIR was registered for offences under Sections 147, 148, 149, 307, 323 and 302 IPC. Above-said FIR was investigated and report of investigation under Section 173 Cr.P.C. along with opinion of the Investigating Officer was submitted in the Court of concerned Magistrate. The report of investigation and the accused were committed to the Court of Sessions. The trial was entrusted to the Court Additional Sessions Judge, Ramganjmandi, District Kota. 7. Before we take note of the prosecution evidence, it will be apposite here to reproduce the true translation of written report, (Exhibit P21) presented before the SHO, Police Station Chechat, District Kota as under:- "To, The SHO Police Station Chechat, Sir, It is submitted that we and Kalu Lal from last so many days are having a dispute over the passage and Baada. Today on 08.01.2011 at about 3.00 pm, I brought my buffaloes from the village. At that time my brothers Kishore and Anandi Lal were working. Meanwhile, Kalu Lal S/o. Pratap armed with Jabira (an instrument for grass cutting) and Kulhari (an axe), Khemraj S/o. Pratap armed with Jabira, Bhojraj S/o. Pratap armed with kulhari, Newalal S/o. Pratap armed with stick, Devlal S/o. Laxman armed with iron pipe, Dev Kishan S/o. Amarlal armed with pipe and Gyarsi Lal S/o. Pratap armed with stick, with a common intention came towards our house and immediately on arrival they went inside the Baada and started causing injuries to Kishore and Anandi Lal with stick(lathi), kulhari and pipe. My brother Kishore suffered injuries on the foot and hands. Anandi Lal suffered injuries on the head, hands and foot. Anandi Lal suffered a fracture of his foot. Meanwhile, Kamla Bai, Sugna Bai and Ram Prasad came at the spot. My brother Kishore suffered injuries on the foot and hands. Anandi Lal suffered injuries on the head, hands and foot. Anandi Lal suffered a fracture of his foot. Meanwhile, Kamla Bai, Sugna Bai and Ram Prasad came at the spot. On seeing them the accused fled away from the spot. I brought my two brothers to Jhalawar Hospital for treatment where doctor declared Anandi Lal as dead. Kishore is under treatment. The report is being presented. Date: 08.01.2011 Applicant Ramlal S/o. Badri Lal Caste-Gurjar, Resident of Athona" 8. From perusal of the above written report Exhibit P21, following facts are discernible:- (a) That there was dispute pending between the parties regarding passage and Baada. (b) Occurrence had taken place when complainant Ramlal on the passage having dispute was coming with the buffaloes. (c) Occurrence has been witnessed by Ramlal (P.W.-9), Kamla Bai (P.W.-17), Sugna Bai (P.W.-18) and Ram Prasad (P.W.-6). (d) In the FIR it is specifically stated that accused caused injuries on the foot and hands of Kishore and head, hands and foot of Anandi Lal. (e) Written report Exhibit P21 specifically state that Anandi Lal suffered fracture of the foot. 9. In the context of the above, medical evidence assumes importance. Therefore, before we revert to the testimony of the eye-witnesses, it will be necessary to take note of the medical evidence. 10. Anandi Lal was initially examined by Dr. Pal Mukund Verma (P.W.-2) on 08.01.2011 at 6.15 pm. In the injury report Exhibit P11, he had noted two injuries on the person of deceased Anandi Lal. We reproduce the injuries noted in Exhibit P11 as under:- (1) Compound fracture with severe swelling, leg distal to injury hanging by side on left leg 4 inch below knee joint-Grievous-blunt (2) Abrasion 3 x 2 inch skin deep on right foot-simple-blunt 11. Dr. Pal Mukund Verma (P.W.-2) also examined Kishore (P.W.-3) on 08.01.2011 and in the medico legal report Exhibit P12 noted three injuries on the person of Kishore (P.W.-3). The injuries noted in the injury report Exhibit P12 are reproduced below:- (1) Open fracture both bone of Rt. Leg., Rt. Leg is hanging by side 6 inch from knee with extensive injury of muscles on Rt. leg 6 inch distal to knee-grievous-blunt & sharp both. (2) Swelling all over the Rt. wrist - blunt (3) Swelling on middle of L forearm-blunt. 12. Leg., Rt. Leg is hanging by side 6 inch from knee with extensive injury of muscles on Rt. leg 6 inch distal to knee-grievous-blunt & sharp both. (2) Swelling all over the Rt. wrist - blunt (3) Swelling on middle of L forearm-blunt. 12. Injury report of Anandi Lal, deceased, reveals that he had suffered compound fracture with severe swelling on left foot and knee. Due to fracture his left foot was hanging. Both the injuries on the person of Anandi Lal were caused by blunt weapon. Injury No. 1 was grievous in nature. Both the injuries were on non-vital parts of the body. 13. Similarly, Kishore (P.W.-3) had suffered fracture of both bones of right leg. Injury No. 1 was declared as grievous. As regards injury Nos. 2 and 3, the opinion was kept in abeyance to receive the report of the Radiologist. All the three injuries on the person of Kishore (P.W.-3) were also on the non-vital parts of the body. 14. Suffice it to say that Kishore had suffered injuries caused with a blunt weapon. Since Anandi Lal was declared dead upon reaching hospital, his post-mortem Exhibit P30 was conducted on 09.01.2011 at 10.35 am. 15. In the present case, Dr. B.L. Bhatia who had conducted autopsy died before his examination in the Court, therefore, the post-mortem report has been proved on record by Hemant Kumar Sharma (P.W.-24), Radiologist. Hemant Kumar Sharma in Court deposed that he was conversant with the handwriting of Dr. Bhatia, who had conducted autopsy. In the port-mortem report Exhibit P30, 19 injuries were noted on the person of Anandi Lal. A perusal of the injuries reveals that except injury Nos. 7, 8, 12 and 17, all injuries were abrasions. Injury No. 7 was lacerated wound resulting into fracture of radius. Injury No. 8 was swelling & deformity of right wrist and fracture of radius. Injury No. 12 was swelling and deformity on tip of left elbow resulting into fracture and injury No. 17 was lacerated wound with fracture of both leg bones. 16. Thus, in the injury report Exhibit P11 and post-mortem report Exhibit P30 in respect of Anandi Lal, all injuries are on non-vital parts of the body except one internal injury which was noted upon opening of the skull. 16. Thus, in the injury report Exhibit P11 and post-mortem report Exhibit P30 in respect of Anandi Lal, all injuries are on non-vital parts of the body except one internal injury which was noted upon opening of the skull. The said injury was a cerebral haematoma of size 0.5 x 4 cm on right parietal region with inflamed brain matter and mid line shift towards left side. 17. The medical evidence make it apparent that all injuries were caused by blunt weapon, even though the accused were armed with sharp edged weapons which were Jabira, used for cutting grass and Kulhari (an axe). The injuries have been caused from blunt side of weapons. It has come in the evidence that accused have caused injuries on the non-vital parts of the body i.e. arms and legs except one injury which has no external mark and was a cerebral haematoma. Therefore, cerebral haematoma is a result of either injury given when the accused pounced upon the deceased or is result of fall. 18. Having noted above medical evidence, now we proceed to take note of ocular version. Kishore (P.W.-3) is an injured. He has suffered injuries in the occurrence. His presence at the spot is stamped. Kishore stated that he along with his brother Anandi Lal from his field was going to the Baada when accused were concealing, to open the attack. This witness stated that Kalu Lal had given injury on the temporal region of Anandi Lal. He went to separate them and then all started causing injuries. In cross-examination this witness admitted that the place where beating took place is not outside the village but a passage between Baadas' and the houses. We reproduce the exact words stated by the witness as under:- ^^ckMk tgkWa ekjihV gqbZ og xkWao ds ckgj ugha gS cfYd ckMksa ?kjksa ls vMk gqvk gS-** 19. Ramlal, complainant, the first informant appeared in Court as PW-9. He deposed in Court that Nand Kishore and Anandi Lal were coming from the well to Baada when accused pounced upon them. This witness has not attributed specific injury on the head to Kalu Lal. In examination-in-chief this witness stated that occurrence had taken place over the issue of taking water from the well. The witness stated that accused were saying that they will first draw the water from the well. This witness has not attributed specific injury on the head to Kalu Lal. In examination-in-chief this witness stated that occurrence had taken place over the issue of taking water from the well. The witness stated that accused were saying that they will first draw the water from the well. The exact words stated by the witness are reproduced as under:- ^^dqa, ij ikuh Qsjus dks ysdj ekjihV gqbZ Fkh A dqa, ls ikuh fiykus ds fookn dks ysdj ?kVuk gqbZ A ;g dgrs Fks fd igys ge dqa, ls ikuh fiyk;saxs A** 20. Ram Prasad who was named in the written report Exhibit P21 as eye-witness appeared in the Court as PW-6. He has stated that that all the accused caused beating to Anandi Lal and Kishore. 21. Kamla Bai (P.W.-17), wife of deceased Anandi Lal, in the Court stated that Kalu Lal caused injury on the head of her husband Anandi Lal and others also gave beating. To the similar extent is the statement made by Sugna Bai (P.W.-18), another eyewitness named in the written report. 22. We have heard Mr. P.R.S. Rajawat, Counsel for the appellants and Ms. Alka Bhatnagar, learned Public Prosecutor appearing for the State. 23. Mr. Rajawat has stated that in the present case there is a delay in lodging and sending of the special report to the area Judicial Magistrate. Counsel contends that first injured were taken to the hospital. They were medico legally examined and then written report was presented. Counsel contends that in the written report it is specifically stated that accused caused injuries on the arms and legs of Anandi Lal and Kishore. Counsel has stated that in the injury report Exhibit P11, only two injuries have been noted on the person of deceased Anandi Lal, whereas in injury report Exhibit P12, three injuries have been noted on the person of Kishore (P.W.-3). Counsel contends that for the five injuries the witnesses named seven persons of the family, out of which five accused are brothers. It is further contended that case of the complainant was even not accepted by the investigating agency as the investigating agency had not sent Khemraj and Gyarsi Lal for the trial. It is stated that even Khemraj and Gyarsi Lal were not summoned by the trial Court by taking recourse to Section 193 or Section 319 Cr.P.C. 24. Ms. It is further contended that case of the complainant was even not accepted by the investigating agency as the investigating agency had not sent Khemraj and Gyarsi Lal for the trial. It is stated that even Khemraj and Gyarsi Lal were not summoned by the trial Court by taking recourse to Section 193 or Section 319 Cr.P.C. 24. Ms. Alka Bhatnagar, learned Public Prosecutor has submitted that in the written report Exhibit P21, all accused have been named. They came armed to cause injuries. She has contended that accused formulated an unlawful assembly, the common object of which was to commit murder. 25. In the present case it is an admitted fact that parties were having long standing dispute over the passage and the Baada. It has come in evidence that on the fateful day complainant Ramlal (P.W.-9) was coming with the buffaloes on the passage in dispute. It has also come in evidence that Anandi Lal, deceased and Kishore (P.W.-3) were returning from well ¼dqavk½ to their Baada. We are convinced that implicit reliance cannot be placed upon the witnesses as to how the occurrence had ensued. To us, the witnesses are not truthful regarding origin and genesis of the occurrence. Therefore, we cannot ignore the testimony of complainant Ramlal (P.W.-9), who has stated that beating had taken place over the issue as to who should draw water from the well at the first instance. We have reproduced the examination-in-chief of Ramlal (P.W.-9) wherein he had stated that the beating was given over the turn to draw water from the well. He has stated that accused were insisting that they shall first draw the water from the well. All the accused were armed with agricultural implements. In the present case, all injuries have been caused with blunt weapon even though accused were armed with incised weapons. The injuries have been caused from the reverse side. 26. Another feature of the case which we cannot ignore is that the accused caused injuries on the leg and arms. All injuries suffered by Kishore are on the leg and arms. In the injury report of Anandi Lal also, he suffered injuries on the leg and the foot. In the post-mortem report there is no external injury on the head but upon opening of the skull a cerebral haematoma was found. All injuries suffered by Kishore are on the leg and arms. In the injury report of Anandi Lal also, he suffered injuries on the leg and the foot. In the post-mortem report there is no external injury on the head but upon opening of the skull a cerebral haematoma was found. In the FIR it is stated that accused have caused injuries on the head, arms and leg of the deceased Anandi Lal. In the Court the witnesses have attributed injury on the head of Anandi Lal to accused Kalu Lal. 27. Taking into consideration totality of the circumstances spelt above and the fact that due to long standing dispute over passage and the Baada and on the day over drawing of water from the well the occurrence erupted, the accused over the issue of drawing water from the well formulated an unlawful assembly, the common object of which was to give sound thrashing to the complainant party. This fact is discernible from seat and nature of injuries and weapon used. Therefore, we can safely say that accused Kalu Lal had exceeded the object of unlawful assembly and is liable for his individual act. 28. From all accompanying circumstances, we are convinced that the common object of the unlawful assembly was to be labour Anandi Lal and Kishore by giving good beating and, therefore, members of the unlawful assembly knew that the grievous injuries can be caused to them. We cannot ignore that all injuries were caused on the non-vital parts of the body of both Kishore(PW-3) and Anandi Lal, except one internal injury suffered by deceased Anandi Lal on the head, which was a cerebral haematoma. 29. In the circumstances, therefore, we hold that the common object of the unlawful assembly was to cause grievous injuries and accused Kalu Lal exceeded the same by causing injury on the head of deceased Anandi Lal. 30. As a result of the above discussion, we convert the conviction of Kalu Lal from offence under Section 302/149 IPC to Section 302 IPC. Other accused, namely Bhojraj, Newalal, Devi Lal and Dev Kishan are acquitted of offence under Section 302 read with Section 149 IPC. Their conviction for offences under Sections 148, 323/149 and 325/149 IPC is upheld. We also uphold the conviction of accused Kalu Lal for offences under Sections 148, 323/149 and 325/149 IPC. 31. Other accused, namely Bhojraj, Newalal, Devi Lal and Dev Kishan are acquitted of offence under Section 302 read with Section 149 IPC. Their conviction for offences under Sections 148, 323/149 and 325/149 IPC is upheld. We also uphold the conviction of accused Kalu Lal for offences under Sections 148, 323/149 and 325/149 IPC. 31. We find that for the offence under Section 325/149 IPC, the trial Judge has already awarded five years rigorous imprisonment upon the accused-appellants. We are of the considered opinion that the sentence awarded for offence under Section 325/149 IPC upon accused-appellants Bhojraj, Newalal, Devi Lal and Dev Kishan is adequate. We see no justification to reduce their sentence on this count. Therefore, except modification qua offence under Section 302 IPC, in above terms, the conviction of all the accused-appellants on other counts along with sentence awarded to them by the trial Court is upheld. As ordered by the trial Judge, all sentences awarded upon the appellants on various counts shall run concurrently. 32. Consequently, the present appeal is disposed of.