JUDGMENT : Shailendra Shukla, J. 1. The appellant has filed the appeal under Section 374 of Criminal Procedure Code, 1973 being aggrieved by judgment dated 06.04.2010 of conviction and sentence pronounced by First Additional Sessions Judge, Jhabua, in Session Trial No. 227/2009, wherein the appellant has been convicted as under:- Conviction Sentence Section & Act Imprisonment Fine Amount Imprisonment in lieu of fine 148 IPC One year RI 302/149 IPC Life Imprisonment Rs.200/- 15 days RI 25(1)(B) Arms Act. One year RI Rs.200/- 15 days RI 2. Precisely speaking, the prosecution story in short was that on 16.04.2009, FIR was lodged by complainant Manjubai in Police-Station Kalidevi, Jhabua at about 10:25 pm to the effect that she along with her son Kalu (deceased) and her daughter-in-law Geetabai had gone to the house of co-accused Ramchand in the evening seeking return of loan amount of Rs. 10,000/- given to him by Kalu. However, Ramchand hurled filthy abuses at them and thereafter called out other co-accused persons. Subsequently, co-accused Mehtab, armed with sword, appellant Ratan armed with Falia, co-accused-Bheru and Ramdev chased deceased Kalu surrounded him near his house situated in village Bheemkund. They assaulted Kalu with weapons. On hearing the cries of complainant, some neighbours came over and the accused fled from the spot. 3. After lodging of FIR, investigation ensued. Offence registered under Section 307 IPC along with other allied Sections of IPC was enhanced to Section 302 IPC as a result of death of Kalu. Chargesheet was filed under Sections 147, 148, 149, 294, 307 and 302 of IPC and Section 25(1)(B) of Arms Act, 1959. 4. Barring the present appellant-Ratan, all other co-accused persons had absconded and permanent warrant was issued against them and trial proceeded against the present appellant only. 5. Charges under Sections 294, 148, 302 and 302/149 (in alternative) IPC and Section 25(1)(B) of Arms Act, 1959 were framed against the present appellant. The appellant abjured his guilt and claimed innocence. Prosecution has examined twelve witnesses in all, whereas no defence evidence has been led. 6. 5. Charges under Sections 294, 148, 302 and 302/149 (in alternative) IPC and Section 25(1)(B) of Arms Act, 1959 were framed against the present appellant. The appellant abjured his guilt and claimed innocence. Prosecution has examined twelve witnesses in all, whereas no defence evidence has been led. 6. In the appeal preferred before this Court, the grounds which have been mentioned in print and in oral submissions are that the death of Kalu (deceased) had occurred due to injuries on skull, whereas none of the witnesses have stated that the appellant Ratan had caused such injuries, that no FSL report has been received showing presence of blood stains in Falia seized from him, that the incident had occurred on 16.04.2009 and the injured Kalu died on 05.05.2009, but no medical documents regarding the status of his injury have been obtained from the hospital at Kalidevi, Jhabua, that the main accused Ramchand has since been acquitted and the appellant Ratan deserves to be acquitted on these grounds. 7. Alternatively, it has been submitted that in case the evidence is found to be creditworthy, at the most offence under Section 304 (Part-I) IPC is made out. 8. Submissions of learned counsel for the appellant and State were heard. Learned counsel for the appellant has cited few judgments of Apex Court in support of his submissions. 9. Considered. 10. The question which arises for consideration before us is whether in view of the submissions, the appellant deserved to be acquitted or in the alternative he could only be convicted under Section 304 (Part I or II) of IPC. 11. It would first be appropriate to consider the nature of injuries and the cause of death of the deceased-Kalu. 12. Dr. Kishore Pramod Desai (PW/10) states that on 05.05.2009, he along with his fellow medical specialist had conducted the post-mortem of Kalu at District Hospital, Baroda and had found ten injuries on his body, which were as follows: (i) An open would below left ear 5x4x3cm from which pus was oozing out. (ii) There was a 20 cm long stitched wound on the neck. (iii) On the left side of the skull, there was 3 cm long stitched wound. (iv) A hole had been created in the windpipe. (v) There was a 20 cm long stitched wound on the right side of skull. (ii) There was a 20 cm long stitched wound on the neck. (iii) On the left side of the skull, there was 3 cm long stitched wound. (iv) A hole had been created in the windpipe. (v) There was a 20 cm long stitched wound on the right side of skull. (vi) There was a 18 cm long stitched wound on the middle of skull towards the right side. (vii) There was a 15 cm long wound on the left shoulder. (viii) On the right side of chest 6 cm stitched wound was present. (ix) Behind both the shoulders there was a 5 x 8 cm injury. (x) In the right hand, there was a 6 cm long injury from which pus was oozing out. Internal examination regarding following injuries: (a) It appeared that the bone on the left side had got fractured. (b) bone piece from the right side of the skull had been taken out during surgery. (c) There were clotted blood inside the brain on right and left sides. (d) Dura of the brain was visible in an area of 15 x 8 cms. (e) There was also injury on the frontal region of brain. 13. As per the witness, the death had occurred due to injuries to the brain and the complications resulting therefrom. The postmortem report is Ex. P/10 regarding the signatures of the witnesses from 'A to 'A' part. In cross-examination, this witnesses denies that proper treatment could have saved the deceased (Kalu). 14. The statements of above witnesses does show that the death of Kalu (deceased) had occurred due to injuries to the brain and the complications arising out of such injuries. The death of Kalu (deceased) was thus on account of culpable homicide. Dr. Desai (PW/10) has denied the suggestion that proper treatment could have saved deceased Kalu. It is thus clear that the injuries on vital organ (brain) were of such nature as would cause death in the ordinary course of nature. 15. Now the statements of eye-witnesses and involvement of the applicant as per these witnesses shall be considered. 16. Witnesses namely; Manjubai (PW/1), Geetabai (PW/2), Ramchand @ Ramsingh (PW/3), Gulabsingh (PW/4) and Akram (PW/5) are the eye-witnesses. Malu (PW/7) has stated that deceased-Kalu had told him that he was hit by appellant-Ratan @ Ratansingh and co-accused-Mehtab. Evidence of these witnesses shall now be considered. 17. 16. Witnesses namely; Manjubai (PW/1), Geetabai (PW/2), Ramchand @ Ramsingh (PW/3), Gulabsingh (PW/4) and Akram (PW/5) are the eye-witnesses. Malu (PW/7) has stated that deceased-Kalu had told him that he was hit by appellant-Ratan @ Ratansingh and co-accused-Mehtab. Evidence of these witnesses shall now be considered. 17. Manjubai (PW/1) has stated that her son-Kalu (deceased) had given a loan amount of Rs. 10,000/- to Ramchand (co-accused). She along with her son-Kalu and Geetabai had gone to the house of Ramchand (co-accused) for demanding the money back, however, co-accused-Ramchand instead of returning the money, hurled filthy abuses using obscene expletives in the name of father and mother at the complainant party. The witness states that when so confronted by accused-Ramchand, they started retreating to their house but at that point of time, the appellant and other co-accused persons chased them down. The present appellant-Ratan was wielding a Dharia, co-accused-Mehtab had a sword, Rakesh was armed with axe and Ramchand and Bheru were carrying stones. Mehtab inflicted sword injury on the head of Kalu (deceased), appellant-Ratan dealt a falia blow on the chin, Ratan and Rakesh inflicted axe blows on both the shoulders of deceased, whereas co-accused Ramchand and Bheru pelted stones on Kalu and due to such assault by so many accused persons, Kalu fell down. On hearing cries of witness, Gulabsingh, Dilip, Ramsingh and Akram came over to appellant and thereafter accused persons fled from the spot. 18. In her cross-examination, she has admitted that when she along with her family members had gone to the house of Ramchand, at that point of time, the appellant-Ratan had not come out of the house. However, she states that when the assault took place, Ratan was present along with other co-accused persons. This witness admits that Ratan is the son of sister-in-law of witness and the sister-in-law had given some land when she had come to the village. She also admits that after the death of her sister-in-law, Ratan had been asked to give back the land. She denies that land dispute exists between her and Ratan. 19. Geetabai (PW/2) is the wife of deceased Kalu. She also admits that after the death of her sister-in-law, Ratan had been asked to give back the land. She denies that land dispute exists between her and Ratan. 19. Geetabai (PW/2) is the wife of deceased Kalu. She has deposed exactly in a manner as deposed by Manjubai (PW/1) and has stated that when she along with her mother-in-law (Manjubai) and husband (Kalu) had gone to the house of Ramchand seeking return of loaned amount given to him, but Ramchand refused to oblige and abused them filthily and thereafter they returned to their home. She states that thereafter accused persons namely; Ratan, Mehtab, Rakesh, Ramchand and Bheru came armed with weapons and Ratan inflicted Dharia blow near chin of Kalu and others also inflicted injuries with weapons. She states that Akram and Gulabsingh came on hearing cries and accused fled from the spot. 20. In cross-examination, this witness admits that appellant Ratan resides with Ramchand and both are related to each other. She states that when altercation had occurred at the house of Ramchand, Ratan had not come out, but states that subsequently Ratan had come with other accused persons and was involved in the assault. This witness admits that mother of Ratan had been given a piece of land and a house but denies that dispute had arisen when Ratan was asked to return the same. 21. Gulabsingh (PW/4) and Akram (PW/5) have claimed to have seen the incident and both of them have stated that they saw Ratan inflicting falia blow on Kalu. 22. Gulabsingh (PW/4) has stated that he is the son-in-law of deceased-Kalu and at the time of incident, he was present in the courtyard of Kalu. This witness admits that Ratan was being asked to return the house and land given to him earlier by the deceased-Kalu and his mother (Manjubai). 23. Akram (PW/5) has admitted that he had arrived at the spot on hearing cries but denies that when he arrived at the spot accused were running away. He states that he had seen the incident himself. 24. Dilip (PW/6) also claims to have seen the incident and in cross-examination, he has admitted the existence of dispute between the deceased and appellant. 25. A close perusal of the evidence of the aforesaid witnesses shows that there is uniformity in their statements regarding the events which had unfolded on the day of incident. 24. Dilip (PW/6) also claims to have seen the incident and in cross-examination, he has admitted the existence of dispute between the deceased and appellant. 25. A close perusal of the evidence of the aforesaid witnesses shows that there is uniformity in their statements regarding the events which had unfolded on the day of incident. From the evidence available on record, it does appear that there was a standing land and house dispute between the deceased and appellant Ratan, however, all witnesses have uniformly stated that appellant had given falia blow to Kalu (deceased). 26. The Investigating Officer (IO) Mr. Mahendra Singh Bhadoria has stated that during investigation, the appellant was arrested vide Ex. P/14 and on questioning, he disclosed that falia had been kept by him in his house in a room filled with bamboos. The memorandum statements are Ex. P/15 and the seizure memo is Ex. P/16. 27. The aforesaid seized article falia has been sent to FSL but the FSL report is not placed on record. However, the evidence of eye-witnesses are creditworthy regarding involvement of appellant-Ratan in assaulting the deceased Kalu. 28. Admittedly, none of the witnesses have stated that it was the appellant Ratan who had caused head injuries to the deceased Kalu and all the eye-witnesses have stated that the deceased Kalu was dealt falia blow by appellant Ratan near his chin. The first injury below the left ear corresponds to the statements of these witnesses. This injury was present along with other injuries found on the person of deceased. This corroborates the evidence of all the eye-witnesses that the appellant was present along with other co-accused persons and had assaulted the deceased Kalu. 29. It is clear that death of Kalu was a result of culpable homicide and it is also proved that the appellant Ratan was not only a member of the unlawful assembly which had assaulted the deceased (Kalu) consisting of co-accused persons but had also participated in assaulting the deceased (Kalu). The report (Ex. P/11) was lodged almost immediately after the incident. 30. The report (Ex. P/11) was lodged almost immediately after the incident. 30. Learned counsel for the appellant has submitted that even if the involvement of appellant Ratan is found proved regarding assault on Kalu (deceased), at the most he is liable to be convicted only under Section 304 (Part-1) of IPC because it was a case of sudden fight and that there was no premeditation and hence Exception 4 of Section 300 of Indian Penal Code, 1860 would be attracted. In support, he has cited certain Apex Court judgments of Ahmed Shah and Another vs. State of Rajasthan in Criminal Appeal No. 1889 of 2008, State of Rajasthan vs. Rasool Shah and Others in Criminal Appeal No. 1904 of 2008, State of Rajasthan vs. Halima and Others in Criminal Appeal No. 1938 of 2008, State of Rajasthan vs. Iqbal and Others in Criminal Appeal No. 17 of 2009, Litta Singh and Another vs. State of Rajasthan, (2016) 2 SCC (Cri.) 682, Sanjeev vs. State of Haryana, (2015) 2 SCC (Cri.) 630, Madhuri vs. State of Madhya Pradesh, 2007 Cri.L.J. 4190 to bolster his submissions. 31. The aforesaid citations were considered. 32. It is to be seen as to whether the incident had occurred without any premeditation and was a result of sudden and free fight. 33. Mahendra Singh Bhadoria (PW/12) has stated that he was the Station House Officer (SHO) of Police-Station-Kalidevi, Jhabua (MP) and had prepared the spot map (Ex. P/12). A perusal of this spot map shows the place of incident to be in front of the house of deceased. 34. As per the eye-witnesses, the assault had taken place after Kalu (deceased) and his family members had come back to their house and at that point of time, the appellant and other co-accused persons, armed with dangerous weapons came over and attacked Kalu in front of his house. Thus, the only conclusion would be that the attack on Kalu was premeditated and there was no sudden and free fight. None of the accused persons have received any injuries. Hence, the defence under Section 300(4) of IPC would not be available to the appellant. 35. It has been found proved that appellant was a member of unlawful assembly and co-accused had dealt such injuries to the deceased which were sufficient in the ordinary course of nature to cause death. None of the accused persons have received any injuries. Hence, the defence under Section 300(4) of IPC would not be available to the appellant. 35. It has been found proved that appellant was a member of unlawful assembly and co-accused had dealt such injuries to the deceased which were sufficient in the ordinary course of nature to cause death. Thus, on the principle of vicarious liability enshrined under Section 149 IPC, the appellant Ratan, being a member of such unlawful assembly would be liable under Section 302/149 IPC. 36. In the case of Singapagu Anjaiah vs. State of Andhra Pradesh, (2010) 9 SCC 799 : (2010) 3 SCC (Cri.) 1498, the Hon'ble Supreme Court has held that intention has to be gathered from weapon used, part of the body chosen for assault and nature of injuries caused. In the present case, multiple fractures on skull of the deceased (Kalu) was found which is a vital part of the body and which also depicts the force with which the injuries were inflicted. The cumulative effect of these facts irresistibly leads to one and only conclusion that the deceased was attacked by the appellant and other co-accused persons forming an unlawful assembly in furtherance of common object of the assembly which was to eliminate Kalu (deceased). 37. Although, co-accused Ramchand has later on been acquitted on 18.04.2018 in supplementary ST No. 227/2009 but the acquittal was due to death of a prime witness Manjubai (PW/1) and there were some discrepancies/contradictions in the statements of Geetabai (PW/2), whereas no such contradictions are being found in the evidence of Geetabai (PW/2) in the present case. 38. After due consideration, the conviction of appellant Ratan @ Ratan Singh under Sections 148 and 302/149 of Indian Penal Code, 1860 is upheld. However, he is acquitted from charges framed under Section 25(1-b)(b) of Arms Act, 1959 because the size of the edged part of falia (weapon) has not been ascertained to be more than 6 cms which is a prerequisite for conviction under the aforesaid provision of Arms Act, 1959 as per the notification in that regard. (Notification No. 6312-6552-II-B(i) dated 22.11.1974). 39. Consequently, this appeal is allowed only in part in respect of charge framed under Section 25(1-b)(b) of Arms Act, 1959 and the appeal stands dismissed in respect of conviction under Sections 148 and 302/149 of Indian Penal Code, 1860. (Notification No. 6312-6552-II-B(i) dated 22.11.1974). 39. Consequently, this appeal is allowed only in part in respect of charge framed under Section 25(1-b)(b) of Arms Act, 1959 and the appeal stands dismissed in respect of conviction under Sections 148 and 302/149 of Indian Penal Code, 1860. The sentence awarded in respect of both these offences are also appropriate calling for no interference. The jail sentences in respect of both these offences shall run concurrently. The appeal stands disposed of in aforesaid terms. 40. The disposal of seized property would be as per the impugned judgment of Trial Court. 41. Let a copy of this judgment along with record be sent to the Trial Court for compliance. 42. A copy of the judgment be supplied to the parties free of cost. 43. Certified copy, as per Rules.