JUDGMENT : MEHTA, J. 1. This appeal under Section 374 CrPC is directed against the judgment dated 31.01.1990 passed by the learned Sessions Judge, Bhilwara in Sessions Case No.67/1987 arising out of FIR No.201/1987 registered at the Police Station Kotwali, District Bhilwara, whereby the appellants herein were convicted and sentenced as below : Name of the appellant Offence for which convicted Sentence, fine and default sentence awarded Ram Sawrup Pappu Raju Dinesh Section 147 IPC One year’s simple imprisonment Section 302/149 IPC Life imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, additional simple imprisonment of one month Section 323/149 IPC Three months’ simple imprisonment Radhey Shyam Section 148 IPC One year’s simple imprisonment Section 302/149 IPC Life imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, additional simple imprisonment of one month Section 323/149 IPC Three months’ simple imprisonment Bal Kishan (Since deceased – appeal stands abated to his extent vide order dated 20.07.2000) Section 148 IPC One year’s simple imprisonment Section 302 IPC Life imprisonment alongwith a fine of Rs.100/- and in default of payment of fine, additional simple imprisonment of one month Section 323/149 IPC Three months’ simple imprisonment 2. All the sentences were ordered to run concurrently. 3. The appeal was originally filed by six accused-appellants. During the pendency of the appeal, appellant No.6 Bal Kishan passed away and the appeal to his extent was dismissed as having abated vide order dated 20.07.2000. Appellant No.6 Dinesh also passed away on 03.04.2015. The death certificate issued by the competent authority is placed on record. Thus, the appeal is dismissed as having abated to the extent of the appellant No.5 Dinesh as well. 4. Brief facts relevant and essential for adjudication of the appeal are noted hereinbelow :- 5. Dara Singh (P.W.11) submitted a written report (Ex.P/26) to the SHO, Police Station Kotwali, District Bhilwara on 18.05.1987 at about 08.20 p.m. alleging inter alia that in the evening at about 8 o’clock, he and his father Ramchandra were taking meals at their house. At that time, Sita Ram Rajput’s wife, who stays in the neighbourhood raised an alarm that Devkaran and Dayaram Gurjar were being assaulted by Ram Sawrup, Bal Kishan, Radhey Shyam, Pappu, Raju and Dinesh. At that time, Sita Ram Rajput’s wife, who stays in the neighbourhood raised an alarm that Devkaran and Dayaram Gurjar were being assaulted by Ram Sawrup, Bal Kishan, Radhey Shyam, Pappu, Raju and Dinesh. The complainant and his father proceeded towards the place of incident in an attempt to save their neighbours Devkaran and Dayaram, on which, Ram Sawrup and his companions exhorted that the interveners had come and they should also be beaten. Saying so, the accused diverted their attention towards them. Bal Kishan was having a knife in his hand, whereas Radhey Shyam was armed with a Gupti. Bal Kishan inflicted a blow of knife on the abdomen of his father. Ramsawrup gave a blow of lathi on the head of the informant. Meanwhile, all the accused were raising exhortations of killing. Radhey Shyam caught hold of him and tried to inflict a Gupti blow to him, on which, Subhash Singh Rathore, who operates a flour mill, took him inside his shop and bolted the door to save him. The informant also received injuries on his head, left hand fingers and right knee. Previously also, these people had beaten Dayaram and he (the informant) had intervened and thus, the assailants were bearing an ill will against him. His father’s condition was precarious and he had been admitted to the hospital. 6. On the basis of this report, FIR No.201/1987 was registered at the Police Station Kotwali for the offences punishable under Sections 147, 148, 149/307 IPC and investigation was commenced. Ramchandra expired as a result of the injuries caused to him and thus, offence under Section 302 IPC was added to the case. The dead body of Ramchandra was subjected to autopsy at the hands of medical jurist Dr. Ramgopal (P.W.14) posted at the M.G. Hospital, Bhilwara, who issued the postmortem report (Ex.P/30) taking note of a solitary penetrating wound on the left side of chest, which pierced the heart. The injury was opined as sufficient in the ordinary course of nature to cause death. The doctor also examined the injuries of Devkaran and Dara Singh and issued the injury reports Ex.P/13 and Ex.P/25 respectively. The doctor also examined the injuries of the accused Ramsawrup, Raju, Ramesh and Bal Kishan. The usual steps of investigation were undertaken; the accused were arrested and recoveries were made. The doctor also examined the injuries of Devkaran and Dara Singh and issued the injury reports Ex.P/13 and Ex.P/25 respectively. The doctor also examined the injuries of the accused Ramsawrup, Raju, Ramesh and Bal Kishan. The usual steps of investigation were undertaken; the accused were arrested and recoveries were made. Thereafter, a charge-sheet came to be filed against the accused appellants and the expired accused Bal Kishan and Dinesh for the offences punishable under Sections 302, 147, 148 and 149 IPC in the court of the concerned Magistrate. 7. As the offence under Section 302 IPC was Sessions triable, the case was committed to the Court of Sessions Judge, Bhilwara, where charges were framed against the accused appellants in the following terms : Name of the appellants Offence for which charge framed Ramsawrup Sections 147, 302/149 and 323 IPC and in the alternative Section 323/149 IPC Radhey Shyam Sections 148, 302/149 and 323 IPC and in the alternative Section 323/149 IPC Bal Kishan Sections 148, 302, 323 IPC and in the alternative Section 323/149 IPC Pappu @ Ramesh Raju Dinesh Sections 147, 302/149 and 323 IPC and in the alternative Section 323/149 IPC 8. The accused appellants pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses and exhibited 40 documents to prove its case. The accused were questioned under Section 313 CrPC and upon being confronted with the allegations appearing against them in the prosecution evidence, they denied the same and claimed to have been falsely implicated. 7 documents were exhibited, but no oral evidence was led in defence. 9. Upon appreciating the arguments advanced by the learned Public Prosecutor and the learned defence counsel and evaluating the evidence available on record, the learned trial court proceeded to convict and sentence the appellants as above. Hence, this appeal. 10. Mr. Manish Shisodia, learned Senior Advocate, assisted by Mr. Yogendra Singh, representing the appellants, vehemently and fervently contended that the entire prosecution case is false and fabricated. The accused appellants had no animosity with the deceased Ramchandra. A squabble was already going on between Devkaran and Dayaram on the one hand and the accused-appellants on the other. The deceased Ramchandra and his son Dara Singh, the first informant, were interveners. The solitary injury caused to the deceased has been attributed by the witnesses to the accused Bal Kishan, who has since expired. Mr. A squabble was already going on between Devkaran and Dayaram on the one hand and the accused-appellants on the other. The deceased Ramchandra and his son Dara Singh, the first informant, were interveners. The solitary injury caused to the deceased has been attributed by the witnesses to the accused Bal Kishan, who has since expired. Mr. Shisodia submitted that in view of the admitted facts as set out in the evidence of the material prosecution witnesses, the accused appellants definitely did not constitute an unlawful assembly with the objective of assaulting Dara Singh and his father deceased Ramchandra and as such, the conviction of the accused appellants for the offence punishable under Section 302 with the aid of Section 149 IPC is totally unjustified. He submits that for the simple injuries caused to the injured persons from the complainant party, the surviving accused appellants have already remained in custody for a significant period of time and thus, it would not be expedient in the interest of justice to send them back to prison after almost 35 years of the incident. He, thus, implored the court to accept the appeal and set aside the conviction of the appellants as recorded by the trial court for the offences punishable under Section 302/149 IPC and Sections 147 and 148 IPC and to reduce the sentence awarded to the accused appellants for the offences punishable under Section 323 IPC to the period already undergone by them. 11. Per contra, learned Public Prosecutor vehemently and fervently submitted that the appellants were indiscriminately assaulting Devkaran and Dayaram. The deceased Ramchandra and his son Dara Singh, who were immediate neighbours, acted in a bonafide manner; went to the spot and tried to disburse the quarreling parties. The accused persons already bore a grudge against Ramchandra and thus, the moment he arrived at the spot, the common object of the unlawful assembly formed by the accused got diverted and acting in furtherance of such common object, Bal Kishan inflicted a forceful blow of knife on the chest of Ramchandra, which proved fatal. Thus, the learned Public Prosecutor urged that the trial court was perfectly justified in convicting and sentencing the appellants as above and no interference is called for in the impugned judgment. He implored the court to dismiss the appeal in toto. 12. Thus, the learned Public Prosecutor urged that the trial court was perfectly justified in convicting and sentencing the appellants as above and no interference is called for in the impugned judgment. He implored the court to dismiss the appeal in toto. 12. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have carefully re-appreciated the evidence available on record. 13. It is an admitted position that the initial part of the incident comprised of a quarrel, which took place between Devkaran and Dayaram on the one side and the accused party on the other side. Thus, firstly, we proceed to consider the evidence of Devkaran and Dayaram. 14. Devkaran was examined as P.W.6. He stated in his evidence that the incident took place on 18.05.1987 between 07.30 and 08.00 p.m. His brother Dayaram had come back from duty and was proceeding towards the flour mill of Subhash. An altercation took place between Dayaram and Dinesh. Dinesh threatened Dayaram, who did not react at that time and returned home. Dinesh then called Raju from his shop. Both started quarreling with each other. On hearing the noise, the informant came out of his house and tried to pacify them. Ramsawrup joined the fray and challenged them to a fight. In the meantime, Radhey Shyam, Bal Kishan and Pappu came there. Bal Kishan was having a knife in his hand, Pappu had a Dhariya, and Radhey Shyam had a Gupti. They suddenly launched an attack on the witness and his brother Dayaram. Ramchandra and Dara Singh were taking meals in their house. Sohan Bai shouted that a fight was going on, on which Ramchandra and Dara Singh came there to intervene. On seeing them, the accused diverted their attention towards these two persons. One of them inflicted a lathi blow on the head of Dara Singh, who ran towards the flour mill of Subhash. Radhey Shyam, Dinesh and Ramsawrup pursued him. Pappu caught hold of Ramchandra and Bal Kishan inflicted a knife blow on his chest. Ramchandra became unconscious and fell down on the ground. The witness alleged that he and Dayaram also received injuries in the incident. He attributed his own injuries to Raju. He further stated that the accused ran away from the place of incident after Ramchandra had fallen down. Ramchandra became unconscious and fell down on the ground. The witness alleged that he and Dayaram also received injuries in the incident. He attributed his own injuries to Raju. He further stated that the accused ran away from the place of incident after Ramchandra had fallen down. He went to the Police Station Subhash Nagar to report the matter, but he was directed to the Police Station Kotwali. Dara Singh and one Master accompanied him to the police station. In cross-examination, the witness stated that Dinesh and Dayaram were quarreling at a short distance from their house. He came out on hearing the noise. 10 to 20 persons had collected there. The people present at the scene placated Dinesh and Dayaram and broke up the scuffle. Dinesh proceeded towards his shop. Raju was also present when the quarrel between Dinesh and Dayaram was going on, but he did not participate in the incident. Five minutes later, Ramsawrup came there and started acting offensively with the witness. Two minutes later, the fight broke out. 20 to 25 persons collected there. At that time, Ramsawrup was not having any weapon in his hand. Raju was also unarmed. Pappu and Radhey Shyam were not present at the spot. They came five minutes later and joined the fight. 15. Dayaram was examined as P.W.16. He gave evidence almost on the same lines as Devkaran. However, the witness was confronted with the part of his police statement, wherein he stated that Radhey Shyam gave the Gupti blow on the chest of Ramchandra. The witness denied having given such statement to the police. 16. Now we proceed to discuss the evidence of the first informant Dara Singh (P.W.11), who stated that the incident took place on 18.05.1987 at around 07.30 to 08.00 p.m. He and his father Ramchandra were present in their house and were taking meals. Sitaram’s wife, who lives in their neighbourhood, came around and carried out that Devkaran and Dayaram were being beaten by Bal Kishan, Ramsawrup, Radhey Shyam, Dinesh, Pappu and Raju. On hearing this, he and his father went to the scene to stop the fight. The accused persons diverted their attention towards them and exhorted that the busybodies (Maharathis) had come and they should also be beaten. Saying so, the accused surrounded them. On hearing this, he and his father went to the scene to stop the fight. The accused persons diverted their attention towards them and exhorted that the busybodies (Maharathis) had come and they should also be beaten. Saying so, the accused surrounded them. Pappu caught hold of his father from back and Bal Kishan inflicted a knife blow on the left side of his chest. The accused then diverted their attention towards him. He rushed towards the flour mill of Subhash and went inside. Subhash closed the door of the shop. Ramsawrup gave him a lathi blow on the head and Raju gave him blow by iron rod on right knee and fingers. 10 to 15 minutes later, he came out of the shop and proceeded to the Police Station Kotwali and lodged the report (Ex.P/26). When he came out of the shop, he did not see his father. In cross-examination, the witness stated that when he and his father came out of their house, many other people from the neighborhood had already collected at the quarrel scene. The accused were beating Devkaran and Dayaram, who are their neighbours. He did not catch hold of anyone. He pleaded with the accused and tried to break up the fight. His father followed him. There were 50 to 60 bystanders at the spot, but no one intervened. He requested all the accused to stop the violence. He did not see where Devkaran and Dayaram received the injuries. 17. Upon appreciation of the evidence of all the three eyewitnesses referred to supra, it becomes apparent that there was no significant animosity between the deceased Ramchandra and his son Dara Singh on the one hand and the accused party on the other hand. The prosecution has come out with an allegation that the accused appellant Pappu caught hold of the deceased Ramchandra and taking advantage of this opportunity, Bal Kishan inflicted the fatal knife blow on his abdomen. However, this allegation does not find place in the written report (Ex.P/26) lodged by Dara Singh on 18.05.1987. Devkaran (P.W.6) as well as Dara Singh (P.W.11) made this allegation in their sworn testimony. However, in cross-examination, Dara Singh stated that Pappu and Dinesh had caught hold of Dayaram. However, this allegation does not find place in the written report (Ex.P/26) lodged by Dara Singh on 18.05.1987. Devkaran (P.W.6) as well as Dara Singh (P.W.11) made this allegation in their sworn testimony. However, in cross-examination, Dara Singh stated that Pappu and Dinesh had caught hold of Dayaram. Even in his previous police statement (Ex.D/1), Devkaran (P.W.6) did not mention that the accused Pappu had caught hold of Ramchandra when Balkishan gave the fatal blow of knife on his abdomen. Apparently, thus, there is a contradiction regarding the allegation attributed to Pappu that he had caught hold of the deceased while the accused Bal Kishan inflicted knife blow to him. 18. In the statement of Dayaram (P.W.16), there is an apparent contradiction because he in his investigational statement (Ex.D/2) alleged that Radheyshyam gave a fatal knife blow to the deceased Ramchandra. The witness was also confronted with his police statement (Ex.D/2), wherein there is no such assertion that the accused appellant had caught hold of the deceased Ramchandra when the fatal knife blow was inflicted to him. Thus, there are grave contradictions in the statements of the prosecution witnesses qua the allegation attributed to the accused Pappu of catching hold of the deceased. Thus, the allegation so made is not reliable and believable. 19. There is significant inconsistency in the statements of Devkaran and Dayaram regarding the sequence in which the quarrel took place. Ramchandra and Dara Singh allegedly went to the spot as interveners and tried to break up the quarrel, which was already going on between the accused party on the one hand and Devkaran and Dayaram on the other. At that point of time, one of the accused, namely, Bal Kishan, seems to have diverted his attention to Ramchandra and gave a single blow of the knife to the victim, which proved fatal. In these circumstances, we are of the firm view that the accused persons cannot be held liable for the charge of murder by virtue of Section 149 IPC. There was no unlawful assembly and a random quarrel was going on between some of the accused on one side and Devkaran and Dayaram on the other. There was neither any previous motive nor any immediate cause for the accused to have assaulted the deceased. Admittedly, the accused persons other than Bal Kishan, did not cause any injury to Ramchandra. There was no unlawful assembly and a random quarrel was going on between some of the accused on one side and Devkaran and Dayaram on the other. There was neither any previous motive nor any immediate cause for the accused to have assaulted the deceased. Admittedly, the accused persons other than Bal Kishan, did not cause any injury to Ramchandra. Hence, we are of the opinion that invocation of the provision of vicarious liability by virtue of Section 149 IPC so as to hold the accused other than Bal Kishan responsible for the murder of Ramchandra is unwarranted and unjustified. 20. Thus, there are no elements of constitution of an unlawful assembly in the incident and since the accused persons inflicted simple injuries to the injured Devkaran and Dayaram, they can be held guilty only for the offence punishable under Section 323 IPC simplicitor. 21. Our view is fortified by the judgment rendered by the Hon’ble Supreme Court in the case of Vajrapu Sambayya Naidu & Ors. Vs. State of AP & Ors. ([2003] 0 AIR(SC) 3706), wherein it has been held that :- “20. Even assuming that the right of private defence of persons did not accrue to the appellants and that, in fact, they exceeded their right of private defence of property, it has to be seen as to which of the accused exceeded that right. It is well settled that in a case where the court comes to the conclusion that the members of the defence party exceeded the right of private defence, the court must identify and punish only those who have exceeded the right. Section 34/149 IPC will not be applicable in the case of persons exercising their right of private defence. [See: State of Bihar v. Mathu Pandey, 1970(1) SCR 358 and Subramani v. State of Tamil Nadu, 2002(7) SCC 210 ]. For the same reason, the appellants cannot be held guilty of the offence under Section 148 IPC, because nothing is an offence which is done in the exercise of the right of private defence.” 22. Consequently, the appeal deserves to be and is hereby accepted in part. Conviction of the surviving appellants (1) Ram Sawrup (2) Radhey Shyam (3) Pappu @ Ramesh and (4) Raju as recorded by the trial court for the offences punishable under Section 302/149 IPC and Sections 147, 148 and 323/149 IPC is hereby quashed and set aside. Consequently, the appeal deserves to be and is hereby accepted in part. Conviction of the surviving appellants (1) Ram Sawrup (2) Radhey Shyam (3) Pappu @ Ramesh and (4) Raju as recorded by the trial court for the offences punishable under Section 302/149 IPC and Sections 147, 148 and 323/149 IPC is hereby quashed and set aside. However, these accused persons are convicted for the offence punishable under Section 323 IPC. They have suffered substantive imprisonment for a period of almost three months during trial and post conviction. The incident took place in the year 1987 and more than 35 years have elapsed since then. Hence, we feel that it would be totally unjustified to direct that the accused persons should be sent back to prison at this belated stage. Consequently, the substantive sentence awarded to the appellants Ram Sawrup, Pappu, Raju and Radhey Shyam for the offence under Section 323 IPC is reduced to the period already undergone by them. They are on bail and need not surrender. 23. However, keeping in view the provisions of Section 437-A CrPC, each of the appellants shall furnish a personal bond in the sum of Rs.40,000/-and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of a Special Leave Petition against the present judgment, on receipt of notice thereof, the appellants shall appear before the Supreme Court. 24. The appeal is partly allowed in the above terms. The record be returned to the trial court.