JUDGMENT PANKAJ BHANDARI, J. 1. The accused appellants have preferred the instant appeal aggrieved by the judgment of conviction and sentence dated 07.03.1989 passed by the learned Sessions Judge, Tonk, in Sessions Case No.50/1986 arising out of FIR No.97/1986, by which, he convicted and sentenced the accused appellants as under:- Unkar:-Under Section 302/34 IPC – Imprisonment for life and under Section 307/34 IPC – 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, 3 months further rigorous imprisonment. Nathu Lal:- Under Section 302/34 IPC – Imprisonment for life. Kalu:- Under Section 307/34 IPC – 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of fine, 3 months further rigorous imprisonment. Laddu:- Under Section 307/34 IPC – 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, 3 months further rigorous imprisonment. Rodu:- Under Section 307/34 IPC – 3 years rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, 3 months further rigorous imprisonment. Section 323 IPC – 1 month rigorous imprisonment. All the sentences were directed to run concurrently. 2. During the pendency of the present appeal, appellants – Unkar and Rodu expired and the appeal stands abated qua appellants – Unkar and Rodu. The present appeal is being heard and decided with regard to appellants – Nathulal, Kalu and Laddu. 3. Succinctly stated the facts of the case are that on 15.09.1986 at 11:30 pm, complainant – Ramkaran son of Prabhu (PW-1) gave a parchabayan (Exhibit-P1) to the police. On basis of the said parchabayan, police registered FIR No.97/1986 (Exhibit- P42) on 16.09.1986 at 9:00 am at Police Station Uniara, District Tonk for offences under Sections 147, 148, 149, 307, 323 and 324 of IPC against the accused appellants. The police, after due investigation, filed charge-sheet against the accused appellants and other co-accused. The case was committed for trial and the Trial Court, after hearing the charge arguments, framed charges against the accused appellants for offences under Sections 147, 148, 302/149, 307, 325, 323, 307/149, 325/149, 324/149 & 323/149 of IPC. The accused appellants denied the charges and claimed trial. During the trial, on behalf of the prosecution as many as 20 witnesses were examined and 84 documents were exhibited. The accused appellants denied the charges and claimed trial. During the trial, on behalf of the prosecution as many as 20 witnesses were examined and 84 documents were exhibited. The explanation of the accused appellants was recorded under Section 313 Cr.P.C. wherein they denied the allegations and stated that they have been falsely implicated. In defence, 5 witnesses were examined and 12 documents were exhibited. 4. As per the prosecution case, Tejaji’s Fair was ongoing in Village Banetha for last few days. It is the case of the prosecution that there was rumor going around that Pokhar (PW-9) has stolen the ‘prasad’ of Tejaji and this charge is said to be made by Rodu. It is further the case of the prosecution that on the night of 15.09.1986 at around 8:00 pm, 15 accused gathered at the village chowk armed with gandasis and lathis. Out of 15 accused persons, 8 were said to have been armed with gandasis and rests were having lathis. Rodu incited everyone to kill Srinarain and his family and all 15 persons mentioned in the FIR assaulted the members of the complainant party including deceased Srinarain. Out of 15 accused persons, learned Trial Court acquitted 3 accused; convicted 7 accused and gave them benefit of the Probation of Offenders Act, 1958; accused - Nathu was convicted for offence under Section 302/34 of IPC; accused- Unkar was convicted for offence under Section 302/34 & 307/34 of IPC; 2 accused appellants – Kalu & Laddu were convicted for offence under Section 307/34 of IPC and; accused- Rodu was convicted for offence under Section 307/34 & 323 of IPC. 5. It is contended by learned counsel appearing for the accused appellants that the dispute took place on the spur of the moment. There are two injured persons on the side of accused i.e. Rodu and Gulaba, whose injury reports are Exhibit-D8 and D9 respectively. It is also contended that deceased Srinarain sustained 2 injuries on his head i.e. on left temporal parietal region and on right parietal temporal region, which were caused by blunt weapon. It is further contended that different versions are given by different witnesses. It is also contended that deceased Srinarain sustained 2 injuries on his head i.e. on left temporal parietal region and on right parietal temporal region, which were caused by blunt weapon. It is further contended that different versions are given by different witnesses. Ramkaran son of Prabhu (PW-1) has stated that Nathu hit the deceased with a lathi on his leg; Laddu hit the deceased with gandasi on his back; Kalu hit with gandasi on his neck; Rodu hit him with gandasi on his leg and hips. Jagdish (PW-2) has stated that Nathu hit the deceased with a lathi on his head; Laddu hit the deceased with gandasi on his neck; Rodu hit the deceased with gandasi on his ears. Prahlad (PW-3) has not made any specific allegation against accused Nathu, Laddu and Kalu. As per injured Shankar (PW-5), Nathu hit the deceased with a lathi and Rodu hit the witness with gandasi on his head. As per Rughanath (PW-6) and Hazari (PW-7), Nathu hit the deceased with a lathi on head. As per Bhanwar Lal (PW-8), Rodu hit the deceased with gandasi on his head just above the ear and Nathu hit the deceased with gandasi on his head. As per Pokhar (PW-9), Rodu and Nathu hit the deceased with gandasi on his head, Laddu hit Jagdish (PW-2) with a lathi on his head and Rodu hit Ramkaran with gandasi on his head. 6. It is contended that different versions have been given by different witnesses. Ramkaran (PW-1), Shankar (PW-5), Rughanath (PW-6) and Hazari (PW-7) have stated that Rodu gave a call to everyone to finish off the deceased and his family. Ramkaran son of Prabhu (PW-1) has not assigned the head injury to any of accused. As per Jagdish (PW-2), Unkar hit the deceased with a lathi on his head, due to which, the deceased fell down and thereafter, everyone hit the deceased. As per eyewitness – Prahlad (PW-3), Deva and Unkar hit the deceased and Unkar gave the first blow. He has not levelled any specific allegation against Nathu, Laddu and Rodu. It is also contended that the learned Trial Court has held that offence under Sections 147, 148, 149 of IPC is not made out. State has not preferred any appeal, hence, to that extent, judgment of the learned Trial Court should be affirmed. He has not levelled any specific allegation against Nathu, Laddu and Rodu. It is also contended that the learned Trial Court has held that offence under Sections 147, 148, 149 of IPC is not made out. State has not preferred any appeal, hence, to that extent, judgment of the learned Trial Court should be affirmed. It is further contended that the learned Trial Court has come to the conclusion that there was some dispute with regard to theft of prasad and that the accused did not come with common intention or common object. 7. It is contended by learned Additional Government Advocate that the judgment does not call for any interference as the learned Trial Judge has discussed the injuries of each injured and has also considered the statements of injured witnesses before arriving at the conclusion. 8. We have considered the contentions raised by learned counsel for the parties and have carefully gone through the material on record. 9. As many as 15 persons were charge-sheeted; out of which, 3 have been acquitted by the learned Trial Court and 7 were convicted and were given benefit of the Probation of Offenders Act. No appeal has been preferred by the accused or the State against the said acquittal/conviction and grant of probation. We are thus, not required to go into the question of conviction of 7 of the accused, who were given the benefit of the Probation of Offenders Act. Out of the 5 appellants, who have preferred the appeal, Unkar and Rodu have expired during the pendency of the appeal and the appeal stands abated against them. Therefore, we are now required to deliberate only with regard to accused appellants – Nathu, Laddu and Kalu. 10. Learned Trial Court has held that there was some dispute between the parties with regard to naming Pokhar (PW-9) for stealing the prasad. As far as the evidence goes, Ram Karan (PW- 1), Shankar (PW-5), Rughanath (PW-6) and Hazari (PW-7) have deposed that Rodu was the one, who told everyone to finish the deceased- Srinarain and his family. Thus, as per the prosecution, the dispute started when Rodu gave a call to everyone to finish Srinarain and his family. The FIR was lodged on the basis of parchabayan of Ram Karan (PW-1) wherein he had levelled allegations against all and there was no overt act assigned to each accused. Thus, as per the prosecution, the dispute started when Rodu gave a call to everyone to finish Srinarain and his family. The FIR was lodged on the basis of parchabayan of Ram Karan (PW-1) wherein he had levelled allegations against all and there was no overt act assigned to each accused. As to who gave the fatal blow to the deceased, there are different versions. As per Ram Karan (PW-1), Nathu had hit the deceased on his leg. Jagdish (PW-2), in his examination-in-chief has stated that Unkar hit the deceased with a lathi on head and Laddu hit the deceased with gandasi on his neck and in his crossexamination, he has stated that Unkar, was the one, who first hit the deceased on head, upon which he fell down and then everyone started to give beating to him. As per Prahlad (PW-3), Deva and Unkar hit the deceased and it was Unkar, who gave the first blow. He has not levelled any specific allegations against Nathu, Laddu and Kalu. However, Shankar (PW-5), Rughanath (PW-6) and Hazari (PW-7) have deposed that Unkar and Nathu both hit the deceased with lathi on his head. Similar is the statement of Bhanwar Lal (PW-8), who has also deposed that Unkar hit the deceased with lathi on head, however, he has stated that Nathu hit the deceased with gandasi on his head. Pokhar (PW-9) has deposed that Rodu and Nathu hit the deceased with gandasi on his head. Thus, if we scan the evidence, as per Bhanwar Lal (PW-8) and Pokhar (PW-9), Nathu was armed with a gandasi and he hit the deceased on his head with a gandasi, however, from perusal of the evidence of other witnesses, Nathu was armed with a lathi. Thus, to this extent, Bhanwar Lal (PW-8) and Pokhar (PW-9) cannot be relied upon as they have stated that Nathu was armed with gandasi and he hit the deceased with gandasi. 11. If Ram Karan (PW-1) is to be believed, as per him, Nathu hit the deceased on his leg. As per Jagdish (PW-2), in his examination-in-chief, he assigned the head injury to Unkar and Nathu, however, in his cross-examination, he has mentioned that after Unkar hit the deceased on head, he fell down and then Kalu and Laddu were the first to give blow to the deceased. In his cross-examination, he has not assigned the head injury to Nathu. As per Jagdish (PW-2), in his examination-in-chief, he assigned the head injury to Unkar and Nathu, however, in his cross-examination, he has mentioned that after Unkar hit the deceased on head, he fell down and then Kalu and Laddu were the first to give blow to the deceased. In his cross-examination, he has not assigned the head injury to Nathu. Prahlad (PW-3) has deposed that Deva and Unkar hit the deceased. He has not levelled any allegation against Nathu, Laddu and Kalu. Shankar (PW-5), who is also an injured witness, has stated that Unkar hit the deceased on his head, however, he has not stated that Nathu hit the deceased on his head. He has simply stated that Nathu also hit the deceased with a lathi. Rughanath (PW-6) and Hazari (PW-7) have deposed that Unkar hit the deceased on his head and Nathu also hit the deceased with a lathi on his head. Thus, except for these two witnesses-Rughanath (PW-6) and Hazari (PW-7), no one has stated that Nathu hit the deceased on his head. Thus, from the evidence adduced before the learned Court below, it is evident that Unkar hit the deceased with a lathi on his head and that it was Unkar, who gave the first blow. 12. Ram Karan (PW-1) has deposed that Nathu hit the deceased with lathi on his leg. Prahlad (PW-3) has deposed that Unkar gave the first blow and Deva & Unkar hit the deceased. He has not levelled any allegation against Nathu, Laddu and Kalu. Shankar (PW-5) has also deposed that Nathu hit the deceased with lathi, but he has not specified as to whether the deceased was hit by Nathu on his head. Thus, we can conclude that the deceased was hit by a lathi on head by Unkar and since there are different versions; it cannot be held that Nathu gave the fatal blow to the deceased and the conviction of accused appellant – Nathu for the offence under Section 302/34 of IPC cannot be sustained. 13. So far as conviction of accused – Unkar, Kalu, Rodu and Laddu for offence under Section 307/34 of IPC is concerned, Unkar and Rodu have expired and thus, we would be only dealing with the role of accused – Kalu and Laddu. 13. So far as conviction of accused – Unkar, Kalu, Rodu and Laddu for offence under Section 307/34 of IPC is concerned, Unkar and Rodu have expired and thus, we would be only dealing with the role of accused – Kalu and Laddu. As far as accused-Kalu is concerned, the allegation against him is that he gave a blow on the neck of Jagdish (PW-2) with a lathi. The said injury is said to be grievous by Dr. V.D. Sharma (PW-16). Since the said injury has been caused by a lathi on the neck, it cannot be said to be on vital part of the body so as to hold accused – Kalu guilty for offence under Section 307 of IPC. However, as far as accused-Laddu is concerned, Jagdish (PW-2) has deposed that Laddu gave a blow with gandasi on his head, which injury, as per by Dr. V.D. Sharma (PW-16), has been caused by a sharp weapon and since the injury has been caused on the head, which is a vital part, the conviction of accused-Laddu for offence under Section 307/34 of IPC was justified. Therefore, we do not find any illegality or error in order of conviction of accused-Laddu for offence under Section 307/34 of IPC. Accordingly, we set aside the conviction of accused-Kalu for offence under Section 307/34 of IPC and uphold the conviction of accused-Laddu for offence under Section 307/34 of IPC. 14. So far as the other injured witnesses are concerned, Ram Karan (PW-1), Prahlad (PW-3), Shankar (PW-5), Rughanath (PW- 6) and Hazari (PW-7) have not assigned any injuries to the present appellants. Thus, the present appellants have caused injuries only to the deceased and Jagdish (PW-2). 15. In the deliberations made herein-above, we have come to the conclusion that Unkar gave blow with a lathi on the head of the deceased, upon which, the deceased fell down and all other, accused gave beating to him. Thus, the present appellants have caused injuries only to the deceased and Jagdish (PW-2). 15. In the deliberations made herein-above, we have come to the conclusion that Unkar gave blow with a lathi on the head of the deceased, upon which, the deceased fell down and all other, accused gave beating to him. It was not established that Nathu gave fatal blow to the deceased, thus we set aside the conviction of Nathu for offence under Section 302/34 of IPC, however, Nathu had given blow to the deceased and Kalu had also given blow to Jagdish (PW-2), therefore, we hold them guilty for offence under Sections 323 and 324/34 of IPC as both Nathu and Kalu were armed with lathis, therefore, as has been the fate of other coaccused in this case, who were given the benefit of the Probation of Offenders Act, we deem it proper to give both the accused appellants-Nathu and Kalu the benefit of Probation of Offenders Act. 16. However, as far as accused-Laddu is concerned, his conviction for offence under Section 307/34 of IPC do not call for any interference and accordingly, his conviction for offence under Section 307/34 of IPC is upheld. Thus, the appeal so far it relates to accused – Laddu is dismissed and his conviction and sentence is upheld. The appeal so far it relates to accused appellants – Nathu and Kalu is partly allowed; conviction and sentence of accused – Nathu for offence under Section 302/34 of IPC and conviction and sentence of accused – Kalu for offence under Section 307/34 of IPC is set aside and instead, both accused appellants - Nathu and Kalu are convicted for offence under Sections 323 and 324/34 of IPC and are given benefit of the Probation of Offenders Act. The bail bonds earlier submitted by the accused appellants – Nathu, Kalu and Laddu stands cancelled. 17. The learned trial Court is directed to take necessary steps for taking the accused appellant - Laddu in custody for serving the remaining sentence. 18. The bail bonds earlier submitted by the accused appellants – Nathu, Kalu and Laddu stands cancelled. 17. The learned trial Court is directed to take necessary steps for taking the accused appellant - Laddu in custody for serving the remaining sentence. 18. Appellants- Nathu and Kalu are directed to furnish personal bond in the sum of Rs.50,000/- each and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants on receipt of notice thereof, shall appear before the Hon’ble Apex Court. The bail bond will be effective for a period of six months. 19. A certified copy of this order along with record of the case be sent to the learned Trial Court forthwith.