JUDGMENT : Sanjay K. Agrawal, J. 1. Assail in the present batch of Criminal Appeals, under Section 374(2) of the Code of Criminal Procedure, 1973 (in short ‘CrPC’), filed by the accused/appellants herein, except Criminal Appeal No.383/2019 which has been filed by the complainant, is to the legality, validity and correctness of the Judgment dated 30.1.2019 passed by learned Fifth Additional Sessions Judge, Raigarh in Sessions Case No.27/2018, whereby the accused/appellants i.e. A-1 Vidhyanand Rathore, A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-4 Dron Kumar Rathore, A-5 Yugansh @ Golu Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad, A-10 Gopal Nishad, A-11 Prashant Rathore and A-12 Vicky @ Gaurav Singh, have been convicted for offence punishable under Sections 147, 148, 294, 449 (in place of Section 458), 506 (Part-II) and 302/149 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder in the manner as mentioned in the chart given below:- Conviction Sentence 1. Under Section 147 IPC. Sentence awarded under Section 148 IPC. 2. Under Section 148 IPC. 1. Rigorous Imprisonment for 03 years. 2. Fine of Rs.1000/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. 3. Under Section 294 IPC. 1. Rigorous Imprisonment for 03 months. 2. Fine of Rs.1000/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. 4. Under Section 506 (II) IPC. 1. Rigorous Imprisonment for 07 years. 2. Fine of Rs.1000/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. 5. Under Section 449 IPC. Sentence awarded under (in place of S. 458 IPC) Section 302/149. 6. Under Section 302/149 IPC. 1. Imprisonment for Life. 2. Fine of Rs.1000/-. 3. Rigorous Imprisonment for 01 month, in default of payment of fine. All sentences have been directed to run concurrently. 2. Criminal Appeal No.383/2019, under Section 372 of CrPC, has been filed by the complainant – Smt. Nirmala Devi Rohda (mother of deceased Arjun Rohda herein) seeking modification of the impugned Judgment dated 30.1.2019 to the extent of enhancing the sentence awarded to the appellants from life imprisonment to capital/death sentence. Prosecution case, in brief:- 3. 2. Criminal Appeal No.383/2019, under Section 372 of CrPC, has been filed by the complainant – Smt. Nirmala Devi Rohda (mother of deceased Arjun Rohda herein) seeking modification of the impugned Judgment dated 30.1.2019 to the extent of enhancing the sentence awarded to the appellants from life imprisonment to capital/death sentence. Prosecution case, in brief:- 3. On 27.9.2017, A-1 Vidhyanand Rathore had purchased a set of shirt-pant from the ready-made cloth shop of the deceased Arjun Rohda, situated at Mangal Bazar, Kharsiya and on the same day in the evening around 6:30 to 7:00, A-1 Vidhyanand Rathore came back to the shop of the deceased Arjun Rohda and asked him to take back the shirt-pant which he had purchased earlier on the day and to return the money paid by him towards purchase of that shirt-pant, which the deceased Arjun Rohda denied giving him (A-1) the option to chose another set of shirt-pant in exchange of the shirt-pant earlier purchased instead of returning the money. However, A-1 Vidhyanand Rathore did not agree to that offer and started abusing and threatening the deceased Arjun Rohda and then he (A-1) made a call from his mobile phone and called his 8-10 accomplices and thereafter A-1 Vidhyanand Rathore along with A-5 Golu @ Yugansh Rathore, A-11 Prashant Rathore and Lokesh Banjare (juvenile co-accused), armed with sticks, entered into the shop of the deceased Arjun Rohda and assaulted him with hands, fists & legs and sticks as well and also vandalized his shop by damaging LED TV and chairs. During the incident PW-4 Deepak Sachdev, son of Arjun Rohda’s sister, is also said to have received certain injuries while intervening in the incident. The said incident is also said to have witnessed by PW-2 Karan @ Sajjad Ali, PW-6 Rispal @ Radhe and other staff members working in the shop of the deceased Arjun Rohda. 4. Immediately after the incident, on the report of the deceased Arjun Rohda, FIR (Ex. P-20) was lodged at 8:10 p.m in the Police Outpost, Kharsiya, Raigarh. Thereafter, at 8:45 p.m., his MLC (Ex. P-1) was conducted by PW-1 Dr. Lalita Rathiya. Spot Map (Ex. P-9) was prepared. Subsequently, at 11:00 p.m., on the same day, PW-2 Karan @ Sajjad Ali, lodged Dehati Merg Intimation (Ex. P-20) was lodged at 8:10 p.m in the Police Outpost, Kharsiya, Raigarh. Thereafter, at 8:45 p.m., his MLC (Ex. P-1) was conducted by PW-1 Dr. Lalita Rathiya. Spot Map (Ex. P-9) was prepared. Subsequently, at 11:00 p.m., on the same day, PW-2 Karan @ Sajjad Ali, lodged Dehati Merg Intimation (Ex. P-22) regarding death of the deceased Arjun Rohda stating that after lodging FIR of the aforesaid incident and after medical examination of Arjun Rohda when they were waiting at Railway Station, Kharsiya to catch a train to Raigarh, their hometown, Arjun Rohda suddenly got unconscious and he was taken to the Government Hospital, Kharsiya where he was declared brought dead by the duty doctors. On the basis of said report, Merg Intimation (Ex. P-23) was recorded. Inquest proceeding (Ex. P-13) was conducted. Post-mortem (Ex. P-10) was conducted by PW-3 Dr. Pawan Tekade. Memorandum statement (Ex. P-4) of A-1 Vidhyanand Rathore was recorded pursuant to which, a bamboo stick and a Samsung Galaxy mobile phone bearing SIM No.9644212110 were seized from him vide Exs. P-5 & P-6 respectively. Memorandum statement of A-12 Vicky @ Gaurav Singh was also recorded vide Ex. P-14 pursuant to which, a bamboo stick was recovered vide Ex. P-15. Vide Ex. P-16, a mobile phone with a SIM Card was recovered from A-5 Yugansh @ Golu. DVR (Hard Disc) of the CCTV and pliers were recovered from the shop of deceased Arjun Rohda vide Ex. P-8. Vide Ex. P-7, a scandisk pen drive of 8GB containing footage of the incident was seized from A-2 Karan @ Sajjad Ali. Viscera of the deceased Arjun Rohda were sent for chemical examination in which no chemical poison was found as per the Forensic Science Laboratory’s report (Ex. P-56). However, the Forensic Histopathological Report (Ex. P-57) suggested multi-organ hemorrhage involving lungs and kidney among the organs sent which was correlative with the history of assault. 5. On completion of the investigation, the accused/ appellants were charge-sheeted before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. After committal of the case, they appeared before the Trial Court where charges were framed against them for offence under Sections 458, 147, 148, 294, 506 (II) and 302/149 of IPC to which they denied and claimed to be tried. After committal of the case, they appeared before the Trial Court where charges were framed against them for offence under Sections 458, 147, 148, 294, 506 (II) and 302/149 of IPC to which they denied and claimed to be tried. The juvenile co-accused Lokesh Banjare has been tried before the concerned Juvenile Justice Board. 6. During the course of trial, in order to prove its case, the prosecution examined as many as 11 witnesses as PW-1 to PW-11 and exhibited 59 documents vide Exhibits P-1 to P-59. After closure of the prosecution evidence, statements of the accused appellants were recorded under Section 313 of CrPC in which they denied the incriminating circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In defence, the statements of PW-2 Karan @ Sajjad Ali and PW-6 Rispal @ Radhe, recorded under Section 161 of CrPC, have been relied upon as D-1 and D-2 respetively. 7. After conclusion of trial, learned Trial Court, on appreciation of oral and documentary evidence came on record, found all the accused appellants guilty of offence under Sections 147, 148, 294, 449 (in place of Section 458), 506 (Part-II) and 302/149 of IPC and accordingly convicted and sentenced them thereunder in the manner as mentioned at the chart given in the opening paragraph of this judgment. Feeling dissatisfied and aggrieved with the impugned Judgment of conviction and sentence, A-1 Vidhyanand Rathore and A-7 Rajkumar Sidar have filed Cr.A. No.246/2019; A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad have preferred Cr.A. No.248/2019; A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-4 Dron Kumar Rathore and A-6 Rajesh Kurre have moved Cr.A. No.265/2019; A-11 Prashant Rathore has filed Cr.A. No.324/2019; A-5 Yugansh @ Golu Rathore has filed Cr.A. No.381/2019 and A-12 Vicky @ Gaurav Singh has filed Cr.A. No.770/2019. Submission of parties:- 8. Mr. Surendra Singh, learned Senior Counsel appeared through virtual mode and Mr. Rishi Rahul Soni, learned Counsel, appearing on behalf of all the twelve convicted appellants herein, would submit that learned Trial Court is absolutely unjustified in convicting these appellants as the prosecution has miserably failed to bring home the above-stated offence beyond reasonable doubt. Elaborating his submission, learned Senior Counsel would submit that the deceased Arjun Rohda himself had reported the matter to the police after the incident, at 8:10 p.m. vide FIR (Ex. Elaborating his submission, learned Senior Counsel would submit that the deceased Arjun Rohda himself had reported the matter to the police after the incident, at 8:10 p.m. vide FIR (Ex. P-20) and he had named only four accused persons i.e. A-1 Vidhyanand Rathore, A-5 Yugansh Rathore @ Golu, A-11 Prashant Rathore and juvenile co-accused Lokesh Banjare and did not name any other accused/appellants to be present on the spot. Even PW-2 Karan @ Sajjad Ali, who is one of the staff members working in the shop of the deceased Arjun Rohda and alleged to be present at the time of incident, also has only named of A-1 Vidhyanand Rathore, A-5 Yugansh Rathore @ Golu, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and one juvenile co-accused Lokesh Banjare as the assailants including A-4 Drone Kumar Rathore, though as is evident from his police statement (Ex. D-1) that he did not name A-4 Dron Kumar Rathore as the person who had assaulted the deceased Arjun Rohda, which creates a serious contradiction and doubt of A-4 Dron Kumar Rathore to be one of the assailants in the said incident. Similarly, PW-4 Deepak Sachdev as well as PW-6 Rispal @ Radhe also have only named A-1 Vidhyanand Rathore, A-5 Yugansh Rathore @ Golu, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and juvenile co-accused Lokesh Banjare as the assilants involved in the alleged incident. The remaining appellants i.e. A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad have been stated to have reached the spot after the alleged incident of assault on the deceased Arjun Rohad had taken place and no over-act has been attributed to these appellants in the commission of the alleged offence. As such, so far as the above-stated remaining appellants are concerned, they cannot be convicted for offence under Section 302 of IPC with the aid of Section 149 of IPC including other offences for which they have been convicted and therefore their conviction for the aforesaid offences is, prima facie, unsustainable and bad in law and they deserve acquittal of the said offences. 9. 9. Further elaborating his submission, learned Senior Counsel appearing for the accused/appellants, would submit that as per the prosecution case, A-1 Vidhyanand Rathore had purchased a set of shirt-pant from the ready-made cloth shop of the deceased Arjun Rohda on 27.9.2017 and on the same day in the evening he is said to have come back to the shop of the deceased to return the said shirt-pant and to take back the money which was paid by him towards purchasing of that shirt-pant, but the deceased Arjun Rohda denied refund of money and instead offered him to take another set of shirt-pant in exchange of the earlier purchased shirt-pant, which resulted in verbal abuse between them and thereafter the incident took place in which A-1 Vidhyanand Rathore along with A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and A-12 Vicky @ Gaurav Singh and juvenile co-accused Lokesh Banjare alleged to have assaulted the deceased Arjun Rohda who had received simple injuries. As such, considering the injuries suffered by the deceased Arjun Rohda in the said incident, as has been proved by PW-1 Dr. Lalita Rathiya who has conducted MLC (Ex. P-1) of deceased Arjun Rohda at 8:45 p.m. immediately after the incident and has stated that the injuries were simple in nature, which were all contusions and abrasions, and there were no injuries on the vital part of the body of the deceased Arjun Rohda. PW-3 Dr. Pawan Tekade, who has conducted the autopsy (Ex. P-10) of the deceased Arjun Rohda has also opined the cause of his death to be that of coronary artery disease in a case of trauma and in his final report (Ex. P-11) also he has opined on the basis of the Forensic Histopathological Report (Ex. P-57) the cause of death of the deceased Arjun Rohda to be hemorrhage in lungs and kidney with coronary artery disease in a case of trauma. He would therefore submit that the injuries suffered by the deceased Arjun Rohda were not sufficient in the ordinary course of nature to cause his death and as such the case of A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and A-12 Vicky @ Gaurav Singh would not fall under Section 300 (Thirdly) of IPC but it would, at the most, fall under Section 304 (Part-II) of IPC and their appeals be allowed to that extent. 10. 10. On the other hand, Mr. Rahul Tamaskar, learned Government Advocate, appearing for the Respondent-State, would submit that considering the statement of PW-2 Karan @ Sajjad Ali and PW-6 Rispal @ Radhe, the staff members who were present in the shop at the time of incident, as well as the statement of PW-4 Deepak Sachdev, the injured eye-witness to the incident, followed by the statement of PW-1 Dr. Lalita Rathiya who has conducted MLC (Ex. P-1) of the deceased Arjun Rohda and also the statement of PW-3 Dr. Pawan Tekade who has conducted the post-mortem (Ex. P-10) of the deceased and further considering the Forensic Histopathological Report (Ex. P-57) in which the cause of death of the deceased Arjun Rohda has been opined to be multi-organ hemorrhage involving lung and kidney among other organs, correlated with the history of assault, it is clearly established beyond doubt that the all convicted appellants have in fact committed the offence and therefore they have rightly been convicted by learned Trial Court for said offences and their appeals as such deserve to be dismissed in toto. 11. Ms. Hamida Siddiqui, learned Counsel appearing for the complainant in Criminal Appeal No.383/2019, would submit that considering the manner in which the accused persons in furtherance of their common object had attacked and assaulted the deceased Arjun Rohda and further considering the statement of PW-3 Dr. Pawan Tekade, according to whom, the deceased had suffered as many as sixteen injuries which were though contusions and abrasions, but as per the Forensic Histopathological Report (Ex. P-57), his cause of death was due to multi-organ hemorrhage of lungs and kidney among other organs and which was correlated with the history of assault made by the appellants on the vital parts of the body of the deceased, the appellants do deserve for death penalty for the offence committed by them instead of life imprisonment as awarded by learned Trial Court and therefore the impugned Judgment deserves to be modified accordingly. 12. We have heard learned Counsels appearing for the Appellants and the State and for the Complainant as well, considered their rival submissions made herein above and also perused the record of the case with utmost care and circumspection. Discussion and legal analysis:- 13. On 27.9.2017, A-1 Vidhyanand Rathore had purchased a set of shirt-pant from the ready-made cloth shop of the deceased Arjun Rohda. Discussion and legal analysis:- 13. On 27.9.2017, A-1 Vidhyanand Rathore had purchased a set of shirt-pant from the ready-made cloth shop of the deceased Arjun Rohda. Subsequently, on the same day, around 6:30 to 7:00 p.m., A-1 Vidhyanand Rathore is said to have come back to the shop of the deceased and asked him to take back the said shirt-pant which he had purchased earlier on the day and to refund the money paid by him towards purchase of that shirt-pant, on which the deceased Arjun Rohda, instead of returning the money in cash, advised A-1 Vidhyanand Rathore to take another set of shirt-pant in exchange of the shirt-pant he had earlier purchased. This resulted in verbal abuse between A-1 Vidhyanand Rathore and the deceased Arjun Rohda and it is the case of the prosecution that A-1 Vidhyanand Rathore called other appellants herein and thereafter the incident took place where the appellants herein are said to have assaulted the deceased Arjun Rohda and vandalized his shop. As per FIR (Ex. P-20) lodged by the deceased Arjun Rohda himself at 8:10 p.m. by visiting the police station immediately after the incident that took place between 6:30 to 7:30 p.m., he had only named four accused persons i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and one juvenile co-accused Lokesh Banjare, by whom the assault was made due to which the deceased Arjun Rohda suffered injuries. The incident is said to have witnessed by PW-2 Karan @ Sajjad Ali and PW-6 Rispal @ Radhe, the two staff members of the deceased Arjun Rohda, and also by PW-4 Deepak Sachdev, son of his sister. Immediately, after lodging the FIR, the deceased Arjun Rohda was subjected to medical examination which was conducted by PW-1 Dr. Lalita Rathiya at 8:45 p.m. vide MLC (Ex. P-1) in which she found five contusions on his body and complain of pain on his chest, hand and forearm. As per the statement of PW-1 Dr. Rathiya, the injuries suffered by the deceased Arjun Rohda were caused by hard and blunt object, his blood pressure and pulse rate were found to be within normal range at that time, no injuries were found on the vital part of his body and therefore on account of the injuries being simple in nature, he was immediately discharged from the hospital. Subsequently, after his MLC was conducted, the deceased Arjun Rohda along with PW-2 Karan @ Sajjad Ali had gone to Kharsia Railway Station to catch a train to Raigarh, his hometown, and while waiting for train in the Railway Station he suddenly became unconscious due to which he was taken to the Government Hospital, Kharsiya by PW-2 Karan @ Sajjad Ali and where he was declared brought dead by the duty doctors, as per the Dehati Merg Intimation (Ex. P-22) lodged by PW-2 Karan @ Sajjad Ali. The post-mortem of the deceased Arjun Rohda was conducted by PW-3 Pawan Tekade vide Ex. P-10 in which he found total sixteen external injuries qua contusions and abrasions all over the body of deceased Arjun Rohda and on internal examination under scalp contusion was found to be present over his parietal region, his brain and lungs were found to be congested and swollen, heart was also found to be congested in which fluid blood was present and his left anterior descending coronary artery had become 60% narrowing due to atherosclerosis. His cause of death was opined to be coronary artery disease in a case of trauma, subject to final report after Forensic Histopathology and subsequently, on the basis of the Forensic Histopathological Report (Ex. P-57), PW-3 Dr. Pawan Tekade, vide his final report (Ex. P-11) opined the cause of death of the deceased Arjun Rohda to be multi-organ hemorrhage including lungs and kidney with coronary artery disease in a case of trauma. 14. Now, the question is as to whether the Trial Court is justified in convicting all the appellants herein for offence under Section 302 with the aid of Section 149 of IPC in addition to other offences? 15. FIR (Ex. P-20) was lodged by the deceased Arjun Rohda himself at 8:10 p.m. by visiting the police station immediately after the incident had occurred and in which he had only named four accused persons i.e. A-1 Vidhyanand Rathore with whom the altercation had taken place and A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and one juvenile co-accused Lokesh Banjare and he did not name any of the other appellants herein while lodging the FIR which was lodged immediately after one hour of the incident that took place between 6:30 to 7:30 pm. 16. 16. PW-2 Karan @ Sajjad Ali, the staff member working in the shop of the deceased and who was allegedly present in the shop at the time of incident, has also named A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and Lokesh Banjare, the juvenile co-accused, as stated by the deceased Arjun Rohda while lodging the FIR (Ex. P-20). However, PW-2 Karan @ Sajjad Ali also added the name of A-4 Dron Kumar Rathore and A-12 Vicky @ Gaurav Singh as the assailants in the said incident. Thus, making total six accused persons who are said to have reached to the shop of the deceased Arjun Rohda and assaulted him. According to PW-2 Karan @ Sajjad Ali, all these six accused persons immediately thereafter left the shop and after two minutes, these six accused persons called the other appellants i.e. A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad and instigated and provoked them to vandalize the shop of the deceased. However, PW-2 Karan @ Sajjad Ali did not state that these remaining appellants, except the above-stated six accused persons including R-4 Dron Kumar Rathore, had assaulted the deceased Arjun Rohda. But, in his cross-examination, PW-2 Karan @ Sajjad Ali has stated that in his police statement (Ex. D-1) he did not name A-4 Dron Kumar Rathore as the person who had assaulted the deceased Arjun Rohda in the said incident, which raises serious doubt of A-4 Dron Kumar Rathore to be one of the assailants in the said incident. He further states that after lodging the FIR and after the medical examination of the deceased Arjun Rohda was conducted by PW-1 Dr. Lalita Rathiya, he along with the deceased Arjun Rohda had left for the Kharsia Railway Station where they were waiting to catch a train to Raigarh and the deceased Arjun Rohda suddenly became unconscious, who was immediately taken to the Government Hospital, Kharsia where he was declared brought dead by the duty doctors. 17. Lalita Rathiya, he along with the deceased Arjun Rohda had left for the Kharsia Railway Station where they were waiting to catch a train to Raigarh and the deceased Arjun Rohda suddenly became unconscious, who was immediately taken to the Government Hospital, Kharsia where he was declared brought dead by the duty doctors. 17. PW-4 Deepak Sachdev, who is the injured eye-witness to the incident, has also stated that A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and Lokesh Banjare, the juvenile co-accused, had come to the shop and assaulted his maternal uncle i.e., the deceased Arjun Rohda, with sticks, pliers, chairs and hands, fists & feet on account of which he suffered grievous injuries, but he did not name the remaing appellants herein including A-4 Drone Kumar Rathore to have caused the injuries to the deceased Arjun Rohda. 18. Similarly, PW-6 Rispal @ Radhe, who was also one of the staff members working in the shop of the deceased Arjun Rohda and was allegedly present at the time of incident, has stated that A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and Lokesh Banjare, the juvenile co-accused, had come inside the shop. Though he has also stated that thereafter A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-6 Rajesh Kurre and A-7 Rajkumar Sidar had also come to the shop but no over-act has been attributed by him towards these appellants. He did not name any other remaining appellants to be present at the time of incident and has clearly stated that only the aforesaid five accused persons i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and Lokesh Banjare, the juvenile co-accused, had assaulted the deceased Arjun Rohda by sticks, chairs, pliers and hands, fists & feet. 19. As such, on a careful perusal of the statement made by the aforesaid witnesses and also in view of the FIR (Ex. P-20) lodged by the deceased Arjun Rohda himself, it is quite vivid that out of twelve appellants herein only four appellants i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and one juvenile co-accused Lokesh Banjare, who has been tried before the Juvenile Justice Board, had constituted an unlawful assembly. P-20) lodged by the deceased Arjun Rohda himself, it is quite vivid that out of twelve appellants herein only four appellants i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and one juvenile co-accused Lokesh Banjare, who has been tried before the Juvenile Justice Board, had constituted an unlawful assembly. If the case of the prosecution is accepted, the object of the said accused persons was to assault the deceased Arjun Rohda for not returning the set of shirt-pant which A-1 Vidhyanand Rathore had purchased earlier on the date of offence from the shop of the deceased Arjun Rohda, but the question is as to whether the other appellants, excluding the four appellants i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh, can be convicted for offence under Section 302 of IPC with the aid of Section 149 of IPC. 20. In order to answer that question, it would be relevant to first notice Section 141 of IPC, which defines ‘unlawful assembly’, as under:- “141. Unlawful assembly.—An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is- (First)— xxxx; (Second)— xxx; (Third)— To commit any mischief or criminal trespass, or other offence; or (Fourth)— xxx; (Fifth)— xxxx.” 21. Section 141 of IPC states that an ‘unlawful assembly’ is an assembly of five or more persons, if their common object is to commit mischief, criminal trespass or any other offence. The Constitution Bench of the Supreme Court in the matter of Mohan Singh and another v. State of Punjab, AIR 1963 SC 174 held that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. In other words, it is one of the essential condition of an unlawful assembly that its membership must be five or more. The assembly must consist of five or more persons having one of the five specified objects as their “common object”. In other words, it is one of the essential condition of an unlawful assembly that its membership must be five or more. The assembly must consist of five or more persons having one of the five specified objects as their “common object”. Further, their Lordships while dealing with as to the applicability of Section 149 of IPC in such case held that it is necessary to bear in mind the several categories of cases which come before the Criminal Courts for their decision. If five or more persons are named in the charge as composing an unlawful assembly and evidence adduced by the prosecution proves those charge against all of them it is very clear that Section 149 of IPC can be invoked. 22. Since all the appellants herein have been convicted for offence under Section 302 with the aid of Section 149 of IPC, in addition to the other offences, it is relevant to notice Section 149 of IPC here, which reads thus:- “149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.” 23. A careful perusal of the aforesaid provision would show that following ingredients are required to be established in order to convict an accused person for offence under Section 149 of IPC:- (i) there must be an unlawful assembly; (ii) Commission of an offence by any member of an unlawful assembly and (iii) Such offence must have been committed in prosecution of the common object of the assembly; or must be such as the members of the assembly knew to be likely to be committed. 24. Section 149 is applicable only in case of members of unlawful assembly i.e. assembly of 5 or more persons, the common object of whom is any of the objects specified in Section 141 of IPC. 24. Section 149 is applicable only in case of members of unlawful assembly i.e. assembly of 5 or more persons, the common object of whom is any of the objects specified in Section 141 of IPC. In case of such an assembly every person who is member of the assembly, is guilty of every offence committed by any member of the assembly (1) if such offence is committed in prosecution of the common object of such assembly or (2) if the offence is such as the members knew likely to be committed in prosecution of the common object, provided the person was a member of such assembly when that offence was committed. Thus, the liability under this provision attaches to every member of the assembly even when such member had nothing to do with the actual commission of the offence, and even a knowledge about the likelihood of the offence being committed in prosecution of the common object of the assembly is sufficient to impose the liability for the offence when committed by any member of the assembly. 25. The first part of Section 149 of IPC speaks of the commission of an offence in prosecution of the common object of the assembly, whereas the second part takes within its fold knowledge of likelihood of the commission of the offence in prosecution of the common object. The knowledge contemplated by the second part does not mean knowledge of mere possibility of the commission of the offence. The commission of offence must be reasonably likely. Such knowledge may be collected from the nature of the assembly, its common object, the kind of arms which its members bear and their behaviour at or before the actual conflict (See: State of Assam v. Barga Dewani and Others, 1970 (3) SCC 236 , para-8. 26. Section 149 of IPC declares the principle of vicarious criminal liability. Upon an offence being committed by any member of an unlawful assembly in prosecution of the common object, every person, who at the time of the offence being committed is a member of such assembly is guilty of such offence. 26. Section 149 of IPC declares the principle of vicarious criminal liability. Upon an offence being committed by any member of an unlawful assembly in prosecution of the common object, every person, who at the time of the offence being committed is a member of such assembly is guilty of such offence. Equally, in the second part of Section 149, the law-makers have provided that upon an offence being committed by any member of the unlawful assembly which was such that members of that assembly (unlawful assembly), knew to be likely to be committed in prosecution of that object, every member of the assembly, though he may not have committed the offence, is rendered guilty of the offence (See: Somasundaram @ Somu v. State, represented by the Deputy Commissioner of Police, (2020) 7 SCC 722 ). 27. Recently, their Lordships of the Supreme Court in the matter of Naresh alias Nehru v. State of Haryana, (2023) 10 SCC 134 have considered the ingredients of Section 149 of IPC and held in paras 25, 26 & 27 as under:- “25. In the instant case by the impugned order, the High Court has held that every member had inhibited the common intention to accomplish the unlawful object. The facts on hand would disclose that the motive alleged was a quarrel that ensued between Ravi and Nabbu with Ajay and Suraj on the day of Dulhandi and Ravi is said to have threatened to kill Ajay. This factor would clearly disclose that the appellants herein were not involved in the fight that occurred on the day of Dulhandi and as such no motive could be attributed to the appellants. The prosecution had failed to prove that the appellants herein had shared a common object with other members of the alleged unlawful assembly. 26. To convict a person under Section 149IPC the prosecution has to establish with the help of evidence that firstly, appellants shared a common object and were part of unlawful assembly and secondly, it had to prove that they were aware of the offences likely to be committed to achieve the said common object. Both these ingredients are conspicuously absent and there is no evidence to connect the petitioners with the deceased or the co-accused. Both these ingredients are conspicuously absent and there is no evidence to connect the petitioners with the deceased or the co-accused. Undisputedly, no overt act has been attributed to the appellants, and in unequivocal terms PW 9 admits in his cross-examination that none of the accused except Pawan had caused injury to the deceased and there was only a single shot fired from the pistol. 27. Hence, we are of the considered view that the prosecution had failed to prove the guilt of the appellants herein beyond reasonable doubt, and non-consideration of the lacuna in the prosecution case in proper perspective by the trial court and the High Court as analysed hereinabove has resulted in miscarriage in the administration of justice, namely, conviction of the appellants which cannot be sustained.” 28. In the instant case, it is quite vivid that only four accused persons i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore including one juvenile co-accused Lokesh Banjare were named by the deceased Arjun Rohda while lodging the FIR immediately after one hour of the incident, at 8:10 p.m., vide Ex. P-20 proved by PW-10 C.M. Malakar, the Investigating Officer. Further, it is also quite vivid from the statement of PW-2 Karan @ Sajjad Ali that in addition to the aforesaid four accused persons i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and one juvenile co-accused Lokesh Banjare, though he had also named A-4 Dron Kumar Rathore and A-12 Vicky @ Gaurav Singh as the assailant, but as is evident from paragraph 21 of his cross-examiation he did not name A-4 Dron Kumar Rathore in his police statement (Ex. D-1) as the assailant, which is a serious contradiction and which further stands corroborated from the statement of PW-4 Deepak Sachdev and PW-6 Rispal @ Radhe. In addition, the statement of PW-2 Karan @ Sajjad Ali also is that after assaulting the deceased Arjun Rohda, A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and juvenile co-accused Lokesh Banjare had come out of the shop and called the other appellants. In addition, the statement of PW-2 Karan @ Sajjad Ali also is that after assaulting the deceased Arjun Rohda, A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and juvenile co-accused Lokesh Banjare had come out of the shop and called the other appellants. However, there is no allegation that other appellants i.e. A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad so also A-4 Drone Kumar Rathore, except the above-stated accused persons i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore, A-12 Vicky @ Gaurav Singh and juvenile co-accused Lokesh Banjare, had in any manner assaulted the deceased Arjun Rohda and immediately after the incident, the deceased Arjun Rohda had gone to police station to lodge the FIR (Ex. P-20) and thereafter he was medically examined by PW-1 Dr. Lalita Rathiya. As such, except four appellants herein i.e. A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and A-12 Vicky @ Gaurav Singh and one juvenile co-accused Lokesh Banjare, no over-act has been attributed to the other appellants i.e. A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-4 Dron Kumar Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad and their common object is also not established as by the time they had reached the spot, the incident of assaulting the deceased Arjun Rohda as alleged had already taken place. Thus, in our considered view, the conviction of A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-4 Dron Kumar Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad, except A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and A-12 Vicky @ Gaurav Singh, for offence under Section 302 of IPC with the aid of Section 149 of IPC and also for the other offences under which they have been convicted, cannot be said to be made out as the prosecution has not been able to prove the said offences against them beyond reasonable doubt and as such they are entitled to be acquitted of all the offences on the basis of benefit of doubt. 29. 29. Now, the question which arises for our consideration is as to whether the conviction of A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and PW-12 Vicky @ Gaurav Singh for offence under Section 302 of IPC read with Section 149 of IPC including the other offences is justified? 30. It is the case of the prosecution, as projected by the statement of PW-2 Karan @ Sajjad Ali, PW-4 Deepak Sachdev and PW-6 Rispal @ Radhe, that A-1 Vidhyanand Rathore had purchased a set of shirt-pant from the ready-made cloth shop of the deceased Arjun Rohda on 27.9.2017 around 4:30 p.m. and thereafter he had come back to the shop of the deceased around 6:30 to 7:00 p.m. to return the shirt-pant and he demanded refund of the money paid by him towards purchase of that shirt-pant. The deceased Arjun Rohda declined to accept the demand of A-1 Vidhyanand Rathore for refund of money and instead he offered him (A-1) to take another set of shirt-pant in exchange of the shirt-pant he had purchased. This led to an abusive altercation between them and A-1 Vidhyanand Rathore is said to have assaulted the deceased Arjun Rohda with the help of the said accused persons. Immediately after the incident, after lodging the FIR (Ex. P-20), the deceased Arjun Rohda was medically examined by PW-1 Dr. Lalita Rathiya at 8:45 p.m. vide MLC (Ex. P-1) in which she found total five contusions on his body i.e. on the left side of face, left eyebrow, right middle finger, back side of the left chest and on the back side of his right chest and there was complain of pain on his chest and also on the left hand and left forearm and as per the statement of PW-1 Dr. Rathiya, though his vitals were found to be stable and the blood pressure and pulse rate were also found to be within normal limits. In paragraph 13 of her statement, PW-1 Dr. Lalita Rathiya has clearly stated that she did not find any injuries on the vital part of the body of the deceased Arjun Rohda. Rathiya, though his vitals were found to be stable and the blood pressure and pulse rate were also found to be within normal limits. In paragraph 13 of her statement, PW-1 Dr. Lalita Rathiya has clearly stated that she did not find any injuries on the vital part of the body of the deceased Arjun Rohda. She had also specifically stated in paragraph 8 of her statement that on examination she had not found any serious condition or any injuries grievous in nature on the body of deceased Arjun Rohda which were sufficient enough to cause his death and further stated that all the injuries suffered by the deceased Arjun Rohda were simple in nature and therefore she did not advice for further investigation finding the injuries to simple in nature and there was also no stain of blood noticed by her on the body of the deceased Arjun Rohda. Subsequently, the deceased Arjun Rohda suddenly became unconscious in the Railway Station, Kharsia while he was waiting for train along with PW-2 Karan @ Sajjad Ali who immediately took him to the hospital where the duty doctors declared him to be brought dead. In the autopsy of the deceased Arjun Rohda conducted by PW-3 Dr. Pawan Tekade vide Ex. P-10, the following sixteen external injuries qua contusions and abrasions were found over the body of deceased Arjun Rohda:- 1. A contusion present over left forearm, 3.5cm x 3cm, bluish. 2. A contusion present over right thigh, 7cm x 4.5cm, bluish. 3. A contusion present over left thigh, 6.5cm x 3.5 cm, bluish. 4. A contused abrasion present over back left side, 0.5 cm, reddish brown. 5. A contused abrasion present over back left side,3.5cm, reddish brown. 6. A contused abrasion present over back left side,4cm x 1.5cm, reddish brown. 7. A contusion present over back, left side, 1.5cm x 1cm, bluish. 8. A contused abrasion present over back left side, 2cm x 1.5cm, reddish brown. 9. A contusion present over left arm, back side, 6cm x 5.5cm, bluish. 10. An abrasion present over left elbow, 1.5cm x 1cm, reddish brown. 11. A contusion present over right arm, back side,10cm x 4.5cm, bluish. 12. A contused abrasion present over back right side,6cm x 1cm, reddish brown. 13. Multiple petechial hemorrhages present over back at places, pin point to pin head sized, reddish blue. 14. 10. An abrasion present over left elbow, 1.5cm x 1cm, reddish brown. 11. A contusion present over right arm, back side,10cm x 4.5cm, bluish. 12. A contused abrasion present over back right side,6cm x 1cm, reddish brown. 13. Multiple petechial hemorrhages present over back at places, pin point to pin head sized, reddish blue. 14. An abrasion present over right middle finger, 0.5cm x 0.8cm, reddish brown. 15. An extravasation of blood present over right elbow. 16. A contused abrasion present over right elbow,1.5cm x 0.8cm, reddish brown. On the internal examination, dark red under scalp contusion was found to be present over left (7cm x 6cm) and right (1.5cm x 1.5cm) parietal region, though there was no fracture was found. His brain and lungs were found to be congested and swollen including liver, spleen, kidneys which were also found to be congested and pancreas was found to be hemorrhagic. Heart was also found to be congested in which fluid blood was present and his left anterior descending coronary artery had become 60% narrow due to atherosclerosis. His viscera were collected and the pieces of his brain, heart, lungs, liver, spleen, kidneys and pancreas were sent for Histopathology. PW-3 Dr. Pawan Tekade opined the cause of death of the deceased Arjun Rohda to be due to coronary artery disease in a case of trauma, but subject to final report of the Forensic Histopathology Report, [Forensic Histopathology is a specialized area of pathology that uses histological techniques to help identify injuries and diseases in forensic cases. A Forensic Histopathological Report is a document that summarizes the findings of a forensic pathologist's microscopic analysis of tissue samples from major organs or from abnormal findings during the autopsy of a deceased person, which is based on the pathologist's interpretation of the microscopic findings as well as other information such as the autopsy results and the deceased's medical history and it is used to establish the cause of death and also to confirm or refute the alleged manner of death.]. In the instant case, the Forensic Histopathological Report has been brought on record vide Ex. P-57 in which the microscopic findings of the brain, heart, lung, liver, kidney, spleen were found to be suggestive of multi-organ hemorrhage involving lung and kidney among the other organs and it was advised to be correlated with the history of assault. In the instant case, the Forensic Histopathological Report has been brought on record vide Ex. P-57 in which the microscopic findings of the brain, heart, lung, liver, kidney, spleen were found to be suggestive of multi-organ hemorrhage involving lung and kidney among the other organs and it was advised to be correlated with the history of assault. On the basis of the Forensic Histopathological Report (Ex. P-57), PW-3 Dr. Pawan Tekade, by his report (Ex. P-11), finally opined the cause of death of the deceased Arjun Rohda to be multi-organ hemorrhage including lungs and kidney with coronary artery disease in a case of trauma, which was possibly homicidal in nature. 31. At this stage, learned Counsels appearing for the appellants, submitted that looking to the manner in which the dispute arose between the parties, it cannot be said that there was any intention of A-1 Vidhyanand Rathore as well as A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and PW-12 Vicky @ Gaurav Singh to cause death of deceased Arjun Rohda and the injuries allegedly caused by these appellants were not sufficient enough to cause his death in the ordinary course of nature so as to attract Section 300 (Thirdly) of IPC. 32. Section 300 (Thirdly) of IPC states as under:- “300. Murder.— Except in the cases here-inafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or— Secondly.— xxx xxx xxx Thirdly.—If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—” 33. A careful perusal of the above-stated provision would show that in order to bring the case within clause Thirdly of Section 300 of IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. If this element is absent, Section 300 (Thirdly) goes out of the way and offence would not be of murder, but culpable homicide not amounting to murder. 34. If this element is absent, Section 300 (Thirdly) goes out of the way and offence would not be of murder, but culpable homicide not amounting to murder. 34. Section 300 (Thirdly) of IPC came up for consideration before the Supreme Court in the matter of Virsa Singh v. State of Punjab, AIR 1958 SC 465 in which their Lordships have defined the ingredients required to be proved by the prosecution before it could bring the case under Section 300 (Thirdly) of IPC and it has been held in paragraphs 12 & 13 as under:- “12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300, “thirdly”; First, it must establish, quite objectively, that a bodily injury is present ; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. 13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under s. 300, 3rdly. It does not matter that there was no intention to cause death. It does not matter that there was Do intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.” 35. The principles of law laid down in Virsa Singh (supra) has been followed with approval in the matter of Jagrup Singh v. State of Haryana, (1981) 3 SCC 616 . Further, in the matter of Nankaunoo v. State of Uttar Pradesh, (2016) 3 SCC 317 also the principles of law laid down have been followed with approval and it has been held by their Lordships in paragraphs 12 & 13 as under:- “12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place. 13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1-1/2” x 1-1/2” on the back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. 13. Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1-1/2” x 1-1/2” on the back and inner part of left thigh, six gunshot wounds of exit each 1/3” x 1/3” in size in front and middle left thigh. Due to the occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly establish that the appellant intended to cause the injury. Once it is established that the accused intentionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course of nature to cause the death. We find substance in the contention of the learned counsel for the appellant the injury was on the inner part of left thigh, which is the non-vital organ. Having regard to the facts and circumstances of the case that the gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. But the prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury and in the absence of evidence elicited from the doctor that the said injury was sufficient in the ordinary course of nature to cause death, we are of the view that it is a fit case where the conviction of the appellant under Section 302 IPC should be under Section 304 Part 1 IPC.” 36. At this stage, the decision rendered by the Supreme Court in the matter of Mayandi v. State represented by Inspector of Police, (2010) 11 SCC 774 may be noticed herein profitably, in which the deceased was a heart patient and had undergone an angioplasty and he died by heart attack and in that case their Lordships converted/altered the conviction under Section 302 of IPC to Section 326 of IPC awarding the sentence of 10 years’ RI thereunder and it has been held in paragraph 10 as under:- “10. We have considered the reasons given by the High Court and also considered the evidence above referred. It is the admitted fact that the Doctors have not opined that the death was caused due to the injuries caused by the appellant. There is also no evidence to show that the injuries could have independently caused the death of the deceased even if the deceased had not been suffering from a heart problem. It is also the conceded position that the deceased had a serious heart problem which was matter not within the appellant's knowledge and on the contrary the medical evidence reveals that he had undergone an angioplasty but had nevertheless suffered a heart attack thereafter.” 37. Returning to the facts of the present case, in light of the principles of law laid down by their Lordships of the Supreme Court in the above referred decisions, it is quite vivid that as per the report of post-mortem (Ex. P-10), conducted and proved by PW-3 Dr. Pawan Tekade, the deceased Arjun Rohda was suffering from atherosclerosis, [Atherosclerosis is a condition that occurs when fats, cholesterol and other substances build up in the walls of arteries including those in the heart.] and his left descending coronary artery had become 60% narrow due to atherosclerosis and the cause of his death was opined to be coronary artery disease in a case of trauma, which on the basis of Forensic Histopathological Report (Ex. P-57) was finally opined and concluded by PW-3 Dr. Pawan Tekade by its report (Ex. P-11) to be the hemorrhage in lungs and kidney with coronary artery disease in a case of trauma and the manner of death to be a possible homicide. PW-1 Dr. Lalita Rathiya, who had first medically examined the deceased Arjun Rohda vide MLC (Ex. P-57) was finally opined and concluded by PW-3 Dr. Pawan Tekade by its report (Ex. P-11) to be the hemorrhage in lungs and kidney with coronary artery disease in a case of trauma and the manner of death to be a possible homicide. PW-1 Dr. Lalita Rathiya, who had first medically examined the deceased Arjun Rohda vide MLC (Ex. P-1), has also clearly stated that she did not notice any injuries on the vital parts of the body of deceased Arjun Rohda and the injuries suffered by the deceased were all simple in nature and therefore she did not advice for further investigation and discharged the patient from the hospital and that there was no bloodstained found over the body of the deceased. Keeping in mind the decision of Mayandi (supra), in the instant case, there is no evidence that the injuries caused by A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and PW-12 Vicky @ Gaurav Singh could have independently caused death of deceased Arjun Rohda even if the deceased was suffering from coronary artery disease and it is also not in dispute that these accused persons did not know at all that the deceased was suffering from coronary artery disease and it is also not the case of the prosecution that these appellants were aware of the fact that the deceased Arjun Rohda was suffering from coronary artery disease. Only the post-mortem report (Ex. P-20) and the report (Ex. P-11) given by PW-3 Dr. Pawan Tekade would show that the deceased Arjun Rohda was suffering from that disease. PW-1 Dr. Lalita Rathiya who has conducted the MLC (Ex. P-1) of the deceased Arjun Rathiya as well as PW-3 Dr. Pawan Tekade who has conducted autopsy (Ex. P-10) of the deceased both did not state that the injuries suffered by the deceased Arjun Rohda were sufficient enough in the ordinary course of nature to cause his death. Thus, considering the situs and the nature of injuries suffered by the deceased Arjun Rohda, in absence of any material brought out from the medical evidence of PW-1 Dr. P-10) of the deceased both did not state that the injuries suffered by the deceased Arjun Rohda were sufficient enough in the ordinary course of nature to cause his death. Thus, considering the situs and the nature of injuries suffered by the deceased Arjun Rohda, in absence of any material brought out from the medical evidence of PW-1 Dr. Lalita Rathiya and PW-3 Pawan Tekade with regard to the injuries suffered by the deceased could be held to be sufficient in the ordinary course of nature to cause his death to attract clause Thirdly of Section 300 of IPC, we are of the considered opinion that the conviction of A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and PW-12 Vicky @ Gaurav Singh deserves to be converted/altered from one under Section 302 of IPC read with Section 149 of IPC to one under Section 304 (Part-II) of IPC read with Section 149 of IPC sentencing them thereunder to suffer Rigorous Imprisonment for 10 years instead of Life Imprisonment. So far as their conviction for the other offences under Sections 147, 148, 294, 449 (in place of Section 458) and 506 (Part-II) of IPC is concerned, the same is hereby maintained keeping in view of the evidence available on record in support of these offences. 38. As regards Criminal Appeal No.383/2019 filed by the complainant, in view of the aforesaid discussion and analysis of the evidence and the findings arrived at herein above, we do not find any merit in the appeal preferred by the complainant for enhancing the sentence awarded to the appellants to the extent of death penalty and accordingly we dismiss the appeal of the complainant finding no merit. 39. In conclusion:- (1) The conviction and sentence of A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-4 Dron Kumar Rathore, A-6 Rajesh Kurre, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad for offence under Sections 147, 148, 294, 449 (in place of Section 458), 506 (Part-II) and 302/149 are set-aside and they are acquitted of the said offences on the basis of benefit of doubt. Their appeals are allowed accordingly. Their appeals are allowed accordingly. A-2 Rajesh Kumar Rathore, A-3 Rambhagat Rathore, A-7 Rajkumar Sidar, A-8 Yudhisthir Rathore, A-9 Bhola Nishad and A-10 Gopal Nishad are reported to be in jail since 28.9.2017, A-6 Rajesh Kurre is reported to be in jail since 27.10.2017 and A-4 Dron Kumar Rathore is reported to be jail since 6.11.2017. We direct them to be released from jail forthwith, if their detention is not required in any other offence. (2) The conviction and sentence of A-1 Vidhyanand Rathore, A-5 Yugansh @ Golu Rathore, A-11 Prashant Rathore and A-12 Vicky @ Gaurav Singh for offence under Section 302 of IPC read with Section 149 of IPC is altered/converted to under Section 304 (Part-II) of IPC read with Section 149 of IPC and they are sentenced to undergo Rigorous Imprisonment for 10 years instead of Life Imprisonment, marinating the fine amount including its default sentence as it is. However, their conviction for offence under Sections 147, 148, 294, 449 (in place of Section 458) and 506 (Part-II) of IPC and sentence awarded to them under Sections 147, 148, 294 and 506 (Part-II) of IPC are hereby maintained being well merited. Their appeals stand partly allowed to the said extent. A-1 Vidhyanand Rathore is reported to be in jail since 28.9.2017, A-12 Vicky @ Gaurav Singh is reported to be in jail since 5.10.2017 and A-5 Yugansh @ Golu Rathore and A-11 Prashant Rathore both are reported to be in jail since 26.10.2017 in connection with the aforesaid offences. (3) Criminal Appeal No.383/2019 filed by the complainant stands dismissed. 40. Let a certified copy of this judgment along with the original record be transmitted forthwith to the Trial Court and the concerned Superintendent of Jail be also supplied with a certified copy of this judgment for information and necessary action, if any, at the earliest.