V. S. DAVE, J. - (1.)- This judgment disposes D. B. Criminal Appeal No. 410 of 1975, Narain & Ors. vs. State and D. B. Cr. (Jail) Appeal No. 458 of 1975, Hanuman & Ors. vs. State. Both the appeals are directed against the judgment of Additional Sessions Judge, Sikar, dated May 23, 1975; whereby he convicted and sentenced the accused-appellants as under : - 1. All the accused were convicted and sentenced to three years' rigorous imprisonment for offence punishable under section 148 IPC. 2. All the accused were convicted and sentenced to imprisonment for life for offence punishable under sec. 302 read with sec. 149 IPC and a fine of Rs. 101/- and in default of payment of fine to further suffer rigorous imprisonment for three months each. 3. Accused Arjun, Hardeva, Hanuman and Govinda were convicted and sentenced to five years' rigorous imprisonment for offence punishable under section 307 IPC. Accused Narain, Jessa and Laxman were convicted and sentenced to five years' rigorous imprisonment for offence punishable under section 307/149 IPC. Substantive sentences were ordered to run concurrently. 4. It was also ordered that all the accused shall be entitled to the benefit under section 428 Cr. P. C. 1973.
(2.)BRIEFLY the prosecution story is that on April 28,1974, Murli PW 1 lodged a written report at police station, Srimadhopur wherein he stated that they have a pump fitted on their well and have entered into an agreement with accused Hanuman, Lichman and Govinda that the latter can irrigate their field by the water from this well but the condition would be that they will have to part with half the crop produced. After cultivating the field when the crop was harvested and lying in the field on April 28, 1974, at 9 p. m. the above-named three accused were found removing two bags of barley on camel back. His brothers Heera, Moti and Sheoram saw the accused removing the barley hence they waylaid the accused. These accused started abusing his brother and threatened them to give way else they would be done to death. When this altercation was going on accused Jessa s/o Dhanna, Hardeva, Narain and Arjun armed with lathies and rapans reached there and joined Hanuman, Lichman and Govinda. Thereafter it was alleged that all the accused started beating Moti, Sheoram and Heera. If was further alleged that Moti sustained seven injuries and started vomiting blood. He was admitted to Hospital at Srimadhopur. Jhuntha, Pokhar, Ballu and several other persons collected at the place of occurrence and they intervened to bring the incident to a close. On receipt of the aforesaid written report Ex. P. 1 a case was registered against the accused persons for offences under sections 147, 323, 382/379 & 307 IPC while the patient was getting treatment in hospital, he succumbed to the injuries at 4. 45 a. m. on April 29, 1974. An information to this effect was sent to the police and the case was converted into one under section 302 IPC. during the course of investigation authopsy of the corpse was conducted by Dr. B. P. Jangid (PW 7) who found the following external and internal injuries on the person of the deceased; 1. Stitched wound 2, 1/4" long on the middle line of the scalp in the anterior part. 2. Diffused swelling 2" x 1/4" above the right eye. 3. Abrasion 3/4 x 1/2" on the back of right forearm in middle. 4. Contusion 2" x 2" on the lateral side of right upper arm in middle. 5. Contusion 2-1/2 x 1/4" on the lateral side of right upper arm in the upper l/3rd. 6. Abrasion 2" x 1" on the left shoulder posteriorly. 7. Diffused swelling on both the parietal temporal regions. There was a haemotoma on both the parieto-temporal regions. There was fracture of both the parietal bones, the fracture line on left parietal bone was going to the temporal bone and left side of the base of skull. The membrance of the brain and the brain were conjested. There was subdural and extra dural haemorrhage. Dr. Jangid opined that injury No. 1 was responsible for the death of Moti.
Dr. Jeetendra Kumar PW 11 examined Shri Heera and Shivram for injuries sustained by them and found five simple injuries on the person each of them which were caused by blunt object. After completing investigation the investigating officer submitted challan against seven persons in the court of Addl. Judicial Magistrate, Neem-ka-thana who in turn committed them to the court of Sessions for trail.

The accused persons faced trial for the offences under sections 147, 148, 302, 307 and 382 IPC, as they denied the charges read over and explained to them. At trial prosecution examined 23 witnesses in the support of the case.

Accused denied the occurrence as alleged by the prosecution and examined only DW 1 Dr. Ramakant Purohit who stated that on April 28, 1974 he examined Hanuman and Govindram & found 5th & 2nd injuries on their person respectively which were caused by blunt object and were simple in nature.

After weighing the evidence on record the learned Judge acquitted all the accused of the offence under section 382 IPC but convicted and sentenced them as indicated above.

(3.)WE need not discuss the evidence in detail as the learned counsel for the appellant does not assail the evidence of occurrence. He has frankly stated that on evidence on record he cannot argue a case of acquittal for all the persons. He submits that the case of Narain is distinguishable from that of other accused persons as all the eye - witnesses including injured eye - witness have stated that Narain was armed with a rapan (which is a sharp cutting instrument) and he inflicted injury on deceased Moti by it. The prosecution has not proved it from the evidence of Dr. Jangid that there was any injury by sharp cutting instrument and hence it is vehemently argued that his participation in the crime is not at all established. Regarding other accused appellants it is submitted that the prosecution has failed to establish that accused appellants formed any unlawful assembly, the common object of which was to cause the death of Moti. On the contrary it is submitted that the presence of single fatal blow on the person of deceased indicates that the appellants had no intention to kill Moti also. There were no intervening circumstances to restrain them from inflicting more severe injuries so that he would have died on the spot. It is also argued that the appellants have been acquitted of the offence under section 382 IPC and hence the genesis of the prosecution story has been held to be false. Learned counsel also submitted that the injuries on the person of Hanuman and Govinda have not been explained and hence in the circumstances of this case even if the entire story of the prosecution is relied upon the main offence does not travel beyond section 325 read with section 149 IPC and since the six accused have already remained in jail for more than 4 years their sentences should be reduced to already undergone. Regarding the sentence of Jessa is concerned, it is submitted that he has remained in jail for more than 2 years and he being an old man of more than 80 years he too be released on sentence already undergone.
The learned Public Prosecutor could not support the judgment of Additional Sessions Judge to the extent of conviction recorded by him for offence under section 302 IPC. He however, submitted that case falls within the scope of exception four to section 300 IPC and conviction can be altered into one under section 304 (1) IPC.

We have given our thoughtful consideration to the rival contentions and have perused the entire record.