S.K. Seth, J.
1. The Additional Sessions Judge, Seoni vide his judgment dt/- 25-2-1981 passed in Sessions Trial No. 3 of 1981 convicted six persons namely Tivdilal, Ramlakhan, Gopal, Premlal, Uderam and Balakram under Sections 302/149 and 147 of the I. P. C. and sentenced them each to imprisonment for life and rigorous imprisonment for two years. Further, he convicted one of them namely Tivdilal under Section 323 IPC. and sentenced him to rigorous imprisonment for one year. It was ordered by him that the sentences awarded to the accused would run concurrently. It is having been aggrieved by their abovesaid convictions and sentences that the six accused have filed the present appeal in this Court.
2. Accused Tivdilal, Uderam and Balakram were brothers. Accused Premlal was son of Balakram. All the accused were residents of village Tharka Kheda in Seoni district. Deceased Jhamma Prasad was also a resident of the said village. The house of accused Tivdilal was situated at a distance of only about 15.20 steps from the house of deceased Jhamma Prasad. P. W. 4 Ahalyabai was sister of deceased Jhamma Prasad.
3. The incident took place in front of the house of accused Tivdilal on 23-8-1980 at about 8 p. m. P. W. 1 Kharagram who lived in the neighbourhood and was one of the eye witnesses of the incident lodged first information report Ex. P/l at police station Bandol at 3.30 in the night. The police station was situated at a distance of about twenty five kilometres from the village and as such it was apparent that the first information, report was lodged without any delay.
4. Now, it was amply established from the evidence of P. W. 1 Kharagram and other eye witnesses of the incident namely P. W. 2 Mohanram, P. W. 4 Ahalyabai, P. W. 5 Kesarbai, P. W. 12 Shiv-charan and P. W. 13 Sitaram as to how the incident in question happened. It was an admitted position that there had been no previous enmity between the parties Deceased, Jhamma Prasad had arranged a Ramayan Path at his house on the relevant night and invited persons from the village to participate in the same. Just when the deceased was expecting the persons in the village to come to his house to attend the Path, he was informed that accused Tivdilar had arranged Kirtan in his house on the same night. Getting worried that the Kirtan arranged by accused Tivdilal might prevent the villagers from coming to his house for attending the Path, deceased Jhamma Prasad went to the house of the said accused and asked him to postpone the Kirtan to some other date. However, accused Tivdilal did not agree to the postponement. This led to exchange of hot words between the two persons. It was in the said circumstances that on a call given by accused Tivdilal, the remaining five accused reached the spot armed with lathis and gave a beating to. Jhamma Prasad.
5. During the course of exchange of hot words between the two persons, the abovesaid witnesses namely P. W. 1 Kharagram, P. W. 2 Mohanlal, P. W. 4 Ahalyabai, P. W. 5 Kesarbai, P. W. 12 Shivcharan and P. W. 13 Shyamlal arrived at the place of occurrence. They witnessed the assault made on the deceased by the six accused. It was on the basis of that part of the evidence of the said witnesses as was consistent and stood corroborated from the other evidence produced in the case that the Additional Sessions Judge found the six accused guilty in the matter and convicted and sentenced them in the manner already stated above. The remaining nine accused, who were also tried, were given benefit of doubt and acquitted of the offences alleged against them. It was found by the Additional Sessions Judge that during the course of the incident when P. W. 4 Ahalyabai had tried to assist the deceased, accused Tivdilal gave a lathi blow to her, causing simple hurt. It was in view of the said finding that in addition to Sections 302/149 and 147, accused Tivdilal was convicted and sentenced under Section 323, I. P. C. also.
6. The only point that really arises for consideration in the present appeal and is vehemently urged by the learned Counsel for the accused is as to the nature of the offence committed by the accused It is pointed out by him that there had been no previous enmity between the parties and the incident in question happened on the spur of the moment over a trivial matter. It is also pointed out by him that the weapons used by the accused were lathis and there was no satisfactory evidence on the record to indicate as to which of the accused caused the particular head injury which was responsible for causing the death of Jhamma Prasad. It is submitted by him that it appeared to be more probable that whatever common object was formed between the six accused on the spur of the moment was not to commit the murder of Jhamma Prasad but only to give him a good thrashing.
7. In our opinion, the abovesaid argument of the learned Counsel for the accused deserves to be accepted. As is clear from the evidence of Dr. J. G. Shri-yastava (P. W. 3) who conducted the postmortem examination excepting for the head injuries the remaining injuries caused to the deceased were not of a serious nature. In view of the said circumstance, and other circumstances pointed out above, it is difficult to believe that the common object of the accused was to commit the murder of Jhamma Prasad. All the same, from the manner in which the six accused combined in making a joint assault with lathis on the deceased, resulting in quite a few injuries on his head, it is not at all unreasonable to impute them with the knowledge that the death of Jhamma Prasad could be the likely consequence of their criminal acts. As such, as far as the nature of offence committed by the accused is concerned, the only modification that is required to be made is that their conviction under Section 302/149 is liable to be altered to one under Section 304, Part 11/149, IPC. The rest of the convictions and sentences awarded to the accused do not call for any interference.
8. For the reasons stated above, the appeal is partly allowed. The convictions and sentences awarded to the six accused by the Additional Sessions Judge are maintained except for the modification that the conviction awarded to them under Section 302/149 is altered to one under Section 304, Part 11/149, I.P.C. and for the said altered conviction they are each awarded a sentence of rigorous imprisonment for five years. The direction as regards the concurrent running of the sentences is maintained.