A.C. Gupta, J.
1. These are two appeals by special leave, one is by eight acc, used persons against the order of conviction and sentences passed, in respect of seven of them on charges under Sections 323 and 447 of the Indian Penal Code and Section 162(2) of the Gujarat Panchayat Act, and as regards one of them under Section 304 Part II of the Indian Penal Code; the other appeal is by the State of Gujarat against the acquittal of the seven accused in respect of the charge under Section 302/149 of the Indian Penal Code and the acquittal of the eighth accused of the charge under Section 302. The judgment of the High Court appealed from also disposed of two appeals from the judgment of Sessions Judge, Ahmedabad (Rural) at Nerol, one by the accused against their conviction and the other by the State against their acquittal in respect of some of the charges. It appears that in village Lambha in Ahmedabad District, a dispute had been going on between the agriculturists and the shephards; the allegation against the shepherds was that they were damaging the standing crop in the fields by grazing their cattle therein Because of this dispute between the two parties the village panchayat appointed three watchmen to guard the standing crop. Kalu Khan who died as a result of an occurrence which is the genesis of these appeals, was one of the watchmen; the two others were Nasanbhai, who is the complainant in the case, and Magan Boghabhai. The incident took place in the morning of December 14, 1971. Hasanbhai and Magan saw the first seven appellants before us and several others grazing their cattle in the field of one Bhulebhai Aminchand (P. W. 15). These two watchmen informed Kalukhan of what they had seen and all the three started towards Bbulabhai Aminchand's field. On way they met P. W. 14 Khodabhai and appellant No. 8 Ratanbhai Punabhai who is said to be the chief of the shephers. Appellant No. 8 was accused No. 13 in the trial court; hereinafter we will refer to the appellants by their serial numbers as accused in the trial court. Khodabhai requested accused No. 13 to accompany the watchmen to Bhulabhai's field and persuade the shepherds to call away the cattle. Accused No 13 proceeded to the field on a bicycle followed by the three watchmen on foot. Of the watchmen Kalukhan was armed with a stick and the other two had dharies. Reaching the field Kalukhan told the shepherds that if they did not take out their cattle from the field he would send them to the cattle pound and when the shepherds did not pay any heed to his warning, he proceeded to take the cattle to the cattle pound as he had said. It was then that the assault started. All the accused other than accused No. 13 beat up Kalukhan and Hasan with sticks which they carried. It is alleged that accused No. 13 snatched away the dharia in Magan's hand & his Kalukhan thrice on the head with it. When the assault was going on, P. W. 5 Baldavbhai Ranchhodbhai came on the scene carrying a gun. As the situation was taking a serious turn P. W. 5 shouted to the accused to stop the quarrel and warned them that unless they stopped fighting he would fired. At this, accused No. 2 and 5 rushed towards him and P. W. 5 raised his gun to protect himself from the lathi blows armed at him. The blows fell on the gun which dropped on the ground and broke into two. On being assaulted Kalukhan fell down. The accused then left the place.
2. The defence of some of the accused was that Bhulabhai Aminchand had permitted them to graze their cattle in his field. The trial court relying on the evidence of P. W 4 Hasanbhai, which the Sessions Judge found was corroborated by the evidence of P. W. 5 Baldevbhai and P. W. 14 Khodabhai, held accused Nos. 1,2,4,5,8,11,12 and 13 guilty of having committed offences punishable under Section 447 of the Indian Penal Code and Section 162(2) of the Gujarat Panchayats Act and sentenced them to suffer rigorous imprisonment for three months for each of the offences. They were also convicted of offences punishable under Section 323 of the Indian Penal Code, accused Nos. 1 and 4 for voluntary causing hurt to Kalukhan, and accused Nos. 2,4,5,8,11 and 12 for causing hurt to Hasan, and each of them was sentenced to undergo rigorous imprisonment for three months. Accused No. 13 was found guilty of having committed an offence punishable under Section 325 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and a fine of Rs. 1000/ , in default to suffer rigorous imprisonment for further six months. He was also convicted under Section 447 of the Indian Penal Code. The substantive sentences in all the cases were ordered to run concurrently.
3. From the decision of the trial court two appeals were preferred to the High Court, the accused appealing against their conviction and the State against the acquittal of accused No. 13 of the charge under Section 302 of the Indian Penal Code and the remaining accused of the charge under Section 302 read with Section 149. The High Court in agreement with the trial court accepted the prosecution case that the crop on Bhulabhai's field was damaged by the accused by the grazing their cattle therein on the date of the incident and that the defence that Bhulabhai had permitted them to graze cattle in his filed was not true. The High Court also held that P. W. 4 Hasan and P. W. 5 Baldevbhai were eye witnesses to the incident. Relying on these two witnesses the High Court held that the Sessions Judge had taken a correct view of the situation in holding that the accused were the aggressors and affirmed the conviction and the sentences passed on accused Nos. 1,2,4,5,8,11 and 12. So far as these accused are concerned, we find no reason to differ from the concurrent finding of fact of the two courts on which their conviction rests. Appeal No. 37 of 1975 is therefore dismissed.
4. Appeal No. 38 of 1975 is by the State against the acquittal of accused No. 13 and the other accused persons respectively of the charges under Sections 302 and Section 302/149. First we will take up for consideration the acquittal of the accused of the charge under Section 302/149 of the Indian Penal Code. The High Court affirmed the order of acquittal passed by the Sessions Judge be cause the account of assault as given by Hasanbhai in the complaint & as appear ing from the evidence of Hasan & P.5 Baldevbhai Ranchhodlbhai differs so that it is not possible to follow the sequence in which it had taken place.Undoubtedly the shepherds were members of an unlawful assembly whose common object was to commit cattle trespass in Bhulabhai Aminchand's field. They had all sticks in their hands which they used against Hasan and Kalukhan to prevent the cattle being impounded. Thus they were also members of an unlawful assembly whose common object was to prevent by force the watchmen carrying out their duty. The extent of force they were prepared to use can be inferred from the manner of assault. Here the sequence in which accused No. 13 and the other accused took part in the assault on Kalukhan becomes relevant. Mr. Patel appearing for the appellant. State of Gujarat, submitted that it was difficult for the witnesses to recount the occurrence in its correct sequence in every detail. That may be so but this difficulty does not make an inference as to the common object easier. It is true that both P.W. 5 and P.W. 4, Hasan have said that accused No. 13 snatched away the dharia from Magan's hand, but from this we do not think it is possible to bold that the other accused knew that accused No. 13 was likely to use it in the wayhedid. They may have reasonable thought that the dharia was snatched away from Magan to prevent him from using the dharia against them. Both P.W. 4 and P.W. 5 have admitted that none of the stick blows given by the accused was armed at Kalukhan's head which strengthens such an inference. In these circumstances the exact sequence in which the assault on Kalukhan took place becomes important. In our view, therefore, both the trial court and the High Court were right in acquitting these accused of the charge under Section 302/149 of the Indian Penal Code.
5. Before we proceed to consider the case of accused No. 13, it would be necessary to refer to the medical evidence. Accused No. 13 died at 8 P.M. on the day of the incident in V.S. Hospital, Ahmedabad,. Dr. Jyothen Narhar (P.W. 1) who performed the post mortem examination of the dead body of Kalukhan found among other injuries four sutured wounds on the scalp According to her these could have been caused by 'sharp cutting instrument & hard & blunt substance.' In her opinion 'the cumulative effect of these injuries would necessarily be death'. Dr. Nain (P.W. 11) who examined Kalukhan when he was admitted to his ward in the hospital found among other injuries (1) curved contused lacerated wound about 21/2' x 1/2' bone deep over left side of frontal region at the level of hair line, (ii) curved contused wound 3' x 1/2' bone deep on right partial region. (iii) irregular contused lacerated wound above the right eyebrow 1' x 1/4' bone deep. According to him the curved injuries could have been caused by a dharia or by any such sharp instrument. The other injury on the head, in his opinion, could have been caused by the reverse side of the dharia. Dr. Shah (P.W. 2) who had first examined Kalukhan before he was admitted to the hospital mentioned in his certificate (Ext. 21) multiple contused lacerated wounds on the head of Kalukhan. It may be stated here that the cap which Kalukhan was wearing at the time of the incident is one of the material exhibits in the case; it is described as blood-stained. In view of the evidence of P.W. 5 and P.W. 4 who have said the accused No. 13 inflicted dharia blows on Kalukhan's head and Kalukhan was wearing a cap at the time, and in view of Dr. Shah's definite opinion that the injuries on Kalukhan's head could have been caused by dharia, even if the wounds were contused lacerated wounds, there is nothing in the medical evidence whice is inconsistent with the evidence of the two eye witnesses, as the High Court has held. The High Court found that the dharia blows must have been inflicted with great force because they resulted in the scalp being fractured. The High Court further found that even if accused No. 13 did not intend to cause Kalukhan's death. he must have known that by his act he was likely to cause his death: Having considered the evidence for ourselves we are also of the same opinion. But after recording all these findings the High Court came to the conclusion that the offence fell under Section 304 part II of the Indian Penal Code and not under Section 325 as the Sessions Judge had held. We have no doubt that the Sessions Judge was wrong, but me also do not see how on the findings reached by the High Court this could be a case under Section 304 Part II. On the evidence it is not possible to come to any other conclusion than that accused No: 14 intended to cause such injury which was sufficient in the ordinary course of nature to cause death. That being so, the case falls squarely under the third clause of Section 300 Indian Penal Code: Therefore, though we agree with the findings recorded by the High Court, we are unable to concur in the conclusion reached by the High Court the offence was covered under Section 304 Part II, in our opinion the only conclusion possible on these findings is that accused No. 13 was guilty of an offence punishable under Section 302 of the Indian Penal Code.
6. In the result, we dismiss appeal No. 37 of 1975; we allow appeal No. 38 of 1975 partly, alter the conviction of accused No. 13 Bharwad Matan Puna (respondent No. 8) from one under Section 304 Part II of the Indian Penal Code to one under Section 302 of the Indian Penal Code and sentence him to rigorous imprisonment for life. The order of conviction and the senten ces as regards the other accused persons are maintained.