Eight persons, among whom accused 1 to 7 are the appellants, were tried by the Sessions Judge of Kanyakumari Division at Nagercoil, in Sessions Case No. 42 of 1974 for various charges viz., sections 147, 148, 323302, 323 read with sections 149 and 302 read with section 149, Indian Penal Code. The prosecution case against the accused was that at about 7-30 a.m., on 19th May, 1974 at Parvathipuram near Nagercoil, the accused persons formed themselves into an unlawful assembly and, in prosecution of the common object of such assembly, they caused hurt to P.W.1 Soman and P.W.2 Bhas-karan and also cause the death of Velap-pan, the father of P.Ws. 1 and 2, by the first accused stabbing him with a pen-knife. The Sessions Judge acquitted eighth accused of all the charges. He convicted the first accused under, section 302 and the sixth and seventh accused under section 302 read with section 34, Indian Penal Code, and sentenced them to undergo imprisonment for life. In addition, he convicted the first accused under section 148, Indian Penal Code, and accused 2 to 7 under section 147, Indian Penal Code. While second and fifth accused were convicted for the substantive offence under section 323, Indian Penal Code, accused 1, 3, 4, 6 and 7 were convicted for the substantive offence under section 323 read section 149, Indian Penal Code. For the conviction under section 148, Indian Penal Code, the first accused has been sentenced to undergo rigorous imprisonment for two years and for the conviction under section 147, Indian Penal Code, the other convicted accused have been sentenced to undergo rigorous imprisonment for one year. For the conviction under section 323 as well as under section 323 read with section 149, Indian Penal Code, a sentence of rigorous imprisonment for six months has been awarded to accused to 1 to 7. The several sentences awarded to the accused persons have been directed to run concurrently. Accused 1 to 7 have preferred this appeal to assail the convictions and sentences.
2. The occurrence which led to the police filing a charge-sheet against the eight accused persons took place at about 7-30 a .m. on 19th May, 1974. P.W.1 Soman, who is a taxi driver, was going along the Trivandrum road at Parvathipuram and, while he was near a flag-post, accused 2 to 4 and 8 came and surrounded him. While accused 2 and 4 were armed with sticks, the third accused was armed with a wire (M.O. 2) and the eighth accused was armed with a belt. They began attacking P.W.1 indiscriminately. At that time, P.W.1's brother (P.W.2) Bhaskaran and his father (deceased Velappan) were proceeding to a channel near the scene of occurrence for their morning ablutions. One Subbian informed them that accused 2 to 4 and 8 had surrounded P.W.1 and were beating him. On hearing that news, P.W.2 and Velappan ran to the scene of occurrence and, on reaching the place, P.W.2 questioned the assailants as to why they were beating his brother. At about that time, accused 1 and 5 to 7 came running to the scene of occurrence and, among them, the fifth accused has having a stick. The fifth accused began beating P.W.2 with the Stick he was having all over his body. At that stage, the sixth accused shouted to the first accused that deceased Velappan should not be left alive and so saying, he c
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ught hold of Velappan's right hand.The seventh accused followed suit and caught hold of Velappan's left hand. The first accused then whipped out a pen-knife (M.O. 3) from his waist and, after unfolding it, inflicted a stab on the abdomen of Velappan, remarking that he himself would do away with him. On account of the stab, Velappan's intestines came out and at once, the sixth and seventh accused let go their hold on Velappan's hands. Velappan pressed his stomach with his hands and bent down and, at that time, the first accused inflicted two more stabs on his back. Enraged by the attack on his father, P.W.1 snatched the stick of the second accused and gave some blows to the third and fourth accused who were near him. P.W.3 Narayanan, Asari, P.W.4 Thangadurai and P.W.5 Krishnan happened to be present at the scene and they witnessed the entire occurrence. Seeing the ugly turn the occurrence was taking, they rushed to the aid of Velappan and his sons and on seeing that, these appellants and eighth accused ran away ‘from the scene carrying their weapons with them.3. P.Ws. 1 and 2 and their mother rushed Velappan to the Government Hospital at Nagercoil by a taxi, Velappan was admitted in the hospital by P.W.10 Dr. Sukumar. His condition required surgical treatment and that was rendered by P.W.11, Dr. Ramamoorthy. Velappan has sustained three injuries as described below:(1)a wound just below the umbilicus through which 2 feet of coils of small intestines had come out; there was a perforation, 1/2” 1/” on the lumen of the coil along the ante-mesentric border;(2)a horizontal incised wound, 3” 1’ 1” over the back at the lumbar region across the mid lind; and(3)a vertical, incised wound over the back of the left loin measuring 1” 1/2” 1/2”.P.W.1 had sustained abrasions and contusions, in all nine in number as described in the wound certificate, Exhibit P-7, and P.W.2 had sustained one lacerated injury and two contusions, as described in the wound certificate, Exhibit P-6. The injuries sustained by both of them were simple in nature.4. On receipt of intimation of accident from P.W.10, P.W.23 the then Sub-Inspector of Police, Vadeseri went to the Government Hospital and recorded a statement, Exhibit P-1 from P.W.2, at about 11 a.m. He registered Exhibit P-1 as a case in Crime No. 539 of 1974 under sections 147, 148, 323, 324 and 307, Indian Penal Code. He lookup the investigation and proceeded to the scene of occurrence at 1-45 p.m. He prepared an observation mahazar and seized bloodstained earth (M.O. 6) from the scene. He also prepared a rough sketch, Exhibit P-34. At 2-45 p.m., P.W.23 arrested accused 2 to 4 and 6 at Kristhu Nagar in Nagercoil. The third and fourth accused gave statements (admissible portions being Exhibits P-10 and P-20 respectively) and in pursuance of those statement, the wire (M.O. 2) and the stick (M.O.1) were recovered from places of concealment. The third and fourth accused were found to have some injuries on their person and hence they were also sent to he hospital for treatment and certificate. They were examined by P.W.15, Dr. Balasubramaniam. Both of then had sustained simple injuries as described in the extracts of accident register. Exhibits P-17 and P-18 respectively.5. P.W.11 Dr.Ramamurthy, who rendered surgical treatment to Velappan, found during the operation that Velappan had sustained four perforated wounds, each 1/2” 1/2” over the small intestines. He sutured the perforated wounds and pushed the intestines inside the abdominal cavity. As Velappan's condition caused anxiety a requisition was sent to P.W.18, the Judicial Second Class Magistrate, Nagercoil taluk, to go over to the hospital and record the dying declaration of Velappan. The Magistrate accordingly reached the hospital at 12 noon on 20th May, 1974, and after ascertaining from the doctor the mental Fitness of Velappan to give a statement, he recorded his statement, Exhibit P-26. The next day, i.e., at 3-10 a.m., on 21st May, 1974. Velappan succumbed to the injuries sustained by him and, on receipt of the death intimation, the case registered against the accused persons was altered into one under section 302 and express reports were sent to the higher officials.6. P.W.24, the Inspector of Police, held inquest over Velappan's dead body on 21st May, 1974 and prepared the inquest report, Exhibit P-32. The second, fifth and seventh accused were arrested near the Catherin Booth Hospital at Nagercoil at 2 p.m. on 22nd May, 1974. The first accused was arrested at 7-30 a.m. on 23rd May, 1974 at the bridge at Ozhuginaseri at Nagercoil and, on the information given by him in his statement, Exhibit P-23 (admissible portion), the pen-knife (M.O. 3) was recovered from a dealwood box kept in a room which had been taken on rent by one Velayudhan. As the first accused had an injury on his right thumb, he too was sent to the hospital for treatment certificate. The first accused was examined by P.W.13, Dr. Lalitha, and she found a simple injury, 1/2;” 1/4;” a the tip of the right thumb. The doctor has opined that the first accused should have sustained the injury by falling on the ground and coming into contact with some rough surface.7. Autopsy on Velappan's dead body was done by P.W.14, Dr. Lakshmanan. Apart from the external injuries which Velappan had sustained and the surgical incision which had been made during the operation conducted by P.W.11, he noticed the sutured injuries on the intestires of Velappan. He has testified that Velappan had died due to shock produced by the internal injuries sustained by him, that the external injuries and the corresponding internal injuries could have been caused by attack with a pen-knife like M.O. 3 and that external injury Mo. 2 with its corresponding internal injuries was sufficient, in the ordinary course of nature, to cause of death.8. The eighth accused was arrested at Aramboli at 7 p.m. on 20th May, 1974.9. M.Os. 3 to 6 were sent for chemical analysis and the reports of the Chemical Examiner and the State Serologist showed that all of them were stained with human blood.10. After completing investigation, P.W.24 laid charge-sheet against the eighth accused persons on 15th June, 1974.11. According to the prosecution, there was simmering enmity between the family of deceased Velappan on the one hand and the family of the first acused on the other. Accused 1, 2 and 7 are brothers while the third accused is their maternal uncle and the fourth accused is their cousin. The sixth accused has married the sister of the fourth accused. The fifth and the seventh accused have married sisters and the eighth accused is a close relation of the other accused. On 23rd November, 1973, the fourth accused married the daughter of one Velayudha Konar who had earlier married the sister of deceased Velappan. That marriage was dissolved by mutual consent, because Velappan's sister was suffering from some incurable disease. The marriage of Velayudha Konar's daughter was attended by Velappan and his sons. The sixth accused's brother, one Muthu, created some disturbance in the marriage house and P.W.2 beat him. This was resented to by accused 1, 2, 6 and 7 and they wanted to beat back P.W.2, but on the intervention of some of the guests including P.W.6, the matter was given a quietus. But the accused had not forgiven P.W.2 for his misbehaviour. There was another incident, more proximate in point of time, which had kindled the feelings of the parties. A transister radio belonging to the fourth accused was lost and he suspected P.W.1 to have stolen it. On the previous day of the occurrence, viz., 18th May, 1974, at about 9 p.m., when P.W.1 was walking along the road, the fourth accused derived him by calling him a thief and spitting on the ground. This was resented to by P.W.1 and there was a scuffle between him and the fourth accused. But, P.W.7 Vijayan and others separated them and averted a quarrel. The fourth accused vowed vengence and left the place. It is in the embittered state of mind he and the other accused are said to have attacked P.W.1 the ‘following morning.12. The accused, when examined under section 313, Criminal Procedure Code, denied the prosecution case in toto and stated that they had not attacked P.Ws.1 and 2 or caused the death of Velappan. The second and seventh accused pleaded alibi. The fifth and eighth accused contended that they had not gone anywhere near the scene of occurrence, and knew nothing about the incident. Similarly, the sixth accused stated that, on coming to know, that the third and fourth accused had been injured and had gone to the police station to make a report, he went in search of them but inexplicably he was, detained at the police station without any justification. The stand of the first, third and fourth accused was that deceased Velappan and his three sons, viz., P.Ws.1, 2 and one Lakshmanan, attacked the ‘father of the first accused, that they ran to the scene to save him, that at that time, the third and fourth accused were beaten and the first accused sustained a stab injury when he warded off a stab aimed at his father by Velappan. The first, third and fourth accused denied having given statements to the investigating officer and producing M.O. 3, M.O. 2 and M.O. 1 from places of concealment. None of the accused examined any defence witness in support of his contentions.13. The Sessions Judge accepted the prosecution case and held that Velappan had been stabbed to death by the first accused and P.W.2 had been beaten by the second and fifth accused. While accepting the prosecution case that the accused persons had committed rioting, he held that the rioters did not have the common object of causing the death of Velappan. He, therefore, acquitted accused 2 to 7 of the charge under section 302 read with section 149, Indian Penal Code but, however, held that the holding of the hand of Velappan by the sixth and seventh accused revealed their common intention along with the first accused to cause Velappan's death and therefore, convicted the sixth and seventh accused under section 302 read with section 34, Indian Penal Code, with regard to the attack on P.W.1, the trial Judge held that as the attack on him was perpetrated before the assembly had become an unlawful one, and as there were some discrepancies in the evidence, none of the accused can be convicted for causing hurt to him. Rut, with regard to the attack on P W. 2, he has found the second and fifth accused guilty under section 323, Indian Penal Code, and accused 1, 3, 4, 6 and 7 as constructively liable for this offence. As no render was made to the eigth accused in the first information report, Exhibit P-1, the Sessions Judge has given him the benefit of doubt and acquitted him of all the charges.14. Mr. Govind Swaminathan, learned Counsel for the appellants, contended before us that an occurrence as spoken to by P.Ws.1 to 5 could not have taken place in spite of the fact that three persons on the side of the prosecution and two on the side of the appellants had sustained injuries. The prosecution version, according, to the learned Counsel, was not a natural one and appeared to be the outcome of deep deliberation. In support of this argument, it was pointed out that the evidence of P.Ws.1 to 5 and the averments in Exhibit P-1, the first information report, and Exhibit P-26. the dying declaration of Velappan, reflected measeating consistency, which, according to learned. Counsel, would not be the case if the witnesses or the deponents had narrated the occurrence with natural candour. In view of this criticism, we went through the evidence of P.Ws.1 to 5 and also Exhibits P-1 and P-26 with a critical eve. But, after such scrutiny, we are unable to find force in the contention of Mr. Govind Swaminathan. The presence of P.Ws.1 and 2 at the scene can admit of no doubt whatever, for they have sustained injuries and have also told P.W.10 at the hospital, the time, place and manner in which they sustained the injuries. Exhibit P-1 which has been given in abort three and a half hours’ time after the occurrence, contains a faithful record of the events of that morning and it is difficult to imagine that within that period P.W.2 and others would have conspired and coined out an embellished version of the occurrence. Likewise the dying declaration of Velappan had been given when he would have trotted out a false version therein in deference to the wishes of his sons and others. Apart from these things, we find P.Ws.3 to 5 are independent and disinterested witnesses and they had no reason whatever to take sides in the case and depose falsehood. The trial Judge, who has had the benefit of noticing the performance of these witnesses in the witnesses-box, has characterised them as truthful and reliable witnesses and, in the absence of compelling reasons we see no justification to disturb the finding of the trial Judge. Merely because the witnesses have deposed with consistency we are unable to characterise their version as parrot-like and void of all naturalness and credibility.15. The subsequent conduct of the appellants and the evidence regarding their arrest and the recovery of material objects on the information given by them also lend corroboration to the testimony of P.Ws.1 to 5. The first, third and ‘fourth accused, who have sustained injuries, do not deny their participation in the occurrence though, of course, they have given a different story. As regards the second, fifth, sixth and seventh appellants, their names too find place in Exhibit P-1 along with the first, third and fourth appellants. If they had really not been present at the scene and participated in the events, it is unimaginable P.W. 2 would have referred to them in Exhibit P-1, the plea of alibi put forth by the second and seventh appellants has been rightly rejected by the trial Judge, for the documents produced by them did not substantiate their contention to any decree of reasonable likelihood. Apart from these things, M.Os. 1, 2 and 3 have been recovered on the information given by the fourth, the third and the first appellants respectively, and the knife (M.O. 3) has been found to contain the same group of blood and deceased Velappan had. During the trial, a theory was not accepted by the trial Judge and, in our opinion, very rightly stood. None of the prosecution side was armed with any weapon and the nature of the injuries sustained by the prosecution party clearly shows that the appellants were the aggressors. It was only in the last stage of the occurrence, viz., after Velappan had been stabbed, P.W.1, snatched a stick from the second appellant and beat the third and fourth appellants and caused injuries to them. We are, therefore, clearly of opinion that the prosecution version is a fully credible and acceptable one and deceased Velappan as well as P.W.2 should have sustained the injuries in the manner spoken to by the prosecution witnesses.16. Mr. Gobind Swaminathan then contended that even if the prosecution version was a truthful one, yet, the conviction of the sixth and seventh appellants under section 302 read with section 34, Indian Penal Code, was not warranted. In justification of this contention, learned Counsel pointed out that there is no evidence to show that the first, sixth and seventh appellants had conspired anywhere before reaching the secene and attacking Velappan. As a matter of fact, the Counsel would pointed out that the carrying of M.O. 3 knife by the first appellant may not have been even known by the sixth and seventh appellants, because the knife was brought concealed in the waist. It was also pointed out that the sixth appellant did not call upon the first at attack Velappan, and much less stab him with a knife. Lastly it was pointed out that after the first appellant had inflicted the stab on Velappah's abdomen in a trice, the sixth and seventh appellants had let go their hold oh Velappan's hands. Learned Counsel would, therefore, argue that there was no meeting of minds or prior concert between the sixth and seventh appellants on the one hand and the first appellant on the other’ so as to make the former liable for the fatal injury inflicted by the latter on Velappan. In support of his contention, Mr. Govind Swaminathan, invited our attention to two decisions of the Supreme Court, In Pandurang Tukia and Bhil-lia v. State of Hyderabad, the Supreme Court has pointed out the difference between common intention and same or similar intention and the duty cast on Courts not to confuse same or similar intention with common intention. Relevant portions in the head note, of the case reads as follows:“It is well settled that common intention in section 34 of the Indian Penal Code presupposes prior concert. It requires a pre-arranged plan because, before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely, the intention to kill, and each can individually inflict a separate fatal blow and yet, none would have the common intention required by the section, because there was no prior meeting of minds to form a prearranged plan …… ‘Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thin, nevertheless the distinction is real and substantial, and if overlooked, will result in miscarriage of justice………‘The inference of common intention should never be reached unless it is a necessary inference deductible from the circumstances of the case……”The second case, Gajjan Singh v. State of Punjab, was relied on to show that even where two persons had gone armed with rifles, the Supreme Court held that for a single fatal shot fired by one of them the other cannot be held liable under section 302 read with section 34, Indian Penal Code, in the absence of evidence to show that the fatal shot was fired in consequence of a common intention between the two.17. The learned Public Prosecutor opposed the contention and argued that the evidence clearly indicated the meeting of minds of the sixth and seventh appellants and the first appellant before the fatal attack on Velappan. He pointed out that the sixth appellant looked at the first appellant and remarked that Velappan should not be left alive and then he and the seventh appellant caught hold of Velappan's hands and this was followed by the first appellant taking out his knife and stabbing Velappan. The Public Prosecutor argued that it was not necessary there should be a time-lag between the formation of the common intention and the execution of the criminal act in pursuance of it and there can be cases where the pre-arranged plan may develop on the spot during the course of the commission of the offence. Ram Tahal v. State of U.P., was quoted by the Public Prosecutor for indicating the factors which would afford material lor drawing an inference that a particular offence had been committed in pursuarance of the common intention of several accused persons. In the words of the Supreme Court, the several factors for consideration would be as follows:“……(a) Common intent on…….has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries, the concerted conduct subsequent to the commission of the offence, for instance that all of them had left the scence of the incident together, and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an of offence with which they could be convicted”.We have bestowed our anxious consideration to the contention of Mr. Govind Swaminathan and the arguments of both sides, on this aspect of the case. For a proper assessment of the matter, we must take note of the evidence of the witnesses regarding the acts of the two appellants, viz., the sixth and seventh appellants, before and subsequent to the stab inflicted by the first appellant on Velappan's abdomen. The uniform evidence of the witnesses is as follows:“The sixth accused, Thiraviam, pointed out Velappan to the first accused Ravi and remarked, this revisher of mother should not be left alive, and held his right hand. The seventh accused Sisupalan held the left hand. At once, the first accused Ravi took out a knife from his waist, stretched it and, remarking”I myself will do away with him“stabbed at the lower part of the abdomen. Velappan's intestines protruded out and he shouted ‘ayyo’. At once the sixth and seventh accused loosened grips. Velappan held the lower part of his abdomen and bent. The first accused Ravi stabbed him on the back side of the hip and on the back with the same knife”.On a careful consideration of the matter, we find it difficult to accept the prosecution case that the stabbing outrage on Velappan was committed by the first appellant in pursuance of any common intention between him and the sixth and seventh appellants to do away with Velappan. In the first place, except that appellants 1 and 5 to 7 came running together to the scene, there is no evidence to show that all of them came to the scene from a common place of assemblage. That apart, there is nothing to show that appellants 6 and 7 had prior knowledge that the first appellant was having M.O. 3 knife concealed in his waist. The sixth appellant, while making his remark that Velappan should not be left alive, did not call out the first appellant by his name nor did he ask him to stab Velappan. The case against the seventh appellant is still more slender, for he did not utter any words before catching hold of Velappan's left hand. The remark of the first appellant that he himself would do away with Velappan strongly suggests that his acts were referable to his individual volition and not to the commission of any act commonly agreed upon with the sixth and seventh appellants. Then there is the fact that after the first appellant inflicted the first stab in a trice, the sixth and seventh appellants released their holds on the hands of Velappan. When the totality of circumstances is taken into consideration, we are firmly of opinion that the materials are not adequate to draw a definite conclusion that the sixth and seventh appellants shared a common intention with the first appellant to cause the death of Velappan. It is, no doubt, true that for an inference of common intention being drawn, there need not be an interval of time between the meeting of minds and the executory act reflecting the design forged in the minds of the culprits. But, nevertheless, the evidence and the circumstances should establish, without any room for doubt, that a meeting of minds and a fusion of ideas had taken place and in pursuance of that, the over acts of the accused persons flowed out as if in obedience to the command of a single mind. In other words, the act or acts of one or more of the offenders should be attributable to a single and unified line of thought and not to parallel and allied lines of thought. Applying this test, We find that the acts of the sixth and seventh appellants are not incompatible with their contention that they shared no common intention with the first appellant to bring about the death of Velappan by his being stabbed by the first appellant. We therefore accept the contention of Mr. Govind Swaminathan and hold that, though there seems to be an apparent meeting of minds between the first, sixth and seventh appellants, yet, in reality there exists a distinct hiatus which the prosecution evidence does not bridge to make as conclude that the hand which struck Velappan not only obeyed the command of the first appellant's mind but obeyed the unified command of the minds of the first, sixth and seventh appellants. We are, therefore, of opinion that the conviction of the sixth and seventh appellants under section 302 read with section 34, Indian Penal Code, cannot be sustained. But, so far as the first appellant is concerned, this conviction under section 302, Indian Penal Code, fully warranted by the evidence. He has inflicted three injuries on the deceased and the injury on the abdomen has been classified by P.W.14 as one sufficient, in the ordinary course of nature, to cause death. We therefore confirm the conviction of the first appellant under section 302, Indian Penal Code.18. Taking up for consideration the conviction of appellants 2 to 7 under section 147, Indian Penal Code, and the first appellant under section 148, Indian Penal Code, there can be no doubt that all of them are guilty of the offence of rioting punishable under sections 147 and 148, Indian Penal Code, as the case may be. With regard to the injuries on P.W.1, though the prosecution contended that appellants 2 and 4 beat P.W.1 with sticks, the third appellant beat him with a wire and the eighth appellant beat him with a belt, the Sessions Judge has acquitted them of the charge of causing hurt to P.W.1, because P.W.1 had implicated in his statement to the doctor (P.W.10), only the sixth appellant and one Gopalan. Further more, deceased Velappan had stated in his dying declaration, Exhibit P-26, that it was the seventh accused who had beat P.W.1 with a wire. On account of these discrepancies, the benefit of doubt has been given to appellants 2 to 4 and 8 of the charges ‘framed against them for causing hurt to P.W.1. As far as the causing of injury to P.W.2 is concerned, the prosecution evidence clearly establishes that it was the second and fifth appellants who had caused injuries to him and, therefore, they; have been rightly convicted under section 323, Indian Penal Code. Since the other appellants had been convicted under sections 147 and 148, Indian Penal Code, they have also been rightly convicted under section 323 read with section 149, Indian Penal Code, for the injuries caused to P.W.2 by appellants 2 and 5. We therefore confirm those convictions also.19. Mr. Govind Swaminathan then argued on the question of sentence for the convictions awarded to appellants 2 to 7. He stated that the second appellant was a college student and was appearing for the final examinations of the B.Sc, Degree course, that the fourth appellant was a clerk in a Bank and drawing a salary of about Rs 900 and that the sixth and seventh appellants were employed in Kattabomman Transport as technical assistant and technical fitter respecting and were each drawing a salary of Rs. 500 per mensem. From the records it is seen that appellants 2 to 5 had undergone sentence from the date of judgment viz., 18th September, 1975 till 2nd December, 1975 when they were enlarged on bail in accordance with the orders of this Court. During the stage of investigation also, these appellants had been in custody for some weeks. Taking note of those factors, we think the ends of justice would be met by modifying the sentence awarded to appellants 2 and 5 for their conviction under section 323, Indian Penal Code, and appellants 3 and 4 for their conviction under section 323 read with section 149, Indian Penal Code, and the sentence of appellants 2 to 5 for their conviction under section 147, Indian Penal Code to the period of imprisonment already undergone by them, and in addition, imposing on them a sentence of fine of Rs. 125 in default 1o undergo R. I. for three months for the conviction under section 147, Indian Penal Code, and a further fine of Rs. 125 in default to undergo R. I. for three months, for the conviction under section 323 or section 323 read with section 149, Indian Penal Code as the case may be. Since the first appellant is undergoing the life sentence and since appellants 6 and 7 have already served the sentence awarded for their convictions under section 147, Indian Penal Code, and section 323 read with section 147, Indian Penal Code, and section 323 read with section 149, Indian Penal Code, we are not disturbing the sentences awarded to them under section 147 or 148, Indian Penal Code and section 323 read with section 149, Indian Penal Code. Appellants 2 to 5 are granted time till 31st May, 1977 to pay the fine amount of Rs. 250 imposed on each of them.20. In the result, the appeal will stand dismissed as against the first appellant and will stand partly allowed in the case of the sixth and seventh appellants regarding their conviction under section 302 read with section 34, Indian Penal Code, and will stand dismissed in other respects except for the modification of the sentences awarded to appellants 2 to 5. Since the convictions and sentences against the sixth and seventh appellants have been set aside and since they have already served the sentences awarded to them concurrently for the convictions under section 147, Indian Penal Code, and section 323 read with section 149, Indian Penal Code, the sixth and seventh appellants are directed to be set at liberty forthwith.
" 1977 (1) MLJ(Crl) 583"