VAIDYA, J.

These appeals are directed against the Order dated 27-4-1987 passed by the learned Additional Sessions Judge, Pune in Sessions Case No. 5 of 1987 on his file. Appeal No. 2 of 1988 is preferred by original accused No. 1 - Jakir Ibrahim Khan and Appeal No. 8 of 1988 is preferred by original accused No. 7 Suresh Appa Thorath. Original accused Nos. 2 to 6 were acquitted of all the charges levelled against them by the prosecution.

2. Original accused Nos. 1 and 7 were convicted for the offences punishable under section 147 of the Indian Penal Code, Section 148 of the Indian Penal Code, Section 323 of the Indian Penal Code read with Section 149 of the Indian Penal Code and were sentenced for the first and second mentioned offences to suffer rigorous imprisonment for one year on each count and for the third mentioned offence, to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100/-, in default to suffer rigorous imprisonment for 15 days. Both the accused were also convicted of a charge for offence punishable under section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for life. The substantive sentences were to run concurrently.

3. According to the prosecution, the complainant Manda Shirke and her husband (deceased) Laxman lived with their children in one hut in a slum area called Sainath hutment, Shivajinagar, Pune. The building of the office of the Labour Union of the Corporation employees was being constructed in the vicinity of their residence and the work of plinth and slab was partly completed at the time of incident namely 26-9-1986. As it was a rainy season, the deceased and his family members had gone under the cover of roof over the plinth to sleep there for the night and many more persons from the vicinity also were sleeping on the said plinth at that time. At about 10.00 p.m. the present appellants accused Nos. 1 and 7 came there and started pulling chaddars spread on each of the persons sleeping there in search of one person whom they wanted. In doing so, they pulled the chaddar with which witness Manda was covered. The deceased Laxman woke up and registered his strong protest about his act of misconduct in the context of his wife. The appellants are said to have disclosed that they were in search of one Suresh Thombare and Hussain Shaikh. There was some exchange of hot words between the deceased Laxman and the Appellants. The appellants then whistled by way of a signal and invited original accused Nos. 2 to 6 to this place. Original accused No. 1 was armed with a small stick with a chain tied to it and accused No. 7 Suresh was armed with a knife. The others also possessed one or the other type of weapons. It is alleged that in the fight accused No. 7 stabbed deceased Laxman with a knife. Accused No. 1 is not said to have made any assault. Deceased Laxman the fell down in injured condition and was then attended to by the neighbours after the assailants had made their way. On his way to the hospital, he is said to have died. The matter was reported to the police by witness Manda and a F.I.R. was recorded. P. I. Mahajan took over the investigation and completed the same. In course of time accused No. 1 and one other accused were arrested at Ambejogai, District Beed on or about 1-10-1986 and accused No. 7 was arrested on 5-10-1986. On 1-10-1986 accused No. 1 is said to have produced a stick attached with chain on 13-10-1986 an identification parade was held at the hands of Special Judicial Magistrate. The witness Manda Shirke is said to have identified accused Nos. 1, 3, 5 and 7. Witness Arun Adsul is said to have identified accused Nos. 1, 2, 3 and 7. Witness Deepak Pendhare is said to have identified accused Nos. 1, 2 and 5. After completing the investigation accused Nos. 1 to 7 were chargesheeted on 17-12-1986 for offences punishable under sections 147, IPC, 148, IPC, 302, IPC read with 149, IPC and 323, IPC read with 149, IPC. The learned Additional Sessions Judge had framed charge on 11-2-1987 vide Ex. 2. All of the accused had pleaded not guilty to the said charge. Their defence was of total denial. No defence witness was examined. After hearing the learned Additional Sessions Judge came to the conclusion that no guilt was proved against accused Nos. 2 to 6. Finding the present appellants guilty as stated at the outset he convicted them of the charges for the said offences and awarded sentences as mentioned above.

4. Having felt aggrieved by the aforesaid order, the present two appeals were preferred separately by the two accused persons. It was maintained that the learned Additional Sessions Judge had failed to appreciate the evidence properly and has convicted the appellants erroneously. Contending that the evidence of witness Manda was not very reliable as regards the identification of the appellants and further that the evidence pertaining in the identification parade also was not very satisfactory, it was submitted that the alleged recovery of the weapon from accused No. 1 also was not worthy of safe reliance and that even if the same was believed, there was hardly any evidence which could enable one to hold them guilty of any of the offences. As regards original accused No. 7, it was submitted that though witness Manda had identified the accused No. 7, her evidence was not satisfactory enough to warrant his conviction for any of the alleged offences. It was prayed that both the appellants be found not guilty of the, offences and that as such they be acquitted and set at liberty.

5. The fact that the said Laxman had died a homicidal death was not in dispute before us. The Medical officer who had conducted the autopsy was not examined but in the trial Court the post-mortem notes were admitted in evidence on Exh. 20. Column 17 of the said notes showed the following external injuries on the person of the deceased :-

"1. Stab injury on the Rt. Nipple measuring 1" - 1/2" Margins and angles clean cut transverse placed, 3" Rt. lateral to midline.

2. Linear abrasion 2" below Lt. Mid. cavicular point measuring 1" in length.

3. Abrasion measuring 1/4" x 1/4", 2" below Lt. shoulder joint outside.

4. Incised injury 6" above Lt. buttock mid axillary Line 1/2" x 1/2" with tailing towards Lt. measuring 1/2" Muscle deep.

5. Incised injury 1" in length x 1/4", 1" behind Lt. axillary fold skin deep. External inj. at Sr. No. 1 corresponded to injuries mentioned below.

The corresponding internal injuries were as follows :-

"Clean cut fracture 4th Rib. Rt. mid clavicular Line.

1. Rt. Haemothorax 100 ocs fluid blood.

2. Haemoloma over pericardium in on area of 4" x 3" with blood clots.

3. Stab injury Rt. side of pericardium 1/4" x 1/2" 50 ocs. fluid blood 30 gms. of blood clots.

4. Stab injury Rt. Verticle measuring 1/4" x 1/4" margins and angles clean cut pousing through interventricular Septum measuring 1/4" x 1/4" opening inside Lt. Ventricular Cavity. No injury Lateral wall of Lt. Ventricle."

The nature of the injuries clearly showed that there was a major stab wound on the chest of the deceased. According to the medical opinion, the cause of death was shock as a result of stab injuries. According to the conclusion of the learned Sessions Judge on the point and as conceded by the Advocates and the learned Public Prosecutor appearing before us we, therefore, hold that the deceased Laxman is proved to have died a homicidal death on 26-9-1986.

6. As regards the complicity of the accused persons, the learned Advocates for the appellants pointed out from the charge framed by the learned Additional Sessions Judge at Ex. 2 that the charge for offence punishable u/S. 147 of the Indian Penal Code was specific in averring that the original accused Nos. 1 to 7 were the only persons who had formed the unlawful assembly and further, that the common object of the said assembly was to commit the murder of deceased Laxman Mahadeo Shirke. The charge averred further, that all other offences mentioned in the charge were committed by the aforesaid unlawful assembly in prosecution of the common object of the said assembly. Alternatively, the charge also was framed against all the 7 accused for an offence punishable u/S. 302 Indian Penal Code read with S. 34 of the Indian Penal Code and S. 323 of the Indian Penal Code for causing hurt to P.W. No. 3 Manda Shirke. The first and the foremost point therefore, urged by the learned Advocates for the appellants was that when the learned Additional Sessions Judge had acquitted original accused Nos. 2 to 6 of all the charges framed against them and when there was not a specific averment in the charge or a specific finding that some unidentified persons along with the present appellants had formed the unlawful assembly with a particular common object, it was not legally permissible to convict the appellants of the charge of any of the offences read with S. 149 of the India Penal Code. Secondly, it was submitted that it was evident from the evidence of the prosecution that the common object of the assembly was never to commit a murder, much less that of deceased Laxman, even if it was proved (which in fact the prosecution has failed to prove) that there were more than 5 persons present, as alleged by the prosecution at the scene of offence at the relevant point of time. If was, therefore, submitted that on that count also the liability for any offence could not be affixed on the appellants by resorting to the provisions of S. 147/149 of the Indian Penal Code. The learned Additional Public Prosecutor had to concede to this position in view of the evidence on record as well as the position of law settled down by the Supreme Court.

7. In Allauddin Mian v. State of Bihar AIR 1989 SC 1456 [LQ/SC/1989/237 ;] ">AIR 1989 SC 1456 [LQ/SC/1989/237 ;] [LQ/SC/1989/237 ;] : 1989 Cri LJ 1466 it was laid down that in order to fasten vicarious responsibility on any member of an unlawful assembly, the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly ....... What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object, every member of the assembly will become liable for the same. On reading the evidence of P.W. 3 Manda, P.W. 7 Geetabai, P.W. 8 Arjun it is seen that at the relevant point of time accused Nos. 1 and 7 had come to the scene of offence not with an intention to find out the deceased Laxman, much less to attack deceased Laxman in any way. Indeed, it was admitted by Manda, wife of the deceased Laxman that there was absolutely no reason for any of the accused persons to assault her and the deceased. No enmity was alleged between the deceased or his family on one side and the accused or any one of them on the other side. It does not appear from the evidence on record that they had known each other. The incident in question had arisen only when accused Nos. 1 and 7, who had arrived on the scene of offence in search of one Hussain Shaikh, and while doing so they had pulled the chaddar which was spread on the person of witness Manda. The deceased husband of Manda had then lodged the protest and then, there was some altercation between the deceased on one side and the two appellants on the other side. It does not appear that it had assumed form of any quarrel. The appellants, who had not formed a gang along with some other persons, had felt hurt when they were questioned, by an insignificant fisherman, like the deceased. It appears that, as a result, the fateful incident followed in the manner in which it took place, practically in no time. Even if it is assumed that more than 5 persons had assembled there, it could hardly be said that they had formed any common object much less, the common object to murder deceased Laxman as was averred in the charge framed by the learned Sessions Judge. Again, there is hardly any reason to suppose that the so-called assembly had developed, on the spur of the moment, the common object in the aforesaid direction and that they or some of them had committed the act in question with the aforesaid common object. Deceased Laxman had protested against the act which, probably, according to him, had offended the modesty of his wife and as a result of the altercation an act of assault on him had taken place. Therefore, it cannot be said that the act which had brought about the death of deceased Laxman was the result of any act done in prosecution of common object of the assembly.

8. Another ruling of the Supreme Court relied upon before us was in Achhey Lal v. State of U.P., AIR 1978 SC 1233 [LQ/SC/1978/74] : 1978 Cri LJ 1101. In that case, as many as 15 named persons were alleged to have made an assault on the deceased who was said to have been murdered. 14 out of those persons were acquitted by the High Court and only the appellant before the Supreme Court stood convicted of the offence of murder under Section 302 of the Indian Penal Code read with S. 149 of the Indian Penal Code. The Supreme Court held that as there was no finding by the High Court that after the acquittal of the accused, the unlawful assembly consisted of five persons or more, known or unknown, identified or unidentified, it was absolutely clear that on the facts of the case, the provisions of Ss. 149 and 147 of the Indian Penal Code could not be invoked. As already stated above, in the case which was before us, the learned Additional Sessions Judge had recorded negative finding in the context of original accused Nos. 2 to 6 on point Nos. 1, 2 and 4 and had held that even the point of common intention of accused Nos. 1 to 7 to commit the murder of deceased Laxman did not survive for decision. In paragraph 15 of his judgment, the learned Additional Sessions Judge observed:

"That does not mean that the accused Nos. 1 to 7 did not come to the place of incident. Her evidence at the most shows that one Satish Thombare and Salim Shaikh were searching for Hussain. Therefore, her evidence is not at all helpful to the defence and her evidence does not disprove the presence of accused Nos. 1 to 7 at the place of incident."

It was not the finding of the learned Additional Sessions Judge that some unidentified persons along with the present appellants had formed an unlawful assembly. Mere presence of the accused Nos. 2 to 6 at the relevant point of time without having any common object of the assembly cannot render them liable for holding an unlawful assembly. Much could it enable one to hold that by virtue of formation of such assembly accused Nos. 1 and 7 (appellants) were liable for the offence punishable under S. 302 Indian Penal Code read with S. 149 of the Indian Penal Code. Thus both the aforesaid points urged on-behalf of the appellants, particularly the appellant No. 1 who was original accused No. 1, must be sustained so as to drive us to the conclusion that the provision contained in S. 149 of the Indian Penal Code could not be invoked to hold the aforesaid appellants guilty of any offence by virtue of S. 149 of the Indian Penal Code.

9. Coming then to the evidence of P.W. 3 Manda it is pertinent to note that in her entire deposition she did not tell that original accused No. 1 Jakir Ibrahim Khan had assaulted either the deceased or witness Manda herself. All that she told was that he was armed with a stick to which a chain was attached and that a protest was lodged by deceased Laxman after accused Nos. 1 and 7 had pulled the chaddar on the person of the witness Manda. Laxman has explained that they were in search of Hussain Shaikh and one other man. Even if it is assumed, though nobody had said so, that Laxman had raised his voice, all that was said to have been done by accused Nos. 1 to 7 was to call others by giving a whistle. So far as accused No. 1 is concerned, Manda did not tell that accused No. 1 had done any overt, act which showed that he had an intention or, object to make an assault on Laxman. The learned additional Public Prosecutor was, therefore, fair enough to concede that in the absence of any overt act on the part of the accused No. 1, it was not possible to substantiate the order of the learned Additional Sessions Judge made to convict the original accused No. 1 of any of the offences. It is pertinent to note that Manda did not even tell that she was beaten by any accused. All that she told was that she had gone near her husband to tell the accused not to do anything to her husband and that she was pushed aside by one accused person as a result of which she had failed down. Therefore, it could hardly be said that the accused No. 1 was proved to have been responsible even for causing hurt to Manda much less, any of the wounds or injuries caused to the deceased.

10. In result, after a careful consideration of the evidence on record, we are of the opinion that accused No. 1 deserve an acquittal and that to that extent, the conviction and the sentence awarded to him must be set aside. He will have to be set at liberty forthwith, if not required in any other case.

11. Coming, then, to the other appellant who was accused No. 7, the evidence on record is not weak as was sought to be submitted on his behalf by the learned Advocate appearing for him. The most important witness in this context is P.W. 3 Manda from whose deposition it is very clear that the deceased and his family had no concern whatsoever with the accused No. 7, or for that matter, any of the accused persons. Deceased Laxman was only a Fisherman, earning his livelihood with the help of his wife, by selling fish by the road side. He lived in a hut and probably needed protection in rainy season like many other hutment dwellers in the vicinity. He had taken shelter below the roof on the plinth of the construction work which was still in progress. Unexpectedly enough, accused Nos. 1 and 7 had gone there at about 10.00 p.m. and had done the act of pulling the cover which was on the person of witness Manda. Very naturally, deceased Laxman had felt that the modesty of his wife was offended. According to Manda when accused Nos. 1 and 7 had moved the chaddar from her person, her husband deceased Laxman had asked accused No. 1 and accused No. 7 why they did so in the case of women who were sleeping. Manda went on telling that out of accused Nos. 1 and 7, one accused told her husband that they were searching for one Hussain Shaikh and then, all that her husband Laxman had done was to tell them that Hussain Shaikh was not there and that they should not take out the chaddars from the persons who were sleeping there. Nothing had happened whatsoever which should have hurt the ego of accused No. 1 or accused No. 7 but the reaction was furious. As Manda told, one of those accused blew whistle by mouth attracting to the scene of offence about 5-6 persons who were armed with various weapons. Understandably, she could not identify those other persons with reference to the weapons they had carried. She told that accused No. 1 Jakir had one stick with iron chain attached to that stick. She saw accused No. 7 Suresh giving blow of knife on the chest of her husband Laxman while Laxman was standing. According to her, Laxman then fell down with a bleeding injury on his chest. She added that the other injuries were inflicted by accused No. 3-Satish with the Razor. The trial Court has disbelieved her in the context of the role allegedly played by accused No. 3 Satish; but so far as accused No. 7 is concerned, the learned Additional Sessions Judge has carefully considered the evidence and has arrived at a conclusion that accused No. 7 was proved to have given to deceased Laxman the knife blow which, as found by the medical evidence, proved to be fatal. The main submission advanced on behalf of accused No. 7 in the context of evidence of Manda was that there was no visibility and that the identification of accused No. 7 could have been a mistaken identification. A reference was made to the panchanama of scene of offence Ex. 17 and the evidence of P.W. 9 Laxman Jadhav (Map drawn) to submit that there was nothing in their evidence to show that there were lights on or near the scene of offence. Reference was made particularly to a statement appearing in the cross-examination of witness Laxman Jadhav to the effect that there was no electric fitting in the office room of the Union which was located in a part of half completed construction. We have looked to the Marathi version of the deposition of Laxman Jadhav and all that he had said in the deposition was that there was neither any pillar in the premises nor any electric fitting. It was never the case of even Manda that there was a sort of permanent electric fitting in the office. All that she had said, in that context, was that there was a loose lamp fitted temporarily near the old office room. Witness Laxman Jadhav was questioned in the light of what Manda had said. A general admission of the type that was given by him could not, therefore, mean that there was no temporary lamp and that, consequently, the visibility was poor. In paragraph 12 of her deposition Manda was interrogated at length on the point of position of lamps on and near the scene of offence. She was specific in saying that there was an electric lamp in a straight line of the location of her hut and there were electric lamps in 2 or 3 other huts standing in the same line. If we tally this statement in the deposition with Map Exh. 39, it would appear that the Huts marked at Sr. Nos. 7, 8 and 9 on the northern side were probably the huts referred to by her and further, that distance between the scene of offence and the huts was hardly 22. P.W. 3 Manda, further, told that there was yet another lamp in the hut of one Bhabi and that hut was a couple of huts beyond Mandas own hut. Then she referred to tube light which was apparent on the Dhobi Ghat. Map Ex. 39 shows that Dhobi Ghat was on the western side of the scene of offence at a distance of about 48 or so. She was clear in saying that there was no public electric lamp posts near the place of incident. The electric bulbs were taken to the construction work of the Union office and to the huts in the vicinity. The electric bulbs and the tube were burning at the relevant point of time. According to her at the corner of the old office adjoining this newly constructed office and there was one other bulb near the Samachar Printing Press. Thus, it is clear that according to her, there was ample light at least on two sides of the scene of Offence and there was no reason to suppose that the visibility was so poor that witness Manda and her deceased husband could not have seen accused Nos. 1 and 7 who had high handedly done the mischievous act of pulling the chaddar with which the witness Manda was covered. It is not that Manda had only casually or hurriedly witnessed the whole incident while in a strained state of mind. Indeed, she and her husband had some talk with accused Nos. 1 and 7 before the knife blow was given to deceased Laxman.

12. The second point urged in the context of evidence of witness Manda that though in her examination-in-chief she had identified the knife as the weapon she had told in cross-examination that there was no identification mark on the attached knife. It was therefore, submitted that the weapon of attack was not properly identified. Assuming for the sake of argument that that was so, the medical evidence would not permit us to say that no knife blow was given. The presence of witness Manda on the scene of offence was very natural and her evidence in respect of accused Nos. 1 and 7 had come in the most natural way. Further, she had no animus to implicate falsely any one of the accused for any reason in the context of the death of her husband which was the most unexpected. Her version was sufficiently corroborated by her F.I.R. Ex. 31, the medical evidence inquest report and the panchanama of scene of offence. There is, therefore, no reason to disbelieve her on the point of assault made by accused No. 7 on deceased Laxman with knife.

13. The learned Advocate for the accused No. 7 appellant then submitted that even if it was held proved that the knife blow was given by accused No. 7, there was certainly no intention of causing murder of deceased Laxman. She relied upon the observations in State of U.P. v. Jodha Singh, (1989) 3 SCC 465 (para. 19 of the Report) : AIR 1989 SC 1822 [LQ/SC/1989/345] and submitted that "in a case" of the type "now" in question when there was absence of intention to kill "anyone," the Supreme Court had held that the offence fell u/Exception 4 to S. 300 of the Indian Penal Code. It was submitted that the accused No. 7 could, at most, be said to have committed an offence punishable under Part II S. 304 of the Indian Penal Code. The decision of the Supreme Court was given on the facts which were there before their Lordships. There is hardly any similarity of facts in that case and in the present case. Justifiably enough, deceased Laxman had protested against the misconduct and high handedness of accused Nos. 1 and 7, especially when their act related to the wife of the deceased, who was peacefully and blissfully sleeping in her bed. Even then, it is nobodys case that deceased Laxman was out to make any assault on any one. A poor man like him dared not do that when he was confronted by men like accused Nos. 1 and 7, who, as seen from the evidence, were almost gangsters. If in these circumstances, a high handed man like accused No. 7 has felt that his ego was hurt and if he had given with all might a knife blow on the chest of the deceased so as to inflict on him a deep rooted stab wound which could bring about almost an instantaneous death of Laxman, it could hardly be said that the intention was not to inflict an injury which the assailants knew to be sufficient to cause, in ordinary course of nature the death of the person injured. Unlike the facts before the Supreme Court, there was no mutual fight or a free fight between the two parties. Merely a verbal protest was counter-acted by a fatal blow, besides several minor injuries inflicted by some others on the deceased. Under such circumstances we find hardly any room to think that the case could fall within the scope of Exception 4 to S. 300 of the Indian Penal Code. It was a clear case falling within the definition of murder.

14. Referring, then to the other evidence corroborating the evidence of P.W. 3 Manda, a reference may be made first to P.W. 5 Arun. He was one of the persons sleeping in the vicinity of the beds of P.W. 3 Manda and her husband. He told that accused No. 1 and accused No. 7 had come there and had pulled chaddar from the person of complainant Manda. He added that deceased Laxman had then accosted accused Nos. 1 and 7 and the accused No. 7 had blown a whistle to call their other colleagues. This witness did not tell about the knife blow given by accused No. 7 but he did corroborate P.W. 3 Manda as to the presence of accused Nos. 1 and 7 on the scene of offence and the cause of initiation of the endeavoured event. The learned Additional Sessions Judge has accepted the evidence of this witness with pinch of salt, but the learned Additional Public Prosecutor who argued the case before us, submitted with some force that, to the extent stated above, his evidence could be and should be believed. Presence of the witness on the scene of offence appears quite natural. Similar was the case in the case of P.W. 7 Gitabai. Her evidence showed that Hussain Shaikh, in whose search accused Nos. 1 and 7 had come to the scene of offence at night, was on visiting terms with Gitabai and that, on 26-9-1986 at about 4.00 p.m., one Satish and Salim had come to her house to make inquiry about Hussain Shaikh. Some inquiry was again made at 7.00 p.m. and again at 9-30 p.m. She told that at about 9-30 p.m. she had come out to see what the matter was and she had seen two rickshaws with at least 5-6 persons in one of them. This witness did not say anything about the presence of accused Nos. 1 and 7. But this fact by itself did not mean that search of Hussain Shaikh was not going on and that accused Nos. 1 and 7 had not come on the scene of offence as told by witness Manda. P.W. 8 Arjun is the witness who told that accused No. 1 Jakir had come to him at about 9-00 p.m. in rickshaw and that he was seen waiting near the rickshaw when the witness had gone to the house to take meals. According to this witness, he knew accused No. 1 for last 7/8 years. This witness could, therefore, corroborate Mandas evidence, on the point of presence of accused No. 1 near the scene of offence. True it is that the corroboration received from the evidence of these witnesses to the evidence of P.W. 3 Manda is piecemeal, but that evidence is certainly not totally worthless when it is appreciated that a gang was out from the afternoon for search of one or two persons whom the gangsters desired most. If under such circumstances, the hutment dwellers came out of fear or otherwise, that circumstance could not be read to mean that the evidence of witness like P.W. 3 Manda not worthy of safe reliance. Indeed, we are convinced of the truth of Mandas version as regards the fatal blow proved by her to have been given by accused No. 7 to the deceased Laxman and the consequent death.

15. In result, we hold that the offence of murder is clearly proved against accused No. 7 Suresh Appa Thorath and he must be convicted for an offence punishable u/S. 302 Indian Penal Code simpliciter. His conviction made by the learned trial Judge for offence punishable u/S. 302 IPC read with S. 149 IPC has got to be modified accordingly.

16. For the reasons similar to those discussed above, the conviction of accused No. 7 for offence punishable u/S. 323 IPC read with S. 149 IPC will have to be modified to conviction for offence punishable u/S. 323 Indian Penal Code simpliciter. The sentence awarded by the learned trial Judge for voluntarily causing simple hurt to Manda need not be changed.

17. Thus appeal No. 2 of 1988 preferred by original accused No. 1 Jakir Ibrahim Khan must succeed. Accordingly, we allow the same. Finding him not guilty of any of the offences for which he was convicted by the learned trial Judge, we acquit him of the charge for the said offences. We direct that he be set at liberty forthwith if not required in any other case. As regards Appeal No. 8 of 1988 preferred by Suresh Appa Thorath, it will succeed in part. He will have to be acquitted of the offences punishable under Ss. 147 Indian Penal Code, 148 Indian Penal Code and 149 Indian Penal Code read with S. 323 Indian Penal Code and 302 Indian Penal Code. His conviction is, however, modified so as to hold him guilty u/S. 302 Indian Penal Code simpliciter and S. 323 Indian Penal Code simpliciter. For the offence of murder he shall stand sentenced to imprisonment for life and for offence punishable u/S. 323 of the Indian Penal Code he shall stand sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 100/- in default to suffer rigorous imprisonment for 15 days.

Order accordingly.