JUDGMENT

 This is an appeal under Section 2 of the Enlargement of SC (Appellate) Jurisdiction Act, by the Appellant Mariadasan who was accused No. 2 in the trial Court. The other four accused persons, namely A1 (Varuvel), A3 (Ambrose), A4 (Prakasan) and A5 (Maria Sebasthiyan), have filed a petition for special leave against the order of conviction and sentence recorded by the High Court. The trial Court acquitted the accused of all the charges namely Sections 302/149, 307/149, 148, 147 etc.The State filed an appeal before the High Court which reversed the judgment of the trial Court and convicted Maridasan, Accused No. 2, under S. 302 to imprisonment for life, under S 324/149 to 3 years R: I., under Section 148, also to three years R.I. (sentences to run concurrently).

2. So far as the other accused were concerned the High Court convicted accused No. 1 under Section 324 to three years R.I. and to the same sentence under Section 148; Accused No. 3, under Sec. 324/149 to three years R. I. Accused No. 4 was also covicted similarly. A 5 was convicted under Section 147 to two years R.I. and under S. 324/149 to 3 years. The Special Leave Petition filed by Accused Nos. 1, 3, 4 and 5 were ordered to be heard along with this appeal and we hereby grant special leave so that the applications for A1, A3, A4 and A5 may be disposed of also by this judgment.

3. We have heard the counsel for the parties and have also gone through the judgment of the trial Court and the High Court. Mr. B. P. Singh, with his usual fairness, brevity and ingenuity has frankly conceded that in the state of evidence it is not possible for him to press the case of accused No. 1 and so far as the accused No. 2 was concerned he argued that conviction under Sec. 302 was wrong as his case squarely falls under Section 304, part I or Part II of I.P.C.

4. As regards accused Nos. 4 and 5, the learned counsel submitted that there was no legal evidence against them. The occurrence took place on the 27th of December, 1970 and was a result of an earlier dispute between the parties in which certain threats are said to have been given. A report was made regarding the threats before the police station and some time in the afternoon, while P.W. 1 was returning from the Church he was surrounded by the five accused but nothing of much consequence happened at that time. In the evening, at 6 p.m. on the date of occurrence, it appears that there was a sudden altercation between P.W. 1 and the accused in which the deceased Francis tried to intervene as a result of which A2 assaulted him with knife on several parts of the body and caused a serious injury on the chest. According to the evidence , A1 is said to have assaulted P.W.1 with knife and inflicted knife injuries to him. According to the evidence of P.W. 1, A3 had beaten him on the shoulder with a stick and A4 had given a beating to P.W. 1 on the left knee. No overt act was ascribed to A5. Reading the evidence of P.W. 1 as also the allegations made in the F.I.R. we are satisfied that there was no satisfactory evidence to prove the formation of any unlawful assembly at any time with the common object of assaulting or killing either the deceased Francis or P.W.1. The whole fight started suddenly on the spur of the moment in a heat of passion and, therefore, the accused could only be liable for the in dividual acts committed by them. For these reasons, therefore, we agree with Mr. Singh that there is no evidence to support the conviction of rioting under Sections 149, 148 or 147, I.P.C. as recorded by the High Court.

5. Coming to the individual acts, so far as A2 is concerned the medical evidence of P.W. 9 shows that one of the injuries caused by A2 was on the chest which cut a part the theoracic Aorta which was main portion of the heart and also, fractured 8th and 9th ribs on the right side of the chest. According to the doctor this injury was sufficient in the ordinary course of nature to cause death. Having regards, therefore, to the na