JUDGMENT [P.R. BORKAR, J.] :-

1. This is an appeal filed by original accused No.1 being aggrieved by order of conviction and sentence passed by the Additional Sessions Judge, Nandurbar, in Sessions Case No. 49 of 2004 decided on 14.02.2007, whereby the appellant was convicted of offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 10,000/-, in default, to undergo rigorous imprisonment for one year.

2. Briefly stated facts giving rise to this appeal may be stated as below:- .

P.W.2-Tulshiram Konkani has his land adjacent to the land of his brother - Isaram. Prior to the incident in question, quarrels had taken place over boundary bund between P.W.2-Tulshiram and sons of his brother Isaram. Chaitram is the father of the appellant and brother of Tulshiram and Isaram. There are two more brothers. On the day of incident i.e. on 07.10.2004 at 6.30 a.m. there was quarrel between Tulshiram and his son Rupchand on one side and original accused Nos. 1 to 6 on the other. Accused were appellant Suresh, Punya, Rohidas, Bhavaji, Vikram and Chaitya Konkani. Initial exchange of words aggravated in to a scuffle. At that time Janglu Konkani (P.W.3) and Parubai (P.W.11) Konkani intervened and tried to stop the quarrel. However, the quarrel did not stop and again over the land dispute there was exchange of words and fighting continued. At that time the appellant gave blow with a yoke (Dussar) of bullock-cart which was lying there on the head of Rupchand. As a result, Rupchand was injured. Thereafter, Rupchand was first taken to the Government Hospital at Nawapur. While at the hospital P.W.2-Tulshiram lodged complaint (Exh.66). On the advice of doctor, Rupchand was taken to a private hospital at Dhule. On the next day Rupchand died.

3. Police investigated the case. They attached yoke in question. They recorded statements of various witnesses. Ultimately charge-sheet was sent to the Court.

4. The prosecution in all examined 13 witnesses. Relying on their evidence the learned Additional Sessions Judge, Nandurbar, convicted the appellant alone of offence punishable under Section 302 read with Section 34 of the I.P.C. As per the order, Appellant-Suresh was acquitted of the offences punishable under Sections 143, 147, 148, 149, 504 and 506 of the I.P.C. Out of fine amount, an amount of Rs. 8000/- was ordered to be paid to complainant - Tulshiram as compensation under Section 357 (1) (c) of the Cr.P.C. Remaining accused were convicted of the offence punishable under Section 324 read with Section 34 of the I.P.C. and they were released on probation. However, each of original accused Nos. 2 to 6 was directed to pay compensation of Rs.1000/- to complainant - Tulshiram. We do not find order of acquittal or conviction of accused Nos. 2 to 6 for remaining offences with which they were charged.

5. At Exh.41 there is charge against all six accused and the charges against all the accused are under Sections 143, 147 read with 149, 148 read with 149, 302 (simplicitor), 504 (simplicitor) and 506 (simplicitor). It is unfortunate that the learned Additional Sessions Judge did not apply his mind while framing charge. Section 143 of the I.P.C. is an offence of being member of unlawful assembly. Offences under Sections 146 and 147 of the I.P.C. are as follows:-

"146. Rioting - Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

147. Punishment for rioting - Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

6. The offence under Section 147 of the I.P.C. is an individual offence and each member is guilty of offence of rioting if conditions of Section 146 of the I.P.C. are fulfilled. In fact offence under Section 147 of the I.P.C. is aggr

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