( 1 ) ALL the three appeals arise out of a judgment given in special Case No. 29 of 1991 of the Court of learned Sessions Judge, Surendranagar which came to be tried by him as a Special Judge in his charge as The Scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was involved. The main charge, no doubt, was under S. 302 of I. P. C. read with S. 34 as also under S. 307 read with S. 34 of the I. P. C.

( 2 ) THE incident happened on 29-4-1991 at about 11-30 a. m. in Malar Chowk area of Surendranagar town. The prosecution witnesses and the victim of the crime all belonged to Harijan community and the accused are either Muli or Rajputs. They are armed with weapons like Dharia, stick, sword etc. and at the aforesaid place and time they assaulted the prosecution witnesses, one of whom died and another arising out of Judgment in Special Case No. 29 of 1991 passed by Sessions Judge, surendranagar. received serious injuries. The surviving injured witnesses are Jairambhai Valabhai and Jethabhai Valabhai. The person lost life is Khushal Manji. Complaint came to be given by one of the injured witnesses, Jethabhai Valabhai. The reason for the incident is said to be what transpired on previous evening while the accused party was singing devotional songs. There seems to be a complaint filed in this regard and the other side, i. e. , the prosecution side were also on way to file a complaint with regard to their grievances. In all 8 such accused were facing trial and at the end of it, the learned Judge convicted only accused No. 1 and 5 for offence under s. 307 read with S. 34 of the I. P. C. and under S. 3 (2) (v) of the said Atrocities act.

( 3 ) FOR the offence under S. 307 read with S. 34 of I. P. C. both the accused came to be awarded sentence of five years rigorous imprisonment and fine of Rs. 1,000. 00 and in default to undergo three months simple imprisonment, while for the offence under the Atrocities Act, they were awarded rigorous imprisonment for seven years and fine of Rs. 1,000/- and in default simple imprisonment for three months in respect of each of the accused.

( 4 ) THE convicted-accused have filed appeal Nos. 574 of 1993 and 646 of 1993. They are respectively original accused Nos. 1 and 5. Appeal No. 763 of 1993 is filed by the State against the order of acquittal passed by the learned Judge in respect of the remaining offences, the principal being under S. 302 of the I. P. C.

( 5 ) BEFORE proceeding with the appeals of the accused-appellant we concentrate on the appeal filed by the State. If at all they were held guilty under S. 302 of the I. P. C. obviously the complexion of their appeals against the original conviction order will radically change. However, looking to the post-mortem note prepared by Dr. Parikh, P. W. 8, page No. 651 and the post-mortem note Exh. 37 at page 663 the death is on account of breaking of 8th rib left. This broken bone had apparently caused damage to spleen as well as liver. This led to internal bleeding and the man died.

( 6 ) HOWEVER, with regard to the evidence of the prosecution witnesses, though there are eye witnesses, no specific role is assigned to any of the accused, acquitted or convicted which would lead us to hold that the vital injury was caused by any of them. Unless this fact is established, there is no question of taking aid of S. 34, namely, that of common intention.

( 7 ) THE external injury given in column No. 17 at serial No. 10 in abdominal region is a stitched wound of 3 cm. This is the position to be found from the P. M. Note Exh. 37, page 663. For further details injury certificate of deceased Khushal manji produced by Dr. Parmar PW 5, Exh. 24, will have to be seen. This deposition at page 589 read with certificate Exh. 25, page 601 onwards makes it clear that the said abdominal injury was an incised wound of the dimension of 1 cm. x 1/3rd cm. x 1/3rd cm. By its side there was abrasion of 8 cm. x 1mm. This would mean that whatever t