JUDGMENT :

DEVNARAYAN MISHRA, J.

1. This appeal has been filed under Section 374 (2) of the Criminal Procedure Code being aggrieved with the judgment and sentence passed by the 1st Additional Sessions Judge, Waraseoni District Balaghat in Sessions Trial No. 09/2003 by which the appellant has been convicted for the offences punishable under Sections 148 & 325 read with Section 149 of IPC respectively and sentenced to undergo Rigorous Imprisonment of 04 months and 03 months and fine of Rs.500/- on each count with default stipulations of imprisonment 15 days - 15 days.

2. Basically this appeal was filed by the six persons but during pendency of the appeal, appellant No.1 namely Dmaji S/o Ghuranlal and appellant No.6 Rama Ji S/o Ghuran Lal have expired, therefore, their appeal is abated.

3. The prosecution case in nutshell is that, in the intervening night of 24-25th October, 2002 victim Sursen was irrigating his field, regarding the irrigation, deceased appellant No.1 Damaji, appellant No.2 Virendra and appellant No.3 Mangru Lodhi started abusing and threatened him to kill and started beating him with Lakdi and Khatwa as a result, the victim sustained injuries in his back, both hands legs and head. He tried to run but on 100 steps, appellants Surendra, Gopal and Rama Ji also started abusing him and threatened him to kill and assaulted victim with Lakdi and Khatwa and he sustained injuries. Avan Lodhi, Teman and Juganu Lodhi were the eyewitnesses and they provided him water and informed to victim's daughter Tijwan Bai who after receiving the information at 05:00 a.m. reached on the spot and found her father laying on the road. She putting her father on the bullock-cart brought to the Police Chowki Kherlanjhi where a report was lodged that was registered as Crime No. 02/2002 under Section 294, 323, 34 & 506 read with Section 34 of IPC. The victim was medically examined and as per the examination report, 22 injuries were found on the body of the victim and on X-ray examination in the right hand Radius Bone was fracture, in the same way in the same way Alna Bone was fractured. In the right leg, Tibia and Fibula bones were fracture and in the left leg no fracture was found.

4. The appellants were arrested. After usual investigation the charge-sheet was submitted before the Court of Judicial Magistrate First Class Waraseoni District Balaghat and after commitment the case was committed to the Court of Sessions for trial.

5. The learned trial Court framed the charges under Section 148 & 307/149 of IPC. Appellants have denied the charges and claimed for trial.

6. Learned trial Court recorded the evidence of the prosecution witnesses and examined the appellant under Section 313 Cr.PC. The appellants have not adduced any evidence in defence on their behalf.

7. Learned trial Court after hearing the parties, passed the impugned judgment, being aggrieved of which, the instant Criminal Appeal has been preferred.

8. Learned counsel for the appellant submitted that learned trial Court has not considered the fact that the incident happened in the two parts. Firstly as per the prosecution, three persons were involved and after that three persons after five minute of incident came there and assaulted the victim and thus, thus six persons were not present on the spot and in that situation, the appellants were not the member of unlawful assembly. As unlawful assembly was not proved, in that situation appellants cannot be held liable on the ground of vicarious liability. The trial Court has committed an error in convicting the appellants by taking the help of Section 149 of IPC.

9. Learned trial Court has wrongly convicted the appellants for the offence punishable under Section 148 of IPC as no weapons were recovered from the possessions of all the appellants. Only from the possession of deceased appellant No.1 Damaji, a bamboo stick and a 'khatwa' was recovered. Seizure memo is not proved. Hence, the conviction of the appellants under Sections 148 IPC cannot be