ORDER

Counsel for the appellants submits that as per instructions appellant No.5 - Gala has died. This judgment so far it relates to appellant No.5, is subject to verification of his factum of death.

2 . The present appeal is filed under Section 374 of Cr.P.C being aggrieved of the judgment passed by First Additional Sessions Judge, Khargone in S. T. No.58/98 on 23.8.99, wherein the Court found the appellant Mansharam guilty U/s 148,307 and 324/149 and sentenced him to undergo 6 month R. I.,5 years R. I. with fine of Rs.1000/- and 1 years R. I. Appellant No.1 Mathuralal and appellant No.4 Kailash have been found guilty U/s 148,324 and 307/149 I.P.C. and sentenced them to undergo 6 month R. I., 1 years R. I. and 5 years R. I. with fine of Rs.1000/-. Appellant No.3 Batia @ Dayaram No.5 Gala, No.6 Babu have been found guilty U/s 147,324/149,307/149 I.P.C. and sentenced them to undergo 3 month R. I.,1 years R. I. and 5 years R. I. with fine of Rs.1000/- and indefault of payment of fine all the appellants have been sentenced to undergo 3 month S. I. Appellant No.4 Kailash has been found guilty U/s 25(1) of Arms Act and sentenced to undergo 1 years R. I, with fine of Rs. 250/- and indefault of payment of fine 3 month S. I. 3 . The prosecution case is that on 1/11/1997 at about 10 AM, the appellants found unlawful assembly and in furtherance to common intention caused injury to Champalal, Heeralal and Mukund with the help of sword. The appellants have been convicted and sentenced mentioned hereinabove.

4 . According to the prosecution story Mansaram caused injury to Champalal with the help of knife and acccused Mathuralal caused injury with the help of knife to Heeralal. It is alleged that accused Kailash caused injury to Mukund with the help of sword. The other accused persons are said to have acted in furtherance of common intention of unlawful assembly. Victims Heeralal, Champalal and Mukund were examined by PW - 3/Dr. Jamnadas. He found two injuries to Champalal caused by sharp edged weapon on the back.

His report is Ex.P-8. He also found as many as 8 injuries on victim Champalal. He referred the case of Heeralal and Champalal for further investigation by X- Ray. The X-ray was conducted by Dr. Dhyan Singh Solanki/PW - 6. His x-ray report is from Ex.P-15 to Ex.P-17. He found liquid collection on the left side of the chest of victim Champalal. The investigation was carried out by P.S Baghel/ PW - 15 who made seizure of the sword. The weapons were also seized from the accused persons.

5. Counsel for the appellants submit that the prosecution could not prove that the injuries received by Heeralal, Champalal were found to be dangerous to life and, therefore, conviction under Section 307 of IPC is erroneous. Upon perusal of testimony of Dr. Jamnadas Gupta/PW - 3 and Dr. Dhyan Singh Solanki/PW - 6, it is evident that though the injuries were received by sharp edged weapon by Heeralal and Champalal but there was no opinion that those injuries were dangerous to life. The injury received by Mukund has been found to be simple in nature. Against appellant Kailash, it is alleged that he was armed with sword and caused injury to Mukund which has been found to be simple in nature. This was a case of free fight and a counter report was also lodged. The accused persons examined Dr. Azad Jain/DW - 1 who stated that the accused persons also received injuries.

6. Counsel for the State supports the order of conviction and sentence.

7. After hearing learned counsel for the parties and after evaluating the entire evidence especially the evidence of PW - 3/Dr. Jamnadas and PW - 6/Dhyan Singh Solanki, I find that the prosecution has failed to prove that the injury caused by the accused persons were dangerous to life. The injury received by Heeralal is on the back. Since the prosecution has failed to prove that the injuries received by these three persons were dangerous to life, their conviction under Section 307 of IPC is set aside and they are convi