JUDGMENT 1. - Both these appeals are directed against the judgement of the Additional Sessions Judge, Dholpur, dated November 26, 1970 whereby Sijjeyram Devi, Chironji, Bhagwan Singh, Ranchhor and Hakim were convicted for offences under section 326, 325 and 323 I.P.C. and the rest were acquitted of all the charges levelled against them. In all 27 persons were prosecuted in this case but the learned judge found that the prosecution could establish specific acts only against Sijjeyram, Devi, Chironji, Bhagwan Singh, Ranchhor and Hakim and, therefore, he passed an order of conviction against these six persons only. These persons have challenged by filing an appeal No. 798 of 1970, the order of conviction; whereas the State of Rajasthan has challenged the order of acquittal against all persons. 2. The prosecution story was that on 15.10.1967 Hukam Singh, Aman Singh, Nirbhey Singh, Umrao Singh and Gajraj Singh were attached by the villagers of Moroli including the 27 persons, who were prosecuted, because there was a dispute going on in respect of the field owned by Umrao Singh. The prosecution story goes to suggest that Aman Singh in the company of his fathers Hukam Singh and son Nirbhey Singh were going to village Nagar to attend a feast at Aman Singh's father-in-law's house. They met on their way Gajraj Singh and Umrao Singh near the field of Umrao Singh. Umrao Singh told Hukam Singh that the villagers had cut the Bajra crop from their field. Hukam Singh asked Umrao Singh to wait till they returned from the village Nagar after attending the feast and it was then that they would call the Panchayat and would settle the matter with the villagers. After hearing this assurance from Hukam Singh that the matter would be referred to the Panchayat, Umrao Singh and Gajraj Singh stated for their village Moroli. Hukam Singh and the party then proceeded for village Nagar. Hardly 100 paces were covered by Hukam Singh and his son and grand son then they heard a noise and when they turned their back they found that 200 or 250 persons belonging to village Moroli had attached Gajraj Singh and Umrao Singh. When the villagers saw that Hukam Singh, Aman Singh and Nirohey Singh were standing and watching this incident with the guns in their hads, they attacked Hukam Singh and his party. When the villagers saw that Hukam Singh, Aman Singh and Nirohey Singh were standing and watching this incident with the guns in their hads, they attacked Hukam Singh and his party. During this fight all the five persons namely, Hukam Singh, Aman Singh, Fateh Singh, Umrao Singh and Gajraj Singh sustained injures. Hukam Singh, who got as many as seven injuries, lost his consciousness and he was, therefore, bodily lifted by his grand son Nirbhey Singh and was taken in the water of the Chambal river along with Aman Singh to see that they may not be attacked further by the villagers. The villagers, it is said, then surrounded this party but Aman Singh did not allow them to come to them by showing his loaded gun. The Rajasthan Armed Constabulory party stationed at village Moroli after hearing about this incident came to the spot and according to the prosecution they rescued the complainant party and took them to the out-post at Moroli. Next day a case was registered against the complainant party on the first information report alleged to have been filed by one Shanker, who was said to be with the villagers at the spot when this incident took place. by way of abundant precaution Hukam Singh, Aman Singh & Nirbhey Singh got themselves medically examined at the Dholpur Hospital but they were not satisfied with the medical examination conducted by the Doctors, stationed at Dholpur and, therefore they proceeded to Gwalior to be examined by an impartial Doctor. After they returned from Gwalior they lodged a report on 22nd of October, 1967 against the accused persons at the police station, Basaidang and it was on the basis of that report that a case against 27 persons was registered by the police authorities. All the 27 persons were challaned to stand trial for offences under sections 326, 307, 148 and 307 read with section 149, Indian Penal Code. The injured Hukam Singh, Aman Singh, Nirbhai Singh, Gajraj Singh and Umrao Singh were examined as eye witnesses. They did not assign any over act to all the 27 persons involved in this case. They, however, deposed that Sijjeyram, Hakim, Bhagwan Singh, Devi, Chironji, Ranchhor, Chakrapan & Umedi inflicted injuries to them during this incident but the learned Judge did not place any reliance on the testimony of these eye witnesses in respect of Umedi and Chakrapan. They did not assign any over act to all the 27 persons involved in this case. They, however, deposed that Sijjeyram, Hakim, Bhagwan Singh, Devi, Chironji, Ranchhor, Chakrapan & Umedi inflicted injuries to them during this incident but the learned Judge did not place any reliance on the testimony of these eye witnesses in respect of Umedi and Chakrapan. Regarding other persons, he found that no evidence was led by the prosecution to involve them in this case. Since a counter case was challaned against the eye witnesses in this case for offences under Sections 302, and 307 IPC the learned Judge refused to place any reliance on the testimony of these eye-witnesses unless he could find corroboration from other circumstances. He also came to the conclusion that it was a case of free fight which developed spontaneously at the spot when the villagers came to the field of Umrao Singh and, therefore, the question of application of section 147 or 149, Indian Penal Code, did not arise in this case. He simply tried to find out the part played by each accused and it was on the basis of such action taken by the individual accused persons that the conviction of six persons was recorded by the learned Judge. 3. The State has filled this appeal against 21 persons, who have been acquitted. Learned Public Prosecutor, however, did not challenge the finding of the trial court about the fact that section 149 Indian Penal Code was not attracted to the facts of this case. In these circumstances the learned Public Prosecutor simply confined his argument to the over act committed by the individual accused persons in this incident. 4. In order to appreciate the argument advanced by the learned Public Prosecutor as well as the learned counsel appearing on behalf of the six accused person who have been convicted by the trial court, it will be relevant to see the injuries sustained by the victims because these injuries will go a long way to help the Court to appreciate the evidence on which reliance has been placed by the learned Public Prosecutor. 5. Aman Singh, according to the testimony of Dr. 5. Aman Singh, according to the testimony of Dr. Dalip Singh, P.W.9, who had the occasion to examine the victims on October 16, 1967, sustained only one injury : lacerated wound on the middle digit of the left middle finger on the palmer laterial and inner side 2" x 1/2" into bone deep with fracture of the middle phylanx of the left middle finger. 6. Hukam Singh sustained the following seven injuries:- (i) Lacerated wound 21/2" x 1/2" skin deep on the right side of the head 1" in front of vertex and 1" right to it. (ii) Lacerated wound 3/4" x 1/2" skin deep on the left parietal 2" in front of the vertex and 1" left to it. (iii) Abrasion learner in character and V shaped - its one limb was 1" and the other 3/4" on the right side of the head 21/2" above the right ear and half inch behind the perpendicular line drawn from the ear with inflamation 2" x 2". (iv) Leaner abrasion 1" on the right side of the fore-head. (v) Ecchymosis 2" x 1" on the right scapular region. (vi) Ecchymosis 21/2" x 1" on the back of the middle ⅓rd right arm. (vii) Ecchymosis 4" x 3/4" on the right side of the back in upper half. Nirbhey Singh got only four injuries which are as follows:- (i) Ecchymosis 3" x 1/2" on the right lateral side of the abdomen with abrasion 3/4" x 1/2". (ii) Ecchymosis 1/2" x 1/2" and 1/2" on the left delotoid area. (iii) Ecchymosis 21/2" x 1/2" on the right shoulder at the upper anterior part. (iv) Complete division of last digit of the right index finger, which is of a incised nature. Gajraj Singh also sustained the following four injuries:- (i) Lacerated wound 1" x 1/4" skin deep on the right side of the fore head 1/2" above the inner angle of the right eye brow with inflamation 21/2" x 2". (ii) Lacerated wound 1/2" x 1/4" skin deep on the left side of the head 11/2" in front of and 1" left to the midline. (iii) Inflamation 2" x 1" on the outer side of the left elbow. (iv) Lacerated wound 1/2" x 1/4" skin deep on the outer side of the middle ankle left index finger at its back part. (iii) Inflamation 2" x 1" on the outer side of the left elbow. (iv) Lacerated wound 1/2" x 1/4" skin deep on the outer side of the middle ankle left index finger at its back part. Umrao Singh got only injury: Ecchymosis 31/2" x 2" on the back of the left palm with abrasion 1/4" x 1/4". 7. Besides these five persons, three members of the accused party namely, Fateh Singh, Devi and Chakrapan also got injuries at the hands of the complainant party. Fateh Singh got gun-shot injury and as a result of which he died. Chakrapan also sustained gun-shot injury on his leg with the result that his leg was injured. Devi also got two injuries on his leg. 8. Learned Public Prosecutor candidly conceded that except Chakrapan and Umedi, it is difficult to point out any evidence which may go to involve other 19 respondents against whom the appeal has been preferred by the State. He therefore, confined his argument only in respect of Umedi and Chakrapan. 9. For involving Umedi, the reliance has been placed on the statements of Gajar Singh P.W.7 and Umrao Singh PW 6, Gajraj Singh has stated that he was beaten by Umedi and Ranchhor by their lathies. This statement is, no doubt, corroborated by Umrao Singh but Gajraj Singh's statement cannot be relied upon as he did not name Umedi in his previous statement when he was examined under section 161 of the Code of Criminal Procedure. This lacuna creates a doubt about the involvement of Umedi. It is an appeal against acquittal and, therefore, this Court will be slow to interfere with the finding of the trial court unless a fool proof case is made out against Umedi. In view of the infirmity pointed out above, we are not inclined to accept the argument of the learned Public Prosecutor that the prosecution has proved beyond all reasonable doubts, the involvement of Umedi in this incident. We regret, we cannot accept this submission of the learned Public Prosecutor and, therefore, the appeal against Umedi cannot be accepted. 10. Chakrapan is said to have inflicted lathi injury to Aman Singh. In this connection reference has been made to the deposition of Aman Singh PW 1 where he has stated that Fatau (meaning Fateh Singh) and Chakrapan had inflicted lathi blows on his head and back. 10. Chakrapan is said to have inflicted lathi injury to Aman Singh. In this connection reference has been made to the deposition of Aman Singh PW 1 where he has stated that Fatau (meaning Fateh Singh) and Chakrapan had inflicted lathi blows on his head and back. When we examine the injury report of Aman Singh we find that he did not get any injury either on his head or on his back. This statement of Aman Singh, therefore, does not find corroboration from the medical evidence. It is true that the presence of Chakrapan at the spot of incident cannot be disputed as he himself sustained gun shot injury on his thigh, but mere presence at the spot would not go to involve him in the act of beating specially when the learned Judge has refused to apply section 149 Indian Penal Code in the circumstances of this case. In these circumstances we do not find any life in the argument advanced by the learned Public Prosecutor against Chakrapan also. In this view of the matter, the appeal of the State against Chakrapan and 20 others DB Criminal Appeal No. 514 of 1972 is hereby dismissed. 11. Now we take up the appeal filed by the convicts. PW 1, Aman Singh has deposed that he had sustained a pharsa blow at the hands of Sijjeyram but this statement of the witness does not find any corroboration either from other circumstances of from medical evidence. Aman Singh received only one injury of blunt weapon which could not have been inflicted by Sijjeyram who, according to Aman Singh, was armed with pharsa. There is no other evidence against Sijjeyram for having participated in giving beating to the complainant party. The conviction of Sijjeyram under section 325 Indian Penal Code, therefore, cannot be sustained. 12. Bhagwan Singh, who has been convicted under section 325 Indian Penal Code, is alleged to have inflicted injuries to Umrao Singh. Unrao Singh has stated that he had received two injuries, one at the hand of Bhagwan Singh and the other at the hands of Bhogi. Umrao Singh, according to the Doctor, sustained only one injury which was ecchymosis 3" x 2" on the back of the left palm. Except Umrao Singh no body ascribes this act of beating Umrao Singh to Bhagwan Singh. Umrao Singh, according to the Doctor, sustained only one injury which was ecchymosis 3" x 2" on the back of the left palm. Except Umrao Singh no body ascribes this act of beating Umrao Singh to Bhagwan Singh. According to Umrao Singh, two persons gave him beating namely, Bhagwan Singh and Bhogi. Since he had received only one injury, it is difficult to accept the finding of the trial court that the author of that injury was none but Bhagwan Singh. In this view of the matter benefit of doubt shall have to be given to Bhagwan Singh. His conviction, therefore, cannot be upheld. 13. Devi and Chronji have been convicted for the offence under section 323 I.P.C. for inflicting injuries to Hukam Singh P.W. 4 According to the statement of this witness Chironji was armed with Pharsa and Devi had a lathi in his hand. He further states that he was beaten by Madan, Gayasi, Fatua, and Chakrapan also. Hukam Singh no doubt received as many seven by a sharn edged weapon. His statement, therefore, cannot be accepted in respect of Chironji who is alleged to have been armed with Pharsa. Regarding Devi the statement of Hukam Singh does not find corroboration from other independent sources & therefore, we find it difficult to record conviction of these two accused persons only on the strength of the solitary statement of Hukam Singh. We cannot forget that the parties in these cases have openly tried to over-implicate innocent persons and, therefore, great care shall have to be taken to evaluate the evidence produced by the prosecution. In these circumstances, the case of Devi and Chironji becomes doubtful and they are entitled to get the benefit of doubt. 14. Now remains the cases of Hakim and Ranchhor. Hakim is said to have inflicted a Pharsa blow on the hand of Nirbhey Singh. Nirbhey Singh has categorically stated that the author of this injury on the hand was none but Hakim. The medical evidence corroborates his statement because the injury No. 4 found on his hand is of incised nature. The last digit of the right index finger was completely cut. The learned Additional Sessions Judge has placed reliance on the testimony of Nirbhe Singh so far as the case of Hakim is concerned. The medical evidence corroborates his statement because the injury No. 4 found on his hand is of incised nature. The last digit of the right index finger was completely cut. The learned Additional Sessions Judge has placed reliance on the testimony of Nirbhe Singh so far as the case of Hakim is concerned. Learned counsel appearing on behalf of the accused-appellant's could not point out any reason for not placing reliance on the statement of Nirbhey Singh. Under these circumstances, it is difficult for us to disturb the conviction of Hakim who has been found guilty under section 326 I.P.C. and awarded two years rigorous imprisonment with a fine of Rs. 200/-. 15. Now remains the case of Ranchhor, P.W. 7 Gajraj Singh has categorically stated that he was given beating by Ranchhor. This witness has been cross examined at length but his testimony could not be demolished so far as the part played by Ranchhor is concerned. The learned trial Judge has accepted the deposition made by Gajraj Singh. The testimony of this witness who has sustained four injuries finds support from the medical evidence. We are, therefore, convinced that the case against Ranchhor has been proved beyond the realms of doubt by the prosecution. Ranchhor has been convicted under section 323 I.P.C. and he has been awarded one years rigorous imprisonment with a fine of Rs. 100/-. 16. For the reasons mentioned above, the appeal of Sijjeyram, Bhagwan Singh, Devi and Chironji is allowed and they are acquitted of the charges for which they have been convicted by the trial court. Their conviction and sentences are set aside. The conviction of Hakim and Ranchhor and the sentences awarded to them are, however, maintained. The appeal of Hakim and Ranchhor stands dismissed. As already stated above the appeal filed by the State of Rajasthan has no force and it is also dismissed. 17. Ranchhor and Hakim are on bail. They will surrender with a fortnight before the Chief judicial Magistrate, Bharatpur. If they fail to surrender within the specified time then action shall be taken by the Chief Judicial Magistrate to arrest them and send to jail to serve out the sentence up hold by this Court. The appellants namely, Sijjeyram, Bhagwan Singh, Devi and Chironji need not surrender to their bail bonds. *******