JUDGMENT 1. - Bherulal & five others have come up in appeal to this Court to challenge the correctness of the judgment of the learned Sessions Judge, Pratapgarh dated 30th June, 1971 where by the six appellants have been convicted under Section 147 and 325/149, Indian Penal Code and each one of them, was sentenced order the first count to rigorous imprisonment for one year and a fine of Rs. 100/- and under the second count two years, rigorous imprisonment and a fine of Rs. 200/-. It may be mentioned here that in all 14 persons, including the six appellants were commuted to the Court of Sessions to stand there trial for offences under Section 302/149 Indian Penal Code but out of them eight were acquitted of the charge under Section 302, IPC, and the six appellants were found guilty of offences as aforesaid 2. On 2nd of November, 1969, appellant Uda was trying to bring his cart to the village through the field of deceased Nainu, Nainu Ram, his wife Sabli and his son Bagda Ram were then working at their field. They obstructed Uda to bring the cart through their field whereupon, it is alleged that, Uda accused raised a cry attracting the villagers to the field of Nainu Ram. When Nainu Ram saw the villagers coming to his field armed with lathis. he along with his wife Sabli and son Bagda Ram slipped away from their field, and came to their house in the village. It said that all the villagers who were 23 in number, went to the house of Nainuram who was sitting in his Dhalia. Madho dragged Nainu Ram out of his Dhalia, and it is alleged that, all the villagers then belaboured him with lathis and sticks, Mst. Sabli, wife of the deceased and Bagda Ram, witnessed this incident. Uda Chokidar also came on the spot. He was asked to lodge the report of the incident at the police station Nimbahera. But it appears that Uda Ram did not go to the police station to report the matter immediately. However, Nainu Ram succumbed to the injuries during the night, and it was the next morning that Uda Chowkidar lodged the first information report at the police station Nimbahera Uda named 23 persons who belaboured the deceased. Out of these 23 persons one absconded. However, Nainu Ram succumbed to the injuries during the night, and it was the next morning that Uda Chowkidar lodged the first information report at the police station Nimbahera Uda named 23 persons who belaboured the deceased. Out of these 23 persons one absconded. The police after investigation put up a challan against 22 persons in the Court of Munsiff Magistrate, Nimbahera. The learned Magistrate after committal proceedings discharged 8 persons, and committed 14 persons to the Court of Sessions to stand to their trial under Section 302/149, & Section 147 Indian Penal Code 3. Except Mst. Sabli PW 3 and Bagda Ram PW 4 no body came forward to prove the prosecution story. Even Uda PW 2 who was a Chowkidar, and who was responsible for lodging the First Information Report turned hostile to the prosecution, and tried to take side with the defence. With the exception of a lathi Article 5 which was recovered at the instance of the appellant, Bheru, and which was found to be stained with human blood, there is no other circumstantial evidence to connect the accused persons with the crime. The learned Sessions Judge, therefore, had to place reliance on the oral testimony of the eyewitnesses, namely PW Sabli and PW 4 Bagda Ram. The learned Sessions judge, however, convicted only six persons, about whom, it was alleged that they were armed with lathis, and rest eight persons were ordered to be acquitted by him. 4. While considering the nature of the offences, the learned Judge observed that at it could not be established by the prosecution as to which of the accused was responsible for the injury which caused the death of the deceased, & he thought it proper to convict the accused appellants for an offence and Section 325 read with Section 149, Indian Penal Code, and also for offences under Section 147, 323 read with Section 149, IPC. 5. The learned counsel for the appellants argued that the testimony of these two eye-witnesses namely, the wife of the deceased Mst. Sabli and the son of the deceased Bagda Ram cannot be believed to maintain the conviction, as their statement are full of contradictions, and they are highly interested witnesses. Regarding the statement of Bagda Ram, it is also argued that he does not fully support the prosecution case. Sabli and the son of the deceased Bagda Ram cannot be believed to maintain the conviction, as their statement are full of contradictions, and they are highly interested witnesses. Regarding the statement of Bagda Ram, it is also argued that he does not fully support the prosecution case. But the learned Pubic Prosecutor urged that the statements of these witnesses can safely be relied upon as they have come out with a story which finds corroboration from the circumstances that have been brought on record, during the course of investigation. 6. The first contention of the learned counsel for the appellants is that the real 'Jhagra' started at the field of Nainu Ram. But the two eye-witnesses did not support that part of the story. I regret, I cannot accept this contention as no 'Marpeet' had taken place at the field of Nainu Ram, because, Nainu Ram, his wife, and his son Bagda Ram slipped away from the field, when they saw the villagers coming to their field after the cry was raised by accused Uda son of Gorilal, who was trying to take his cart through the field of Nainu Ram against his wishes. The statements of Madho Lal PW 15, who conducted the investigation at the initial stage shows that the blood stained earth was collected by him from the 'chowk' of the house of Nainu Ram, where the beating to Nainu Ram was given by his assailants. The collection of the blood stained earth from the 'chowk' fully corroborates the testimony of the two eye-witnesses that the incident had actually taken place in the 'chowk' of the house of Nainu Ram, and not in his field as suggested by the learned counsel for the appellant. 7. It is clear from the statement of PW 5 Dr. Hari Singh Moira that severe beating was given to the deceased which resulted in profuse bleeding, and it was under these circumstances that bloodstained earth could be found only where the victim was actually beaten. Besides the collection of the bloodstained earth, the clothes of the deceased were also found severed with blood, which show that beating was quite severe and Nainu Ram deceased sustained various injuries on his person. 8. The accused persons denied the charge, and pleaded that they have been involved falsely in the beating of the deceased. Besides the collection of the bloodstained earth, the clothes of the deceased were also found severed with blood, which show that beating was quite severe and Nainu Ram deceased sustained various injuries on his person. 8. The accused persons denied the charge, and pleaded that they have been involved falsely in the beating of the deceased. There is no suggestion in the cross-examination of the prosecution witnesses that there was any enmity between the complainant party and the accused party. The statements of PW3 and PW4 Sabli and Bagda Ram amply establish that Nainu Ram was helpless at the time when he was surrounded by the villagers, he was not in a position to protect himself when the mercyless beating was given to him Mst. Sabli, however, states that she tried to intervene and while doing so she also sustained injuries at the hands of the accused-appellants, but her injuries were neither noted by the investigating Officers, nor did she submit herself to medical examination. PW 4 Bagda Ram has, however, stated that he and his mother had seen the occurrence from some distance while hiding themselves. This version of Bagda Ram appears to be true that this witness had seen the incident while they were hiding themselves near the place of occurrence 9. The story, as given by PW 4 Bagda Ram appears to me to more truthful, because, none of these two eye-witness sustained any injury during the scuffle. Both Mst. Sabli and Bagda Ram did return from the field with Nainu Ram, and therefore, they could not have escaped unhurt if they had not hidden themselves behind the heap of grain at the time when Nainu Ram was belaboured by his assailants. 10. From the perusal of the testimony of the two eye-witnesses there is no room for doubt that the villagers came to the house of Nainu Ram and belaboured him with the stick; The question now remains to be decided is whether the appellants were amongst the crowd who came to Nainu Ram's house and assaulted him. Both Sabli and Bagda Ram have named the presence of Bherulal, Handa Uda, Chowthmal and Khema. The name of these six persons also find place in the First Information Report, which was lodged by PW 1 Uda at the instance of Mst. Sabli. Both Sabli and Bagda Ram have named the presence of Bherulal, Handa Uda, Chowthmal and Khema. The name of these six persons also find place in the First Information Report, which was lodged by PW 1 Uda at the instance of Mst. Sabli. It is true that there is no other circumstantial evidence to establish the presence of these accused appellants on the spot of occurrence. except one circumstance, namely the recovery of lathi Article 5 at the instance of Bherulal, which was found to be stained with human blood But I find no infirmity in the testimony of the two eye-witnesses so as to disbelieve them about the presence of the appellants at the place of occurrence. The participation of the appellants in the act of assaulting Nainu Ram is proved by these two eye-witnesses and they cannot escape from their liability of being members of the or unlawful assembly that went to the house of Nainu Ram with an object to beat him. 11. The Learned trial judge has convicted all the six appellants for the offence under Section 147, Indian Penal Code This conviction cannot be challenged because of the presence of the six appellants at the spot of occurrence. 12. The conviction under Section 325/149, Indian Penal Code also cannot be challenged, because, Nainu Ram sustained grievous as will as simple injuries during this incident at the hands of the assailants. It is not necessary for the prosecution in such cases to establish whether each one of the accused did or did not cause any injury on the person of the deceased. When the injuries were sustained by the deceased at the hands of the assailants who constituted an unlawful assembly then other members of that assembly are equally liable for the offence committed during the incident. 13. Before parting with case, I would like to mention that the learned Trial Judge has correctly recorded the finding about the nature of the offence committed by the unlawful assembly. It was a clear case falling within the purview of Section 302 read with Section 149. Indian Penal Code But since the State has not come in appeal this Court cannot disturb the conviction under Section 325/149, Indian Penal Code as recorded by the trial Court 14. The result is that the appeal fails, and it is hereby dismissed. It was a clear case falling within the purview of Section 302 read with Section 149. Indian Penal Code But since the State has not come in appeal this Court cannot disturb the conviction under Section 325/149, Indian Penal Code as recorded by the trial Court 14. The result is that the appeal fails, and it is hereby dismissed. All the appellants are on bail; they are not present today in the Court. They shall surrender within a fortnight to serve out the sentences awarded to them by the trial Court, In case, they do not surrender instructions be issued to the Chief Judicial Magistrate. Chitorgarh to get all these appellants arrested and sent to jail to serve out the sentences. *******