JUDGMENT 1. - This is an appeal filed by Mahendra Singh and Mala Singh against the judgement of the learned Additional Sessions Judge, Alwar, dated 26th August, 1972 by which Mahendra Singh was convicted under sections 379, 148, 326, 324 and 325/323 read with S. 149, I.P.C. and sentenced to undergo rigorous imprisonment for six months under S. 379, to undergo rigorous imprisonment for one year under S. 148, to suffer rigorous imprisonment for three years under section 326 and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo rigorous imprisonment for six months, to undergo rigorous imprisonment for one year as under S. 324, I.P.C. to suffer rigorous imprisonment for six months, under S. 325 read with S. 149, and to undergo rigorous imprisonment for one month under S. 325 read with S. 149, I.P.C. All the substantive sentences of imprisonment were ordered to run concurrently. Likewise Mala Singh was convicted under sections 379, 147, 323, 326 read with S. 149, 325 read with S. 149, and 324 read with S. 149, I.P.C. and sentenced to undergo rigorous imprisonment for six months on the first count on the second count to undergo rigorous imprisonment for six months, on the third to suffer rigorous imprisonment for one month, on the fourth to undergo rigorous imprisonment for two years and to pay a fine of Rs. 75/-; in default of payment of fine to further suffer rigorous imprisonment for four months, on the fifth count undergo rigorous imprisonment for a term of six months and the sixth count to suffer rigorous imprisonment for six months. All the substantive sentences of imprisonment were, however, ordered to run concurrently. It will not be out of place to mention that along with these two appellants Kartar Singh, Karam Singh, Bhikhan, Nabila and Mangli also were convicted under section 147, 323, 324 read with S. 149, S. 325 read with S. 149 and S. 326 read with S. 149, I.P.C. but instead of being sentenced to imprisonment, each of them was directed to be released on probation upon furnishing a personal bond in the sum of Rs. 2000/- together with one surety in the like amount in order to appear and receive sentence when ever called upon to do so during the period of two years and meantime to be of good behaviour and to keep the peace. 2000/- together with one surety in the like amount in order to appear and receive sentence when ever called upon to do so during the period of two years and meantime to be of good behaviour and to keep the peace. Each of them was further directed to pay Rs. 100/-, by way of compensation, out of which a sum of Rs. 50/-, was ordered to be paid to Indraj and Rs. 225/-, were ordered to be paid to Sohan and Umrao, each. These five co-accused, who have been released on probation of good conduct have not come up in appeal against their convictions. 2. The incident that led to the prosecution of the two appellants and their associates may be shortly described as follows: Indraj son of Roop Ram, resident of Khanpur lodged a first information report with the Station House Officer police station, Tapukra, on 1st April, 1971 at 6.15 P.M. It was alleged in the report that on 31st March, 1971, at about 9 p.m. he along with his elder brother Umrao and his cousin Sohan Lal, was keeping watch on his gram crops which were lying cut in a heap in his field known as 'Muliwala' situated at the outskirts of village Udaipur. All of a sudden, he and his brother heard a sound produced by movement of some persons. On rearing the sound they left smoking 'Hukka and rushed towards the place wherefrom the sound was coming. They saw Mahendra Singh and Mala Singh appellants tying bundles of gram crops in the moon light. Mahendra Singh had a 'Pharsi' with him while Mala Singh had a lathi in his possession. Indraj and his brother asked both the appellants why they were committing theft of their gram crops. The appellants thereupon raised a hue and cry for help, which attracted Bhikhan, Mangli, Nabila, Karam Singh and Kartar Singh to that place. All these persons had come there having armed themselves with lathis. They asked Mahendra Singh what had happened. Thereupon Mahendra Singh and Mala Singh replied that Indraj, Umrao and Sohan Lal had levelled a charge of theft against them and that they had come to give them a beating. On hearing this, Bhikhan got enraged and instigated his companions including the appellants to beat Indraj and his brothers. They asked Mahendra Singh what had happened. Thereupon Mahendra Singh and Mala Singh replied that Indraj, Umrao and Sohan Lal had levelled a charge of theft against them and that they had come to give them a beating. On hearing this, Bhikhan got enraged and instigated his companions including the appellants to beat Indraj and his brothers. At his instigation, the appellants & all their associates made a concerted attack on Umrao & Sohan Lal with Lathies & Pharsis. Bhikhan inflicted a lathi blow on the person of Indraj, who ran away from there to save himself from being further beaten. Mahendra Singh appellant struck two blows on the body of Umrao, one fell on his head & another hit him on his knees. Mala Singh also inflicted a lathi blow on the head of Umrao, while Kartar Singh, Nabila, Bhikhan and Mangli beat him with lathis. Mahendra Singh inflicted a blow with a 'Pharsi' on the right leg of Sohan Lal. He struck another blow on the left side of the head of Sohan with the 'Pharsi' while the other accused persons gave him lathi blows. This incident was eye-witnessed by Moji and Arjun, who were present near the place of occurrence. Indraj also claimed to have seen the incident from some distance where he had concealed himself behind a shrub. As a result of the beating, Umrao and Sohan fell on the ground. Thereafter the accused persons disappeared from the place of occurrence treating Umrao and Sohan to be dead. After the accused had left, Indraj came out of the hiding place and informed Chander and Bhagwan about the incident. A bullock cart was brought to the place of occurrence and the injured were removed to Tapukra, where the first information report was made to the police. During the course of incident the 'Pharsi' of Mahendra Singh was broken. Its blade was lying there. It was picked up by Indraj and produced before the police, who took it into its possession : vide memo Ex. P.3. 3. The Station House Officer sent both the injured for medical examination. They were examined by Dr. Bhag Mal Verma, P.W. 7, on 1.4.71. The Doctor found as many as 12 injuries on the body of Sohan. The injured was advised X-ray of the right forearm from elbow joint downwards for suspected fracture. On X-ray examination Dr. D.R. Sharma. P.3. 3. The Station House Officer sent both the injured for medical examination. They were examined by Dr. Bhag Mal Verma, P.W. 7, on 1.4.71. The Doctor found as many as 12 injuries on the body of Sohan. The injured was advised X-ray of the right forearm from elbow joint downwards for suspected fracture. On X-ray examination Dr. D.R. Sharma. P.W. 6 found fracture of the lower part of Ulna of Sohan. Dr. Bhagmal Verma also found 17 injuries on the person of Umrao, out of which the following injuries were grievous - 5. fracture of the compound right maxillery bone; 17. cutting of lower end of right femor 3"x3" cut bone protruding one of the right knee joint". The Station House Officer conducted usual investigation into the case and after collecting necessary evidence submitted a charge-sheet against all the 7 accused in the court of the Munsiff Magistrate, Kishangarh Bas. The learned Magistrate conducted an inquiry, preparatory to commitment, and upon finding a prime facie case against all the 7 accused committed them for trial to the court of the Sessions Judge, Alwar, under section 147, 148, 379 read with S. 149, I.P.C. 4. After commitment, the learned Additional Sessions Judge, transferred this case to the court of the Additional Sessions Judge, Alwar, who tried both the appellants along with their companions and found each of them guilty for the offences mentioned above. Hence this appeal. 5. I have gone through the record and heard arguments at length. It has been contended before me by the learned counsel appearing on behalf of the appellants that the prosecution has utterly failed in bringing guilt home to both the appellants beyond any shadow of reasonable doubt and that the trial court committed an error in placing reliance on the testimony of Arjun and Moji, prosecution witnesses, although they were not present at the time of occurence. The learned Deputy Government Advocate on the other hand urged that Arjun (PW 1) and Moji (PW 7) were two independent witnesses, who had eye-witnessed the whole of the occurrence from close quarters and whose testimony had not been shaken at all in cross examination. I have considered the rival contentions. In my opinion, the trial court has rightly believed the evidence of Arjun and Moji. I have considered the rival contentions. In my opinion, the trial court has rightly believed the evidence of Arjun and Moji. Moji, PW 7 stated on oath that he and his partner Arjun were taking care of their mustard seed crop in their field immediately prior to the occurrence. They heard cries of Indraj, Umrao, and Sohan, who were telling why their gram crops were being tied in a buddle. On hearing their cries, Moji and Arjun rushed to the field of Indraj. Moji saw Mahendra Singh and Mala Singh appellant quarrelling with Indraj, Sohan and Umrao over a bundle of gram crops. Meanwhile at the call of Mahendra Singh, and Mala Singh, he saw Kartar Singh, Karam Singh, Bhikhan, Nabila, and Mangli coming to that place having armed themselves with lathis. Upon their arrival, Mahendra Singh appellant told them that Indraj and his brother had levelled charges of theft against him and Mala Singh, Bhikhan, there upon, instigated his companions and the appellants to beat Indraj and his brothers. He inflicted a lathi blow on the body of Indraj. Indraj ran awayfrom there & hid himself behind a bush. Moji then saw Mahendra Singh inflicting two blows on the body of Umrao with a 'Pharsi'. The first blow fell on the head of Umrao & the second blow hit him on his & knees Moji then saw Mahendra Singh inflicting 'Pharsi' blows on the shoulder buttock of Sohan. Thereafter he saw all the accused persons inflicting blows on the body of Umrao and Sohan. He, however, could not say which particular accused dealt a blow on which particular of the body of the two injured persons. The evidence of Mohi is fully corroborated by the testimony of Arjun, PW 8, in all its essential details. The main ground on which the evidence of Moji and Arjun has been assailed before me is that these witnesses have falsely introduced themselves as eye witnesses to the occurrence, because they had no field adjoining to the field of Indraj. The above contention has no force, because Moji stated in his deposition that two small field measuring 2 Bighas each lie between his field and the field of Indraj, in which the occurrence took place. The above contention has no force, because Moji stated in his deposition that two small field measuring 2 Bighas each lie between his field and the field of Indraj, in which the occurrence took place. It is no doubt true that in the site-plan the field of Moji and Arjun has not been shown adjoining to the field of Indraj, wherein the incident took place, but as the incident occurred in the night at about 9 p.m. Moji and Arjun could hear the cries of Indraj, Sohan and Umrao in their field, which lay at a distance, of only 4 Bighas from the place of occurrence. Arjun, PW 8, also stated that his field lay towards the north side of the field of Indraj in which the incident had occurred. There is no reason to disbelieve the evidence of Moji and Arjun on this point, especially when it has not been shaken at all in cross-examination. 6. Another ground on which their evidence is assailed before me is that Moji and Arjun did not come to the rescue of Indraj and his brother, although they claimed to have seen them being beaten severely by the accused persons. To my mind, their evidence is not liable to be rejected on this score, because out of fear they stood at some distance from the place of occurrence. Moji, PW 7, however, claimed to have asked the assailants not to beat Sohan and Umrao. The explanation given out by Moji and Arjun for not coming to the rescue of the victims of the assult appears to be convincing, because the assailants were armed with lathis and 'Pharsis' and were beating Umrao and Sohan mercilessly. In these circumstances, Moji and Arjun being unarmed naturally apprehended that if they tried to rescue the injured, they also would be beaten severely by the assailants, who were 7 in number and armed with 'Pharsis' and lathis. The learned counsel for the appellants further contended that Moji and Arjun were not disinterested witnesses as they had given evidence in some cases against the accused in favour of Indraj and his brothers. He invited my attention to the cross-examination of Moji PW 7, wherein he admitted that he had appeared in the court of the Tehsildar, Tajara, as a witness for Indraj and Umrao in a case against Kaloo Singh son of Karam Singh accused. He invited my attention to the cross-examination of Moji PW 7, wherein he admitted that he had appeared in the court of the Tehsildar, Tajara, as a witness for Indraj and Umrao in a case against Kaloo Singh son of Karam Singh accused. He further admitted that he gave evidence in a case initiated against Karam Singh's son under S. 107, Cr. P.C. in the court of the Sub-Divisional Magistrate, Kishangarh Bas. Similarly, Arjun PW 8 also admitted in his cross-examination that he had given evidence in favour of Indraj in a case between him and Kaloo Singh. The evidence of Moji and Arjun cannot be brushed aside, merely because they had appeared as witnesses for Indraj in some cases against Kaloo Singh son of Karam Singh. There is no material on the record to show that these witnesses bore ill-will or grudge against the appellants and their companions on any score. It appears from the record that this land was purchased by Indraj from Karam Singh about 8 years prior to the occurrence and that Karam Singh's son disputed the sale made by his father. Moji and Arjun on account of having fields in neighbourhood of the land in dispute were called upon to give evidence in the cases arising out of the dispute between Kaloo Singh and Indraj over this piece of land. It does not transpire from this evidence that there was enmity or bad blood between them and the accused persons prior to the occurrence.The names of Moji and Arjun as eye-witnesses to the occurrence had been mentioned in the first information report by Indraj. There is no reason to hold that these two witnesses later on have been falsely introduced as eye-witnesses to support the prosecution case. 7. Further, it has been streneously urged before me on behalf of the appellants that the evidence of Moji and Arjun stands discredited on crucial points by their former statements before the police and that it is entitled to no weight. I have carefully perused the statements of these two witnesses. There are no contradictions on material points between their statements before the police and before the trial court. The trial court, after scrutinising their evidence with care and caution, has rightly placed reliance, on it. 8. Apart from their evidence here are testimonies of Sohan and Umrao who had been beaten by the appellants and their companions. There are no contradictions on material points between their statements before the police and before the trial court. The trial court, after scrutinising their evidence with care and caution, has rightly placed reliance, on it. 8. Apart from their evidence here are testimonies of Sohan and Umrao who had been beaten by the appellants and their companions. Both Umrao & Sohan have implicated all the 7 accused including both the appellants in their commission of the crime. According to their versions, Mahendra Singh appellant struck a blow on the head of Umrao with a 'Pharsi' and thereafter gave him another blow which fell on his knee. Mala Singh appellant inflicted lathi blows on his head. The other accused hit him with lathis. Similarly Mahendra Singh appellant struck blows with a 'Pharsi' on the body of Sohan & Mala Singh beat him with a lathi. Thereafter all the remaining accused showered lathi blows on him. The evidence of Sohan and Umrao injured also does not suffer from any infirmity. Nothing has been elicited from their cross examination, which may go to show that they had made improvements on the prosecution story or had falsely implicated both the appellants and their companions in the commission of the crime. The learned counsel for the appellants tried to assail their evidence on the ground that they could not say in their depositions which particular accused had struck blow on which particular of their bodies. When several persons make an attack on a person, it is difficult for the victim of assault to notice and remember which particular assailant had caused blow on which particular part of his body. The evidence of these two injured cannot be discarded merely because they have failed to give out such minute details. 9. It was also vehemently argued before me that the field in which the occurrence took place had been in peaceful possession of Karam Singh's son Kaloo Singh and that he had sown gram crops in it and, therefore, even if the two appellants had gone there to bring gram crops, they could not be said to have committed any offence of theft. The above contention has no force, because there is no evidence from the side of the accused persons to show that the land had been in peaceful possession of Karam Singh's son prior to the occcurrence and that Karam Singh's son had sown gram crops in it. Defence witnesses, namely, Banwari, DW 1, Meokhan, DW 2 and Zumma DW3, have not said a single word about the possession of Karam Singh's son over this piece of land. On the other hand, it is proved by the evidence of Indraj, Sohan, Umrao, Moji, Arjun and Sheocharan that the land in which the occurrence took place belonged to Indraj and his brothers and that they had sown and cut gram crops is it. Amir Singh PW 4, no doubt stated in his deposition that Karam Singh's son Kaloo Singh had sown gram crops in the field wherein the occurrence took place, but the evidence of this witness is not reliable. He was declared hostile by the Public Prosecutor. When corss-examined by prosecution, he pleaded ignorance about the sale of this land to Indraj, Umrao and Sohan by Karam Singh. It appears from his evidence that he tried to favour the accused persons by stating in his cross-examination that the land in which the occurrence took place, was cultivated by Karam Singh's son Kaloo Singh. Curiously enough, Kaloo Singh has not been examined by the defence to show that in reality this land was cultivated by him prior to the occurrence. The learned counsel appearing on behalf of this appellants vehemently argued that Umrao PW 5 was confronted with and contradicted by portion C to D of his statement, Ex D.2 which he gave before the committing court and where in he admitted that Karam Singh's son had sown gram crops. I have carefully gone through the portion C to D of Umrao's statement Ex D.2, with which he was confronted at the time of his giving out the statement at the trial. It is no where in this portion that Karam Singh's son had sown gram crops in that piece of the land in which the occurrence had taken place. Umrao was merely questioned whether Karam Singh's son had sown gram crops. To this vague question, he replied in the affirmative before the committing court. It is no where in this portion that Karam Singh's son had sown gram crops in that piece of the land in which the occurrence had taken place. Umrao was merely questioned whether Karam Singh's son had sown gram crops. To this vague question, he replied in the affirmative before the committing court. In his cross examination before the committing court he was not specifically questioned whether Karam Singh's son had sown gram crops in the land in which the incident occurred. Consequently, there is no reliable material on the record to show that the two appellant had gone to the field for bringing gram crops belonging to Kaloo Singh. The contention of the learned counsel for the appellants that no offence of theft had been committed is not acceptable, because there is reliable evidence from the side of the prosecution that Mahendra Singh and Mala Singh were seen tying bundles containing gram crops belonging to Indraj, Sohan and his brothers. As soon as they removed the gram crops from the heap and put them in bundle, without the consent of Indraj and his brothers, the offence of theft was complete. It is immaterial whether or not they succeeded in carrying away the bundles containing the stolen property from the field. The learned counsel further argued that the prosecution could not produce Sardara, Jagdeo, Hussain and Med Khan, witnesses, who were guarding their crops in the neighbouring fields & that adverse inference can legitimately be drawn against the prosecution for its failure to be drawn under illustration (g) to S. 114 of the Evidence Act against the prosecution for non-production of these material witnesses. In support of his above proposition, he invited my attention to the statement of Umrao Ex. D.2 which he gave before the committing court and wherein he stated that Jagdeo, Hussain and Sardara were guarding their fields in the night in which the occurrence had taken place. When Umrao was confronted and contradicted by the portion A to B of his statement Ex. D.2, he stated in his deposition at the trial that he had not given out such a statement. No adverse inference produce these witnesses, because Umrao nowhere admitted in his deposition that these persons had eye-witnessed the occurrence. When Umrao was confronted and contradicted by the portion A to B of his statement Ex. D.2, he stated in his deposition at the trial that he had not given out such a statement. No adverse inference produce these witnesses, because Umrao nowhere admitted in his deposition that these persons had eye-witnessed the occurrence. They might be present in their fields at the time of occurrence but unless it is is established that they had come to the spot, and had seen the commission of the crime, it cannot be safely held that they were eye-witnesses and that the prosecution wilfully suppressed their evidence. From a careful review of the entire evidence, I have no hesitation in holding that the trial court rightly convicted Mahendra Singh under sections 379, 148, 326, 324 and 325 read with S. 149 and 323 read with S. 149, IPC and Mala Singh under sections 379, 147, 323, 326 read with S. 149, S. 325 read with S. 149 and S. 324 read with S. 149, IPC. No interference with the findings of the lower court as to their guilt is called for. 10. As regards sentence, it may be observed that it is not excessive in the circumstances of the case. The learned counsel appearing on behalf of Mala Singh urged before me that Mala Singh is an old man of about 80 years of age and that he ought to have been treated leniently in matter of sentence. The above contention is not acceptable, because Mala Singh has himself given out his age as 55 years in his statement Ex. P.22 recorded under S. 342, Cr. P.C. by the committing court. The committing court also estimated his age to be 55 years. 11. The result is that this appeal fails and is hereby dismissed. Mala Singh is on bail. He shall surrender to his bail bonds. The District Magistrate, Alwar, is directed to get him arrested and sent to jail for serving out the sentences awarded to him by the trial court and confirmed by this Court. Mahendra Singh is already in jail. *******