JUDGMENT 1. - This is an appeal by the accused-appellants against the judgement of the learned Additional Sessions Judge, Alwer dated 2.9.1971, whereby the appellants were convicted under Section 147 and to two years rigorous imprisonment and under Section 323, 325/149, Indian Penal Code to seven years rigorous imprisonment and a fine of Rs. 100/- each, and in default of payment of fine to six months further rigorous imprisonment. 2. The facts of the prosecution case, in brief, are that on 14.11.1970 at about 12 noon, Kapura PW/1 was watching his fields which are situated in village Bhalesar. In a field near by his elder brother Rehman & his wife Mst. Mohamadi were cutting the gram crop. It is alleged that the accused Nawasi, Lila, Kamal, Ledar Saphat, Maluk Singh, Baddal, Munshi, Zakaria and Salim drove their cattle in the field of Rehman. On an objection being raised by Rehman, and on his effort being made to drive back the cattle, these accused persons asked him to as to why he has taken a field near their fields. The accused thereafter threatened to destroy the crops. All of a sudden, Salim caught hold of Rehman, and remaining accused persons stated giving lathi belows on his head, as a result of which Rehman fell down. Thereafter, Salim felt whether Rehman was still breathing and on his so saying that Rehman was still alive, Salim Kamal and Laddar gave further lathi below to Rehman Kapura and Mohamadi wanted to rescue Rehman, but they were also beaten in turn Zakariya and Munishi are said to have beaten Kapura resulting in injuries in his right hand, Maluk Singh Saphat and Baddal also beat Kapura. Kapura then went to the Police Station, Tanukara, and filed First Information Report Ex. P/1. Chandra, Nasiba and Mohamadi brought Rehman to the Police Station in a bullock cart, Rehman was then taken to Tijara as the Doctor has not available at Tapukara, and as his condition was serious, Dr. Mahesh Chandra Sharma of Tajara examined Rehman and Kapura. Dr. Mahesh Chandra Sharma is reported to have advise at that Rehman be taken to the hospital, as his condition was serious. At about 11.30 a.m. on 15.11.1970 Rehman was admitted in the General Hospital at Alwar, where he was examined by Dr. D.B. Chaturvedi. On the same day, at about 5.45 p.m. Rehman died Dr. Dr. Mahesh Chandra Sharma is reported to have advise at that Rehman be taken to the hospital, as his condition was serious. At about 11.30 a.m. on 15.11.1970 Rehman was admitted in the General Hospital at Alwar, where he was examined by Dr. D.B. Chaturvedi. On the same day, at about 5.45 p.m. Rehman died Dr. D.B. Chaturvedi preformed the post-mortem examination on 16.11.1970. 3. SHO, Gyan Prakash PW/10 registered a case on the basis of Ex.P/1. The investigation was latter on handed over to Om Parkash PW/9 Salim accused could not be apprehended, and therefore, the remaining nine accused were challaned in the Court of Munsiff Magistrate, Kishangarhbas, who in turn committed them to face trial for the offences under Section 302, 323, 325, 147 and 149, Indian Penal Code. The learned Additional Sessions Judge amended the charges on 24.5.1971 under Section 147/302/149, 323, Indian Penal Code. The accused pleaded not guilty and claimed to be tried. 4. On behalf of the accused appellants, it has been contended that the prosecution has failed to bring the guilty home to the accused persons under any of these charges framed against them. It was further contended that there were three alleged eye witnesses, viz. Nasiba PW/3, Yasin PW/4, and Palatu PW/6. It was contended that Palatu PW/6 was declared hostile. The version out forth, it was contended by Kapura PW/1, and the other eye witnesses Yasin PW/4 were contradictory in character, and not capable of being reconciled. It was further contended that Mohamadi PW/2 and Nasiba PW/3 have been held by the learned Additional Sessions Judge to be not worthy of credence. It was also contended that Zakariya and Mawasiya have already been acquitted by the learned Additional Sessions Judge, and that the State has not filed any appeal against their acquittal. It was also contended that from the evidence on record, the provisions of Section 147 and 149 Indian Penal Code cannot be attracted, and that under such circumstances each of the accused appellant shall have to be held responsible for his own individual act. it was also contended that if the truth and the falsehood in this particular case cannot be separated, then under such circumstances, the entire prosecution story deserves to be thrown out. Reliance was placed on Balaka Singh v. State of Punjab, AIR 1975 SC 1962 . it was also contended that if the truth and the falsehood in this particular case cannot be separated, then under such circumstances, the entire prosecution story deserves to be thrown out. Reliance was placed on Balaka Singh v. State of Punjab, AIR 1975 SC 1962 . It was also consolidated that consolidated sentence under section 323 and 325, Indian Penal Code has been passed by the learned Additional Sessions Judge which is not in conformity with law. It was also contended that if any of the accused appellants is found guilty, then the benefit of the Probation of Offenders Act may be extended to him. 5. On behalf of the State, it was contended that there is ample evidence for bringing the guilt home to the accused both with regard to causing injuries to Rehman as a result of which he died, and also to Kapura. It was also contended that the statements of Kapura PW/1 and Yasin PW/4 are worthy of being reconciled, and that there is no legal bar in relying on the part of the evidence of Kapura and part of the evidence of Yasin. It was also contended that there is no justification in not relying the statement of Mohamadi PW/2 and Nasiba PW/3. It was also contended that Kapura is the injured person, and greater reliance should be placed on his statement. It was also contended that looking to the facts and circumstances of the case the benefit of the Probation of Offenders Act should not be given to any of the accused appellant. 6. The respective contentions of the learned counsel for the accused, appellants and the learned Public Prosecutor have been considered, and the record of the case carefully perused. PW/1 Kapura is the person who had lodged the First Information Report Ex.P/1. He claims to be an eye witness, and also one who has sustained injuries while attempting to rescue his elder brother Rehman. PW/7 Mahesh Chandra examined Kapura PW/1 on 15.11.1970, and found the following injuries on his person:- 1. Lacerated wound 1/2" x 1/4" x 1/4" middle of the index finger longitudinally. 2. Fracture by dislocation of first matacarpal bone of index finger. 3. Lacerated wound 1/2" x 11/4" on the root of the palmer aspect of right thumb. 4. Lacerated wound 1/2" x 11/4" on the dorsum of the right fore arm. 5. Lacerated wound 1/2" x 1/4" x 1/4" middle of the index finger longitudinally. 2. Fracture by dislocation of first matacarpal bone of index finger. 3. Lacerated wound 1/2" x 11/4" on the root of the palmer aspect of right thumb. 4. Lacerated wound 1/2" x 11/4" on the dorsum of the right fore arm. 5. Scratches 2" x 11/4" superficial on the dorsum of the right fore arm. 6. Bruise 2" x 1/2" superficial on the paterior aspect of the left shoulder. 7. These injuries were said to be caused within 12 to 24 hours, and were supposed to be caused by blunt weapon. Injury No. 2 was a grievous one, while the rest of the injuries were simple in character. 8. In Ex.P/1 Kapura has not mentioned the names of Mohamadi, Nasiba and Palatu PW/1 Kapura has stated that the accused persons drove their cattle in the fields of Rehman and that Rehman tried to drive away the cattle Salim caught hold of him, and the remaining persons gave him lathi blows on his head, as a result of which Rehman fell down Salim then felt his breath, and found him still alive. Salim, Kamal and Laddar then gave him lathi blows. The learned Additional Sessions Judge having considered the statement of Kapura PW/1 in berails came to the conclusion that the statement of Kapura does not inspire the confidence of the court. 9. PW/2 Mohamadi is the widow of Rehman. She is said to have received three of four injuries in a bid to rescue her husband. Mst. Mohamadi was not got magically examined by the Doctor, as her name was not mentioned by Kapura PW/1 in the First Information Report. The learned Additional Sessions Judge, however held that a good deal of cloud of doubt regarding the veracity of her claim to be present at the scene of occurrence is caused. 10. Nasiba PW/3 is a close relation of Rehman. He was also present at the site, though, he had no field of his own nearby. The learned Additional Sessions Judge held that his presence at the spot is extremely doubtful. He further held that the statement of Nasiba that he has seen the occurrence, does not appear to be trace-worthy Nasiba has further admitted that he did not attend to Rehman and went away leaving him on the spot. The learned Additional Sessions Judge held that his presence at the spot is extremely doubtful. He further held that the statement of Nasiba that he has seen the occurrence, does not appear to be trace-worthy Nasiba has further admitted that he did not attend to Rehman and went away leaving him on the spot. He has also stated that he had not required as to why the quarrel took place. According to the learned Additional Sessions Judge the entire conduct of this witness is incompatible with the claim of his presence on the sport. 11. PW/4 Yasin is the other eye witness of the occurrence. His name has been mentioned in the First Information Report, through, the statement of Mohamadi and Nasiba go to show that Yasin was not present yet it is difficult to believe that Yasin's name was given in the first Information Report incorrectly. Yasin has stated that when he reached the scene of occurrence, he saw Rehman attacking Kapura with a lathi at which Salim caught hold of Rehman and threw him down. Thereafter Baddal and Zikaria each gave two lathi blows on the head of Rehman. Thereafter, Baddal, Zikariya and Salim ran away to different places in the same field where Kapura was trying to drive away her cattle. These people started beating Kapura, at which the witness intervened, & and the accused ran away. 12. PW/5 Rehman is only a formal witness. PW/6 Palatu has been declared hostile. 13. The result is that the basic statement which deserve to be considered are the statements of PW/1 Kapura & PW/4 Yasin for causing the injuries to Rehman and Kapura. It appears worthwhile that the injuries caused to each of these two persons are taken separately and dealt with accordingly. Accordingly to PW/1 Kapura, Salim who has not been apprehended, caught hold of Rehman and one lathi stroke was each dealt by on the head of Rehman by Lila, Saphat & Munshi and two lathi blows by Laddar. Therefore, Salim felt his breath and found him alive. Then Salim, Laddar and Kamal gave one lathi blow each on the head of Rehman. 14. As against this, PW/4 Yasin has stated that two lathi stroken on the head of Rehman were dealt each by Zakariya and Baddal. Dr. Therefore, Salim felt his breath and found him alive. Then Salim, Laddar and Kamal gave one lathi blow each on the head of Rehman. 14. As against this, PW/4 Yasin has stated that two lathi stroken on the head of Rehman were dealt each by Zakariya and Baddal. Dr. D.B. Chaturvedi, who examined Rehman found the following external injuries:- "A swelling on and around the upper left eye in an area of 2" x 2" with a haemotoma on frontal region of the skull measuring 61/4" x 3". 15. There was not external bleeding. On internal examination, the following injuries were found:- 1. A haemotoma of size 61/2" x 3" just below the scalp and over the scalps bone in the front area. 2. Multiple communited fractures of the skull bone in the frontal area were present, the fracture being 4" long within sides cracks. 3. Extradural haemotoma 31/4" x 21/2" below the fracture was detected. 4. A subdural haemotoma 21/2" x 2" below corresponding side of frontal bone was also found. 16. In the opinion of this witness, the injuries on the head of Rehman were sufficient to cause death in the ordinary course of nature. Dr. Chaturvedi stated that the injuries can be result of one or two blow; but in case, if they were two, the size of the blows must have been very near to each other. The multiple blows with the same force and velocity and impetus would have increased the size of the fracture & would have given additional injuries also, but if these were of different velocities and impetus, the size can remain un-effected. 17. The statement of Kapura, therefore, does not find support from the medical evidence of Dr. Chaturvedi. The statement of Yasin that only two lathi blows each by zakariya and Baddal were inflicted appears to be more in conformity with the medical evidence. Zakariya has been acquitted by the learned Additional Sessions Judge and as there is no State appeal against his acquittal the evidence against Zakariya is of no avail at the moment. If the statement of Kapura is to be believed, then Rehman ought to have received a series of injuries on his head, PW/1 Kapura has not mentioned the name of Baddal either in the First Information Report Ex. If the statement of Kapura is to be believed, then Rehman ought to have received a series of injuries on his head, PW/1 Kapura has not mentioned the name of Baddal either in the First Information Report Ex. P/1 or in his statement, as a person who had given lathi stroke on the head of Rehman. The result is that the Court is left only with 2 contradictory statements of Kapura PW/1 implicating Saphat, Munshi and Salim as having giving lathi blows on the head of Rehman. Yasin has stated that two lathi blows on the head of Rehman were given by each Zakariya and Baddal. On the basis of these contradictory statement of PW/1 Kapura and PW/4 Yasin the conviction of any of these persons for causing injuries to Rehman cannot be sustained, especially in view of them medical evidence on record. As a result of this, all the accused appellants are given the benefit of doubt so far as their guilt is concerned with regard to causing injuries to the deceased Rehman. 18. So far as the the question of causing injuries to Kapura is concerned the statements Kapura of PW/1 & Yasin PW/4 have been taken into consideration. PW/1 Kapura has stated that Zakariya dealt a lathi blow on the right hand thumb and Munshi caused injuries on the right hand fore finger. He has further stated that Mulak Singh, Lila, Sarphat, Zakariya and Baddal then gave him lathi strokes to Kapura. PW/4 Yasin has stated that Baddal, Zakariya, Kamal, Maluk Singh, Salim and Lila gave lathi blows. 19. As stated above the learned Additional Sessions Judge has already acquitted Zakariya and Yasin. If accumulative effects of the statements of PW/1 Kapura and PW/4 Yasin is taken into consideration, then it is established beyond all reasonable doubt that Baddal, Maluk Singh and Lila caused injuries by lathi strokes to Kapura PW/1. According to the medical report, Kapura had six injuries, out of which there was a fracture on the index finger of the right hand. The injuries on the index finger is alleged to have been caused by Munshi, according to PW/1 Kapura, but PW/4 Yasin did not name Munshi in his statement. The other injuries on Kapura are all simple in nature. The rest of the injuries did not travel beyond the ambit of Section 323, Indian Penal Code. The injuries on the index finger is alleged to have been caused by Munshi, according to PW/1 Kapura, but PW/4 Yasin did not name Munshi in his statement. The other injuries on Kapura are all simple in nature. The rest of the injuries did not travel beyond the ambit of Section 323, Indian Penal Code. Looking to the facts and circumstances of the case, it appears safer to hold Baddal, Maluk Singh and Lila guilty for the offence under section 323, Indian Penal Code. 20. For the reasons stated above, the appeal filed by the accused appellants is partly allowed. All the accused appellants are acquitted for causing injuries to Rehman. The accused appellants are also acquitted of the offence under section 147, Indian Penal Code. The accused appellants Baddal, Maluk Singh & Lila are hereby convicted for the offence under section 323, Indian Penal Code for causing injuries to Kapura PW/1, and each one of them is sentenced to one year's rigorous imprisonment, and a fine of Rs. 100/- each and in default of payment of fine to undergo three months rigorous imprisonment. If the result, the accused appellants Munshi, Laddar, Kamal and Saphat are acquitted of the charges under section 147 & 323, 325/149, Indian Penal Code. All these accused appellants are on bail. They need not surrender to their bail bonds. Their bail bonds are hereby cancelled. 21. The learned counsel for the accused appellants has strenuously urged that the benefit of the Probation of Offenders Act may be extended in this case. Having considered all the circumstances, as narrated above. I have no hesitation including that this is not a fit case in which the benefit of Probation of Offenders Act should be extended. 22. Accused appellants Baddal, Maluk Singh and Lila are bail. They are directed to surrender. The Chief Judicial Magistrate, Alwar shall cause these persons to be arrested to undergo the sentences awarded to them. 23. The learned counsel for the accused appellants prays for a certificate for leave to appeal to the Supreme Court. As the case was turned on the appreciation of evidence and no substantial legal points were involved in this case there does not appear any reason to grant the certificate as prayed. Hence, the prayer for grant of leave to appeal is hereby refused. *******