JUDGMENT 1. - This is an appeal from jail by Ramrikh and five others. Shri G.S. Bafna appears as amicus curiae on behalf of the Rajasthan Legal Aid Society. Arguments were heard and the record perused. 2. By his judgment dated 20th August, 74, the Additional Session Judge, Churu, convicted the appellants with the aid of section 149 Indian Penal Code and sentenced them as follows (1) Ganesha (a) under section 148 IPC to rigorous imprisonment for 'two years; (b) under section 326 IPC to rigorous imprisonment for six years and a fine of Rs. 200/- in default of payment whereof to simple imprisonment for one week ; (c) under section 323 IPC to simple imprisonment for one month. (2) Jhindu (a) under section 147 IPC to rigorous imprisonment for one year (b) under section 323 IPC to simple imprisonment for six months ; (c) under section 326 IPC to rigorous imprisonment for six years and a fine of Rs. 200/- in default of payment whereof to simple imprisonment for one week. (3) Genesha, Dhanna Ram, Ramrikh and Ratna (a) under section 147 IPC to rigorous imprisonment for one year ; (b) under section 323 IPC to simple imprisonment for one year ; (c) under section 326 IPC to rigorous imprisonment for six years and a fine of Rs. 200/- in default whereof to simple imprisonment for one week. 3. In all the cases the substantive sentences of imprisonment were directed to run concurrently. 4. The brief facts of the prosecution case are that Saleem PW 3 son of Jumma of Rajgarh District Churu had taken 12 bighas of land situate in Rohi of Rajgarh on a rent of Rs. 100/- from Chandra Ram PW 1. On July 1, 1972, at 2 p.m. Saleem was ploughing his field while his father Jumma PW 4 was resting under Janti tree. At that time the accused appellants came from the side of the village armed with various weapons. Ganesha had a `Gadansi' while the other accused are said for have been carrying lathis. Accused Ganesha asked Jumma how he happened to plough the field. Jumma replied that he had taken the land for cultivation from Chandra Ram for a period of one year. Upon this reply it is alleged that all the accused appellants attacked jumma. Ganesha had a `Gadansi' while the other accused are said for have been carrying lathis. Accused Ganesha asked Jumma how he happened to plough the field. Jumma replied that he had taken the land for cultivation from Chandra Ram for a period of one year. Upon this reply it is alleged that all the accused appellants attacked jumma. When Saleem rushed to his rescue he was threatend that if he intervened he was likely to be killed. Saleem was terrified and ran towards the well. It is also alleged that the occurrence was witnessed by Deva Ram alias Ram Dev PW 7. 5. A report of this occurrence was lodged by Saleem in the police station Rajgarh on 2-7-72 at 8 a. m. The injured Jumma was taken to the hospital Rajgarh where he was examined by Dr. Surendra Kumar Narula. He found the following injuries on his person : (1) Incised wound - 41/2 x 1/2 " x 1" on the right half of the upper lip and the right cheek. The upper jaw was fractured and got into two pieces. 4 teeth were missing. The injury was grievous caused by sharp weapon. (2) Incised wound 4"x 3/4 x brain deep on the right front of temporal region of skull. The bone was fractured and brain matter was coming out the wound. It was a grievous injury caused by sharp object. (3) Contusion 4 x 1/2" in the middle of the left thigh. 6. The condition of the injured Jumma being serious his statement Ex. DI was recorded by the Magistrate First Class Ratangarh at 210 p. m. on 2-7-72. In this statement Jumma stated that Ganesh had delivered two gadansies blow on his head. He also stated that when Chandra gave a blow at that time Gafoor had gone to fetch water from a nearby Johad at a distance of 200 paces. The injured was then removed to hospital Ratangarh, where it seems that he recovered later on. 7. The police filed a challan under sections 147, 148, 323, 307, 326 read with section 149 IPC. Eventually the appellants came to be tried by the Additional Sessions Judge Churu, who convicted the appellants with the aid of Section 149 IPC and sentenced them as aforesaid. The prosecution had produced 10 witnesses in all. 7. The police filed a challan under sections 147, 148, 323, 307, 326 read with section 149 IPC. Eventually the appellants came to be tried by the Additional Sessions Judge Churu, who convicted the appellants with the aid of Section 149 IPC and sentenced them as aforesaid. The prosecution had produced 10 witnesses in all. The plea of accused was that Jumma was not attacked by them but by Chandra Ram. The latter had given this field to Jumma but subsequently he changed his mind. Jumma, however, did not agree and Chandra attacked Jumma. Later on Jumma and Chandra Ram compromised but at the instance of Chandra Ram they were falsely implicated. They also produced two witnesses in defence. 8. The learned trial judge after hearing arguments advanced on behalf of both the sides held that the delay in making the report was satisfactorily explained. The presence of all the accused persons at the time of occurrence was proved. He further held that the accused Ganesha caused two grievous injuries ; one on the head and another on the lips of Jumma. He also found that Jhindu gave a lathi blow on the hips of Jumma. All the accused had a common object to cause grievous injuries as well as simple injuries to the person of Jumma. He did not find that the case did not fall under section 307 IPC. He was also of the view that all the accused except Ganesh were guilty under Section 147 IPC. Ganesha was held guilty under section 148 IPC because he was armed with a deadly weapon. 9. Learned amicus curaie challenged these findings of the learned Additional Sessions Judge, Churu, as being contrary to the evidence on record. He pointed out that the eye witnesses of the occurrence do not allege that any of the accused except Ganesha and Jhindu took any part in the occurrence. Saleem PW 3 deposed that he did not know the accused beforehand. As soon as the accused party arrived at the field Ganesha straight away delivered the iron-shod gandansi on the head of his father. Jhindu Ram delivered his latbi on his head. He said nothing about any of the remaining accused persons. Asa matter of fact towards the end of his examination-in-chief he said specifically that barring Jhindu and Ganesha the remaining accused persons kept standing and were doing nothing. Jhindu Ram delivered his latbi on his head. He said nothing about any of the remaining accused persons. Asa matter of fact towards the end of his examination-in-chief he said specifically that barring Jhindu and Ganesha the remaining accused persons kept standing and were doing nothing. They were, however, saying that Jumma will be done to death. The learned amicus curaie submits that such type of exportation are always put into the mouth of innocent persons whom the complainant party wants to implead. Jumma PW 4 fell unconscious soon after he received the injuries at the hands of Ganesha. He made no allegation against the remaining accused persons of the kind which Saleem had ventured to make. In this statement Ex. D 3 made in the committing court portion C to D he had stated that the remaining assumed persons were saying `MAR MAR' but he denied at the time of trial that he had made any such statement before the committing court. Ram Dev PW 7 deposed that the accused came together and went together and left their weapons in the field of occurrence. In cross-examination he deposed that he did not hear what the accused talked to the injured and what they talked amongst themselves. He also denied his statement Ex. DI portion C to D in which he had stated that the other accused were saying that he is not to be allowed to remain any more and was done to death. Ramzan PW 8 only saw the accused persons leaving the scene of occurrence. In this state of evidence it is not possible to hold that accused except Ganesha and Jhindu took any part in the occurrence. Their pro-presence will not be sufficient to make them guilty under section 149 Indian Penal Code unless there is evidence to show that their common object was to commit any offence or to be specific to cause injuries to Jumma. The learned trial Judge did say that their common intention was to cause grievous injuries to Jumma but there is no evidence to support this finding. If the offences under sections 147, 148 and 149 are not made out then only the individual acts of the appellants Jhindu and Ganesha shall have to be considered. There is doubt that Jumma has said that Ganesha gave gadansi blows on his head and face causing fractures. In his statement Ex. If the offences under sections 147, 148 and 149 are not made out then only the individual acts of the appellants Jhindu and Ganesha shall have to be considered. There is doubt that Jumma has said that Ganesha gave gadansi blows on his head and face causing fractures. In his statement Ex. Dl Jumma had not mentioned anything about Jhindu and at one stage he named Ganesha and at the other he named Chandra. At the same time there appears no reason to disbelieve the evidence of Saleem PW 3 that it was Ganesha who inflicted grievous hurts on Jumma. As regards Jhindu .(he prosecution evidence is that he caused injury on the hip of Jumma but this evidence had not been supported by the medical evidence according to which the simple injury was found on the middle of left thigh. The learned judge also noticed this variance regarding the seat of the injury. But he overcame this contradictions by observing that Saleem may not have described the location of the injury correctly due to visual inaccuracy because in such sort of scuffle sometimes the witnesses are more interested in saving the precious life of the victim than to observe as to where the injuries are being caused and because there was no much difference in distance between the hip and the middle of the thigh. I am not at all impressed by the argument adopted by the learned trial Judge. It was the case of Saleem that Jhindu delivered a blow on the hip but the blow is found in the middle of thigh and therefore, Saleem cannot be believed for want of medical corroboration. The result of the aforesaid discussion is that the convictions of the appellants except Ganesha cannot be sustained. 10. As regards Ganesha the learned amicus curaie submitted that he has been in jail for three years and nine months and his sentence should be reduced to what he has undergone. In this connection the learned amicus curaie also submitted that the prosecution has not proved any motive as to why accused Ganesha caused injuries to Jumma. The field was purchased by Chandra Ram from some Narain and Sadli. It is nobody's case that before the land was purchased by Chandra it was in the possession of the accused. In this connection the learned amicus curaie also submitted that the prosecution has not proved any motive as to why accused Ganesha caused injuries to Jumma. The field was purchased by Chandra Ram from some Narain and Sadli. It is nobody's case that before the land was purchased by Chandra it was in the possession of the accused. The simple case of the prosecution is that Jumma and .Saleem took the field on rent and the accused just came and beat Jumma for no rhyme or reason. There was no case of any previous enmity also. In these circumstances it was urged that the appellant Ganesha deserves leniency in the matter of sentence. The appellant Ganesha was arrested on 8-7-72 and since then he is in jail. He is a young man of 30 years. Considering all the circumstance of the case it appears a fit case in which leniency in the matter of sentence should be shown. I therefore, direct as follows : (1) The conviction of Ganesha under section 326 IPC is maintained and his sentence of imprisonment on that count is reduced to what he has already undergone and the sentence of fine and imprisonment in default is maintained. He is acquitted of the remaining charges. (2) The convictions and sentences of the remaining appellants are hereby quashed. Decision of the appeal accordingly. *******