TYAGI C.J.—All these six matters arise out of the judgment dated 25th of January, 1971 of the learned Sessions Judge, Jaipur city convicting the appellants Bhaghwan Singh, Dharampal, Jugal kishore, Raj Kumar Gaur, Ramchandra, Sukhdeo and Vijay Poonia of the offences punishable under section 304 Part II read with section 148, 149, and 447 I.P.C. Accused Rajkumar Gaur and Ram chandra were also found guilty of offence under section 523 I. P. C. All the accused persons were sentenced to rigorious imprisonment for four years under section 304 Part II read with section 149 I. P. G., two years rigorious imprison-ment under section 148 I. P. C. and two months rigorious imprisonment under section 447 I.P.G. Rajkumar and Ramchandra in addition to the said senten-ces were also awarded eight months rigorious imprisonment each under section 323 I. P.G. All the substantive sentences were however ordered to run concu-rrently. All the accused persons who were charged under section 302 I. P. G. were acquitted of that charge. 2. Accused Manipal, Anil Mehta, Mohanlal, Motilal Jain, Sukhvir Singh, Behari Modi, Jotram, Omprakash Bishnoi Sultan Singh and Ravindra were all acquitted of the various charges levelled against them. Appeal No. 112 of 1972 is filed by the State challenging the acquittal of fall the accused persons under section 302 I. P. C. as well as against the acquittal of aforomentioned ten persons who were not found guilty at all. Appeals Nos. 977 of 1971 and 1001 of 1971 are filed by those who were convicted by the trial court. 3. Besides these appeals three revision petitions were also filed under section 11 (3) of the Probation of offenders Act, 1958 by the Probation Officer praying to revise the cases of Sukhdev Singh, Dharampal and Vijay Poonia who in his opinion were entitled to get the benefit of the provisions of section 6 of the Probation of Offenders Act, as according to the Probation Officer all the abovenamed three accused were entitled to get such benefit as they had not attained the age of 21 on 3-2-1970 when the incident had taken place. The Probation Officer maintains that section 6 of the 1958 Act is mandatory and, therefore, the cases of the said three accused persons viz Sukhdev Singh, Dha-rampal and Vijay Poonia need to be revised under section 11 (3) of the Act. The Probation Officer maintains that section 6 of the 1958 Act is mandatory and, therefore, the cases of the said three accused persons viz Sukhdev Singh, Dha-rampal and Vijay Poonia need to be revised under section 11 (3) of the Act. Since all these six cases arise out of one judgment, we propose to dispose them of by a single judgment. 4. Seventeen persons including the seven convicts, namely, Bhagwan Singh, Dharam Pal, Jugal Kishore, Rajkumar Ramchandra, Sukhdev Singh and Vijay Poonia were tried for committing the murder of Dalip Singh, a student of the 1st year T. D. C Arts who used to reside in room No. 42 of the Vivekanand Hostel. Ten persons were acquitted of all the charges levelled against them. Out of those ten the State did not prefer any appeal against Motilal. Ravindra. Singh, Sukveer Singh, and Sultan Singh. The State has chosen to file appeal only against the acquittal of Anil Mehta, Mohan Lal, Mshipal Maderna, Behari Modi, Jotram and Ompraksh Bishnoi. We, therefore need not take into consideration the evidence relating to the four auquitted persous against whom no appeal has been preferred by the State. 5. The prosecution case as unfolded by the prosecution witnesses is like this:— 6. Vijay Poonia who is said to be the leader of one faction of the students was on a friendly terms with deceased Dalip Singh who is said to be the leader of another factions. These cordial relations continued till the elections of the Students Union took place. There after it is said that Dalip Singh fell out and the students divided into two distinct groups, one headed by Dalip Singh and the other by Vijay Poonia. The learned Judge has taken note of certain events that took place at Ganganagar where kisan agitation was organ-sed which had its own impact on the minds of the student community at Jaipur which divided the students on communal lines. Vijay Poonia become the leader of the Jat group and Dalip Singh led the Rajput group. The gulf between the two groups widened and the matters reached to such a climax that Dailp Singh started apprehending that he might be done to death by Vijay Poonia and his followers. The apprehension was communicated by Dalip Singh to the Warden of the hostel also. 7. The gulf between the two groups widened and the matters reached to such a climax that Dailp Singh started apprehending that he might be done to death by Vijay Poonia and his followers. The apprehension was communicated by Dalip Singh to the Warden of the hostel also. 7. On 3rd of February, 1970, it is alleged that some students belonging to the group of Vijay Poonia riding on motor cycles, scooters and car came in search of Dalip Singh. They first went to a place known as Non Resident Student Centre hereinafter to be referred to as N.R.S.C in she University Campus When they did not find Dalip Singh there they proceeded to the Canteen in Rajasthan College Campus. When Dalip Singh was not treaceable there also, the group proceeded to the Vivekanand Hostel where Dalip Singh used to resid According to the prosecution case accused Jugal Kishore on the lawns of the Vivkanand Hostel distributed lathis and iron rods taken by them in the car which was brought by Mahipal Maderna. There the members of the assembly raised certain slogans which clearly indicated that they had come to that place to take reverge against Dalip Singh Dalip Singh at that time was in his room No 42 situtate on the first floor of the hostel. The group of students then went upstairs and when they foundthat the door of Dalip Singhs room was closed, they tried to open it by giving pushes to it The prosecution story further goes to reveal that when the door could not be opened by force, some body from amongst the crowed suggested that the party had come for negotiating a compromise and it is said that thereafter the door of the room was opened from inside. Eleven students entered the room Dalip Singh, P.W.4 Narendra Singh and P.W 6 Arjun Singh were inside the room. It is said that after giving beat* ing to P.W 4 and P.W 6 they were pushed out of the room and then the assailant party belaboured D dip Singh mercilessly while he was lying on the cot. After giving a good deal of threshing to Dalip Singh by the lathis and iron rods the students came out of the room and then went away from the place of occurrence. After giving a good deal of threshing to Dalip Singh by the lathis and iron rods the students came out of the room and then went away from the place of occurrence. Dalip Singh was immediately brought down by the inmates of the hostel and placed over a cot on the ground flower of the hostel. Immediate information was sent to the warden of the hostel who rushed to the place of occurence. Having seen the serious condition of Dalip Singh the warden managed to shift all the injured viz Arjun Singh, Narendra Singh and Dalip Singh to the hospital. Dalip Singh was shifted in an unconscious state and he remained so in the hospital till February 14, 1970 when he breathed his last. A team of medical experts was summoned by the State Government from Delhi to examine Dalip Singh and to make the best medical treat-ment available to him but unfortunately these efforts could not bear any fruit and even the best medical aid could not succeed to save Dalip Singh. 8. Dr. Dakaya, the warden of the hostel and Dr. Jiyauddin Khan made inquiries about this incident and asked various students who had witnessed the occurrence. P.W 8 Shri Vijay Singh and P.W. 37 Shri Devendra Singh submitted a joint written report about what they had witnessed Similarly P.W. 9 Pushpendra Singh gave his version in Ex. P. 5. P.W. 12 Kishan Singh also filed a written report with the Warden which is Ex. P. 16. Anand Kumar Yogi P.W. 16, Shailendra Kumar Pathak P.W. 17, Gokulchand Chhawala P.W. 38 and Shri Bhojraj Singh P.W. 23 also gave written report to the Warden which are Ex. P. 24, Ex. P. 25, Ex. P. 35 and Ex. P 86 respectively. P.W. 35 Phoolia who had discovered certain lathis and iron rods (Saria) in the adjoining bath room stained with blood, also submitted a report which is Ex P 34. On the basis of the different versions given by the aforesaid witnesses, Dr. Jiyauddin Khan sent the first information report Ex P. 37 to the Police station Officer Bapu Nagar, Jaipur. On the basis of this report case was registered and investigation was started by the local police. 9. On the basis of the different versions given by the aforesaid witnesses, Dr. Jiyauddin Khan sent the first information report Ex P. 37 to the Police station Officer Bapu Nagar, Jaipur. On the basis of this report case was registered and investigation was started by the local police. 9. There was a resentment in public that the investigations were not properly conducted and there was a charge that the local police was out to save some of the culprits who were highly connected with the politicians. The State government therefor thought it proper to handover the investigation to the C.B.I. and on 14-2-1970 Shri Jiyauddin Khan made the written statements of the various witnesses handed over to Dr. Bakaya, available to the G.B.I. Mahi Pal Maderana who was said to have taken the car of his father, who was then a member of the Rajasthan Cabinet, was also named in some of the documents but the charge against the local investigating agency was that his name was subsequently scored out of the documents and the local police was out to see that his name may somehow be taken out of the list of the culprits. The C.B.I. however made a thorough enquiry and ultimately challaned 17 persons including Mahipal Maderana for offences under secs. 120B, 302 read with sec. 149, 147, 148 & 448 I.P.C, The charge u/s. 323 I.P.C. was also framed against accused Rajkumar Gaur and Ramchandra. 10. The prosecution in support of its case examined as many as 75 witnesses and produced 161 documents, Vijay Poonia, Dharampal and Jugal Kishore pleaded alibi While other accused denied their participation in the crime. Vijay Poonia stated that he had gone to Delhi to attend the Republic Day parade and he was in Delhi from 10-1-70 to 16-2-70 when he was arrested in Delhi. Dharampals plea was that on February 3, 1970 he was at Rohtak where he attended the court of the Judicial Magistrate while filing a complaint. According to him he had left Jaipur on 31-1-1970. The plea of Jugal Kishore was that on receiving information about the ailment of his mother, he left Jaipur for Bhadra on 1 2-1970 and on that fateful day he was present in the town of Bhadra. 11. According to him he had left Jaipur on 31-1-1970. The plea of Jugal Kishore was that on receiving information about the ailment of his mother, he left Jaipur for Bhadra on 1 2-1970 and on that fateful day he was present in the town of Bhadra. 11. Fourteen witnesses were examined by the defence in support of their respective pleas of the accused persons and placed reliance on as many as 55 documents. 12. The learned Sessions Judge after discussing the case of each accused convicted only 7 persons as aforementioned and acquitted the rest of all the charges framed against them. It is in this manner that these appeals and revisions have come before this Court. 13. Before we start to discuss the appeals of the convicted persons, we would like to mantion that though the localdoctor had examined the injuries of Dalip Singh on the day of incident but that report of the doctor has not been placed on record. On 13-2-1970 Dr. Jagdish Chandra P.W. 1 who was called from Delhi by the Government of Rajasthan examined Dalip Singh and noted down the external injuries found on the body of Dalip Singh which we shall refer to at the time when we shall take into consideration the nature of the crime committed by the accused persons. 14. The main charge against the part of the accused persons was that they entered into a criminal conspiracy to do away with the life of Dalip Singh and for that purpose about 15 boys met a day before at the Glory Restaurant at about 10-30 in the night. P.W. 25 Satyapal and P.W. 39 Subhash Acharya have been examined to prove that a criminal conspiracy was thatched in the room of Glory Reastaurant oa 2.2.1970 These two witnesses have stated that they had seen about 15 boys in the Glory Restaurant about 10 30 on 2-2-1970 and they also saw !5 sticks and iron rods lying in that room The testimony of Satyapal P W. 25 is sought to be corroborated by the prosecution by the statement of Subhash Acharya P. W. 39. Raghuvir Dayal P W. 28 one of the partners of the Glory Resturant also came in the witness box and he also supported the statement of P W. 25 and P.W 39 but he refused to disclose the talks that were going on amongst the boys as he could not hear them. These witnesses could identify only one person Vijay Poonia who was persent at the time when the boys had assembled in the Glory Restaurant P.W. 26 Shahi Kapoor was also examined to prove the fact of conspiracy. But from the tenor of his statement it is clear that he was not certain about the presence of either Vijay Poonia or Mahipai Maderana. According to him it is on sneer conjecturie that he had named Vijay Poonia and Mahipai Maderana because he clarfied that he did not see the faces of these two persons Other witnesse P.W. 25 also is not certain about the presence of these two accused persons at the Glory Restaurant. In the absence of any positive evidence regarding the thetching of a criminal conspiracy to do away with the life of Dalip Singh and also in the absence of any reliable evidence regarding the presence of the accused persons at the Glory Resturant the learned Sessions Judge has rightly discarded this evidence and acquitted the accused persons of the charge under sec. 120B. Shri Avtar Singh learned counsel appearing on behalf of the State, in the face of these infirmities in the prosecution evidence, did not seriously urge before this Court that on the basis of the evidence which is on the record, the accused could be convicted for an offence under section 120B 15. The another link about the criminal conspiracy which the prosecution tried to bring on record was that one Tejraj Singh went to the room of Dalip Singh on the morning of that fateful day and informed him that Vijay poonia and his gang was after his life. Tejraj Singh has, however, not been brought in the witness box by the prosecution Unfortunately Dalip Singh did not regain consicousness after he was given beating and therefore, there is nothing on the record to prove his link of conspiracy. In our opinion the learned Sessions judge has rightly discarded the evidence of conspiracy and aquitted the accused persons of the charge under section 120 B of the Indian Penal Code. 16. In our opinion the learned Sessions judge has rightly discarded the evidence of conspiracy and aquitted the accused persons of the charge under section 120 B of the Indian Penal Code. 16. Before dealing with the case of individual accused, it will be worthwhile to see whether the assailants constituted an unlawful assembly and if so what was their common object and at what stage the assembly was converted in to an unlawful assembly. 17. It is in the evidence of P.W. 18 Chandra Shekhar Singh that on 3rd of February, 1970 just before 2 O clock when he was going on the road from University side to the police Memorial with Khemsingh and Yadundra Singh on their Scooter which was driven by Khem Singh, he saw a grey coloured Ambassador car with a red-strip on its number plate going from police Memorial to the University. The car was fully loaded It was being driven by Mahipai Maderana accused The witness recognised one of the occupants in the car, as Vijay Poonia who was sitting next to Mahipai towards his left. Other occupants, however, could not be identified by him. The car was identified by the witness because Mahipai used to bring that car to the college previously also. The witness discribed the occupants as students. A suggesion was made to him that he did not correctly identify Mahipai and it was entirely on his guess work that he named him. The suggestion was turned down by him and stated, "in fact I identified him as Mahipai. Mahipai was bare headed". He however could not say whether he was putting on a coat or a bush-shirt as he could not observe bis fact minutely. 18. P.W. 7 Usha Moza, who got herself registered for ph. D. in Hindi and who was staying with Mr. K.N. Bakaya in Jaipur, saw at about 1 O clock in the day on 3.2.]1970 when she was going to the department of Humanities a large crowd, in front of N.R.S.C. When she reached the crowd, it dispersed. The boys who composed that crowd went away in car, motor cycles and 2-3 scooters. The crowed, went towards the main gate of the University. She could recognise Vijay Poonia accused who started from that place on a scooter. A boy by name Mohanlal Krishnia was also recognised by her as one of the occupants of the car. The boys who composed that crowd went away in car, motor cycles and 2-3 scooters. The crowed, went towards the main gate of the University. She could recognise Vijay Poonia accused who started from that place on a scooter. A boy by name Mohanlal Krishnia was also recognised by her as one of the occupants of the car. She has given description of the car as Ambassador of greyish blue colour, Its number plate had a reddish strip on it. The car when started towards the University, was headed by Vijay Poonia on scooter. This lady no doubt does not give the exact number of boys who assembled in front of N.R.S.C. but she says that it was a large crowd The testimony of this witness has been relied upon by the trial court and the learned counsel appearing on behalf of the appellants also did not characterise this statment as unworthy of reliance. From this statement, it appears that a car which was seen by P.W. 18 near the police Memorial reached the N.R.S.G. because the description of the car given by P.W. 7 Usha Moza is the same as was given by P.W. 18 when he saw it coming from the Police Memorial. The presence of Vijay Poonia at the N R. S.C. also fixes the identity of the car because he was seen in the same car when P.W. 18 Chandra Shekher corssed it at the Police Memorial. 19. It is true that P.W. 7 Usha Moza does not name Mahipal Maderana as one of the occupants of the car. She had named only two perons, namely, Vijay Poonia and Mohanlal Krishniya. Bat this infirmity as pointed out by the learned counsel for accused appellants does not in any manner dimineshes the probative value of the testimony of Usha Moza because according to her she knew only two persons, namely Mohan Krishnia and Vijay Poonia This evidence in our opinon is sufficient to establish that there was an assembly of students in front of N.R.S.G. where Vijay Poonia was present and the boys were using for their transport a car, scooters and motor cylces. 20. P.W. 10 Ravindra Singh cousin of the deceased Dalip Singh is another witness in this chain who states that on 3-2-1970 at about 1.30 P.M. or a little after he saw some scooters and motor cycles coming from Rajasthan College. 20. P.W. 10 Ravindra Singh cousin of the deceased Dalip Singh is another witness in this chain who states that on 3-2-1970 at about 1.30 P.M. or a little after he saw some scooters and motor cycles coming from Rajasthan College. They stopped by the side of canteen Accused Vijai Poonia got down from his scooter and accused Jugal Kishor got down from the Royal-en field motorcyle. Another accused Dharampal got down firm another motor clycle. He ?lsosaw Omprskash and Behari Modi. Accused Jugal Kishore want into the canteen in search of some body. When he came out, he told the members of his group something whereupon all the member of that group went towards Vivekanand Hostel. Vijay Poonia was, however, left behind and he entered into the car which was coming in hurry from the Rajasthan College side The witness identified the car which belonged to the Rajasthan State Garage as there was a red strip on the number plate. The car was ambassador and was of grey colour and it was being driven by accused Mahipal Maderana. The witness knew Mahipal from before. The assembly that stopped at the canteen in search of some one then want to the Vivekanand Hostel. 21. Kishan Singh P. W. 12 who was a resident of room No. 35 of the Vivekanand Hostel say at a distance of about 50 yard from Vivekanand Hostels pate facing the Rajasthan college 3 or 4 scooters coming towards the hosetel. Behind those scooters was an ambassador car of grey colour and it had a red number plate. Behind the car he saw some more scooters which stoped at the Vivekanand Hostel The witnees saw Vijay Poonia in the car which was fully packed. He however could not identify other occupants of the car. This witness has been relied upon by the trial court and no adverse comments have been mad by learned counsel for the accused applicants before us regarding the veracity of the statement of P. W. 12 Kishan Singh. 21. These witnesses fully establish that students coming on scooters, car and motor cycles; who were quite large in number, first went to N.R.S.C and then to canteen and from there they proceeded to Vivekanand Hostle where unfortuately the incident had taken place. 21. These witnesses fully establish that students coming on scooters, car and motor cycles; who were quite large in number, first went to N.R.S.C and then to canteen and from there they proceeded to Vivekanand Hostle where unfortuately the incident had taken place. We need not discuss the evidence as to who was the member of this assembly but this much can be said with certainty after perusing the statements of the aforesaid witnesses that the students in a large number were moving on scooters, motor cycles and car and they after searching some body at N.R.S.C, canteen reached the place of occurrence i.e. Vivekanand Hostel. 22. The next question that falls for our determination is as to when this assembly convened itself into an unlawful assembly and what was its object. The activities of the boys who were travelling on the scooters, motor cycles and car and who visited N.R.S.C. and Canteen did not disclose any unlawful object at these two places. But when the members of this assembly reached the Vivekanand Hostel and the car stopped, then it is said that the lathis and iron rods which were carried in the car, were taken out by Jugal Kishore and they were distributed among the members of the assembly. It is in the evidence of the witnesses that slogans were raised on the lawns of the Vivekaned Hostel, <span class="Hfont">^^nyhi flag dgka gS nyhi dks ekjks nyhi uhps vkvks** Arjun Singh P.W.6 has stated that the boys when they went up stairs twoards the room No. 42, they were shouting, <span class="Hfont">^^nyhi flag dgka gS mls ekjsaxs** PW, 11 Harish Chandra Meena has stated that the corwd raised a cry, <span class="Hfont">^^nyhi uhps vkvks] nyhi uhps vkvks rq>s ekjsaxs** . PW. 16 Shri Anand Kumar Ycgi in this connection deposed that the crowd was crying, <span class="Hfont">^^nyhi dks ekjks** and nobody was named by any one of the members of the assembly. P.W.23 Bhojraj Singh stated that the words spoken by the crowd were, <span class="Hfont">"nyhi flag dks ekjks" Phoolia P.W. 35 who had discorvered the blood stained lathis and iron rods in the bath-room situated on the first floor of the hostel near the room of Dalip Singh, has stated that he had heard the words <span class="Hfont">^^njoktk [kksyks** . P.W.23 Bhojraj Singh stated that the words spoken by the crowd were, <span class="Hfont">"nyhi flag dks ekjks" Phoolia P.W. 35 who had discorvered the blood stained lathis and iron rods in the bath-room situated on the first floor of the hostel near the room of Dalip Singh, has stated that he had heard the words <span class="Hfont">^^njoktk [kksyks** . The learned Judge from these words was not prepared fo infer that the object of the crowd was to kill Dalip Singh. According to the trial court these words did not in any manner indicate that the crowd wan ed to kill Dalip Singh, otherwise the words used would have been different like, <span class="Hfont">^^tku ls ekjsaxs** . The trial Judge has also commented that the witnesses, who have come in the witness box to depose about the sloagans raised by the Crowd, are not much worthy of credence as the slogans described by diffarnent wi nesses were different We think these comments of the trial court can hardly be justified because the slogans themselves as deposed by the witnesses show that some people raised slogans while the were starding on the ground floor while others cried when they were going upstairs or when they were busy in getting the door of Dalip Singhs room opened. We cannot, therefore subscribe the findings of the trial court that on account of the contraditions in the nature of the slogans as deposed by different witnesses, it was doubtful that such words were at all spoken by the members of the party. 24 .The learned Judge has also taken into consideration the extracts from Ex. P 37, the first information report that the boys constituting the assembly had gone to D dip Singhs room in order to have a compromise with him and, therefore, there was no reason for them to have shouted the threatening words. In our opinion the learned trial court has committed an obvious error in treating the observations of the author of the first information report as substantive piece of evidence and on that basis to discard the evidence of the prosecution regarding the raising of sloagans by the members of the assembly. 25. The trial court held that even after assuming that the slogans as deposed by the witnesses were raised, even then the sloags did not disclose a common object to kill Dalip Singh. 25. The trial court held that even after assuming that the slogans as deposed by the witnesses were raised, even then the sloags did not disclose a common object to kill Dalip Singh. In the opinion of the learned Judge the words. "MARO" and "MAROGE" do not in any manner give an indication that the persons who raised these slogans, had an idea of killing Dalip Singh The slogans alone, no doubt, cannot lead us to infer that the common object of the assembly was to kill Dalip Singh but when these words are read in the background of other factors, namely, the distribution of lathis and iron rods and also carrying some weapons like pistol and Gupti by the members of the assembly, actually causing serious and grievous injuries by the assailants on the person of Dalip Singh the court can conveniently infer that the object of the assembly was not simply to chastise or in flict bodily injuries to Dalip Singh but they were furious enough to go to the length of killing him. 26. The argument given by the trial court that the members of the assembly were armed with lethal weapons yet they were not used to kill their victim, gave indication to the trial court that the object of the assembly was simply to beat Dalip Singh. It is in the evidence of prosecution that Jugal Kishore, one of the members of the assembly had a pistol in his hand but it was not used by him. Similarly Vijay Poonia, according to the prosecution evidence, was armed with Gupti but he, too, did not use it as a deadly weapon to kill Dalip Singh. According to the testimony of P.W. 4 Narendra Singh, Jugal Kishore had a pistol in his hand but the witness grappled with him as soon as he enterd the room of Dalip Singh and disabled him to use the pistol as a weapon of offence against Dalip Singh. If the member of assembly, who raised slogans did indicate their desire by using the words "MAAROGE", were armed with deadly. weapons like pistol and Gupti, than it is difficult to endorse the views of the trial court that the object of the assembly was only to chastise Dalip Sigh and not to kill him. If the member of assembly, who raised slogans did indicate their desire by using the words "MAAROGE", were armed with deadly. weapons like pistol and Gupti, than it is difficult to endorse the views of the trial court that the object of the assembly was only to chastise Dalip Sigh and not to kill him. In our opinion it can safely be inferred in these circumstances that the members of assembly were free to use the deadly weapons carried by them in such a manner so that they could do away with the life of a person whom they were going to attack 27. The question as to when the assembly of the boys that ultimately re-ached Vivekanand Hostel, became unlawful, is however of little significance. It is not disputed that the assembly of boys conisting of more than five persons after having visited N.R.S.C and the Canteen where they had gone probably in search of their victim, reached the Vivakanand Hostel. There is no season to disbelieve the prosecution evidence that on the lawn of the hostel the distribut-ion of lathis and iron rods which were taken out from the car, took place and it is thereafter that the slogans were raised at the lawn and also while going up-stairs to reach room No. 42 The boys forcibly tried to get the door opened by giving pushes to it. These facts unmistakably lead us to an inference that the object of the assembly at the hostel was unlawful and as such we can safely declare that the assembly at the hostel was unlawful and those who actively took interest either in getting the door opened or actively participated in the act or beating, were the members of that unlawful assembly and therefore they cannot escape the liability for what had happened at Vivekanand Hostel and especially in room No. 42 thereof, 28. P. W. 4 Narendra Singh and P W. 6 Arjun Singh, according to the prosecution story, were inside the room when the members of the assembly reached the door of the room and forced the occupants thereof to open from inside. P.W. 17 Shailendra Kumar Pathak is another person who came up to the room No. 42 when the assailants had entered the room and started giving beating to Dalip Singh. P.W. 17 Shailendra Kumar Pathak is another person who came up to the room No. 42 when the assailants had entered the room and started giving beating to Dalip Singh. The learned trial court, however, did not blieve this story of the prosecution that the two witnesses P. W. 4 and P. W. 6 were inside the room when the assailants went to attack Dalip Singh. The injuries sustained by thee two witnesses P.W. 4 and P.W. 6 Narendra Singh and Arjun Singh, establish their presence at the spot because according to them, they were given beating by the assailants when they were inside the room. The trial court, however, held and in our opinion it is on the basis of mere conjectures, that after the assailants had entered room No. 42, these two witnesses namely, Narendra Singh and Arjun Singh also entered into the room There is no basis on the record to arrive at this conclusion The learned trial Judge on the basis of the testimony of Shailendra Pathak P W. 17 that when he saw Vijay Poonia hitting Dalip Singh with a Gupti Arjun Singh was not in the room and he only followed him in the Varandah, arrived at this conclusion. But on a careful perusal of the statement of Shailendra Kumar, we can say that such an inference which the trial court has drawn is not justified because Shailendra Pathak reached the spot after the beating had actually stopped and it is not improbable that by that time P. W. 6 Arjun Singh might have been driven out of the room by the assailants after giving him beating. The argument of Sardar Avtar Singh that it is due to misreading of the evidence of Shailendra, cannot be said to be-without force. The learned trial judge has not followed the incident in right sequence. Shailendra Pathak did not reach the spot before the assailants hid entered the room and started giving beating and, therefore, if the witness found Arjun Singh in the injured state in the Varandah in front of room No, 42, then this fact does not tell upon the credibility of Arjun Singh. From this fact it is difficult for us to infer that Arjun Singh was not inside the room when the assailants entered into it. From this fact it is difficult for us to infer that Arjun Singh was not inside the room when the assailants entered into it. Naredra Singhs presence in the room was also not accept by the trial court on the ground that he could not say to how Dalip Singh was beaten and how he fell down on his bed and who gave blow to him after he fell on the cot. It is in the evidence of these two eye-witnesses that as scon as the door was open about 11 or 12 persons enterd the room and when the witnesses tried to intervene, they were given threshing by the assailants and were driven out of the room They were then removed from the place of occurence in the injured state In such circumstances if these two witnesses did not disclose the sequence of events that took place in the room then from that defect it could not be inferred that they were not present in the room when the assailants got the doors open. In our opinion the presence of these two witnesses in the room at the time of the entry of the assailants could not be ruled out. 29. The learned trial Judge has dealt with the testimony of these two witnesses, namely, PW. 4 and P W. 6 at length The reasons given by the trial court for holding that Arjun Sing and Narendra Singh were not present in the room when the assailants made their entry therein, are not convincing. One of the grounds advanced by the trial court for not placing implicit reliance on Arjun Singh was that he could not name all the persons who went inside the room, and couldnot give the description of the weapons carried with them We think this reasoning is not correct. When a person is attacked by a mob of this nature, it is difficult for one to keep the balance of his mind and see everything in the manner which, perhaps, the court wanted them to observe. When a person is attacked by a mob of this nature, it is difficult for one to keep the balance of his mind and see everything in the manner which, perhaps, the court wanted them to observe. The tenor of the statements of Arjun Singh and Narendra Singh gives much credence and the injuries sustained by them during this scuffle inside the room undoubtedly prove the presence of the witnesses in the room because there was no reason why only these two witnesses should have been beaten in the Varandah and Shailendra Pathak who had also visited the spot and remained in the Varandah would have been given a different treatment by the mob. When 11 or 12 persons entered that small room No. 42 and many of the members of that assembly remained outside the room, then it was wellnigh impossible for Narendra Singh and Arjun Singh to have found entry in that room afterwards and sustained injuries at the hands of the assailants. In these circumstances we cannot endorse the finding of the trial court about the presence of these two witnesses in the Varandah when the assailants made their entry into that room to beat Dalip Singh 30. The testimony of Shailendra Pathak P,W 17 though in some respect different from the statements of P.W. 4 and P.W. 6, cannot be said to be whooly unworthy of credence. It is true that P.W. 17 has been declared hostile so far the presence of Mahipal Maderna is concerned but that attitude of the witness does not render his entire statement un-reliable Toe learned trial court has Said muh stress on the fact that the two witnesses, via Arjun Singh and Narendra Singh did not disclose to the local police the nature and the manner in which the incident had taken place nor did they name many of the assailants. According to the learned Judge their reticence was significant and when read with the fact that the first information report was loged late, a lot of twist, according to the trial court, seems to have been given to the story which in his opinion "was a simple matter and an ordinary scuffle between some students in which the action of assailant party exceeded its limit and more injuries than required by the situation were caused to Dalip Singh". The learned Judge fur her opined that "the matter further received aggravation by giving it a colour in a different setting which it did not deserve*. We may observe here that undue importance has been given by the learned trial Judge to belie the statement of the witnesses on the belated first information report by Dr. Ziyauddin who prepared the report Ex. P. 37 after receiving various written statements of the alleged eye-witnesses to the occurrence. It is a sad story that even the learned persons like Dr. Ziyauddin did not realise his responsibility under the law to move the police immediately when such a serious occurrence had taken place. It may be observed that those who gave their versions in writing about the incident viewed the incident from different angles and, therefore, the story given by each one of them could not tally with the other with a result that the first information report Ex. P. 37 drawn by Dr. Ziyauddin did not contain the facts which an observer could have mentioned soon after the incident was over. Dr. Ziyauddin was not an eye-witness to the scene of occurrence and, therefore, whatever story was given by him in Ex. P. 37, could not be used in a manner so as to belie the eye-witnesses. However, we are of opinion that the learned Judge gave too much importance to a document which was prepared by a person who had not himself witnessed the occurrence and who based his inference on the basis of different versions received from diffe-rent sources. 31. After discussing the evidence of the three eye witnesses, the learned Judge recorded his impression about their evidence in the following language, the total impression that I gather from the evidence of these witnesses, Naren-dra Singh, Arjun Singh and Shailendra Pathak, is that all these three witnesses came upon the scene of occurence after beating had been already given to Dalip Singh and they did not see anything with their own eyes. It was only on account of the subsequent happenings that they imagined and presumed that beating must have been given to Dalip Singh by the persons seme of whom gave a beating to Narendra Sirgh and Arjun Singh". It was only on account of the subsequent happenings that they imagined and presumed that beating must have been given to Dalip Singh by the persons seme of whom gave a beating to Narendra Sirgh and Arjun Singh". We regret, we do not agree with the trial court about this summing up of the evidence of these three witnessess and we defintely hold that Narendra Singh and Arjun Singh were inside the room No. 42 when the assailants came and got the door opened and that they were beaten by the assailants inside the room and then driven out of the room. It is difficult to say at what stage these two witnesses were taken out of room but it is certain that they had identified certain members of the assembly inside the room and they named them without any hesitation. 32. From the above discussion we can safely hold that the assembly that ultimatly reached Vivekanand Hostel and the members thereof who were pre-sent at room No. 42 where Dalip Singh used to live and those who helped them to bring to the Vivekanand Hostel, were all members of unlawful assembly and their object was to kill Dalip Singh. 33. We now propose to discuss the case of individual accused. Case of Vijay Poonia: 34. Vijay Poonia appears to be the villian of the peace and being head of the group oPstudants, he played an important role in this episode. This acc-used appellant has come out with a plea that on 10.1.1970 he went to Delhi to participate in the Republic Day celebration as a Cadet in the Air wing of the N.C.C and has remained there upto 16.2.1970 when he was arrested in Delhi it self This plea of alibi has been rejected by the trial court and it found that he was very much in Jaipur. But the did not come with the contigent with which he had gone to Delhi that returned from Delhi on 31.1.1970. The state-ment of D W. 5 Rajendra Kumar Sharma that Vijay Poonia did not return, Jaipur on 31.1.1970 with his contingent, cannot be discarded. But it hardly helps the accused-appellant because this dose not prove the absence of Vijay Poonia from Jaipur on 3 2 1970. The state-ment of D W. 5 Rajendra Kumar Sharma that Vijay Poonia did not return, Jaipur on 31.1.1970 with his contingent, cannot be discarded. But it hardly helps the accused-appellant because this dose not prove the absence of Vijay Poonia from Jaipur on 3 2 1970. D W. 6 Shri Paramvir Rathi a relation of V jay Poonia, however, has come in the witness box to show that he was in Delhi from 31-1-1970 to 16 2-1970 and was staying with him. He was a boy of 20. This statement has not been believed by the trial court We also perused the testimony of this witness and in our opinion it hardly inspires any con-fidene. D.W. 8 Harishchandra Kasana has deposed that he saw Vijay Poonia at the Indian Coffee house on 3 2 70 at about 3 p.m. but this evidence being of a chance witness can hardly inspire any confidence. In our opinion Vijay Poonia has miserably failed to prove his plea of alibi. 35. Now we have to see whether the prosecution has established the presence of Vijay Poonia at the place of occurrence. 36. The trial court while discussing the testimony of 19 alleged eye-witnesses has categorised these witnesses into three groups, namely, (i) wholly unreliable (ii) parly reliable and partly unreliable, and (iii) wholly reliable, P.W. 7 Usha Moza, P.W 12 Kishore Singh and P.W. 19 P D. Verm a were categorised as wholly reliable witnesses. Correctness of the statement of Usha Moza P W. 7, however, has not been doubted by the counsel appearing on be halt of the accused appellant. Even before the trial court, learned counsel for the defence considered her to be a truthful witness and also she was characterised as an independent person. This witness had seen the crowd at N.R.S.C, and she had identified Vijay Poonia as one of the persons going on the scoo-ters near the N.R.S.C. on 3 2-1970. Vijay Poonia was also identified in the room No. 42 of Dalip Singh by Narendra Singh P.W. 4 and Arjun Singh P. W. 6 who were both injured and their testimony to this extent was believed by the court below. The evidence of Kishore Singh P W. 12 who has been classified as a wholly reliable witness, also proves the presence of Vijay Poonia in the crowd and he identified him while the crowd was entering the hostel. The evidence of Kishore Singh P W. 12 who has been classified as a wholly reliable witness, also proves the presence of Vijay Poonia in the crowd and he identified him while the crowd was entering the hostel. It is true that this witness could not state with exactitude the place where Vijay Poonia was sitting in the car which he had seen going towards the hostel. But he was positive in his deposition that he had seen Vijay Poonia and identified him in the car It may be mentioned here that the wit. nesses are consistent in naming this accused even in their written state-ments submitted to Dr. Ziyauddin Khan, their police statements and their statements recorded under section 164 Cr.P.C. The testimony of Narendra Singh P W. 4, Arjun Singh P W. 6 and Shailendra Pathak P W. 17 un-mstakeably establish the presence of Vijay Poonia in the room of Dalip Singh, The evidence given by P W. 9 Pushpendra Singh which was corroborated by PW 24 Shyam Narang, also shows that Vijay Poonia was seen by them in the Vivekanand Hostel in the aggressive mood before he went to the room of Dalip Singh. Mr. Bhimraj could not point out any mateerial on the record to establish that Vjay Poonia was not present at the scene of occurence, export that he advanced an argument that Vijay Poonia is said to have been equipped with a weapon like Gupti but as depositions show that this formidable wea-pon was used only as a cane which in his opinion was not possible if Vijay Poonia as a leader of the crowd was out to kill Dalip Singh. The injury reports of Dalip Singh show that he had sustained an incised wound on the right palm across the index and middle fingers which shows that a sharp edged weapon like Gupti must have been used when Dalip Singh was attacked. It is suggested by the learned counsel appearing on behalf of the State that the Gupti must have been used by Vijay Poonia as a sharp edged weapon and not as a cane only. It is suggested by the learned counsel appearing on behalf of the State that the Gupti must have been used by Vijay Poonia as a sharp edged weapon and not as a cane only. But in the absence of any positive evidence about using of Gupti in the manner which could have caused an incised wound on she hand of she deceased, it is difficult to say as to how the weapon with which he was armed, was used by him Hawever, even if the prosecution could not establish beynd all reasonable doubts the part played by Vijay Poonia inside the room, his presence at the place of occurrence is established beyond sall reason-able doubts. Therfore, he cannont escape the responsibility of becoming a member of an unlawful assembly In our opinion the finding of the trial court that Vijay Poonia was very much a member of this unlawful assembly, cannot be assailed. 2. Accused Jugal Kishore: 37. Jugal Kishore, according to the prosecution was a person who carried a pistol in his hand when he entered the room of Dalip Singh. P W.4 Narendra Singh and P.W 6 Arjun Singh have defnitely deposed that Jugal Kishore ent-ered into the room and when he was found to have carried a pistol in his hand, Narendra Singh grappled with him and fell him down in order to ensure that he may not use that formidable weapon which he was carrying with him. Shailendra Pathak PW. 17 stated that he had also seen Jugal Kishore in the room of Dalip Singh. P.W. 9 Pusbpendra Singh also corroporates the presence of this accused in the Varandah It is in the evidence of P W.4 Narendra Singh that as soon as Jugal Kishore entered the room, he pointed out his pistol towards Dalip Singh in an aggressive demeanour. There is no reason to disbelieve the testimony of Narendra Singh who had received injuries inside the room as observed above In view of the establishment of of aforeside facts, the trial court has rightly come to the conclusion that there was no doubt that Jugal Kishore was present in the hostel at the time the incident had taken place and his presence indicated the sharing of a common object with others. 38. A plea of alibi has been advanced by Jugal Kishore and in support of it a letter Ex. 38. A plea of alibi has been advanced by Jugal Kishore and in support of it a letter Ex. D 55 has been produced to show that he was summoned to his village Bhadra as his mother was seriously ill. Kishan Singh D W. 8, the brother of Jugal Kishore, has stated on oath and proved that letter Ex D 55 was scribed by him. D.W. 9 Bahadur Singh and D W. 12 Jhaman Lal were also examined by the defence to support this plea of alibi but the learned Judge has not placed reliance on the testimony of the witnesses for the reasons mentioned by him in his judgment. For the sake of bravity, we did not want to reproduce those reasons as advanced by the trial court but we can say that the reasons for discarding the defence evidence are convincing and we cannot place any reliance on the plea of alibi advance by Jugal Kishore. We would like to mention here that the subsequent conduct of accused Jugal Kishore was in consonance to the commission of a crime because he remained absconding till 26-6 1970 which undoubtedly throws light on his guilty consciousness. Therefore, this circumstance cannot be overlooked by the court. 39. The carrying of a pistol by Jugal Kishore was mentioned soon after the incident by the eye witnesses and the consistancy with which Jugal Kishores role in the incident was described by the eye witnesses,hardly leaves any room for doubt to blieve that he was not culprit. We, therefore, feel that Jugal Kishore was present at the Vivekanand Hostel and specially in the room of Dalip Singh and his presence has been established beyond ail reasonable doubt. 3. Accused Dharam Pal: 40. Apart from the evidence of the eye-witnesses who had seen this accused in the room of Dalip Singh and in the Varandha in front of it and also at the lawns of she Vivekanand Hostel, there is a very convincing circumstance which proves his presence at the hostel. P W. 22 Dr. Vijay Bakaya when visited the spot of occurrence, found a dairy Ex 4 lying in the Varandha in front of room No. 42. He picked up that diary and placed it in room No. 42 from where it was recovered by the investigating agency This diary is admitted by the accused to be his dairy. P W. 22 Dr. Vijay Bakaya when visited the spot of occurrence, found a dairy Ex 4 lying in the Varandha in front of room No. 42. He picked up that diary and placed it in room No. 42 from where it was recovered by the investigating agency This diary is admitted by the accused to be his dairy. No reasonable explanation has been advanced by the accused to explain as to how his diary was found in front of room No 42 soon after the incident. The presence of diary Ex 4 is a circumstance which lends strength to the oral testimony of P.W. 4 and P.W. 6 who had seen this accused at the place of occurrence. There is no reason to disbelieve Narendra Singh PW 4 and Arjun Singh P.W 6 who had seen this accused at the place of occur-rence where beating was given to Dalip Singh. This accused also remained absconding till 9 6 1970. This fact, according to the trial court, indicated his guilty consiousness. 41. The accused has taken a plea of alibi and stated that on 3-2-1970 he filed a complaint Ex. P. 15 personally in the court at Rohtak. But this complaint was not entered in the register maintained by the court which fact created a genuine doubt in the mind of the learned trial court for believing the plea of alibi. The complaint was, however, registered on 5-3-1970. This fact that why it was registered so late, could not however, be explained by the defence witnesses DW 3 Hukam Chand Jain, however, stated that this complaint was shown in the cause list on 3-2-70 but according to the learned trial court, it was done in a very doubtful manner. 42. We have very carefully perused the judgment of the trial court wherein the learned Judge has very elaborately discussed the statements of the defence witnesses. Judicial Magistrate Rohtak Shri S.B. Ahuja D.W. 2 was also brought in the witness box but he was not prepared to identify Dharampal whether he was the same person who had produced this complaint before him. In the absence of such identification the evidence of he Magistrate is hardly of any aveil to the accused. For the sake of brevity of the judgment, we would not like to repeat the arguments advanced by the trial court to reject the defence plea. In the absence of such identification the evidence of he Magistrate is hardly of any aveil to the accused. For the sake of brevity of the judgment, we would not like to repeat the arguments advanced by the trial court to reject the defence plea. However, we are one with the trial court to hold that the defence has faield to prove the plea of alibi of Dharampal. 4. Accused Bhagwan Singh: 43. The presence of this accused Bhagwan Singh Krishnia at the lawns of the hostel has been established by the evidence of Harish Meena P.W. 11 and Anand Kumar Yogi P.W. 16. The learned trial Judge did not consider this accused as a member of the unlawful assembly on the basis of his presence at the lawns. In our opinion this approach of the trial court is not correct. Be* cause the distribution of the lathis on the lawns and thereafter raising of slogans indicated the intention of the assembly that they had come to that place to take revenge en Dalip Singh, converted that gathering as unlawful assembly But in the case of this accused, he was seen by Narendra Singh P. W. 4 and Shailendra Pathak PW 17 who were consistent throughout about the presence of this accused in the room of Dalip Singh and also in the Varandah in front of it, clearly goes to show that he was the member of the unlawful assembly Arjun Singh PW 6 also establishes the presence of the accused at the place of occurrence. The finding of the trial court that accused Bhagwan Krishnia was the memb? of the unlawful assembly, therefore, appears to us to be correct. 5. Accused Rajkumar Gaur: 44. The statement of Arjun Singh PW. 6 that accused Rajkumar Gaur was seen in the room of Dalip Singh, proves the presence of the accused in room No. 42 This fact finds corroboration from the medical testimony which shows an injury on the person of Arjun Singh. The statement of Arjun Singh is further corroborated from the evidence of P W 4 Narendra Singh and P.W. 17 Shailendra Pathak who establishes the presence of the accused at the scene of occurrence. This fact that Rajkumar Gaur was also seen in the Varandah is established by Pushpendra Singh P.W. 9. The statement of Arjun Singh is further corroborated from the evidence of P W 4 Narendra Singh and P.W. 17 Shailendra Pathak who establishes the presence of the accused at the scene of occurrence. This fact that Rajkumar Gaur was also seen in the Varandah is established by Pushpendra Singh P.W. 9. The accused was also seen at the lawns of the hostel, is proved by the testimony of Harish Meena P.W. 11, Bhoj Raj PW. 23, Shyam Narang P W 24 and Devendra Singh P W. 37 which also establish the presence of the accused at the lawns. In our opinion the trial court has rightly held that accused Rajkumar Gaur was very much a member of the unlawful assembly. 6. Accused Ramchandra: 45. Ramchandra was seen by the witnesses at three places viz; on the lawns, of the Varandah, Hostel and also in the room of the Dalip Singh. Witnesses Harish Meena, Anand Kumar Yogi, Ravindra and Gokul have deposed that they had seen the accused on the lawns of the Vivekanand Hostel. There are two other witnesses, namely, Inder Singh and Bhoraj who also corroborate the testimony of the aforesaid four witnesses But the tesctimony of Inder Singh and Bhojraj has been discarded by the trial court as in the opinion of the trial court they were wholly unreliable witnesses. Even if we discard the testimony of Inder Singh and Bhojraj, we find that at there is enough material to establish the presence of the accused Ramchandra on the lawns 46. Pushpendra Singh P.W 9 alongwith Inder Singh and Bhojraj also deposed that Ramchandra was seen by them in the Varandah. Even if we do not attach any crendence to the testimony of Inder Singh and Bhojraj, there is no reason to disbelieve the testimony of P. W 9 Pushpendra Singh specially when the presence of the accused has been proved by Narendra Singh P.W 4 and Arjun Singh P. W 6 in the room of Dalip Singh. Narendra Singh P. W. 4 has deposed that he was hit by lathi by Ramchandra in side the room of Dalip Singh. Narendra Singh P. W. 4 has deposed that he was hit by lathi by Ramchandra in side the room of Dalip Singh. Then he caught Ramchandra which prevented him from using his lathi to cause any more injuries, to the witness When Narendra Singh caught hold of Ramchandra in the room, then there is hardly any reason to disbelieve about the identity of Ramchandra by the witness who was seen by him hitting lathi blows to him The trial court has placed reliance on the testimony of Narendra Singh and Arjun Singh and on that basis it has been held that accused Ramchandra was very much present at the scene of occurrence. We do rot find any reason to take a difference view of the prosecution evidence on this point. We, therefore, hold that Ramchandra was the member of the unlawful assembly. 7. Accused Sukhdev Singh: 47. P W 17 Shailendra Pathak and P.W. 4 Narendra Singh have deposed on oath that they had seen Sukhdev Singh in the room of Dalip Singh. The accused was also seen by Pushpendra Singh PW. 9 in the Varandah We do not find any reason to disbelive the testimony of these witnesses that undoubtedly establish the presence of the accused at the scene of occurrence. In our opinion the trial court has rightly held that Sukhdev Singh was the member of the unlawful assembly All the seven accused, namely, Bhagwan Singh Krishnia, Dharampal, Jugal Kishore, Rajkumar, Ramchandra, Sukhdev Singh and Vijay Poonia have, therefore, been rightly convicted by the court below. 48. Now we take up the appeal of the State. 49. Out of the ten acquitted persons, the State has preferred appeal only against six accused, namely, Anil Mehta, Behari Modi, Jotram, Mahipal Singh Maderana, Mohan Krishnia and Omprakash Bishnoi, 1. Accused Mahipal Maderana: 50. We first of all take up the case of Mahipal Maderana against whom. In the opinion of the trial court, the prosecution has failed to establish the charge of being the member of unlawful assembly. The trial court has written as many as 28 pages to declare Mahipal Maderana innocent. 51. Accused Mahipal Maderana: 50. We first of all take up the case of Mahipal Maderana against whom. In the opinion of the trial court, the prosecution has failed to establish the charge of being the member of unlawful assembly. The trial court has written as many as 28 pages to declare Mahipal Maderana innocent. 51. The main charge of the prosecution against Mahipal Maderana is that be took the car of his father who was then a member of the Cabinet and that car was used in carrying the members of the unlawful assembly and the sticks and iron rods to Vivekanand Hostel. It is nowhere in the evidence as to what was the registered number of that car. Every witness who saw the car at various places gave its description as being an ambassador of grey colour and that there was a red strip on the number plate of the car. The learned trial Judge on the basis of certain documents which were written statements given by the alleged cye-witnesses to Dr. Ziayauddin held that documents Ex. P 4, Ex. P. 5, Ex. P. 16, Ex P. 24, Ex P. 25, Ex. P. 34, Ex P. 35 and Ex, P. 36 and also the first information Ex. P. 37 did not give the exact description of the car and some of the documents did not even mention about the presence of the car and, there-fore, the learned Judge held that it was doubtful whether the assailants ever used a grey coloured ambassador car which bore a red strip on its number plate- In the opinion of the trial court, "the prosecution also failed to prove which case was it exactly, and where and whom did it belong had also not been proved." 51. The prosecution in order to prove the involvement of Mahipal Maderana in this episode, traced Maderanas participation right from the place when the car belonging to the Minister the father of the accused was handed over to him by the driver. Ghunaram P.W. 13 was the driver deputed on duty with the father of the accused who used to drive car No. RSL 4734 which was the State car and it had the red strip on the number plate. According to this witness on 3.2.70 at about 1.30 p.m. the accused asked him to handover the car for sometime. Ghunaram P.W. 13 was the driver deputed on duty with the father of the accused who used to drive car No. RSL 4734 which was the State car and it had the red strip on the number plate. According to this witness on 3.2.70 at about 1.30 p.m. the accused asked him to handover the car for sometime. The car, according to the witness was given to Mahipal which he took away and it was brought back to the witness at 3.15 p.m. The learned Judge did not place reliance on the testimony of this witness because according to him, he changed his version every now and then. Ex. P. 17 is the statement of the witness which was recorded by the Magistrate at Jaipur. Ex. D 22 was the statement of the witness before the C.B.I. when the investigation was taken over by the C.B.I. The witness was also asked to produce an affidavit sworn at Jodhpur but that affidavit has not been brought on the record. The learned Judge, however, found that there were material contradictions in all his previous statements and the statements made at the trial which rendered the witness unworthy of any reliance. 53. ft may be mentioned here that while assessing the worth of the evidence of this witness P.W 13 this fact cannot be lost sight of that he was a petty driver and he was asked not to make depositions against the son of his master who was holding a very high position The affidavit which is said to have been filed at Jodhpur contained that the car was with him from 8 a.m. till 3.30 p.m. But he resiled from this stand when his statement was recorded by the G.B I. and the explanation for taking a different stand was that he was made to file that affidavit under pressure. In his statement under section 164 Cr.P.C. Ex. P. 17 he deposed that a pressure was brought on him by Shri parasram Maderana the father of the accused to make a deposition contained in the affidavit. But he also deposed that he was advised by one Amar Nath Advocate to file a sworn affidavit. However, the learned Judge was of opinion that this witness was a person who could swing from one position to another and, therefore, no credence or value could be put to his statement. But he also deposed that he was advised by one Amar Nath Advocate to file a sworn affidavit. However, the learned Judge was of opinion that this witness was a person who could swing from one position to another and, therefore, no credence or value could be put to his statement. We regret that we cannot feel one with the trial court in discarding the testimony of P.W. 13 Ghunaram. It is true that the witness had filed a sworn affidavit at Jodhpur saying that the car was with him on 3.2.1970 between 8 a.m till 3.30 pm but this fact alone cannot make him incredible when he could gather courage to depose things before the court irrespective of the fact that he was holding a very insignificant job under the master who happened to be the father of the accuser. 54. P.W. 13 Chunaram has stated that on 3-2-1970 he was the driver deputed on car No. RSL 4734 an ambassador car of Sleti colour having a red strip on the number plate and it was detailed on duty of the Minister Shri Parasrara Maderana. At about 12 45 p.m. the witness returned with this car after delivering lurch at the St. Xavier school probably taken for the children of Parasram Maderana. On his return he stated that Mahipal came out of the house and asked the witness to leave him some where. The accused was accompanied by one other boy whom the witness could not identify. After having gone 2 or 3 furlongs Mahipal asked the witness to handover the car to him. At first the witness refused, but when an assurance was given by the accused that he would return within 15 minutes, the car was handed over to him and Mahipal then drovethe car himself and the boy who accompanied the accused went with him. The witness waited for the car till 3.15 p m. and it is at that hour that he saw the car returning with Mahipal alone. In his statement, the witness categorically stated that the fact contained in the affidavit that the car remained on that fateful day with him from 8 Oclock in the morning to 3.30 in the afternoon was false. In his statement, the witness categorically stated that the fact contained in the affidavit that the car remained on that fateful day with him from 8 Oclock in the morning to 3.30 in the afternoon was false. It is true that there are some inconsistencies regarding the time when the car was handed over to Mahipal but the witness has definitely stated that on 3.2.1970 he had no watch with him and, therefore, the time of 1 Oclock or 1.15 p.m. entered in Ex D 22 was not much significance The witness was cross examined at length with regard to the affidavit and the contents of document Ex.D. 22. But on a perusal of the statement as a whole, we can say that the witness Chunaram can safely be relied upon for proving the handing over of the car to the accused because he has shown courage to help the administration of justice in deposing things against the interest of his master whom he used to serve and at the risk of his service. 55. The accused Mahipal was seen by P. W. 18 Chandra Shekhar Singh driving a grey coloured ambassador car and going towards the University from the sice of the Police Memorial a little before 2 p.m. P. W. 7 Usha Moza has stated that she had seen a grey coloured ambassador car at the N.R.S.C. at about 1 p.m Mr. M.M. Singhvi appearing on behalf of the accused pointed out the absurdity of seeing the car at 1 p.m at N.R.S .C. when the same car alleged to have been driven by Mahipal was seen going towards the University side a little before 2 p.m. by P.W. 18 Chandra Shekhar Singh. The timings given by he witnesses however, create a doubt about the presence of the car at N. R S.C. at 1 p. m. But if we carefully look into the evidence of these witnesses, then the discrepancy in the depositions about the timings, hardly come in the way of believing these witnesses because the timings given by them are all approximate and no body can say exactly the time at which the car was seen on the University road and at N. R.S.C The estimate of time as deposed by the witnesses may be wrong. P. W. 18 Chandra Shekhar Singh has stated that he had seen the car about 2 p.m. and a little after 1.30 p. m Usha Moza P W. 7 has stated that at about 1.30 P M when she was going to the department of Humanities, she saw a larged crowd in front of N.R.S.C and saw the boys who composed that crowd going away in a car, motor cycles and three scooters. She could however recognise Vijay Poonia . The description of the car of grey colour and the number plate had a reddish strip on it. She, however does name Mahipal as the driver of the car. But from her statement, it is established that a car of the same description which was seen by P W 18 Chandra Shekhar Singh being driven by Mahipal and going towards the University was noticed at the N R. S. G. The difference in time given by the two witnesses P W. 18 and P.W. 7 cannot be treated as fatal to the prosecution case because the timings given by them were all approximate and not exact. 56. It was vehemently contended by Mr. Singhvi that while passing on a read, it was not possible for Chandra Shekhar Singh P. W. 18 to have identified Mahipal driving the car. The witness P. W. 18 has stated that he knew- Mahipai from before and the car also, because this car was brought by Mahipai many a times to the University The another attack on the testimony of P.W. 18 was that he did not disclose this fact to Dr. Ziyauddin or to shri Vijay Bakaya that he had seen Mahipai driving the car. For the first time, it is said that this matter was disclosed after 15 days from the date of the incident to G. B. I. that Mahipai was seen driving the car of a Slati colour with a red strip on number plate on that fateful day towards the University. This attack of the learned counsel on the varicity of the witness loses its importance when we examine it in the background of the history of this case. Shri Mahipai being a son of Minister it is alleged by the prosecution itself, was being helped by the local police and they were out to see that Mahipals name may be taken out of the list of the assailants. Shri Mahipai being a son of Minister it is alleged by the prosecution itself, was being helped by the local police and they were out to see that Mahipals name may be taken out of the list of the assailants. Sardar Avtar Singh went to this length to argue that even the name of Mahipai in the written statements supplied by the alleged eye-witnesses to the wardon was scored out from Ex. P. 4 and Ex. P 25 which shows the deep interest of the investigating agency which started the investigation at the initial stage to see that Mahipai may conveniently be taken out of the list of the assailants. Mahipals name finds place in three documents Ex. P. 4, Ex P. 25 and Ex.P. 37, the first information report submitted by Dr. Ziyauddin but the name of the accused is scored out in Ex. P. 4 and Ex. P. 25. The argument of Mr. Singhvi is that except that his name does not find place in the first information report Ex. P. 37, no overt act is assigned to him by the maker thereof. Relying on Ramkumar Pande vs. The State of Madhya Pradesh (1), the learned counsel urged that the name of Mahipai in the aforesaid documents cannot, in any manner, be taken out as a piece of evidence against him and, therefore, importance should not be attached to the mention of his name in the aforesaid documents It was also contended that the three wholly reliable witnesses, namely, P.W. 7, P W. 12 and P.W. 19 do not name the presence of Mahipai at any stage and, therefore, the case of this accused should be scrutinised very carefully by the court because the tedency of the students to involve persons belonging to families having higher status in the society in such henious offences, cannot in the opinion of the learned counsel be ruled out. 57. 57. It is true that the description of the car as given by the witnesses, namely, P.W. 18 Chandra Shekhar Singh, P W. 7 Usha Moza, P.W. 10 Ravindra Singh, P. W. 5 Inder Singh and P. W. 8 Vijay Singh does not exactly go to show that it was the same car which was detailed by the State motor garage for the duty of Shri Parasram Maderana, father of the accused as none of the witnesses had seen the number of the car which could have fixed the identity without any possibility of error But this lacuna alone in the prosecution case canuot be of any avail to the defence to rule out the use of the car by Mahipai belonging to the State garage and detailed for the duty of the Minister as we find that P. W. 18 Chandra Shekhar Singh had seen Mahipai driving that car going from the Polic Memorial towards the University side. We find in the testimony of P. W. 18 Chandra Shekhar Singh that Mahipai was driving the car which was going from the side of the Police Memorial to the University and he also recognised along with him another accused Vijay Poonia sitting next to Mahipai towards his left on the front seat He also stated that this was the very car which Mahipai used to bring previously also. Mahipai Maderana and Vijay Poonia were known to the witness and. therefore, it was not very difficult for him to identify these two persons going in that car. The car of the same descrip-tion as given by P. W. 18 Chandra Shekhar Singh was seen at the N.R.S.C., at the canteen and ultimately at the Vivekanand Hostel. At N.R.S .C. Vijay Poonia was identified by Mrs. Usha Moza P. W. 7. In view of these facts that the car of the description as seen by P. W. 18 Chandra Shekhar Singh being driven by Mahipai was also seen by other witnesses at different other places where the crowd went in search of some body, the prevence of Mahipal can safely be inferred. 58. It is true that Usha Moza P W. 7 did not name Mahipal at the N.R.S.C. but she gave the description of the car as was seen by P. W. 18 Chandra Shekhar Singh being driven by Mahipal. 58. It is true that Usha Moza P W. 7 did not name Mahipal at the N.R.S.C. but she gave the description of the car as was seen by P. W. 18 Chandra Shekhar Singh being driven by Mahipal. Mahipals presence is proved by the prosecution at the Vivekanand Hostel where the incident took place. In these circumstances we can safely infer that Mahipal travelled with the crowd in that car, to the N.R.S.C. and then to the Canteen even though he was not identified by P. W. 7 Usha Moza and other witnesses. However, the description that was given by the witnesses about the car leaves no room for doubt that it was the same car which was seen by P W. 18 Chand a Shekhar Singh going towards the University side from the Police Memorial. 59. The learned Judge in this connection scrutinised the evidence of the prosecution very minutely. But after having perused the judgment of the trial court, we can say that the learned trial Judge has committed an error in discarding the evidence of the witnesses mainly on the ground that the evidence of some of the witnesses was not believed by him when he discussed the case of other accu-sed person. It may be observed that this was a wrong approach to assess the prosecution evidence A witness can lie for one accused but that alone is not suffi-cient to discard his evidence against the other accused persons We, therefore, reassessed the prosecution evidence very minutely about the presence of Mahipal Maderana at the scene of occurrence and about the use of the car which he had brought from his house which belonged to the State garage. 60. Before coming to the statements of the eye-witnesses who had seen Mahipal Maderana at The Vivekanand Hostel and specially in the room No. 42 occupied by Dalip Singh, we would like to deal with certain general criticism levelled by the learned counsel for the respondents to establish his presence at the scene of occurrence. 61. Mr. Singhvi argued that the testimony of the witnesses, who did not name Mahipal before Dr. Ziyauddin or before local police when the investigation started, should be viewed with suspicion He urged that for the first time Mahipals name appeared before the C B.I. after fifteen days of the incident. 61. Mr. Singhvi argued that the testimony of the witnesses, who did not name Mahipal before Dr. Ziyauddin or before local police when the investigation started, should be viewed with suspicion He urged that for the first time Mahipals name appeared before the C B.I. after fifteen days of the incident. His conten-tion is that before the investigation was handed over to C B.(. many of the witnesses did not mention Mahipals presence at the spot of occurrence but when C B.I. took over the charge of the investigition they started implicating Mahipal. In this connection we may mention that there was a vide spread resentment in the town of Jaipur about the manner in which the matters were being investigated by the local police and there was a complete Hartal in the town where allegations were made that the local police was out to help such accused persons who were highly connected with the politicians and in this connection the names of two accused, namely, Mahipal Singh and Vjay Poonia were mentioned. Mahipal Singh was the son of the then Minister Shri Parasram Maderana and Vijay Poonia was the son of tre then M L. A. Gauri Poonia. It was perhaps on this resentment of the people that the investigation was handed over to C. B. I. The contention of Mr. Avtar Singh is that in such a background if the name of Mahipal did not find in some of the documents produced before Dr. Ziyauddin or if the name was entered in the documents but later on scored out or the statements under sec 161 Cr. P. C or 164 Cr. P C. did not contain the name of Mahipal, it should not be given much importance because the police itself was out to sheild Mahipal aacused-respondent and, therefore, it was but natural that the witnesses who could be persuaded not to name him, might not have dared to say a word against Mahipal who was being backed by the local police. The submission made by Shri Avtar Singh cannot be sad to be without force. The credibility of the testimony of the witnesses who could name Mahipal accused at the trial, cannot be discarded simply because the name of this accused was not mentioned in the statement under section 161 or 164 Cr. The submission made by Shri Avtar Singh cannot be sad to be without force. The credibility of the testimony of the witnesses who could name Mahipal accused at the trial, cannot be discarded simply because the name of this accused was not mentioned in the statement under section 161 or 164 Cr. P. G. or before the Warden who tried to gather facts from different persons who claimed to have witnessed the occurence. It may again be mentioned that the name of Mahipal was scored out from the documents Ex. P. 4 and Ex 25 produced by the alleged eye-witnesses before the Warden. The explanation advanced by the witnesses in scoring out the name of Mahipal that they had named him only on the basis of surmises, does not inspire any confidence. In this background we now propose to scrutinise the evidence of the eye-witnesses who had seen Mahipal at the actual scene of occurrence. 62. The entire episode right from the time when the car was taken away from Mahipals house and reached Vivekanand hostel and the beating was given to Dalip Singh was over within about an hour or so and, therefore, if the same car which was seen by P.W. 18 Chander Shekhar Singh going towards the University side, was seen at the Vivekanand hostel and if Mahipal was found to be present there then we can safely presume that Mahipal was throughout with the crowd and he visited N. R. S. C. and the canteen where the same car was seen by the witnesses but Mahipals presence was not mentioned by them. Vijay Raj P. W. 8, Kishan Singh P. W. 12 and Devendra Singh P. W. 37 have deposed about Mahipals presence in the car when it was being driven to the side of Vive-kanand Hostel. Kishan Singh P.W. 12 very categorically stated that when he was going from the hostel about 2 p m. to the college and was about 50 yards away from the southern gate of the Vivekanand Hostel, he saw a grey coloured car having a number plate of Rajasthan State Garage. He could, however, identify accused Vijay Poonia in that car, but could not identify Mahipal as the driver of that car. He could, however, identify accused Vijay Poonia in that car, but could not identify Mahipal as the driver of that car. Similarly Devendra Singh P. W. 37 and Vijay Raj P W. 8 saw the same car going towards the Vivekanand Hostel but they also do not categorically state that they had identified Mahipal beyond all reasonable doubt as the driver of that car However Vijay Raj Singh says that the car was being driven by Mahipal and when the vehicle stopped near the house of Dr. Ziyauddin, he felt that the person who was driving the car was accused Mahipal. The statements of these three witnesses, however, do not establish beyond reasonable doubt that they had seen Mahipal driving the car. From the perusal of the statements of these witnesses, it appears that they do not want to come out before the court with a whole truth In Ex. P. 4 alleged to have been scribed by Vijay Singh and Devendra Singh, the name of Mahipal was mentioned but later on it was scored out. Pushpendra Singh P. W. 9 who had named the presence of Mahipal at the scene of occurrence before the C.B. I. and also named him in Ex. D 14 has watered down the force of his statement by introducing an element of doubt about Mahipals participation. 63. Bhojraj Singh P. W. 23 has deposed that he had seen Mahipal standing in the Varandah in front of room No.42. He also mentioned that Mahipal was driving away the car from the scence of occurrence. The learned trial Judge refused to accept this statement on the ground that he gave four differnt versions of the incident before he was finally examined by the trail court. The previous statements of this witness are written statement Ex. D. 32 given to the warden, his statemem under section 161 Cr. P. C recorded by the local police and also Ex D. 33 another statement under sec. 164 Cr.P.C given to the local police. In his previous statements he did not mention the name of Mahipal at all. But this variance in the versions of the incident can hardly be pressed into service because of the attitude of the local police towards Mahipals case. In his statement before the C. B. I. Ex. 164 Cr.P.C given to the local police. In his previous statements he did not mention the name of Mahipal at all. But this variance in the versions of the incident can hardly be pressed into service because of the attitude of the local police towards Mahipals case. In his statement before the C. B. I. Ex. D. 32 it was clearly mentioned by him that he had seen an ambassador car of Slati colour with a red strip on its number plate beig parked at the Vicket gate near Dr. Ziyauddins residence and that Mahipal was standing by the side of that car when the crowd was just going to disappear from the scene of occurrence. He also stated that the seat of the driver was occupied by Mahipal when the car was going away from that place. This statement did not find favour with the trial court because it was different from his earlier statements recorded by the local police. The learned Sessions Judge has discussed at length the statement of this witness and gave various reasons to discard it. But in our opinion the assessment of the evidence of this witness by the trial court is not correct. The trial court should not have been swayed away by different versions of the story as recorded by the local police because in this particular case we find that the role played by the local police at the investigation stage was not worthy of the task entrusted to them, and, therefore, if any discrepancy was introduced in the earlier statement then that factor should not wash away the force of the statements of the eye-witnesses recorded by the court. 64. P W. 5 Inder Singh is another witness who had identified Mahipal among the persons who collected on the lawns. His statement was not believed by the trial court on the ground that he was not examined by the local police nor was he asked to submit his written statement to the warden of the nature Ex. P. 4, Ex. P. 16 and Ex P. 24 taken from other students This fact that the witness did not tell anything about the incident till he was examined by the C. B. I. also weighed heavily with the learned Judge to discard his testimony before the court. P. 4, Ex. P. 16 and Ex P. 24 taken from other students This fact that the witness did not tell anything about the incident till he was examined by the C. B. I. also weighed heavily with the learned Judge to discard his testimony before the court. In our opinion a fact which was so widely known to every one, if not repeated by the witness to his friends or to some one, d:>es not render his testimony unworthy of credence. 65. Another criticism levelled against the testimony of this witness is that he was a chance witness we are not impressed by the reasoning given by the learned Judge in discarding the deposition of this witness and we feel that the presence of Mahipal on the lawn is established. 66. The most important witness in this connection is Narendra Singh P. W. 4 whose presence inside the room has been established. Narendra Singh has categorically deposed that Mahipal was one among those who entered the room of Dalip Singh, when other students rushed into the room. The learned trial Judge did not believe the statement of this witness mainly on the ground that there have been serious contiadictions between his statement in the court and his previous statement recorded under section 161 Cr. P. C. by the local police Ex. D. 1 The reason for discarding the evidence of Narendra Singh by the trial court is that in his statement Ex. D. 1 he did not state the name of Mahipal, As already discussed above it is difficult for us to attach any importance to this type of discrepancies especially when the local police was out to help the accused. Narendra Singh P. W. 4 who sustained injuries at the hands of the assailants is a reliable witness. His testimony could not be assailed by the defence counsel on any other ground except that his previous statements were different from the statement made at the trial, ft may be mentioned here that this witness right from the date he was examined by the C.B.I. remained consistent about the participation of Mahipal in this episode and therefore, there is no reason for us to disbelieve the witness. 67. Another argument given by the learned Judge to disbelieve Narendra Singh that his testimony does not find corroboration from Arjun Singh PW 6 who was also present in the room. 67. Another argument given by the learned Judge to disbelieve Narendra Singh that his testimony does not find corroboration from Arjun Singh PW 6 who was also present in the room. Arjun Singh does not name Mahipal. He did not name Mahipal right from the very beginning. The manner in which the attack was made and the boys rushed into the room of Dalip singh in a large number with a threatening attitude, it may be possible that a person present in the room may not have looked at every body minutely. It was natural for the inmates of the room to be frieghtened at the danger that was facing them. The life of any one who did not belong to the assailant party could be in danger and, therefore, if in that atmosphere PW 6 Arjun Singh could not observe the presence of Mahipal in the room, then this factor cannot be pressed into service to render the testimony of Narendra Singh PW 4 unreliable who says that he had seen Mahipal entering into the room, 69. It was next urged by the learned counsel for the respondent Mahipal Maderana that another eye witness Shailendra Paathak PW 17 does not corroborate the statement of PW 4 Narendra Singh Shailendra Pathak PW 17 had been declared hostile so far as his statement relates to the preszence of accused Mahipal. In his statement recorded by the G. B. I. Ex. P 6. the witness had mentioned the presence of Mahipal between the portion A to B, He had also stated between C to D in that statement that Mahipal was carrying iron rod in his hand but he denied to have made any mention about Mahipals presence before the C. B. I. 70. The name of Mahipal was scored out from the document Ex P 25 and lor that the witness explained that it was however scored out by him on a second thought before he could handover that document Ex. P. 25 to Dr. Ziyauddin Khan. He further stated that he did so because some students had told him that it may treate complications for him. It is worthy to note that in his statement under section 161 C.P.C. before the local police, Ex. P. 25 to Dr. Ziyauddin Khan. He further stated that he did so because some students had told him that it may treate complications for him. It is worthy to note that in his statement under section 161 C.P.C. before the local police, Ex. P 27 this witness Shailendra Pathak had named Mahipal as one of those who were present there but he denied to have made that statement (Ex P. 27) about Mahipal before the local police. Learned counsel for respondent Mahipal wants to take advantage of the absence of Mahipals name in the statement of Shailendra Pathak at the trial. The conduct of this witness regarding his anxiety to save Mahipal is very obvious and, therefore, this statement of such a hostile witness cannot be pressed into service to contradict and believe the testimony of other witnesses. Shailendra Pathak PW 17 as a witness who had seen the occurrence from the Varandah. He has supported the prosecution so far as the rest of the incident is concerned. But for the reasons best known to him, he is not prepared to speak truth about Mahipal. This attitude of a witness cannot be permitted to cast shadow of doubt on the statement of Narendra Singh. 71. In our opinion Mahipals presence at the scene of occurrence is well established and, therefore, we cannot endorse the finding of the trial court in this connection. We, therefore, hold that Mahipal was very much present at the scene of occurrence and that he was the driver of the car which brought many of the students to the scene of occurrence along with lathis and iron rods. He cannot, therefore, escape his liability of becoming a member of that unlawful assembly. 2. Accused Anil Mehta: 72. The only eye-witness to prove the presence of this accused Anil Mehta at the scence of occurrence is PW 4 Narendra Singh. The name of Anil Mehta does not find place in the first information report Ex. P. 37 filed by Dr. Ziyauddin Khan after taking the written statements from various boys who were the alleged eye-witnesses to the occunence. The name of Anil Mehta was first of all mentioned by Narendra Singh PW 4 before the committing court. Before he was examined in the committing court his statement under section 164 Cr. P.C. were recorded. Ex. D. 1 and Ex. Ziyauddin Khan after taking the written statements from various boys who were the alleged eye-witnesses to the occunence. The name of Anil Mehta was first of all mentioned by Narendra Singh PW 4 before the committing court. Before he was examined in the committing court his statement under section 164 Cr. P.C. were recorded. Ex. D. 1 and Ex. D. 2 are the statements recorded by the said authorities. When he was examined by the C.B.I. the name of Anil Mehta was not disclosed by Narendra Singh in his Statement in Ex. D. 4 It is true that the name of accused Anil Mehta was specifically mentioned by Narendra Singh in the court but looking to the facts that even before the G. B I. the name of Anil Mehta was not mentioned by him, then it becomes difficult for us to believe the testimony of PW 4 Narendra Singh so far it relates to Anil Mehta without any further corroboration from independent source. It is true that Anil Mehta was identified at the identification Parade by this witness but that identification is not a substantive piece of evidence and can hardly remove doubts about the correctness of such an identification when the boy was no named at all in his previous statements recorded under secs. 161 and 161 Cr. P.C. and also made before the C. B. I. 73. PW 8 Vijay Singh Rajawat is another witness who had named the presence of Anil Mehta at the lawns of the Vivekanand Hostel but he made a complete somersalt in his re-examination when he stated that he did not at all see Anil Mehta at any time during the occurence. 74. Inder Singh PW5 and Harish Meena PW 11 have stated that they had seen Anil Mehta driving a scooter and he was there on the lawns with other assailants but these two witnesses have not been given any credence by the trial court. Harish Meenas testimony has been discarded as that of one wholly unreliable witness. We do not find it safe to convert the acquittal of Anil Mehta into conviction on the basis of uncorroborated testimony of single witness PW 4 Narendra Singh. The finding recorded by the trial court regarding Anil Mehta is, therefore, uphold. 3. Accused Behari Modi: 75. Harish Meenas testimony has been discarded as that of one wholly unreliable witness. We do not find it safe to convert the acquittal of Anil Mehta into conviction on the basis of uncorroborated testimony of single witness PW 4 Narendra Singh. The finding recorded by the trial court regarding Anil Mehta is, therefore, uphold. 3. Accused Behari Modi: 75. Accused Behari Modi was acquitted by the trial court because the learned Judge refused to place relience on the testimony of PW 4 Narendra Singh who had deposed that he had seen Behari Mudi in the room of Dalip Singh. The learned Judge refused to accept the correctness of this statement because in his opinion it was not corroborated by any ether evidence. The evidence about the presence of the accused in the room was not likely to be corroborated by any other evidence unless the accused was identified by another witness Arjun Singh PW 6 who was inside the room and, therefor, if the statement of Narendra Singh PW 4 is not corroborated by his colleague Arjun Singh, it cannot be discarded on that ground alone. But before we discuss the statement of Narendra Singh, we would like to find out whether the presence of Bahari Modi was witnessed either on the lawns or in the Varandah by some of the eye-witnesses or not. Vijay Singh Rajawat PW 7 has deposed that he had seen the accused among the assailants in the Varandah. This evidence has not be believed by the learned Judge against Behari Modi because a part of this evidence was discarded by him in respect of accused Jotram. This sort of assessment of the evidence is unknown to the criminal jurisprudence that if a witness is not relied upon partly in respect of one accused then he should not be relied in respect of any other accused without any reason or rhyme. 76. Anand Kumar Yogi PW 16 and Devendra Singh PW 37 categori-cally stated that they had seen Behari Modi on the lawns. This part of the evidence was rejected to invole Behari Modi by the trial court on the ground that on the lawns the assembly was not an unlawful one and, therefore, no offence was committed by the accused. But this approach is erroneous. This evidence is undoubtedly establishes his presence on the lawns. 77. This part of the evidence was rejected to invole Behari Modi by the trial court on the ground that on the lawns the assembly was not an unlawful one and, therefore, no offence was committed by the accused. But this approach is erroneous. This evidence is undoubtedly establishes his presence on the lawns. 77. Ravindra Singh PW 10 had seen this accused on a motor cycle at the Canteen But that statement was also rejected by the trail Court because in the opinion of the learned trial Judge, it cannot be accepted without corroboration. The learned Judge also while acquitting the accused observed, "moreover, presence before reaching the Varandah was not culpable at all" In our opinion this approach was wholly uncalled for because we are definitely of opinion that the assembly became unlawful as soon as the arms were distribut-ed and the slogans were raised by some of the members on the lawns. However, the testimony of PW 4 Narendra Singh is very clear that the accused was inside the room In his previous eximination recorded on 3-2-1970 by the police Ex. D 1, the name of Modi find a mention. Similarly in Ex. D 2 also mention of Modi is fond in tha- statement. Learned counsel urged that Modi is not sufficient to indicate the presence of Beheri Modi as in his opinion another Modi could be present at the scene of occurrence. But if the state men of PW 4 Narendra Singh is read as a whole then it becomes clear that be had mentioned full name of Modi in his statement Ex D. 4 when he was examined on 21.2.1970 by the C.B.I In his written statement filed before the warden Vijay Singh Rajawat PW 8 spscifically mentio.led the presence of this accused in Ex, P. 4. In our opinion the learned trial Judge has not correctly assessed the evidence that has been brought on the record by the prosecution about the presence of this accused and, we therefore, take a view that Behari Modi was present at the scene of occurence and that he even went. Inside the room where Dalip Singh was belaboured by the mob. 78. It was next contended that no overt act has been assigned to Behari Modi and, therefore, the order of acquittal should not be converted into that of conviction. Inside the room where Dalip Singh was belaboured by the mob. 78. It was next contended that no overt act has been assigned to Behari Modi and, therefore, the order of acquittal should not be converted into that of conviction. We regret, we cannot accept this argument as we are of opinion that whether any member of the unlawful assembly actively participated in the act of beating or not, he cannot escape form the liability of the actions of other members of that unlawful assembly. In such circumstances we are left with no alternative but to set aside the finding of the trial court and hold that Behari Modi was the member of the unlawful assembly. 4. Accused Jotram. 79. PW 8 Vijay Singh Rajawat, PW 16 Anand Kumar Yogi, PW 37 Devendra Singh and PW 38 Gokul Singh have deposed that they had seen accused Jotram on the laws of the Vivekanand Hostel. Vijay Singh Rajawat PW 8 has further deposed that he had seen Jotram in the Varandah also. This statement of Rajawat does not find support from the deposition of Pushpendra Singh PW 9 who says that Jotram was one of the assailants standing in the Varandah. in front of room No.42. Three other witnesses, namely, Inder Singh PW 5, Bhoj-raj Singh PW 23 and Harish Meena PW 11 also gave the statement against this accused but the learned trial court refused to place reliance on their evidence as they have been categorised by the court as wholly unreliable witnesses. 80. Vijay Singh Rajawats statement to this extent was disbelieved by the court below that from the position he is said to have witnessed, he could not see the Varandah in front of room No. 42 as there was a projection in the building which obstructed the sight of a person who was standing at a place from where Vijay Singh was said to have witnessed the occurrence. It is diffi cult to locate the exact position from where Vijiy Singh Rajawat had actually witnessed the scene and, therefore, the doubt that it created in the mind of the court below about seeing the presence of this accused in the Varandah by Vijay Singh Rajawat, cannot be said to be unfounded. However, P. W. (9) Pushpendra Singh states that he had seen Jotram standing in the Varandah. However, P. W. (9) Pushpendra Singh states that he had seen Jotram standing in the Varandah. But Pushpendra Singhs testimony does not find corroboration from either PW 4 Narendra Singh PW 6 Arjun Singh or PW 17 Shailendara Pathak who had actually seen the occurrence inside the room and from the Varandah in front of the room. In such circumstances the benefit of doubt extended by the court below to this accused is not unjustified. 81. As regards the statements of Anand Kumar Yogi PW 16, Devendra Singh PW 37, Gokul Singh PW 38 and also Vjay Singh Rajawat PW. 8 about the seeing of this accused on the lawns, the learned Judge has not accepted that evidence. The grounds for discarding this evidence are not very convincing but this is a case of acquittal and, therefore, when benefit of doubt has been extended by the trial court to this accused, we would not like to interfere with it so lightly. In such circumstances the appeal of the state against this accused fails. 2. Accused Omprakash Bishnoi: 82. The prosecution evidence of witnesses Arjun Singh P. W. 6, Vijay Singh PW 8 and Pushpendra Singh PW 9 go to establish the presence of this accused in Varandah. The learned Judge did not place any reliance on the testimony of Vijay Singh PW 8 regarding his evidence of seeing the accused in the Varandah because in the opinion of the court he was not in a position to see Varandah from the place where he was standing. On this account we, too, did not give much credence to the statement of Vijay Singh Rajawat But we find hardly any reason to discard the testimony of Arjun Singh PW 6 which finds corroboration from the statement of PW 9 pushpendra Singh. The learned trial court did not believe Pushpendra Singh, because in its opinion his statement about the presence of the accused in the Varandah did not find corroboration and similarly the evidence of Arjun Singh was discarded by the court below that two eye-witnesses Narendra Singh and Shailendra Pathak did not support his version about the presence of the accused in the Varandah. On the basis of this reason benefit of doubt was extended to the accused and he was acquitted of all the charges. On the basis of this reason benefit of doubt was extended to the accused and he was acquitted of all the charges. we cannot endorse the reasoning of the court below in discarding the testimony of PW 6 and PW 9. PW 6 Arjun Singh is a person who had suffered injuries at the hands of the assailants inside the room and he has pushed out of the room after giving a thrashing to him by the assailants. We have placed reliance on the testimony of this witness There is no reason to discard his testimony so far it relates to the presence of Omprakash Bishnoi especially when his substantive testimony is supported by the evidence of Pushpendra Singh PW 9. Seeking corroboration for every witness who has been relied upon by the court below in connection with other accused persons convicted by it is not a correct approach to the problem. In our opinion, there is hardly any reason to raise any doubt about the presence of this accused. 83. The Supreme Court has rightly said that the doubt must be of reasonable nature and not a vacillating one. In the present case the doubt that has been shown by the court below is not that of a reasonable kind and we, therefore, cannot endorse its finding regarding the acquittal of Omprakash Bishnoi. Even if we do not place reliance on the statement of PW 8 Vijay Singh Rajawat, whose exact position has not come on the record from where he is said to have seen the occurrence, there is ample evidence about the presence of Omprakash Bishnoi in the varandah. We cannot discard the testimony of Arjun Singh PW 6 and Pushpendra Singh PW 9. In view of these observations, we are constrained to set aside the order of acquittal of Omprakash Bishnoi. 6. Accused Mohan Lal Krishnia: 84. The paiticipation of this witness has been proved by the testimony of PW 23 Bhojraj Singh and PW 38 Gokul Singh. Bhojraj Singh has not been believed by the court below as he has been dubbed by the learned trial Judge as wholly unreliable witness. We carefully perused the sole statement of Shri Gokul Singh PW 38 and we find that he is, too, silent about the presence of this accused at the scene of occurrence. He has, however, named on Bhagwan Krishnia and not Mohan Krishnia. We carefully perused the sole statement of Shri Gokul Singh PW 38 and we find that he is, too, silent about the presence of this accused at the scene of occurrence. He has, however, named on Bhagwan Krishnia and not Mohan Krishnia. The appeal against this accused, thererfore, fails and is hereby dismissed. 85. The question, therefore, arises as to what offence was committed by the members of the unlawful assembly. The incident took place on 3rd of February, 1970 and Dalip Singh died on 14th February, 1970 In order to find out the guilt of the assailants,we shall have to look to the physsical condition of Dalip Singh after the incident. On 12th of February, 1970 a team of doctors came from Delhi and Dalip Singh was examined by them. The injuries were, no doubt, noted by the local doctor soon after the incident but that injuries report has not been brought on the record and proved by the prosecution. It is. however, admitted by the parties that the injuries noted by the doctor on 13.2.1970 were not very much different from the injuries which were noticed by the doctor soon after the incident. Dalip Singh was found to have substained the following injuries: i) Irregular heald scar 1" x 1/4" on the left side of forehead just above the eyebrow. ii) Irregular heald scar 1/2" x 13" on the left side of forehead 1* above to injury No.l. iii) Irregular healed scar on the middle of forehead extending from the root of nose 1"x 14". iv) Irregular lecerated wound in healing stage 1 1/2" x3/4" x1/2" on the left side of head of anterior part. v) Bruising of both upper and lower lids of both eyes more marked on the right side. vi) Healed scar about 2" x 1/4" lying obliquely on the left side of face near the nose. vii) Healed scar on the left side face 1" x linear on the cheek. viii) Irregular healed scare 1" x 1/4" just above the right eye brow. ix) Irregular healed scar 1" x 1/4" at the level of right eye brow. x) A scar (healed) on the right side face lying obliquely 1" below the right eye covered with scap outside. xi) Healed scat on the chin 1" x 1/4". xii) Healed wound on the inner side of the upper lip middle part 1" x 1/6". ix) Irregular healed scar 1" x 1/4" at the level of right eye brow. x) A scar (healed) on the right side face lying obliquely 1" below the right eye covered with scap outside. xi) Healed scat on the chin 1" x 1/4". xii) Healed wound on the inner side of the upper lip middle part 1" x 1/6". xiii) Healed wound on the anterior part of the tongue 1/2" x 1/4". xiv) Abrasion (healed) 1/2" x 1/2" on the front of left knee. xv) Healed abrasion in circular fash on the left forearm lower third out-erside 1" in diameter. xvi) Incised wound in healing stage on the right palm partly across the index finger and partly on the distal part of the palm over the forth and fifth metacarpo phalangial joint. 2—After post mortem examination the following injuries on the head and face were noted down: — i) Irregular healed scar (recent) 1" x 1/4" on the left side of forehead just above eyebrow. ii) Irregular healed scar 1/2" x 1/3" on the left side forehead one inch above to injury number one. iii) Irregular healed scar on the middle of forehead extending from root of nose 1" x 1/4". iv) Healed scar 2" x 1/4" lying obliquely on the left side of face near the nose. There was fracture of upper part of bridge of nose v) Irregular lacerated wound in healing stage 1 1/2" x 3/4"x 1/2" on the left side of head anterior part. 86. The doctors also found the scalp tissues showed extensive bruising communited fracture of Skull starting from left frontal bone running backwards and upwards to the coronal suture then running along the line of suture to right side of head back to perietal bone right side. There was bran-ching of main fracture line going from left froutal bone to left temporal bone. The fracture of left temporal extended upwards to join the main fracture line at the region the cornal suture. Exteradural haemorrhage 3 1/2" x 1 1/2" on the right fronto parietal region and localised extradural haemorrhage present on the left frontal region. Subdural haemorrhage on left occipital lobe present. Subarachnoid haemorrhage present on left frontal temporal and right frontal and dorsum of cerevellar (both) lobes, fracture of right orbital plate medical side. Exteradural haemorrhage 3 1/2" x 1 1/2" on the right fronto parietal region and localised extradural haemorrhage present on the left frontal region. Subdural haemorrhage on left occipital lobe present. Subarachnoid haemorrhage present on left frontal temporal and right frontal and dorsum of cerevellar (both) lobes, fracture of right orbital plate medical side. Brain surface congested, meaning as congested, contusion of left frontal and right frontal lobe medical side, right temporal and right occipitcal lobe present cut surface of the brain shows areas of contusions 1/2" deep in the brain tissue. Fracture of right orbital plate medical side present. 87. In the opinion of the doctors the cause of death of Dalip Singh were two fold, namely, (i) Extensive head injuries resulting in multiple fracture of Skull bones and contusions of brain, (ii) Bilateral lung abscesses, bilateral pulmonary infaractions and left side Pyopneumothorax This condition had most probably been caused by hypostastic congestion and super imposed infection. 88. It was urged by learned counsel for the State that irregular lacerated wourd on the left side anterior part and elsewhere on the head of Dalip Singh caused extensive head injuries resulting in multiple fracture of Skull bones and contusion of brain which were sufficient in the ordinary course of nature to cause death and, therefore the case falls under section 302 I. P. G. and not section 304 Part II. 89. Learned counsel appearing on behalf of the accused on the other hand urged that Dalip Singh died actually on account of complications which arose subsequent to the attack. The question, therefore, is whether Dalip Singh died of extensive head injuries or on account of complications which arose independently of the injuries. PW 1 Dr. Jagdish Chandra who was one of the members of the team of experts seat for from Delhi to examine Dalip Singh, was definitely of opinion that the injuries sustaind by Dalip Singh were the result of several blows. Under the heading "head and face" in document Ex. P. 21 injury No. 5 relates to the fracture of skull. In his opinion this injury was sufficient in the ordinary course of nature to cause death. Under the heading "head and face" in document Ex. P. 21 injury No. 5 relates to the fracture of skull. In his opinion this injury was sufficient in the ordinary course of nature to cause death. In the opinion of the doctor injury No. 5 was caused by severe force The head injuries were the result of multiple blows and according to him the patient had sustained head injuries which could have caused death in the ordinary course of nature, In the opinion of doctor Jagdish Chandra, the injuries sustained by Dalip Singh were severe and serious and even if pneumonia had not supervend, the chances of Dalip Singhs living were remote. In his cross-examination PW 1 admitted that the haemorrhage was not every extensive and could not be detected by encephalography. The ventricles of the brain were alright. He further stated that there was no infection in the brain of Dalip Singh and his wounds were not even infected externally, and therefore, in his opinion the survival of a patient in such condition depended on the extent of injuries on brain surface and pathologically and clinically damaged brain was the criteria for the severity of the condition of a patient and not the fracture of skull. 90. P. W. 2 Dr. Harpal Singh Ahluwalia who was another member of team of doctors came from Delhi and who happened to be a vary eminent surgeon in Neuro surgery in the Safdarjung Hospital stated as follows:— "I thought the the injury No. 4 (irregular lacerated wound in healing stage 1-1/2" x 4/4" x 1/2" on the left side of head of anterior part) of Dalip Singh might be fatal." There was no laceration in the brain The pressure was not raised in the brain by any sort of hemorrhage therein since none of these haemorrhages were more than 1 mm. in thickness and could not have been defected either radiologically or through Fundos-eopy. All sorts of haemorrhages caused no pressure on brain as they are usually associated with brain damages and merely represent a little leakage of blood at the site of the injury. There was no gross paralysis but in an unconscious patient it is not easy to detect to an exact degree since the patients co-operation is required to make an exact assessment." 91. There was no gross paralysis but in an unconscious patient it is not easy to detect to an exact degree since the patients co-operation is required to make an exact assessment." 91. The brain damage was caused by the injuries, namely 1, 2, 3, 5 and 8 under the heading "Head and Face" of the post mortem report In the opinion of this doctor the combination of brain damage caused by stress waves and by rotational and shearing strains together with the possible collapse of any cavity formation and submicroscropic damage to the brain stem resulted in his death. He further deposed "since in any event, I have stated that the head injury would have been fatal and the prevention of lung complications could not have altered the eventual out come." He also stated that "there was over-whelming brain damage quit sufficient to cause death without the presence of lung complications, which, however, did occur and may have changed in relation to time only when death would occur." He was, therefore, definite that in case of Dalip Singh, brain damage was responsible for his death. 92. 1 he second cause of death as put down by the doctor in the post mortem report is attributed to bilateral lung abscesses, bipulmonary infections and left sidepneumothorax the complications which arose and cause hypostatic congestion and super-imposed infection which in their opinion were the direct result of the head injuries and contusion on brain. 93. It is admitted by the doctors that the hypostatistic congestion in the lungs was due to severe head injuries. The doctors also opined that pnumo-thorax was not the immediate cause of death in the case of Dalip Singh. Dr. Jagdish Chandra also explained that hypostatistic congestion was not due to only the patient lying in one posture. In this case it was due to the brain damage done to Dalip Singh. In general the phyostastic congestion is the result of head injuries, PW-1 Dr. Jagdish Chandra was also of opinion that in severe head injury eases, the hypostastic congestion will be present inspite of the measures taken to maintain always clear of obstruction. 94. It was also in the evidence of the doctors that the doctor attending Dalip Singh administered decadron to him on 12.2.1970 but it was stopped on 13-2-1970. 95. On 13.2.1970 at about 11 the patient was examined by Dr. 94. It was also in the evidence of the doctors that the doctor attending Dalip Singh administered decadron to him on 12.2.1970 but it was stopped on 13-2-1970. 95. On 13.2.1970 at about 11 the patient was examined by Dr. Jagdish Chandra and he agreed that when the infection was present and decadron was administered so that infection may slightly be. subdued PW-2 Dr. Ahluwalia also admitted that without pulmonary and chest corn-plications, there may have been slight chance of the survival of Dalip Singh. Fundoscopy test was applied and no evidence was found of increased pressure. He also admitted that decadron was continued till 14.2.1970 as per record. He expressed chat decadron could retard the rate of repairs of wounds and interfere with the formation of granulation tissue. If the infection was known to be serious, he probably would not have advised the administration of decadron. But when the patients life was found to be in danger from damage to the brain end there was only mild or no infection the consequence of not giving decadron were to be weighed very seriously. 96. It was argued with all vehemence by the defence counsel that it is not a case of minder by the assailants but it was really a case of murder by the doctors who administered decadron which retarded the progress of the patient and accelerated his death. The defence also brought in the witness box Dr. Dugar but nothing could be elicited from him regarding the cause of death. He also could not help the defence to lend support to the theory of the defence that the death was accelerated due to the administration of decadron. 97. The real question is whether death was the direct result of the injuries sustained by Dalip Singh at the hands of the assailants The learned trial judge believing on certain observations of Taylor in his book Principles and Practice of Medical Jurisprudence Vol. I 12th Edn., observed that in all cases where wounds have been criminally inflicted and death ensues, a medical witness must be most careful in his assessment of their contribution to the cause of death. I 12th Edn., observed that in all cases where wounds have been criminally inflicted and death ensues, a medical witness must be most careful in his assessment of their contribution to the cause of death. There may be only one principle cause of death, though other circumstances may have contributed to a fatal result and it is in these circumstances it was essential when several causes for death have been described to determine which was the principal cause. In the opinion of the learned Judge, the doctors had mentioned two causes of death but from the perusal of their testimony the court could not discern as to which was the principal cause of death. It is true that complications did arise in the case of Dalip Singh and lung abscesses, bipulmonary infarctions and left side pneumothorax which caused hypostastic congestion and super imposed infection due to head injuries were found but if the evidence of the doctors was carefully studied by the learned trial Judge then in our opinion, he would not have arrived at any other conclusion except that the head injuries were the real cause of death of the deceased. The learned Judge has tried to go deep in the matter to find out some other cause of the death of Dalip Singh but the deeper he tried to go, he invited greater chances of error to arrive at the right conclusion. Quotations from Taylors book from page 182, in our opinion, had hardly relevance to the circumstances of the present case. Dr. Ahluwalia and Dr. Jagdish Chandra both are of the opinion that the real cause of death was the head injuries sustained by Dalip Singh at the hands of his assailants and whatever complications subsequently arose, they were all due to those injuries. In these circumstances we cannot uphold the conclusion of the trial court that the case did not fall within the mischief of section 300 I. P. G. 98. Clause Thirdly, of section 300 clearly lays down that if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, then the culpable homicide will be a murder. Clause Thirdly, of section 300 clearly lays down that if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, then the culpable homicide will be a murder. In the present case, it cannot be denied that the injuries sustained by Dalip Singh were intentionally caused and the nature of the injuries sustained by the injured shows that consi-derable force was used in a manner which caused multiple fractures on the head of Dalip Singh. It was also found that the chip of the bone was separated from the skull bone and that piece was found from the room of Dalip Singh. This shows the extent of force used in belabouring the deceased and also it throws sufficient light on the callous attitude of the associates in taking revenge from a helpless person who was surrounded by a number of persons armed with deadly weapons. The nature of the injuries caused, were in the opinion of the doctors, sufficient in the ordinary course of nature to cause death and, therefore, the accused who formed unlawful assembly to cause bodily injuries to Dalip Singh, which in the ordinary course of nature were sufficient to cause death, cannot escape their liability for the commission of an offence which squarely falls under section 302 of the Indian Penal Code. 98. The result of the above discussion is that the appeal No. 977 of 71 Jugal Kishore Singh and others vs. The State and S.B. Cr. appeal No. 1001 of 1971 Vijay Poonia and another vs. the State fail and they are hereby dismissed. The appeal of the State of Rajasthan against acquittal of convicted persons for an offence under section 302 I.P.C. is allowed and it is held that all the accused persons who were found to be the members of an unlawful assembly at the Vivekanand Hostel were guilty of an offence under section 302/149 I.P C. Their conviction under section 304 Part II I. P. C. and the sentences awarded to each one of them under that offence are set aside and instead they are convicted under section 302/149 I.P.C. 99. The appeal of the State against Anil Mehta, Jotram and Mohanlal Krishnia is rejected. The appeal of the State against Anil Mehta, Jotram and Mohanlal Krishnia is rejected. The State appeal against Behari Modi, Mahipal Maderana and Omprakash Bishnoi is allowed and all these three accused persons, namely Behari Modi, Mahipal Maderana and Omprakash Bishnoi are found guilty for an offence under section 302/149 I.P.C. 100. All the accused persons belonged to the student community at the time when they committed the said offence. Vijay Poonia was their leader and the role played by Mahipal Maderna is also not of an insignificant nature. It is really unfortunate that these students took the law in their own hands to wreak vengeance against their rival Dalip Singh and belaboured him to such an extent that the injuries caused by the assailants hardly left any scope for the survival of the injured and consequently the victim ultimately died on 14th of February, 1970. It is a matter of common knowledge that lately indiscipline has started making inroads in the life of the student community, and the mischie-vious elements have become so boisterous and unruly that they even left showing respect for the law of the land. The present case is a grim testimony of this fact and it shows that the student community would not only go to the length of taking revenge upon their rival but they would not hesitate to resort to violence with impunity so as to do away with a person whom they did not like. It is a matter of regret that the local investigating agency, which should have acquitted itself as an impartial instrument to bring such element to book promptly, chose to act in a partisan spirit. It was on account of the handing over of the investigation to C.B.I. that the real culprits could ultimately be brought to the court of law and stood their trial. The circumstances in which this incident had taken place leave no room for showing leniency to such students who had scant regard for law and, therefore, if there had not been such a big time-lac Between the incident and the day of judgment, we would have prescribed the maximum penalty of death to Vijay Poonia, who appeared to be the brain behind this episode. Bat after about eight years of the incident, we would not like to inflict the extreme penalty and we feel contented by awarding the lessor punishment prescribed under section 302 IPC. 101. It was argued by learned counsel for the accused persons that looking to the age of the culprits and looking to the fact that some of them have already entered into their life and some are going to settle in their life, a very lenient view must be taken in judging their guilt. But this argument does not appeal the Judges who are made of sterner stuff and must take a practical view of legitimate inferences flowing from evidence, circumstantial or direct, A very pious duty is cast on the judicial courts to see that the soeicty is saved from the wanton acts of those who want to take the law in their own hands and, therefore, in the discharge of our sacred function, we do not feel hesitant in pronouncing the life sentence to each one of the accused persons who were found to be the members of the unlaw full assembly cannot escape from the vicarious liability that fell on them on account of section 149 I.P.C. and, therefore, we hold that accused Bhagwan Singh Krishnia, Dharampal, Jugal Kishore Singh, Rajkumar, Ramchandra, Sukhdeo Singh, Vijay Poonia Mahipal Maderna, Behari Modi and Omprakash Bishnoi are guilty of commiting murder of Dalip Singh and each one of them is sentenced to imprisonment for life. 102. Since the accused persons have been found guilty of murder, benefit of the provisions of probation of Offenders Act cannot be extended to them. The revision petitions No. 744, 746 and 748 of 1971 are dismissed.