JUDGMENT 1. - This appeal filed by Badan Singh, Sardul Singh, Ranjit Singh Biri Singh and Avatar Singh is directed against the judgment of the Additional Sessions Judge, Bharatpur, dated October 18, 1975, by which each appellant was convicted under sections 307, 147 and 323 read with Section 149 I.P.C. and Sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for six months on the first count, on the second to undergo rigorous imprisonment for six months and on the third to suffer rigorous imprisonment for a period of three months. All the substantive sentences awarded to each appellant were, however, ordered to run concurrently. 2. The incident that led to the prosecution of the appellants may be briefly stated as follows. On March 25-1975, at about 11:45 p.m. Om Prakash accompanied by his elder brother Girraj Prasad and his two servants Dalchand and Papu, was going to his house after closing his shop situated in the town of Deeg. As soon as he reached in front of the Jain temple, along with his associates, the appellants, five in number, encircled him, all of a sudden, and Badan Singh appellant cried in a long tone that he should not be spared and should be killed. At his instigation, Ranjit Singh appellant struck a lathi blow on the head of Om Prakash while Sardul Singh Biri Singh, Avtar Singh appellants also inflicted one blow each will their lathis The appellants, thereafter, dragged Om Prakash injured to their house for killing him. His elder brother Gtrraj Prasad and his servants, namely, Dalchand and Papu tried to rescue Om Prakash, but they were threatened by the appellants with dire consequences, if they made efforts to intervene. The elder brother of Om Prakash and his servant, however, raised a hue and cry. Meanwhile the appellants forcibly took away Om Prakash into the house of Badan Singh appellant and closed the doors thereof. Inside the house the appellants gave him further beating. Badan Singh asked the other appellants to kill Om Prakash Thereupon, Sardul Singh set fire to a small thatched house and the appellants began to drag Om Prakash with an intention to throw him into the fire. Om Prakash cried aloud. His cries attracted the residents of the locality, Hari Shanker. Master, Damodarlal, Shr. Badan Singh asked the other appellants to kill Om Prakash Thereupon, Sardul Singh set fire to a small thatched house and the appellants began to drag Om Prakash with an intention to throw him into the fire. Om Prakash cried aloud. His cries attracted the residents of the locality, Hari Shanker. Master, Damodarlal, Shr. Niwas and others who knocked at the door of Badan Singh. Badan Singh, thereupon, opened the doors but Sardul Singh appellants aimed their country-made short guns at these residents of the locality and asked the latter to run away from there otherwise they would be shot at. The residents of the locality did not move from there in spite of threats held out to them by Sardul Singh and Ranjit Singh and. later on, succeeded in rescuing Om Prakash who, by that time, had become unconscious. Om Prakash was removed to hospital by his elder brother Girraj Prasad and others where he was medically examined by Dr. An ant Narayan Sharma on March 26, 1975. The Medical Officer found as many as 11 following injuries on the body of Om Prakash:- 1. lacerated wound 21/2 "x 1/2" exposing skull on left parietal region obliquely I" lateral to anterior fronlanalae; 2. lacerated wound 21/2"x 1/4"x 1/2" obliquely on bragema with inflamation of whole of central part of skull; 3. Lacerated wound 21/2"x 1/2" exposing skull on right parietal region medial and backwards to right partial eminence; 4. lacerated wound l"x 1/4" x 1/4" obliquely on right parietal region; 5. hamatoma 4"x3" on occipital region behind bragma; 6. lacerated wound l"x 1/4,x 1/4" on injury No. 5; 7. abrasion l"x 3/4" on right fore-head above mastoid of face with inflamation; 8. abrasion two in number l"x 1/4" superficial on right mastoid; 9. abrasion `"x 1/4" super final on posterior aspect of right elbow joint with inflamation; 10. contusion 3"x 1/2" on superior aspect of right shoulder with inflamation; 11. abrasion l"x 1/4" superficial on anterior aspect or right knee joint. In the opinion of the Doctor, the condition of the injured was serious and the injuries Nos. 1, 2 and 3 sustained by him on his head appeared to be grievous. Dr. Anant Narayan Sharma, thereupon advised X-ray of the skull. Upon X-ray examination, injuries Nos. abrasion l"x 1/4" superficial on anterior aspect or right knee joint. In the opinion of the Doctor, the condition of the injured was serious and the injuries Nos. 1, 2 and 3 sustained by him on his head appeared to be grievous. Dr. Anant Narayan Sharma, thereupon advised X-ray of the skull. Upon X-ray examination, injuries Nos. 1, 2 and 3 were not found grievous Hence, the Doctor opined that all the injuries were simple caused by a blunt object. 3. A report of this incident was made by some unknown person upon telephone to Bani Madhav, Station House Officer, Deeg, at 12 15 a m. on March 26,1975. In the telephonic report it was stated by the informant that some scoundrels were beating one person in the way between the old bus stand and Gordhan gate of the town of Deeg. As the report was vague, the Station House Officer after recording it in the daily diary rushed to the spot. When he reached Gordhan gate, he came to know that Badan Singh appellant and others had beaten one boy, namely, Om Prakash, who had been removed to hospital Deeg, for treatment of his injuries. The Station House Officer, thereafter, received an information from the Medical Officer, Deeg Hospital, that the condition of Om Prakash was serious and that his dying declaration should be recorded Bani Madhav, Station House Officer then went to the Hospital and recorded the statement of Om Prakash in the presence of Medical Officer, which is Ex P 1 on the record. On the basis of this statement of Om Prakash the Station Housed Officer registered a criminal case against the appellants under sections 307, 364, 147, 148, 323, and 342 read with section 149, IPC and took up usual investigation into the matter. He inspected the site, prepared a site inspection memo and a site plan. Then he arrested all the appellants. After their arrest Ranjit Singh and Biri Singh appellant each gave the Station House Officer an information, while in the police custody, which led to the recovery of a blood stained lathi. He inspected the site, prepared a site inspection memo and a site plan. Then he arrested all the appellants. After their arrest Ranjit Singh and Biri Singh appellant each gave the Station House Officer an information, while in the police custody, which led to the recovery of a blood stained lathi. In the course of investigation, the Station House Officer recorded the statements of all the material witnesses and, upon conclusion of investigation, filed a charge-sheet against all the appellants in the court of the Munsiff and Judicial Magistrate, Deeg, under sections 307, 364, 342; 147, 148 and 323 read with section 149 IPC. The learned Judicial Magistrate Deeg. upon finding a prima-facie case exclusively triable by the court of Session, committed ail the five appellants to the court of the Sessions Judge, Bharatpur, from where the case was transferred to the court of the Additional Sessions Judge. The Additional Sessions Judge tried the appellants after framing necessary charges against them and found them guilty of the offences punishable under section 307, 147 and 323 read with section 149, IPC. Accordingly, he convicted and sentenced each appellant, in the manner stated above. 4. I have Carefully perused the entire record and heard Mr. Bhim Raj Purohit, learned counsel far the appellants and Mr. Richhpal Singh, Public Prosecutor for the State. Mr. Bhim Raj Purohit, learned counsel for the appellants, strenuously urged before me that there is no reliable evidence on the record to prove that the five appellants formed an unlawful assembly with a common object to kill Om Prakash and, in prosecution of that common object, caused injuries to him with such intention or knowledge or under touch circumstances that if he had been killed, the assailants would have because guilty of the offence of murder punishable under section 302 IPC. It was further urged by Mr. Bhim Raj Purohit that the story put forward by the prosecution is a conceded one and is not supported by independent evidence. It was further urged by Mr. Bhim Raj Purohit that the story put forward by the prosecution is a conceded one and is not supported by independent evidence. According to his submission, the trial Judge committed a grave error in convicting the appellants under sections 307, IPC and 147 and 323 read with section 149, IPC in the absence of cogent, clear and convincing evidence that the incident took place, in the manner alleged by the prosecution Mr Richhpal Singh, Public Prosecutor, on the other hand, argued that there is no reason to disbelieve the statements of Om Prakash and his elder brother Girraj Prasad, especially when they find support in essential particulars from the testimonies of independent witnesses, namely, Hari Shankar, P.W. 2 and Ram Singh. P.W. 8 and when nothing could be elicited from their cross-examination which may tend to destroy the value of their evidence or to impeach their credit. Mr. Richhpal Singh further submitted that there is ample reliable proof on the record to establish beyond reasonable doubt that all the five appellants encircled Om Prakash and inflicted blows on his head and shoulders with lathis, as a result of which his physical condition became serious and the wounds bled profusely. According to the submission of the Public Prosecutor, all these facts coupled with the fact that Om Prakash was dragged and forcibly taken into the house of Badan Singh and beaten there by the appellants clearly indicate that the intention of the appellants was to do away with him. - 5. I have given my best consideration to the rival contentions mentioned above.At the outset I may observe that the prosecution examined Om Prakash, injured, P.W 1 his elder brother Girraj Prasad, P,W. 4 and his servant Dal Chand besides four other eye-witnesses, namely, Hari Shanker P.W2, Damodar P.W. 5, Shriniwas, P.W. 6 and Ram Singh, P.W. 8 to substantiate its case ' Out of these witnesses Damodar, Shriniwas and Dalchand have turned hostile and did not support the prosecution story. They were cross-examined by the Public Prosecutor with the leave of the trial Judge but nothing could be elicited from their cross-examination which may help the prosecution in establishing the guilt of the appellants, 6. Now remains for consideration the evidence of Om Prakash, Hari Shankar, Girraj Prasad and Ram Singh. They were cross-examined by the Public Prosecutor with the leave of the trial Judge but nothing could be elicited from their cross-examination which may help the prosecution in establishing the guilt of the appellants, 6. Now remains for consideration the evidence of Om Prakash, Hari Shankar, Girraj Prasad and Ram Singh. Om Prakash, P.W. 1, stated at the trial that when he was going to his house after closing his shop along with his brother Girraj Prasad and two servants Papu and Dalchand by names, he was encircled all of a sudden by the five appellants in front of the Jain temple. He further stated that the first blow was struck on his head by Badan Singh appellant who instigated the other appellants to kill him. Thereafter Sardul Singh, Ranjit Singh, Biri Singh and Avtar Singh inflicted one blow each on his bead with a lathi and all of them thereafter dragged him to the house of Badan Singh wherein alto he was beaten by all the appellants with an intention to kill. He was rescued by the inhabitants of the locality who had come outside the house of Badan Singh on hearing his cries. The evidence of Om Prakash finds support from the testimony of his elder brother Girraj Prasad, who also claims to have seen all the five appellants striking blows on the head of Om Prakash with their lathis at the time and place alleged by the prosecution. Girraj Prasad further stated that after inflicting blows on the head of his brother Om Prakash the appellants dragged him away to the house of Badan Singh where from his brother was rescued by the residents of the locality who had collected there on hearing cries Ram Singh P.W. 8, on the other hand, gave a different version by stating that he saw Ranjit Singh and Sardul Singh appellants only beating and,causing injuries to Om Prakash claimed to have seen Ranjit Singh and Sardul Singh each inflicting one blow on the head Om Prakash with a lathi. This witness did not state at the trial that Om Prakash was dragged away by all the five appellants to the house of Bad an Singh and kept therein for some time and, later on was allowed to go from there at the instance of residents of the locality. This witness did not state at the trial that Om Prakash was dragged away by all the five appellants to the house of Bad an Singh and kept therein for some time and, later on was allowed to go from there at the instance of residents of the locality. Hari Shanker, P.W. 2, no doubt stated that at about 11-15 p.m. he heard cries e.g. the boy is being beaten and confined in the house. On hearing cried he rushed to the house of Badan Singh appellant along with Damodar P.W. 5 When he reached in front of the house, r.e saw Girraj Prasad and his mother crying aloud that Om Prakash had been confined in the house. Thereupon, he called Badan Singh to permit Om Prakash to come out. Badan Singh recognised the voice of Hari Shanker and opened the doors of his house. Om Prakash then came out of the house. At that time blood was coming out of his head. Mr. Bhim Raj Purohit assailed the evidence of the aforesaid eye-witnesses on the ground that their statements regarding occurrence and the identity of the as ailments are highly discrepant and full of serious infirmities and no reliance can be placed on them. The above contention has no force, because Om Prakash injured and his brother Girraj Prasad definitely stated in their depositions at the trial that alt the five appellants had participated in beating injured and in dragging him to the house of Badan Singh where from he was rescued by Hari Sharker. It is, undoubtedly, true that Ram Singh PW 8 implicated Ranjit Singh and Sardul Singh appellants only in the commission of the a fault on Om Prakash injured, but he had not seen the occurrence front start to finish, as is evident from his statement itself which he gave before the trial court. In his statement he clearly stated that about 11 or 12 in the night he was coming in his rickshaw. He saw a crowd of persons In the crowd he claimed to have seen Om Prakash being beaten by Sardul Singh and Ranjit Singh with lathis. He did not stay there and immediately touched to the house of Om Prakash, injured, for bunging his mother to the spot. When he came back along with his mother, he saw Ora Prakash inside the house of Badan Singh. He did not stay there and immediately touched to the house of Om Prakash, injured, for bunging his mother to the spot. When he came back along with his mother, he saw Ora Prakash inside the house of Badan Singh. Damodar, Shriniwas and Girraj Prasad were crying for the release of Om Prakash. Om Prakash was allowed to go Pom the house of Badan Singh and then he and his brother Girraj Prasad sat in a rickshaw and went to the hospital. From a careful review of the evidence of Ram Singh, it is obvious that he reached the place of occurrence after several persons hid assembled there and after assault on Om Prakash had already begun. It is further evident from his statement that he did not stay at the place of occurrence, but immediately went to the house of Om Prakash, injured, to bring his mother to the place of incident and in fact he brought her in his rickshaw Hence, on the basis of his statement it cannot be safely held that the other three appellants, namely, Badan Singh Avtar Singh and Biri Singh did not play any role in the commission of the assault on Om Prakash injured. Consequently, the evidence of Ram Singh, in my opinion, does not adversely affect the credibility of the evidence of Om Prakash injured and his brother Girraj Prasad Apart from this. Hari Shanker P.W. 2, and Ram Singh PW 8 corroborated the evidence of Om Prakash injured and his brother Girraj Prasad by stating that Om Prakash was found inside the house of Badan Singh and he was released from there when Hari Shanker and others asked Badan Singh to let him go outside the house. There is no reason to disbelieve the evidence of Om Prakash injured, his brother Girraj Prasad Hari Shanker and Ram Singh so far as it relates to the fact that Om Prakash was beaten by the appellants and thereafter forcibly taken to the house of Badansingh wherefrom he war released at the instance of Hari Shanker and others. The evidence of these witnesses has not been taken in cross-examination by the defence. Mr. The evidence of these witnesses has not been taken in cross-examination by the defence. Mr. Bhim Raj Purohit pointed out certain discrepancies in their statements and contended on their strength that their evidence should have been rejected outright as unworthy of credence, but, in my opinion the discrepancies pointed out by the learned counsel for the appellants are of no material significance and cannot be regarded as discrepancies of falsehood. Both Hari Shanker and Ram Singh are independent witnesses having no enmity or personal grudge against any appellant on the day of or prior to the occurrence. Their evidence appears to be true, as it does tot suffer from any infirmity. Likewise, the testimonies of Om Prakash and his brother Girraj Prasad cannot be brushed aside merely on the ground that they were interested witnesses and closely related to each other, especially when their evidence has been found entirely satisfactory upon close and careful scrutiny so far as it relates to participation of the five appellants in the commission of the assault on Om Prakash and thereafter in taking him away to the house of Badan Singh appellant. Hence, I have no hesitation in holding that the prosecution has succeeded in proving that all the five appellants formed an unlawful assembly with a common object to beat Om Prakash and in prosecution of the said unlawful object of the members of the said assembly the appellants caused injuries to the head and shoulders of the victim of assault and were, therefore, rightly convicted under sections 147 and 323 read with section 149, I.P.C. by the trial Judge. 7. Mr. Richhpal Singh, Public Prosecutor, vehemently contended before me that the offence under section 307, IPC. also is made out against the appellants from the evidence on the record, because the blows were aimed at and actually inflicted by the appellants mainly on the head of Om Prakash injured and thereafter the injured was dragged away by them to the house of Badan Singh for giving him further beating. The above contention has no force. For the purpose of constituting an attempt to murder under section 307, IPC. The above contention has no force. For the purpose of constituting an attempt to murder under section 307, IPC. two essential ingredients are required - (1) an intention or knowledge which is necessary to constitute murder, and (2) an act done which falls short of the complete commission of murder on account of circumstances independent of the will of the author of the act. In the present case if the appellants had such an intention or knowledge as was necessary to constitute murder, they would not have caused simple injuries to the head of Om Prakash but would have smashed his head by inflicting lathi blows with considerable force. It is evident from the statement of Dr Anant Narayan Sharma. who examined the injuries of Om Prakash, that the injuries found on his head were stimuli in nature caused by blunt object and no fracture of head bone was detected upon X ray examination. The Doctor has not opined that the head injuries or any of them were or was dangerous to the life of the injured. He no doubt stated that the condition of the injured, was serious, when he was brought to the hospital for medical examination and the injured omitted out twice or thrice in the ward. But these observations are not capable of proving that the injuries sustained by Om Prakash on his head were grievous in nature were dangerous to his life. The Doctor did not say that Om Prakash omitted out twice or thrice in the ward It is possible that on account of shock he omitted out twice or thrice and his pulse became feeble and he suffered from blood pressure for some time. But from these facts it is not established that the injuries inflicted on the head of Om Prakash were sufficient in the ordinary course of nature to cause his death. It is no doubt true that section 307, IPC is applicable even if no hurt is caused. The causing of hurt is only an aggravating circumstance and the intention contemplated by this section can be presumed otherwise than from the nature of the act. All that is necessary is that the intention or knowledge, which is necessary to constitute murder, must be established or proved independently of the Act. The causing of hurt is only an aggravating circumstance and the intention contemplated by this section can be presumed otherwise than from the nature of the act. All that is necessary is that the intention or knowledge, which is necessary to constitute murder, must be established or proved independently of the Act. As stated earlier, in the instant case, no such intention which is necessary to constitute murder is proved, nor can it be gathered from the nature and the number of the injuries that were caused on the head of Om Prakash by the appellants. There is another circumstance which negatives any intention on knowledge on the part of the appellants to kill Om Prakash. The circumstance is that when Oat Prakash was forcibly taken away to the house of Badan Singh and the doors of the house were closed, Om Prakash was all alone and could be done away with easily by the appellants, if they intended to do so, but, curiously enough, Om Prakash was permitted to go outside by Badan Singh at the instance of Hari Shankar, P.W. 2 and others. If the appellants wanted to kill Om Prakash they could have done so by inflicting fatal blows on the body of Om Prakash when the latter had been brought inside the house of Badan Singh Consequently, I am of the view that the trial Judge was not justified in holding the appellants guilty of the offence punishable under section 307, IPC. 8. The result of the above discussion is that findings of the lower court as to the guilt of the appellants under sections 147 and 323 read with section 149, I.P.C. cannot be disturbed and are hereby confirmed while its finding as the guilt of the appellants under section 307 I.P.C. is liable to be set aside, because it is not based on correct appreciation of the entire evidence on the record. 9. As regards sentences awarded to each appellant under sections 147 and 323 read with section 149, I.P.C the contention of Mr. Bhim Raj Purohit is that after their convictions Badan Singh and Sardul have undergone rigorous imprisonment for three month each while Avtar Singh served out 1 month and 18 days rigorous imprisonment, Ranjeet Singh served out 1 month and 19 days rigorous imprisonment and Biri Singh served out 2 months at 4 days rigorous imprisonment. Bhim Raj Purohit is that after their convictions Badan Singh and Sardul have undergone rigorous imprisonment for three month each while Avtar Singh served out 1 month and 18 days rigorous imprisonment, Ranjeet Singh served out 1 month and 19 days rigorous imprisonment and Biri Singh served out 2 months at 4 days rigorous imprisonment. Apart from this, Badan Singh, Sardul Singh were throughout in during trial from the date of their arrest, i.e. 26-3-1975 to the date of conviction, i e. 18-10-1975 i.e. for 6/1/4 months while Veer Singh and Avtar Singh were in jail from the date of their arrest, i.e. 26-3-1975 when they were released on bail. Thus, each of them remained in jail during investigation, enquiry and trial for 5 months and 3 days. Mr. Bhim Raj, therefore, submitted that the ends of justice would be met if they are not sent to jail again and their sentences under sections 147 and 323 read with section 149, I.P.C. are reduced to the term already undergone by them. The above contention is not devoid of substance, because after going through the record I have found the appellants have already served out the sentences as Calculated and mentioned above. Apart from that they have remained in judicial custody from the date of their arrest, i e. 26-3-75 to the dates mentioned above. Consequently, I am of the view that the ends of justice would be met if the sentences awarded to them are reduced to the term already undergone by them. 10. I, therefore, partly accept the appeal filed by Badan Singh, Sardul Singh, Avtar Singh, Ranjeet Singh and Biri Singh and set aside their convictions and sentences under section 307, I.P.C. and acquit them of the same and. However, While maintaining the convictions of such appellant under sections 147 and 323 read with section 149, I.P.C reduce the sentences awarded to him for the aforesaid offences to the term already undergone by him. The appellants are on bail and need not surrender to their bail bands, which are hereby cancelled.Appeal Partly Accepted. *******