H. C. Goel, J ( 1 ) THIS is an appeal by Jai Bhagwan, Jai Gopal and Jaiparkash against their conviction under section 325 read with section 34 IPC and section 452/34 Indian Penal Code and the order directing their release on probation ontheir furnishing bonds in the sum of Rs. 5. 000. 00 each with one surety each inthe like amount for a period of two years to keep peace and to be of goodbehaviour. The three appellants were also directed to pay Rs. 500. 00 each ascosts of the prosecution by the impugned judgment and order of Mr. R. C. Jain,additional Sessions Judge both dated 20/06/1983. The prosecution casestated in brief is that injured Dayal Dass and his brother Om Prakash Public Witness 6used to reside in house No. 367 village Tihar. All the six accused includingthe three appellants used to reside in house No, 197 village Tihar, the thirdor fourth house from the house of Dayal Dass. The five accused, other thanudho Dass accused, are real brothers. The relations between accused personsand the family of Dayal Dass, injured, were strained. A quarrel had takenplace between the two parties prior to the date of occurrence or 7/11/1980. Both these parties were also earlier proceeded against under section191 Criminal Procedure Code On 7/11/1980 at about 8 p. m. which was the day ofdiwali festival, Om Prakash and Krishan Luthra, PWs were lighting candleson the roof of their house. Jai Bhagwan, Jai Parkash and Jai Gopal, thethree appellants, came to the roof of the house adjoining to the house of thecomplainant. The appellants shouted at 0m Prakash and Krishan Luthra andtold them that they would see as to how they would celebrate Diwali on thatday. On this 0m Prakash came down from the roof. Krishan Luthra wentand lodged a report with the police about this incident. Then at 9 p. m. ofthe same day day, the three appellants came to the house of the complainanton a motor cycle armed with lathis. They parked the motor cycle in front ofthe house of Dayal Dass. They all went inside his house. Udho Dass coaccused was present outside the house and gave an. exhortation to his fiveco-accused saying that they should finish Dayal Dass. On that Dayal Dasswas given beating with lathis by the three appellants, 0m Prakash saw thisoccurrence. They parked the motor cycle in front ofthe house of Dayal Dass. They all went inside his house. Udho Dass coaccused was present outside the house and gave an. exhortation to his fiveco-accused saying that they should finish Dayal Dass. On that Dayal Dasswas given beating with lathis by the three appellants, 0m Prakash saw thisoccurrence. He went inside a room of the house where women folk werepresent and could not come to the rescue of Dayal Dass. The other twoaccused viz. Jai Kishan and Jai Kumar came at the roof of the house of Dayaldass. They pelted stones and brickbats from there inside the court-yard ofdayal Dass. None was, however, injured by those stones etc. 0m Prakashwent to the police station Tilak Nagar and lodged the FIR. Dayal Dass wastaken to the Willingdon Hospital by Lok Nath PW. As per the medicalevidence Dayal Dass sustained a fracture of the shaft of 3rd, 4th and 5th leftmetacorpal bones, besides getting bruises on his bo and a CLM of 2" x1"on chin and a haematoma. ( 2 ) THE prosecution relied on the statement of the injured Dayal Dassand the only other eye witness 0m Prakash PW 6 who supported the versionof the prosecution at the trial of the case. The accused appellants in theirstatements under section 313 Cr. P. C. denied having come to the house of thecomplainant any having given any beating to Dayal Dass. They led someevidence in defence to show that the police bad registered a case under section307 IPC against Krishan Parkash and Dayal Dass on September 15, 1980,which was, however, later cancelled. The accused tried to show that the policewas interested in the complainant and his family and particularly SI 0mprakash of the Police Station Tilak Nagar was so interested. The learnedtrial court came to the conclusion that the three appellants had given lathiblows to Dayal Dass. All the six accused had been charged for offencespunishable under sections 147, 148, 452 read with section 34 and under section 307 read with section 34 IPC. ( 3 ) THE three appellants were convicted for the offences punishableunder section 452/34 and section 325/34 IPC. They were, however, acquittedof the offences under sections 147 and 148 IPC. The three co-accused of theappellants viz. Udho Dass, Jai Kishah and Jai Kumar were acquitted of all theoffences charged. ( 3 ) THE three appellants were convicted for the offences punishableunder section 452/34 and section 325/34 IPC. They were, however, acquittedof the offences under sections 147 and 148 IPC. The three co-accused of theappellants viz. Udho Dass, Jai Kishah and Jai Kumar were acquitted of all theoffences charged. ( 4 ) AS mentioned by me already above, the only material evidence ofthe prosecution consists of the statement of Dayal Dass PW 2 and 0m Prakashpw 6. They narrated the prosecution version. They stated that all the threeappellants had come to their house armed with lathis and all three of themgave beating to Dayal Dass with lathis. They also stated that Udho Dassaccused had given exhortation to the appellants to furnish Dayal Dass andother two co-accused of the appellant, namely, Jai Kishan and Jai Kumar hadpelted stones from the roof of their house in the court-yard of their housewhere Dayal Dass was beaten. The learned trial court rejected the testimonyof both these witnesses in so far as they stated that Udho Dass accused hadgiven the said exhortation to the three appellants and about the two co-accusedof the appellants Jai Kishan and Jai Kumar having pelted stones from theroof of the house of Dayal Dass. About Udho Dass accused it was observedby the trial court that it was brought on the record that Udho Dass had noprevious enmity with Dayal Dass or any of his brothers and, therefore, it didnot seem to be probable that he would have given exhortation to his co-accused i. e. the appellants to do away with Dayal Dass. As regards Jai Kishanand Jai Kumar it was observed that it seemed difficult, if not impossible, thatthey would have crossed over to the roof of the house of the complainantafter crossing the roof of the intervening house and would have pelted stonesetc. from the roof top and that part of the prosecution story seemed to benothing but an improvement made with the sole object of roping in two morebrothers of the accused persons. The learned Additional Sessions Judge alsoobserved that it came in the prose cution evidence that Jai Kishan and Jaikumar had throws a cot after crossing over from the roof of the house, butthe fact that the police did not take into possession any broken cot showedthat that was an untrue statement of theprosecution witnesses. The learned Additional Sessions Judge alsoobserved that it came in the prose cution evidence that Jai Kishan and Jaikumar had throws a cot after crossing over from the roof of the house, butthe fact that the police did not take into possession any broken cot showedthat that was an untrue statement of theprosecution witnesses. The learnedtrial court thus having rejected the part version of these two witnesses andbeing of the view that they were not wholly truthful witnesses and hadimpleaded three accused persons, two of which were roped in being brothersof the three appellants, the question for consideration was as to how far it wassofe to convict the three appellants for the offences in question. The oneimportant thing to note in this regard and which fact was also taken note ofby the learned trial court but not given any consideration is that the prosecution version, namely, that the three appellants had given a number of lathiblows to Dayal Dass was not supported by medical evidence as aduced on therecord. As per the medical evidence Dayal Dass got a fracture of the shaftof 3rd, 4th and 5th left metacorpal bones, a CLWn his chin and one otherhaematoma and some bruises over the body. The fracture of the three metacorpals clearly appears to have been caused by a single lathi blow. The CLWon the chin could be caused by striking against the surface of the courtyardin fall and so could the bruises on the body be caused in the fall on the groundand in the scuffle that took place. It may be that only two of the three appellants or any two of the five accused who are real brothers and all of whomquite similar names had quarrelled with Dayal Dass and they caused him hurtwith lathis and Dayal Dass and his brother Om Prakash PW 6 roped in oneother brother of them, just as the learned trial court took the view and rightlyso that both these witnesses appeared to have roped in the other two brothersof the appellants. It is also worth nothing that neither Dayal Dass PW ; nor0m Prakash PW 6 stated anything as to which of the three appellants gavelathi blows or blow on which part of the former. They were also unableto say as to how many blows were given by which of the three appellants orwho gave more blows and who gave less blows. They were also unableto say as to how many blows were given by which of the three appellants orwho gave more blows and who gave less blows. They have not been able tosay anything more than this that all the three appellants gave lathi blows todayal Dass. Under such a situation all the three appellants were entitled tobe given the benefit of doubt as it was not possible to pin point as to whichone or two of them had quarrelled with Dayal Dass and caused him hurt. The Dor-examination of any witness from the locality which was an inhabited areaalso went against the case of the prosecution. As regards the evidence of 0mprakash PW 6, apart from the fact that he is the real brother of Dayal Dassinjured, his presence at the time of the main occurrence was even doubtful. His cross-examination reveals that he did not take any action in removingdayal Dass to the hospital or for giving him any medical aid while Dayal Dassremained lying unconscious at bis home. He stated that he came out of theroom only when the police had arrived at their house. This conduct of thewitnesses appears to be abnormal and inconvincing. It certainly lends supportto the defence version that this witness was not present at the time of theoccurrence and must have come there some time thereafter. In view of whathas been said above I accept the appeal, set aside the conviction and thesentence of all the appellants and acquit them of all the offences giving themthe benefit of doubt.