K.S. LODHA, J.—During the famine works, a road was to be constructed from Hotrada Nada to Ajit, about 6 kms. Long. Sanction by the State Govt. in this regard had been issued on 27/28.5.83 and the work of construction started on 30.5 83. The construction was started from Ajit and was proceeding towards Samdari. It is alleged that the Sarpanch of Gram Panchayat Ajit, Shri Bakhtawar Singh asked the mistry Natwar Lal etc. to stop the work of the road. The Sarpanch Shri Bakhtawar Singh wanted that the road should proceed via Dudrada. On this, the matter was reported to the local M.L.A., Shri Dhara Ram, whereupon the Assistant Engineer, P.W.D., Samdari, met Shri Dhara Ram and he was told by Shri Dhara Ram that the road should continue from Hotrada Nada. The work was then resumed on 4.6.83 but on 5.6.83 again Shri Neku Khan reported to Shri Dhara Ram that Shri Bakhtawar Singh had threatened him with dire consequences if the road would start from Hotrada Nada and had asked him to stop the construction of the road. Shri Dhara Ram assured Neku Khan that nothing will happen and that the work should continue. Then on 8.6. 83, when Shri Dhara Ram, M.L.A. was sitting in the Co-operative Bank, Samdari, Sarpanch Bakhtawar Singh came there and asked Shri Dhara Ram to get the work of the road stopped and also threatened him to the effect that if the work continued, he would see him and Neku Khan. Shri Dhara Ram tried to appease Shri Bakhtawar Singh and told him that if he had any objection, he should take recourse to legal proceedings. On this Bakhtawar Singh and his com-panions left the place in anger. However, it appears that before this on that very day i.e. on 8.6.83 at about 10 a.m , Mool Singh and some other persons wanted to stop the construction and threatened the labourers not to continue the work of the road, whereupon Neku Khan and others are alleged to have attacked them and an altercation is alleged to have taken place between both the parties. Reports of this incident were lodged at police station, Samdari. A case against Neku Khan, Akbar Khan and others was registered as No. 46/83 at about 5.30 p.m. and a counter case was also registered against the other party. 2. Reports of this incident were lodged at police station, Samdari. A case against Neku Khan, Akbar Khan and others was registered as No. 46/83 at about 5.30 p.m. and a counter case was also registered against the other party. 2. Then it is alleged that on 9.6.83, at about 10.30 or 11 a.m., both the parties collected at Hotrada Nada where the work of the road was in progress. The M.L.A., Shri Dhara Ram along with S. D. O. and some other persons had reached there and Bakhtawar Singh and his party was also there. The Junior Engineer, Shri Mathur, two Patwaris were also there. It is alleged that the revenue record was looked into and the S.D.O. decided that the work should continue as it was in accordance with the katan road. When this decision was taken, Neku Khan declared that Bakhtawar Singh had threatened him and may get him killed adding that if he was so killed, his statue may begot constructed and inaugurated by Smt. Indira Gandhi. However, the S. D. O. instructed the police to afford him protection and to maintain peace and on this all the parties left. The work continued. When these persons reached village Ajit, at about 11 a.m. they found some 30 or 40 persons having collected in the Panchayat Bhawan and it is alleged that Sarpanch Bakhtawar Singh told the crowd that as the S.D.O. has not stopped the work of the road, they should go to the site with lathis and get the work stepped by beating people upon sensing trouble, Sale Mohd. went to Akbar Khah at his well and asked Akbar Khan to intervene, whereupon Akbar Khan went to Hotrada Nada. On the way, after they came 4 or 5 kms., Akbar Khan saw a tractor driven by Narpat Singh along with a trolley coming from the side of Hotrada Nada towards Ajit and that there were about 50 persons in the trolley. He then met Ridmal Khan at about 3 p.m. who had also seen the tractor coming. It is alleged that Ridmal Khan heard the accused Banshu Khan, Safi Mohd., Narpat Singh, Bheekh Singh and Mukan Singh saying that this was the opportunity to beat them up and crush them under the tractor. He then met Ridmal Khan at about 3 p.m. who had also seen the tractor coming. It is alleged that Ridmal Khan heard the accused Banshu Khan, Safi Mohd., Narpat Singh, Bheekh Singh and Mukan Singh saying that this was the opportunity to beat them up and crush them under the tractor. Hearing this exhortation from these persons, all the persons came down from the tractor with lathis and dharias and started beating Neku Khan, Subhan Khan, Akbar Khan, Samad Khan, Ratan Khan and Sadique Khan. Latter Akbar Khan and Neku Khan were crushed under the wheels of the tractor. After this, the trolley which was earlier got separated from the tractor, was again joined to the tractor and Narpat Singh and his party left for Ajit in that tractor and trolley. Later Ridmal Khan, Dalu Khan, Sadique and Kamruddin brought two chhakar-as and carried the injured to the hospital, Samdari. Neku Khan died on the way and Akbar Khan also breathed his last on reaching the hospital. Ridmal Khan then went to the police station, Samdari and lodged the F.I.R.. at 9 p.m. Ridmal Khan was a mate on the work of the road. On this, a case was registered under sections 147, 148, 149, 302, 307 and 325 I. P. C. After due investigations, the police put up a challan against 27 accused persons and they were committed to the Court of the learned Sessions Judge, Balotra camp Barmer, who framed charges under sections 148, 302 or 302 read with 149, 323, 325 and in the alternative u/s 323/325 read with 149 I. P. C. against all of them. The prosecution examined 26 witnesses and produced 132 documents, and 13 material exhibits. The accused denied the prosecution story and alleged that when the accused party had been beaten up by the members of the opposite party on 8.6.83, they got a case registered against them with the police and the S.H.O. was to come for investigations in respect of that matter at the spot on 9. 6. 83 an J, therefore, they had also gone to the spot in the tractor. According to them, as soon as the" tractor reached the spot, Neku Khan and others who were armed with lathis, assaulted them and they acted in their right of self defence. They produced three witnesses in their defence and also produced more than 30 documents. 3. 83 an J, therefore, they had also gone to the spot in the tractor. According to them, as soon as the" tractor reached the spot, Neku Khan and others who were armed with lathis, assaulted them and they acted in their right of self defence. They produced three witnesses in their defence and also produced more than 30 documents. 3. After hearing the parties and considering the evidence, the learned Sessions Judge came to the conclusion that the accused party had formed an unlawful assembly. In the first place, the common object of the accused party was to get the work of the road stopped by using force and not to kill Neku Khan or Akbar Khan but after reaching the spot, they saw Neku Khan and Akbar Khan, we had nothing to do with the work of the road and got enraged by their presence and a call was given out that they may be done to death and, therefore, at that stage, the common object of their unlawful assembly turned into the one for causing the deaths of Neku Khan and Akbar Khan and that Neku Khan and Akbar Khan were killed in furtherance of that common object. He further found that there was no right of private defence available to the accused persons because even if they were opposed to the construction of the road as decided by the S.D.O., they had ample opportunity to take recourse to higher authorities. He was also of the view that as a matter of fact, there was no conspiracy hatched and that Bakhtawar Singh was wrongly implicated by making out the story of conspiracy. He, accordingly, acquitted Bakhtawar Singh. According to him, their was direct evidence of the participation of Bheekhsingh, Mukan Singh, Mag Singh, Kalia Raika, Suja Chaudhary, Aalija, Ratnia, Luku-mdin and Surtu Khan. He also found that injuries to Neku Khan deceased were caused by Banshu Khan, Bheekh Singh, Mukan Singh and Vijai Singh with lathies and that Narpat Singh passed over the tractor over him. He, however, found that Safi Mohds participation in causing injuries with a Dharia on the head of Neku Khan was not established. So far as the injuries on the person of Akbar Khan are concerned, he found that accused Ramu Ram Choudhary, Rama Bheel, Binjia Bheel and Kheem Singh were responsible for causing injuries with lathis to him. He, however, found that Safi Mohds participation in causing injuries with a Dharia on the head of Neku Khan was not established. So far as the injuries on the person of Akbar Khan are concerned, he found that accused Ramu Ram Choudhary, Rama Bheel, Binjia Bheel and Kheem Singh were responsible for causing injuries with lathis to him. However, later he found that participation of Rama Chaudhary in this incident was not established beyond doubt. As regards the injuries to the persons of the accused, the learned Sessions Judge was of the opinion that it was not specifically proved that the accused persons had received injuries on 9.6.83 during this incident and it may be that they had received some injuries during the incident, which had taken place on 8.6 83. He was further of the opinion that the injuries to the persons of the accused were only superficial and, therefore, the prosecution was not bound to explain those injuries. In the ultimate analysis, he found that the prosecution had not been able to establish the participation of the accused Rama Ram Chaudhary, Gulab Khan, Safi Mohd., Uka Ram, Dungar Singh, Ridmal Khan and Sanwala Ram. He, therefore, gave them benefit of doubt and acquitted them. He convicted the rest 20 accused u/s 147 I.P.C. but acquitted them u/s 148 as according to him, they were only armed with lathis, which were not deadly weapons. Me also convicted these 20 accused persons u/s 302 read with Sec. 149 I.P.C. He -further convicted them u/s 323 read with 149 I.P.C. and also u/s 325/149 I.P.C. he sentenced all the above 20 accused persons to imrisonment for life u/s 302 read with 149 the above 20 accused persons to imprisonment for life u/s 302 read with 149 I.P.C. He further sentenced them to two years rigorous imprisonment u/s 325 read with 149 I.P.C. along with a fine of Rs. 200/- each in default one months simple imprisonment. He also sentenced them to six months simple imprisonment u/s 323 read with Sec. 149 I.P.C. These 20 accused persons were further sentenced to one years rigorous imprisonment each u/s 147 I.P.C. along with a fine of Rs. 100/-each and in default 15 days simple imprisonment. All the substantive sentences were made to run concurrently. He directed that the tractor Art. A9, Dynamo Art. A10 and Self Art. All shall stand forfeited to the State. 100/-each and in default 15 days simple imprisonment. All the substantive sentences were made to run concurrently. He directed that the tractor Art. A9, Dynamo Art. A10 and Self Art. All shall stand forfeited to the State. Rest of the articles shall be destroyed after the limitation for filing appeal expired. Aggrieved of this judgment of the learned Sessions Judge, Balotra, camp Barmer dated 15.4.85, the 20 accused appellants have filed Appeal No. 122/85. 4. Aggrieved of the acquittal of Safi Mohd. the State after obtaining leave to appeal has filed Appeal No. 236/85. 5. Veerma Ram, who alleges to be the owner of the tractor has filed Appeal No. 133/85 against that part of the judgment of the learned Sessions Judge by which the tractor, dynamo and self had been directed to be forfeited. 6. As all these three appeals arise out of the same Sessions Case, we will dispose of all the three of them by a single judgment. 7. We have heard the learned counsel for the appellants and the learned P.P. and have gone through the record. 8. The learned counsel for the 20 appellants has urged that the learned Sessions Judge was wrong in holding that the accused persons were members of an unlawful assembly and had also gone wrong in refusing the right of private defence of their person and property to the accused. According to him, the prosecution story has been wrongly made up by forging the F.I.R. and as a matter of fact, the incident did not take place in the manner alleged by the prosecution but it took place in the manner alleged by the accused. He further urged that even if it is held that the accused had no right of private defence, then it was a case of free fight and the individual accused could have been convicted on the basis of the part played by him but they could not have been convicted by resorting to s. 149 I.P.C. The learned P.P. on the other hand, supported the findings of the lower court. 9. We shall first take up the question as to how the incident took place i.e. whether it had taken place in the manner alleged by the prosecution or not. In this connection, it may be pointed out that the F.I.R. narrates the earlier incident and the coming of the S.D.O., J. En. etc. 9. We shall first take up the question as to how the incident took place i.e. whether it had taken place in the manner alleged by the prosecution or not. In this connection, it may be pointed out that the F.I.R. narrates the earlier incident and the coming of the S.D.O., J. En. etc. on the spot and deciding that the construction of the work should continue and then says that the parties left the spot and went to Ajit in the Panchayat Bhawan where some people had collected. There the Sarpanch told them that the S.D.O. had refused to stop the work and, therefore, they should get that stopped by force of lathis and there after the accused persons came to the spot in the tractor and trolley driven by Narpat Singh. There, they started giving beating to the injured persons on the side of the complainant, namely, Neku Khan, Subhan Khan, Akbar Khan etc. and thereafter Neku Khan and Akbar Khan were crushed under the tractor: Thus, according to this version of the prosecution, the accused persons bad gone to the spot armed with lathis etc. with the intention of giving beating to the complainant party and thereafter also to crush -Neku Khan and Akbar Khan under the tractor. This F.I.R. is alleged to have been lodged at about 9 p.m. but on a careful perusal of the record, it would go to show that this F.I.R. was perhaps not the original information, which had reached the police station. It may be mentioned that the police had started taking action in connection with this incident even before this F.I.R. was recorded; In this respect, it may be pointed out that although the report is alleged to have been lodged at 9 p.m. on 9.6.83, it reached the Court on 14.6 83. The delay is sought to be explained on the ground that holidays had intervened though it is admitted that 10th June, was a working day. The learned Sessions Judge has accepted this explanation for the delay in the F.I.R. reaching the Court but to us, this explanation does not appear to be satisfactory at all. There is absolutely no reason coming forward from the side of the prosecution why the report did not reach the Court on 10th itself, which was admittedly a court working day. There is absolutely no reason coming forward from the side of the prosecution why the report did not reach the Court on 10th itself, which was admittedly a court working day. Apart from this, even if the 11th, 12th and 13th were holidays in the Court, the F.I.R. could have been presented to the Magistrate even during the holidays and it has not at all been shown why it could not be so presented even during those holidays. It is not also shown as to who had carried the F.I.R. to the court. If that person had been produced, probably the cause of the delay could have been ascertained. 10. Not only this, it appears that even before 9 p.m. when this F.I.R. is alleged to have been registered, the injured persons had already been sent to the hospital for medical examination as would be evident from Ex. P/47 by which the injured Samdu Khan had been sent to the hospital, Samdari, and this memo had reached the Medical Officer at 8 25 p.m. as has been recorded at C to D in Ex. P/47. Similarly, injured Ratan Khan has been forwarded to the Medical Officer vide Ex. P/48 and the same reached the Medical Officer at 8.25 p.m. as recorded from C to D on Ex. p/48. So also is the case with injured Sadique whose memo is Ex. p/49, and Subhan Khan Ex. p/50 which had reached the Medical Officer at 8.25 p.m. The matter does not rest here. Even some of the injured accused had also been sent for medical examination before 9 p.m. In this respect, reference may be made to Exs. D/32.D/33 & D/34 in respect of the accused Mohd. Khan, Khiya Singh and Binjia respectively. All of them had reached the Medical Officer at 7.30 p.m. on 9.6.83 and in the body of the memo, the Criminal case No. 48 dated 9.6.88 under sections 147, 148,149, 302,307 and 323 IPC has been referred to and these persons have been described as accused in that case. It will be pertinent to mention here that by that time, the accused had not been arrested and they were arrested lateron on 17.6.83 vide Ex. p/112, 103 and 109 respectively. 11. It will be pertinent to mention here that by that time, the accused had not been arrested and they were arrested lateron on 17.6.83 vide Ex. p/112, 103 and 109 respectively. 11. Apart from this, according to this F.I.R., the accused party was the aggressor and had come prepared with the intention of giving beating to the complainant party and also to kill some of them but in the memo sent to the Medical Officer for the post-mortem examination of the two deceased, the history of the case mentioned is that, the deceased had been injured in the course of a fight. In those reports Ex.P/57 and 58 in the column, information furnished, it has been mentioned "Sustained Injuries in quarrel between two parties". It suggests that according to the police, it was a case of fight between the two parties i.e. a free fight and not aggression by one party on the other. These entries in the above reports have been proved by Dr. S.M. Mehta PW 20. Still further it will be interesting to note that the Investigating Officer Shri Bhagwan Das PW 19 had clearly admitted that by the time the post-mortem examination of the two deceased, the information with him was that both the parties had a fight between themselves. All these circumstances do point out that the incident did not take place in the manner alleged by the prosecution now in the F. I. R. and that the F.I.R Ex. P/5 on the basis of which, Ex. P/6 was recorded was not the original report filed before the police and it had been later substituted for the original one otherwise these discrepancies could not have arisen. 12. The case of the defence was that in respect of the incident, which had taken place on 8 6 83, two cross cases had been registered and in connection with the investigation of these cases, the Investigating Officer was to come to the spot on 9.6.83 and that is why, the accused party had also come to the spot in the tractor in order to assist the investigation. This part of the story has been disbelieved by the learned Sessions Judge and on the contrary, he has come to the conclusion that the accused had no business to reach the spot as alleged by them because the S.H.O. was already in the village Ajit. This part of the story has been disbelieved by the learned Sessions Judge and on the contrary, he has come to the conclusion that the accused had no business to reach the spot as alleged by them because the S.H.O. was already in the village Ajit. He has further found that the accused had formed an unlawful assembly in the village Ajit itself when they at the behest of Bakhtawar Singh decided to go to the spot to get the work of the road stopped by use of force and later at the spot, they further formed the object of killing Neku Khan and Akbar Khan. The reasons put forward by the learned Sessions Judge in this respect do not appeal to us. This is not in dispute that two cross cases had already been registered in respect of the incident, which had taken place on 8-6-83. This is also not in dispute that the Investigating Officer had come to investigate into these cases. It may be that at one point of time, he had gone to village Ajit but it cannot be denied that the accused could not have been expected to be at the site of the work when investigation in these cases was envisaged. Not only this, the theory put forward by the accused is subscribed to by some of the prosecution witnesses themselves e.g. the Investigating Officer, Bhagwan Das PW 19 himself has admitted that it was a fact that with regard to the incident dated 8-6-83, he was to go to the spot for investigations on 9-6-83 and that he had informed both the parties that he would be going to the spot on 9-6-83 although he denied that he had sent summonses to the accused party for appearing at the spot on 9-6-83. Whether summonses had been seat to them or not, is wholly immaterial when Shri Bhagwan Das admitted that he had informed the parties that he would be reaching the spot for the purpose of investigation of those two cases. Apart from Bhagwan Das, PW 11 Patwari Madan Lal also admits that he had seen the tractor and trolley carrying 50-60 people coming and when the S.D.O. enquired as to where those persons were proceeding to, then those persons replied that as the Sub-Inspector was to come to the spot for investigations, they were going there. Apart from Bhagwan Das, PW 11 Patwari Madan Lal also admits that he had seen the tractor and trolley carrying 50-60 people coming and when the S.D.O. enquired as to where those persons were proceeding to, then those persons replied that as the Sub-Inspector was to come to the spot for investigations, they were going there. Subhan Khan PW 7 also admits that the Thanedar had come for the investigations of the incident, which had happened on the earlier day in the morning and had made enquiries from the people at the spot. When the version of the accused party is thus substantiated even by the evidence of the prosecution witnesses, it cannot easily be discarded. The learned Sessions Judge was, therefore, not right in discarding this evidence which supported the defence theory merely on the ground that these casual statements of the witnesses cannot help the accused. It may be mentioned here that this is the cardinal principal of criminal jurisprudence that the defence has to make out only a plausible case and they are not required to prove their defence to hilt. Here the theory put forward by the accused is supported by the prosecution witnesses themselves including the Investigating Officer and the Patwari, who must be taken to be independent and responsible public servants. Thus this theory could not have been lightly discarded. 13. New coming to the question of unlawful assembly, it appears that the learned Sessions Judge was not at all clear in his mind regarding this and he has given contradictory finding. At one place he says the accused formed unlawful assembly at village Ajit at the behest of Bakhtawar Singh and at another he says there was no conspiracy and Bakhtawar Singh was not at all involved in the matter. Further as already stated above, he has divided the theory of unlawful assembly in two parts, namely, at first the accused had only the common object of giving beating to the complainant party in order to stop the work of the road and in the second place, after reaching the spot and seeing Neku Khan and Akbar Khan at the spot, they were enraged and at that point of time, they formed a common object of killing Akbar Khan and Neku Khan. When we have accepted the fact that the theory put forward by the accused is probable, then question of unlawful assembly for the aforesaid two objects falls through automatically. When the accused persons were going to the spot in order to assist the Investigating Officer in the investigations of the cases, which has been registered on 8-6-83, they cannot be attributed the object of getting the work stopped by use of force. It appears that when the accused persons reached at the spot and the complainant party was already there, some altercation must have taken place between them and how this altercation started, has not been explained by the prosecution by reliable and cogent evidence and their case is further made suspicious on account of the substitution of the F.I.R. as already stated above. Therefore, we are inclined to think that the genesis of the story has not been properly furnished by the prosecution. It may also be mentioned here that the approach of the learned Sessions Judge to the case is wholly wrong and improper. In order to arrive at the finding whether the accused had formed an unlawful assembly or not, he starts with considering the defence theory first and after considering the defence evidence in this respect and rejecting the same, he finds force in the prosecution story. This is not the correct approach to a criminal case. It is for the prosecution to establish its case without any reasonable doubt and it cannot take advantage of the weakness of the defence evidence, if any. Here as already stated above the defence theory is highly probable and could not have been rejected. Again it may be pointed out that if the prosecution story is to be believed, then after the S.D.O. had directed that the work of the road should continue as was desired by the M.L.A. and the accused persons being aggrieved with the decision of the S.D.O., wanted to get the work stopped by the use of force, they would not have gone, to the spot merely armed with lathies, which the villagers generally keep with them. In that, case, they would have armed themselves with some more lethal weapons. It will be interesting to note that according to the prosecution, one of the accused persons, namely Sale Mohd. In that, case, they would have armed themselves with some more lethal weapons. It will be interesting to note that according to the prosecution, one of the accused persons, namely Sale Mohd. was armed with a dharia but the learned Sessions Judge has himself, disbelieved that part of the story and has found that Sale Mohd. was not at all there or was not armed with dharia as alleged by the prosecution. Apart from this Sale Mohd., no other accused is alleged to be armed with any sharp edged weapon and this also, therefore, nullifies the story of the prosecution that the unlawful assembly had been formed by the accused persons at village Ajit itself and further probabilises the defence theory. 14. This brings us to the other part of the question whether a common object to kill Neku Khan and Akbar Khan was formed at the spot and whether Narpat Singh had crushed Neku Khan and Akbar Khan under the wheels of the tractor in furtherance of this common object. We may first consider whether infact Narpat Singh crushed Neku Khan and Akbar Khan under the wheels of his tractor. The learned Sessions Judge has clearly given two contradictory findings. We may first consider whether infact Narpat Singh crushed Neku Khan and Akbar Khan under the wheels of his tractor. The learned Sessions Judge has clearly given two contradictory findings. At one place, he observes: ^^de ls de ;g ckr rks fcYdqy Bhd gS fd VªsDVj ds Oghy usdw [kka vkSj vdcj [kka e`rdksa ds lEidZ esa t:j vk;s gSA muds mi;qZä fyf[kr pksVs yxus ds ckn u rks os nkSM+ Hkkx dj ldrs Fks vkSj u gh dksbZ vU; O;fä mu fxjs gvksa dks fQj cqjh rjg ls ekjrs] nksuksa o`) O;fä gSA ,slh fLFkfr esa ;g T;knk laHko ekyqe gksrk gS fd muds dksUVsDV esa VªsDVj dk Oghy muds vU; pksVsa yxus ds ckn vk;k gSA ;fn os fxj gh pqds Fks rks fQj eqyfte ujir flag dks muds Åij VªsDVj?kqekus dh dSlh vko;drk Fkh] gekjh le> esa ugha vkrk gSA Then at a little later stage, he observes: ^^vfHk;kstu i{k dk ;g dFku T;knk LokkHkfod ekyqe gksrk gS fd eqyfteku esa ls fdlh us ml VªsDVj dks Vªksyh ls vyx fd;k fQj eqyfte ujirflag us ml HkhM+ dks frrj fcrj djus ds fy, vFkok usdw [kk¡ vkSj vdcj [kk¡ dks nckdj ekjus ds fy, pyk fn;kA blesa ;g t:jh ugha gS fd vdcj [kkW vkSj usdw [kkW ds [kjhj ij ls gksdj ifg;k fudys gh fudysA This finding thus is self contradictory because he accepts both the probabilities, namely, that Narpat Singh may have moved the tractor in order to disperse the crowd and in the same breath, he says that he may have moved the tractor with the intention of crushing them under the wheels and along with this, he also states that it is not necessary that the wheels of the tractor had passed over the bodies of Neku Khan and Akbar Khan and still at a little later stage, he jumps to the conclusion: ^^bl izdkj ls ge ;g dg ldrs gS fd vfHk;qä ujirflag us VªsDVj ls eqLrxhl ikVhZ dks frrj fcrj djus ,oa ckn esa usdw [kka vkSj vdcj [kka dks dqpy d ekj nsus dh xtZ ls VªsDVj nkSM+k;k vkSj VªsDVj ls e`rdksa ds kjhj dks dqpykA These contradictory findings speak for themselves and to say the least, the finding is perverse. The learned Judge was not at all certain about what he was going to say finally. The learned Judge was not at all certain about what he was going to say finally. At one stage, he speaks of one thing and at another, he speaks of another possibility and at the third stage, he gives an altogether third finding, which is not at all based on any evidence worth the name and is certainly contrary to medical evidence. Dr. Mehta, PW 20 has stated in no uncertain terms that there were absolutely no crushing injuries on the persons of the two deceased. No doubt, it appears that the deceased had received some severe injuries on their chest, their ribs were fractured" and the fractured end had pierced the inner part of the body, but from this nature of the injuries, it cannot certainly be concluded that these injuries could have been caused only by moving the wheels of the tractor over the bodies of those persons. The doctor has, of course, stated that these injuries could be possible if the wheels of the tractor come in contact with the body of the deceased That means the body may have been hit but not crushed by the wheels of the tractor and at one stage, the learned Sessions Judge has himself come to the conclusion that as a matter of fact, the wheels of the tractor had not passed over the bodies of Neku Khan and Akbar Khan but may have come in contact with them. Thus, looking to these contrary findings and the clear evidence of Dr. Mehta that there were no crushing injuries on the person of the two, we are clearly of the opinion that there was no question of the accused forming an unlawful assembly at the spot also, with the common object of killing any of the members of the complainant party. According to us, the incident must have taken place all of a sudden at the spot when both the parties started fighting against each other. In other words, it appears to be a case of free fight. 15. At this stage, before coming to the individual acts of the accused persons, because in a free fight, an accused can be convicted only for the individual offence committed by each accused, we may refer to the question of private defence, which had been raised by the accused both before the learned Sessions Judge and before us. 15. At this stage, before coming to the individual acts of the accused persons, because in a free fight, an accused can be convicted only for the individual offence committed by each accused, we may refer to the question of private defence, which had been raised by the accused both before the learned Sessions Judge and before us. It may be made clear that once we have reached the conclusion that it was a case of free fight the question of private defence of person or property becomes irrelevant, but because the question has been raised we may consider it as well. Having regard to the facts and circumstances of the case, we are clearly of the opinion that no right of private defence either of property or of persons was available to the accused persons if the prosecution theory is believed. So far as the question of right of private defence of property is concerned, it may be pointed out that the work of the road had started on 30.5.83 and the Sarpanch had objected to it on 2.6.83. Thereafter on 3.6.83, the work did not take place and had been resumed on 4.6.83. If this was so, the accused could have referred to the authorities and they need not have gone to the spot to get their decision at the spot by show of force. Again according to the prosecution version, the S.D.O. had gone to the spot and after looking into the revenue records, it was decided that the work should continue as proposed by the M.L.A. Shri Dhara Ram because according to the finding of the S.D.O., the road was being constructed according to the katan road shown in the revenue records. If that was so, then also the accused could have requested the S. D. O. to get the work of the road stopped or stayed for sometime so that they could approach the higher authorities against the decision of the S. D. O. but nothing of this sort was done and, therefore, the finding of the learned Sessions Judge that the accused had opportunity to approach the authority if they considered that the road would encroach upon their fields, appears to be correct and we do not see any reason to take a different view. 16. 16. Now coming to the question of private defence of person goes, it does not appear that as a matter of fact, the assault had been initiated by the complainant party and as has been found by us, it was a case of free fight where both the parties fought against each other and injuries have been received on both the sides. While considering the question of the injuries on the persons of the accused the learned Sessions Judge observes that these injuries have not clearly been explained by the prosecution but further found that looking to the nature of the injuries (i.e. they were only superficial), the prosecution was not called upon to explain those injuries. The learned Sessions Judge has further come to the conclusion that it is not established that these injuries had been received by the accused persons in this very incident i.e. on 9.6.83 and may be that these injuries may have been received by them in the earlier incident, which took place on 8.6.83 Again to say the least, this finding of the learned Sessions Judge is perverse and even contrary to the case put up by the prosecution itself. It will be pertinent to point out that in the FIR Ex. p/5 lodged by Ridmal Khan, it has clearly been stated that the accused persons had also received injuries in this very incident. To quote the FIR says: ^^bu eqyfteku us tc usdw[kka oxSjk dks ekjihV dh rks gM+cM+kgV esa buds nks rhu vknfe;ksa ds Hkh ekeqyh pksV yxh gSA This leaves no room for doubt that at least some of the accused persons had received injuries in this very incident and this is further supported by the requisition memos Exs. P/32, P/33 and P/34 already referred to above. The learned Sessions Judge refused to place reliance on these memos by making a surmise that these injuries may have been received by the accused on 8.6.83 and they may have appeared on 9.6.83 and got them selves examined. There is no justification for such a surmise. Not only this, the learned Sessions Judge has gone to the extent of unnecessarily criticising Dr. Mehta adversely without any justification. He has observed. There is no justification for such a surmise. Not only this, the learned Sessions Judge has gone to the extent of unnecessarily criticising Dr. Mehta adversely without any justification. He has observed. ^^iznkZ ih@5] izkFkfedh 9-00 ih-,e- ij iqfyl Fkkuk lenM+h esa 9-6-83 dks isk dh xbZ gSA fnukad 9-6-93 dks chaft;k eqyfte dks 8-00 ih-,e- ij] eksgEen[kka eqyfte dks 7-30 ih-,e- ij rFkk [kheflag eqyfte dks 8-20 ih-,e- ij iqfyl izfrosnu ij MkDVj }kjk ijhf{kr fd;k x;k gSA tc dksbZ dsl ml le; rd tSj rQ~rhk Fkk gh ugha rks fQj iqfyl izfrosnu j bl dsl ds flyflys esa eqyfteku ds ijh{k.k dk dksbZ izu gh iSnk ugha gksrk gSA blls Hkh ;gh ckr ekyqe gksrh gS fd fnukad 8-6-83 dks tks >xM+k gqvk Fkk vkSj ftlds vk/kkj ij iznkZ ih@39 eqdíek dk;e gqvk Fkk mlesa gh iqfyl izfrosnu bu et:cku ds ijh{k.k ds fy, nh xbZ gSA ftldk fd ykHk yk;d odhy eqyfteku vc bl dsl esa ys jgs gS] tks ifjfLFkfr;kW ds voyksdu ls fn;k tkuk U;k; laxr ugha dgk tk ldrkA ge ;gka ij MkDVj Jh ,e-,l- esgrk ds vkpj.k dks dUMse djuk equkflc le>saxsA mlus vdcj [kka dk ijh{k.k fnukad 9-6-83 dks 8-25 ih-,e- ij fd;k gS tks iznkZ ih@56 ls Li"V gSA mlesa MkWDVj us mldh pksVksa dh vof/k ds fy, ;g fy[kk gS fd ;g pksVs vkB?k.Vs ds njfe;kus dh FkhA fQj nwljs eqyfteku vkSj et:cku ds pksV izfrosnu izi=ksa ds fy, MkDVj us ;g dSls fy[k fn;k fd ;s 24?k.Vs ds njeh;ku dh pksVs gSA ;fn MkDVj vdcj [kka ds ckjs esa ;g fy[k ldrk Fkk fd os pksVs 8?k.Vs ds njeh;ku dh Fkh rks nwljksa ds ckjs esa Hkh ,slk D;ksa ugha fy[k ldrk FkkA;g ckr MkDVj dh dk;Z dqkyrk] {kerk ,oa bZekunkjh ij ,d cM+k izu fpUg NksM+rh gSA We have carefully considered the material on record and we do not find any justification whatsoever for such a remark against the doctor in the circumstances of this case. On the other hand, the opinion of the doctor is supported by material on record. These remarks against a doctor are, therefore, uncalled for and deserve to be quashed. 17. On the other hand, the opinion of the doctor is supported by material on record. These remarks against a doctor are, therefore, uncalled for and deserve to be quashed. 17. Now coming to the individual acts of the accused persons, it may at once be stated that having gone through the evidence of the eye witnesses, Rid-mal Khan PW 5, Kamruddin PW 6, Subhan Khan PW 7, Ratan Khan PW 8, Dalu Khan PW 9, Heeru Khan PW 10, Samdu Khan PW 12 and Sadique PW 21, we are of the opinion that the cases of the accused Suleman, Jetha Ram, Mohd. Khan and Heera are such as against whom none of the eye witnesses have attributed any overt act and since they cannot be said to be members of any unlawful assembly, they cannot be held guilty by the aid of s. 149. Therefore, these four accused persons are clearly entitled to acquittal. 18. Now we shall consider the individual acts of the remaining accused persons. So far as accused Narpat Singh is concerned, it is stated that he had caused injuries by bringing the tractor in contact with the deceased Akbar Khan and Neku Khan although the witnesses have stated that Akbar Khan and Neku Khan were run over by the tractor but that evidence does not get support from the medical evidence. Since the doctor has clearly stated that there were no crush injuries on the persons of Akbar Khan and Neku Khan. This part of the evidence, therefore, appears to be by way of a little exaggeration. However, it appears that injuries no. 15 and 16 of Akbar Khan and injury no. 10 of Neku Khan were grievous. The ribs were fractured and had pierced the internal organs. Therefore, Narpat Singh could have been held guilty u/s 325 I. P. C. It is not stated by Dr. S.M. Mehta that any of these injuries by themselves were sufficient in the ordinary course of nature to cause death and, therefore, he cannot be held guilty u/s 302 or 304 I.P.C. 19. Mukan Singh is alleged to have caused injuries with a lathi on the person of Neku Khan as has been stated by all the eye witnesses. S.M. Mehta that any of these injuries by themselves were sufficient in the ordinary course of nature to cause death and, therefore, he cannot be held guilty u/s 302 or 304 I.P.C. 19. Mukan Singh is alleged to have caused injuries with a lathi on the person of Neku Khan as has been stated by all the eye witnesses. He is also said to have given lathi blows on the lower elbow of Samdu Khan and according to the doctor, this resulted into a fracture and was a grievous hurt but Samdu Khan had not attributed this injury to Mukan Singh in his police statement Ex. D/16 with which he had been confronted and he could not give any plausible explanation except saying that he had stated so before the police but the police may not have recorded it. Therefore, Mukan Singh cannot be held guilty u/s 325 I. P. C. and can be held guilty only u/s 323 I. P. C. 20. Magh Singh is said to have caused one injury with a lathi to Samdu Khan. There is a fracture of the left thigh of Samdu Khan but he also did not attribute this injury to Magh Singh in his statement Ex. D/16 before the police with which he had been confronted and gave almost same reply as in the case of Mukan Singh. Therefore, he can only be held guilty u/s 323 I.P.C. 21. Bandhu Khan is alleged to have caused simple injuries to Samdu Khan and deceased Neku Khan and, therefore, he is guilty u/s 323 I. P. C. 22. Kheem Singh is alleged to have caused simple hurt to the deceased Akbar Khan by a lathi as has been stated by almost all the witnesses and, therefore, he can beheld guilty u/s 323 I.P.C. 23. So is the case of Rama Bheel and, therefore, he can be held guilty u/s 323 I.P.C. 24. Surja Ram is alleged to have caused a simple hurt with a lathi on the person of Subhan Khan PW 7. He, therefore, can be held guilty u/s 323 I.P.C. 25. Binja is alleged to have caused a simple hurt to the deceased Akbar Khan as has been stated by all the five witnesses and, therefore, he can be held guilty u/s 323 I.P.C. 26. He, therefore, can be held guilty u/s 323 I.P.C. 25. Binja is alleged to have caused a simple hurt to the deceased Akbar Khan as has been stated by all the five witnesses and, therefore, he can be held guilty u/s 323 I.P.C. 26. Vijai Singh is alleged to have caused a simple hurt with a lathi on the person of the deceased Neku Khan and, therefore, he is guilty u/s 323 I.P.C. 27. Kaliya Rebari is alleged to have caused simple injuries with a lathi on the person of PW 7 Subhan Khan. Therefore, he can be held guilty u/s 323 I, P. C. 28. Bheekh Singh is alleged to have caused simple injuries to Samdu Khan PW 12, Sadique PW 21 and the deceased Neku Khan. Therefore he can be held guilty u/s 323 I. P. C. 29. Lukumdeen is alleged to have caused simple injuries to Ratan Khan PW 8 and, therefore, can be held guilty u/s 323 I. P. C. 30. Bhanwar Singh is alleged to have caused simple hurt to Dalu Khan PW 9 thereby can be held guilty u/s 323 I. P. C. 31. Ratan Khan is alleged to have caused simple hurt to Samdu Khan PW 7. He can, therefore, be held guilty u/s 323 I. P. C. 32. Surtu Khan is alleged to have caused simple hurt to Ratan Khan PW 8 and is guilty u/s 323 I. P. C. 33. Aalija is alleged to have caused simple hurt to Samdu Khan PW 7 and, therefore, can be held guilty u/s 323 I.P.C. 34. Thus, we acquit appellants Suleman, Jetha Ram, Mohd. Khan and Heera of all the charges. We also acquit Narpat Singh of the charges under sections 147 and 302/149 I.P.C. but convict Narpat Singh u/s 325 I. P. C. The rest of the accused Banshu Khan, Bheekh Singh, Mukan Singh, Binja Bheel, Aalija alias A-lam, Lukamdeen, Ratan Khan, Sattu Khan, Vijai Singh, Magh Singh, Bhanwar Singh, Kaliya, Surja Ram, Khem Singh and Rama Bheel are acquitted of charges under sections 147 and 302/149 but are held guilty u/s 323 I.P.C. So far as accused Narpat Singh is concerned, he has already undergone more than four years rigorous imprisonment. Therefore, in bur opinion, it would not be proper to send him back to jail. This sentence along with a fine of Rs. Therefore, in bur opinion, it would not be proper to send him back to jail. This sentence along with a fine of Rs. 500/-would., in our opinion, serve the ends of justice. He is on bail and is therefore, granted two months time to pay up the fine failing which he will undergo two months simple imprisonment. So far as the remaining accused named above are concerned, they are convicted u/s 323 I. P. C. Each of them have already undergone various terms of sentences ranging from four months to about five years. We, therefore, sentence each of them to four months rigorous imprisonment. The appeal filed by the accused is, thus, partly accepted as indicated above. 35. This brings us to the appeal filed by the State against the acquittal of Safi Mohd. Before the Court although witnesses have stated that Safi Mohd. had struck blows with the reverse side of the dharia except PW 21 Sadique but they had not stated so before the police. They had been confronted with their police statements in this respect and could not explain this omission. Ordinarily when it is stated that dharia was used in causing injuries, it must be presumed that it was from the sharp side. However, it has been found by Dr. Mehta PW 20 that there was no injury with any sharp edged weapon on the person of Neku Khan. Not only this, even if for the sake of arguments it is accepted that the wrong side of the dharia was used, then also it should have been in the circumstances of this case, caused injuries from its sharp side because the learned Sessions Judge after examining the dharia has observed that it has sharp blades on both the sides. Looking to these circumstances, the participation of Safi Mohd. appears to be wholly doubtful and the finding arrived at by the learned Sessions Judge in this connection does not appear to be perverse or improper altogether and, therefore, we will not be justified in interfering with the order of acquittal passed in favour of Safi Mohd. The State appeal, therefore, fails and is hereby dismissed. 36. The third appeal has been filed by Verma Ram, the owner of the tractor, dynamo and the shelf. The State appeal, therefore, fails and is hereby dismissed. 36. The third appeal has been filed by Verma Ram, the owner of the tractor, dynamo and the shelf. There is no dispute before us that these articles belong to him and the learned P.P. as also the learned counsel for the complainant have no objection to these articles being delivered to Veerma Ram. 37. In these circumstances, Veerma Rams appeal is allowed and it is directed that the tractor, dynamo and shelf shall be returned to Veerma Ram. We are informed that they have already been handed over to him by an interim order of this Court. They shall not be taken back from him. The personal and surety bonds in this respect, if any, shall stand cancelled. 38. The remarks against Dr. Mehta referred to above, are expunged.