JUDGMENT 1. - This is an appeal directed against the judgment dated 2.12.1983 passed by the learned Sessions Judge, Churu, whereby the learned Judge has convicted the accused appellants under Section 141 I.P.C. and sentenced them to one year's rigorous imprisonment. By the same judgment, the accused appellants were also convicted under Section 302 read with Section 149 I.P.C and sentenced to imprisonment for life, and a fine of Rs. 1000/-. and in default of payment to further undergo 6 months rigorous imprisonment. Learned Judge also convicted the accused appellants under Sections 324/149 and 323/149 and sentenced to 1 year's on the first count and 6 months rigorous imprisonment on the second count. The accused appellants were also convicted under Section 447 I.P.C. and sentenced to 3 months rigorous imprisonment. All the substantive sentences were directed to run concurrently. 2. The brief facts, which are necessary for the convenient disposal of this appeal, are that on 30.9.1981 in the evening Bhikharam, Nanuram, their sister Mst. Bali and mother Mst. Jhuma and younger sister were working in their field and removing the grass. It is alleged that in the evening accused appellants along with Sohan, Girdhari and Menki came to their field armed with lathis Jei, Chosangi and Kulhari and after coming over there they started beating to Bhikha, and Nanuram. When Mst. Bali and Mst. Jhuma tried to intervene, they were also given beating by the accused persons. As a result of the beating given to them Mst. Bali and Mst. Jhuma ran away to the near by Dhani. It is alleged that accused kept on beating Bhikharam and Nanmam. At that time Ramkaran P.W. 4 and Manaram P.W. 5 also came on the scene, but they were threatened by the accused. Therefore, they could not intervene and ran away. After giving beating all the accused persons left from there. It is alleged that at about 9 P.M. Malaram P.W. 6 uncle of the victims came back alongwith his Hock of sheeps and found Mst. Bali and Mst. Jhuma in an injured condition in the Dhani. Mst. Bali informed him about the whole incident. Thereafter Manaram found Nanuram dead and Bhikharam was alive at that time. At the same time Malaram went to the police station Sandwa and filed a report at the police station. Bali and Mst. Jhuma in an injured condition in the Dhani. Mst. Bali informed him about the whole incident. Thereafter Manaram found Nanuram dead and Bhikharam was alive at that time. At the same time Malaram went to the police station Sandwa and filed a report at the police station. The police on this information registered a case under Sections 147, 148, 149, 302, 447, 323 I.P.C. Sub-Inspector P.W. 10 Panna Lal immediately rushed to the scene of occurrence and Bhikharam injured was sent to the Hospital at Ladnu. But Bhikharam also died. After this the dead bodies of Bhikharam and Nanuram were sent for post-mortem examination. Bhikharam had about 13 injuries and out of them 10 injuries were by sharp edged weapons. He had 6 injuries of sharp edged weapons on his head and other injuries were on various other parts of the body. Nanuram deceased had in all 7 injuries on his person, out of them 5 injuries were by sharp edged weapons and one of that on his head and other injuries were on nose, left arm and back. Mst. Bail received in all seven injuries including incised wounds on the head. Likewise, Mst. Jhuma had 4 injuries including one injury on head by a sharp edged weapon. Thereafter, the police took up the investigation and some of the accused persons were arrested on 2-10-1981, namely, Rameshwar son of Muknaram, Muknaram, Laxmanram, Mst. Menki, Mst. Bali, Mst. Khoturi and some of the accused were arrested on 4-10-1981. Gandasi, Jei and Kulhari were recovered at the instance of the accused persons. Some clothes were also found to be blood stained as such they were also seized. The blood stained articles were sent to the Forensic Science Laboratory. According to the report of F.S.L. some were found to be blood stained, but they could not say whether it was human blood or not. After close of the investigation, the police filed a challan against the accused persons under Sections 302, 147, 148, 149, 324, 447 and 323 I.P.C All the accused persons were committed to the Court of Sessions for trail. The charges were framed against the accused persons under Sections 148, 302 or 302/149,324/149, 323 or 323/149 and 447 I.P.C. The accused denied the allegations. But Mst. Kheturi has deposed that they abused the S.P. & Dy. S.P. therefore all the accused were taken up in a jeep. The charges were framed against the accused persons under Sections 148, 302 or 302/149,324/149, 323 or 323/149 and 447 I.P.C. The accused denied the allegations. But Mst. Kheturi has deposed that they abused the S.P. & Dy. S.P. therefore all the accused were taken up in a jeep. Accused Bhinvaram has said that on the relevant day he, his father Muknaram, his brothers Rameshwar and Laxman, mother Mst. Kheturi and sister Bali were not at the place of incident but were in Chandai Wale field. Accused Rameshwar son of Chunaram stated that on the fateful day he was not on the scene of occurrence but was in his village. The prosecution in support of its case examined as many as 10 witnesses and Bhanwar Singh Patwari was also produced to prove the khatedari. He also produced Jamabandi Ex.P. 1 and map of the field Ex.P. 2. But he was declared hostile. 3. The learned Sessions Judge after due trial convicted the accused Muknaram, Rameshwar son of Muknaram, Laxmanram, Bhinvaram, Smt. Kheturi and Smt. Bali as aforesaid. Being aggrieved with the aforesaid judgment and conviction the appellants have preferred the present appeal before this Court. 4. We have heard Mr. Bhagwati Prasad, learned counsel for the appellants and Mr. S.S. Vyas, learned Public Prosecutor at length and have also perused the record. 5. Learned counsel for the appellants has taken us to the entire evidence and submitted that P.W. 2 Mst. Bali, P.W. 3 Mst. Jhuma. P.W. 4 Ramkaran and P.W. 5 Manaram though they have been said to be the eyewitnesses of the incident but looking to the contradictions in their statements, are wholly unreliable witnesses and the accused are entitled to acquittal. 6. As against this, learned Public Prosecutor has supported the judgment of the court below. 7. In the present case, there are four eye-witnesses of the incident, namely, P.W. 2 Mst. Bali sister of the deceased, P.W. 3 Mst. Jhuma, mother of deceased, P.W. 4 Ramkaran, a neighbour whose field is adjacent to the place where the whole incident took place and P.W. 5 Manaram likewise whose field is also adjoining to the place of occurrence. 8. P.W. 2 Mst. Bali has deposed that on the relevant day she alongwith her two brothers, namely, deceased Nanuram and deceased Bhikharam, her mother Mst. Jhuma and sister Durga were working in the field. 8. P.W. 2 Mst. Bali has deposed that on the relevant day she alongwith her two brothers, namely, deceased Nanuram and deceased Bhikharam, her mother Mst. Jhuma and sister Durga were working in the field. It is alleged that when they were removing the grass about 12 persons came there from southern field including Mst. Bali, Muknaram, Mst. Kheturi, Rameshwar S/o Muknaram Mst Mena, Rameshwar of Dusra Khede, Bhinva, Laxmanram, Sohanram and Girdhari. She further deposed that Bali was armed with Gandasi, Rameshwar II was armed with Gandasi, Menki was armed with Gandasi, Muknaram was armed with Kulhari, Kheturi was armed with iron Chosanga, Laxman Ram was armed with iron Jei and others were armed with lathis. It is alleged that Mst. Bali gave a Gandasi blow on her head, Muknaram inflicted a Kulhari blow on her left shoulder and Mena gave a blow in her back with Gandasi. It is alleged that Bali gave a Gandasi blow to her brother Nanurain's head. Rameshwar son of Mukna also gave a blow with Gandasi on the head of her brother. Another Rameshwar gave a Gandasi blow on the neck of deceased Nanu, as a result of which artery was cut and there was a gapping wound. She further deposed that her brother Bhikharam was also dealt with Gandasi blow by Bali, Rameshwar son of Muknaram also gave a Gandasi blow on the right shoulder of Bhikharam, Rameshwar II of Rede also gave a Gandasi blow on the right side of the body of deceased and thereafter Mena also gave a Gandasi blow and the remaining accused persons also gave lathi blows. She further deposed that her mother was dealt with Gandasi blow by Bali, Kheturi also gave a Chosangi blow on left hand of her mother. Sohan also gave a lathi blow. She further deposed that they cried for help which attracted Manaram Jat and Ramkaran. They were also chased away by Bali, Muknaram and Kheturi. Therefore, they could not come near to save them. It is alleged that at late night when her uncle Malaram came they informed him about the whole incident. Thereafter, a report was filed at the police station. Nanuram died on the spot, whereas Bhikharam who was alive was immediately removed to Hospital and there he expired. Therefore, they could not come near to save them. It is alleged that at late night when her uncle Malaram came they informed him about the whole incident. Thereafter, a report was filed at the police station. Nanuram died on the spot, whereas Bhikharam who was alive was immediately removed to Hospital and there he expired. In her cross-examination she was confronted with her police statement and she stated that her statement was recorded by the police on 6th or 7th day as she was not fully conscious upto 5th day of the incident. She further deposed that perhaps her statement was recorded twice. She deposed that her second statement was recorded after 5 days. The A. P. P. was asked about the second statement and he after examining the file stated before the learned Sessions Judge that only one statement is available on the file. She was confronted with portion A to B of her police statement Ex. D. 1, wherein she has stated that out of these accused persons who have beaten Bhikha, Nanuram or her mother and on which part of the body. When she was confronted with this portion of her police statements she got out by saying that she did stated before the police in the manner she has stated today. She has also stated that after receiving Gandasi blow on her head she fell down and became unconscious. 9. P. W. 3 Mst. Jhuma is mother of both the deceased. She has also received 4 injuries including one injury on her head by a sharp edged weapon. She has also deposed that at the relevant day she was working in the field along with her sons Nanuram and Bhikharam, her daughters Mst. Bali and Durga. In the evening accused Rameshwar, Laxmanram, Muknaram, Bali, Bhinvaram, Girdhari, Sohan, Kheturi and Menki came in her field. Out of these accused persons, Muknaram was armed with Kulhari. Both Rameshwar, Bali and Menki were armed with Gandasis, which is used for Sund (agricultural purposes), Mst. Kheturi was armed with a Chosangi and Laxmanram was armed with a Jei. The remaining accused persons were armed with lathis. It is alleged that all these 10 persons coming over there started beating to her sons Nanuram and Bhikharam. She alleged that she was given a Gandasi blow on her head by accused Rameshwar son of Muknaram. Kheturi was armed with a Chosangi and Laxmanram was armed with a Jei. The remaining accused persons were armed with lathis. It is alleged that all these 10 persons coming over there started beating to her sons Nanuram and Bhikharam. She alleged that she was given a Gandasi blow on her head by accused Rameshwar son of Muknaram. She was also given a blow with Chosangi by Mst. Kheturi. Sohan gave a lathi blow on her back. She has also deposed that her daughter Mst. Bali was given beating by Muknaram with Kulhari. She has deposed that Nanuram died on the scene. She after deposed that at that time Manaram P. W. 5 and Ramkaran P. W. 4 came near the scene of occurrence to rescue them. But they were also chased away as they were threatened by these accused persons. Thereafter, she deposed as to how Malaram came and the matter was reported to the police and injured and deceased were taken to the Hospital She was also confronted with portion A to B of her police statement Ex. D. 2 wherein she has stated that as a result of the injuries on her head some blood came out but it did not stain her clothes. 10. Another witness is P. W. 4 Ramkaran, whose field is adjoining to the place where the whole incident took place, P. W. 4 Ramkaran has deposed that as soon as he heard the cries coming from the adjoining field, he reached there. There was bright light and she saw Rameshwar son of Muknaram, Muknaram, Bali and Laxman in the field of the deceased. He did not see the remaining accused. According to his statement, Bali was armed with Jei, Muknaram was armed with Kulhari and Rameshwar son of Muknaram was also armed with lathi and Laxman was armed with Chosangi. He deposed that all these 4 persons gave beating to deceased Nanuram and Bhikharam who were lying on the ground. He further deposed that he went to rescue them but they were threatened by these persons. Therefore, he did not go near them. He deposed that his statement was perhaps taken on the same day or the next day morning. But his statement was recorded by the police bears the date 3rd October 1981. He further deposed that he went to rescue them but they were threatened by these persons. Therefore, he did not go near them. He deposed that his statement was perhaps taken on the same day or the next day morning. But his statement was recorded by the police bears the date 3rd October 1981. He has also deposed that at the same time P. W. 5 Manaram also reached at the scene of occurrence. He also could not rescue the deceased. He deposed that thereafter the police came in the night and necessary investigation was taken up. 11. P. W. 5 Manaram also deposed that when he heard the cries, he also reached at the scene along with Ramkaran. He saw 3-4 persons and in that he found Muknaram, Bali and Muknaram's sons and one were person. He has deposed that they were giving beating to Nanuram. He deposed that all the three persons were armed with lathis and he did not pay much attention as to what transpired. He admitted that police got a Kulhari recovered ai the instance of Muknaram. Though this witness was not declared hostile but he as a matter of fact did not support the prosecution story in a substantial manner. 12. These are the 4 eye-Witnesses of the incident. Mr. Bhagwati Prasad, learned counsel for the appellants submitted that as Mst. Bali become unconscious with the blow given on her head and she immediately rushed to save herself in a near-by Dhani. Therefore, she could not see the whole incident. Secondly, learned counsel submitted that as per her own statement, her statement was recorded after 6-7 days and the prosecution could not give account for her second statement as alleged by her. Therefore, learned counsel submitted that she is not an wholly reliable witness and no credence can be given to her statement. Likewise, learned counsel also criticised the testimony of Mst. Jhuma mother of the deceased because she also became unconscious as per her own statement and went to save herself in a Dhani. Therefore, the testimony of this witness also cannot take the case of the prosecution any fox. Learned counsel has submitted that as against the statement of P. W. 2 Mst. Bali and P. W. 3 Mst. Jhuma mother of the deceased because she also became unconscious as per her own statement and went to save herself in a Dhani. Therefore, the testimony of this witness also cannot take the case of the prosecution any fox. Learned counsel has submitted that as against the statement of P. W. 2 Mst. Bali and P. W. 3 Mst. Jhuma, P. W. 4 Ramkaran who is an independent witness has deposed that he only saw Muknaram armed with Kulhari, Rameshwar son of Muknaram armed with lathi and Bali with Jei & Laxman was armed with Chosangi. Learned counsel submitted that according to the statement of Ramkaran P. W. 4, there were only 4 persons, whereas as against this P.W.2 Mst. Bali and P. W. 3 Mst. Jhuma have named about 10 persons. Learned counsel further submitted that P. W. 5 Manaram has also named only three persons, namely, Muknaram, Muknaram's son Rameshwar and Bali. He has deposed that they were armed with lathis only. Thus, learned counsel submitted that if the testimony of these 4 witnesses is read together then it transpired that the prosecution has not come forward with the correct picture as there are major contradictions in the statement of the witnesses who have seen the occurrence in regard to number of the accused as well as their identity. The prosecution has failed to establish the identity of the accused person who participated in the beating. Learned counsel also submitted that as per the statement of Mst. Bali her two statement were recorded but he was given copy of only one statement. 13. We have scrutinised the testimony of all these witnesses. It is true that so far as the number of accused persons is concerned there is a difference between the two versions, one given by the two injured ledy-witnesses, namely, Mst. Bali P. W. 2 and Mst. Jhuma P. W. 2 and the another given by the independent witnesses. It may be possible that they might have exaggerated the incident to some extent. But to say that they are wholly unreliable witnesses is not correct. It was the prosecution's case right from beginning that these two injured witnesses along with two deceased and one more girl i.e. daughter of Mst. Jhuma were working in the field. This is evident from the fact that out of the same incident Mst. Bali and Mst. But to say that they are wholly unreliable witnesses is not correct. It was the prosecution's case right from beginning that these two injured witnesses along with two deceased and one more girl i.e. daughter of Mst. Jhuma were working in the field. This is evident from the fact that out of the same incident Mst. Bali and Mst. Jhuma have also received various injuries on their persons including injuries with sharp edged weapons on their head. Their presence at the scene of occurrence is beyond doubt. 14. Now, the question arises for our consideration is as to what extent these witnesses is to be believed regarding the number of accused who participated in the incident. It is true that both the witnesses have deposed that about 10 persons were there who came their field armed with lethal weapons and administered the beating to both the deceased and the witnesses themselves. It is also true that looking to the injuries which were sustained by them, it is not unlikely that their fragile body would not have stood the blow with sharp edged weapons like Kulhari and Gandasi and they might have lost consciousness for moment. But to say that they were not the eye-witnesses of the incident is not correct. Both the witnesses are uniform in their statement regarding the seven accused persons who gave beating to them and the deceased and have form lawful assembly. In order to check the veracity of these witnesses by another set of eye-witnesses then their version of giving beating to the deceased and them can be accepted to the extent it stands corroborated from the testimony of P. W. 4 Ramkaran and P. W. 5 Manaram, independent witnesses. P. W. 4 Ramkaran has mentioned the names of only 4 accused persons, namely Muknaram, Rameshwar s/o Muknaram, Mat. Bali. Therefore these 4 persons identity who came on the scene of the occurrence stands squarely corroborated by the testimony independent witnesses. It is true that P.W. 5 Manaram who is also a neighbour accepted that 4 persons were there namely Muknaram, Mst. Bali and Muknaram's son namely Rameshwar and one more person. This witness appears to be an obliging neighbour. But the identity of these 3 accused persons who are common in the statement of all the 4 eye-witnesses is established beyond doubt. 15. It is true that P. W. 2 Mst. Bali and Muknaram's son namely Rameshwar and one more person. This witness appears to be an obliging neighbour. But the identity of these 3 accused persons who are common in the statement of all the 4 eye-witnesses is established beyond doubt. 15. It is true that P. W. 2 Mst. Bali and P. W. 3 Mst. Jhuma both were injured witnesses and they were close relations of the deceased. Therefore, they might not be that objective but so far as the participation of these 3 accused persons is concerned, in our opinion, there cannot be any doubt about the identity of these accused persons. In these circumstances, we are of the opinion that so far as the identity of accused Muknaram, Rameshwar son of Muknaram, Mst. Bali is concerned they were definitely the members of the unlawful assembly and they in prosecution of their common object of the unlawful assembly give a beating to the deceased and P. W. 2 Mst. Bali and P. W. 3 Mst. Jhuma. In these circumstances we affirm the conviction of the accused Muknaram, Rameshwar son of Muknaram, Mst. Bali under Section 302 read with Section 149 I.P.C. and the sentences awarded to them. 16. Now, the question is regarding conviction of the accused appellants under Section 148 I.P.C. Since we have found that the identity of the remaining accused pet sons is doubtful therefore the accused Ruknaram, Rameshwar son of Muknaram, and Mst. Bali are only convicted under Section 148 I.P.C. and their sentences are confirmed. 17. The next question is regarding the injuries caused to Mst. Bali and Mst. Jhuma. The conviction and sentence of Ruknaram, Rameshwar son of Muknaram and Mst. Bali under Section 324/149 and Section 323/149 I.P.C. are also confirmed. All the substantive sentences are directed to run concurrently. 18. In the result, the appeal is allowed in part and the accused appellants Bhinvaram, Smt. Kheturi and Laxman are acquitted of all the charges. They are on bail, therefore, they need not to surrender and their bail-bonds are discharged. Accused Mst. Bali is also on bail, her bail-bonds are cancelled and she shall be arrested forth-with to serve out the remaining sentence. The Chief Judicial Magistrate, Churu shall issue warrant of arrest against Smt. Bali and send her to jail for serving out the remaining sentence.Appeal partly allowed. *******