JUDGMENT 1. - This appeal is directed against the judgment dated 25th September, 1979 passed by the learned Sessions Judge, Banswara, by which appellants were held guilty and sentenced as under: 1. Khomchand 1. Under Section 147, IPC, 6 months R.I. and Fine of Rs 50/-; 2. Under Section 148, IPC, 3 months R.I. and Pine of Rs. 50/-; 3. Under Section 307 read with 149, 1 year's R.I. and Fine of Rs. 50/-; 4. Under Section 323 read with 149, 1 month' R.I. and Fins of Rs. 50/- 2. Bhanji 1. Under Section 147, IPC, 6 month's R.I. and Fine of Rs. 50/-; 2. Under Section 307 r/w 149, IPC, 1 year RI and Fine of Rs. 50/-; 3. Under Section 323 IPC, 1 month R.I. and Fine of Rs. 50/-; 4. Under Section 324 r/w 149, IPC, 3 month's R.I and Fine of 50/-. 3. Roops 1. Under Section 307. IPC, 2 year R.I. and fine of Rs. 50/-; 2. Under Section 147, IPC, 6 months' R.I. and fine of Rs. 50/-; 3. Under Section 148, IPC, 3 months' R.I. and fine of Rs. 50/-; 4. Under Section 323 r/w 149, IPC, 1 month's R I. and fine of Rs. 50/-; 5. Under Section 324 r/w 149, IPC, 3 month's R.I and fine of Rs. 50/-; 4. Bheema 1. Under Section 147, IPC, 6 months' R.I. and fine of Rs. 50/-; 2. Under Section 307 r/w 149, IPC, 1 year's R.I. and fine of Rs. 50/-; 3. Under Section 323, IPC, 1 month's R.I. and fine of Rs. 50/-; 4. Under Section 324 r/w 149, IPC, 3 month's R.I. and fine of Rs. 50/-; 5. Magan 1. Under Section 147 IPC, 6 month's R.I. and fine of 50/- 2. Under Section 307 r/w 149, IPC, 1 year R I. and fine of Rs. 50/-; 3. Under Section 323, IPC, 1 month's R.I. and fine of Rs. 50/-; 4. Under Section 324 r/w 149, IPC, 3 months' R.I. and fine of Rs. 50/-. 2. 50/-; 5. Magan 1. Under Section 147 IPC, 6 month's R.I. and fine of 50/- 2. Under Section 307 r/w 149, IPC, 1 year R I. and fine of Rs. 50/-; 3. Under Section 323, IPC, 1 month's R.I. and fine of Rs. 50/-; 4. Under Section 324 r/w 149, IPC, 3 months' R.I. and fine of Rs. 50/-. 2. Briefly stated, the prosecution case giving rise to the trial of the appellants, their conviction and sentences and the present appeal are that on 18-3-1979 at about 9 p.m. when Valchand was sleeping in the house, the five appellants armed with lathies, Dhariya and Axe went outside his house and called him, when he came out with a torch, a lathi blow was given by Bhanji. Khomchand caused injury with Dhariya, Roopa, with an axe and Bhima with lathi. The allegation against appellant Magan is that he caught hold of Val Chand raised a cry which attracted the attention of his father Premji who was sleeping in a Chhapra nearby, about 50 to 100 parsons present at the place where Holi was burnt, reached the site. Veer Singh took Valchand to Police Station, Kushalgarh. Valchand lodged the report which was scribed by one constable. The injuries of Valchand were examined by Dr. Padamchand Jain (PW 6), Medical Officer, Government Hospital, Kushalgarh. The doctor noted following injuries on the person of Valchand; (i) Incised wound with bleeding 6 cms x 0.5 cm x 1 cm--inter parietal region of scalp; (ii) Incised wound with bleeding 5.5 cm x 1 cm x 1 cm--left partietal occipital region of scalp; (iii) Incised wound with bleeding 1.5 c.m. x 0.5 x 0.5 c.m.--occipital region of scalp; (iv) Contrusion--4 cm x 1.8 cm left forearm on upper ⅓ part; (v) Contrusion--4 cm. x 2 cm left shoulder joint; (vi) Contrusion--9 cms x 2.5 cm right scapular region; (vii) Abrasion--3 cms. x 2 cm. right iliac crest. On 15-3-1979, Laxmilal, SHO, Police Station, Kushalgarh went to toe site in the afternoon and inspected the site. He prepared the site plan Ex. P 2. He recovered one Baniyan, suspected to have blood stained, produced by Valchand. 3. Upon completion of necessary investigation chargesheet against the appellants was filed in the Court of Munsif Magistrate, Kushalgarh. The learned Magistrate committed the case to the court of Sessions Judge, Banswara. The learned Judge, chargesheeted the appellants and recorded the plea. P 2. He recovered one Baniyan, suspected to have blood stained, produced by Valchand. 3. Upon completion of necessary investigation chargesheet against the appellants was filed in the Court of Munsif Magistrate, Kushalgarh. The learned Magistrate committed the case to the court of Sessions Judge, Banswara. The learned Judge, chargesheeted the appellants and recorded the plea. All of the them denied the charges and claimed to be tried. To substantiate its case prosecution examined seven witnesses in all. In their statements Under Section 313, Cr.PC all the appellants denied the allegation levelled against them. No defence witness was examined. The learned Judge place relinace on the statements of Valchand (PW 1) and his father Premji (PW) 2 and passed the judgment Under Appeal. 4. I have heard Dr. R.K. Soni, learned Counsel for the appellants and Mrs. Kamlesh Joshi, learned Public Prosecutor for the State. 5. The learned Counsel for the appellants has assailed the findings of the trial Court on a number of grounds. According to him there was no independent witness to support the prosecution story. About Premji, the contention of Mr. Soni is that in First Information Report his name has not been mentioned as eye witness. The learned Counsel stressed that no independent witness of the locality has been examined and two witnesses Baloo and Jangji have been declared hostile by the prosecution Another argument advanced by the learned Counsel is that there inconsistencies in the statement of Valchand and Premji so far as actual infliction of the blows by the various assailants concerned. The delay in sending the FIR to the Court i.e. on 15-3-1979 has also been taken as a ground to assail the findings of the learned trial Judge. 6. The learned Public Prosecutor controverting these submissions submitted that there is no reason to disbelieve the injured when his statement is corroborated by the medical evidence. Regarding Premji, hia submission is that he being the family member, there was no necessity for the information to mention his name in the FIR. That, the prosecution has taken care to examine two witnesses though they have turned hostile and therefore it is not a case where material independent witnesses might not have been examined by the proscution. 7. Valchand has given the motive of the commission of crime by the appellants. That, the prosecution has taken care to examine two witnesses though they have turned hostile and therefore it is not a case where material independent witnesses might not have been examined by the proscution. 7. Valchand has given the motive of the commission of crime by the appellants. According to him on preceding Dashehara there were some hot altercations between him and Bhanji for beating the drum and Bhanji has broken his drum. Premji has also corroborated this version that Bhanji has broken the drums of Valchand. If it was so, the grievance would have been to Valchand not to the accused Bhanji and was companions so as to take revenge from Valchand. Name of Premji does not appear in the First Information Report lodged by Valchand. He had admitted to have stated at portion A to B that at that time none of his family members was there. In the statement at fine trial, he has stated about Premji being in another Chhapra. The careful scrutiny of the statements of Valchand and Premj; indicate that the incident must not have taken place and in the manner prosecution alleged. Valchand appears to have concealed something regarding the origin of the quarrel. When 50 to 100 persons were there on account of burning of Holi and there were 7 or 8 inhabitated houses, the prosecution should have examined the neighours at least. The prosecution has how ever felt content by examining Valji and Gangji, but they turned up hostile. Veer Singh is said to have accompained Valchand to police station and then to hospital. He has not been examined by the prosecution. It is important to note that sister of Valchand had been engaged to Veer Singh and there could not have been any apprehensions of Veer Singh telling anything against the prosecution. 8. The incident is said to have taken place on 13-3-1979 at 9 p.m. On the day Valchand is said to have lodged the FIR at 10 p.m. and at 10-30 he was medically examined. The information reached the concerned Magistrate on 15-3-1979 might be for the reason that the day next to Holi might be Holiday. How ever, there was no reason for the SHO not to go to the site till the afternoon of 15-3-1979 SHO, has stated that on 15-3-79 at 3 p.m. he had inspected the site. The information reached the concerned Magistrate on 15-3-1979 might be for the reason that the day next to Holi might be Holiday. How ever, there was no reason for the SHO not to go to the site till the afternoon of 15-3-1979 SHO, has stated that on 15-3-79 at 3 p.m. he had inspected the site. He has also stated that there was no blood at the site and naturally so because a period of two days had lapsed between the date of the incident and the site inspection. The underwear (Baniyan) of Valchand said to have been taken in possession by the police has neither been sent for chemical examination nor has been produced in the Court. 9. In order to attract Section 149 for convicting the accused for a particular crime, prosecution is to establish that there were five or more person involved. Valchand has stated about Khomchand causing injuries with Dhariya, Roopa with axe and Bhanji with lathies. He has not assigned any overtact to Magan. He has rather stated that Magan caught hold of him. Premji has stated that Magan had not given any beating. On being suggested that Magan had come to the rescue of Valchand, the witness did not deny it. Magan having not been attributed any special act nor there being strained relations between Valchand and Magan, we do not feel inclined to agree with the Seamed trial Judge that Magan has also participated in the crime Magan thus being excluded, only four appellants namely Khomchand, Bhanji, Roopa and Bhima remain. There are inconsistent statements regarding the sharp edged weapon being used by Khomchand and Roopa. According to Bala and Khom Chand had inflicted injury on his head by the blunt side of Dhariya and Roopa had inflicted axe injuries to him. Premji on the other hand stated that Roopa had caused injuries on the head of Valchand with blunt side of the axe. This being the position, it cannot be said with certainty as to who out of the two appellants i.e. Roopa and Khomchand was responsible for the three incised wounds of Valchand. If a person having sharp edged weapon with him uses it from the blunt side, the offence cannot be said to fall within the ambit of Section 307 IPC. This being the position, it cannot be said with certainty as to who out of the two appellants i.e. Roopa and Khomchand was responsible for the three incised wounds of Valchand. If a person having sharp edged weapon with him uses it from the blunt side, the offence cannot be said to fall within the ambit of Section 307 IPC. The prosecution case regarding the five appellants forming the unlawful assembly being disbelieved, the conviction of the appellants Under Sections 147 and 148 and other sections with the aid of Section 149, IPC cannot be sustained. 10. In view of this discusion, appellant Magan deserves to be acquitted. The remaining appellants can be held liable for sentences only for their indvidual act. 11. Consequently, appeal of Magan is allowed his conviction for the various charges and sentences imposed thereupon are set aside. He is on bail. His bail bonds stand discharged. The appeal of the remaining appellants is partly allowed. Conviction and sentences of Khomchand Under Sections 147, 148, 307 read with 149 and 323 read with 149 IPC are set aside. His conviction Under Section 324 IPC and sentence of three months rigorous imprisonment and a fine of Rs. 50/- in default of payment of fine to one month's simple imprisonment is maintained. Conviction and sentences of Bhanji Under Section 147, 307 read with 149 and 324 read with 149 IPC are set aside His conviction Under Section 323 IPC and sentence of one month's rigorous imprisonment and a fine of Rs 50/-, in default of payment of fine one month's simple imprisonment are maintained. Conviction and sentences of Roopa Under Sections 147, 148, 323 read with Sections 149 and 324 read with Section 149 are set aside. His conviction Under Section 307, IPC and sentences awarded on that count by the trial court and also set aside he is instead convicted Under Section 324 IPC and sentenced to three month's rigorous imprisonment and a fine of Rs. 50/- in default of payment of fine to undergo one month simple imprisonment. Conviction and sentences of Bhima Under Sections 147 307 read with 149 and 324 read with 149 IPC are set aside. His conviction Under Section 323 IPC is maintained. He has remained in custody for 32 days. 50/- in default of payment of fine to undergo one month simple imprisonment. Conviction and sentences of Bhima Under Sections 147 307 read with 149 and 324 read with 149 IPC are set aside. His conviction Under Section 323 IPC is maintained. He has remained in custody for 32 days. The substantive sentence awarded by the trial court for one month's rigorous imprisonment is reduced to the period he had remained in custody so far. The sentence of fine of Rs. 50/- in default of payment of fine to undergo one month's simple imprisonment is maintained. 12. Bhima, Khomchand, Bhanji and Roopa have undergone the substantive sentences awarded to them for the various charges for which they are held guilty by this judgment. They are on bail. Khomchand, Bhanji Roopa and Bhima are allowed two month's time to deposit the amount of fins imposed on them for the charges by the this judgment.Appeal of 'M' Allowed other appeals partly allowed. *******