JUDGMENT 1. - This criminal appeal arises oat of judgment of the Additional Sessions Judge, Baran, whereby accused-appellants have been convicted and sentenced as under : Sheoji and under Section 307, Indian Penal Code 10 year's RI with a line of Rs. 1,000/- (in default, 21/2 years further R.I.) Mohan Lal under Section 307/149, Indian Penal Code -do- Hiralal, Bhanwarlal and Ram Kishan under Section 307/149, Indian Penal Code 5 year's RI with a fine of Rs.1,000/- (in default, 21/2 years further R.I.) Each of All afore named appellants - under Section 147, Indian Penal Code 1 years R.I. with a fine of Rs. 500/- (in default, further 3 months RI) under Section 323 and 323/149 Indian Penal Code to pay a fine of Rs. 500/- (in default, 3 months R.I.) 2. Accused, appellant, Hiralal was also convicted under section 325, Indian Penal Code and sentenced to 3 years R.I. with a fine of Rs. 2,000/- in default, further R.I. for six months. 3. Panchulal lodged a report at police station Atru on 30.12.80 in mid night at about 1 O'clock alleging therein that on 29.12.1980 at 7 O'clock in the evening accused-appellants, upon protest to the demolishing of the wall at the instance of them, made by the Complainant persons, have inflicted by beating to him, Mohanlal, Ramnath Bai and Ramesh Bai. The report denotes that Bhanwarlal inflicted stick blow on left legs ankle, and Hiralal has beaten Panchulal by stone on his face causing injuries on nose and mouth besides teeth; that, Bhanwarlal inflicted second lathi blow on the back of chest of Panchulal; that Sheoji and Madanlal gave blow on head of Mohanlal who was beaten by lathi blow inflicted by Ramkrishan on his head; and that, when Ramnathbai and Ramesh Bai came to rescue them, then Sheoji and Madanlal gave beating by infliction of blows on the back of chest of Ramesh Bai, while Bhanwarlal and Ramkishan gave blows on eye brows of Ramnath Bai. 4. Upon the said report, the police registered a criminal case against all the accused-appellants. The investigation commenced. After completion thereof, a charge-sheet was filed in the court of the concerned Judicial Magistrate who committed the case for trial to the court of Sessions. The charges under Sections. 307, 149, 147, 323, 325/149, Indian Penal Code were read over to each of the accused-appellants who denied it and claimed trial. The investigation commenced. After completion thereof, a charge-sheet was filed in the court of the concerned Judicial Magistrate who committed the case for trial to the court of Sessions. The charges under Sections. 307, 149, 147, 323, 325/149, Indian Penal Code were read over to each of the accused-appellants who denied it and claimed trial. After recording the evidence of the prosecution and examining the accused appellants under section 313, Criminal Procedure Code. and after hearing both the parties, the accused-appellants were convicted and sentenced as indicated above. Hence this appeal. 5. At the very outset, learned counsel for the appellants submits that in the judgment the learned trial court acquitted four of accused-appellants excluding Hiralal, under section 325/149, Indian Penal Code, and, therefore, when out of five accused-appellant, four once were found innocent, the learned trial court was not justified in convicting those very innocent persons for other offences under section 307 with the aid of Section 149, Indian Penal Code. 6. Next submission of the learned counsel for the appellants is that in the case at hand, it has not been proved that the injuries found on the person of Mohanlal were grievous in nature or were sufficient in the ordinary course of nature to cause death, and, therefore, the learned trial court was not justified in convicting appellants under section 307/149, Indian Penal Code. 7. Learned counsel for the appellants also contended that the prosecution witnesses on whose statements the learned trial Court based the impugned conviction, all are highly interested and they have falsely implicated the accused-appellants. Learned counsel further urged that the prosecution has failed to examine injured Mohanlal and, therefore, an adverse inference should have been drawn against the prosecution story. 8. Last contention on behalf of the accused-appellants was that there has been delay of six hours in lodging the report to the police station which remained unexplained, and the non-explanation thereof casts doubt on the veracity of the prosecution evidence, inasmuch as it raised an inference that the incident had taken place in dark-hour alter complete sun-set and there was no source of any light, and since there was dark night having no source of light there, chances of identifying the assailants during the course of the incident were bleak nay nil. 9. 9. Contrarily, learned Public Prosecutor contended that there is ample evidence against the accused-appellant for convicting them for the offences for which they were charged, and that no error has been committed by the trial Court in finding the appellants guilty for the offences charged. 10. I have considered the points raised by both the learned counsel, and perused the entire record. A look at the impugned judgment makes it clear that the learned trial court itself, acquitted the accused-appellants except Hiralal for offences under Section 325/149, Indian Penal Code. Thus, when the trial court acquitted four of the accused-appellants under Section 149, Indian Penal Code, then I fail to understand as to why all the accused-appellants have been held guilty of the offence of rioting by the trial court. 11. It is admitted fact that Mohanlal s/o Mangla for whose injuries the appellants are held guilty of the offence under Section 307, Indian Penal Code, has not been examined by the prosecution, and no reasons have been given by the prosecution for his non-production. Mohanlal (Injured) was important witness who could have given ocular account corroborative evidence as to the injuries caused on his person in the impugned incident. The reason stated by the trial court for not examining Mohanlal (injured) is not sustainable. Even, as per prosecution evidence brought on record, Mohanlal injured had fully recovered and had been behaving with normal human conduct by performing his day to day life's activities. Dr. B.D. Kabra (PW 11) deposed that Mohanlal (injured) was admitted in the hospital and after his recovery, was discharged therefrom. Dr. Kabra has deposed so on the basis of the discharge ticket. Thus from the discharge ticket and the deposition of Dr. Kabra it can easily be presumed that Mohanlal (injured) could have been discharged by the hospital authority only after his recovery may be on his own request, and otherwise not and in either case there would have been some other entry being endorsed therein. Therefore,when Mohanlal injured was in a fit state of mind then it was obligatory on the part of the prosecution to have produced him as witness and he could have been the best witness to give clear testimony as to his injuries. Non-production of injured, Mohanlal is fatal to the prosecution, it is a case where the prosecution has withheld an important witness of the events in the incident. Non-production of injured, Mohanlal is fatal to the prosecution, it is a case where the prosecution has withheld an important witness of the events in the incident. 12. Next important circumstance is that the investigation officer sent letter (Ex.P. 16) to the doctor seeking his opinion as to the nature of the injuries found on the person of Mohanlal injured. In reply, Dr. Kabra (PW 11) opined under Ex.P. 17 that the injuries of Mohanlal were sufficient to cause the death. During cross-examination of Dr. Kabra by defence counsel on the question as to on what ground/basis-he (Dr.) opined that the injury on the person of Mohanlal was sufficient to cause death, Dr. Kabra answered that he was not in a position to reply it without having a look at the bed head ticket of the patient. Therefore, his statement was deferred. He then reappeared alongwith bed head ticket of Mohanlal, and deposed on the basis of original bed head ticket No. 20135 dated 30.5.1980 which he brought. His subsequent statement and deposition on the basis of bed head ticket dated 30.5.1980 was totally false. However, according to his deposition during examination-in-chief, Mohanlal (injured) was admitted in hospital on 30.12.1980 and was discharged on 1.12.1981. Therefore, the deposition of Dr. Kabra (PW 11) which is totally based on bed head ticket of 30.5.1980 i.e. of prior date of the incident day gives an impression that Dr. Kabra gave his statement before the trial Court on the basis of bed head ticket of some other and not of Mohanlal (present injured) and if that of Mohanlal then not with regard to the injuries caused in the impugned incident of 30.12.1980 but of some other incident, may be of 30.5.1980 or so or before it. And, the statement of Dr. Kabra cannot be based nor can be relied upon rather deserves to be discarded and disbelieved and on that basis, the accused-appellants cannot be convicted. In these circumstances, and in view of disbelieving the evidence of the doctor, injuries of Mohanlal (who has also not been examined by the prosecution) are not proved and, therefore, the learned trial court erred in convicting the accused-appellants under Section 307 or 307/149, Indian Penal Code and their conviction under those Sections is not sustainable and is bad in law. 13. 13. The appellant (Hiralal) has been held guilty under Section 325, Indian Penal Code on the ground that in this incident, teeth of Panchulal (PW 4) was broken but Ram Pratap (PW 8) in his deposition admitted that it was broken some 4-5 years back because of fall of brick when he was putting his labour in constructing his house. Ram Pratap (PW 8) is an independent and is said to be neighbour of Panchulal. His testimony does not corroborate the version of Panchulal (PW 4) on the point of breaking teeth, and solely on his testimony being interested, the appellant (Hiralal) cannot be convicted under Section ,325, Indian Penal Code for the injury No. 5 breaking of teeth of Panchulal (PW 4). Thus, the conviction under Section 325 Indian Penal Code is not sustainable and is bad in law. 14. Ramnath Bai and Ramesh Bai (PWs 1 and 2), both in their statements admitted that the incident look place in the dark night and there was no source of light thereby they were not in position to see as to which of the accused caused which of the injuries on which of the parts of body of the Complainant party members. In this view of the evidence, there was dark night and no source of light in which the witnesses could have seen the events of incident. In these circumstances, chances of having seen the events of the incident in dark hours of night in the absence of any source of light by the witnesses produced in the witness box, were bleak nay nil. May be in the dark night, the assailants could have been identified but it was quite impossible to have seen as to which of the accused/assailants inflicted on which part of the injureds body with which of the weapons of offence used in the incident, in the state of having no source of light during night of darkness. Thus, the version given out by the witnesses relied upon by the learned trial court smacks of doubt and could not be believed so as to hold the accused guilty. 15. Thus, the version given out by the witnesses relied upon by the learned trial court smacks of doubt and could not be believed so as to hold the accused guilty. 15. That apart, the witnesses of the prosecution who claimed themselves to be eye witnesses of the incident in question deposed that all the accused appellants had inflicted injuries on the person of injured, Mohan Lal which could be more than 10-15 ones, but as per his injury report, there were four injuries (out of which, two were lacerated wounds and other two injuries were simple in nature). It is thus clear that the evidence of eye-witnesses have not been corroborated by injury report as well as statement of the doctor. It is settled principle that when the testimony of the eye-witnesses is not supported by the medical evidence then their testimony becomes highly doubtful especially when most of them are related and interested witnesses. 16. The learned trial Court, while acquitting the four of the accused-appellants under Section 325/149, Indian Penal Code, held that breaking of the teeth of Panchulal by Hiralal was not in the presence of four of the accused appellants (acquitted) who came to the scene of occurrence subsequent to it, so there was no unlawful assembly before their arrival to the place of occurrence and joining allegedly Hiralal. It makes clear that from the very inception of the incident, there was no unlawful assembly having common object to cause injury. Inasmuch as even according to the prosecution case, itself, initially an altercation took place between Mohan Lal and Ramkishan and therefore, Hiralal came and he was followed by other accused-appellants. However, from these circumstances, it is very much clear that the incident took place at the spur of moment on account of exhortation in between the parties, but it cannot be said that there was an unlawful assembly nor does such a question arise. 17. A look at the record shows that the prosecution has utterly failed to produce an independent witness so as to give an occular account of the events of the incident. Only family members of the injured have been produced while withholding important witness, Mohanlal, injured, himself. The learned trial Court has not taken into consideration the citations in right perspective. The principles laid down in AIR, 1972 SC 1309, 1976 Cr.L.R. Raj. p. 362 and 1976 Raj. Cr. Only family members of the injured have been produced while withholding important witness, Mohanlal, injured, himself. The learned trial Court has not taken into consideration the citations in right perspective. The principles laid down in AIR, 1972 SC 1309, 1976 Cr.L.R. Raj. p. 362 and 1976 Raj. Cr. Cases, p. 263 are totally applicable to the facts and circumstances of the case on hand. 18. Further, the prosecution has also changed the place of incident and has not given its explanation. According to the site plan (Ex.R 6) prepared by the investigating officer. From the version of prosecution appearing in the evidence on record, it appears that the Complainant party after making encroachment on the pubic way constructed a wall which created hindrances to the accused-appellants because, the way where encroachment was allegedly made was a thorough-fare of the accused appellants and the width of the passage was reduced thereby the bullock cart of the accused-appellants could not easily have been passed through that narrowed passage. In that situation, the Complainant party definitely made encroachment in the right of way of the accused-appellants who were well within their right to make protest against the action of the Complainant party for making encroachment by narrowing the passage of thorough-fare, and defending their right of way. It is a strong circumstance in favour of the accused-appellants and, therefore, in these circumstances no liability can be fastened against the accused appellants. The prosecution has come with a case that the incident took place at about 6-7 O'clock in the evening that it is strange why the report was lodged with the police after a delay of six hours i.e. at 1 O'clock in the midnight. There is no explanation forthcoming in the prosecution evidence to the said delay of six hours. That makes the prosecution case doubtful raising a reasonable presumption that the incident took place in the dead hours of the night having no source of natural or artificial light so as to identify the assailants and see the individual acts of the accused-appellants alleged against them. 19. That makes the prosecution case doubtful raising a reasonable presumption that the incident took place in the dead hours of the night having no source of natural or artificial light so as to identify the assailants and see the individual acts of the accused-appellants alleged against them. 19. For the reasons given above, I am of the opinion that the prosecution has utterly failed to prove guilt against the accused-appellants beyond reasonable doubt; The learned trial court has placed reliance on the prosecution evidence worthy of no credence and thus erred in convicting the accused appellants on such incredible evidence in view of the circumstances pointed above in this judgment. 20. In the result, this appeal is allowed. The accused-appellants are acquitted of the offences charged. Their conviction and sentences challenged in this appeal, and imposed by the learned trial court under impugned judgment are set aside and quashed. They are on bail and need not surrender. Their bail bonds stand discharged. The record be sent back. *******