JUDGMENT 1. 1. Appellants Arjun, Bhagwan Sahai (Sons of Girdhari) and Birdu, Sardara (Sons of Prabhat) alongwith Girdhari and Ramkaran (acquitted by the trial-court) were prosecuted in case F.I.R. No. 108/1991 dated 28th October, 1991 registered at Police Station, Virat Nagar, Jaipur Distt., Jaipur, for having committed offence punishable under Sections 147,148,149, 452,323,324 and 302 IPC and after trial four accused appellants were convicted for offences under Sections 302/34,452 and 323/34 IPC and each one of them was sentenced to undergo life imprisonment and to pay a fine of Rs. 500/- under Section 302/34 IPC, to undergo one year simple imprisonment and to pay a fine of Rs. 200/-, under Section 452 IPC and to undergo 3 months' simple imprisonment, under Section 323 read with S. 34 IPC with the direction that all the sentences shall rim concurrently. The prosecution story in short is as under:- 2. At about 10.00 p.m. on the night of 27th October, 1991, Revad (Deceased), alongwith his son Sampat (PW 7) and the ladies of the house, was sitting in his house, when the four accused appellants accompanied by Girdhari, Ramkaran, besides Bhomaram came to the spot. They were armed with 'Lathis' and on coming to the spot started assaulting the deceased and Sampat, besides the ladies of the house. During this assault the appellants and their companions caused fractures on the legs of the deceased besides causing injuries on his head and other portions of the body. They also assaulted Sampat (P.W. 7) and the ladies of the house. With a view to save his life Sampat (P.W. 7) went to the Police Post of Village Mer, where Constable Hanuman Sahai (P.W. 1), met him. He brought Hanuman Sahai (P.W. 1) with him to the spot and with his help removed his father in a jeep to Virat-Nagar Hospital where on examination the Doctor declared him dead. S.H.O. Sohan Lai (P.W. 16), the 1.0. on receipt of the information, reached the hospital where a written report (Ex.P. 7/A) was produced before him by Sampat Ram (P.W. 7), the contents of this report disclosed the commission of cognizable offences. After making endorsement at the foot thereof, the I.O. sent it to the Police Station for registration of the case and on the basis of this report (Ex.P. 7/A), first information report No. 108/1991 was registered at Police Station, Virat Nagar. After making endorsement at the foot thereof, the I.O. sent it to the Police Station for registration of the case and on the basis of this report (Ex.P. 7/A), first information report No. 108/1991 was registered at Police Station, Virat Nagar. In the hospital the I.O. took into possession the clothes of the deceased from the hospital. The LO. came to the spot and prepared site plan (Ex.P. 8), at the instance of Sampat Ram (P.W. 7), Behari (P.W. 13) and Kalu Ram (P.W. 11). He found blood lying at point 'B' which is the hut of Chhotu Regar and took into possession the blood and blood stained earth. The I.O. recorded the statements of the witnesses and after completing the investigation came to the conclusion that Bhoma Ram was not there at the spot and filed challan against the appellants besides Ramkaran and Girdhari. After the case was committed to the learned trial Court, the charges were framed against the appellants and the above said two co-accused and were read over to them and all of them pleaded not guilty to the same and claimed to be tried. 3. During trial, the prosecution examined Hanuman Sahai, Kamli, Rameshwar, Dr. Ramsharan, Dr. Surendra Kumar, Smt. Prabhati, Sampat Ram, Dr. Gopal Yadav, Banwari, Bhairoolal, Kaluram, Smt. Nanchi, Beharilal, Nansraj, Smt. Rukma, I.O. Sohanlal, Prabhulal, Hajarilal, Smt. Shravani and Jagdish as P.W. 1 to P.W. 20 respectively. When examined under S. 313 of the Cr.P.C. the appellants and the above said co-accused denied the allegations made against them and stated that they had been falsely implicated. In their defence, they produced Mangilal, Sualal and Duniial as D.W. 1 to D.W. 3 respectively. After hearing learned counsel for the parties and going through the evidence produced by the parties the learned trial court found that the case against Ramkaran and Girdhari had not been proved and consequently acquitted them and finding the appellants guilty of the offences mentioned above, convicted and sentenced them as noted above. Feeling aggrieved, the accused appellants have approached this Court by filing this appeal. 4. We have heard the learned counsel for the parties and have also gone through the record of the case. 5. Feeling aggrieved, the accused appellants have approached this Court by filing this appeal. 4. We have heard the learned counsel for the parties and have also gone through the record of the case. 5. The challan had been filed with the prosecution case as disclosed in the first information report i.e. that at the relevant time, the deceased alongwith his son Sampat Ram (P.W. 7) had been sitting in his house and according to site plan (Ex.P. 8) at point 'D & E' where the appellants and the co-accused came and assaulted the deceased with 'Lathis' broke his head and legs besides other injuries on his person and they also caused injuries on the person of the ladies of the house and also on the person of Sampat Ram (P.W.7), who ran away from the spot and went to the Police Post, Mer, from where he brought Hanuman Sahai, Constable (P.W. 1). While appearing as (P.W. 7) Sampat Ram, has deposed that while he and his father were sitting in their house at Point 'D&E' shown in the site plan (Ex.P 8), the appellants and their associates came there and had assaulted his father and him besides the ladies of the house and his father, with a view, to save himself, ran to the house of Chhotu Ram at point 'B' shown in site plan (Ex.P. 8) and again there he was assaulted by the appellants and their associates. This place of occurrence thus, according to this statement was not only the one mentioned in the first information report but also the place shown at point 'B' as mentioned in the statement on oath. The other eye-witnesses of the occurrence are Kamali (P.W. 2), Smt. Nanchi (P.W. 12), Smt. Rukma (P.W. 15) and Smt. Shravani (P.W. 19). According to the statement of Smt. Kamali (P.W. 2) in examination in chief, the occurrence took-place in the house of the deceased but in cross-examination, she has stated that the quarrel started at the Chabutara of Shiv Mandir across the road and thereafter the appellants and their associates had assaulted the deceased besides them and Sampat Ram (P.W. 7) in the 'Guwada' of Prabhat shown at point 'K' in the site plan (Ex.P. 8) and there-after at the house of Chhotu Regar at point 'B' shown in the site plan (Ex.P. 8). 6. 6. According to the statement of Smt. Nanchi (P.W. 12), the quarrel had started at Shiv Mandir from where the deceased had run to the 'Guwada' of Prabhat where he was assaulted. According to the statement of Smt. Rukma (P.W. 15) (Widow of the deceased), the occurrence took-place firstly at the house of the deceased and there-after at the hut of Chhotu Regar shown at point 'B' in the site plan (Ex.P. 8). According to the statement of Smt. Shravani (P.W. 19) made by her in examination-in-chief, the occurrence firstly took-place at the house of deceased from where the deceased went to the house of Chhotu Regar where he was assaulted. In her cross-examination, she has stated that the 'Panchayat Meeting' was held in the Village in the 'Guwada' shown at point 'K' in the site plan (Ex.P. 8), where the appellants and their associates had started assaulting the deceased with the weapons in their possession. According to the site plan(Ex.P. 8), the I.O. had found the blood at point 'A' and 'B' near the hut of Chhotu Regar. No blood was found either in the house of the deceased or at the Chabutara of Shiv Mandir or in the 'Guwada' at point 'K' of Prabhat. In the prosecution evidence, therefore, there is no consistency in regard to the place of occurrence. Even the complainant Sampat Ram while appearing as (P.W. 7), has given a version different than the one he gave while making the report (Ex.P. 7/A) on the basis of which the first information report was recorded in the Police Station, Virat Nagar. The other important point to be seen in this case is that according to Hanuman Sahai (P.W. 1) when Sampat Ram (P.W. 7) came to him in the Police Post, he made an entry in the 'Daily Diary' on the basis of the version given to him by Sampat Ram (P.W.7) and after taking a jeep from the 'Bus Stand', he went to the house of deceased alongwith Sampat Ram and removed the deceased in that jeep to the Police Station and from there to the Hospital. The copy of the said report of the Daily Diary of Police Post, Mer, which was the first version of the incident has not been produced by the prosecution and no explanation has come forward in this regard. The copy of the said report of the Daily Diary of Police Post, Mer, which was the first version of the incident has not been produced by the prosecution and no explanation has come forward in this regard. According to the I.O. Sohan Lal (P.W. 16), on receipt of the information, he had reached the Hospital where the report (Ex.P. 7/A) was presented before him by P.W. 7 Sampat Ram and after making endorsement at the foot thereof-, he sent the same to the Police Station for registration of the same. The other aspect of the matter which requires to be taken into consideration is that according to the I.O. Sohanlal (P.W. 16), from the hospital, he went to the spot and before recording the statements of the P.Ws., he prepared the site plan (Ex.P. 8) on the pointing of P.Ws. mentioned above. The notes at the foot of the site plan show that the version given at the time of preparation of the site plan was different from the version one given in the first information report. It is the admitted case of the prosecution that the appellants namely Aijun, Sardara and Birdu had also been found with injuries on their persons. Accused appellant Birdu, had one incised wound 1 Cm x 1/2 cm x 1/4 cm on the forehead, 1 cm above the right eye-brow, another incised wound of inverted U shape extending from just above the right upper lip reaching to the Alma and right Nostril then turning medially upto Nasal Septum and then turning downwards reaching upto the mid point of upper Up and the wound was 1/4 cm deep elevating a skin soft tissues flap and the third injury found on his person was missing of upper left central incisor teeth with swelling and laceration of gum and its socket with the evidence of fresh bleeding therefrom. On medical examination, such injuries were recorded in Ex.D. 4. The record also shows that appellant Arjun had once lacerated wound 3 cm x 1/2 cm x 1/4 cm on right eye-brow and one incised would 1 cm x 1/2 cm x muscle deep on the right upper Up caused with sharp edged weapon as recorded in (Ex.D. 3). On medical examination, such injuries were recorded in Ex.D. 4. The record also shows that appellant Arjun had once lacerated wound 3 cm x 1/2 cm x 1/4 cm on right eye-brow and one incised would 1 cm x 1/2 cm x muscle deep on the right upper Up caused with sharp edged weapon as recorded in (Ex.D. 3). Ex.D 2, shows that appellant Sardara, had two injuries on his person; (i) Abrasion 2 cm x 1 cm on lateral aspect of right elbow and (u) Abrasion 1 cm x 1 cm on the medial aspect of the right elbow and both these injuries had been caused by blunt weapons. No explanation whatsoever has been put forward in the evidence of the witnesses as to how these 3 appellants received injuries on their person which admittedly were received during the same occurrence. According to Sampat Ram (RW. 7), the accused had come suddenly and had attacked his father and other members of the house. 7. According to the other eye witnesses mentioned above, the quarrel had started at the 'Chabutara of Shiv Mandir' or at the 'Guwada' shown at point 'K' in the site plan (Ex.P. 8). According to these witnesses the quarrel took-place between the complainant side and the accused side as a result of which fatal injuries had been caused on the person of the deceased whereas the accused persons also received injuries on their person during that quarrel. The first version as recorded in the police diary of Police Post, Mer, having not been produced, it has to be presumed that if produced, it would not have supported the case of the prosecution. There is thus, nothing to show as to who was the aggressor. If, in fact, the occurrence took-place at point 'K' which, according to site plan (Ex.P 8), is the 'Guwada' of the father of appellant No. 3 and 4, there is a clear case that the complainant party was the aggressor, who, according to the admitted case of the prosecution, were having quarrel about the possession of the said 'Guwada. If, in fact, the occurrence took-place at point 'K' which, according to site plan (Ex.P 8), is the 'Guwada' of the father of appellant No. 3 and 4, there is a clear case that the complainant party was the aggressor, who, according to the admitted case of the prosecution, were having quarrel about the possession of the said 'Guwada. If once it is found that the occurrence took- place at the 'Guwada' at point 'K' of Prabhat and in that occurrence the injuries were caused on the person of the accused appellants, it cannot be said that if they caused injuries on the person of the deceased and his relations with a view to protect their lives and property they committed any offence or formed an un-lawful assembly in this regard for committing any offence. 8. In our view, the prosecution has miserably failed to bring home any charge to any of the appellants and as such we are of the view that the learned trial court has erred in convicting the appellants and sentencing them and they deserve to be acquitted. Consequently, we accept this appeal, set-aside the impugned judgment of conviction and sentence dated 1st September, 1994, passed by the learned Addl. Sessions Judge, Kotputli, Jaipur Distt. Jaipur, in Sessions Case No. 110/1992 and acquit the accused appellants. They are in custody, they should be released forthwith if not wanted in any other case. *******