JUDGMENT 1. - Learned Additional Sessions Judge, Deeg, vide his judgment dated 18.1.1991, convicted and sentenced the accused appellants as under Vinod Kumar U/Sec. 302 IPC Life Imprisonment & a fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l. U/Sec. 325/149 IPC Six Months R.I. & a fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l. U/Sec. 148 IPC 6 months R.I. & a fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l. U/Sec. 323 IPC Fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l.. Hazari U/Sec. 302 IPC Life imprisonment and a fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l. U/Sec. 325/149 IPC 6 months R.i. and a fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l. U/Sec. 148 IPC 6 months R.I. & a fine of Rs. 100/-. In default of payment of fine to undergo one month's S.l. U/Sec. 323 IPC A fine of Rs. 100/- and in default of payment of fine to undergo one month's S.l. Arun Kumar, Banno alias Brijesh and Pappu alias Mahesh Under Section 302/149 IPC Life imprisonment and a fine of Rs. 100/- to each accused. In default of payment of fine to undergo one month's S.l. each. U/Sec. 325/149 IPC 6 months R.I. and a fine of Rs. 100/- to each accused. In default of payment of fine to undergo one month's S.l. U/S. 148 IPC 6 months R.I. and a fine of Rs. 100 to each accused. In default of payment of fine to undergo one month's S.l. U/S. 323 IPC Fine of Rs. 100/- each and in default of payment of fine to undergo simple imprisonment for one month each. 2. All the sentences were ordered to run concurrently. Accused Ganesh, who was charged and tried for offences under Sections 148-302/149, 325/149 and 323 IPC was acquitted of all the charges. Being aggrieved with the said judgment, accused Vinod Kumar and Arun Kumar filed D.B. Criminal Appeal No. 18/1991, accused Hazari and Banno alias Brijesh filed D.B. Cr. Appeal No. 32/1991 and accused Pappu alias Mahesh filed D.B. Criminal Appeal No. 69/1991. 3. Being aggrieved with the said judgment, accused Vinod Kumar and Arun Kumar filed D.B. Criminal Appeal No. 18/1991, accused Hazari and Banno alias Brijesh filed D.B. Cr. Appeal No. 32/1991 and accused Pappu alias Mahesh filed D.B. Criminal Appeal No. 69/1991. 3. As all these appeals arise out of the same incident and one judgment they are decided by one common judgment. 4. According the prosecution story, the accused appellants alongwith Ganesh inflicted various injuries on the person of Bhag Chand (deceased), Mst. Padam Kaur RW. 1, Deep Chand RW. 5 and Amar Singh RW. 6, in the evening at about 6.00 p.m. on 31.7.1985, on a dispute regarding construction/demolition of a dol between the fields of complainant party and Kallu (father of appellants Vinod Kumar and Arvind Kumar). After receiving injuries, the aforesaid persons reached to the Govt. Hospital, Deeg. P.W. 11 Dr. Satish Vyas who was posted at Govt. Hospital, Deeg, informed the same to the S.H.O. Deeg on telephone. On receipt of information the S.H.O. reached at the hospital at 8.05 p.m. Bhagchand died at 8.10 p.m. Dr. Vyas examined Mst. Padam Kaur RW. 1, Deep Chand RW. 5 & Amar Singh, RW. 6. Their injury reports are marked Annexures Ex.P 10 at Ex.P 12. He found the following injuries on their bodies :Mst. Padam Kaur (1) Swelling 3 cm x 3 cm outer side of upper right fore-arm. Amar Chand (1) Swelling 6 cm x 6 cm on outer side of right knee joint. (2) Bruise 8 cm x 2 cm on middle of right scapula region. (3) Bruise 3 cm x 2 cm middle of left hip. Deepu (Deep Chand) (1) Lacerated wound 6 cm x 1 cm x bone deep on middle of head transversely. (2) Swelling all over the right hand with punctured wound on dorsal aspect of middle hand (lacerated). 5. Parcha Bayan Ex.P 1 was recorded on the same day in the hospital at 8.45 P.M. on the basis of which an F.I.R. Ex.P. 15 was registered at the Police Station Deeg at 9.00 p.m. In Parcha Bayan marked Ex.P 1, Mst. (2) Swelling all over the right hand with punctured wound on dorsal aspect of middle hand (lacerated). 5. Parcha Bayan Ex.P 1 was recorded on the same day in the hospital at 8.45 P.M. on the basis of which an F.I.R. Ex.P. 15 was registered at the Police Station Deeg at 9.00 p.m. In Parcha Bayan marked Ex.P 1, Mst. Padam Kaur stated as under:- " us c;ku fd;k fd esjs [kkfoUn nhipUn o nsaoj Hkkxey ds [ksr ds lgkus dqYyw oS/k dk [ksr gSA gekjs nksuksa ds [kkyh [ksr gSa rsk vkt djhc 6 cts 'kke dh ckr gS fd eSa vius [ksr esa U;kj dkV jgh Fkh fd esjk ?kjokyk o nsoj Hkkxey nksuksa U;kj mBkus o ykus x;s Fks rks ogka dqYyw oS/k ds yM+ds v#.k] fouksn vkSj x.ks'k Hkh vius [ksr dh Mksy dks cjkcj djds gekjs [ksr esa Mksy cksQ jgs Fks vkSj muds ikl nks&nks yM+ds jke Hkjkslh ds cUuks o gtkjh vkSj iIiw iq= yD[kh ekLVj czkgE.k ykfB;kWa fy;s [kM+s FksA rks esjs ?kjokys us gkFk tksM+dj euk fd;k fd v#.k HkkbZ lkgc D;k dj jgs gks [ksr esa rks Mksyh er cksoks fQj v#.k us esjs ?kj okys ds gkFk idM+ fy;s brus esa jkeHkjkslh ds cUuks vkSj gtkjh us esjs ?kjokys ds ykfB;ka ekjh ij fouksn mYVh QkoM+h esjs nsoj Hkkxey ds flj esa ekjh vkSj fQj gtkjh us Hkkxey ds flj esa ykBh ekjh bl ij brus esa esjk yM+dk mej flag Hkh Hkkxdj vk x;kA rks esjk nsoj o ?kjokyk ogha tehu ij fxj x;s rks v#.k vkSj fouksn us esjs yM+ds ls dgk fd rw ;gkWa D;ksa vk;k rks esjs yM+ds dks fouksn us iIiw] gtkjh us feydj idM+ fy;k rks eSaus gYyk epk;k rks esjs Hkh ,d ykfB;ka v#.k us ekjh rks nkfgus gkFk dh dykbZ ds uhps pksV yxhA fQj eSaus nqgkbZ&nqgkbZ epkbZ rks ekjdqV dj ;s yksx Hkkx x;sA vklikl ds [ksrksa esa dYyu iq= uRFkh uUn fd'kksj iq= ukscr jke ds tks Hkh ns[k jgs FksA fQj esjs nsoj Hkkxey dks esjk yM+dk vej flag lkbZfdy ij fcBkdj lM+d rd yk;k vkSj eSa vius ?kjokys dks gkFk idM+ dj ykbZA lM+d ij ls dkQh vkneh vk x;sA esjs nsoj Hkkxey dh gkyr T;knk [kjkc FkhA blfy, [kfV;k esa Mky 'kQk[kkuk Mhx esa yk;sA rks MkDVj lkgc us esjs nsoj Hkkxey dks ejk crk fn;k] tks pksV yxus ls ejk gSA esjk ?kj okyk vLirky esa nkf[ky gSA " 6. Post Mortem of the body of deceased Bhag Chand was conducted on 1.8.1985, by Medical Board consisting of Dr. S.C. Vyas, Dr. R.S. Gupta, Dr. Kamal Goyal and Dr. Sarad Mishra. It found the following injuries on the body of deceased:- (1) Bruise with abrasions 31/2" x 4" over mid of vertex, a little more on the right side. There are three lacerated wounds 2 cm x 31/2 cm x bone deep, 1.5 cm x 1/4 cm x skin deep in the middle part of the above bruised area 1/2 to 1 cm apart from each other. (2) Impact abrasions 4 cm x 1 cm, longitudinal over middle ⅓rd of It. skin of thigh. 7. In the opinion of the Board the cause of death of Shri Bhag Mai was haemorrhage and shock as a result of fracture of skull bones by heavy blunt weapon. 8. The S.H.O. P.S. Deeg immediately started investigation and recorded the statements of PW. 1 Mst. Padam Kaur and her husband RW. 5 Deep Chand on the same day. On 1.8.1985, he prepared site plan marked Ex.P 2, Seizure Memo of the shirt of accused Vinod Ex.P 5 and Seizure Memo of blood stained earth Ex.P. 6. He recorded statement of Kalian and Pooran on 3.8.1985, and LaL Chand on 5.8.1985. Vinod Kumar was arrested on 28.1.1986, and at his instance spade was seized vide Ex.P 7 on 30.1.1986. After necessary investigation, he submitted Charge Sheet in the Court of M.J.M. Deeg, who committed the accused- appellant and Ganesh to the Court of Additional Sessions Judge, Deeg. The prosecution, in support of its case produced 16 witnesses. Statements of accused appellants were recorded under Section 313 Cr.RC. The appellants denied charges and pleaded to be tried. Appellant Vinod further stated that on the date of occurrence, he had gone to `Gordhanji'. Appellant Arun Kumar stated that on the date of occurrence he was on his duty at Mathura. Appellant Pappu alias Mahesh stated that he had gone to village Sahaipur at the house of Yadram Jat. Accused appellant Kanno alias Brijesh Kumar and Hazari Lal stated that they had gone to village Parsana and were not in the village. 9. Learned Additional Sessions Judge, Dausa, vide his judgment dated 18.1.1991, convicted and sentenced the appellants as mentioned above. Being aggrieved with the said judgment, the appellants have filed the present appeal. 10. Accused appellant Kanno alias Brijesh Kumar and Hazari Lal stated that they had gone to village Parsana and were not in the village. 9. Learned Additional Sessions Judge, Dausa, vide his judgment dated 18.1.1991, convicted and sentenced the appellants as mentioned above. Being aggrieved with the said judgment, the appellants have filed the present appeal. 10. Shri Y.C. Sharma, counsel for the accused-appellants Vinod Kumar and Arun submits that the case set-up by the prosecution is not only unnatural but is false. According to the statement of RW. 13 Radhey Shyam S.H.O. Deeg, the Dol between the fields of appellant Vinod and the complainant party was already demolished before the rains. The statement is corroborated by Site Plan Ex.P 2. In such circumstances the case put in the Parcha Bayan of PW. 1 Padam Kaur marked Ex.P 1 that on being requested by her husband Deep Chand, P.W. 5 to the accused ARun not to demolish the dol, the accused Banno and Hazari gave lathi blows to Deep Chand and Vinod gave spade blow from blunt side on the head of deceased Bhag Chand is false. RW. 1 Mst. Padam Kaur in her statement at page 27 of the paper book stated that Vinod gave a spade blow from blunt side on the head of deceased Bhag Chand, wheres at Page No. 30, she stated that Vinod gave five spade blows, three from right side and two from front side whereas there is only one injury on the head of deceased Bhag Chand. There are material contradictions in her statement. She has improved her statement in the Court and as such is not a reliable witness at all. According to the Parcha Bayan marked Ex.P. 1, Nand Kishore came the spot but he has not been produced, in such circumstances, adverse inference should have been drawn against the prosecution. All the witnesses produced by the prosecution are family members of the deceased. They are highly interested in prosecution. Their statements should not be believed. The names of witnesses Pooran and Lal Chand have not been mentioned in Parcha Bayan. Accused Arun was not in the village but was on his duty in Mathura, which has been proved from the statements of D.W. 5 Arun Kumar, D.W. 8 Laxman Johari, D.W. 9 Ramesh Dutt Sharma and documents marked Ex.D. 12 to Ex.D. 16. He has been falsely implicated with oblique motive. Accused Arun was not in the village but was on his duty in Mathura, which has been proved from the statements of D.W. 5 Arun Kumar, D.W. 8 Laxman Johari, D.W. 9 Ramesh Dutt Sharma and documents marked Ex.D. 12 to Ex.D. 16. He has been falsely implicated with oblique motive. Both the accused are entitled to acquittal of all the charges. 11. Shri Biri Singh, counsel for other accused appellants Hazari, Banno and Pappu submits that the aforesaid accused persons have been falsely implicated in the case. Neither they have any land adjacent to the disputed land nor have any relationship with the accused Vinod and Arun. According to the Parcha Bayan marked Ex.P 1, all the accused appellants alongwith Ganesh were already present in the field of Vinod. According to the prosecution, the intention of the accused appellants was neither to demolish the dol or to construct a new dol. In such circumstances, there could not have been common object of the appellants to inflict any injury either on Bhag chand or his family members i.e. Deep Chand and his wife Mst. Padam Kaur and son Amar Singh. According to the prosecution Mst. Padam Kaur alone was already in her field for a long time but the accused appellant did not inflict any injury on her. Deep Chand and Bhag chand came after one hour. The appellants had no knowledge or information that Bhag Chand and Deep Chand would come to the field. In such circumstance it cannot be said that the appellants formed an unlawful assembly and further that the common object of that assembly was to commit murder of Bhag Chand and inflict serious injury to Deep Chand. When accused Ganesh has been acquitted of all the charges on the same evidence the accused appellants are also entitled to acquittal. Different yardsticks cannot be applied to different accused. There is no mention in the Parcha Bayan that Hazari inflictd any blow on the head of deceased Bhag Chand. Even PW. 1 Mst. Padam Kaur did not say in her statement that Hazari inflicted any injury on the head of deceased Bhag Chand. RW. 5 Deep Chand is not a reliable witness as there are several contradictions in his statement. There is no other witness who stated that Hazari inflicted any injury on the head of the deceased. According to the statement of Dr. RW. 5 Deep Chand is not a reliable witness as there are several contradictions in his statement. There is no other witness who stated that Hazari inflicted any injury on the head of the deceased. According to the statement of Dr. Vyas, Injury No. 1 on the head of Bhag Chand is possible by one blow. In such circumstances, Hazari cannot be punished for offence under Section 302 I.PC. There is no evidence that Hazari gave a lathi blow on the palm of right hand of Deep Chand. In her statement, P.W. 1 Padam Kaur stated that Hazari gave a lathi blow to Deep Chand but it has not been mentioned as to on which part of the person of Deep Chand, lathi blow was inflicted. P.W. 5 Deep Chand in his statement stated that Hazari inflicted lathi blow on his hand. Except the aforesaid statement, there is no other statement that Hazari inflicted a lathi blow on the person of Deep Chand. There is no evidence that Hazari gave a labhi blow on the palm of right hand of Deep Chand. According to the statement of RW. 11 Dr. Vyas, there is one punctured wound on the palm of right hand of Deep Chand, which cannot be caused by lathi blow. There is also swelling on the right hand of Deep Chand. In such circumstances the appellants are entitled to acquittal of changes under Sections 325 read with Section 149 I.P.C. The charges framed against the appellants under.Sections 323 and 148 IPC are not specific but are defective which caused serious prejudice to the appellants in defending their case. There is no evidence that the appellants inflicted any simple injury on Mst. Padam Kuar, Deep Chand, Amar Singh or Bhagchand. The statements are contradictory and are not corroborated by each other. In such circumstances all the appellants are entitled to acquittal of all the charges. 12. On the other hand, Shri Suresh Pareek, counsel for the complainant submits that from the statement of PW. 1 Padam Kaur and P.W. 5 Deep Chand, it has been proved that both Vinod and Hazari inflicted spade and lathi blow on the head of deceased Bhag Chand on account of which Bhag Chand died. Their statements are corroborated by the statement of Dr. Satish Vyas and the Post-Mortem Report Ex.P 13. 1 Padam Kaur and P.W. 5 Deep Chand, it has been proved that both Vinod and Hazari inflicted spade and lathi blow on the head of deceased Bhag Chand on account of which Bhag Chand died. Their statements are corroborated by the statement of Dr. Satish Vyas and the Post-Mortem Report Ex.P 13. He submits that it has been further proved from the statements of aforesaid witnesses that Deep Chand inflicted serious injury on the right hand of P.W. 5 Deep Chand. All the accused-appellants formed an unlawful assembly and further that the common object of assembly was to commit murder of Bhag Chand and to cause grievous injuries to his family members. The plea of alibi is a very weak plea. The accused Arun at the time of occurrence was at the spot and inflicted injuries as stated by the witnesses. Learned Additional Sessions Judge has given cogent reasons while rejecting the plea of alibi. All the accused appellants had inflicted injuries as mentioned in the judgment of learned Addl. Sess. Judge. Accused Ganesh was acquitted because he did not take any part but was standing at the site. The case of Ganesh is totally different from other accused appellants. The prosecution has proved its case beyond any reasonable doubt. Shri Poddar, learned Public-Prosecutor also supported Shri Pareek. They prayed that the appeal be dismissed. We have heard learned counsel for the parties and gone through the record. 13. In Parcha Bayan marked Ex.P 1, it has been specifically mentioned that the appellant Vinod gave a spade blow from blunt side on the head of deceased Bhag Chand. RW. 1 Mst. Padam Kaur in her statement stated that Vinod gave spade blow from blunt side on the head of Bhag Chand. Subsequently, she stated that Vinod gave five blows on the head of deceased Bhag Chand, PW. 5 Deep Chand, who is an injured witness also stated that Vinod gave a spade blow from blunt side on the head of Bhag chand. Thus from the statements of these two witnesses who are the eye- witnesses, it is proved that Vinod gave a spade blow from blunt side on the head of deceased Bhag chand. From the statement of P.W. 11 Dr. Thus from the statements of these two witnesses who are the eye- witnesses, it is proved that Vinod gave a spade blow from blunt side on the head of deceased Bhag chand. From the statement of P.W. 11 Dr. Vyas and the Post-Mortem Report marked Ex.P 13, it has been proved that injury No. 1 on the head of Bhag Chand was possible from one blow and further that injury No. 1 was sufficient to cause his death. Except the statement of RW. 5 Deep Chand, there is no other evidence that Hazari also inflicted injury on the head of deceased Bhag Chand. The statement of Deep Chand is not in consonance with medical report and other statements of witnesses and as such cannot be believed. In such circumstances, we are of the opinion that only appellant Vinod inflicted injury from blunt side of spade on the head of deceased Bhag Chand on account of which he died. Causing of only one blow and that also from blunt side of spade on a minor dispute suggests that accused Vinod had no intention to cause death of Bhag Chand. But he must have had knowledge that he was causing such injury which was likely to cause his death. In such circumstances, while inflicting blow by blunt side, accused Vinod committed an offence under Section 304 Part II I.PC. and as such he is sentenced to three years rigorous imprisonment. Accused Hazari is acquitted of the offence under Section 302 I.PC. and accused Arun Kumar, Banno alias Brijesh and Pappu alias Mahesh are acquitted of the offence under Section 302 read with Section 149 IPC. 14. The next question arises as to whether the appellants formed an unlawful assembly, the common object of which was to murder Bhag Chand. 15. P.W. 1 Padam Kaur in her statement stated that her husband asked the accused not to demolish the dol. PW. 5 Deep Chand in his statement stated that when he reached to his field, the appellants were planning to construct a dol in his field. The dol between the fields of both the parties was demolished four-five days prior to the date of occurrence by the sons of Kalla i.e. Vinod and Arun, and when he asked them not to construct the `dol', Banna inflicted lathi blow on his head. The dol between the fields of both the parties was demolished four-five days prior to the date of occurrence by the sons of Kalla i.e. Vinod and Arun, and when he asked them not to construct the `dol', Banna inflicted lathi blow on his head. The demolition of dol between both the fields is also proved from the statement of RW. 13 Radhey Shyam and the site plan marked Ex.P 2. It has been further proved from the statement of prosecution witnesses that Bhag Chand and Deep Chand came to their field after about an hour of coming of Mst. Padam Kaur. There is no evidence on record that the appellants had information that Bhag Chand, Deep Chand and Mst. Padam Kaur would come to their fields in the evening. In such circumstances, it cannot be said that the appellants had common object to murder Bhag Chand. Further more, according to prosecution, the common object of the appellants was either to demolish the dol or to construct new dol for which the statements of RW. 1 and RW. 5 are contradictory. In our opinion the prosecution failed to prove beyond reasonable doubt that the appellants formed unlawful assembly and further that the common object of the assembly was to murder Bhag Chand. Furthermore Arun Kumar at the relevant time was in the service of Rajasthan Roadways and was posted at Mathura in Booking Office. He stated on oath that on 31.7.1985, he was on his duty from 1.00 P.M. to 9.00 PM. His statement has been corroborated by the statements of D.W. 8. Laxman Johari and D.W. 9 Ramesh Dutt Sharma and also from the documents marked Ex.D. 12 to Ex.D. 16. Ex.D. 15 is a certificate issued by Depot Manager of Rajasthan Roadways at Bharatpur, mentioning therein that accused appellant Arun Kumar had worked from 30.7.1985 to 1.8.1985, at Mathura Booking Depot. Ex.D. 16 is a certificate issued by Dy. Manager, Rajasthan Roadways at Mathura, certifying that accused Arun Kumar was on duty on 31.7.1985, from 1.00 PM. to 9.00 PM. The occurrence took place at 6.30 PM. on 31.7.1985. In such circumstances, in our opinion, appellant Arun Kumar could not be present at the place of occurrence. The observations of the learned Additional Sessions Judge that as Mathura is sitauted at a distance of only 35 kms. to 9.00 PM. The occurrence took place at 6.30 PM. on 31.7.1985. In such circumstances, in our opinion, appellant Arun Kumar could not be present at the place of occurrence. The observations of the learned Additional Sessions Judge that as Mathura is sitauted at a distance of only 35 kms. from the place of occurrence, Arun Kumar could have gone to the place of occurrence, cannot be believed for the simple reason that he had no knowledge or information that the complainant party wold come to his field on 31.7.1985 at 6.30 p.m. In our opinion the prosecution failed to prove beyond reasonable doubt that accused appellant Arun was present at the spot when occurrence took place and was a member of unlawful assembly. 16. Except the statement of RW. 5 Deep Chand, there is no evidence of any witness that Hazari inflicted a lathi blow on the right hand of Deep Chand. There is no evidence at all that Hazari inflicted a lathi blow on the palm of right hand of Deep Chand. There are several contradictions in, his statement and as such it cannot be said that Deep Chand is a reliable witness. Further more a punctured would cannot be caused by a lathi blow. In such circumstances, we are of the opinion that neither appellant Bannor nor appellant Hazari inflicted grievous injury on the palm of right hand of Deep Chand and as such all the aforesaid appellants are acquitted of the charges under Sections 325/149 I.PC. 17. Learned Additional Sessions Judge has convicted and sentenced the appellants Vinod, Hazari, Arun Kumar, Banno alias Brijesh and Pappu alias Mahesh under sections 148 and 323 IPC also. As stated above, accused Arun Kumar was not at the place of occurrence but was at Mathura. Accused Ganesh has already been acquitted of all the charges by the Additional Sessions Judge. In such circumstances, no case is made out against the appellants under section 148 IPC and they are acquitted of the said charge. The conviction of the appellants Vinod, Hazari, Banno alias Brijesh and Pappu alias Mahesh, under Section 323 I.PC. is based on the statements of eye-witnesses. We confirm their conviction under Section 323 I.PC. but their sentence is converted to the period already undergone by them. Accused Hazari, Arun Kumar, Banno alias Brijesh and Pappu alias Mahesh are on bail. Their bail bonds are discharged. is based on the statements of eye-witnesses. We confirm their conviction under Section 323 I.PC. but their sentence is converted to the period already undergone by them. Accused Hazari, Arun Kumar, Banno alias Brijesh and Pappu alias Mahesh are on bail. Their bail bonds are discharged. They need not surrender. 18. Accused Vinod has been sentenced for three years R.I. under Section 304 Part II I.P.C. He is also on bail. His bail bonds are discharged. He is directed to surrender before the learned Additional Sessions Judge, Deeg, within two months, who will send him to jail for serving his sentence awarded by this Court. In case he fails to surrender, the learned Additional Sessions Judge, Deeg, is directed to issue warrant for his arrest and send him to jail to serve the sentence awarded to him. The accused is entitled to set-off the period served by him in Police Custody and in Judicial Custody as provided under Section 428 Cr.RC. 19. The appeals are allowed in part as indicated above.Appeal partly allowed. *******