Judgment SINGH, J. ( 1 ) THESE three appeals, D. B. Criminal Appeal No. 445/77 State v. Kishan Singh, S. B. Criminal Appeal No. 218/77 Kishan Singh v. State and S. B. Criminal Appeal No. 219/77 Kalu v. State have been preferred by the appellants against the judgement delivered by the learned Additional Sessions Judge No. 2, Jodhpur in Sessions Case No. 31/75 State v. Kishan Singh and Sessions Case No. 33/75 State v. Gyansingh on 30-4-1977. Sessions Case No. 31/75 State v. Kishan Singh and 12 others and Sessions Case No. 33/75 State v. Gyansingh, were tried together. ( 2 ) IN Sessions Case No. 31/75 State v. Kishan Singh and others, 13 persons, namely, Kishan Singh, Vishan Singh, Babu alias Babulal, Arjun Singh, Karan Singh, Kalu alias Kaliya, Dungarsingh, Tarachand, Achal Singh, Inder Deo, Surendra Singh, Babuda alias Ghanshyam Singh and Mahesh Chandra were tried for offences punishable under Ss. 147, 364, 449, 302 read with S. 149, I. P. C. By the judgement delivered on 30-4-1977, the learned Additional Sessions Judge No. 2, Jodhpur acquitted accused Achalsingh, Inder Deo, Tarachand and Karan Singh of the charges punishable under Ss. 147, 449, 364 and 302 read with S. 149, I. P. C. The remaining 10 accused persons, namely, Kishan Singh, Vishan Singh, Babu son of Pannalal, Arjun Singh, Kalu alias Kaliya, Dungar Singh, Surendra Singh, Babua alias Ghanshyam Singh, Mahesh Chandra and Gyansingh were acquitted of the charges punishable under Ss. 449, 364 and 302 read with S. 149, I. P. C. but they were convicted under Ss. 147 and 325 read with S. 149, I. P. C. For the offence punishable under S. 325, I. P. C. the abovenamed accused persons were sentenced to 3 years rigorous imprisonment and to pay a fine of Rs. 500/- and to undergo rigorous imprisonment for six months in default of payment of fine and for the offence punishable under S. 147, I. P. C. they were sentenced to undergo rigorous imprisonment for two years. The substantive sentences of imprisonment were ordered to run concurrently. ( 3 ) THE State has filed D. B. Criminal Appeal No. 445/77 against the judgement of acquittal in respect of respondents Nos. 1 to 12. The judgement of acquittal passed by the learned Additional Sessions Judge No. 2 in respect of Achal Singh has not been appealed against by the State. ( 3 ) THE State has filed D. B. Criminal Appeal No. 445/77 against the judgement of acquittal in respect of respondents Nos. 1 to 12. The judgement of acquittal passed by the learned Additional Sessions Judge No. 2 in respect of Achal Singh has not been appealed against by the State. ( 4 ) OUT of 10 persons, who were convicted by the learned Additional Sessions Judge No. 2, Kalu alias Kaliya, Surendra Singh and Mahesh Chandra have filed S. B. Criminal Appeal No. 219/77 against the conviction as well as the sentence. ( 5 ) KISHAN Singh, Vishan Singh, Dungar Singh, Arjun Singh, Babura alias Ghanshyam Singh, Babulal and Gyan Singh have filed S. B. Criminal Appeal No. 218/77 against their conviction as well as sentence. ( 6 ) SINCE all these appeals arise from the same judgement, they were heard together and by a common judgement we propose to decide them. ( 7 ) THE facts of the case may be briefly summarised as under :-MUNSHIRA was a well known quarrelsome character of Jodhpur. On 1-6-1975, 20 to 25 persons went to the house of Munshira in a Tempo. 3 of them were armed with swords and others with lathis. They knocked at the door of Munshira and cried out aloud that Munshira should be beaten. When Munshira did not open the door some of them broke open the door and entered the house. In order to save himself Munshira tried to escape by going to the roof and ultimately to save himself he jumped on the ground. As soon as he fell on the ground, the remaining boys, who were standing there, started beating him with lathis, he was overpowered and he was taken by the assailants in a tempo towards loco shed. When Munshira was being assaulted in the abovementioned manner a man, who called himself Kan Singh, reported to the Officer-in-Charge, Police Station, Udai Mandiar by means of telephone about the incident. The information telephonically received in the police station was recorded by Zalam Singh in the Roznamcha and the police party proceeded towards the scene of occurrence. At Subhash Chowk Surja Ram met the police party and his statement was recorded as Ex. P. 1. A Criminal Case No. 174/75 under Ss. The information telephonically received in the police station was recorded by Zalam Singh in the Roznamcha and the police party proceeded towards the scene of occurrence. At Subhash Chowk Surja Ram met the police party and his statement was recorded as Ex. P. 1. A Criminal Case No. 174/75 under Ss. 147, 148, 149, 452 and 364, I. P. C. was registered at Police Station, Udai Mandi, Zalam Singh who was the Incharge of the Police Station, sent Bhagwan Das, A. S. I. , Mohan Singh, A. S. I. , Ram Vallabh, H. C. and some police constables in a jeep to chase the assailant. The police party, while making a search for Munshira, reached the hills near Kaylana and there through a Bheel boy they came to know that a man had been taken away by some persons towards a pit in the hillock. The police party proceeded to that side/spot and found that Munshira was lying there in an unconscious condition. When Munshira was being taken to the hospital, he succumbed to the injuries. The police investigated he case and after investigation submitted two reports under S. 173, Cr. P. C. On the first report, Sessions Case No. 31/75 was registered against 13 persons and on the second report, Sessions Case No. 33/75 against Gyansingh was registered. Both the cases were tried together 14 accused persons were charged under Ss. 147, 449, 364 and 302 read with S. 149, I. P. C. All of them pleaded not guilty to the charge. ( 8 ) THE prosecution examined as many as 27 witnesses in support of the prosecution case and produced number of documents in evidence. Accused were examined under S. 313, Cr. P. C. Loon Singh, D. W. 1, Rameshwar D. W. 2, Bhanwar Singh D. W. 3, Har Bhagwan D. W. 4 and Heer Singh D. W. 5 were examined in defence. ( 9 ) AFTER hearing both the parties, learned Additional Sessions Judge No. 2, Jodhpur delivered the judgement as mentioned earlier. that the verdict of acquittal passed by the learned Additional Sessions Judge No. 2, Jodhpur is not justified and deserves to be set aside in respect of the 12 respondents. During the hearing of the appeal it was brought to the notice of the Court that the respondent No. 12 Mahesh Chandra has expired. Learned Public Prosecutor has admitted this fact. During the hearing of the appeal it was brought to the notice of the Court that the respondent No. 12 Mahesh Chandra has expired. Learned Public Prosecutor has admitted this fact. Therefore, the appeal against the respondent No. 12 Shri Mahesh Chandra stands abated. ( 10 ) LEARNED counsel for the respondent Nos. 1 to 11 has submitted that the learned Additional Sessions Judge No. 2, Jodhpur has rightly acquitted the respondents Karan Singh, Tara Chand and Inder Deo of all the charges framed against them and the respondents Kishan Singh, Vishan Singh, Babu, Arjun Singh, Kalu alias Kaliya, Dungar Singh, Surendra Singh, Babuda alias Ghanshyam Singh of the charges under Ss. 364, 449 and 302 read with S. 149, I. P. C. ( 11 ) WE have carefully gone through the evidence produced by the prosecution in the case. It is not disputed that the deceased Munshira was a well known quarrel some character of Jodhpur. The reason for the assault made on him by the respondent Nos. 1 to 11 has not been disclosed by the prosecution. When the police recovered Munshira in an injured condition from the hills near Kaylana, he was alive and he succumbed to his injuries when he was being taken to the hospital. It means that whosoever the assailants were did not actually intend to cause his death because had they intended to cause his death there was nothing to prevent them from causing the death of Munshira when he was taken from the place of occurrence to the hills where he was found in the injured condition. The post-mortem report Ex. P. 39 shows that Munshira had as many as 21 injuries, out of which only two injuries were grievous. The first grievous injury was on the skull. It was a lacerated wound 4 cm x 0. 7 cm x bone deep in the left fronto parietal region of scalp and beneath this injury there was a fracture of the left parietal temporal bone extending into the middle cranial fossa, and there was subdurai haematamoe of left temporal region. This injury is described as injury No. 20. The second grievous injury is Injury No. 11 which consisted of a fracture of the left ankle. This injury No. 11 is by no stretch of imagination responsible for the death of Munshira. This injury is described as injury No. 20. The second grievous injury is Injury No. 11 which consisted of a fracture of the left ankle. This injury No. 11 is by no stretch of imagination responsible for the death of Munshira. According to the report of the doctor who conducted the post mortem examination, the cause of death was coma which occurred as a result of head injury. None of the remaining 18 injuries were either grievous or likely to cause death. This shows that the death of Munshira was caused on account of single injury caused on his head. Learned counsel for the respondents have submitted that this injury might have been caused by a fall on the ground when Munshira jumped from the roof of his house on the ground below to save himself from those persons who had forced their way inside his house. The doctor who conducted the post mortem examination has been examined. In his cross-examination he was asked as to whether the head injury found on the head of Munshira could have been caused by a fall on the ground. Dr. P. Dayal P. W. 23 replied the question by answering that the injury No. 1 read with underlying injury No. 20 can result from fall on hard surface like a road or stone. In view of the statement of Dr. P. Dayal P. W. 23 and well established fact that in order to save himself from the assailants Munshira had jumped from the roof of his house on the ground and the fact that the prosecution has not attributed this injury to any respondent, it must be said that the injury No. 1 with injury No. 20 beneath it of the deceased might have been caused on account of fall on the ground and the respondent cannot be held responsible for causing that injury. If the abovementioned inference is true, no fault can be legitimately found with the acquittal of the respondents Nos. 1 to 11 in respect of the charge punishable under S. 302 read with S. 149, I. P. C. In our considered opinion the judgement delivered by the learned Additional Sessions Judge No. 2, Jodhpur by which he acquitted the respondents Nos. 1 to 11 in respect of the charge punishable under S. 302 read with S. 149, I. P. C. In our considered opinion the judgement delivered by the learned Additional Sessions Judge No. 2, Jodhpur by which he acquitted the respondents Nos. 1 to 11 of the charge under S. 302 read with S. 149, I. P. C. , is just and proper and the appeal filed by the State has no merits. ( 12 ) SO far as acquittal of respondents, namely, Karan Singh, Inder Deo and Tarachand in respect of charge under Sections 147, 449 and 364, I. P. C. is concerned, the learned Public Prosecutor has not been able to show how the judgement delivered by the learned lower court can be said to be unreasonable or perverse. We have carefully gone through the judgement as well as the evidence and after hearing the learned Public Prosecutor and the counsel for the above respondents we are of the opinion that there is no sufficient ground to interfere with the verdict of acquittal given by the learned Additional Sessions Judge No. 2, Jodhpur. As a result the D. B. Criminal Appeal No. 445/1977 State v. Kishan Singh and others deserves to be dismissed and, is, hereby dismissed. ( 13 ) S. B. Criminal Appeal No. 218/1977 Kishan Singh v. State of Rajasthan and S. B. Criminal Appeal No. 219/1977 : Kalu alias Kaliya v. State of Rajasthan are filed against the conviction and sentence awarded for offence punishable under Sections 147 and 325 read with Section 149, I. P. C. The evidence against the appellants mainly consists of identification of the appellants before the Magistrate. ( 14 ) LEARNED counsels for the appellants have submitted that the evidence is not sufficient to prove that the appellants were the members of the unlawful assembly and there being no other evidence to connect the appellants with the alleged crime, the appeals deserve to be allowed. ( 15 ) LEARNED Public Prosecutor has supported the judgement of the learned Additional Sessions Judge No. 2, Jodhpur by submitting that the evidence of identification of the appellants is reliable and it establishes beyond reasonable doubt that the appellants were members of the unlawful assembly, the object of which was to cause simple and grievous injuries to Munshira. ( 15 ) LEARNED Public Prosecutor has supported the judgement of the learned Additional Sessions Judge No. 2, Jodhpur by submitting that the evidence of identification of the appellants is reliable and it establishes beyond reasonable doubt that the appellants were members of the unlawful assembly, the object of which was to cause simple and grievous injuries to Munshira. ( 16 ) WE have carefully considered the rival submissions and the evidence adduced in this case. At the out-set it may be pointed out that the acquittal of the appellants in respect of charge under Section 449, I. P. C. does not have the effect of rendering the prosecution story unreliable. The prosecution story is that about 20 to 25 persons duly armed with swords and lathis went to the house of Munshira in tempos and some of them broke open the house of Munshira and entered the house and at that time in order to save himself Munshira climbed to the roof and jumped on the ground below. Since the identify of those persons who entered the house of Munshira could not be established by the prosecution, none of the appellants could be convicted clearly shows that some of the assailants had entered the house of Munshira by breaking open the door. ( 17 ) IT is true that the prosecution has not been able to establish as to which injury was caused by a particular appellant. Learned counsel for the appellants has submitted that unless one of the accused is convicted for the substantive charge under Section 325, I. P. C. the other accused not be convicted under Section 325 read with Section 149, I. P. C. This submission does not appear to carry any force. The liability under Section 149, I. P. C. is in respect of the offence committed by one or more members of the unlawful assembly provided other members of the unlawful assembly shared the common object. There is nothing in Section 149, I. P. C. to indicate that unless one member of the unlawful assembly is charged with the substantive offence, the conviction with the aid of Section 149, I. P. C. cannot be possible. We, therefore, do not find any force in the above submission. There is nothing in Section 149, I. P. C. to indicate that unless one member of the unlawful assembly is charged with the substantive offence, the conviction with the aid of Section 149, I. P. C. cannot be possible. We, therefore, do not find any force in the above submission. ( 18 ) SO far as the identification of the appellants is concerned the prosecution has relied upon the testimony of Jugal Kishore, P. W. 19 and Riyaz Mohd. P. W. 20. The identification parades were held in the presence of Shri Kishore Singh P. W. 18 and Shri S. L. Batra P. W. 24. The appellants were arrested on different dates as given below :- @@4296. htm@@ ( 19 ) KALU alias Kaliya was identified by Riyaz Mohd. , Judge Kishore and Anwar Hussain in an identification parade held on 28-8-1975 before Shri Sunder Lal Batra, Judicial Magistrate, Ist Class No. 4, Jodhpur. ( 20 ) DUNGAR Singh alias Piniya was identified 28-8-1975 by Riyaz Mohd. , Jugal Kishore and Anwar Hussain in an identification parade conducted before Shri Sunder Lal Batra, Judicial Magistrate Ist Class No. 4, Jodhpur. ( 21 ) ARJUN Singh alias Bhaya was identified by Riyaz Mohd. , Jugal Kishore and Anwar Hussain on 28-8-1975 in identification parade conducted before Shri Sunder Lal Batra, Judicial Magistrate First Class No. 4, Jodhpur. ( 22 ) KISHAN Singh was identified by Riyaz Mohd. Jugal Kishore, Prahlad, Rishikesh and Smt. Sugra on 9-6-1975 in an identification parade conducted before Shri Kishore Singh, Judicial Magistrate Ist Class No. 1, Jodhpur. ( 23 ) BABURA alias Ghanshyam Singh, Inder Deo, Tarachand and Surendra Singh were identified by Riyaz Mohd. Surendra Singh was identified by Jugal Kishore, Achal Singh and Babura alias Ghanshyam Singh were identified by Prahlad in an identification parade conducted on 29-7-1975 in presence of Shri Kishore Singh, Judicial Magistrate, Ist Class No. 1, Jodhpur. Jaswant Singh was not identified by any witness when the identification parade was conducted on 23-9-1975. ( 24 ) VISHAN Singh was identified by Riyaz Mohd. Jugal Kishore, Rishikesh, Prahalad and Smt. Sugra in an identification parade conducted in presence of Shri Kishore Singh, Judicial Magistrate, Ist Class, No. 1, Jodhpur on 13-6-1975. ( 25 ) BABULAL was identification by Riyaz Mohd. ( 24 ) VISHAN Singh was identified by Riyaz Mohd. Jugal Kishore, Rishikesh, Prahalad and Smt. Sugra in an identification parade conducted in presence of Shri Kishore Singh, Judicial Magistrate, Ist Class, No. 1, Jodhpur on 13-6-1975. ( 25 ) BABULAL was identification by Riyaz Mohd. and Jugal Kishore on 5-9-1975 in an identification parade conducted before Shri Sunder Lal Batra, Judicial Magistrate, Ist Class No. 4, Jodhpur. ( 26 ) KARAN Singh was identified by Riyaz Mohd. in an identification parade conducted on 28-8-1975 before Shri Sunder Lal Batra, Judicial Magistrate, Ist Class, No. 4, Jodhpur. ( 27 ) LEARNED counsel for the appellants has submitted that the evidence of identification is not reliable as the appellants were shown to the witnesses before their identification in jail and the marks of identification have not been mentioned by the witnesses in their statements nor the marks of identification have been given in the first information report. ( 28 ) WE have carefully considered the above arguments. In our opinion, the evidence of identification of the appellants is reliable. Consequently, we have no hesitation in arriving at the conclusion that the appellants were members of the unlawful assembly the object of which was to cause simple and grievous hurt to Munshira and it is further established by the evidence produced by the prosecution that Munshira received simple as well as grievous injuries when he was assaulted by the member of the unlawful assembly. We, therefore, agree with the findings of the learned Additional Sessions Judge No. 2, Jodhpur that all the appellants were guilty of the offences punishable under Sections 147 and 325 read with Section 149, I. P. C. The conviction of the appellants under Sections 147 and 325 read with Section 149, I. P. C. , therefore, deserves to be upheld and it is hereby upheld. ( 29 ) REGARDING sentence, the learned counsel for the appellants have submitted that the incident took place more than 20 years ago when the appellants were of the age ranging between 20 to 25 years and after 20 years no useful purpose would be served by sending them to jail. Therefore, the appellants should be given the benefit of Probation of Offenders Act. ( 30 ) THE learned Public Prosecutor has opposed the above submission. Therefore, the appellants should be given the benefit of Probation of Offenders Act. ( 30 ) THE learned Public Prosecutor has opposed the above submission. ( 31 ) IN our opinion, after more than 20 years it would not serve the cause of justice if the appellants are sent to jail for offences punishable under Sections 147 and 325 read with Section 149, I. P. C. We, therefore, set aside the sentences imposed on them and direct that if each of the appellants furnishes a personal bond of Rs. 10,000/- and a surety of Rs. 10,000/- to keep peace and be of good behaviour for a period of two years then he shall be released on probation. The appellants are given 15 days time to furnish surety bond and personal bond in compliance of the direction contained in this judgement. In case the appellants do not furnish the personal bond and surety bond as directed above they will surrender before the learned Sessions Judge, Jodhpur and shall undergo the sentences awarded to them by the judgement dated 30-4-1977. ( 32 ) S. B. Criminal Appeals No. 218/1977 and No. 219/1977 are decided accordingly. Order accordingly. .