JUDGMENT 1. - This appeal has been preferred under section 374, Cr.P.C. by the convict-appellants against the judgment and order dated 30.4.1980 passed by the learned Sessions Judge, Merta in Sessions Case No. 62/79. 2. Briefly stated, the prosecution story giving rise to the prosecution of the appellants along with Smt. Mohini and Smt. Gangali, who were, after completion of trial as per the impugned judgment were acquitted, is that the accused as well as PW 2 Smt. Bhanwari w/o Shankar (deceased) are residents of village Dhaba. PW 4 Kishna Ram is father of Smt. Bhanwari, who also belonged to village Dhaba. This occurrence took place on 6.6.1979 at about 5.30 p.m. in the village Dhaba. PW 4 Kishna Ram lodged Ex. P/2 verbal report with PW 9 Bhanwar Lal, SHO, P.S., Merta Road at 1.45 a.m. on the night intervening 6-7.6.1979 against all the aforesaid accused-persons & others that in the previous evening when he was sitting at the village temple (gaddi), PW 2 Smt. Bhanwari who is his daughter and was married to deceased Shankar s/o (PW 7) Ram Deen in the same village, accompanied by PW 8 Smt. Gangali, who is married daughter of Ram Deen and was present at the house of Shankar Ram at the time of occurrence, came to him running and he was told that all the accused-persons with Smt. Mohini & Smt. Gangali were conjointly assaulting Shankar Ram with 'Farsi', axe and 'kassi' as well as lathis near the house of Mani Ram-accused. He immediately accompanied Smt. Bhanwari as well as Smt. Gangali to the place of occurrence. He also saw that all the accused-persons were assaulting Shankar Ram who was lying fatally injured in the 'Guwadi' whereat houses of Shankar Ram as well as accused-persons are situated. On their arrival, accused-persons threatened to kill them as well. They returned back and the village Bhambhi was dispatched to inform to all the villagers about the incident. After some time, about 40-45 villagers assembled and they went to the 'Guwadi' of Shankar Ram etc. whereat he was lastly seen being assaulted by the accused-persons but, by then, Shankar Ram was already taken away from there and neither Shankar Ram nor the assailants were found at the place of occurrence. They searched for Shankar Ram but they could not trace him out. whereat he was lastly seen being assaulted by the accused-persons but, by then, Shankar Ram was already taken away from there and neither Shankar Ram nor the assailants were found at the place of occurrence. They searched for Shankar Ram but they could not trace him out. However, they found a pair of shoes belonging Shankar Ram hidden below an iron 'Kadai'. PW 6 Ram Niwas, who is cousin of Kishna Ram, was dispatched to inform PW 7 Ram Deen, father of the deceased, to village Nimbadi to inform him about the incident. Ram Deen, accompanied by Ram Niwas, reached the village Dhaba at about 11 p.m. in the night. In the meantime, PW 5 Mota Ram who had returned from Merta City with his bullock-cart, informed the villagers that while returning, on the way, he had seen a dead body lying at some distance from the Abadi of the village. The villagers went there and saw the dead body of Shankar Ram lying there. It was also reported that the field of Bhanwara s/o Nenu Ram, the later being the brother of Ram Deen, was a subject matter of dispute between the accused-party as well as Shankar Ram and as a result, accused persons had done Shankar Ram to death. 3. PW 9 Bhanwar Lal registered Ex. P/5 report on the basis of Ex. P/2 and took up investigation. He proceeded to the spot in the next morning and prepared site-memo Ex. P/7 of the place whereat dead body of Shankar Ram was found to be lying. He prepared Ex. P/6 inquest report of the dead body. He also inspected the site of the occurrence being the 'Guwadi' whereat houses of both the parties were situated and it was found that a huge patch of blood was found on the soil in front of the houses of Mani Ram and Bhola Ram. There were also blood stains on the western-front wall of the house of Mani Ram and Bhola Ram. The blood stained soil was sealed and taken into possession. The dead body of Shankar Ram was subjected to postmortem by PW 1 Dr. Sugan Chand Mathur, M.O. Incharge, Government Hospital, Merta City and he found as many as 21 injuries caused by blunt weapons on the dead body. The blood stained soil was sealed and taken into possession. The dead body of Shankar Ram was subjected to postmortem by PW 1 Dr. Sugan Chand Mathur, M.O. Incharge, Government Hospital, Merta City and he found as many as 21 injuries caused by blunt weapons on the dead body. He also found that both the legs, left foot, right fore-arm, left fore-arm, right ankle, left ankle and tibial as well as fibula bones were fractured and hands and legs were deformed. All these injuries were ante-mortem and it was opined that all the injuries were cumulatively sufficient to cause death in the ordinary course of nature. Ex. P/1 postmortem report was prepared. 4. PW 11 Pushkar Dutt also partly investigated the case. He arrested the accused-persons. Pursuant to arrest and subsequent information given by the accused Mani Ram, vide Ex. P/19, he recovered Art. 5 wrist watch and Art. 6 loongs' (ear-rings) of the deceased and at the instance of Mani Ram. The same were sealed and taken into possession. They were subjected to test identification conducted by PW 13 Satya Dev Tak, Munsif & Judicial Magistrate, Merta City and PW 2 Smt. Bhanwari as well as PW 8 Smt. Gangali correctly identified both the articles belonging to and being on the person of Shankar Ram at the time he was done to death. Pushkar Dutt also recovered lathis and other articles alleged to have been used in the incident but, since the same were not confirmed to be blood stained and, therefore, there recoveries are of no significance. 5. After completion of the investigation,Bhanwar Lal filed a charge sheet against the accused-persons under sections 147, 148, 379, 302/149, IPC in the Court of Munsif & Judicial Magistrate, Merta City. They were committed to the Court of Sessions Judge, Merta. The learned Sessions Judge, charged accused Mani Ram and Bhola Ram under sections 148, 379 & 302/149, IPC, while rest of the five accused-persons were charged under sections 147 & 302/149, IPC, to which they all pleaded not guilty and claimed to be tried and hence the trial was completed. 6. The prosecution examined as many as 13 witnesses and also produced the documentary evidence. The accused-persons were also examined under section 313, Cr.P.C. and they all denied the prosecution story and also pleaded that none of them was present at the place of the alleged occurrence. 6. The prosecution examined as many as 13 witnesses and also produced the documentary evidence. The accused-persons were also examined under section 313, Cr.P.C. and they all denied the prosecution story and also pleaded that none of them was present at the place of the alleged occurrence. Accused-appellants pleaded that they were out of village and had gone to graze their sheep in other villages and since the deceased was a man of criminal antecedents and he had many enemies and, therefore, he was done to death by any un-known person. They also examined four witnesses in support of their alibi. 7. After hearing both the sides, the learned Sessions Judge, vide his impugned judgment and order, acquitted Smt. Mohini and Smt. Gangali of all the offences charged against them. He also acquitted all the accused-persons of the charge under section 302 /149,1PC. Instead all, the accused-appellants were convicted under section 304 Pt. 11, IPC and a sentence of five years R.I. was imposed on each accused-appellant thereunder. Besides, Mani Ram, Ram Karan and Bhola Ram each were convicted under section 148, IPC and a sentence of one year's R.I. was imposed on each of them. Ramaji Ram and Sukha Ram were convicted under section 147, IPC and six month's R.I. was imposed on each of them. Mani Ram was also convicted under section 379,1PC and one year's R.I. was imposed thereunder. All the substantive sentences were ordered to run concurrently. 8. The convict-appellants preferred this appeal, as above. 9. During the pendency of the appeal, convict-appellant Ramaji Ram expired and, as none applied for leave to continue the appeal on his behalf under sub-sec. (2) of Section 394, Cr.P.C. and his appeal stood abated. Accordingly, at present, this appeal is pending against the conviction of the rest four accused-appellants, as above. 10. I have heard the learned counsel for the appellants as well as the learned Public Prosecutor for the State, considered the impugned judgment as well as the record of the trial Court. 11. The learned counsel for the appellants have contended that the learned trial judge erroneously believed the evidence of PW 2 Smt. Bhanwari and PW 8 Smt. Gangali who are wife and real sister of Shankar Ram. As regards the testimony of PW 4 Kishna Ram, though father-in-law of deceased Shankar Ram, his testimony has not been rightly believed by the learned trial judge. As regards the testimony of PW 4 Kishna Ram, though father-in-law of deceased Shankar Ram, his testimony has not been rightly believed by the learned trial judge. Both the said eye-witnesses of the occurrence are closely related to deceased and as such interested in the deceased and, looking to their conduct, specially when, as per their statements, they have stated that they saw the beginning of the occurrence and all the accused-persons were seen assaulting Shankar Ram near his own house by the deceased and, after they approached PW 4 Kishan Ram and informed about the incident, all the three again returned to the same place of occurrence and are said to have seen the accused-persons still assaulting Shankar Ram at the same place but, none of them intervened and, they again returned to inform the villagers and, in the meantime, it is alleged that Shankar Ram was removed from there. As a result, their testimony does not inspire confidence since it was natural for the wife and sister of the deceased to have attempted to intervene to save Shankar Ram from the assault of the accused-persons in case they happen to see the occurrence as are their statements. 12. It is further contended that all the aforesaid witnesses have stated that Ram Karan, Mani Ram and Bhola Ram were armed with 'Farsi', 'kassi' and axe, rest of the accused being armed with lathis there was not a single injury caused by cutting or sharp edged weapons found on the body by PW 1 Dr. Mathur at the time of postmortem of the dead body of Shankar Ram. Therefore, when initially it was not reported by PW 4 Kishna Ram that the accused-persons, who were alleged to be armed with sharp and cutting weapons, were using the reverse sides of their arms, it has been subsequently by way of modulation to fit in their statements with the Ex. P/1 postmortem report, the witnesses stated that the reverse sides of the arms were used. No independent witness has been examined whereas the incident is alleged to have taken place in the 'Guwadi' of the parties whereat and nearby many houses of the villagers are situated. P/1 postmortem report, the witnesses stated that the reverse sides of the arms were used. No independent witness has been examined whereas the incident is alleged to have taken place in the 'Guwadi' of the parties whereat and nearby many houses of the villagers are situated. Smt. Bhanwari and Smt. Gangali could not have seen the occurrence and since they are closely related and interested witnesses, as is evidence of PW 4 Kishna Ram and PW 3 Bala, has also been rightly disbelieved by the trial Court, there is no other independent and reliable evidence to hold that the accused-appellants were the assailants and as a result of their conjoint and concerted assault Shankar Ram was killed. 13. It is further contended that since Shankar Ram was involved in assaulting Magha Ram who subsequently died and was also convicted for commission of murder of one Shobha Ram and he also underwent a sentence of two years' imprisonment, as is also admitted by PW 4 Kishna Ram and PW 7 Ran Deen and, therefore, looking to the criminal history of the deceased, some unknown persons had killed Shankar Ram after sunset and since his dead body was also found lying near the cremation ground of the village and was, as is the prosecution story, first of all, seen by PW 5 Mota Ram, there was no other eye-witnesses to have seen the occurrence and, therefore, the learned Sessions Judge failed to appreciate the prosecution and hence he has erroneously believed the testimony of PW 2 Smt. Bhanwari and PW 8 Smt. Gangali. Their evidence was also not found reliable in regard to involvement of Smt. Mohini and Smt. Gangali (accused) who was also acquitted by the learned trial judge and, therefore, looking to the discrepant and contradictory testimony of both the said eye-witnesses which do not reconcile with the medical evidence and looking to their unnatural and unreliable conduct as well as the past conduct of the deceased, the prosecution did not succeed to prove the charges levelled against the accused-appellants beyond reasonable manner of doubt. 14. Similarly, as regards Mani Ram, Art.5 wrist watch and Art. 6 ear-rings could not have been correctly identified by Smt. Bhanwari as well as Smt. Gangali and the recoveries also do not inspire confidence and, therefore, conviction of Mani Ram is also not sustainable. 15. 14. Similarly, as regards Mani Ram, Art.5 wrist watch and Art. 6 ear-rings could not have been correctly identified by Smt. Bhanwari as well as Smt. Gangali and the recoveries also do not inspire confidence and, therefore, conviction of Mani Ram is also not sustainable. 15. The learned Public Prosecutor has contended that though PW 1 Dr. Mathur clearly opined that the injuries found on the dead body of Shankar Ram were cumulatively sufficient in the ordinary course of nature to have caused death and the accused-persons purposely avoided to cause any injury on vital parts of the body which could be singly fatal and instead they brutally caused as many as 21 injuries thereby breaking and fracturing the hands and legs causing multiple grievous and simple injuries, as a result of which Shankar Ram succumbed to such injuries instantaneously at the place of the occurrence. There was huge blood found in the soil at the place of occurrence. As a result, when the incident, as is borne out of the testimony of PW 9 Bhanwar Lal who inspected the site of occurrence vide Ex. P/9 whereat Shankar Ram was subjected to murderous assault and is also corroborated by the evidence of PW 2 Smt. Bhanwari as well as PW 8 Smt. Gangali that the soil so taken from the place of occurrence has been found to be stained with human blood which leaves no doubt that the deceased was subjected to a murderous assault in the 'Guwadi' of the parties itself, as is the evidence of the prosecution. 16. That being so, since Smt. Bhanwari was residing with her husband (deceased), and so also the presence of PW Smt. Gangali at the house of her brother, who are also so named in Ex. P/2 report by PW 4 Kishna Ram, further furnishes guarantee in regard to their presence at the house of the deceased situated just near the place of occurrence and, therefore, they are most natural and reliable witnesses and the learned trial judge did not commit any error while relying on their testimony. That being so, their relation,ship with the deceased cannot be a disqualification for disbelieving their testimony. The medical evidence also supports their testimony. Besides, PW 4 Kishna Ram, PW 6 Ram Niwas and PW 7 Ram Deen have also corroborated statements of these witnesses. Kishna Ram gave Ex. That being so, their relation,ship with the deceased cannot be a disqualification for disbelieving their testimony. The medical evidence also supports their testimony. Besides, PW 4 Kishna Ram, PW 6 Ram Niwas and PW 7 Ram Deen have also corroborated statements of these witnesses. Kishna Ram gave Ex. P/2, as is also corroborated by him, and Ex. P/5 report was registered on the basis of Ex. P/2. Therefore, there is overwhelming circumstantial and direct testimony in support of the prosecution as a result of which the accused-persons have been rightly convicted, as above. Besides, the prosecution has also proved that Bhanwara s/o Nenu Ram who is nephew of Ram Deen had borrowed money from.him and since then agricultural land falling to the share of Bhanwara was under the cultivatory possession of the deceased and the accused-persons who were also cousins of the deceased, were claiming the same land and there was a dispute about the possession of the land and this was the motive for the accused-persons to have killed Shankar Ram. 17. There is also reliable evidence to prove that Mani Ram was found in possession of Art. 5 and Art. 6 after the incident and both the articles having been proved to be belonging to and to be on the body of the deceased, by the witnesses. Therefore, all the accused-persons have been rightly convicted and this appeal does not warrant its acceptance. 18. I have given a considered thought to the rival contentions of the parties, detailed above. 19. As regards the date of occurrence and the time as well as the place of occurrence, there cannot be much dispute. As is stated by PW 2 Smt. Bhanwari and PW 8 Smt. Gangali and also corroborated by PW 4 Kishna Ram, besides PW 9 Bhanwar Lal who inspected the site of occurrence, being the 'Guwadi' of the parties, on the next day of the occurrence, vide Ex. P/9 site-memo and, as his statement also, he found blood stained soil at the place marked 'A' in Ex. P/9 and also found a pair of shoes belonging to Shankar Ram and as are also identified by Smt. Bhanwari and Smt. Gangali, was found lying below an iron 'kadai' near the place of occurrence. 20. P/9 site-memo and, as his statement also, he found blood stained soil at the place marked 'A' in Ex. P/9 and also found a pair of shoes belonging to Shankar Ram and as are also identified by Smt. Bhanwari and Smt. Gangali, was found lying below an iron 'kadai' near the place of occurrence. 20. PW 2 Smt. Bhanwari has stated that, prior to the incident, Shankar Ram had gone with a bucket, 'Iota', clothes and stick of soap for bathing to the well and, at the site a stick of soap was also found at the place of occurrence. The house of the deceased marked by 'E' is also located in the same 'Guwadi'. All the houses of the accused persons as well as Shankar Ram, since they were also from common ancestors, abutted in the 'Guwadi' and the incident took place just in front of house of Shankar Ram and just adjacent to the houses of Bhola Ram and Mani Ram. 21. PW 9 Bhanwar Lal also took sample of the blood stained soil into possession and the same was sealed at the site as is described in Ex. P/8 and so also has been corroborated by PW 12 Gumana Ram. Bhanwar Lal has further stated that the packet of the blood stained soil was kept in a sealed and securely at the police station and the same was, lastly, sent to the S.P. Nagaur in a sealed packet, as is also statement of PW 10 Kalyan Singh. Ex. P/4 and Ex. P/5 show that the sample of soil collected from the place of occurrence, on its chemical examination, was found to be stained with human blood. There is nothing against it. Therefore, besides, the date and time of occurrence, as is borne out of the evidence discussed above and also reported in Ex. P/2 report, besides, it is also proved that the murderous assault was made on Shankar Ram at the place shown in Ex. P/9 by Bhanwar Lal, as above and as is also stated by the wife and sister of deceased Shankar Ram. Thus further ensures the presence of both Smt. Bhanwari and Smt. Gangali as eye-witnesses near the place of occurrence. 22. Secondly, as regards violent and unnatural death of Shankar Ram, this is also not a subject matter of challenge. P/9 by Bhanwar Lal, as above and as is also stated by the wife and sister of deceased Shankar Ram. Thus further ensures the presence of both Smt. Bhanwari and Smt. Gangali as eye-witnesses near the place of occurrence. 22. Secondly, as regards violent and unnatural death of Shankar Ram, this is also not a subject matter of challenge. He was done to violent death and he suffered not less than 21 injuries as are noted in Ex. P/1 postmortem report by PW 1 Dr. Mathur, who has also stated that the injuries so found on the dead body of Shankar Ram were collectively and cumulatively sufficient in the ordinary course of nature to cause death. However, though PW 2 Smt. Bhanwari and PW 8 Smt. Gangali have stated that the accused-persons were also armed with sharp and cutting weapons, as above but, not a single injury caused by such a sharp and cutting weapon was found on the dead body, which shows that no sharp weapon was used in committing the crime. However, as is the statement of Smt. Bhanwari, this possibility cannot be excluded that the accused-persons purposely avoided to use sharp and cutting sides of the weapons they were possessed and instead, they used reverse sides of the arms while assaulting Shankar Ram with a view to create a evidence that the assailants never intended to cause death of the victim and instead their intention, at the most, could have been to cause injuries. Though, there is no truth full justification to agree with the conclusion arrived at by the learned trial judge that the accused-persons either did not intend to cause death of Shankar Ram or that the injuries they were causing, at the same time, they did not intend to cause such injuries which were found to be sufficient in the ordinary course of nature to cause death but, since the State has not challenged the verdict that has gone in favour of the accused-persons and a very long time has been taken in disposal of this appeal, there is hardly any justification for disturbing the findings of the trial Court on this score. 23. 23. As a result, on the basis of evidence discussed above and as is also held by the learned trial judge, it is also proved beyond reasonable manner of doubt that Shankar Ram was brutally assaulted and he received multiple simple and grievous injuries resulting in fracturing his hands, legs etc. and he had died due to these injuries. His death was, by all means, unnatural and violent. 24. That being so, the only crucial point for consideration is as to whether the accused-persons formed any unlawful assembly with the common object of causing death of Shankar Ram or causing such injuries which they knew to be likely to cause his death and in prosecution of the same, they made a concerted and conjoint assault on Shankar Ram, as a result of which he had died. 25. Both Smt. Gangali as well as Smt. Mohini have been acquitted and there being no appeal against the same, they fall out of consideration. Besides, since Ramaji Ram has died and his appeal abated, his case also falls out of consideration. 26. As regards the present accused-appellants, PW 2 Smt. Bhanwari has stated that she along with her sister PW 8 Smt. Gangali was present at her house. She had come to her husband's house hardly 15 days before, since her 'Gona' ceremonies was celebrated. She has stated that on the fateful day and at the time, she heard the cries of her husband, killing killing". Both of them came out of their house and they saw that Shankar Ram was being assaulted by the accused-persons, as above. Ram Karan, Bhola Ram and Mani Ram were assaulting with a 'Farsi', 'kassi' and an axe while rest of the accused were armed with lathis and they were all inflicting injuries on the person of Shankar Ram. When they tried to reach near the place whereat Shankar Ram was being assaulted, they were also threatened with the same fate and serious consequences and they rushed to PW 4 Kishna Ram, who was sitting outside the village temple and narrated the incident to Kishna Ram. Kishna Ram accompanied them to the place of the occurrence and he saw that the accused-persons were assaulting, as above, Shankar Ram at the above place. He also stated that the accused-persons were using cutting and sharp weapons from the reverse side. 27. Kishna Ram accompanied them to the place of the occurrence and he saw that the accused-persons were assaulting, as above, Shankar Ram at the above place. He also stated that the accused-persons were using cutting and sharp weapons from the reverse side. 27. Assuming that none of the said witnesses could have seen such arms being used either from their reverse or sharp sides, since medical evidence shows that only injuries caused by blunt weapons were found on the dead body, it can also be safely inferred that the sharp and cutting sides of the weapons were not used and, in the circumstances, this argument of the learned counsel for the appellants is not tenable that since all the three accused-persons stated to have been armed with the sharp and cutting weapons were not involved in the incident and, therefore, they have been falsely implicated. 28. Kishna Ram also stated that since they were threatened with dire consequences and apprehending danger to their lives, they returned from there in the Abadi and they collected villagers and went back to the same place but, by then, the accused had disappeared from there along with the body of Shankar Ram. He dispatched PW 6 Ram Niwas to village Nimbadi whereat PW 7 Ram Deen father of the deceased, was living. This is corroborated by Ram Niwas as well as Ram Deen. Both Ram Niwas and Ram Deen reached the village. By then, PW 5 Mota Ram, as is also his statement, Mota Ram, while returning from Merta City, he saw the dead body and informed the aforesaid witnesses, who confirmed that the dead body was that of Shankar Ram. Kishna Ram lodged Ex. P/2 report with PW 9 Bhanwar Lal, who registered Ex. P/5 FIR and investigated the case. 29. Besides, PW 8 Gangali, whose presence at the house of Shankar Ram at the time of the incident is believable and proved, while corroborating the above statement of PW 2 Smt. Bhanwari also clearly stated that all the accused-persons were so assaulting Shankar Ram in their 'Guwadi' and they rushed to Kishna Ram and on returning to the place of occurrence, they saw the accused-persons still assaulting Shankar Ram and then they returned. 30. The learned trial judge has rightly believed her presence at the place of occurrence and admitting her to be an eye-witness of the occurrence besides PW 2 Bala. 30. The learned trial judge has rightly believed her presence at the place of occurrence and admitting her to be an eye-witness of the occurrence besides PW 2 Bala. Their presence and conduct is most natural. Since the accused-persons as well as the deceased belonged to the same family, being cousins and the accused-persons being large in number and armed with deadly weapons, were assaulting Shankar Ram and, therefore, looking to the fact that both being ladies, their conduct was most natural to approach PW 4 Kishna Ram and to have informed about the incident. There is nothing abnormal or unnatural in the conduct of PW 4 Kishna Ram and, therefore, the learned Sessions Judge also fell into error while disbelieving the testimony of Kishna Ram as an eye-witness. Kishna Ram had immediately dispatched PW 6 Ram Niwas to inform PW 7 Ram Deen who reached the village in the early night itself and the huge blood found at the initial place of occurrence further supports the testimony of Kishna Ram, that the incident took place in the 'Guwadi' of the parties and not anywhere else. The dead body of Shankar Ram was taken away by the accused-persons to screen themselves of the offences of committing murderous assault on Shankar Ram and so they removed his body from the place of occurrence and instead they placed the same near the village cremation ground as noticed by Mota Ram in the first instance. 31. As a result, the testimony of Smt. Bhanwari and Smt. Gangali, as corroborated by PW 4 Kishna Ram and Ex. P/2 report, besides, the medical evidence and the statement of PW 9 Bhanwar Lal, which is further supported by Ex. P/8 and Ex. P/9 and on the basis of chemical report received vide Ex. P/3, the prosecution proved beyond reasonable manner of doubt that the accused-persons formed an unlawful assembly and they armed themselves with deadly weapons including cutting and sharp edged weapons and they conjointly subjected Shankar Ram to a murderous assault in their own 'Guwadi' whereat huge blood fell on the ground and, subsequently, after he was killed, his dead body was removed near the cremation ground, as is also described in Ex. P/7 site plan, also prepared by PW 9 Bhanwar Lal. P/7 site plan, also prepared by PW 9 Bhanwar Lal. Though, PW 2 Smt. Bhanwari, PW 8 Smt. Gangali and PW 4 Kishna Ram are interse related and are interested witnesses but, on the basis of the evidence discussed above and specially when there was a bad blood created between the family members, as the parties are, no independent witness could come forward. Besides, at the place of the occurrence, except the deceased himself, all the other residents though related to the deceased, had quarrel about the agricultural land being cultivated by Ram Deen through his son Shankar Ram and, therefore, they were inimical to the family of the deceased. Ram Deen had to move to the village Nimbadi whereat he was cultivating other land. Shankar Ram alone was living in the 'Guwadi' whereat other houses belonging to the members of the family of the accused-persons themselves are situated. Since no other independent witness is proved to have seen the occurrence and, therefore, since the presence of wife and sister of the deceased is most natural and they are found to be reliable witnesses and their testimony is also corroborated by the statement of PW 4 Kishna Ram, besides Ex. P/2 report lodged by him and the medical evidence, their testimony, being so reliable and natural, cannot be brushed aside on the sole ground that they are closely related to the deceased and are interested as such. Besides, as are the statements of PW 4 Kishna Ram and PW 7 Ram Deen, since Ramdeen was cultivating the agricultural land falling to the share of Bhanwara who was also nephew of Ram Deen, the accused-persons wanted to cultivate the same land but, Ram Deen, as is his statement, had advanced a money to Bhanwar a as consideration for cultivation of his land, he wanted return the money before he could part with the possession of the land of the share of Bhanwara and this had enraged the accused-persons and this was the immediate motive for the accused-persons to have assaulted and killed Shankar Ram. 32. Accused-appellants maintained that they were not present at the place of occurrence and instead they were grazing their sheep in the other villages. They have also examined DW 2 Shankar, DW 3 Shobha Ram and DW 4 Dana Ram. 33. 32. Accused-appellants maintained that they were not present at the place of occurrence and instead they were grazing their sheep in the other villages. They have also examined DW 2 Shankar, DW 3 Shobha Ram and DW 4 Dana Ram. 33. DW 2 Shankar has stated that at the time of incident he was present at his house along with DW 3 Shobha Ram. They did not see any occurrence as is the prosecution case, on the date and at the time of the incident. DW 3 Shobha Ram also, while supporting the statement of DW 2 Shankar, stated that he was present at the house of Shankar and he did not see any occurrence on the fateful day at the place of occurrence being the 'Guwadi' of the accused-persons. Though, the house of DW 2 Shankar is not in the lane of the houses falling in the 'Guwadi' of the parties but the same is situated on the western side of the village path passing from the western side of the Guwadi. His evidence is of general nature and on the basis of the findings arrived at, as above, -specially having regard to the testimony of PW 9 Bhanwar Lal, both Shankar as well as Shobha Ram are found to be false and unreliable witnesses since the prosecution has proved beyond reasonable manner of doubt that the incident did take place in the 'Guwadi' of the parties in front of house of the deceased. 34. DW 3 Shobha Ram has further supported the prosecution story that it was at about 9 p.m. on the same day that PW 5 Mota Ram informed that a dead body was lying near the village cremation ground and they found that the dead body was that of deceased Shankar Ram. Shobha Ram also stated that Shankar Ram had assaulted him and he was convicted vide Ex. D/6 judgment by the Court and was awarded two years' imprisonment. 35. DW 4 Dana Ram is resident of village Khudi and has stated that, on the day of occurrence and around the days of occurrence, Mani Ram, Sukha Ram and Ramaji Ram accused were living in his village while grazing their sheep in their fields. He did not disclose this fact during the course of investigation. His evidence is of general nature and does not inspire confidence. He did not disclose this fact during the course of investigation. His evidence is of general nature and does not inspire confidence. Besides, at the time of examination of PW 2 Smt. Bhanwari, it was never suggested to her that the accused-appellants were not present at their houses of the fateful day and instead they were out of their village. It was at the time of examination of PW 4 Kishna Ram that, for the first time, such a plea of alibi was advanced on behalf of the accused-persons. This is a very weak evidence. When there is direct, cogent and reliable evidence to conclude that the accused-appellants were present at the place of occurrence, as was most natural, such a type of evidence which could be created at any stage, does not inspire confidence and the learned trial judge too did not rely on the same and rightly so. 36. Therefore, the contention of the learned counsel for the appellants that it was for the first time that Kishna etc. knew about the killing of Shankar Ram only after PW 5 Mota Ram informed the villagers about a dead body lying at the village cremation ground and that none had, in fact, witnessed the occurrence and, therefore, this was a blind incident and subsequently, the parents of the deceased and his wife as well as sister of the deceased conspired and lodged an FIR which is a post investigation and a concocted one, does not hold any merit. Kishna Ram was unwell and present at the village temple and being informed of the incident, immediately rushed to the place of occurrence and, on his return, as above, he lost no time in despatching PW 6 Ram Niwas to the village Nimbadi situated at a distance of about 15 km. who went on foot to inform Ram Deen about the incident and both of them returned to the village and thereafter, Kishna Ram was immediately dispatched to the Police Station, Merta, which is also situated at a distance of six miles from the place of occurrence and he lodged Ex. P/2 report at 1.45 a.m. in the same night. The police was rushed to the spot in the night itself. It was on the next day morning that PW 9 Bhanwar Lal reached the place of occurrence and took up investigation, as above. 37. P/2 report at 1.45 a.m. in the same night. The police was rushed to the spot in the night itself. It was on the next day morning that PW 9 Bhanwar Lal reached the place of occurrence and took up investigation, as above. 37. As a result, all these facts and circumstances, negative all the contentions raised by the learned counsel for the appellants that the accused-persons were never the assailants and instead due to animosity, they have been falsely implicated. 38. Besides, as regards Mani Ram, as are the statements of PW 11 Pushkar Dutt, Dy.S.P. as well PW 12 Gumana Ram and PW 13 Satya Dev Tak, it was pursuant to discovery statement Ex. P119 made by the appellant Mani Ram that he recovered Art. 5 wrist watch and Art. 6 ear-rings of the deceased vide Ex. P/29, as is also supported by PW 12 Gumana Ram, from the house of Mani Ram. Both these articles, as are the statements of Pushkar Dutt as well as Gumana Ram, were packed and sealed at the spot and were deposited in the Malakhana in the same condition. PW 9 Bhanwar Lai has stated that he got Art. 5 and Art. 6 identified by way of previous test identification parade conducted by PW 13 Satya Dev Tak, who supports it and further states that vide Ex. P/38 test identification memorandum, he got both articles, after mixing with other articles identified by PW 2 Smt. Bhanwari and PW 8 Smt. Gangali and they correctly identified them. Both the said witnesses have also identified both these articles at the time of their examination in the Court correctly. The accused-persons have not advanced any claim over both the articles. That being so, there is nothing to disbelieve the aforesaid evidence in regard to recovery of Art. 5 and Art. 6 and the same being worn by the deceased at the time of the incident and having been subsequently removed by Mani Ram and thereafter having been recovered from his possession, as above. This further lends support to the fact that Mani Ram along with his co-accused appellants were involved in the incident and, therefore, both these articles were also removed dishonestly from the dead body at the time of the occurrence. 39. This further lends support to the fact that Mani Ram along with his co-accused appellants were involved in the incident and, therefore, both these articles were also removed dishonestly from the dead body at the time of the occurrence. 39. As a result of the aforesaid evidence, the prosecution has proved that the accused-appellants, who were five in number formed an unlawful assembly with the common object of causing injuries to Shankar Ram knowing that the same could result in death of Shankar Ram and in prosecution of the same common object Shankar Ram having been so brutally and grievously hurt, resulting in his instantaneous death, they are all liable for commission of offence of homicidal death not amounting to murder and so they are liable under section 149, IPC r/ w 304 Pt. IL IPC. Since the accused-persons were members of an unlawful assembly and also so assaulted with deadly weapons and they also committed rioting. They have also been rightly convicted under sections 147 & 148, IPC, as per the impugned judgment. 40. Mani Ram has rightly been convicted under section 379 IPC, as well. 41. As a result of above discussion, the learned Sessions Judge did not commit any error or illegality in relying on the direct and ocular testimony of PW 2 Smt. Bhanwari and PW 8 Smt. Gangali, besides, the corroborating evidence of the aforesaid witnesses as well as the FIR Ex. P/5 and the medical evidence. 42. In the result, the consequential conviction of the accused-appellants under section 304 Pt. 11/149, IPC and that of the accused Mani Ram under sections 148 & 379, IPC, Ram Karan and Bhola Ram under section 148 and of Sukha Ram under section 147, IPC, does not warrant any interference in this appeal.Therefore, as regards merits of this appeal, the conviction of the accused-appellants for the aforesaid offence for which they have been held guilty under the impugned judgment, suffers from no illegality or serious infirmity warranting any interference by this Court and the appeal is liable to be dismissed on this score.Lastly, in the alternate, the learned counsel for the appellants contended that the appellants were arrested on 15.6.1979. Sukha Ram appellant was released on bail on 23.8.1979 and he was again taken into custody on 30.4.1980 and was released on 16.5.1980, while rest of the appellants were, during the pendency of the appeal, in the custody were bailed out on 16.5.1980 by this Court. Thus, Sukha Ram remained in the police/judicial custody w.e.f. 5.6.1979 to 23.8.1979. Whereas, similarly, Bhola Ram, Mani Ram and Ram Karan remained in custody w.e.f. 15.6.1979 to 30.4.1980 when Sukha Ram was also taken into custody to serve out the sentences imposed on him. It was on 16.5.1980 that, pending appeal, the order of sentence under appeal was suspended and all the appellants were let off on bail. As a result, Sukha Ram remained in custody/confinement for more than 41/2months and rest of the appellants had remained in custody/confinement for more than 11 months each. The occurrence took place on 6.7.1979 and period of more than 171/2years has passed since then. It was submitted that the parties were close relations. Admittedly, there was a dispute regarding ancestral land falling to the share of Bhanwara and cultivated by Ram Deen and his son Shankar Ram. Therefore, relying on the decisions in Surjia v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 378 and Rajia & Ors. v. The State of Rajasthan, 1992 Cr.L.R. (Raj.) 581 , the learned counsel for the appellants have argued that, looking to the background of the incident and the nature of the offences and having regard to the fact that the appellants are facing the rigours of the trial /appeal since 15.6.1979 and hence they be either released on probation of good conductor be let off reducing their sentences to already undergone by them. The learned Public Prosecutor while opposing it, in the alternate, submitted that in case benefit or leniency as prayed for is acceptable, substantial amount by way of fine be enhanced and be paid as compensation to the dependents of the deceased.On consideration of totality of facts and circumstances, as above, it is just and fair that, without a precedent, the appellants' substantive sentences of imprisonment under each count be reduced to already undergone by them concurrently. However, amount of fine under section 304 Pt. II, IPC is enhanced.Accordingly, this appeal succeeds in part. However, amount of fine under section 304 Pt. II, IPC is enhanced.Accordingly, this appeal succeeds in part. The appeal against the conviction of the appellants under the aforesaid offences is dismissed and the impugned judgment holding them guilty of commission of the said offences is affirmed. However, as regards the impugned sentences of imprisonment imposed on them, the same are reduced to already undergone by them. However, besides the sentence of imprisonment under section 304 Pt. II, IPC, a fine of Rs. 5,000 /- is imposed on each appellant. In default of payment of fine, each appellant shall have to further undergo rigorous imprisonment of six months. On realisation of fine, the same is ordered to be paid to legal heirs of the deceased, preferably to wife, in absence of her second marriage. They are allowed two months' time to deposit amount of fine with the trial Court, failing which legal efforts should be expedited. On payment of fine, they shall not be required to undergo sentence of imprisonment, any more.Appeal partly allowed. *******