JUDGMENT 1. - Since both the appeals relate to FIR No 117/1982 registered at Police Station Fatehpur on August 15, 1982, they were heard analogously and are being disposed of by a common judgment. 2. Accused Phooley Khan, Mohiuddin. Shsukat Mustaq and llliyas were charge sheeted by the Police Station Fatehpur for committing offence of murder of deceased Asat Ali. During trial accused llliyas absconded but accused Phooley Khan, Mohiuddin, Shaukat and Mushtaq were convicted vide judgment dated August 11, 1993 of the Sessions Judge Sikar in Sessions Case No. 35/1983 under Section 302/149, 323 and 147 IPC and each of them was sentenced as under- Under Section 302 IPC, to undergo imprisonment for life and to pay fine of Rs.2000/- in default to further undergo six months rigorous imprisonment. Under Section 323 IPC, to undergo six months rigorous imprisonment and to pay fine of Rs. 500/- in default to further undergo one month rigorous imprisonment. Under Section 147 IPC, to undergo one year rigorous imprisonment and to pay fine of Rs. 1000/- in default to further undergo three months rigorous imprisonment. All the sentences were to run concurrently. 3. Accused llliyas after his arrest was tried by the Sessions Judge Jhunjhunu in Sessions Case No. 19/1984. Vide judgment dated April 19, 1986 Sessions Judge Jhunjhunu acquitted him for the charges under Sections 147, 302/149 and 323 IPC. The State of Rajasthan preferred D B. Criminal Appeal No. 372/1986 against the said judgment. 4. Judgment dated August 11, 1983 of Sessions Judge Sikar is under challenge in D.B. Criminal Appeal No. 372/1983 prepared by accused appellants Mohiuddin, Shaukat Ali and Mushtaq. 5. Accused Phooley Khan had also preferred D B Criminal Appeal No. 369/1983 but it stood abated on December 18, 1996 after the death of Phooley Khan. 6. The prosecution case in short is that on August 14, 1982 at about 3.00 p.m. accused Phooley Khan. Mohiuddin, Shaukat Ali, Iliyas, Mushtaq and others came to the field of Asat Ali alongwith the Tehsildar and removed the Baad of Asat Alis filed. Crop standing in the field of Asat Ali also got damaged by cattle. When Asgar Khan, Asat Ali and Alam Khan intervened, they were assaulted with lathies and Barchhies as a result of which Asat Ali and Alam Khan became unconscious. Witnesses Sikandar and Reasat Ali too were beaten. Other witnesses Yasin Khan and Hakim Ali ran away. Crop standing in the field of Asat Ali also got damaged by cattle. When Asgar Khan, Asat Ali and Alam Khan intervened, they were assaulted with lathies and Barchhies as a result of which Asat Ali and Alam Khan became unconscious. Witnesses Sikandar and Reasat Ali too were beaten. Other witnesses Yasin Khan and Hakim Ali ran away. All the four injured persons were admitted to Dhaneka Hospital. Asgar Khan informant instituted FIR with the PS. Fatehpur, where the case under sections 147, 148, 149 and 323 IPC was initially registered. During the course of investigation Asat Ali died and case was converted into Section 302 IPC. After completion of the investigation the accused Phooley Khan, Moniuddin, Shokat, Mushtaq and llliyas were charge sheeted. Case was committed to court of Sessions Judge Sikar. Charges under Sections 147, 302/149 and 323 IPC were framed against the accused appellants. The accused denied the charges and claimed trial. The prosecution examined as many as 14 witnesses. Thereafter statements of the accused under section 313 CrPC. were recorded. Learned Sessions Judge Sikar after hearing the rival contentions convicted and sentenced the accused Phooley Khan, Mohiuddin, Shokat Ali and Mushtaq as indicated hereinabove. 7. Accused Mohd. llliyas who absconded during trial was arrested and committed to the Sessions Judge Sikar. Charges under sections 147. 302/149 and 323 IPC were framed against him. The case thereafter was transferred to the Court of Sessions Judge Jhunjhunu as per directions issued by the High Court vide order dated March 22, 1984. The prosecution examined as many as 14 witnesses in support of its version. The statement of accused Mohd. llliyas under Section 313 Cr.PC. was recorded and the Sessions Judge vide its judgment dated April 19, 1986 acquitted Mohd. llliyas from all the charges. 8. We have pondered over the rival submissions and carefully weighed the material on record. 9. As may as six eye witnesses were examined by the prosecution in support of the incident. Asgar Khan (PW 1) is the informant, who instituted the FIR, Yashin Khan (PW 5) did not support the prosecution version and was declared hostile. Hakim Ali (PW 6) was injured during assault. Sikandar (PW 9) real newphew of deceased Asat Ali, was also injured during assault. Geeg Raj (PW 13) Tehsildar was present at the spot at the time of incident. 10. Dr. Hakim Ali (PW 6) was injured during assault. Sikandar (PW 9) real newphew of deceased Asat Ali, was also injured during assault. Geeg Raj (PW 13) Tehsildar was present at the spot at the time of incident. 10. Dr. Yudhveer Singh (PW 10) proved injuries sustained by Sikandar (PW 9), Alam Ali (PW 8) and Riyasat Ali, who was not examined as prosecution witness. Injuries of llliyas were also proved by Dr. Yudhveer Singh. Post mortem of dead body of Asat Ali was conducted by Dr. Mishra (PW 11). Investigation was conducted by Narain Singh Dy. S.R (PW 12) and Nichhattar Singh SHO (PW14). 11. Close scrutiny of the material on record reveals following established facts - (i) As many as 15 persons were named as accused of assault in the FIR by the informant Asgar Khan (PW 1) but in the investigation, 10 were found innocent and no charge-sheet was filed against them. (ii) There are two counter versions appearing in prosecution evidence. As per eye witnesses Asgar Khan (PW 1) Sikandar (PW 9) Alam Ali (PW 8) and Hakam Ali (PW 6) the accused party opened aggression and complaint party bore the brunt of attack without resistance. On the contrary independent witness Geeg Raj, Tehsildar (PW 13) stated that both the parties had a free fight in which either side had received injuries. (iii) None of the eye witnesses explained the injuries received by the accused llliyas and Mushtaq. (iv) There is a serious conflict in the testimony of Dr. Yudhveer Singh (PW 10) and Dr. Mishra (PW 11). As per Dr. Yudhveer Singh, who prepared injury report (Ex.R 15) of deceased Asat Ali, the injured had only on lacerated wound which had located at right parieto frontal region. But as per Dr Mishra, who conducted post mortem (Ex. 17) the deceased had three injuries on the head. (v) As per assertion of eye witnesses, accused Phooley Khan was responsible for inflicting blow on the head of deceased Asat Ali. (vi) Geegraj Tehsildar (PW 13) categorically stated that he had filed a detailed written report of the incident at the Police Station on the same day. Nichhattar Singh, SHO (PW 14; admitted that the Tehsildar had instituted a report of the occurrence on August 14, 1982 itself but the report has been withheld by the prosecution. (vi) Geegraj Tehsildar (PW 13) categorically stated that he had filed a detailed written report of the incident at the Police Station on the same day. Nichhattar Singh, SHO (PW 14; admitted that the Tehsildar had instituted a report of the occurrence on August 14, 1982 itself but the report has been withheld by the prosecution. (vii) As per version of Geegraj, Tehsildar (PW 13) the complainant party had, first of all taken to force Liyakat, who was accompanying Asat Ali had wielded his lathi, which hit the window of the jeep, thereafter Asat Ali wielded his lathi on Tehsildar which hit constable Bhanwar Lal, who tried to save the Tehsildar. Constable Bhanwar Lal's injury report (Ex.D. 8) has been proved by Dr. Yudhveer Singh (PW 10). Thereafter both sides had fought with each other. (viii) Presence of 15-17 independent persons is established but no body was examined by the prosecution. 12. From the testimony of Tehsildar Geegarj (PW 13) it appears that the prosecution had withheld the proximate cause which led to infliction of injuries on either side. Withholding the detailed written report lodged by Geegraj on August 14, 1982 in respect of occurrence, creates doubt in the truthfulness of the prosecution version. Geegraj is the independent eye witness produced by the prosecution and there is no reason to disbelieve his testimony. Other eye witnesses also admitted the presence of Geegraj at the time of incident. Geegraj stated that Phooley Khan accused on August 9, 1982 made a request to the Additional District Magistrate Sikar by moving an application to remove the obstruction from the path of his field, caused by Asat Ali (deceased). The Additional District Magistrate Sikar directed him to submit the report after inspecting the site. In order to comply with the order, Geegraj had gone to the field along with constables, Revenue Inspector, Shankar Lal, Patwari Jagan Singh and peon Narendra Kumar, there he required the attendance of the parties. Asat Ali, Yasin Khan, Alam Ali and on other person and Phooley Khan came over there. Geegraj recorded their statements and proceeded to inspect the site in a Jeep alongwith Phooley Khan. After drawing site plan when Geegraj dictating the report to Shankar Lal, he found Liyakat, Asat Ali, Alam Ali, Yasain and two other persons coming towards them. Liyakat indicted lathi blow on the jeep and caught hold of Geegrajs hand. Geegraj recorded their statements and proceeded to inspect the site in a Jeep alongwith Phooley Khan. After drawing site plan when Geegraj dictating the report to Shankar Lal, he found Liyakat, Asat Ali, Alam Ali, Yasain and two other persons coming towards them. Liyakat indicted lathi blow on the jeep and caught hold of Geegrajs hand. Asat Ali attempted to inflict lathi blow on him but Bhanwar Lal intervened and blow was laid on his hand. Phooley Khan was having walking stick (Gedia) in his hand, llliyas, Mohiuddin, Mushtaq and one other person also came over there and both the parties had a free fight in which either side had received injuries. Thus according to Geegraj Tehsildar the complainant party was aggressor. It took to violence and opened assault not only on the Tehsildar himself but also on accused persons in which two of the accused llliyas and Mushtaq received serious lacerated multiple blow on their heads. As both sides had fought with each other, provisions of section 149 and 147 IPC in such a situation, are not attracted. 13. Yasin Khan (PW 5) did not support the prosecution case and was declared hostile. Hakim Ali (PW 6) is the relative of the deceased and is a chance witness. Asgar Khan (PW 1), Alam Ali (PW 8) and Sikandar (PW 9) have made material improvements upon their first version recorded by the investigation Officer. As per the statement of informant Asgar Khan (PW 1) accused Phooley Khan was responsible for inflicting blow on the head of the deceased Asat Ali. In a case of free fight only Phooley Khan, if at all any liability is to be fixed, would have been responsible for causing death of deceased Asat Ali. Incidently Phooley Khan is dead and his appeal stood abated. Asat Ali received only one head injury according to Dr. Yudhveer Singh (PW 10) as is evident from Injury report (Ex. 15). Therefore the version of the eye witnesses that other accused also inflicted injuries on the person of the deceased Asat Ali cannot be believed. 14. In our considered opinion the prosecution has failed to prove the guilt under sections 147, 302/149 and 323 IPC beyond reasonable doubt against the accused Mohiuddin, Shokat, Mushtaq and llliyas. Sessions Judge Sikar has not properly appreciated the testimony of the witnesses and committed illegality in convicting the accused Mohiuddin, Shokat and Mushtaq. 14. In our considered opinion the prosecution has failed to prove the guilt under sections 147, 302/149 and 323 IPC beyond reasonable doubt against the accused Mohiuddin, Shokat, Mushtaq and llliyas. Sessions Judge Sikar has not properly appreciated the testimony of the witnesses and committed illegality in convicting the accused Mohiuddin, Shokat and Mushtaq. Accordingly llliyas was rightly acquitted by the Sessions Judge Jhunjhunu. 15. In the result the appeal of Mohiuddin, Shokat and Mustaq succeeds and stands allowed. The conviction and sentence passed by the Sessions Judge vide judgment dated August 11, 1983 stand set aside and they are acquitted from the charges under Sections 147, 302/149 and 323 IPC. They are on bail. Their bail bonds stand cancelled. Fine if deposited shall be refunded to them. The appeal preferred by the State against the judgment dated April 19, 1986 of the Sessions Judge fails and stands dismissed. The bail bonds of accused respondent llliyas stands cancelled. *******