JUDGMENT 1. - Through this appeal appellants Kedar, Kalyan, Meethiya and Nanda have called in question the judgment dated 23rd of November, 1994 of the learned Additional and Sessions Judge, Gangapur City whereby he convicted them under Section 148, 302 IPC and sentenced each of them to undergo one year rigorous imprisonment and a fine of Rs. 100/- under the first count and imprisonment for life and a fine of Rs. 500/- under the second count. 2. The case relates to an occurrence which took place on 16th of February, 1993 at about 8.00 or 8.30 a.m. in village Jiyapur. The prosecution case, as stated in First Information Report Ex. P/15 lodged by Tahir PW 4, was that there was dispute as to the agricultural land between Faiyaz on one side and Meethiya on the other and that in order to get the matter settled Meethiya had taken Faiyaz to his village and Khalil Ahmed, Asrar Ahmed, Javed Akhtar and Farman were with them. It was stated that at village Jiyapur, many assailants including Kalyan, Meethiya, Nanda and Kedar inflicted injuries to Faiyaz by sharp edged weapons and caused his death. On that report, a case under Section 148, 302 IPC was registered. After the completion of the investigation, the police submitted a challan against 15 persons including four appellants. 3. The trial court framed charges under Section 147, 148, 149, 302, 301 IPC against all the 15 accused. The prosecution examined PW 1 Asrar Ahmed, PW 2 Javed Akhtar, PW 3 Farman, PW 4 Khalil Ahmed, PW 5 Kailash, PW 6 Sheela, PW 7 Badri, PW 8 Faiyaz, PW 9 Jamil Kha, PW 10 Narendra Kumar Sharma, PW 11 Bhim Singh, PW 12 Dr. Mohan Lal Sharma, PW 13 Himmat Singh, PW 14, Thhir, PW 15 Badri Narain, PW 16 Kawar Dev, PW 17 Ashok Kumar, PW 18 Jai Singh, PW 19 Mahaveer Prasad, PW 20 Chotalal, PW 21 Tarachand. The accused in their statements recorded under Section 313 Cr.P.C. denied accusation. They examined 3 witnesses viz. Jagdish Narain, Sawaram and Kishore Singh in defence. After hearing the arguments of the learned counsel for the parties, the trial court held that the prosecution was not successful in proving the charges against 11 accused persons. The accused in their statements recorded under Section 313 Cr.P.C. denied accusation. They examined 3 witnesses viz. Jagdish Narain, Sawaram and Kishore Singh in defence. After hearing the arguments of the learned counsel for the parties, the trial court held that the prosecution was not successful in proving the charges against 11 accused persons. He, therefore, acquitted 11 accused of all the offences charged with He however, convicted 4 appellants under section 148 and 302 IPC and sentenced them as stated above. 4. Mr. Surana, learned counsel for the appellants, contended that the trial court has erred in placing reliance on the testimony of PW 1 Asrar Ahmed, PW 2 Javed Akhtar, PW 3 Farman, PW 4 Khalil Ahmed. His contention was that the conduct of the 4 witnesses was far from natural in as much as they did not even inform to the family members of Faiyaz about the incident, what to talk of the lodging a report to the police. Mr. Surana pointing out that the 4 witnesses did not belong to the village where the occurrence had taken place urged that they had no cause to be present at the place of occurrence. He submitted that Kailash and Sheela who are the residents of village Jiyapur have not fully supported the prosecution case. He contended that the trial court has obviously erred is convicting the appellants under section 148 IPC, without recording a finding than that the assailants were of less than five. 5. As against this, Mr. Rajendra Yadav, learned Public Prosecutor, contended that there is no cause to disbelieve the testimony of 4 eye-witnesses and even the hostile witnesses support the prosecution story. His submission was that the blood stained weapons have been recovered at the instance of the accused and therefore, the trial court has not erred in convicting the 4 appellants under section 302 IPC. He however, conceded that the appellants could not be convicted under section 148 IPC. 6. We have given the material our thoughtful consideration. At the outset, it may be stated that the trial court has not recorded a finding that the assailants were five or more in number and they had formed an unlawful assembly. Therefore, the conviction of the appellants under section 148 IPC is without any basis. The appellants are entitled to be acquitted under that so offence. 7. At the outset, it may be stated that the trial court has not recorded a finding that the assailants were five or more in number and they had formed an unlawful assembly. Therefore, the conviction of the appellants under section 148 IPC is without any basis. The appellants are entitled to be acquitted under that so offence. 7. The prosecution has produced two sets of witnesses. One set consists of PW 1 Asrar Ahmed, PW 2 Javed Akhtar, PW 3 Farman, and PW 4 Khalil Ahmed and other set consists of PW 5 Kailash and PW 6 Sheela. The trial court has believed the testimony of all the witnesses. 8. It is to be seen if the testimony of first 4 witnesses PW 1 to PW 4 is worthy of credence. All these 4 witnesses are not residents of the village where the incident had taken place. They are the residents of the village Bari Udai where Faiyaz lived. The incident took place in village Jiyapur. These witnesses did not have the agricultural lands also in village Jiyapur. Therefore, here could not be any occasion for these witnesses to be at village Jiyapur it the time of occurrence. 9. The witnesses depose that they had gone to village Jiyapur to along with Meethiya and Kalyan accused and Faiyaz- deceased. They say that they saw Faiyaz, Meethiya and Kalyan going on foot towards village Jiyapur, and on their asking that where they were going. Faiyaz replied that there was dispute of mustard crop between them and in order to settle the matter they were going to Jiyapur. Their further statement is that on the asking of Faiyaz to accompany them, they accompanied them. All the 4 witnesses give same explanation of going to village Jiyapur though they did not meet the deceased and the accused at one place. What they want the court to believe is that accused-Meethiya and Kalyan and deceased-Faiyaz were going and they met them one by one on way and on the asking of Faiyaz they accompanied them to village Jiyapur. The explanation of the witnesses for going to the place of occurrence does not inspire confidence. In our opinion, the witnesses have given false statements because they are of the same community and residents of the same village to which the deceased belonged. 10. The explanation of the witnesses for going to the place of occurrence does not inspire confidence. In our opinion, the witnesses have given false statements because they are of the same community and residents of the same village to which the deceased belonged. 10. The unnatural conduct of the 4 witnesses clearly indicates that they had not gone to village Jiyapur. The witnesses claim to have seen the occurrence of giving merciless beating to Faiyaz, yet they did not care to inform even the family members of the deceased. It is evident from their statements that they had visited the hospital where Faiyaz was taken for so treatment and many persons had collected there, but they did not tell anyone that they had seen the occurrence or that the assailants were the accused persons. Had the 4 witnesses gone along with the deceased to Jiyapur for getting the matter settled, this could not be their conduct that they would not intervene in the occurrence and would not inform even the family members of the deceased. This unnatural conduct clearly shows that they had not seen the occurrence, and they are made up witnesses. 11. Tahir PW 14 states in the FIR that Farman had told him about the occurrence and he had given out the details to him. However, Farman PW 3 nowhere says that he had met Tahir PW 14 and had told him about the occurrence disclosing the names of the accused as the assailants, rather his statement is that before he was interrogated by the police, he did not tell anyone about the occurrence. Tahir obviously gives false statement when he says that the FIR was based on the information given by Farman. It is really a mystery as to how the details of the occurrence including the names of the assailants appeared in the FIR Ex./P. 15. It appears that the FIR was not lodged at the time recorded therein and it was prepared after the investigation made some progress. It is noticed that the FIR was not forwarded to the IIaqa Magistrate forthwith. Endorsement appearing on the FIR Ex.P. 15 shows that it was despatched from the police station on 17.2.93 i.e. the next day of the incident. The possibility of implicating innocent persons in the case, therefore, cannot be ruled out. 12. It is noticed that the FIR was not forwarded to the IIaqa Magistrate forthwith. Endorsement appearing on the FIR Ex.P. 15 shows that it was despatched from the police station on 17.2.93 i.e. the next day of the incident. The possibility of implicating innocent persons in the case, therefore, cannot be ruled out. 12. That apart, there are discrepancies in the statements of the 4 witnesses on material points which indicate that they had not seen the occurrence and have given false statements.PW 1 Asrar Ahmed deposes that at the time of occurrence he did not see anyone at the place except the assailants, whereas Farman PW 3 says that at the place where the talks were going on and the occurrence had taken place some 10-12 persons of village Jiyapur had collected and they had also seen the occurrence. PW 2 Javed Akhtar says that there were residential houses where the occurrence had taken place and about 20-25 persons had collected. He even names some persons. PW 4 Khalil Ahmed says that various persons of the village had collected there and they had even told the accused not to beat Faiyaz. Thus there is a material discrepancy in the statements of the four witnesses on the fact that residents of the village Jiyapur were present or not at the time of occurrence. This is discrepancy cannot be said to be inconsequential.Then the witnesses were asked as to which direction the `Patoad' opened or whether there was a `tree' in the house of Kalyan where Faiyaz was taken away. They could not give satisfactory reply. The witnesses even could not say that in which direction the house of Meethiya opened. 13. These facts clearly show that the four witnesses had not seen the occurrence and they have come to depose because their community fellow was killed in the occurrence. 14. Now remains the evidence of PW 5 Kailash and PW 6 Sheela husband and wife who are the residents of village Jiyapur. The occurrence is said to have taken place in and out side their house. They depose to have seen one part of the occurrence. Though they had stated in their police statements that they had seen the entire incident but as they suppressed certain facts they have been declared hostile. The occurrence is said to have taken place in and out side their house. They depose to have seen one part of the occurrence. Though they had stated in their police statements that they had seen the entire incident but as they suppressed certain facts they have been declared hostile. They depose that they had seen Faiyaz running and entering in their Patoad (house) and Nanda and Kedar chasing him. They further state that Nanda was having `Gandasi and Kedar was having `Dhariya' in their hands and they were giving beatings to Faiyaz. Kailash also deposes that as Faiyaz entered in his `Patoad', Nanda bolted it from outside and after some time Kedar dragged Faiyaz out of the Patoad, and Nanda inflicted an injury to the legs of Faiyaz by axe. Sheela says that she had seen both the accused Nanda and Kedar chasing Faiyaz and as Faiyaz entered in her `Patoad' the accused bolted it from outside and thereafter they took out him. 15. Both the witnesses say that because of the terror caused by the accused, they had run away from the scene of occurrence. In our opinion, there is no cause to disbelieve the testimony of Kailash and Sheela in so far as the part played by Nanda and Kedar in the occurrence is concerned. It is fully established that Nanda and Kedar had chased Faiyaz and had caused injuries to him by sharp edged weapons. 16. The testimony of both the witnesses is corroborated by the medical evidence, contained in the statement of Dr. M.L. Sharma PW 12. Dr. Sharma deposes that there were more than 16 injuries on the person of Faiyaz and most of them had been caused by sharp edged weapons like `Dhariya' and axe. 17. Then there is the evidence of recovery of a `Dhariya' at the instance of accused Kedar and of and axe at the instance of accused Nanda. The recoveries had been made by Jai Singh I.O. PW 18. It is established by the evidence of the police officials that the recovered articles were sealed at the spot and they had been sent to the FSL, from where it was reported vide report Ex.P. 39 that they were stained with human blood. This circumstantial evidence against Kedar and Nanda corroborates the direct evidence. 18. It is established by the evidence of the police officials that the recovered articles were sealed at the spot and they had been sent to the FSL, from where it was reported vide report Ex.P. 39 that they were stained with human blood. This circumstantial evidence against Kedar and Nanda corroborates the direct evidence. 18. It is thus established beyond all doubts that Kedar and Nanda had caused multiple injuries to Faiyaz with common intention to cause his death, and the injuries were sufficient in the ordinary course of nature to cause death. They have thus committed an offence under Section 302/34 IPC. 19. There is the evidence of recovery of the spear and axe from other two appellants, but there being no other reliable evidence against them, it is not safe to uphold the conviction of Kalyan and Meethiya. Both of them are entitled to the benefit of doubt. 20. Consequently, the appeal of Kalyan and Meethiya succeeds. Setting aside their conviction under Sections 302 & 148 IPC, they are acquitted. They be released forthwith, if not required in any other case. The amount of fine, if deposited by them, be refunded to them.Appeal of Nanda and Kedar is allowed in part. Their conviction and sentence under Section 148 IPC are set aside. Their conviction under. Section 302 IPC is altered to under Section 302/34 IPC. sentence of imprisonment for life and a fine of Rs. 500/-, awarded to them by the trial court, is upheld.Appeal of K2 and M Allowed - Appeal of K1 and N partly allowed. *******